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35 posts from April 2011


Popular Constitutional Interpretation
Mike Rappaport

Michael Serota (UC Berkeley- School of Law) has posted Popular Constitutional Interpretation (Connecticut Law Review, Vol. 44, No. 2, 2011) on SSRN. Here is the abstract:

Over the last decade, the theory of popular constitutionalism has gradually become one of the most important developments in American jurisprudence. By trumpeting a more pronounced role for the public in the constitutional decision-making process, popular constitutionalists hope to reestablish the connection between the American people and their Constitution. One strand of popular constitutionalism - what I call popular constitutional interpretation - would go so far as to transfer final interpretive authority over the Constitution from the Supreme Court to the public. The questions left unanswered, however, are whether "the people" could faithfully interpret the Constitution, and relatedly, whether the outcome of popular constitutional interpretation would be normatively desirable.

This Article answers both of these foundational questions by analyzing contemporary research in psychology and political science. Conceptualizing a functional system of constitutional adjudication as requiring interpreters to demonstrate fidelity to the Constitution’s text, I argue that the people must possess a set of traits I label "interpretive competence" in order to maintain the Constitution’s integrity in such a system. Given that such competence is currently lacking, I argue that popular constitutionalists must turn to institutions of civic education - and to the civic curricula of the eighteenth and nineteenth centuries - to cultivate the people’s interpretive competence.


Living Constitutionalism at the Supreme Court
Mike Rappaport

Eugene Volokh points out that the Supreme Court's web site refers to the Court as engaging in Living Constitutionalism:

This power of “judicial review” has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a “living Constitution” whose broad provisions are continually applied to complicated new situations.

While this is unfortunately descriptive of what the Court has been doing, in the main, since at least the New Deal, it seems odd that it is on the Supreme Court's web site.  Living Constitutionalism signifies a controversial approach to constitutional interpretation.  

One would expect that Justice Scalia and Thomas, at least, would disapprove of this description of what the Court is supposed to be doing.    

Reading the rest of the entry on the Web Site, it is filled with lots of conventional wisdom which this originalist disagrees with.  First, there is the claim that "the Court's power of judicial review was not confirmed until 1803" in Marbury.  While I suppose technically true, it too much suggests to my mind that the power was not in the original Constitution -- a view congenial to Living Constitutionalism -- but which more recent scholarship claims to be mistaken.

I would also take exception to the final paragraph of the entry, which states:

Chief Justice Marshall expressed the challenge which the Supreme Court faces in maintaining free government by noting: "We must never forget that it is a constitution we are expounding . . . intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs."

This is once again a New Deal Living Constitutionalist vision of both what the Court is supposed to be doing and what Marshall was saying. Both are in my view mistaken.

However far originalism has moved, we still have very far to go.  Fixing this website -- and not just the explicit words of "living constitution" -- would be a step in the right direction.

It will be interesting to see whether this is changed and if so, how long it will take.

Solving the Countermajoritarian Difficulty
Mike Rappaport

Or Bassok (Yale Law School) and Yoav Dotan (Faculty of Law, Hebrew University, Jerusalem) have posted Solving the Countermajoritarian Difficulty on SSRN. Here is the abstract:

For many years, scholars have attempted to justify the Supreme Court’s countermajoritarian judicial review authority. In recent years, several scholars have attempted instead to dissolve the countermajoritarian difficulty, claiming based on empirical evidence, that the Supreme Court’s decisions are usually in sync with public opinion. We adopt a third and novel path in tackling this long-debated normative difficulty. We acknowledge that the Court, at times, acts in a countermajoritarian fashion. However, based on empirical evidence that demonstrates the enduring public support for the Court and the wide acceptance of its judicial review authority by all relevant players, we argue that the countermajoritarian difficulty is partly solved. Our solution is not based merely on a pre-commitment taken at the time the Constitution was created or on a mere fictitious act that is part of a thought experiment. Rather, it is based on an ongoing acceptance of, and support for, judicial review as a mechanism to constrain the public’s immediate preferences.


Originalism in the Blogs
Mike Rappaport

Eugene Volokh on Is Freedom of the Press “Redundant” of the Freedom of Speech?


In Defense of Judicial Prudence
Mike Rappaport

Nick Buccola (Linfield College) has posted In Defense of Judicial Prudence (Western Political Science Association 2011 Annual Meeting Paper) on SSRN. Here is the abstract:

There are interesting connections between 3 major philosophies of judicial review-majoritarianism, originalism, and perfectionism-and 3 cardinal virtues of classical Greek and Christian thought-temperance, fortitude, and justice.We show how and why advocates of majoritarianism-a philosophy that emphasizes deference to democratically elected branches-appeal to the virtue of temperance or restraint as the supreme judicial virtue; how and why advocates of originalism-a philosophy that emphasizes the obligation to remain faithful to the original meaning of the Constitution-appeal to the virtue of fortitude or courage as an essential virtue for judges to play their proper role as the guardians of the rule of law; and how and why advocates of perfectionism-a philosophy that emphasizes the obligation to read the Constitution in a way that makes it the best it can be-appeal to the virtue of justice as the judicial virtue necessary for judges to do the right thing when deciding hard cases before making the case that the fourth cardinal virtue-prudence-might provide the best guidance of all. Prudence is a virtue that is meant to provide us with guidance as we translate our moral obligations into action in the real world.In the American system, a prudent judge would be a judge who would appreciate that all the philosophies described above capture part of-but not the whole of-the truth about the nature of the American constitutional order and the place of judges within it.

