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30 posts from May 2017

05/16/2017

Evan Bernick: Is Judicial Deference to Agency Fact-Finding Unlawful?
Michael Ramsey

Evan D. Bernick (Georgetown University Law Center) has posted Is Judicial Deference to Agency Fact-Finding Unlawful? (Georgetown Journal of Law & Public Policy, forthcoming) on SSRN.  Here is the abstract:

Judicial deference to fact-finding by federal administrative agencies took root and developed alongside the modern administrative state. This fact deference is of great consequence to people who are charged with regulatory violations by agencies. Such violations are often initially adjudicated, not in federal courts by Article III judges, but in administrative proceedings by employees of the agency that is seeking to impose fines or other penalties. While review can later be sought in federal court, judges broadly defer to the factual findings made by agency adjudicators in the course of administrative proceedings—and those findings can be determinative of whether a regulatory violation has taken place. Although fact deference was initially constructed by the Supreme Court, it now has the express command of the Administrative Procedure Act of 1946 (APA) behind it. Section 706 (2)(E) of the APA provides that fact-finding in formal administrative adjudication may be overturned by reviewing courts only if an agency’s factual determinations are found to be “unsupported by substantial evidence."

Yet, although longstanding administrative law doctrines that command judges to defer to agency interpretations of statutes and regulations have received intense academic and judicial scrutiny in recent years, fact deference has received comparatively little attention. This Article provides an overview of the origins, development, and present state of fact deference and subjects fact deference to a thorough constitutional critique, focusing on Article III and the Fifth Amendment's Due Process of Law Clause. It concludes that in cases involving administrative deprivations of core private rights to "life, liberty, or property," fact deference violates Article III's vesting of "[t]he judicial power" in the federal courts; constitutes an abdication of the duty of independent judgment that Article III imposes upon federal judges; and violates the Fifth Amendment by denying litigants “due process of law,” which requires (1) judicial proceedings in an Article III court prior to any individualized deprivation of “life, liberty, or property”; and (2) fact-finding by independent, impartial fact-finders. It then proposes an alternative: de novo determination of questions of fact in Article III courts prior to any binding judgment that deprives people of core private rights.

05/15/2017

Larry Solum's Legal Theory Lexicon: 'Living Constitutionalism'
Michael Ramsey

At Legal Theory Blog, Larry Solum has a new entry in his Legal Theory Lexicon: Living Constitutionalism.  Here is the introduction:

Constitutional discourse in both the academy and the public sphere has recently included quite a bit of talk about "originalism."  But what about originalism's great historical rival, "living constitutionalism?"  What is living constitutionalism and how is it different from originalism?  A preliminary answer to that question can be offered in the form of a simple definition:

Living Constitutionalism:  Living constitutionalism is the view that the legal content of constitutional doctrine does and should change in response to changing circumstances and values.

This entry in the Legal Theory Lexicon will examine the history of living constitutionalism, discuss the question as to how and whether it differs from originalism, and briefly explore some of the main forms of contemporary academic living constitutionalism.  As always, the Lexicon provides a short introduction to a concept in legal theory for law students.

And from the section entitled "Living Constitutionalism versus Originalism":

Like other theoretical terms, "living constitutionalism" and "originalism" have meanings that are disputed.  This means that some theorists are likely to offer definitions for these terms that make it true (as a matter of definition) that living constitutionalism and originalism are mutually exclusive, where as other theorists may embrace the possibility that some moderate forms of living constitutionalism are compatible with originalism.  The most prominent example of compatibilism is Jack Balkin's theory, which he explicated and defended in his book, Living Originalism.

The following definitions of "living constitutionalism" and "originalism" illustrate the possibility of compatibilism:

Originalism:  A constitutional theory is "originalist" if it affirms (1) the fixation thesis (the linguistic meaning of the constitutional text is fixed at the time each provision is framed and ratified), and (2) the constraint principle (the fixed original meaning should constraint constitutional practice).

Living Constitutionalism: A constitutional theory is "living constitutionalist" if it affirms that the legal content of constitutional doctrine does and should change in response to changing circumstances and values.

