From Randy Barnett: The Original Meaning of the Judicial Power

In a 2004 article, Barnett tackles the claims that the framers of the Constitution did not define judicial power to include the power of judicial review. It became common to think that the power originated with John Marshall's decision in Marbury v. Madison. Looking through the history of the time, Barnett argues that an originalist approach to the use of the terms suggests that the intent was for the judiciary to have that power.

Dual credit students might find this to be a helpful look at this approach to constitutional interpretation, and how lawyers and scholars still wrestle with the meaning of the Constitution.

- Click here for the article.

In this article, I intend to lay to rest any doubt that, at the founding, the judicial power of the United States included the power of judicial rzeview. I hope to refute any claims that judicial review was invented in Marbury v. Madison, or that, because it is contrary to the original meaning of the Constitution, it must be justified by some nonoriginalist interpretive methodology. I will do so, not by discerning the shadowy and often counterfactual “intentions” of the founding generation, but by presenting as comprehensively as I can what the founders actually said during the constitutional convention and in state ratification conventions, and immediately after ratification. These statements, taken cumulatively, leave no doubt that the founders contemplated judicial nullification of legislation enacted by the states and by Congress. In short, I shall demonstrate once and for all that the original meaning of the “judicial power” in Article I, includes the power of judicial nullification.at least is.

Governor Abbott joins list of politicians calling for a convention to amend the United States Constitution

Looks like good material for the spring semester.

The Texas Tribune writes up his call here: Abbott Calls on States to Amend U.S. Constitution.
Here's a direct link to his full proposal: Restoring the Rule of Law with States Leading the Way.

He calls it the Texas Plan and its intended to reign in what he deems excessive activity by the national government, laws and regulations that interfere with the states. On page 4 of the document he proposes offering nine constitutional amendments.

I. Prohibit Congress from regulating activity that occurs wholly within one State.

II. Require Congress to balance its budget.

III. Prohibit administrative agencies—and the unelected bureaucrats that staff them—from creating federal law.

IV. Prohibit administrative agencies—and the unelected bureaucrats that staff them—from preempting state law.

V. Allow a two-thirds majority of the States to override a U.S. Supreme Court decision.

VI. Require a seven-justice super-majority vote for U.S. Supreme Court decisions that invalidate a democratically enacted law.

VII. Restore the balance of power between the federal and state governments by limiting the former to the powers expressly delegated to it in the Constitution.

VIII. Give state officials the power to sue in federal court when federal officials overstep their bounds.

IX. Allow a two-thirds majority of the States to override a federal law or regulation.

These will be worth considering independently over the course of the semester. I've also intended - at some point - to summarize the lawsuits Abbott filed against the national government when he was Attorney General. I have a hunch there is a strong relationship between the subject of those lawsuits and these proposed amendments.

Not everyone is on board - including some fellow Republicans. The Texas Tribune article concludes with some cautionary notes:

Critics of the convention approach say the constitutional rules governing a meeting of the states could allow for a "runaway convention," in which an unlimited number of amendments could be offered, potentially creating drastic changes to the U.S. Constitution. Tea Party groups opposed Perry's 2011 proposal on similar grounds.

Konni Burton, now a Republican state senator from Colleyville, told the Fort Worth Star-Telegram that year that such a convention could allow "anyone to offer up any number of amendments... based on their own ideology and interests, which could ultimately radically change our Constitution." At the time, she was speaking on behalf of the NE Tarrant Tea Party.

Abbott insists those fears are unfounded. His policy paper argues the Constitution "leaves it to the states to limit the scope of the convention." And even if additional amendments were offered, he writes, "none of the delegates' efforts would become law without approval from three-fourths of the states."

It concludes with a quote from Senator Cruz that ties this effort into an originalistic view of the Constitution. I'm working on written assignments that will dig into the different ways that the Constitution is interpreted.

