The Misconceived Assumption About Constitutional Assumptions

Both originalists and nonoriginalists alike often assume that background assumptions widely held when the Constitution or its amendments were enacted are part of the original meaning of the text. Originalists sometimes appeal to these background assumptions to render the meaning of more abstract words or phrases more determinate; nonoriginalist point to odious or outmoded assumptions as proof that original meaning is objectionable and should be rejected. In this paper, the author examines the proper role of background assumptions in constitutional interpretation when ascertaining the meaning of the terms, and in constitutional construction when applying this meaning to particular cases and controversies. Rather than present a normative argument on behalf of originalism, he merely tries to identify what the original meaning of the text really is—in particular, the circumstances in which background assumptions become a part of that meaning. While this analysis should be of obvious interest to originalists, it should also be of interest to any nonoriginalist who believes that the original meaning of the text is at least one factor or “modality” of constitutional interpretation to be balanced against other considerations. In Part I, the author explains how express and implied in fact terms provide the meaning of both written contracts and written constitutions. In Part II, he distinguishes this meaning of the text from the background assumptions that can result in the failure of a contract when circumstances arise about which the text is silent. Unlike contracts, however, with constitutions “failure” is not an option. Further, while background assumptions can be relevant to interpreting the meaning of ambiguous terms in both contracts and constitutions, most sustained disputes over constitutional terms concern, not the interpretation of ambiguity, but the construction of terms whose meaning is vague. Part III considers how one’s approach to the construction of vague terms will depend on one’s theory of constitutional legitimacy—that is, what makes a constitution “binding.” If, like contracts, the legitimacy of constitutions is based on original consent of the governed then, as with contracts, background assumptions can be viewed as silently conditioning that consent. On the other hand, if constitutional legitimacy is based on the justice of imposing laws on a nonconsenting public, then odious background assumptions are irrelevant to construing vagueness. This divide is illustrated by the antebellum debates over the constitutionality of slavery. Finally, in Part IV, this analysis is applied to three background assumptions: (1) that there are unenumerated natural rights, (2) that there is an unenumerated police power of states, and (3) that certain interpretive methods would be employed by courts

Is the Rehnquist Court an Activist Court? The Commerce Cause Cases

In United States v. Lopez, the Supreme Court, for the first time in sixty years, declared an act of Congress unconstitutional because Congress had exceeded its powers under the Commerce Clause. In 2000, the Court reaffirmed the stance it took in Lopez in the case of United States v. Morrison, once again finding that Congress had exceeded its powers. Are these examples of something properly called judicial activism ? To answer this question, we must clarify the meaning of the term judicial activism. With this meaning in hand, the author examines the Court\u27s Commerce Clause cases. The answer he gives to the question of whether the Rehnquist Court is an activist court is no

Limiting Raich

On Monday, November 29th, 2004, at 10:30 a.m., I rose to argue the case of Gonzales v. Raich in the Supreme Court on behalf of Angel Raich and Diane Monson. On Monday, June 6th, 2005, at 10:00 a.m., the Court announced its decision. Even today it is painful to read the opinions in the case. I am saddened for my clients, and the thousands like them, whose suffering is alleviated by the use of cannabis for medical purposes, as recommended by their physicians and permitted by the laws of their states, but who are nevertheless considered criminals by the federal government. I am saddened for the millions of voters in the ten states who enacted compassionate relief laws to allow these seriously ill persons to obtain cannabis without becoming criminals, at least under state law. And I am saddened for the Constitution, which established a system of limited and enumerated powers that had been virtually eliminated since the 1940s before being partially revived in the cases of United States v. Lopei and United States v. Morrison. . . . with its decision in Raich, six justices at once dashed the hopes of medical cannabis users and those who believe in the value of federalism to protect individual liberty. Given this setback, what hope is left for the principle of limited national power, so staunchly endorsed by the late-Chief Justice Rehnquist in his opinions in Lopez and Morrison? Will the New Federalism survive the demise of its greatest champion? The superb articles in this Symposium do little to raise hopes. They argue alternatively that Lopez and Morrison never comprised a serious federalism revival, that the doctrines announced by these cases were too unstable to have lasted, or that little, if anything, of these cases survives the Court\u27s ruling in Raich. In this Foreword, I do not mean to take issue with any of these contentions, except perhaps the last, and I urge serious students of the Constitution to read each and every article in this issue. Instead, I intend to describe how a future majority of the Supreme Court, once again willing to apply the first principles,,6 announced by the Chief Justice in Lopez and reaffirmed in Morrison-principles that no Supreme Court in our history has ever expressly disclaimed--can limit the Court\u27s decision in Raich. Where there is a will to do so, there is certainly a way

Guns, Militias and Oklahoma City

While this Symposium on The Second Amendment and the Right to Keep and Bear Arms was in final stages of production a massive explosion ripped through a federal office building in Oklahoma City, Oklahoma, killing scores of men, women, and children. As this Foreword is being written the final count of casualties is still unknown. Also unknown at this time are the identities of all who were involved in planning and executing this crime. One man is in custody, but to this point he has chosen to remain silent. Another unknown suspect is still at large.\u2