Nonoriginalism: A constitutional theory is "nonoriginalist" if it denies either the fixation thesis or the constraint principle.

Given these definitions, "living originalism" is a conceptual possibility if it is the case that the fixed original meaning of the constitutional text underdetermines at least some questions of constitutional doctrine.  Such underdetermination may occur if the constitution contains provisions that are vague or open textured.  Such provisions could be said to create "construction zones," areas of doctrine where the linguistic meaning of the text would need to be supplemented by precisification or default rules.  Thus, if some living constitutionalists accept that the constitutional text is binding when it is clear, then they could embrace originalism as to some issues while affirming that constitutional doctrine should evolve with respect to others.

Some originalists may reject the idea of compatibilism.  For example, some originalists may embrace the proposition that the constitutional text is fully determinate and hence that embracing the constraint principle entails that constitutional doctrine does not change.  It is important to remember that this kind of determinacy does not entail the further conclusion that constitutional applications are fixed.  Thus, one can believe that the original meaning of the Second Amendment creates a rule that forbids government regulations that ban the possession of weapons that can be carried by a person, but reject the idea that the category of weapons is limited to weapons that existed in 1791 when the Second Amendment was adopted.

If you accept the definitions offered above, then compatibilism and hence "living originalism' is at least a conceptual possibility.

As Professor Solum would say, "Highly Recommended."

05/14/2017

Robert Natelson: Why the Constitution's 'Convention for Proposing Amendments' Is a Convention of the States
Michael Ramsey

Robert G. Natelson (The Independence Institute) has posted Why the Constitution's 'Convention for Proposing Amendments' Is a Convention of the States on SSRN.  Here is the abstract:

A prominent feature of public discussion about whether the state legislatures should require Congress to call a “convention for proposing amendments” are claims that the protocols and composition of such a convention are unknown. These claims are incorrect.

This Article presents the evidence demonstrating that the Supreme Court spoke accurately when it classified an amendments convention as “a convention of the states”—a kind of gathering that has been a frequent feature in American history, and whose protocols and composition are thoroughly documented. The Article further concludes that the convention of states formula is the only model for an amendments convention likely to win public acceptance.

05/13/2017

Randall Kelso: A True Originalist Theory of Constitutional Interpretation Would Adopt the View of a Living Constitution
Michael Ramsey

R. Randall Kelso (South Texas College of Law Houston) has posted Pace Scalia, Thomas, and Gorsuch, a True Originalist Theory of Constitutional Interpretation Would Adopt the View of a Living Constitution, Not a Static or Fixed Constitution on SSRN.  Here is the abstract:

Two main approaches appear in the popular literature on constitutional interpretation: originalism and non-originalism. An originalist approach refers back to some aspect of the framers and ratifiers’ intent or action to justify a decision. A non-originalist approach bases the goal of constitutional interpretation in part on consideration of some justification independent of the framers and ratifiers’ intent or action. 

Among originalists, there is a debate whether the framers and ratifiers’ actual “original subjective intent” should govern (intent) or whether one should instead look to the “original meaning”of the words adopted by the framers and ratifiers (action). In most cases, the result would be the same under either approach. For this reason, as Justice Scalia once acknowledged, “[T]he Great Divide with regard to constitutional interpretation is not that between Framers’ intent and objective meaning, but rather between original meaning (whether derived from Framers’ intent or not) and current meaning.” This is the issue on whether to adopt a “static” or “living” model for constitutional interpretation.

What is often unappreciated in addressing this question is the complication that emerges if one concludes that the framing and ratifying generation believed in the model of a living Constitution. Under such a model, later legislative, executive, or social practice, or judicial precedents, can change the meaning of a constitutional provision. Thus, while it has been noted that standard “originalist” supporters share the premise that the original meaning of constitutional text is fixed at the time each provision is framed and ratified, interpretation according to any version of “originalism” actually does not commit the interpreter to a “static” or “fixed” interpretation of the Constitution. Instead, a “true originalist” form of interpretation can incorporate the principle that the provision was capable of evolution over time.

