Archive | Constitutional Theory

Conservatives Adopt Progressive Priorities

Progressive constitutional doctrine underwent some interesting changes in the middle of the twentieth century. One was the return of liberty-based concerns in jurisprudence, and the repudiation of some of the more extreme Progressive democracy-based legal decisions. This is most notable in West Virginia Bd. of Ed. v. Barnette, which held that school children could not be compelled to salute the flag, and overruled Minersville School District v. Gobitis only three years after the earlier decision had allowed schools to require this. Then in cases like Griswold, the Court recognized a right to privacy which ultimately barred the state from intruding into the bedroom. Justifying this right to privacy was difficult for Progressives, since doing so ran counter to democracy. Witness the fight between Justices Douglas and Black in Griswold. Black rightly argues that Douglas is reviving Lochner, but Douglas tries weakly to evade that accusation by taking shelter in weird language of “emanations” and “penumbras.” But the trend had begun of liberal justices reinjecting liberty considerations into some aspects of their jurisprudence, ultimately a healthy development, whatever its shortcomings.

What’s more interesting to me is how conservatives responded by making the Progressive theory of judicial restraint their own. They saw decisions like Griswold as disruptive to traditional values and social structures, and as rooted in abstract conceptions of justice of which good Burkean gradualists are always suspicious. But that gradualism combined with the primacy of democracy meant moral relativism. [...]

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How Rational Basis (D)evolved Into A Get Out Of The Constitution Free Card

I’ve said that the chief accomplishment of Progressive constitutional theory was to prioritize democracy over liberty as the central constitutional value. A consequence of this shift was the creation of a general theory of “judicial restraint,” which was enshrined into constitutional law in the New Deal era. There’s one aspect of this story that I didn’t have space to get into in The Conscience of The Constitution, but which is particularly interesting and important—and I think it’s something VC audiences will appreciate. [...]

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Holmes Helps Americans Go To Hell

The clash between the classical liberalism of the Constitution—which holds that individual rights are primary, and democracy is secondary, and limited by individual rights—and the “wolf’s view” of politics—which holds the power of the majority as primary, and sees rights as privileges given to the individual by the majority—persisted into the twentieth century. Although the Court had dealt the death blow to the Privileges or Immunities Clause, it did continue, in a limited way, to protect individual rights under the Due Process of Law Clause of the Fourteenth Amendment. This was through the doctrine now called “Substantive Due Process.” (In Chapters 3 and 4 of The Conscience of The Constitution, I explain why Substantive Due Process is the correct reading of the Due Process Clause—notwithstanding the mountains of scorn heaped on it by both left and right. But I won’t repeat that here, since I touched on the issue when I last guest-blogged here, and also wrote about it at Cato Unbound two years ago.)

The focus of the clash was never so much the concept of “substantive due process”—which was almost universally accepted until the New Deal era—as it was over the nature of sovereignty and the relationship between liberty and democracy. Those who held that government power was primary, and individual rights only privileges extended by the state never went away; on the contrary, by the opening years of the twentieth century, they had made significant advances.

The intellectual history here has yet to be fully explored—and is beyond the scope of my book—but I suspect that the general outlines of the story are these: the intellectual class of the Confederate cause, having been stripped by the Fourteenth Amendment of eligibility for office, and now no longer brash young men, moved into the universities, [...]

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The Liberty Constitution, Or, What About Slavery?

In my first post, I said that the basic premise of the Constitution is that people are fundamentally free, and that political institutions are created through that freedom, and are legitimate only insofar as they respect that freedom. The central value of the Constitution, I argue, is the liberty that the Declaration of Independence proclaims as the birthright of all people.

But can that be what the founders thought? After all, they lived with the institution of slavery, which obviously violated these principles. Can the founders have meant the Constitution to embody a classical liberalism that they were simultaneously flouting? Today it’s common to hear people say that the Declaration’s reference to equality actually only meant white men; that the Constitution was written only for white men—because the authors of these documents owned slaves. There’s one person who comes to mind who believed that the founders’ personal ownership of slaves was dispositive in interpreting the Constitution they wrote: Roger B. Taney. The fact that Jefferson and others owned slaves and did not immediately free them was, Taney asserted in Dred Scott, sufficient to show that they did not mean all men when using the phrase “all men” in the Declaration, and did not mean to include black people among the “people of the United States” referred to in the Constitution. Abraham Lincoln showed at tedious length in his Cooper Union speech how flimsy this argument really is, and it is tragic to see that many people today who consider themselves friends of equality and liberty—including even Justice Thurgood Marshallendorse Taney’s shoddy Dred Scott reasoning.

