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38 posts from November 2012


Getting to Know Gouverneur Morris
Michael Ramsey

Melanie Randolph Miller: The Ingenious Gouverneur Morris (reviewing To Secure the Blessings of Liberty: The Selected Writings of Gouverneur Morris (J. Jackson Barlow, ed., Liberty Fund Books 2012)).   From the review:

Morris has long been dismissed as a “lightweight” (the comment of a former editor of the Papers of Thomas Jefferson), a producer of “solipsisms”  (Jack Rakove) and “a flutterer upon the surface” (Richard Henry Lee, in 1780),  but anyone who takes the time to delve into this collection will soon realize the injustice of those  judgments.


Readers of the Federalist Papers could benefit from a side dose of the (often far more readable!) essays in this book, penned by the eminently realistic but also humane Morris.  While they read them, however, they might keep in mind a comment in a letter to Timothy Pickering in 1814:

But, after all, what does it signify, that men should have a written Constitution containing unequivocal provisions and limitations? The legislative lion will not be entangled in the meshes of a logical net. The legislature will always make the power which it wishes to exercise, unless it be so organized as to contain within itself the sufficient check. Attempts to restrain it from outrage by other means will only render it more outrageous. The idea of binding legislators by oaths is puerile. Having sworn to exercise the powers granted, according to their true intent and meaning, they will, when they feel a desire to go farther, avoid the shame if not the guilt of perjury by swearing the true intent and meaning to be according to their comprehension that which suits their purpose.

(Note: Also worth a look are Miller's own works An Incautious Man: The Life of Gouverneur Morris (2008) and Envoy to Terror: Gouverneur Morris and the French Revolution (2005)).


In the Harvard Law Review, Randy Barnett and Steven Calabresi on Pamela Karlan on the Roberts Court
Michael Ramsey

The November 2012 issue of the Harvard Law Review, now online, features Pamela Karlan (Stanford Law School and contender for a Supreme Court nomination) writing the "Foreword," with two "Forum" responses by leading originalist scholars Randy Barnett (Georgetown Law) and Steven Calabresi (Northwestern Law):

Pamela S. Karlan: Foreword: Democracy and Disdain, 126 Harv. L. Rev. 1 (2012).

Randy E. Barnett: The Disdain Campaign

Steven G. Calabresi, The Constitution and Disdain

From the Foreword (Professor Karlan):

The current Court, in contrast to the Warren Court, combines a very robust view of its interpretive supremacy with a strikingly restrictive view of Congress’s enumerated powers. The Roberts Court’s approach reflects a combination of institutional distrust — the Court is better at determining constitutional meaning — and substantive distrust — congressional power must be held in check. That perspective colors the Court’s approach across an array of doctrinal areas, ranging from legal regulation of the political process itself to enforcement of constitutional rights.

The Supreme Court’s 2011 Term illustrates the consequences of dismissing democratic politics and democratic engagement in the articulation of constitutional values. The problem is not fundamentally that the Court overrides the choices of the people or their elected representatives. Indeed, several of the most striking examples of judicial disdain involve cases in which Justices voted to sustain the law being challenged, or in which the Court was called upon to mediate a conflict between different levels of government.65 Rather, the problem is that the Court’s decisions convey a broad message about the democratic process itself that may undermine public confidence in the democratic process going forward. The Court’s dismissive treatment of politics raises the question whether, and for how long, the people will maintain their confidence in a Court that has lost its confidence in them and their leaders.

To understand what we have lost, we need to recapture a sense of what it would mean to have a Court that respects the possibilities of politics, even as it acknowledges the pathologies of the political process. The Warren Court provides that model. Moreover, several central issues in the law of democracy that have preoccupied the Roberts Court during its first few Terms have their antecedents or counterparts in issues that confronted the Warren Court. Part I of this Foreword therefore describes key strands of the Warren Court’s approach to democratic politics and constitutional interpretation. The Warren Court’s most consequential decisions reflect the view that democracy requires a level of egalitarian inclusion, even in the face of competing property rights, that courts should welcome the political branches’ involvement in addressing constitutional values, and that authority to enforce constitutional values should be distributed broadly. Those strands are not unique to the Warren Court, of course. Each of them finds expression in decisions by prior and subsequent Courts as well. But the Warren Court represents a distinctively optimistic view of the potential of politics to serve constitutional values. Part II then turns to this Term to show how the Roberts Court has retreated from or abandoned each of these Warren Court commitments in favor of a less inclusive politics that gives far less leeway to the federal government to pursue a democratically derived conception of constitutional values. Finally, Part III reflects on the possible causes and consequences of this turn away from the promises of politics.

