Constitutional Crisis and Constitutional Rot

No one could accuse Donald Trump\u27s presidency of being boring. The first hundred days have careened wildly through scandals, revelations, outrages, and fracturing of political norms. Because Donald Trump is very unpopular, and because he regularly does things that his opponents consider outrageous, his critics have begun to describe his actions as creating or precipitating a constitutional crisis, especially following his first executive order limiting entry into the United States, and again after his firing of FBI director James Comey

The Distribution of Political Faith

The original title of Constitutional Redemption—which my publisher prevailed on me not to use—was “Agreements with Hell.” The phrase comes from a famous statement of the abolitionist William Lloyd Garrison—himself drawing on the words of the prophet Isaiah—that the United States Constitution was “a covenant with death, and an agreement with hell.” By agreeing to protect slavery, the Framers had embedded evil in the constitutional system, and Garrison believed that the only remedy for this original sin of constitutionalism was to dissolve the Union, and for the North to secede from the South

The Hohfeldian Approach to Law and Semiotics

This Essay attempts to show some of the important connections between the Continental tradition of semiotics, American Legal Realism, and the Critical Legal Studies movement. Semiotics, the study of signs and systems of signification, was developed independently by two thinkers, the American philosopher Charles Sanders Peirce and the Swiss linguist Ferdinand de Saussure. Much of the literature in legal semiotics has followed the Peircian tradition, but ironically, its connections with progressive movements in American legal theory have not always been clear. This Essay offers an alternative way of uniting legal semiotics with legal theory in America. It argues that the line of inquiry begun by Saussure, and continued by the French structuralists and post-structuralists, is not only an especially fertile way of approaching the study of legal semiotics, but that this semiotics can be more readily adapted to understanding politics and ideology as they are expressed in and disguised in legal thought. For this reason, there is a very natural affinity between Saussure\u27s semiology, on the one hand, and the work of the legal realists and the modern Critical Legal Studies movement on the other

Transcendental Deconstruction, Transcendent Justice

A meaningful encounter between two parties does not change only the weaker or the stronger party, but both at once. We should expect the same from any encounter between deconstruction and justice. It might be tempting for advocates of deconstruction to hope that deconstruction would offer new insights into problems of justice, or, more boldly, to assert that the question of justice can never be the same after the assimilation of deconstructive insights. But, as a deconstructionist myself, I am naturally skeptical of all such blanket pronouncements, even - or perhaps especially - pronouncements about the necessary utility and goodness of deconstructive practice. Instead, in true deconstructive fashion, I would rather examine how deconstructionists\u27 claims of what they are doing - which are often refused the name of theory or method - are uncannily altered by their encounter with questions of justice. In fact, as I hope to show, when deconstruction focuses on specific and concrete questions of justice, we will discover that deconstruction has always been something quite different from what most people thought it to be

Korematsu as the Tribute that Vice Pays to Virtue

Mark Killenbeck wants to (partially) rehabilitate the reputation of one of the Supreme Court’s most despised legal decisions, Korematsu v. United States. He argues that “[w]e should accept and teach Korematsu as an exemplar of what thelaw regarding invidious discrimination on the basis of race, ethnicity, and national origin should be.” In both Korematsu (and Hirabayashi v. United States) the Court asserted that classifications based on race were subject to strict scrutiny. But “[t]he majority,” Killenbeck explains, “refused to heed their own mandate. In Hirabayashi they held that the government policy was ‘reasonable.’ In Korematsu, . . . they failed to actually utilize” strict scrutiny. “In each instance the Justices glossed over key facts before them, ignored pertinent information, and were, quite possibly, blinded by their own prejudices and precedents.

The Use that the Future Makes of the Past: John Marshall\u27s Greatness and its Lessons for Today\u27s Supreme Court Justices

John Marshall’s greatness rests on a relatively small number of Supreme Court opinions, of which the most famous are Marbury v. Madison, McCulloch v. Maryland, and Gibbons v. Ogden. Beyond these are a number of less famous but also important cases, including his opinions in the Native American cases, Fletcher v. Peck, and Dartmouth College v. Woodward.What makes Marshall a great Justice? One feature is certainly his institutional role in making the U.S. Supreme Court much more important to American politics than it had been previously. That is a function, however, of the sorts of cases that were brought before the Court, and of the opinions he chose to write. Marshall was also important as an early intellectual leader of the Court, as opposed to being merely its Chief Justice. That, too, is a function of the opinions he wrote

Race and the Cycles of Constitutional Time

The Cycles of Constitutional Time argues that we can understand American constitutional development in terms of three kinds of cycles. The first is the rise and fall of regimes featuring dominant political parties. The second is a very long cycle of polarization and depolarization that stretches from the Civil War through the present. The third cycle is a series of episodes of constitutional rot and constitutional renewal

Tradition, Betrayal, and the Politics of Deconstruction

Using deconstructive techniques to make political and legal arguments raises the obvious question whether there is any connection between deconstruction and politics or deconstruction and justice. In fact, I believe that there are important connections between deconstruction, justice, and politics. But deconstruction itself does not have a politics, or rather, it has only the politics of those who make use of it. And deconstruction itself is not just, although it may be used to pursue justice. These are controversial claims. In this essay I want to explore them by deconstructing a particular case that raises issues of justice. It concerns the concept of tradition in constitutional law. I shall use deconstruction to explore this important and enigmatic concept, and, equally importantly, to consider what this deconstructive analysis tells us about the relationship of deconstruction to ethical and political choice

