Archive | Constitutional Theory

Three Important New Books on Constitutional Law

In this post, I briefly review three important new books on constitutional law that are likely to interest many of our readers. Here goes:

I. John McGinnis and Michael Rappaport, Originalism and the Good Constitution.

This book is a fascinating and innovative defense of originalism. Unlike some other originalists, who defend the theory because they claim it is the only feasible way to interpret legal texts, McGinnis and Rappaport argue that originalism is superior to living constitutionalism because it produces better consequences, in the form of legal rules that benefit more people over time. They contend that the original meaning is likely to have beneficial consequences because it was enacted by supermajority decision-making processes. On average, constitutional rules supported by supermajorities are likely to be better than those produced by judges using various living constitution methodologies of interpretation or those produced by normal political majorities.

A great strength of the book is that McGinnis and Rappaport do not shy away from difficult issues that some other originalists downplay or ignore. These include the reality that most blacks and virtually all women were excluded from the political processes that produced the original meaning of the most important parts of the Constitution, the claim that Brown v. Board of Education is incompatible with originalism, and the problem of how to deal with decades of accumulated nonoriginalist precedents. To each of these dilemmas, the authors provide insightful answers. For example, they point out that Brown would probably not even have been necessary had the federal government effectively enforced the original meaning of the 14th and 15th amendments between the 1880s and 1950s. Even if integrated public schooling was not in and of itself required by the original meaning, the protection of black voting rights and a wide range of civil rights clearly [...]

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How Best to Secede from a State

Some spirit of secession has spread across the land, with various areas in Maryland, Colorado, Texas, California and elsewhere discussing seceding from their states, because of political alienation arising from significant differences in values and preferences. I don’t take the political prospects of American secession movements too seriously, and assume their principal purpose is to gain leverage for their preferred policies within their state governments.

These secessionists have an advantage over those seeking outright separation from the Union – and a big disadvantage. On one hand, they don’t have to deal with the Confederacy/slavery baggage that tends to confound discussions of secession in the U.S. On the other hand, the Constitution, Art. IV, sec. 3 clearly forbids the creating a new state in the territory of an existing one without the latter’s consent, and the consent of Congress. That is a high bar, practically insurmountable.

But there may be an easier way for those who seek to secede from their state – instead of creating a new “51st” state, secede to join an existing state. The Constitution’s requirement of home-state and congressional consent only clearly applies to the creation of a “new state”:

… no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The language of the provision is a bit unclear. Does the second clause above (“nor any State be formed”) refer back to, and continue the discussion, of “new states”? That would mean that the provision does not govern the transfer of territory from one state to another. The interpretation probably depends on what it means for [...]

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My Balkinization Post On the Implications of Political Ignorance for Judicial Review

My final substantive Balkinization guest-blogging post about Democracy and Political Ignorance focuses on the implications of widespread political ignorance for judicial review and the “countermajoritarian difficulty.”

For those who may be interested, I addressed the related question of the implications of political ignorance for originalism, in this article. [...]

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Justice Scalia Repudiates “Fainthearted” Originalism

In a 1989 article, Justice Antonin Scalia famously described himself as a “fainthearted originalist,” By which he meant that he would sometimes vote against the outcome dictated by the original meaning of the Constitution if strong precedential, moral, or other considerations cut the other way. Co-blogger Randy Barnett wrote an interesting 2006 article taking Scalia to task for his faintheartedness. But in his recent interview with New York Magazine, Scalia has repudiated the faintheartedness he earlier embraced:

You’ve described yourself as a fainthearted originalist. But really, how fainthearted?
I described myself as that a long time ago. I repudiate that.

So you’re a stouthearted one.
I try to be. I try to be an honest originalist! I will take the bitter with the sweet! What I used “fainthearted” in reference to was—

Flogging, right?
Flogging. And what I would say now is, yes, if a state enacted a law permitting flogging, it is immensely stupid, but it is not unconstitutional. A lot of stuff that’s stupid is not unconstitutional.

It’s not clear how much of a change of heart this really is. Scalia did not say that he would now never vote against an originalist outcome for any reason. But it’s possible he now has a higher threshold for doing so than in earlier years.

UPDATE: Co-blogger Will Baude points out that Scalia previously repudiated fainthearted originalism in a 2011 interview with Marcia Coyle, recounted in her recent book The Roberts Court (pg. 165). [...]

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Erwin Chemerinsky on Originalism

UC Irvine Law School Dean Erwin Chemerinsky, one of the nation’s leading constitutional law scholars, recently posted a critique of originalism on the ACS Blog. Unfortunately, the points he makes are uncharacteristically weak. University of San Diego law professors Michael Ramsey and Michael Rappaport do a good job of explaining why. Chemerinsky’s most dubious point is his claim that a consistent originalist must believe that women are constitutionally barred from the presidency, because the Constitution uses the male pronoun “he” in referring to the president. As Ramsey notes, until very recently, male pronouns were commonly “used generically to include both men and women.” This usage may have been sexist. But it was standard practice as recently as my high school days in the late 1980s, and certainly was in the 18th century.