Part II of this article summarizes the four main judicial decisionmaking styles which exist regarding constitutional interpretation. Part III then summarizes the argument that the overwhelming historical evidence is the framers and ratifiers believed in a living Constitution model of interpretation. Without historical support for the standard version of originalism, which adopts a “fixed” or “static” model of interpretation, that leaves supporters of the standard version with only the argument that such an approach is a better approach to interpretation, even if it was not shared by the framers and ratifiers. Part IV of this article discusses the arguments why such standard originalism should not be preferred on normative grounds. Part V of this article provides a brief conclusion. That conclusion notes that the proper approach to constitutional interpretation on both original intent and normative grounds is to interpret the Constitution in the manner that the framers and ratifiers would expect it to be interpreted today. That approach is best reflected on the modern Supreme Court in the interpretation approach of Justice Kennedy, and former Justices O’Connor and Souter. Such an approach represents “True Originalist” interpretation.

05/12/2017

TerBeek, Theories, Movements, and Direction of Fit
Chris Green

Calvin TerBeek's post on the supposed origins of originalism, which, as Mike Ramsey noted yesterday, is "interesting, challenging, and scholarly," included one fascinating side comment that I thought deserved unpacking. After referring to Attorney General Meese's July 9, 1985 speech as the point at which, TerBeek says, "self-conscious originalism [was] unveiled as a theory/movement," TerBeek links to a paper by Stephen Teles on the history of Reagan's Justice Department and notes that "the two strands are nearly impossible to separate."

How does one distinguish a theory from a movement? Philosophers' distinction between world-to-mind and mind-to-world directions of fit can help here.

Building on Elizabeth Anscome, John Searle offers this example. Imagine a man sent to the grocery story with a list of items to buy who, as it happens, is being followed by a spy writing down the shopper's purchases.  As the shopper goes around the store finding the items, the spy eventually accumulates a list of items identical to the grocery list. Even though both lists contain the same items and both match the shopping cart, the two lists serve very different purposes and have very different criteria for success.

Suppose the shopper, relatively inexperienced in the ways of yogurt, does something that I, alas, have done: he gets vanilla yogurt instead of plain yogurt, which was on the list. And imagine that the similarly-inexperienced spy makes the same mistake, writing down "plain yogurt" on his list instead of "vanilla yogurt." The two lists are now the same, but the spy's list is flawed in a way the shopper's list is not. If the spy gets close at one point and sees that the yogurt in the shopper's cart is actually vanilla, he can cross out "plain" on his list and write "vanilla." But if the shopper looks down at his cart and notices that he has gotten the wrong kind of yogurt, he cannot simply edit his shopping list to match the cart.  Why not? Because a shopping list has a "world to mind" direction of fit: the point is to make the world--the shopping cart, and eventually a refrigerator--match the desires of whoever composed the list. But the spy's report has a "mind to world" direction of fit: the point is to accurately understand what the man is buying.

A successful theory has a mind-to-world direction of fit: the point is to accurately capture or describe some subject matter. But a successful political movement has a world-to-mind direction of fit: the point is to change culture, political decisionmaking, or the like to match one's desires. Unsuccessful constitutional theories fail to match the actual requirements of the Constitution; unsuccessful political movements fail to transform the political-cultural environment the way its members had hoped. A political movement is like a shopping list; a constitutional theory, as I see it, is like a description of reality.  There is a difference, that is, between originalism failing to capture the imagination of legal elites--the failure of the movement--and originalism failing to capture the actual Constitution--the failure of the theory. If the theory fails (for instance, if the theory fails to match what Madison thought, and the theory also makes Madison's thinking critical, or if the theory blurs sense and reference, or whatever), then the theory can be revised to match the reality in order to survive as a viable theory. The point is for the theory to match reality. Not so for political movements: if it turns out that the movement has not produced its intended effect, the movement cannot simply aim at something else and then declare itself a success; the whole point is to get the world to be a certain way.

Perhaps TerBeek views the success conditions of constitutional theory--or the aims of originalists--differently than I do.  I would evaluate a constitutional theory based on whether it matches our constitutional truthmaker, and he might not (or might not understand originalists to be attempting to do so). That difference may contribute to TerBeek's difficulty in distinguishing originalism-the-theory from originalism-the-movement. But difference in direction of fit is one simple way to distinguish them.

