Necessary and Proper

In this article, the author maintains that, if the courts are to hold Congress to the exercise of its enumerated powers, then they must come to grips with the congressional power: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. While the Necessary and Proper Clause has long been used to greatly expand congressional power, he argues that, to the contrary, it provides a two-part standard against which all national legislation should be judged: Such laws shall be necessary and proper. According to this standard, laws that are either unnecessary or improper are beyond the powers of Congress to enact. In part I, the author considers the meaning of this requirement. First, he identifies what he calls the Madisonian and Marshallian conceptions of necessity. Next, the author discusses the meaning of proper, the other half of the standard that all laws enacted by Congress must meet and discuss how propriety is distinct from necessity. Finally, in part II, he considers a doctrinal means of implementing the Necessary and Proper Clause. The author concludes that a rigorous application of the necessary and proper standard would serve to protect both the enumerated and, especially, the unenumerated rights retained by the people

The Declaration of Independence and the American Theory of Government: “First Come Rights, and Then Comes Government”

The topic of this panel is the Declaration of Independence, to which I devoted a chapter of my recent book, Our Republican Constitution. I want to draw on that book to make five points

Three Keys to the Original Meaning of the Privileges or Immunities Clause

Establishing the original meaning of the Fourteenth Amendment’s Privileges or Immunities Clause requires a wealth of evidence. But three key data points are crucial to identifying the core of its meaning. First, Supreme Court Justice Washington’s explanation of the meaning of “privileges and immunities” in Corfield v. Coryell; second, the rights protected by the Civil Rights Act of 1866; and third, Michigan Senator Jacob Howard’s speech explaining the content of the Privileges or Immunities Clause when introducing the Fourteenth Amendment to the United States Senate in 1866. Any theory of the Privileges or Immunities Clause and its original meaning that cannot comfortably accommodate these three items is highly questionable

Kurt Lash\u27s Majoritarian Difficulty: A Response to a Textual-Historical Theory of the Ninth Amendment

Kurt Lash believes that, in addition to individual natural rights, the Ninth Amendment protects collective or majoritarian rights as well. In this essay the author explains why Lash’s majoritarian vision is contrary to the antimajoritarianism of the man who devised the Ninth Amendment, James Madison, and those who wrote the Constitution. Not coincidentally, it is contrary to the individualism of the other amendments constituting the Bill of Rights, and the public meaning of the Ninth Amendment as it was received during its ratification. It is also contrary to the individualist conception of popular sovereignty adopted in the text of the Constitution as interpreted by a 4 to 1 majority of the Supreme Court in its first major constitutional decision. And it is contrary to the individualist interpretation of the Ninth Amendments by the one source Lash cites who actually uses the word collective: St. George Tucker. In sum, the collectivist interpretation of the phrase others retained by the people is anachronistic—a projection of contemporary majoritarianism onto a text which is and was most naturally read as referring to the natural rights retained by all individuals, and to these rights alone

The Case for the Repeal Amendment

Today, a political movement has arisen to oppose what seems to be a highly discretionary and legally unconstrained federal government. Beginning in the Bush Administration during the Panic of 2008 and accelerating during the Obama Administration, the federal government has bailed out or taken over banks, car companies, and student loans. It is now preparing to vastly expand the Internal Revenue Service to help it take charge of the practice of medicine for the first time in American history. This marked and rapid increase of power has shaken many Americans who are now looking to the United States Constitution with renewed interest in the limits it imposes on the powers of Congress. Despite what the Constitution says, however, federal judges have allowed Congress to exceed its enumerated powers for so long, it seems they no longer entertain even the possibility of enforcing the text. Judges appointed by both Republican and Democratic presidents largely operate within what academics call the New Deal settlement. By this it is meant that the courts allow Congress to exercise unchecked power over the national economy and everything that may affect it, limited only by the express guarantees of the Bill of Rights. In this arena, with some exceptions, the post-New Deal judiciary disagrees only on whether other unenumerated rights may also receive protection and, if so, which ones. But whatever few additional fundamental rights may be recognized, they do not include the protection of any so-called economic liberty that might inhibit the national regime of economic regulation. In this manner, the original scheme of islands of federal powers in a sea of liberty has been transformed into a regime of islands of rights in a vast sea of national power. But judicial passivism is not the only cause of expanding congressional power. Also responsible are two changes to the Constitution\u27s structure that were made in 1913 as populist or progressive reforms but which fundamentally altered the relationship between the federal government, the states, and the people as it appears in the Constitution\u27s text

Foreword: Is Reliance Still Dead?

One thing I found out when I was a prosecutor is that you should never tell a police officer he cannot do something, for that just serves as an open invitation for him to do it. In recent years, I have learned a similar lesson about legal scholarship which I should probably keep to myself but won\u27t. If you proclaim the existence of a scholarly consensus, this is an open invitation for academics to try to demolish such a claim

Justice Kennedy\u27s Libertarian Revolution: Lawrence v. Texas

This brief article explains why Lawrence v. Texas could be a revolutionary case if the Supreme Court follows Justice Kennedy\u27s reasoning in the future. As in Planned Parenthood v. Casey, Justice Kennedy finds a statute to be unconstitutional, not because it infringes a right to privacy (which is mentioned but once), but because it infringes liberty (a word he uses at least twenty-five times). In addition, Justice Kennedy\u27s opinion protects liberty without any finding that the liberty being restricted is a fundamental right. Instead, having identified the conduct prohibited as liberty, he turns to the purported justification for the statute and finds it inadequate. This represents a marked rejection of the fundamental rights jurisprudence as it has developed since Griswold v. Connecticut, and the adoption—sub silentio—of a presumption of liberty

The Choice Between Madison and FDR

This exchange is about three clauses that have often been used by the courts since the New Deal to expand federal power: the Commerce Clause, the Necessary and Proper Clause, and the Taxation Clause, from which the spending power has (at least until today) been construed. This Essay addresses the originalist interpretation of the Necessary and Proper Clause

Interpretation and Construction

In recent years, it has become apparent that there is a difference between (a) discovering the semantic meaning of the words in the text of the Constitution, and (b) putting that meaning into effect by applying it in particular cases and controversies. To capture this difference, following the lead of political science professor Keith Whittington, legal scholars are increasingly distinguishing between the activities of “interpretation” and “construction.” Although the Supreme Court unavoidably engages in both activities, it is useful to keep these categories separate. For one thing, if originalism is a theory of interpretation, then it may be of limited utility in formulating a theory of construction, other than in requiring that original meaning not be disregarded or undermined. This Essay elaborates and defends the importance of distinguishing interpretation from construction for the benefit of those who may not be entirely familiar with the distinction between these two activities. Although the author begins by offering definitions of interpretation and construction, the labels are not important. Both activities could be called “interpretation”—for example, something like “semantic interpretation” and “applicative interpretation.” Still, the terms “interpretation” and “construction” are of ancient vintage and, although not always precisely defined in this way, were traditionally used to distinguish between these two different activities in which courts and other constitutional actors routinely engage when dealing with authoritative writings, be they contracts, statutes, or the Constitution

...and Contractual Consent

In Part I, the author contends that when economists persistently ignore the importance of contractual consent, they are missing the crucial problem of legitimacy. In Parts II and IV, he responds to the criticisms of his consent theory of contract advanced by Jay Feinman and Dennis Patterson. Both Feinman and Patterson object to the enterprise in which the author and others are engaging, and he explains why each is wrong to dismiss the current debate over default rules. Finally, in contrast, in Part III the author shows how Steven Burton\u27s theory of default rules, which he finds most congenial, is quite compatible with his despite the fact that Burton thinks they disagree