Commerce

This Article applies the method of text and principle to an important problem in constitutional interpretation: the constitutional legitimacy of the modem regulatory state and its expansive definition of federal commerce power Some originalists argue that the modem state cannot be justified, while others accept existing precedents as a pragmatic exception to originalism. Nonoriginalists, in turn, point to these difficulties as a refutation of originalist premises. Contemporary originalist readings have tended to view the commerce power through modem eyes. Originalists defending narrow readings offederal power have identified commerce with the trade of commodities; originalists defending broad readings of federal power have identified commerce with all gainful economic activity. In the eighteenth century, however commerce did not have such narrowly economic connotations. Instead, commerce meant intercourse and it had a strongly social connotation. Commerce was interaction and exchange between persons or peoples. To have commerce with someone meant to converse with them, meet with them, or interact with them. Thus, commerce naturally included all trade and economic activity because economic activity was social activity. But the idea of commerce-as-intercourse was broader than economics narrowly conceived-it also included networks of transportation and communication through which people traveled, interacted, and corresponded with each other. Understanding commerce in its original sense of intercourse is consistent with all of the evidence offered by rival theories of commerce as trade or economic activity; but it better explains the source of Congress\u27s powers over immigration and foreign affairs. It also better explains Congress\u27s broad powers over transportation and communications networks, whether or not these networks are used for purposes of business or trade. Congress\u27s power to regulate commerce among the several states is closely linked to the general structural purpose behind Congress\u27s enumerated powers as articulated by the Framers-to give Congress power to legislate in all cases where states are separately incompetent or where the interests of the nation might be undermined by unilateral or conflicting state action. Properly understood, the commerce power authorizes Congress to regulate problems or activities that produce spillover effects between states or generate collective action problems that concern more than one state. This basic structural principle explains why Congress\u27s commerce power inevitably expanded with the rise of a modern integrated economy and society, and it explains and justifies most if not all of modern doctrine. This approach justifies the constitutionality of federal regulation of labor law, consumer protection law, environmental law, and antidiscrimination law; it even shows why a federal mandate for individuals to purchase health insurance is constitutional. Finally, this approach shows why there are still areas where federal commerce power does not extend-these are areas where Congress cannot reasonably claim that an activity produces interstate spillovers or collective action problems, and does not involve networks of transportation and communication

The Construction of Original Public Meaning

Christina Mulligan, Michael Douma, Hans Lind and Brian Quinn have recently shown that during the ratification of the Constitution in 1787-1788, German and Dutch translations of the Constitution were distributed to non-English speakers in the crucial states of Pennsylvania and New York. These translations differ from the English text in interesting and important ways. As a result, English speakers may have understood the proposed Constitution in one way, while non-English speakers may have understood it quite differently.This essay uses this example to show why original public meaning is not a set of facts that lawyers simply discover and report. Rather, it is a theoretical construction that lawyers fashion in order to do the work of constitutional interpretation. There is no single way to construct original public meaning from the materials of the past. What we do construct depends in part on what we think constitutions are for and how they are supposed to work. It also depends on the practical needs of lawyers in search of a distinctively legal meaning that they can employ in legal argument. Accounts of original public meaning bring some parts of the past forward and leave others behind; they view the past through the lens of theoretical and practical commitments. This would be true even if there had been only one version of the Constitution distributed in English in 1787-1788, because there are likely to be multiple understandings of the meaning of even a single text among the ratifying public. If our account of original public meaning is at all sensitive to the actual understandings of actual people living at the time of adoption, it will pick up these disagreements, and it will have to decide what to do with them. Perhaps the best way to deal with this problem is to choose a version of original public meaning that is the least sensitive to these differences in understanding, and that focuses as much as possible on areas of likely and overwhelming agreement. This approach won’t solve all problems, as Mulligan and her colleagues demonstrate. But it will create fewer difficulties than other approaches to original public meaning. Accordingly, the second part of the essay defends a relatively “thin” theory of original public meaning — essentially confined to the original semantic meaning of the words, taking into account any generally recognized terms of art, and any background context necessary to understand the text. First, a thin theory of original meaning is most consistent with how written constitutions operate and what they are for; I call this a “framework” model of constitutions, as opposed to a “skyscraper” model. Second, because it focuses on areas of likely agreement, a thin theory is best equipped to deal with inevitable differences of understanding and belief among the ratifying public. Third, a thin theory features a division of labor between interpretation (which focuses on original public meaning) and constitutional construction, which deals with questions that cannot be decided by original meaning alone. Because constitutional construction treats history as a resource, not as a command, it is better able to deal with disagreements among the ratifying public, as well as the recurrent problem of translating the ratifying public’s concerns in their time to our concerns in our own. Although it excludes a significant amount of history from the narrower task of interpretation, the thin theory makes far more history available for the important task of constitutional construction