 

Stanford Conference on "A Big Fix: Should We Amend Our Constitution?"
Michael Ramsey

Today and tomorrow I will be attending what looks to be a very interesting conference at Stanford Law School, hosted by Professor Michael McConnell's Constitutional Law Center.  It's called "A Big Fix: Should We Amend Our Constitution?" -- and it features a series of speakers proposing specific amendments, with commentary.

Here is mine:

The Executive Oversight Amendment [or, let's overrule Chadha]

Sec. 1. Congress may, by majority vote of each House, disapprove of any rule, policy or course of action adopted by any executive or administrative officer or agency of the United States, if such rule, policy or course of action purports to be done pursuant to delegated authority from Congress and affects the rights or duties of persons within the United States.  Upon a vote of disapproval, the rule, policy or course of action shall be discontinued and cease to have effect.

Sec. 2. The disapproval provided in Section 1 shall not be presented to the President for signature or veto [and shall not be subject to any procedure in the Congress that has the effect of requiring a supermajority vote].

Sec. 3  The disapproval provided in Section 1 shall not extend to any matters of personnel nor to any rule, policy or course of action solely affecting the internal operations of the executive branch.

Discussion:

Chadha was right, but Chadha was wrong.  In INS v. Chadha, the Supreme Court famously (and in my view rightly) held that Article I, Section 7 of the Constitution precludes Congress from “vetoing” presidential actions by a method other than passing a bill through bicameralism and presentment.  In the founding era, checking the president by congressional “veto” likely was not needed to protect separation of powers.  But it is needed now.  The exponential growth of the federal government, the increased speed and complexity of modern events, and the increased political polarization in Congress have created a situation in which Congress inevitably delegates broad authority to executive and administrative agencies and lacks adequate means for oversight.  The result is twofold: expansion of executive power relative to that of Congress, and the commitment of lawmaking authority to unelected administrative bodies.   These phenomena have been widely remarked, both by those who applaud them and those who condemn them.  [E.g., Eric A. Posner & Adrian Vermeule, The Executive Unbound: After the Madisonian Republic (2013); F. H. Buckley, The Once and Future King: The Rise of Crown Government in America (2014); Philip Hamburger, Is Administrative Law Unlawful? (2014); Josh Blackman, Gridlock, 130 Harv. L. Rev. 241 (2016).]

The proposed amendment does not try to cut back on delegation or executive/administrative lawmaking; it only seeks to provide a check by empowering Congress.  As matters currently stand, Congress’ oversight of executive/administrative lawmaking is weak because any correction passed by Congress must confront a presidential veto.  A veto is likely because the president presumably supports the agency action (especially in the case of executive agencies, but likely also in the case of quasi-independent agencies).  Veto overrides are increasingly difficult due to political polarization in Congress.  Further, Congress’ other tool for managing agencies – control of their budgets – seems increasingly problematic due to omnibus budgeting and increased politicization of the budget process.  Whether or not one ultimately supports executive/administrative lawmaking, it should a concern rooted in separation of powers that this lawmaking is taking place largely unchecked.

While other remedies have been proposed, they may appear either too weak or too strong.  For example, one suggestion is to scale back courts’ “Chevron” deference to agency interpretations of authorizing statutes. [See H.R.5, Regulatory Accountability Act of 2017, passed by House of Representatives 01/11/2017.] However, this seems inadequate on several grounds.  First, because authorizing statutes are often necessarily open-ended, the problem is frequently not so much agencies exceeding their authority, but agencies acting unchecked within their authority.  Chevron reform does not address this problem.  Moreover, at best Chevron reform only checks one partially unaccountable actor (agencies) through the intervention of another largely unaccountable actor (the courts).  Another remedy might be to limit congressional delegation – for example, by requiring “major” rulemaking, such as rules having a specified economic impact, to be approved by Congress.  [See H.R.26, Regulations from the Executive in Need of Scrutiny Act of 2017 [REINS Act], introduced 01/03/2017.]  This suggestion, however, may be too strong a remedy for those who think modern circumstances require a substantial degree of executive/administrative speed and flexibility.