From Professor Barnett's response:

In the end, Karlan objects not to the Chief Justice’s decision [in NFIB v. Sebelius], but to his bad attitude. He was “grudging” and “expressed a basic distrust of Congress.”  It is revealing, however, that Karlan then challenges the Chief Justice to continue to manifest this same bad attitude this Term when hearing the challenge to the Defense of Marriage Act (DOMA). “It will be interesting to see whether the Chief Justice’s suspicions carry over to the 2012 Term, when the Court is likely to take up the constitutionality of the federal Defense of Marriage Act, . . . where Congress, for the first time, created a federal definition of marriage.”  I take it she thinks that such suspiciousness would be a good thing. Fair enough. Let’s be consistently skeptical of Congress. But then why should the left not be held to its professed respect for Congress when it passed DOMA, which was signed into law by President Clinton? Or its respect for the people of California when it enacted Proposition 8 denying the status of “marriage” to same-sex couples?

One suspects that it is restraint for thee, but not for me. Which is where discussions of judicial restraint typically end. So too with judicial disdain. Disdain is okay, so long as it is directed at the five conservative Justices on the Supreme Court when the four progressive ones are opposing them.

And from Professor Calabresi:

… Karlan simply does not understand the countermajoritarian difficulty. Individual rights cases like Lochner v. New York or Roe v. Wade raise a countermajoritarian difficulty, as Professor Alexander Bickel argued, because they forbid government at both the federal and state levels from doing something. This difficulty is inherent in almost all individual rights cases, including cases where the individual right is actually present in the text of the Constitution, as with the freedom of speech.

In federalism cases, however, the Supreme Court chooses which majority should govern with respect to an issue as between national majorities and state majorities. Judicial umpiring of federalism cases is thus not countermajoritarian. Suppose the Supreme Court had ruled that the federal health care law in National Federation of Independent Business v. Sebelius was unconstitutional on enumerated powers ground. Such a ruling would not have meant that similar state health care laws, like the one in Massachusetts, were unconstitutional. It would only have meant that Congress had exceeded the bounds of its limited and enumerated powers. When the Supreme Court polices federalism boundary lines, it is playing umpire between the national government and the states. The Court is choosing whether majorities at the national level or majorities in each of the fifty states have power to govern regarding a disputed issue. Playing umpire between the national government and the states is simply not countermajoritarian in any way, nor is it undemocratic. Instead, the Supreme Court is simply deciding which democratic majority — federal or state — our Constitution and history empowers to rule. …

The need for an umpire to police federalism boundary lines actually explains the emergence of judicial review in the first place in the United States, in Canada, in Australia, in India, in Germany, and most recently in the European Union.  Federations need to have an umpire who can mediate between the nation and its provinces or states. Judicial review usually starts out by providing such a federal judicial umpire, and it then expands to offer federal judicial policing of individual human rights violations.  Karlan is thus not only wrong to oppose Supreme Court policing of federalism boundary lines. She is actually attacking the paradigmatic cases that themselves gave rise to judicial review in the first place!


Mark Kende: Constitutional Pragmatism, the Supreme Court, and Democratic Revolution
Michael Ramsey

Mark Kende (Drake University Law School) has posted "Constitutional Pragmatism, the Supreme Court, and Democratic Revolution" (University of Denver Law Review, forthcoming) on SSRN. Here is the abstract:

Constitutional pragmatism is under-theorized and frequently misconceived. Most constitutional interpretation discussions focus on originalism or some form of “living constitutionalism.” The irony is that the U.S. Supreme Court’s failure to adopt any single foundational constitutional theory makes pragmatism the best descriptive characterization of the Court, as Mark Tushnet has suggested. Yet, Judge Posner, Daniel Farber, and Justice Breyer certainly do not agree on what pragmatism means. This symposium paper illuminates this poor step-child in constitutional theory by providing a typology of a dozen strands of constitutional pragmatism. The paper looks at U.S. Supreme Court cases and some historical events to support this framework. For example, certain types of constitutional pragmatism do not rule out the use of fundamental moral principles in constitutional interpretation, nor are these approaches all about consequences. The paper also shows how the U.S. Revolution, and some other successful constitutional revolutions, required surprisingly pragmatic influences.


Two Reviews of Adam Freedman's The Naked Constitution
Michael Ramsey

In Stripping the Constitution, Justin Dyer (University of Missouri -- Political Science) reviews Adam Freedman's The Naked Constitution: What the Founders Said and Why It Still Matters (Broadside Books, 2012).  From the review:

Freedman’s case for originalism is straightforward, and it rests on three premises: The Constitution is law, the law should be followed, and the meaning of the Constitution today can and should be derived from the original public meaning of the text at time of its ratification. Following this method of interpretation puts Freedman at odds with most of the Court’s controversial twentieth-century decisions. In chapters devoted to constitutional personhood, Congress, the presidency, the courts, speech, religion, guns, property, criminal punishment, and federalism, Freedman walks the reader through landmark Supreme Court cases and offers his own take on the original public meaning of relevant constitutional provisions.

