The Court, the Constitution, and the History of Ideas

Several of the nation\u27s most influential constitutional law scholars have been arguing for the better part of a decade that judicial review should be sharply limited, or eliminated altogether. The list includes such prominent thinkers as Professor Mark V. Tushnet of Harvard Law School, Professor Cass R. Sunstein of the University of Chicago Law School, and Dean Larry D. Kramer of Stanford Law School. In place of the doctrine made famous by Chief Justice John Marshall in Marbury v. Madison, these leading voices of the legal academy call for popular constitutionalism : a constitutional law that is defined outside of the courts by the people themselves, whether we act in the streets, in the voting booths, or in legislatures as representatives of others. The purpose of this Article is to demonstrate that popular constitutionalism is wrong and should be rejected. It is difficult to overstate the importance of doing so, given how influential Tushnet, Sunstein, and Kramer are to current thinking about the Supreme Court\u27s role in American life. For example, both Sunstein and Kramer previewed as separate Forewords to the Harvard Law Review\u27s annual survey of the Court\u27s term what they would later explore in their major books on popular constitutionalism. There is no more prestigious a platform for a constitutional law scholar than a Harvard Law Review Foreword

Affirmative Action and the Crisis in Higher Education

At all but the nation’s top colleges and universities, enrollments are down and budgets are strapped. Although many offer ideas why, the heavy-headed use of racial and ethnic preferences in student admissions, financial aid, and faculty hiring is also to blame, but also nobody ever mentions that. The term “affirmative action” originated with an executive order signed by President John F. Kennedy on March 6, 1961. Fast forward five decades and, to borrow a line from Dorothy in The Wizard of Oz, “We’re not in Kansas any more.” Bluntly stated, there is systemic discrimination in all three categories of affirmative action in higher education: admissions, financial assistance, and faculty hiring. The Supreme Court has assumed ever since the University of California v. Bakke decision in 1978 that colleges and universities are administering their affirmative action programs in good faith. It’s time for the Court to acknowledge that assumption is incorrect

Liberal Originalism: The Declaration of Independence and Constitutional Interpretation - Symposium: History and Meaning of the Constitution

In my work I have labeled the dominant iterations of originalism “conservative originalism.” It is an approach that dictates that judges may legitimately recognize only those rights specifically mentioned in the Constitution, or ascertainably implicit in its structure or history. In all other cases, conservative originalists argue, the majority is entitled to govern—to make moral choices—through the political process. “Liberal originalism,” by contrast, maintains that the Constitution should be interpreted in light of the political philosophy of the Declaration of Independence. Liberal originalism rejects both conservative originalism and the notion of a living constitution on the ground that they are merely post-hoc rationalizations for pre-conceived political results. ... Liberal originalism insists that conservative originalists mischaracterize the Constitution as establishing a majority-rule democracy, a mischaracterization that is also made by many constitutional theorists of progressive political views. Because of the Framers’ desire to avoid what Elbridge Gerry called the “excess of democracy,” they created a republican form of government, not a majority-rule democracy. And in that republican form of government, the Court is to play a central role: chief guardian of the natural rights of the American people, especially of individuals and minorities. Briefly put, I employ a conservative methodology, but arrive at liberal results, as “liberal” is understood in the classic sense of seventeenth- and eighteenth-century Lockean political philosophy. ... Space constraints permit me to discuss only a couple of the reactions to liberal originalism. ... I will concentrate on the criticisms of two of the other participants at this symposium, Patrick Charles and Lee Strang. I then will discuss Justice Clarence Thomas’s use of liberal originalism and the reactions to his use of it. ... I will conclude this article with some thoughts about the future of liberal originalism