Jeffrey M. Perl, et al.: Between Text and Performance: Symposium on Improvisation and Originalism. (Only the abstract is available for free online.)
Jeffrey M. Perl, et al.: Between Text and Performance: Symposium on Improvisation and Originalism. (Only the abstract is available for free online.)
Vinicius Marinho (UFRJ - Universidade Federal do Rio de Janeiro - FND - Faculdade Nacional de Direito) has posted Two Constitutions in Tension on SSRN. Here is the abstract:
Contemporary American constitutionalism’s scholarship tends to primarily observe the constitutional phenomenon from a critical perspective. Orphan and heir of the influence exerted by critical studies in the seventies and eighties, however, it seems that contemporary constitutionalism lacks a common ground, reasonably homogeneous, that could underlie most of its major theories. The diversity of constitutional sources can offer hints on how the constitutional debate became a movement of theoretical dispersal.
Obviously, there is just one American Constitution, although it has two dimensions. In this article I analyze how this dichotomy implicates in constitutional scholarship’s tension and fickleness. These conflicts are possible because the written and the unwritten constitutions provide diverse theoretical approaches to the same dilemmas on the current constitutional catalogue (the political system, the civil rights, constitutional legitimacy, legal certainty and constitutional stability, legal regulation, constitutional design, judicial review, etc).
Some issues, joined together in this constitutionalism, converge to the fact that we are dealing with a system which carries two philosophically profound features that flow in opposite directions. It seems that the American constitutional debate’s most influential opinion-makers employ this dichotomy, which is composed by the Common Law Constitution and written Constitution, in order to outline their theories and doctrines. They may find space for almost anything. On one hand, we have precedents, tradition, customs, common sense, and fairness; on the other hand, stability, safety, tolerance, national union, positive canons, modern democracy, and interpretation.
The foremost characteristics of these different dimensions of the Constitution compounds the article’s central aim, under the perspective of their influence on the progress and function of the most relevant contemporary theories debated in the Supreme Court and by law professors. This brief study enables further comparisons of this system with other constitutions.
Walter Russell Mead: New Blue Nightmare: Clarence Thomas and the Amendment of Doom (commenting extensively on Jeffrey Toobin’s New Yorker article noted here).
Via Instapundit, highlighting this passage from Mead:
“[Toobin's article] is one of the most startling reappraisals to appear in The New Yorker for many years. It is hard to think of other revisions as radical as the declownification of Clarence Thomas: Herbert Hoover as the First Keynesian? Henry Kissinger as the Great Humanitarian? . . . If Toobin’s revi[si]onist take is correct, (and I defer to his knowledge of the direction of modern constitutional thought) it means that liberal America has spent a generation mocking a Black man as an ignorant fool, even as constitutional scholars stand in growing amazement at the intellectual audacity, philosophical coherence and historical reflection embedded in his judicial work.”
Franita Tolson (Florida States University- College of Law) has posted Reinventing Sovereignty?: Federalism as a Constraint on the Voting Rights Act on SSRN. Here is the abstract:
The Framers of the United States Constitution wrote the Elections Clause to address concerns that the states would fail to call congressional elections and weaken the already fragile new government. The Clause is a delegation of sovereignty from the states to the federal government because, although states select the “time, place, and manner of elections,” U.S. Const. Art. IV, Sec. 4, Cl. 2, Congress retains final policymaking authority over federal elections through its veto power, or ability to “alter or modify” state electoral schemes. The Clause, which forms the basis of our electoral system, has largely been ignored in analyzing the constitutionality of federal legislation that modifies or alters state electoral practices.
In particular, the states’ lack of sovereignty over elections has not informed the Supreme Court’s analysis of section 5 of the Voting Rights Act of 1965. Recent caselaw has criticized section 5 on the grounds that it unduly interferes with state sovereignty by requiring states to preclear any change to their election laws with the federal government before the change can go into effect. To support its argument that the Act intrudes on state sovereignty, the Court has employed a federalism norm, which is a free floating conception of the federal/state balance of power that is not tied to the constitutional text or structure. Using this norm, the Court has deferred to the states over the matter of elections under the guise of restoring the “original” balance of power between the states and the federal government in this area.
This presumption that the states’ authority over elections is sovereign represents a basic misunderstanding about the structure of our government. The constitutional text and structure give Congress sovereign authority over all state election laws that govern federal elections and implicate the constitutional right to vote, while states retain plenary authority over federal elections and have, at best, limited sovereignty over practices that only implicate state elections.
