Why We Need Legal Philosophy

Do we need legal philosophy? Legal philosophy or jurisprudence, like many other areas of philosophy, is of intrinsic interest to many people. But this does not tell us whether or why we need it. The answer suggested by Lon Fuller is that legal philosophy has - or should have - implications for lawyers, judges, legislators and law professors. And yet in 1952 Fuller concluded that: Judged by this standard I don\u27t think we can claim that the last quarter of a century has been a fruitful one for legal philosophy in this country - certainly not in terms of immediate yield. Fuller\u27s dour observation, if it was true when made and remained true, leads to two further questions: First, in what manner does legal philosophy affect the practice of law? Second, how is it that some philosophies are useful to legal institutions and others are not? In this essay I shall briefly describe the present state of legal philosophy and, then, sketch the answers to these questions that are suggested by one particular strain of recent jurisprudential thought

Reconceiving the Ninth Amendment

The courts long have protected constitutional rights that are not listed explicitly in the Constitution, but are they warranted in doing so? As scholars and commentators vigorously debate this and other questions about the appropriate role of judges in interpreting the Constitution, the Ninth Amendment has assumed increasing importance. Its declaration that [t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people has suggested to many that the set of rights protected by the Constitution is not dosed and that judges may be authorized to protect these unenumerated rights on occasion

Is the Constitution Libertarian?

Ever since Justice Holmes famously asserted that “the Constitution does not enact Mr. Herbert Spencer’s Social Statics,” academics have denied that the Constitution is libertarian. In this essay, I explain that the Constitution is libertarian to the extent that its original meaning respects and protects the five fundamental rights that are at the core of both classical liberalism and modern libertarianism. These rights can be protected both directly by judicial decisions and indirectly by structural constraints. While the original Constitution and Bill of Rights provided both forms of constraints, primarily on federal power, it left states free to violate the liberties of the people—and even enslave their own people—subject only to their own constitutions. The constitutional protection of individual liberty was substantially enhanced by adoption of the Thirteenth and Fourteenth Amendments, which abolished slavery and extended the power of the federal courts and Congress to protect the rights if individuals from violation by state governments. Libertarianism has much less to say about either the conduct of foreign policy or the proper institutional allocation of foreign policy powers (though some libertarians mistakenly accord to foreign states a sovereignty that properly belongs only to individuals). Perhaps not coincidentally, the Constitution provides few constraints on the foreign policy decisions of the political branches, or on the allocation of power between them

The Virtues of Redundancy in Legal Thought

Redundancy has a bad reputation among legal intellectuals. When someone says, for example, that the ninth and tenth amendments are redundant, we can be pretty sure that this person attaches little importance to these constitutional provisions. Listen to one of the definitions of redundant provided by the Oxford English Dictionary: superabundant, superfluous, excessive. \u27 In this essay, the author proposes that legal theorists pay serious attention to the concept of redundancy used by engineers. He explains how redundancy--in this special sense--is essential to any intellectual enterprise in which we try to reach action-guiding conclusions, including the enterprise of law. The author describes the virtues of redundancy in legal thought

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

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

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

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