Restitution: A New Paradigm for Criminal Justice

This paper will analyze the breakdown of our system of criminal justice in terms of what Thomas Kuhn would describe as a crisis of an old paradigm- punishment. I propose that this crisis could be solved by the adoption of a new paradigm of criminal justice-restitution. The approach will be mainly theoretical, though at various points in the discussion the practical implications of the rival paradigms will also be considered. A fundamental contention will be that many, if not most, of our system\u27s ills stem from errors in the underlying paradigm. Any attempt to correct these symptomatic debilities without a reexamination of the theoretical underpinnings is doomed to frustration and failure. Kuhn\u27s theories deal with the problems of science. What made his proposal so startling was its attempt to analogize scientific development to social and political development. Here, I will simply reverse the process by applying Kuhn\u27s framework of scientific change to social, or in this case, legal development

Commandeering the People: Why the Individual Health Insurance Mandate is Unconstitutional

The “Patient Protection and Affordable Care Act” includes what is called an “individual responsibility requirement” or mandate that all persons buy health insurance from a private company and a separate “penalty” enforcing this requirement. In this paper, I do not critique the individual mandate on originalist grounds. Instead, I explain why the individual mandate is unconstitutional under the existing doctrine by which the Supreme Court construes the Commerce and Necessary and Proper Clauses and the tax power. There are three principal claims. First (Part II), since the New Deal, the Supreme Court has developed a doctrine allowing the regulation of wholly intrastate activity: the substantial effects doctrine. Although commonly conceived as a Commerce Clause doctrine, from its inception this doctrine has been grounded in the Necessary and Proper Clause. In the 1990s, the Supreme Court developed a judicially administrable test for whether it is “necessary” for Congress to reach intrastate activity that substantially affects interstate commerce: the distinction between economic and noneconomic intrastate activity. Because the individual mandate fails to satisfy the requirements of this test as understood under existing doctrine, it exceeds the power granted to Congress by the Commerce and Necessary and Proper Clauses as currently construed by the Supreme Court. The mandate also fails to satisfy an alternative to the substantial effects doctrine that was proposed by Justice Scalia in a concurring opinion. Second (Part III), because the “individual responsibility requirement” purports to be a regulation of commerce and cannot possibly be construed as a tax, it is not justified under the tax power of Congress; and, if the “requirement” or mandate is an unconstitutional regulation, there is nothing for the “penalty” to enforce. Neither is the penalty, considered apart from the regulatory requirement, a tax under current doctrine. Third (Part IV), the Supreme Court should not further expand Congress’s power beyond existing doctrine to allow it to mandate that individuals engage in economic activity by entering into contracts with private companies. Such economic mandates are directly analogous to the commandeering of the states that the Supreme Court has held to be an improper exercise of the commerce power. The very few mandates that are imposed on the people pertain to their fundamental duties as citizens of the United States, such as the duty to defend the country or to pay for its operation. A newfound congressional power to impose economic mandates to facilitate the regulation of interstate commerce would fundamentally alter the relationship of citizen and state by unconstitutionally commandeering the people

The Relevance of the Framers’ Intent

Ever since the revival of interest in originalism that occurred in the 1980s, critics have \u27charged that for a variety of reasons it is impractical, if not impossible, to determine the Framers\u27 intentions. In addition, they argue that we today should not be bound by the intentions of a few men who lived and died over two-hundred years ago. In sum, adherence to original intent is rejected as being impractical, unjust, or both. In this article, the author argues that we cannot assess either the practicality or the justice of discerning original intent without first asking why it is we are consulting the intentions of the Framers. He discusses two reasons to consult the Framers. The first views the Framers as wardens; the second as designers or architects

Four Senses of the Public Law-Private Law Distinction

Perhaps the most useful function for a foreword to a symposium on the Limits of Public Law would be to explain what is meant by public law. If there is more than one sense of a distinction between public law and private law, identifying which sense is being used in a particular instance should reduce confusion. As it turns out, there are four different ways to distinguish between public law and private law that are relevant to this Symposium

Of Chickens and Eggs−−The Compatibility of Moral Rights and Consequentialist Analyses

Philosophers are accustomed to thinking of moral rights and consequentialist analyses as fundamentally incompatible. They frequently debate cases--both hypothetical and real--in which rights and consequences are in conflict. For example, suppose an innocent child knows the whereabouts of a terrorist who has planted a nuclear bomb in a city. Would it be permissible to violate the child\u27s moral right to be free from torture, if this was the only way to save millions of innocent lives? If this is permissible, then do not moral rights yield to concerns about consequences? Or suppose that a community incorrectly believes that an innocent person is guilty of a heinous crime. If the beneficial consequences exceed the harmful consequences, would it be permissible to punish or even kill this innocent person? If not, then do not consequential concerns yield to moral rights? In this foreword, the author explores the possibility that it is useful to analyze problems pertaining to law from both a moral rights and a consequentialist perspective; that each of these competing modes of analysis complements the other, notwithstanding the fact that one mode will sometimes conflict with the other; that the mode of analysis associated with traditional natural rights theories contains both a moral rights and a consequentialist component; and that, just as both chickens and eggs are vital components of a process of biological evolution, moral rights and consequentialist analyses are vital components of a process of legal evolution−−a process that includes both elements of change and elements of stability

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