As Abbott was preparing to unveil his proposal on Friday, his protégé in the attorney general’s office, presidential contender Ted Cruz, was pledging to push for “quite a few” constitutional amendments of his own if elected. Speaking with reporters while campaigning in Iowa, the U.S. senator from Texas said a balanced budget amendment is among the add-ons the country most critically needs.

Cruz, the former solicitor general of Texas, went on to reiterate his calls for constitutional amendments that would impose term limits for members of Congress and justices on the U.S. Supreme Court. He has also proposed a constitutional amendment that would leave it to state legislatures to define marriage.

“There are many more amendments we need, in part because the federal government and the courts have gotten so far away from the original text and the original understanding of our Constitution,” Cruz told reporters after a stop in Webster City, Iowa.

From The Atlantic: Secrecy Undermines the Ability of Congress to Function as the Framers Intended

Does the surveillance state - or the "deep state" - undermine the system of checks and balances?

Congress cannot act as a check on the executive branch in the way the Framers intended when hugely consequential policies it is overseeing are treated as state secrets. The Senate, intended as a deliberative body, cannot deliberate when only the folks on the right committees are fully briefed, and the Ron Wyden types among them think what's happening is horribly wrong, but can't tell anyone why because it's illegal just to air the basic facts.

Our senators have literally been reduced to giving dark hints.

And the House of Representatives? Members are up for reelection every two years because the body is supposed to respond to the will of the people. But by some accounts, the people are only now finding out about surveillance that some House members signed off on three or four election cycles in the past.

Not that we know all the details even now.

It's one thing to keep the identities of CIA agents and the location of our nuclear arsenal classified. But this is something different. The national-security state, as currently constituted, is removing many of the most important moral and strategic policy questions we face from the realm of democratic debate and accountability. In a real sense, our current approach is preventing our system of government from functioning in very basic ways that the Framers intended.

Robert Bork, RIP

Judge Bork's failed nomination to the Supreme Court is held by many political commentators to mark a change in the political landscape in Washington. Bork was already a controversial figure - as a member of the Nixon Administration he fired the man appointed to investigate Watergate - when he was nominated to the court by President Reagan. He was an unusually vociferous conservative nominee. Most previous nominees has been less so, they may have leaned to the left or right, but the pursuit of an ideological vision was not their primary objective.

But his overt criticism of the liberal direction of the court over the previous decades - and the decisions in cases like Brown and Griswold - galvanized liberal opposition to him and led to his defeat. The term "borking" was coined to refer to this process. This process has become more common since then. So his defeat has been argued to be a factor leading to the ideological polarization we see today.

So despite the fact that his nomination was defeated, he's a key figure in recent political history - perhaps because he was defeated. Here are a few stories about the man:

- Washington Post announcement of his death.
- The Atlantic: The Sad Legacy of Robert Bork.
- WSJ: The Wisdom of Robert Bork.
- US News: Robert Bork's Legacy.
- WP Blog: Bork's influence on antitrust law.
- Balkinization: Bork and the Contingencies of History.

Was the 14th Amendment meant to be color-blind?

Here's a great argument that it was not, and that legislation passed around the time the 14th Amendment was ratified - the 1866 Freedmen's Bureau Act - explicitly intended to provide extra opportunities to the recently freed slaves. This might potentially buttress arguments in favor of affirmative action today.

The author points out that this is an originalist argument, which conservatives tend to employ in other areas, but not here. The author thinks the conservatives are mimicking the liberal tendency to read the Constitution in moral terms, which allows for flexibility in interpretation.

Did "We the People" apply to African- Americans at the time of the founding?

A great question.

Justice Clarence Thomas is not certain that it did:

“There was always this underlying belief that we were entitled to be a full participant in ‘we the people,’ ” Thomas told a crowd at the National Archives last week.
“That’s the way we grew up. It was the way the nuns, who were all immigrants, would explain it to us — that we were entitled, as citizens of this country, to be full participants. There was never any doubt that we were inherently equal. It said so in the Declaration of Independence.”

Click here for the video of an interview with Thomas.

Catch up on commentary here, and here.

