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51 posts from August 2011


John Wood: Separation of Powers Before and After The Seventeenth Amendment
Michael Ramsey

John Wood (Natural Resources Defense Council) has posted Separation of Powers Before and After the Seventeenth Amendment on SSRN. Here is the abstract:

To properly appraise contemporary constitutional allocations of power it is necessary to consider the origins, etiology, and content of the separation of powers doctrine. Upon this basis it becomes apparent that by undermining federalism in the Senate, the Seventeenth Amendment weakened bicameralism in Congress, which in turn eroded separation of powers between Congress and the Executive. After the Seventeenth Amendment, the United States Congress is unencumbered by a critical structural check originally designed to protect political liberty by preventing corrupt, arbitrary, and excess use of federal legislative power. This Article finds the origins of separation of powers doctrines in ancient Jewish, Roman and Greek texts; highlights the refinements to separation of powers doctrine in the writings of Montesquieu, Locke and The Federalist Papers; and distills this Western political heritage into conceptual underpinnings of separation of powers doctrine. Lastly, it provides a structural analysis of the Seventeenth Amendments’ effects on the separation of powers; critiques three alternative proposals to solve the problem of arbitrary and excessive federal lawmaking; and considers the feasibility of relevant constitutional change. As the “last man standing,” repealing the Seventeenth Amendment is necessary to repair the Constitution’s structural integrity.


Originalism in the Blogs
Michael Ramsey

Jason Mazzone:  Individual Mandate: Federalism and Rights.  Central point:

The federalism challenge to the individual mandate [in the health care act] does not lose its steam merely because the challenge is ultimately directed at promoting individual liberty. That's what federalism does.

Seems right to me.  I struggle to understand the appeal of a description of federalism as "states' rights," if that is taken to mean that states as states have some sort of moral right we are bound to respect.  Federalism is a worthy goal to the extent it leads to good results for individuals, not because states have moral claims (what ever that might mean).

Rebecca Zietlow: Popular Originalism? The Tea Party Movement and Constitutional Theory
Michael Ramsey

Rebecca E. Zietlow (University of Toledo - College of Law) has posted Popular Originalism? The Tea Party Movement and Constitutional Theory on SSRN. Here is the abstract:

The United States Constitution is currently the subject of a heated political debate. Tea Party activists have invoked the constitution as the foundation of their conservative political philosophy. These activists are engaged in “popular originalism,” using popular constitutionalism, constitutional interpretation outside of the courts, to invoke originalism as constitutional method. The Tea Party movement thus highlights the relationship between originalism and popular constitutionalism, two prominent trends in constitutional theory. Both fields study legal history to illuminate constitutional meaning, but originalists and popular constitutionalists draw diverging lessons from that history. Originalists look to history to determine fixed original meaning, which they hold to be binding on contemporary interpreters regardless of subsequent historical or political developments. Popular constitutionalists study how constitutional interpretation has been influenced by historical developments, and explore the use of constitutional theory to bolster constitutional arguments. This essay explores the convergence and divergence between originalism and popular constitutionalism, and questions whether popular originalism is feasible given originalists’ fidelity to the original text. The essay concludes by asking what popular originalism can teach about us constitutional interpretation and democracy. While modern originalism began as a critique of judicial over-reaching into the political process, it has evolved into a justification for courts to overturn democratic measures. Paradoxically, then, the popular originalism of the Tea Party may achieve its only success, not through the democratic process, but in the federal courts.


Originalism in the Blogs: The Necessary and Proper Clauses
Michael Ramsey

At Balkinization, John Mikhail begins what promises to be a rich and detailed of posts: The Necessary and Proper Clauses.  (As he puts it, "I refer to the N&P 'clauses' (plural) rather than the N&P 'clause' (singular) to emphasize that the relevant text is comprised of three distinct provisions, only the first of which refers to the enumerated powers in Article I, Section 8....").

Rob Natelson: Proposing Constitutional Amendments by Convention
Michael Ramsey

Robert G. Natelson (The Independence Institute; Goldwater Institute) has posted Proposing Constitutional Amendments by Convention: Rules Governing the Process (Tennessee Law Review, Vol. 78, p. 692, 2011) on SSRN. Here is the abstract:

Much of the mystery surrounding the Constitution’s state-application and – convention amendment process is unnecessary: History and case law enable us to resolve most questions. This Article is the first in the legal literature to access the full Founding-Era record on the subject, including the practices of inter-colonial and interstate conventions held during the 1770s and 1780s. Relying on that record, together with post-Founding practices, understandings, and case law, this Article clarifies the rules governing applications and convention calls, and the roles of legislatures and conventions in the process. The goal of the Article is objective exposition rather than advocacy or special pleading.