Yet we can’t understand Dred Scott unless we understand that Taney was hoping his decision would deal the death-blow to a rising tide of anti-slavery constitutional thinking—a strain of thought that seems to be largely [...]

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The Wolf Amendment

Prof. Kerr asks a good question, one that touches on a point that differentiates my argument from that of some of my allies, and one that gives rise to another point that I think strengthens my view. How should a judge act if the American people were to ratify a constitutional amendment that explicitly adopted existing precedent and rejects the Declaration as a guide for constitutional interpretation? In such a case, I would argue that judges would be bound to comply with that amendment—with certain important exceptions.

If the Constitution were amended to declare, say, that “commerce” in Art. I sec. 8 includes economic activity that has the potential to interfere with the national economy when aggregated, then that would ratify existing practice and would be legitimate. In fact, I advocate something like this, myself. I believe that a constitutional amendment ought to be proposed to constitutionalize things that I think are not constitutional—various parts of the regulatory welfare state, for example. Were such an amendment proposed, I have no doubt that it would pass overwhelmingly—although I would vote against it. But even knowing I’d be outvoted, I would favor such an amendment being proposed and ratified, because it is better to have the Constitution clear on these things. Such an amendment would give constitutional legitimacy to the welfare state which it currently lacks—and would rectify the problem we now have in our constitutional law, where judges strain and force the text’s meaning (e.g., the commerce clause) or ignore whole swaths of it (e.g., the public use clause, the due process clause, the privileges or immunities clause) in order to rationalize the existence of institutions that are, in fact, unconstitutional. It is because judges bend over like Chinese acrobats to find some way to [...]

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The Conscience of The Constitution: An Introduction

It’s great to be back guest-blogging at The Volokh Conspiracy. And it’s well-timed, because just the other day , Prof. Volokh quoted one of my favorite passages from Lincoln, one I use on the first page of The Conscience of The Constitution.

The theme of my book is that the clash of these two conceptions of liberty—the right of the individual to be free, and the alleged right of some people to tell others how they may live—sets the background for understanding many of the most important conflicts in constitutional law. I argue that the central value of the U.S. Constitution is to protect individual liberty—the “sheep’s view” of freedom—and not, as the consensus of today’s lawyers, judges, and law professors seems to hold, the “wolfish” notion that people have a basic right to control the lives of others. I argue that the primacy of liberty was the basic premise of the classical liberalism that lies at the foundation of American constitutional system—that is articulated in the Declaration of Independence—and that ought to guide our interpretation of the nation’s fundamental law. I call this the “conscience” of the Constitution.’

The American founders held that people are inherently free—that is, no person has a basic entitlement to dictate how other people may lead their lives. Although today it’s common for intellectuals to dismiss the notion of natural rights as mysticism or emotionalism, it is actually a sound philosophical position. People are “created equal” in the sense that they possess their own selves (and can’t give them up; hence “inalienability”). Given that initial position of individual freedom, there must be some good reason for limiting freedom. This entails government by consent—we have the right to a say as to how we are governed—but democracy is only an instrumental good, serving the more [...]

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Welcome John McGinnis and Michael Rappaport!

I am very glad to see that John McGinnis and Michael Rappaport are going to be guest-blogging here about their excellent new book, Originalism and the Good Constitution. I have some disagreements with their analysis. But it is nonetheless one of the best defenses of originalism in a long time. I reviewed the book in this post, back in October.

Readers interested in originalism and constitutional theory should also check out McGinnis and Rappaport’s many fascinating blog posts at the Liberty Law blog. [...]

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Is Originalism the Law?

One question that quite fascinates me is whether the original meaning of the Constitution is “the law” — in the sense that it describes the positive law of the United States. Mike Rappaport has a pair of posts exploring this question: here’s the first, here’s the second. Ultimately, he concludes that originalism is not against the law, but he remains skeptical that originalism is the law:

I am open to the argument for originalism being the law, but at present find the arguments undeveloped. If one day someone makes a persuasive argument, I would, of course, welcome it. But, at present, I believe the best argument is based on the normative soundness of the Constitution and the problems with judicial updating of the Constitution …

I have been working on developing an argument like this (as has my friend Steve Sachs) but I entirely agree with Rappaport that the current work on this is extremely underdeveloped. [...]