Unlike most of the legal commentary, I do not seek to excuse or legitimize the Voting Rights Act as a justified incursion on state sovereignty. Rather, this article argues that the federalism norm and the overblown concerns about state sovereignty have little place in analyzing the continued constitutionality of the Voting Rights Act. First, the theories of federalism employed by the Court and the commentary do little to explain the allocation of power between the states and the federal government over elections. As the historical record shows, the Founders did not intend that the structure of the Elections Clause be federalist; rather, it is best viewed as having a decentralized organizational structure that prioritizes federal law. Along these lines, the Clause permits states to choose the time, place, and manner of elections in the first instance, in essence allowing them to play a managerial role in overseeing our electoral system. But the text provides for only one sovereign—Congress—who can alter or modify state plans at will. During the ratification debates, the states recognized that the Elections Clause represented an abdication of sovereignty over elections. Thus, “sovereignty” inaccurately describes the states’ role in our system, in which they have autonomy, or plenary and nonfinal authority, over elections.
Second, the Court’s conflation of “sovereignty” and “autonomy” in its federalism doctrine has bled over into its Voting Rights Act jurisprudence, resulting in an ill conceived and misplaced deference to state authorities and a narrow view of their obligations under the Act. The article concludes that when Congress’s power under the Elections Clause is combined with its ability to enforce the mandates of the Fourteenth and Fifteenth Amendments, which prohibit discrimination in all elections, the Voting Rights Act represents an appropriate use of congressional power to alter or modify state electoral practices.
Steven E. Art (U.S. Courts) and Zachary D. Clopton (United States Attorney’s Office- Northern District of Illinois) have posted The Meaning of the Seventeenth Amendment and a Century of State Defiance on SSRN. Here is the abstract:
Nearly a century ago, the Seventeenth Amendment to the U.S. Constitution worked a substantial change in American government, dictating that the people should elect their Senators by popular vote. Despite its significance, no court or commentator has explained what the Amendment means or how it works. This Article fills that void, providing the first definitive interpretation of the Seventeenth Amendment. Our account is based on a detailed textual analysis and a variety of other sources: historical and textual antecedents; relevant Supreme Court decisions; the complete debates in Congress; and the social and political factors that led to this new constitutional provision. Among other things, we show that the Amendment requires states to fill Senate vacancies by holding elections, whether or not they first fill the vacancy with a temporary appointment. In so doing, the Seventeenth Amendment guarantees that the people’s right to vote for Senators is protected in all circumstances.
We also identify a startling pattern of state defiance of the Seventeenth Amendment. To measure state compliance, we gathered and examined data on all 244 vacancies in the Senate since the Amendment’s adoption. In one-six of cases, states violate the Seventeenth Amendment by failing to hold any election; and in many more they unnecessarily delay holding those elections. These practices have cost the people 200 years worth of elected representation since the Constitution was amended to provide for direct election of Senators. There are few areas in which states so routinely disregard the federal Constitution and nothing is done to stop them.
It’s well argued on both sides, but I think they’re both wrong.
Professor Yoo repeats his longstanding argument that the President has broad independent constitutional power to initiate war despite Congress’ power “to declare War,” adding this observation:
I think that we’ve been misled by the modern myth that Congress’s power to “declare war” is a shorthand for beginning military hostilities. The Framers fought a number of early wars without a declaration from Congress: conflicts with the Indians from 1789 on, the Quasi-War with France, the Barbary Wars. Of the wars fought under the Constitution during the lifetimes of the Framers themselves, only the War of 1812 received a declaration of war from Congress.
You’d think from this passage that the military engagements he mentions were undertaken on the president’s independent authority. Not so. All of them were authorized by Congress. The post-1789 Indian wars were authorized on a campaign-by-campaign basis (a necessity, since the nation then had effectively no standing army). The Quasi-War was authorized by a series of statutes that gradually increased the amount of force the President was allowed to use against France. The Barbary Wars likewise received congressional authorization – against Tripoli in 1802 and 1804 and Algiers in 1815. (The Tripoli conflict began without congressional authorization when one of Tripoli’s ships attacked a U.S. navy ship, but President Jefferson then asked for and received approval to pursue the conflict further). (References in Louis Fisher, Presidential War Power (2nd ed. 2004), pp. 17-37).
Thus despite Yoo’s implication, early post-ratification practice does not provide a shred of support for broad presidential war powers. Early practice does indicate that a formal declaration of war isn’t required if Congress authorizes military action by statute – as the Supreme Court said in Bas v. Tingy in 1800. But that has nothing to do with the position Yoo is trying to advance.
For all this, Andy McCarthy’s position is even more problematic. At least I understand Yoo’s argument: he thinks that the “declare War” power refers only to formal declarations, leaving the President with power to act without a formal declaration. I think that’s wrong (see here) – in the 18th century “declaring” war included actions initiating hostilities as well as formal declarations, and founding-era commentary (including commentary accompanying the Indian wars, the Quasi-War and the Barbary Wars) clearly shows that the declare war clause was understood to cover all initiations of hostilities. But I see how he might read the text otherwise.
