788 research outputs found
The Wages of Crying Judicial Restraint
Five Justices voted to affirm the proposition that the Constitution creates a government of limited and enumerated powers and that the courts will enforce those limits. To understand why this victory was possible, it is important to understand that there are not just two versions of federalism, preâNew Deal and postâNew Deal. There is also a third version. The failure to recognize the third version goes a long way to explain why most of my academic colleagues predicted that the right would have no chance to prevail in our constitutional challenge to the individual insurance mandate.
The first version of federalism is the preâNew Deal version. This version affirms that the Constitution established a national government of limited and enumerated powers, that those powers should be interpreted according to their original meaning, and that much of what the federal government tried to do before the New Deal, and did during the New Deal and after, is unconstitutional.
The postâNew Deal vision of federalism has been interpreted by progressives, quite beyond what the Court has actually said, as repudiating the idea that the Constitution enumerates certain limited congressional powers and that these limits are to be enforced by the courts. This progressive vision of the postâ New Deal federalism essentially says that Congress has the plenary power to legislate as it will with respect to the national economy.9 Put another way, the Commerce and Necessary and Proper Clauses combine to create a âNational Problems Powerâ vested in Congress.
Because most law professors held this vision of the New Deal, it came as quite a shock to them when the Rehnquist Court established the New Federalism. The New Federalism established the proposition that there were limits that were compelled by what Chief Justice Rehnquist referred to as âfirst principlesâ of constitutional government. That these limits would be enforced by the Court seemingly rejected and repudiated the progressive vision of the postâNew Deal constitutionalism that, up to that point, had seemed orthodoxy
The Original Meaning of the Commerce Clause
The U& Supreme Court, in recent cases; has attempted to define limits on the Congress\u27s power to regulate commerce among the several states. While Justice Thomas has maintained that the original meaning of commerce was limited to the trade and exchange of goods and transportation for this purpose, some have argued that he is mistaken and that commerce originally included any gainful activity. Having examined every appearance of the word commerce in the records of the Constitutional Convention, the ratification debates and the Federalist Papers, Professor Barnett finds no surviving example of this term being used in this broader sense. In every appearance where the context suggests a specific usage, the narrow meaning is always employed. Moreover, originalist evidence of the meaning of among the several States and To regulate also supports a narrow reading of the Commerce Clause. Among the several States meant between persons of one state and another, and To regulate generally meant to make regular - that is, to specify how an activity may be transacted - when applied to domestic commerce, but when applied to foreign trade also included the power to make prohibitory regulation. In sum, according to the original meaning of the Commerce Clause, Congress has power to specify rules to govern the manner by which people may exchange or trade goods front one state to another, to remove obstructions to domestic trade erected by state; and to both regulate and restrict the flow of goods to and from other nations (and the Indian tribes) for the purpose of promoting the domestic economy and foreign trade
Constitutional Legitimacy
The problem of constitutional legitimacy is to establish why anyone should obey the command of a constitutionally-valid law. A lawmaking system is legitimate if there is a prima facie duty to obey the laws it makes. Neither consent of the governed nor benefits received justifies obedience. Rather, a prima facie duty of obedience exists either (a) if there is actual unanimous consent to the jurisdiction of the lawmaker or, in the absence of consent, (b) f laws are made by procedures which assure that they are not unjust. In the absence of unanimous consent, a written constitution should be assessed as one component of a lawmaking system. To the extent a particular constitution establishes lawmaking procedures that adequately assure the justice of enacted laws, it is legitimate even if it has not been consented to by the people. This account of constitutional legitimacy does not assume any particular theory of justice, but rather is intermediate between the concept of justice and the concept of legal validity
Foreword: Why Popular Sovereignty Requires the Due Process of Law to Challenge Irrational or Arbitrary Statutes
So-called âsubstantive due processâ has long been criticized progressives and conservatives as a contradictory interpretation of the Due Process Clauses, and one that undermines the popular sovereignty of We the People to govern themselves. In this Foreword, I explain why an individual conception of We the People, leads to a ârepublicanâ conception of popular sovereignty that requires a neutral magistrate to adjudicate whether a statute restricting the liberties of the We the People is within the just powers of a legislature to enact. Because a measure that is ultra vires is not truly âa law,â enforcing it against a fellow citizen and joint sovereign so as to deprive that person of his or her âlife, liberty or propertyâ violates what should be called the Due Process of Law Clauses. While the proper ends of Congressâs powers are enumerated in the text of the Constitution, the police powers of the states are more general. Still, the exercise of such powers to restrict the privileges or immunities of citizens in an âirrational or arbitraryâ manner is beyond the just powers that a sovereign people can be presumed or supposed to have delegated to their servants in the legislature. Courts, who are also servants of the We the People, readily perform this type of evaluation when a âfundamental rightâ or âsuspect classâ is affected by the exercise of the police power, so such judicial engagement is well within their competence
Who\u27s Afraid of Unenumerated Rights?
Unenumerated rights are expressly protected against federal infringement by the original meaning of the Ninth Amendment and against state infringement by the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment. Despite this textual recognition, unenumerated rights have received inconsistent and hesitant protection ever since these provisions were enacted, and what protection they do receive is subject to intense criticism. In this essay, the author examines why some are afraid to enforce unenumerated rights. While this reluctance seems most obviously to stem from the uncertainty of ascertaining the content of unenumerated rights, he contends that underlying this concern are more basic assumptions about legislative sovereignty and the proper role of judges. The author explains why a proper conception of constitutional legitimacy requires that unenumerated rights be protected somehow, that judicial protection is not as problematic as commonly thought once it is acknowledged that all liberty may be reasonably regulated (as opposed to prohibited), and that we need to ascertain the scope of unenumerated rights only to identify wrongful behavior that may be prohibited altogether because it invariably violates the rights of others
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 Lashâs 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 anachronisticâa 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
The Declaration of Independence and the American Theory of Government: âFirst Come Rights, and Then Comes Governmentâ
The topic of this panel is the Declaration of Independence, to which I devoted a chapter of my recent book, Our Republican Constitution. I want to draw on that book to make five points
Three Keys to the Original Meaning of the Privileges or Immunities Clause
Establishing the original meaning of the Fourteenth Amendmentâs Privileges or Immunities Clause requires a wealth of evidence. But three key data points are crucial to identifying the core of its meaning. First, Supreme Court Justice Washingtonâs explanation of the meaning of âprivileges and immunitiesâ in Corfield v. Coryell; second, the rights protected by the Civil Rights Act of 1866; and third, Michigan Senator Jacob Howardâs speech explaining the content of the Privileges or Immunities Clause when introducing the Fourteenth Amendment to the United States Senate in 1866. Any theory of the Privileges or Immunities Clause and its original meaning that cannot comfortably accommodate these three items is highly questionable
- âŠ