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02/03/2021

New Issue of the Harvard Journal of Law and Public Policy: The Structural Constitution in the 21st Century
Michael Ramsey

In its most recent issue (Winter 2021), the Harvard Journal of Law and Public Policy has published some of the presentations from last year's Federalist Society National Student Symposium, titled "The Structural Constitution in the 21st Century."  The short essays don't have abstracts, but here is the beginning of each of them (footnotes omitted):

The Federalist No. 48, The Separation of Powers, and “the Impetuous Vortex”,  by Paul D. Clement (Kirkland & Ellis)

Given that the focus of the Symposium is on the structural Constitution, what I want to talk about today is the separation of powers and, in particular, James Madison’s The Federalist No. 48 and the differences between the strengths of the relative branches of government today versus what Madison envisioned. If you look at The Federalist No. 48, you will see that Madison was most concerned with the power that had been given to the new national Congress.

In fact, he famously described Congress in The Federalist No. 48 as the “impetuous vortex” into which all power would be sucked but for the separation of powers. He was particularly concerned about Congress because of the power of the purse. As he wrote, “[it] alone has access to the pockets of the people.”

The executive, by contrast, was less of a concern for Madison because, as he wrote, it is “restrained within a narrower compass, and [is] more simple in its nature.” The judiciary was even less of a concern for Madison. As he said, “[it is] described by landmarks, still less uncertain,” by which I believe he meant the case and controversy requirement of the Constitution.

Madison was sufficiently concerned with the Congress and sufficiently unconcerned about the executive and the judiciary that he wrote, “projects of usurpation by either of these departments,”— the executive or judiciary—“would immediately betray and defeat themselves.” Congress, in Madison’s view, was not just the most powerful and most dangerous branch, but, if you read The Federalist No. 48 carefully, it is not an overstatement to say that Madison believed that the power of Congress was the raison d’être for the separation of powers. The checks and balances were there largely to constrain Congress. As he wrote, “it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions.”

So, let’s take a moment now to compare Madison’s vision with our present-day reality. What you see is that both the judiciary and the executive are more powerful than Madison envisioned, and Congress is certainly less active and less of the impetuous vortex that Madison had in mind.

The Role of Norms in our Constitutional Order, by Keith Whittington (Princeton)

We have given more attention to the issue of norms recently—maybe specifically during this administration—than we have previously. But I think it is high time that we pay attention to norms. They are an essential part of how our constitutional system works in general, but they tend to be under-analyzed. We do not pay as much attention to them as we should, nor do we have good tools for thinking about them. Moreover, I do not believe we even have
very good tools for identifying them.

So this is a useful moment for us to try to grapple with the fact that the Constitution vests a great deal of discretion in government officials of all sorts, and that norms are part of the process—part of the sub-constitutional sets of practices and rules—by which we make the constitutional system operate effectively, despite the fact that it entrusts vast discretion to government officials.

Keeping the Compact Clause Irrelevant, by Roderick M. Hills (NYU)

I want to say a few words, some sounding in law and some sounding in policy, about why I think the Compact Clause should continue to be, as it has always been, ignored by all relevant constitutional actors. That is not to say we should not acknowledge the Compact Clause is in the Constitution, but we should treat that Clause as a nonjusticiable part of the Constitution, much like the Guarantee Clause of Article IV is treated. I will go even further to argue that the Compact Clause should be understood to announce truisms that are unlikely to ever affect policymaking, because everyone agrees on them and rarely, if ever, violates them.

Rethinking the Senate, by Lynn Baker (Texas)

To give you a sense of where I’m headed, the very first article I published about the Senate back in 1997 was titled, “The Senate: An Institution Whose Time Has Gone?” I do not know if I would term the Senate evil, but I would certainly term it deeply problematic today. I do think it is very important to have some protection for minority viewpoints. Much of my scholarship has sought to underscore the benefits of some measure of state sovereignty within our federal system. I teach state and local government law. I am a big fan of state government. Yet, somehow, I end up in a different place with regard to the Senate than many other scholars.

We are all aware that from the very beginning of our constitutional democracy the Senate has held an exalted place. For example, Article I’s apportionment of representation in the Senate is the only provision among our current Constitution’s dictates that cannot be amended pursuant to the ordinary procedures of Article V. This provision was critical to getting the country off the ground, ensuring that the smaller states would feel protected and represented in the federal government.

But there are two particular harms today that derive from the fact that the existing allocation of representation in the Senate provides small population states what we all understand to be disproportionate power relative to their populations. The first is that the Senate systematically and unjustifiably redistributes wealth from large population states to small population states. 

Secondly, the Senate, systematically and to my mind unjustifiably, affords large population states disproportionately little power, relative to their shares of the nation’s population, to block federal homogenizing legislation. This is a blocking power that I might favor to protect minority viewpoints that minority states might have. The Senate will help provide the blocking power, but the problem is the allocation of that power: the large population states will be at a disadvantage relative to the small population states in protecting their own minority viewpoints in this way.

The Proper Role of the Senate, by John Yoo (Berkeley)

The Framers were wise to design a second house. The original version of the Constitution proposed a Senate that was elected by the House so that it still retained an indirectly majoritarian character. But, of course, the Great Compromise between the large and the small states brought today’s Senate into being as the price of having the Constitution.

It is important to remember that the Founders were suspicious of democracy. James Madison was against having a Senate elected by state legislatures. In fact, he wanted to have a Council of Revision that would have brought together aspects of the national government to continuously exercise not just judicial review, but policy review over all the acts of the state legislatures.

Indeed, Madison and the other leaders of the Constitutional Convention and the ratification debates had come together because they thought that democracy had gone too far in the states. You might recall James Madison wrote a memo right before the Constitutional Convention called “The Vices of the Political Systems of the United States.” He did not call it a memo, but James Madison would have been an inveterate memo writer today. We would have been sick of getting all of his emails.

In that memo, he wrote an analysis of what had gone wrong during the Critical Period between the Revolution and the Constitution. That diagnosis was excessive democracy. The democracies that existed under the state constitutions looked very much like governments with no upper house, other than an upper house controlled by the lower house; governments with a weakened Executive, again, controlled by the lower house;11 and governments that looked much more like parliamentary democracies as we see them in Western Europe. It is no accident, then, that not just the Senate but many aspects of the Constitution have this anti-democratic feature, or at least have the goal of trying to channel and limit democracy.

Constitutionalizing Interstate Relations: The Temptation of the Dark Side, by William Baude (Chicago)

What does the Constitution have to say about interstate relations? Well, it depends on how you ask.

One of the main topics in interstate relations is the question of what is called choice of law, which sounds very technical but fundamentally is the question of who governs—that is, which state gets to govern any given transaction.

The same kind of question comes up at the federal level—federal law versus state law—but it is dealt with by the Supremacy Clause of the Constitution, which makes clear that if a federal law is constitutional, it is controlling. But there is no Supremacy Clause for state law, which has forced people who worry about this question to look harder and elsewhere for some sort of hint about which state is supposed to govern which transaction.