An objection to the amendment may be that it will be meaningful only when both houses of Congress are controlled by the opposition party.  I think this is not a substantial objection.  First, this circumstance is not uncommon (it was true for four of the last 16 years), and in this circumstance the priories of the President and Congress are most likely to diverge sharply.  Thus empowering congressional oversight is especially important.  Second, even when the President’s party controls one house of Congress, the disapproval power will make Congress more accountable.  Where a threatened presidential veto would block Congress, it is easy for Congress to deflect criticism by pointing to the practical impossibility of override.  With the veto removed, it would be clear that only obstruction in Congress is preventing the disapproval of unpopular presidential or administrative actions.  Thus responsibility for failure to block presidential/administrative policies would be placed clearly on the president’s party in Congress, resulting (in the case of unpopular policies) in either strong pressure to vote against the president or the ability to appeal promptly to the electorate in congressional elections.

Like most intermediate proposals, it likely does not go far enough for many people and goes too far for others.

05/11/2017

Mark Pulliam on Originalism, Restraint and Law Professors
Michael Ramsey

At American Greatness, Mark Pulliam, Plain Talk about Law School Rot.  After some general criticisms of legal academics (beginning "The legal academy is a strange place"), some specific criticisms of originalist legal academics:

[F]ew voices in today’s legal academy advocate judicial restraint, even among so-called “originalists.” Although it still holds sway among conservative political scientists such as Georgetown’s George W. Carey (author of In Defense of the Constitution), the once-influential Bork/Graglia position has seemingly—and inexplicably—fallen out of favor in the law schools. I am old enough to remember when constitutional theory could be divided into two camps: originalism (restraint) and non-originalism (activism). Restraint is no longer “cool”; it leaves power in the hands of the detested proles.

Now, in Baskin-Robbins fashion, there are at least 31 different flavors of originalism, some of which—like the libertarian theory of “judicial engagement”—would grant to courts more discretion to review laws than the most extravagant “living Constitution” theories. Federalist Society co-founder and Northwestern University law professor Steven Calabresi has apparently had a mid-life libertarian epiphany and now—purporting to apply originalist techniques—concludes that the Constitution protects same-sex marriage. Creative “originalism” can also be stretched to reach free-market outcomes Ayn Rand would applaud. George Mason University law school professor Michael Greve has archly referred to libertarian scholars who presume to “read the Constitution as a municipal code for Dagny Taggart’s valley.”

It is no coincidence that some self-styled “originalists,” such as libertarian Georgetown University law professor Randy Barnett, dismiss Bork and Graglia as “old school” proponents of a view that “used to be the dominant strain in conservative circles,” in “years past.” Barnett crows that Bork and Graglia used to “rule the roost,” but that “Times have changed.” Is judicial restraint really passé? Barnett contends that “as originalism has assumed an increasingly powerful hold on the legal culture … one must either reject judicial restraint, or attempt to redefine it so it is compatible with originalism.” (Barnett has gone so far as to claim that appeals for judicial restraint are a form of conservative “living constitutionalism,” inverting the very terminology that launched the originalism debate!)

The “originalism” Barnett speaks of is not the originalism espoused by Bork or Attorney General Ed Meese. Barnett has in mind a fashionable new variant of originalism that would empower judges to evaluate the necessity and efficacy of laws to determine if they infringe “unenumerated” (that is, unwritten) rights purportedly lurking in the Constitution. Any sound “originalist” conception of the Constitution must accept that judges should confine themselves to enforcing the express provisions of the Constitution. No matter how exotic the theoretical justification, judicial review does not authorize courts to divine invisible rights or serve as Delphic Oracles pronouncing judgment on the wisdom of laws.

05/10/2017

Renegotiating NAFTA: A Response to Professor Ramsey
Ryan Scoville

[Editor's note:  For this guest post we welcome Professor Ryan Scoville of the Marquette University Law School.]