For the uninitiated, The Naked Constitution is Con Law 101 taught by an irreverent instructor and an unabashed conservative. And although the book doesn’t offer anything new to those already well-versed in American constitutional law, Freedman’s polemics and witty sarcasm enliven the discussion and offer a humorous escape from the doldrums that normally come with reading about twentieth-century constitutional litigation.

Still, there are limits to how far original public meaning can take us. In a 1988 speech at the University of Cincinnati Law School, Justice Antonin Scalia famously called originalism the “lesser evil” (when compared with all other theories of interpretation), and he identified what he took to be originalism’s two greatest challenges: first, original public meaning can be extremely difficult to divine; and second, even when it is known, very few people are willing to adhere to original meaning undiluted by a commitment to following established legal precedent.

To these challenges we might add a third: Some of the provisions in the Constitution are maddeningly vague, and there simply is no one original public meaning. Although it is perhaps asking too much for Freedman to adequately treat every facet of originalist theory and method, the practical project Freedman is trying to advance is hamstrung by the challenges and inherent limits of originalism.

And at the Constitutional Law Prof Blog, Steven D. Schwinn has this review: Freedman's Naked Constitution.  From Professor Schwinn:

Adam Freedman's The Naked Constitution sets a standard for plain-spokenness and accessibility in the area of constitutional originalism.  It's an extraordinarily well written--indeed, fun-to-read--page-turner that romps through the Constitution and the courts' treatment of it and delivers a plain-spoken argument for Freedman's brand of original-meaning originalism.  (Just to be clear: Freedman argues that original meaning supports a narrow, strict reading of the text.)

But while Freedman's gift for clear, entertaining writing has all the potential to bring a serious constitutional debate to a broader public, it also trades on nuance, balance, and completeness in the text, history, and precedent.  And because of the book's (unnecessary) partisanship, it's likely only to reinforce the ideas of Freedman's supporters, to alienate his detractors, and to divide readers.  I don't think it'll do much persuading or advancing-of-the-originalism-debate on either side.

And that's OK.  This book seems designed first as a political argument, only next as a constitutional one.  It's red meat for conservatives, and it'll surely rile progressives.  If you're looking for a lively, readable volume that will fuel your constitutional politics (whatever they are) this is for you.  And the book's sheer breadth ensures that you're likely to learn something about constitutional originalism (or anti-living-constitutionalism), even if the book doesn't always tell the whole story.


Is Glenn Reynolds Becoming an Originalist?
Michael Ramsey

My impression is that Glenn Reynolds (Instapundit) has been lukewarm at best on originalism in the past (see here, for example), but I've noticed more originalist references in recent writing -- his column in USA Today last week invoked James Madison on federalism, and his follow-up column this week, Are We Living in the Hunger Games?, concludes:

Under the original Constitutional plan, the federal government's powers were to be few, and mostly concerned with external relations. Under those circumstances, the risk of corruption was comparatively low. Nearly all regulation would come from state governments. They might be corrupted -- since they'd be the only ones worth corrupting -- but problems would be compartmentalized (corruption in Rhode Island wouldn't have much effect on Connecticut, much less Utah) and disciplined by competition with other states.

Well, it's been quite a while since things worked that way; things started go go downhill with the federal expansion under the New Deal, and then really took off after the "regulatory explosion" under President Nixon, who created such entities as the Environmental Protection Agency and Occupational Safety & Health Administration.

It's no coincidence that as the federal government morphed from an entity that did a few highly visible things well, to one that did a whole lot of not-so-visible things less well, respect for the federal government plummeted even as the political class' wealth climbed.

That's where we are now, with a capital city that looks more and more like that of an imperial power where courtiers and influence-peddlers abound. Want to do something about it? Don't secede. Return to the Constitution.

Joseph R. Stromberg: The Fourth Amendment and Faulty Originalism
Mike Rappaport

Joseph R. Stromberg has posted an article titled "The Fourth Amendment and Faulty Originalism" on the Freeman's website. Find the article here.

Randy Barnett: Did the Founders' Constitution Permit Federal Tort Reform?
Michael Ramsey

At Volokh Conspiracy, Randy Barnett: Did the Founders' Constitution Permit Federal Tort Reform? (highlighting two competing views -- Paul Clement: Federalism, the Framers, and Federal Tort Reform: Setting the Record Straight (answering "yes"); and Rob Natelson: Did the Founders' Constitution Permit Federal Tort Reform? (answering "no")).