Some critics of originalism have argued that the original Constitution was illegitimate because it excluded blacks. There is little doubt that the original Constitution tolerated severe racial injustices, most notably slavery. But there is nonetheless a difference between a Constitution that left slavery and other injustices alone (in part because abolition was politically impossible at the time), and one that categorically denied all blacks any “rights which the white man was bound to respect,” as [Roger] Taney put it.

Does "Make No Law" really mean "Make No Law?"

We just touched on the Bill of Rights in American Government, so we wrestled on whether this phrase is absolute in its restriction or if it allows some give (like with falsely shouting fire in a crowded theater).

Some brainy types go at it here:

Note that the First Amendment doesn’t say that Congress shall make no law restricting speech or press; rather, Congress can’t restrict “the freedom of speech” and “the freedom of the press.” Maybe that’s just a fancy way of saying “speech” and “press.” But maybe it suggests that “the freedom of speech” and “the freedom of the press” were references to broader legal concepts that were used to refer to limited freedom, not unlimited freedom. For instance, perhaps the freedom of speech and of the press were understood as excluding libel and slander, or possibly even obscenity, threats, and some other kinds of speech.

And here:

. . . perhaps the Founders, being politicians, enacted a broad generality that they agreed on, even though they had no consensus about exactly what it meant. I’m pretty certain that they did not mean that “Congress shall make no law ... abridging the freedom of speech, or of the press” means that all speech restrictions — or at least all federal speech restrictions — are unconstitutional, period. Which part of “make no law” don’t you understand?, some people colorfully argue. Well, I understand “make no law” just fine, as do those who support the constitutionality of some speech restrictions. The real difficulty is with “the freedom of.”

These are worth a quick read if you have the time. What is the difference between "speech" and "freedom of speech?"

New Textualism

For decades, conservatives have embraced an originalist approach to the constitution. Either the intent or the text of the Constitution should be the guiding force determining constitutional meaning. Liberals are apparently embracing originalism now and calling it "New Textualism."

Jeffrey Rosen comments on the development, and suggests that it would have helped the administration's argument supporting the individual mandate before the Supreme Court, but at a cost:

. . . the New Textualists—insist that arguments grounded in constitutional text and history can be deployed just as effectively to support liberal policies as conservative ones.

So far, the New Textualists have an impressive track record of winning over conservative justices and judges. But their ideas are being strenuously resisted by the liberal legal establishment—both by administration lawyers like Verrilli and an older generation of scholars, who fear their approach will ultimately lead to the downfall of landmark precedents, including Roe v. Wade.

More commentary on this approach:

- The Promise of New Textualism.
- The Case for New Textualism.
- Old Dictionaries and New Textualists.
- Laying Claim to the Constitution.

Can a single theory adequately describe the Constitution?

I really like this post from Balkinization, and strongly recommend both 2301 and 2302 students to read it. The author - J. Harvie Wilkinson III - is a judge on the United States Court of Appeals for the Fourth Circuit.

He argues that attempts to develop legal theories to succinctly encapsulate the meaning and intent of the Constitution fall short. Why?

Perhaps it is because the Constitution is not at bottom an abstraction. It is by nature less amenable to theory than to the experience that ground-level governance represents. Moreover, the Constitution was designed to resist answers and incorporate tensions rather than yield its secrets to a single or comprehensive viewpoint. The problem is that cosmic constitutional theories can falsely suggest simple answers to intractable problems, thereby abetting judicial hubris. The theories supply ingredients of appropriate constitutional interpretation, but only ingredients. To see them as answers is to succumb to the notion that a document as complex as the Constitution can somehow be bottled and pasteurized.


If I understand this correctly, the pragmatic nature of the Constitution makes it resistant to abstract principle. Yes it may be argued that abstract principles exist in the document, but they are complex. One set may not necessarily compliment another. he further argues that the attempt to do so makes the preservation of democratic liberty difficult.