Recently on Lawfare I argued that, from an originalist perspective, the President probably lacks power to renegotiate NAFTA without specific, prior approval from the Senate. The basis for this argument is that the Framers appear to have understood treaty negotiators as “public Ministers” and “Officers of the United States” for purposes of the Appointments Clause, and thus as individuals whose appointment requires the Senate’s advice and consent. In taking this position, I acknowledged the contemporary practice whereby the Senate endorses the selection of a handful of top officials at the Office of the U.S. Trade Representative, and I suggested that this practice helps to honor the original understanding insofar as it implies Senate consent to the initiation of any negotiations the appointees might pursue. But I also argued that the practice is materially different from the original model, which was for the President to obtain Senate approval in designating negotiators on the occasion of each and every separate negotiation. For this reason, I suggested that the contemporary approach is contrary to the original understanding of the Appointments Clause.

Last week Professor Ramsey took issue with part of this analysis. While agreeing that an official negotiator of a trade agreement would qualify as a public minister, he disagreed that fresh advice and consent is necessary on the eve of each new negotiation. As he put it, “Nothing in the Constitution says that offices cannot be created with general negotiation powers (as opposed to only specific ones).” I appreciate his response and admit that his argument is sensible. But I also think that Professor Ramsey dismisses my position too quickly. Consider a few points:

First, Professor Ramsey’s interpretation seems weaker in view of historical constraints on states’ discretion to ratify agreements. A number of leading writers on the law of nations (Grotius, Martens, and Bynkershoek, among others) held that signature triggers an obligation to ratify as long as the negotiator had followed his instructions in drafting the text. This principle operated in considerable tension with Article II’s provision for Senate advice and consent in the making of treaties, which is significant only if discretionary. But there is evidence that early U.S. officials were familiar with and at times invoked the principle anyway. If that evidence reflects a broader Founding-era acknowledgement of the obligation to ratify—either as a binding rule of international law or as a moral precept by which to satisfy the expectations of European governments—then it is at least plausible that the Founders perceived meaningful Senate involvement at the front end of the adoption process as the best opportunity for Congress to shape U.S. treaty obligations. It is precisely that involvement, however, that the conferral of general negotiating authority renders less frequent. Is it possible that the Founders would have nevertheless accepted such a practice? Certainly. But doing so would have further marginalized a Senate that already faced considerable international constraints on its discretion to advise and consent to ratification.

Second, Professor Ramsey’s position would seem to disserve the original purposes of the Appointments Clause. As I read his argument, a single act of advice and consent could suffice regardless of the number, content, importance, and foreseeability of the trade agreements the appointee might negotiate. As I read his argument, a single appointment could also suffice regardless of the succession of foreign governments with which the appointee negotiates and the domestic and international implications of those negotiations. But this would make it much harder for the Senate to vet nominees for competency. It would also complicate the task of policing for conflicts of interest. And it would limit opportunities for public debate over important questions of foreign policy.

Finally, it bears emphasis that the current model is not the original model. In the late eighteenth century, as Professor Ramsey seems to concede, the President did not nominate and the Senate did not approve the appointment of any individual to exercise roving, general authority to negotiate treaties. Instead, the Senate approved the designation of each negotiator shortly prior to each new negotiation. This approach enabled Senators to advise and consent to the appointments in an informed manner, with a specific negotiation in mind. True, the Constitution does not specifically say that such case-by-case approval is necessary, and the mere existence of a pattern of early practice does not necessarily mean that the Founders understood it as constitutionally required. But this practice was not merely occasional. It was the custom throughout the administrations of Washington, Adams, and Jefferson, and it manifested in relation to over two-dozen international negotiations. It is hardly a stretch to imagine that the practice would have acquired a certain normative gravity in these circumstances, such that departures would have been viewed with suspicion and even opposed on constitutional grounds.