McCarthy’s position, in contrast, is mystifying. He agrees with Yoo (without explaining why) that the President has power, “in the absence of an attack or threatened attack, and without congressional authorization, to use force abroad to protect U.S. national-security interests.” But he rejects the further proposition that “the president may, without congressional authorization, initiate a military attack abroad under circumstances in which the U.S. has not been attacked or threatened, and in which there are no vital U.S. national-security interests at stake.” (Thus he argues, contra Yoo, that the Libya intervention required congressional approval).
I have no idea where he gets his distinction. Congress has power to “declare War.” By negative implication, the President doesn’t have that power. So you have to decide what that power encompasses, on the basis of some combination of 18th century definitions, founding-era commentary and post-ratification practice. McCarthy is in effect saying that starting a war where no vital interests are at stake is “declaring” war, but starting a war where vital interests are at stake is not. Nothing in the text or founding era commentary even faintly suggests this, and McCarthy doesn’t point to anything in support. It may be a good line to draw as a policy matter (though Yoo in response has some fair points why it’s not), but in either case I see no reason to think it’s the line the framers drew.
Lawrence Solum: Legal Theory Lexicon: The Interpretation-Construction Distinction.
At reason.com, Damon Root: Strict Scrutiny: Obamacare and the Long Slow Death of Conservative Judicial Restraint.
UPDATE - FURTHER THOUGHTS: Damon Root’s insightful post inspires some originalism-related thoughts. Root highlights political conservatives’ mixed feelings about judicial restraint: once a centerpiece of conservative views of the judiciary, the idea of deference to the political branches has lost favor in part, Root argues, as more conservative judges were appointed, giving “right-leaning federal judges … the opportunity to overturn liberal legislation.”
Root doesn’t discuss originalism directly, but there’s a similar tension in originalist theory. Modern originalism has roots in reaction to the Warren Court. It provided a way for Warren Court opponents to appeal not just to policy disagreements but to the higher principle of faithfulness to the Constitution. As such, it carried a substantial appeal to democratic values: the sins of the Warren Court, to a significant extent, were said to be that it imposed rules the Constitution didn’t justify, and so produced rule by judges over majority rule. Thus the quote from the originalist Robert Bork which Root invokes: “in wide areas of life majorities are entitled to rule, if they wish, simply because they are majorities.” Originalism in this sense is deployed as a tool of judicial restraint.
Except that originalism doesn’t really work that way. The Constitution’s original meaning is a set of rules, and there’s no reason to think modern majorities necessarily want to live within them. (One can argue, as Lino Graglia does, that originalism permits most things modern majorities want to do, but that seems to require either a very narrow view of the Constitution’s commands or a lot of wishful thinking about modern majorities). And if modern majorities break the rules, why aren’t originalist judges entitled and indeed obligated to overturn majorities? Yet that turns originalism into a recipe for active, not deferential, judges. To be sure, it’s activism within the bounds set by the original meaning. But originalist judges substitute their views for the views of the majority – only it’s their views of the original meaning, rather then their views of the best modern policy or morality. This may be justifiable on various grounds, but it can’t be justified on grounds of majoritarianism (or restraint).
As originalism has become less a critique of the Warren Court and more a program for adjudication across the full range of constitutional issues, its non-restrained character has become more apparent. And yet originalism continues to look to democratic values for justification. Consider Justice Scalia’s concurrence in McDonald v. City of Chicago, in which he argues that originalism best protects democratic values, while defending an opinion that, on originalist grounds, lays the groundwork for judges to invalidate gun control measures adopted – by majorities – in state and local jurisdictions throughout the country. Assuming McDonald is correct about the rule contained in the original meaning of the Second and Fourteenth Amendments, (a) something must justify imposing that rule on modern majorities, and (b) that “something” can’t be democratic values.
This is not meant to criticize either judicial restraint or originalism. My point is that judicial restraint is a competitor, not an ally, of originalism in constitutional theory (just as Root sees that judicial restraint is a competitor rather than an ally of conservative political theory). Sometimes – perhaps often – the two will align in particular cases, but they are fundamentally at odds. If you doubt it, consider how many times Scalia has voted to invalidate the actions of majorities on originalist grounds. Scalia has said (among other places, in his classic A Matter of Interpretation) that the core divide in constitutional theory is between originalism and living constitutionalism. There is at least as significant a divide between those who would find a substantial role for judges in determining social policy (whether through original meaning or otherwise) and those who wouldn't.
In sum, two conclusions. First, people who argue for originalism and judicial restraint need to decide which they want, because they can’t have both. Second, originalism needs to attack judicial restraint head-on. Ultimately it’s an adversary, not a friend – and it’s an adversary that highlights the most basic question originalism must answer: why should rules adopted long ago bind today? By taking judicial restraint, as well as living constitutionalism, as a key theoretical counterpoint, originalist theory would be more motivated to confront its central challenge (and less tempted to invoke the ultimately unsatisfying justification of democratic values).