The grand quest of the theorists has left restraint by the wayside and placed the inalienable right of Americans to self-governance at unprecedented risk. The increasing willingness of leading thinkers in the law to claim that their theory of the Constitution provides the answers has made citizens all the more willing to look to the courts to resolve the great social controversies of our time. In turn, the courts’ eagerness to resolve such debates has cast them in a decidedly political light, making judicial selections and confirmation battles all the more disputatious. This state of affairs is exactly backwards. In a democracy, courts protect individual rights and personal liberties, but they are not, and should not be, the primary agents of social change. It is the people at the ballot box who should decide, not the people wearing black robes—the many, not the few.
He also, very helpfully (for me at least), listed dominant theories of interpretation and the authors responsible for developing them - I'll add these to my power points where appropriate:

living constitutionalism: William Brennan
originalism: Robert Bork
political process theory: John Hart Ely
textualism: Hugo Black
minimalism: Cass Sunstein
cost-benefit pragmatism: Richard Posner
active liberty: Stephen Breyer
moral readings: Ronald Dworkin

What is Originalism?

From the Volokh Conspiracy, a paper describing the current state of originalism and the living constitution:

- What is Originalism? The Evolution of Contemporary Originalist Theory

“The Freedom ... of the Press,” from 1791 to 1868 to Now — Freedom for the Press as an Industry, or the Press as a Technology?

From the Volokh Conspiracy, a post that should help next week's 2301 discussion of the Freedom of the Press. The author discusses the original issues associated with teh freedom of the press:

“[T]he freedom ... of the press” specially protects the press as an industry, which is to say newspapers, television stations, and the like—so argue some judges and scholars. “The Press Clause singles out the press as an institution entitled to special protection under the umbrella of the First Amendment.” And this argument is made in many contexts: election-related speech, libel law, the journalist’s privilege, access to government property, and more.

The four Citizens United v. FEC dissenters, for instance, asserted that “[t]he text and history” of the Free Press Clause “suggest[] why one type of corporation, those that are part of the press, might be able to claim special First Amendment status.” Therefore, the dissenters argued, restrictions on the Free Speech Clause rights of non-press entities can be upheld without threatening the special Free Press Clause rights of the institutional press.

Likewise, Justice Stewart famously argued that the Free Press Clause should be read as specially protecting the press-as-industry, because “[t]he primary purpose of the constitutional guarantee of free press was ... to create a fourth institution outside the Government as an additional check on the three official branches.” Justice Powell likewise reasoned, referring to the press-as-industry, that “[t]he Constitution specifically selected the press ... to play an important role in the discussion of public affairs.”

Justice Douglas similarly argued that professional journalists are constitutionally entitled to a privilege not to testify about their sources, because the press-as-industry “has a preferred position in our constitutional scheme.” And some lower courts have indeed concluded that some First Amendment constitutional protections apply only to the institutional press.
....

Here's the full article.

Stare Decisis v. Orginalism

The battle over the constitutionality of the health care law is fostering all sorts of interesting takes on constitutional interpretation. Here is an argument that originalism and stare decisis (precedence) are in conflict.

An Act for the Relief of Sick and Disabled Seamen

Apparently John Adams signed a law in 1798 that looks a lot like the health care act.

Regarding Originalism

The NYT has a terrific piece on the various issues associated with originalism and highlights Antonin Scalia's pragmatic approach to using the doctrine in deciding how to rule on cases before him. Best quote: "I am an originalist. I am a textualist. I am not a nut.”

In both 2301 and 2302 we will dig into controversies associated with how the constitution ought to be interpreted. Consider this required reading.

Update: Linda Greehouse adds to the discussion.

Souter's Speech

Something to read through today: Ex-Justice David Souter's recent speech at Harvard about his approach to the Constitution.

A Couple Views of the Constitution

Arguments about the meaning and proper interpretation of the U.S. Constitution continue:

- E.J.Dionne discusses David Souter's recent speech criticizing the doctrine of original intent.

update (6-5-10): Linda Greenhouse comments on the speech also. Souter argues that the Constitution contains values that are in conflict and Justices must reconcile, or choose, among those values.

update (6-11-10): Dahlia Lithwick comments on the same speech and thinks Souter is telling Americans to grow up.

