Taking History Seriously: Reflections on a Critique of Amar’s Treatment of the Ninth Amendment in His Work on the Bill of Rights

Dean William Treanor critiques constitutional textualism, contending that it pays too much attention to the words, grammar, and placement of clauses in the Constitution, and too little to the history leading to the adoption of the interpreted language. An important illustration is Professor Amar\u27s treatment of the Ninth Amendment in his well-known book on the Bill of Rights. This treatment shares the perspective that history frequently sheds light on the meaning of constitutional text, but contends that the history yielding the Ninth Amendment demonstrates that it was drafted to secure the rights retained by the granting of limited federal powers—and hence the collective right of the people of the states to make decisions about government, including the extent to which rights were to be protected. The modern debate over the original meaning of the Ninth Amendment, moreover, reflects and embodies that the debate concerns the appropriate reading of a positivist Constitution

Berger v. The Supreme Court—The Implications of His Exceptions-Clause Odyssey

In his 1969 Congress v. The Supreme Court, Raoul Berger evaluated the potential claims to supremacy of Congress and the Supreme Court under the exceptions clause of article III and found in favor of the Supreme Court. Berger explicated a narrow construction of Congress’ express power to make exceptions to the Court’s appellate jurisdiction, holding that Congress’ claimed power to curb judicial excess was at odds with the design of the Constitution and without historical foundation. From 1969 to 1980, Berger reaffirmed his initial reading of the legislative history of article III no less than four times, once in an elaborate response to Congress v. The Supreme Court’s initial reviewers. But over the last several years, Berger apparently grew increasingly frustrated with judicial arrogation of power and increasingly anxious to find a practical remedy for judicial abuse. Finally, in 1982 book-length assault on the work of the Court, Berger delievered a startling reversal of his long-held views on the scope of Congress’ authority, including explanation worthy (one might say) of similar efforts of the Court he has come to detest. This article is premised on the view that Berger’s personal odyssey is relevant on several grounds to the current debate in constitutional theory and history in which Berger prominently figures. First, Berger’s experience with this important issue provides one more illustration of the pitfalls that attend primary reliance upon legislative debate as the key evidence of legislative intent. Second, an analysis of the process of Berger’s own “transformation” of the meaning of the exceptions clause can assist us in determining the extent to which he has a coherent theory of, or even a consistent approach to, constitutional interpretation. Third, some of the methods which characterized Berger’s earliest study of the exceptions clause, implicitly rejected in Berger’s revision, were carried over to his study of the fourteenth amendment. Although a comprehensive treatment of the issue of the original understanding of the fourteenth amendment is necessarily beyond the scope of this article, illustrative samplings from the historical record suggest that readers have grounds for approaching Government by Judiciary with caution. Fourth, the grounds of justification offered for Berger’s change of position raise the issue whether Berger’s own work matches up to his invocation of the model of the scholar as one who stands above the result-orientation of the political sphere. Finally, Berger has frequently insisted that “scholarly integrity” is always an issue of relevance, as he asks readers to discount the scholarship of others based on samplings which he believes demonstrates the scholar’s lack of capacity to “sift historical materials.” While, the author’s own view is that every scholarly work must ultimately be evaluated on its merits, to the extent that human nature and the press of time lead us to generalize, Berger’s work on the exceptions clause suggests that readers of his other works should carefully scrutinize the underlying sources to determine whether the inferences drawn are sound

Substance Above All: The Utopian Vision of Modern Natural Law Constitutionalists

Modern natural law constitutionalists assert that the Constitution, properly understood, includes a kind of general trump card in the form of a moral reality which provides (or is, at any rate, thought to provide) a measure of all positive legal acts--whether framed in terms of the values of natural equality, natural rights, or “simple justice.” This article explores why “trump card” natural law constitutionalism cannot by its nature adequately confront crucial issues of institutional design and democratic theory. In thus putting questions of moral substance ahead of crucial issues of authority, natural law constitutionalism appears to rest on a naive, utopian faith in the ability of judges trained in law to adjudicate competing claims of rights and justice while lacking due regard for human propensities toward hubris as well as injustice