Calvin TerBeek: Was Originalism Born in Sin?
Michael Ramsey

At The Faculty Lounge, Calvin TerBeek (guest blogging): Was Originalism Born in Sin?  From the introduction:

The standard account of the origins of originalism, especially those set forth in the law reviews, is that Robert Bork's 1971 Indiana Law Journal article building on neutral principles was proto-originalism, the beginnings of what we now know as original public meaning originalism. (Political scientists appear to have accepted this narrative). This account is not confined to academic settings—National Review’s Matthew Franck translated Bork’s article for a later generation of conservatives in an article titled, “The Original Originalist.” But the story appears to be more complex than generally supposed. While Bork invoked "framer's intent" and privileged reliance on "text and history," these analytical constructs had already taken hold on the Right as a way to critique Brown and as a shorthand to attack Warren Court "sociological" jurisprudence. 

And from later in the post:

But Bork’s language, though academic in tone, would have rung familiar to conservative ears. In 1960, Senator Barry Goldwater's ghost-written The Conscience of a Conservative talked about constitutional rights claims in a similar manner. “For the federal constitution,” Goldwater intoned, “does not require the States to maintain racially mixed schools.” Through L. Brent Bozell, a National Review editor and de facto author of this popular political tract, Goldwater sought to demonstrate this with repeated invocations of the “intentions of the founding fathers” and the “intentions of the Fourteenth Amendment’s authors." Bork, who served as an academic adviser, along with Milton Friedman, to the Goldwater campaign almost certainly would have been familiar with this line of reasoning.

Building on Conscience, Bozell set out to demonstrate to NR-style conservatives the historical mistake the Court made in Brown in The Warren Revolution (1966). A relatively quiet polemic, The Warren Revolution’s introduction is sophisticated and at times scholarly in tone. Bozell’s thesis was straightforward: until 1954, the year Brown was handed down, the “fluid” provisions of the Constitution, such as the Fourteenth Amendment’s equal protection clause, had been decided on the basis of interbranch dialogue. No one department of government dictated the meaning of these open-ended provisions; instead, through “organic processes” constitutional politics were settled collectively. (Impressively, the idea of interbranch dialogue in constructing constitutional meaning prefigures well-known legal scholarship from the 1990s).

However, the Warren Court, “with the encouragement of the country’s intellectual establishment,” had instituted a form of judicial supremacy. Brown was the epitome of this troubling trend. Prior to 1954, the “race problem” was, as “the original framers in effect decided,” left to be solved through interbranch coordination. No more. The Brown decision, relying on “psychological and sociological treatises” which were mere “opinion rather than fact” ignored “the views of the Constitution’s framers." Mocking the Court’s reasoning—the Fourteenth Amendment’s framers “after all, had not read Freud”—Bozell reasoned that, “in 1954, thanks to the sociologists and the psychologists” the Court had taken upon itself write a “concept” of equality “into the Constitution.” Fond of italics, Bozell summed up his argument thusly: “The States that ratified the Fourteenth Amendment, equally with the Congress that proposed it, had no intention of outlawing separate schools” (all italics are Bozell's).

...

An interesting, challenging and scholarly post.

05/09/2017

BJALS Symposium on Justice Scalia
Michael Ramsey

In the latest issue of the British Journal of American Legal Studies, a symposium on Justice Scalia.  Here is the table of contents:

SPECIAL ISSUE: IN MEMORY OF JUSTICE ANTONIN SCALIA (1936-2016)

Introduction, by Jess Bravin

Justices as “Sacred Symbols”: Antonin Scalia and the Cultural Life of the Law, by Brian Christopher Jones & Austin Sarat

One of My Favorite Judges: Constitutional Interpretation, Democracy and Antonin Scalia, by James Allan

Justice Scalia: Tenured Fox in the Democratic Hen-House?, by Jane Marriott

The Sexual Orientation Cases, by Ian Loveland

Scalia’s Legacy: Originalism and Change in the Law of Standing, by James E. Pfander

Missed Opportunities, Good Intentions: The Takings Decisions of Justice Antonin Scalia, by Richard A. Epstein

Postscript: Textualism and Judicial Authority, by Jeremy Waldron

(Thanks to Brian Christopher Jones for the pointer.  I previously noted James Allan's contribution here.)

Addendum:  The British Journal of American Legal Studies (BJALS) is a peer-reviewed, faculty-managed journal which may not be familiar to U.S. audiences but has outstanding content.  Seth Barrett Tillman (well-known to readers of this blog) is one of the associate editors.