Toward a Reality-Based Constitutional Theory
Mike Rappaport

Andrew B. Coan (University of Wisconsin Law School) has posted Toward a Reality-Based Constitutional Theory (University of Wisconsin Legal Studies Research Paper No. 1156) on SSRN. Here is the abstract:

Despite the alleged triumph of legal realism and the empirical turn of closely related fields such as judicial behavior, a startling number of constitutional theorists continue to approach their work as a purely conceptual enterprise. This is particularly true of originalists, but it is true of many others as well. Indeed, much of normative constitutional theory as it is presently practiced resembles a recreational debating society more than a serious effort to improve the functioning of a massively complex modern society. If constitutional theory is to live up to its aspirations, a new reality-based approach is urgently needed. This brief essay makes the case for such an approach and offers practical suggestions for getting it off the ground.


Executive Power and the Law of Nations in the Washington Administration
Mike Rappaport

Robert Reinstein (Temple University - James E. Beasley School of Law) has posted Executive Power and the Law of Nations in the Washington Administration (University of Richmond Law Review, Forthcoming) on SSRN. Here is the abstract:

The dramatic unilateral decisions of the Washington administration, particularly during the Neutrality Crisis of 1792-1794, have been the bases of expansive theories of plenary executive powers over foreign affairs. This paper presents an original historical and jurisprudential account of the Neutrality Crisis and draws three principal conclusions:

First, the source of the Washington administration's constitutional authority was the duty of the Executive, under the Take Care Clause, to obey the law of nations. This source of authority was (1) repeatedly asserted in the administration's public declarations; (2) the basis of its private deliberations; (3) consistent with the jurisprudence of the founding generation; and (4) explanatory of the actions that were taken (and not taken) by the administration. No other theory of executive power satisfies these criteria.

Historians and legal scholars have consistently rejected this thesis, claiming that Washington was not executing any settled doctrine of international law but was making discretionary policy decisions. This paper shows that the critics erred in projecting onto the founding generation their own ideas of legal positivism as the foundation of international law, and in dismissing the extraordinary influence of Continental publicists such as Vattel, who were the administration's principal authorities on the law of nations.

Second, this thesis has important implications regarding executive power and international law. Washington’s actions were based on the principle that the Executive has the duty to comply with the obligations of the law of nations. To the extent that international law remains part of national law, the actions of the Washington administration provide an important precedent for the duty of the Executive to obey the constraints of international law.

Third, this paper sheds light on the limits of originalism as a constitutional methodology. One of the profound changes that have occurred in the United States is that the founders' way of thinking about law can be incompatible with our own. The foreign policy decisions of the Washington administration reflected B indeed, in the view of the administration, were compelled by B a natural law jurisprudence of the law of nations that was a product of its time. This has little relevance to the general scope of modern presidential power to determine and conduct the nation's foreign affairs. Modern theories of expansive executive powers must find bases other than in the decisions of our first President.


Jack Balkin's Interaction Theory of 'Commerce'
Mike Rappaport

Randy E. Barnett (Georgetown University Law Center) has posted Jack Balkin's Interaction Theory of 'Commerce' (University of Illinois Law Review, Forthcoming) on SSRN. Here is the abstract:

In his book, Living Originalism, Jack Balkin proposes what he calls the “interaction theory” of the original semantic meaning of the word “commerce” in the Commerce Clause. He claims that “commerce” meant “social interaction.” In this article I show why this theory is wrong due to errors of commission and omission. Balkin is wrong to reduce “commerce” to “intercourse,” “intercourse” to “interaction,” and “interaction” to “affecting.” This triple reduction distorts rather than illuminates the original meaning of “commerce.” And Balkin omits from his discussion the massive amounts of evidence of contemporary usage - along with dictionary definitions of “intercourse” - establishing that “commerce” referred to the trade or movement of things or persons, and did not include such productive economic activity as manufacturing or agriculture, much less all social interaction


Originalism on the Web
Mike Rappaport

Joseph Blocher responds to Reva B. Siegel's Dead or Alive: Originalism as Popular Constitutionalism in Heller in Popular Constitutionalism and the State Attorneys General.


Forgetting Oblivion: The Demise of the Legislative Pardon
Mike Rappaport

Bernadette A. Meyler (Cornell University - School of Law; Stanford Law School) has posted Forgetting Oblivion: The Demise of the Legislative Pardon on SSRN. Here is the abstract:

Since the post-Civil War cases arising out of conflicts over the proper location of the amnesty power, it has generally been thought that pardon and amnesty are synonymous and that the capacity to effect both is vested in the President under Article II. The history of the English version of amnesty – oblivion – within the seventeenth and eighteenth centuries and the colonial and state oblivions that were legislatively enacted from 1650 through the period of the Second Continental Congress suggest otherwise. Oblivion was distinct from pardoning because it erased the underlying events rather than remitting punishment and often arose as a response to civil unrest. More than pardoning, oblivion served the function of settling property rights and restoring those included to full citizenship. In addition, acts of oblivion were passed by colonial legislatures even in some colonies whose charters explicitly granted the pardon power to the Lord Proprietor.

Recovering the lost history of oblivion suggests that the decisions of the Supreme Court in the late nineteenth century were not entirely correct in assimilating pardon with amnesty. Instead, a strong argument can be made that the tradition of oblivion within England and the colonies supports a broad congressional power to grant amnesty. Remembering oblivion can also allow us to revive a different form of pardoning than that dominant today, a form associated with transitional justice and the restoration of a community riven by civil strife. Oblivion presents an alternative model for moving forward, suggesting that certain kinds of conflicts would be better forgotten than remembered for the continued health of the polity.

This is a quite interesting paper that Professor Meyler presented at the 2011 Originalism Works in Progress Conference.