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My New Article on “The Borkean Dilemma: Robert Bork and the Tension Between Originalism and Democracy”

My new article, “The Borkean Dilemma: Robert Bork and the Tension Between Originalism and Democracy,” part of a University of Chicago Law Review symposium on the work of Judge Robert Bork, is now available on SSRN. Here is the abstract:

As a constitutional theorist, the late Judge Robert Bork was best known for his advocacy of two major ideas: originalism and judicial deference to the democratic process. In some cases, these two commitments may be mutually reinforcing. But Judge Bork largely failed to consider the possibility that his two ideals sometimes contradict each other. Yet it has become increasingly clear that consistent adherence to originalism would often require judges to impose more constraints on democratic government rather than fewer. The tension between democracy and originalism is an important challenge for Bork’s constitutional thought, as well as that of other originalists who place a high value on democracy. We could call the trade-off between the two the “Borkean dilemma.”

Part I of this Essay briefly outlines Bork’s well-known commitments to both originalism and judicial deference to the democratic process. Part II discusses his failure to resolve the potential contradiction between the two. In Part III, I explain why the tension between originalism and deference has become an increasingly serious problem for originalists and briefly consider some possible ways to resolve, or at least minimize, the contradiction. Some of these theories have potential, especially the idea that many types of judicial review might actually promote rather than undermine popular control of government. Ultimately, however, none of them comes close to fully resolving the conflict between originalism and democracy. The consistent originalist will likely have to accept substantial constraints on democracy. The consistent adherent of deference to the democratic process will have to reject judicial enforcement of major parts of the

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University of Chicago Law Review Symposium on the Work of Judge Robert Bork

The University of Chicago Law Review recently posted its online symposium on the work of Judge Robert Bork, who passed away last year. The symposium includes essays by several prominent legal scholars, including Steven Calabresi, Bradford Clark, Richard Epstein, John Harrison, Kurt Lash, John McGinnis, and John Yoo. My own contribution, “The Borkean Dilemma: Robert Bork and the Tension Between Originalism and Democracy,” is available here. Here is a summary adapted from the Introduction:

As a constitutional theorist, the late Judge Robert Bork was best known for his advocacy of two major ideas: originalism and judicial deference to the democratic process. In some cases, these two commitments may be mutually reinforcing. But Judge Bork largely failed to consider the possibility that his two ideals sometimes contradict each other. Yet it has become increasingly clear that consistent adherence to originalism would often require judges to impose more constraints on democratic government rather than fewer. The tension between democracy and originalism is an important challenge for Bork’s constitutional thought, as well as that of other originalists who place a high value on democracy. We could call the trade-off between the two the “Borkean dilemma.”

Part I of this Essay briefly outlines Bork’s well-known commitments to both originalism and judicial deference to the democratic process. Part II discusses his failure to resolve the potential contradiction between the two. In Part III, I explain why the tension between originalism and deference has become an increasingly serious problem for originalists and briefly consider some possible ways to resolve, or at least minimize, the contradiction. Some of these theories have potential, especially the idea that many types of judicial review might actually promote rather than undermine popular control of government. Ultimately, however, none of them comes close to fully resolving the conflict between originalism and

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The Recess Appointments clause: Amicus brief on original meaning based on State practices

As VC readers know, an all-star cast of constitutional legal scholars, including three Volokhians, submitted an amicus brief in NLRB v. Noel Canning. Blog posts about that brief are here (pro forma sessions), here (“recess” and “session”) and here (“happen”). That brief focuses mainly on the text of the Constitution and interpretive practice, especially early practice. (The VC co-authors were William Baude, Dale Carpenter, and Eugene Kontorovich, plus former VC writer Michael McConnell.)

Another amicus brief in the case address the contemporary legal meaning of the words and phrases in the Recess Appointments Clause. The main sources for information about this are the records of the state legislatures during and before the ratification period. These sources clearly show that a “recess” took place only between the formal sessions of a legislative body. For a vacancy to “happen” during the recess, the vacancy must first arise during the recess. If a vacancy arises while a legislature in session, and the office is still vacant when the legislature goes into recess, the vacancy did not “happen” during the recess.

This originalist amicus brief was filed on behalf of the Independence Institute. The brief is based on the research contained in the article The Origins and Meaning of ‘Vacancies that May Happen During the Recess’ in the Constitution’s Recess Appointments Clause, by my Independence Institute colleague Rob Natelson. [Harvard Journal of Law and Public Policy, Vol. 37, No. 1 (2014), forthcoming.]