For further reading, here is Rob Natelson's longer essay on the subject: The Roots of American Judicial Federalism; and here is an op-ed by Professor Barnett on the subject:  Tort Reform and the GOP's Fair-weather Federalism.


Originalism on the Blogs
Mike Rappaport

At Reason.com, Steve Chapman on The Future of Republican Support for the Electoral College


What Libertarians Think About the U.S. Constitution Part III: Shay’s Rebellion, Liberty, and a Stronger National Government
Mike Rappaport

This will be my third and final post on Jason’s Brennan post entitled What Do Libertarians Think about the U.S. Constitution (based on his new book).  In my previous post, I argued that Jason ignored the significant possibility that a stronger federal government would further liberty because it would promote both peace and competition between the states.

Here I want to discuss Shay’s Rebellion, which is often cited as a reason why a stronger federal government was needed.  Jason describes the Rebellion as a “bizarre” and therefore weak basis for a stronger national government.  Jason writes:

Shay’s Rebellion in 1786 prompted many leaders to replace the Articles of Confederation and to favor a stronger central government. Daniel Shay was an honored and decorated soldier during the American Revolutionary War. Like many revolutionary soldiers, Shay was never paid for his service. He returned from service with large farm debts—debts he could not pay because he was not paid for his military service. European creditors wanted payment in gold and silver, but these were in short supply. Shay and other badly treated veterans worried their property would be confiscated and they would be placed in debtors’ prisons. They petitioned the Massachusetts government to fix the problem. Boston ignored their petitions. Finally, in desperation, Shay and other farmers rebelled. They formed a militia to prevent local courts from confiscating their property. Under the Articles of Confederation, it was difficult for the US central government to help Massachusetts crush the rebellion.

American public school history books tell the story of Shay’s Rebellion in order to show that the US Constitution was necessary. Some libertarians take an alternative reading: The government treated Shay and his fellow farmers in an extremely unjust way. If Shay’s Rebellion is supposed to justify the US Constitution, what is the justification, that the Constitution makes it easier for the government to oppress the poor? (emphasis added)

Two points here.  First, Shay’s Rebellion is used as a case of where civil insurrection might have triumphed and displaced the elected government.  While libertarians might sympathize with the farmers, many insurrections are based on less sympathetic causes.  Allowing such insurrections – or permitting weak governments that cannot put them down – is not a good way of promoting liberty.  As Hamilton wrote in Federalist No. 9 justifying the new Constitution as a means of promoting stability in government:

It is impossible to read the history of the petty republics of Greece and Italy without feeling sensations of horror and disgust at the distractions with which they were continually agitated, and at the rapid succession of revolutions by which they were kept in a state of perpetual vibration between the extremes of tyranny and anarchy. If they exhibit occasional calms, these only serve as short-lived contrast to the furious storms that are to succeed. If now and then intervals of felicity open to view, we behold them with a mixture of regret, arising from the reflection that the pleasing scenes before us are soon to be overwhelmed by the tempestuous waves of sedition and party rage. If momentary rays of glory break forth from the gloom, while they dazzle us with a transient and fleeting brilliancy, they at the same time admonish us to lament that the vices of government should pervert the direction and tarnish the lustre of those bright talents and exalted endowments for which the favored soils that produced them have been so justly celebrated.

Second, if Jason believes it is “bizarre” for defenders of the Constitution to cite Shay’s Rebellion, then I believe it is “bizarre” for Jason to use sympathy for Shay’s plight as an argument against a stronger federal government.  Jason writes that  Shay “could not pay [his debts] because he was not paid for his military service.”  But why?  Shay served in the Continental Army, which was not paid largely because the weak Articles did not allow for federal taxation.  Thus, the cause of Shay’s situation offered by Jason turns out to be a weak and poor federal government that did not pay its debts.  This was one of the reasons to strengthen the federal government.

Moreover, the inability of the federal government to pay the army might have undermined liberty even more seriously without the probity of George Washington.  The failure of the government to honor its debts to the soldiers led to the Newburgh Conspiracy which might have led to a Napoleonic style seizure of power had Washington not been the liberty loving man that he was.

Allowing the federal government to imposes taxation was a necessary element of liberty.  While the federal government may have been given more power to tax than was necessary – especially once the definition of direct taxation was narrowly construed, and the Sixteenth Amendment only made things worse – strengthening the federal government’s power to tax as compared to the Articles was necessary for both orderly government and liberty.

(Cross Posted on the Liberty Law Blog)

Glenn Reynolds on Federalism
Michael Ramsey

Glenn Harlan Reynolds in USA Today: A solution to secession fever -- federalism.