- George Will thinks Obama is leaning too far to the Wilsonian approach to the Constitution, which allows for "unlimited" power, and not enough towards Madison's more limited view of governing power.

Some Random Thoughts on the Judiciary

- Jeff Sessions (Republican Senator) wants Obama to appoint a textualist to the court.

- Joseph Ellis thinks the doctrine of original intent is bizarre and that the founders disagreed over what the document meant.

- Linda Greenhouse has some questions about originalism.

Scalia, Brown, and Originalism

Just in time for our discussion of judicial review in 2302 comes a terrific article about a face-of between Breyer and Scalia that included questions about how an originalist might have voted in Brown v. Board of Education.

David Souter on the Constitution

If you have hour to kill, here's a great interview with the ex-Supreme Court Justice.

Federalism and Senate Elections

George Will, from time to time, offers provocative comments criticizing proposals that offend his vision of the original intent of the Constitution's authors. Perhaps due to the short format of the op-ed piece, they tend to be superficial and unsatisfactory in my view -- he has a habit of setting up and plowing over straw men -- but they raise important questions and stimulate thought.

Here's his appraisal of a current effort to ensure the vacancies that occur in the Senate always be filled by an election. He is opposed to an amendment offered by Wisconsin Senator Russ Feingold.

In his critique he hits a point we will cover this week in 2301 when we discuss the Constitution's impact on federalism, the relationship between national and state power. Aside from the specific powers and limitations placed in the document, the Great Compromise also had an impact by allowing the states to have control over the Senate. Will's real beef is with the 17th Amendment, which swapped state control for popular elections:

The Framers established election of senators by state legislators, under which system the nation got the Great Triumvirate (Henry Clay, Daniel Webster and John Calhoun) and thrived. In 1913, progressives, believing that more, and more direct, democracy is always wonderful, got the 17th Amendment ratified. It stipulates popular election of senators, under which system Wisconsin has elected, among others, Joe McCarthy, as well as Feingold. The 17th Amendment says that when Senate vacancies occur, “the executive authority” of the affected state “shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.” Feingold’s amendment says:

“No person shall be a Senator from a State unless such person has been elected by the people thereof. When vacancies happen in the representation of any State in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies.”

It's not hard to detect the hostile attitude towards direct democracy. Certainly the shift had an impact on national power. Nevertheless it's interesting to speculate how the New Deal would have been affected by a Senate composed of members appointed by the states:

Furthermore, grounding the Senate in state legislatures served the structure of federalism. Giving the states an important role in determining the composition of the federal government gave the states power to resist what has happened since 1913 — the progressive (in two senses) reduction of the states to administrative extensions of the federal government. Severing senators from state legislatures, which could monitor and even instruct them, made them more susceptible to influence by nationally organized interest groups based in Washington.

Many of those groups, who preferred one-stop shopping in Washington to currying favors in all the state capitals, campaigned for the 17th Amendment. So did urban political machines, which were then organizing an uninformed electorate swollen by immigrants. Alliances between such interests and senators led to a lengthening of the senators’ tenures. The Framers gave the three political components of the federal government (the House, Senate and presidency) different electors (the people, the state legislatures and the Electoral College as originally intended) to reinforce the principle of separation of powers.

Of course Mr. Will forgets that Madison and other founders wanted a Senate removed from state influence altogether. A balanced federal system was forced on the larger states by smaller states whose influence far exceeded their numbers and who could have killed the entire process if they didn't get what they wanted. Influential founders like Hamilton wanted to get rid of the states as political entities completely -- many wanted to reduce the states to administrative extensions of the federal government.

Whether that would have been a good or bad idea is besides the point, there was debate among the founders regarding the proper degree of control of the national government over the states. This was not a simple creature of the progressive movement.