Elizabeth Price Foley: The Tea Party and Constitutional Amendments
Michael Ramsey

Elizabeth Price Foley (Florida International University (FIU) - College of Law) has posted Sovereignty, Rebalanced: The Tea Party and Constitutional Amendments (Tennessee Law Review, Vol. 78, p. 751, 2011) on SSRN. Here is the abstract:

Arguably since the Marshall Court and undoubtedly since the New Deal, the U.S. Constitution has been subverted to the point where its original meaning has been substantially lost inside a tangled knot of Supreme Court case law. Like termites eating away at the constitutional architecture, Supreme Court interpretations of provisions such as the Commerce Clause, taxing and spending power, Privileges or Immunities Clause, Ninth Amendment, Tenth Amendment, and Eleventh Amendment have so rotted them that they no longer serve the critical functions originally envisioned.

One of the most pervasive themes in this journey into constitutional Wonderland – where constitutional law professors teach at least six impossible things before breakfast – is the loss of vertical separation of powers, or federalism. Year after year, the drumbeat of expanding federal power grows louder, drowning out objections and concerns voiced by the states. The noise has recently reached a fevered pitch, fueled by actions of the Obama Administration: massive industry bailouts overloaded with federal strings, mind-numbing trillion-dollar stimulus programs laden with earmarks, aggressive use of federal powers to shut down states’ efforts to fight illegal immigration and, the coup de grâce, Obamacare.The six-million-dollar question is how to untangle this constitutional Gordian knot. The most intriguing proposals call for specific constitutional amendments or a constitutional convention, the latter of which has not occurred since the grand convention in Philadelphia that fateful, hot summer of 1787. This essay will explore the major themes of these calls for constitutional amendments and conventions, who is behind them, what problems they seek to solve, and their likelihood of success.


Originalism on the Web
Michael Ramsey

Adam Winkler: The Secret History of Guns.


Originalism in the Blogs: Two Continuing Debates
Michael Ramsey

Jack Balkin weighs in on collective action federalism: Resolution VI as a Principle of Construction.  Kurt Lash replies: Jack Balkin’s Response to my Article on Resolution VI.  

Eugene Volokh responds to Tom Bell on non-originalist textualism: Interpreting the Constitution According to its “Plain, Present, Public Meaning.”


UPDATE: Tom Bell replies: Volokh on the Constitution's Plain, Present, Public Meaning.

Timothy Lynch: Amending Article V to Make the Constitutional Amendment Process Itself Less Onerous
Michael Ramsey

Timothy Lynch (Cato Institute) has posted Amending Article V to Make the Constitutional Amendment Process Itself Less Onerous (Tennessee Law Review, 2011) on SSRN. Here is the abstract:

The thesis of this article is that the procedure for amending the Constitution in Article V is defective and should be changed. The American Constitution created a federal government of limited and enumerated powers. By making the Constitution difficult to amend, the framers thought they could preserve it, but the design failed. In light of the erosion in the original design of the Constitution, how can anyone be confident that other constitutional safeguards will not be lost? This article maintains that the difficult amendment procedure laid out in Article V is primarily responsible for our current predicament. An easier amendment process will bridge the gulf that presently exists between the constitutional text and the government we actually have. Instead of the two-thirds vote necessary for Congress to propose amendments or for the states to call a convention, we should lower the threshold to a simple majority. And instead of the three-fourths vote necessary for the states to ratify an amendment, we should lower that threshold to two-thirds.


What should we call those who enacted the Constitution?
Mike Rappaport

There is a problem of terminology that afflicts originalist scholarship.   What should we call those who enacted the Constitution?  Traditionally, scholars referred to them as the Framers, but that was often understood to mean the drafters of the Constitution at the Philadelphia Convention.  If one doesn't think that group has special authority -- and I don't -- one doesn't want to focus on them. 

Another possibility is to refer to the "ratifiers" -- the people in the ratification conventions of the states that ratified the Constitution.  But once again, I don't think this group has special authority.

When talking about the decisions to put material in the constitution (such as, "the Framers decided on a unitary executive"),  my view is that one wants to talk about all those who participated.  This includes the Framers and the Ratifiers, but not just them.  One is also talking about the people who elected the delegates to the ratifying conventions, which is the broad political nation at the time.    

What term could we use?  The Founders might work, except it often refers to the elite and to some elite (such as Adams and Jefferson) who were not even in the country when the Constitution was enacted.  

In the end, in my own scholarship I have used the term "the constitutional enactors" or simply "the enactors."  It is not bad, but it is not followed generally in the literature. 

Does anyone out there have other suggestions?