Thanks to the Polsinelli firm, and to attorneys Sean R. Gallagher, Bennett L. Cohen, and Jon R. Dedon for writing the brief. The Independence Institute also worked with the Polsinelli firm this summer, in an amicus brief for a cert. petition in Bakoss v. Certain Underwriters at Lloyd’s of London (arguing state law, rather than federal common law, should supply the definition of “arbitration” in the [...]

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Posner on Lochner (UPDATED: Posner versus Posner?)

While I greatly admire Judge Richard Posner’s amazing corpus of work, I’ve noticed in recent pieces that he has a tendency to state propositions as indisputable, absolute truths when they are at least disputable, and sometimes flat wrong. Here is an example.

Posner writes in the California Law Review:

The majority opinion in Lochner is easily forgettable yet well worth rereading in this connection. I quote a typical paragraph:

It is manifest to us that the limitation of the hours of labor as provided for in this section of the statute under which the indictment was found, and the plaintiff in error convicted, has no such direct relation to and no such substantial effect upon the health of the employé, as to justify us in regarding the section as really a health law. It seems to us that the real object and purpose were simply to regulate the hours of labor between the master and his employé (all being men, sui juris), in a private business, not dangerous in any degree to morals or in any real and substantial degree, to the health of the employés. Under such circumstances the freedom of master and employé to contract with each other in relation to their employment, and in defining the same, cannot be prohibited or interfered with, without violating the Federal Constitution.

This is naked policy analysis; nothing in the Constitution, or in precedents that commanded respect, suggests that states can’t be allowed to place a ceiling on hours worked unless justified by a concern with workers’ health. The opinion, which I am tempted to quote in full, is so shallow that Holmes’s one-page dissent says everything that needs to be said to unmask any pretense that the majority was engaged in something that might be called legal analysis.[End

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Richard Posner on the Rise and Fall of Judicial Deference

At the JOTWELL site, Emory law professor Charles Shanor reviews an important article by Judge Richard Posner on the rise and fall of “Thayerian” judicial deference to legislatures. Posner traces the history of James Bradley Thayer’s famous argument (first developed in the 1890s) that judges should only strike down a statute if its unconstitutionality is “so clear that it is not open to rational question.” In practice, this would mean that virtually any controversial law would be upheld, since it is almost always possible to raise a “rational question” about the matter, especially in a world where we have multiple, widely divergent theories of constitutional interpretation.

As Posner explains, Thayerian deference enjoyed considerable popularity among Progressive and New Deal jurists from the 1910s to the 1940s, but gradually waned thereafter, for a variety of reasons. Today, it has very little support among either liberal or conservative jurists and constitutional theorists, to say nothing of libertarians. I think Posner is also right to argue that Thayerian deference lost popularity at least in part because it is an intellectually weak theory.

One implication of the decline of Thayerianism is that it makes little sense for today’s overwhelmingly non-Thayerian jurists and legal scholars to hurl accusations of “judicial activism” at each other. In most such debates, neither side actually favors across-the-board deference to the legislature. When they denounce decisions they dislike as “activist,” they usually just mean that the decisions are unsound – not because they are striking down a law, but because they rely on incorrect reasoning. In such a situation, “judicial activism” is not an analytically useful concept. If “activist” means that the decision in question struck down a law, that tells us very little about its correctness. If “activist” is just a synonym for “wrong,” it is superfluous.

Instead [...]

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Does the original meaning of the First Amendment protect a right of privacy in campaign contributions?

My Independence Institute colleague Rob Natelson examines the question from an originalist perspective, in a new working paper published on SSRN. His analysis is summarized in this blog post on his website. In brief: political contributions are best analyzed as a form of Freedom of the Press. The Freedom of the Press includes the right to anonymous authorship. The right can be breached in cases of abuse, as when a civil libel plaintiff needs to discover the identity of the person who libeled him.

Some readers may disagree with the first part of Rob’s analysis, but the point about the right to exercise the Freedom of the Press anonymously seems indisputably correct. Rob extends the anonymity argument far beyond the points made by Justice Thomas in his Citizens United concurrence. [...]

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A Market for State Borders

Following up on my earlier post on parts of a state seceding to join another state, I’d like to call attention to a neat article by Joseph Blocher, coming out in the University of Pennsylvania Law Review, entitled “Selling State Borders.” It suggests such political redrawing can be accomplished through sales between states, and shows how common such deals already are. [...]

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