Obviously, as Ramsey also points out, there are serious criticisms of originalism; the theory has its share of weaknesses. But most of the points Chemerinsky raises are not among them. The one exception is his argument that consistent originalism requires rejection of Brown v. Board of Education. This is indeed an important potential weakness of the theory. However, as Rappaport and Ramsey note, Chemerinsky ignores various ways in which Brown could potentially be reconciled with originalism. I would add that these include theories advanced by liberal originalists like Jack Balkin and Akhil Amar, as well as conservatives such as Michael McConnell (whose originalist rationale for Brown is mentioned by Ramsey). [...]

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The Obvious But Underappreciated Point About Federal Power and Equality

Mike Rappaport has a post at the Liberty Law Blog making a seemingly straightforward but surprisingly underappreciated point: There is good reason to think that the Fourteenth Amendment’s equality requirement was not originally meant to apply to the federal government.

People frequently try to challenge various originalist views about equality by pointing to the actions of the Reconstruction Congress. Affirmative action must be permitted by the original meaning of the Fourteenth Amendment, they will say, because the Reconstruction Congress enacted race-conscious legislation. (Although actually it did so much less than is commonly supposed.) Or the original meaning of the Fourteenth Amendment must have permitted school segregation, they will say, because Congress did not stop segregation in the DC schools.

To be fair, some originalists are no better about this. Justices Thomas and Scalia both joined the Court’s opinion in Adarand, which imposed strict scrutiny on federal affirmative action, even though Justice Scalia had previously given some perfectly plausible reasons for thinking that the federal government has more freedom to engage in race-conscious decision making than states do. The Scalia/Thomas vote in Adarand could be justified on a certain attitude toward precedent, but they can be criticized for not explaining or justifying it.

Of course there is judicial precedent reverse-incorporating the equal protection clause against the federal government; but originalists often discuss original meanings that are currently in conflict with precedent. And there are even some quasi-originalist arguments justifying an equality requirement for the federal government. Co-blogger David Bernstein has discussed the Due Process Clause; Ryan Williams has discussed the Citizenship Clause; Gary Lawson, Guy Seidman, and Rob Natelson have discussed the backdrops of fiduciary law. These views might even be right (although I do not think so). But among originalists, they are the minority [...]

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Michael Dorf on the Social Practice of Originalism

Michael Dorf has an interesting blog post recounting some of his Constitution Day remarks:

Suppose that Americans decided tomorrow to abandon the Constitution and to organize our legal and political systems in some other way. . . . [N]o one disputes that it would be possible — as a matter of brute fact — for Americans to let go of the Constitution and replace it with something else. Put in terms we owe largely to H.L.A. Hart, what makes the Constitution the law around here is the social convention that we treat it as the law. The Constitution is like paper money. It has no inherent value. Its value derives from everybody’s willingness to treat it as valuable.

What’s true of the Constitution is also true about efforts to discern the Constitution’s meaning. Originalists — of all stripes — sometimes talk as though their method for interpreting and construing the Constitution is simply the only honest way to do the job. Yet everything depends on what that job is, and that is ultimately determined by the same sorts of conventions that make the Constitution law in the first place. And those conventions are themselves a product of the political system.

Originalism provides a nice illustration. . . .

Dorf goes on to argue that “originalism’s future looks dim” as a positive matter, because it is connected to the Republican Party and the Republican Party’s future looks dim, as does originalism’s place within it.

I pretty much agree with the blockquoted part of Dorf’s remarks — the Constitution is law only because of our shared social convention that it is law, and it makes sense to look at interpretive methodologies in a similar way. But I am more optimistic about originalism’s place in our shared social convention.

As a matter of [...]

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The Biggest Democracy’s Bigger Death Penalty

India has just sentenced four men to death in the infamous Delhi rape/murder case. India has apparently ended an eight-year moratorium on executions last year, greatly altering the global capital punishment map. At the same time, it also passed a new rape law, which would allow for execution in aggravated cases (not necessarily involving minors) even when no death results. Thus India’s new law goes even beyond what was recently forbidden by the U.S. Supreme Court in Kennedy v. Louisiana.

The problem with determining constitutional law in reference to a “international opinion” and practice is that it keeps changing, and not in a constant direction. In Roper v. Louisiana, the Court famously found the practices of other countries relevant to the constitutionality of the death penalty. A few years later, in Kennedy v. Louisiana, the Court held the death penalty could not be constitutionally applied to child rapists (having given up execution for adult rape a while back).

In Roper, the Court found the countries that had executed juveniles in recent decades to be a motley mix of African and Islamic-law countries. But India is the world’s largest democracy, with Anglo-American legal traditions.

The more interesting point here is not about death penalty jurisprudence per se, but about the underlying assumptions about the reality and inevitability of human moral progress that underpins much of constitutional law’s “evolving consensus” discourse. Unlike in biology, norms and morales can evolve back.

[Of course, the death sentence is far from the end of the line for the Delhi rapists. There will be appeals, pardon requests, and the possibility of a last-minute stay, like the Indian Supreme Court gave this week to a father who beheaded his five daughters in an argument with his two wives.] [...]

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The Colorado Recalls Explained

Yesterday voters in Colorado recalled two State Senators. One result was not a surprise, and the other is a shock. Of course the votes are Second Amendment victories for the right to arms, but more fundamentally, they are Fourteenth Amendment victories for Due Process of Law.

Former State Senate President John Morse represented Colorado Springs, plus the somewhat hipster mountain community of Manitou Springs. While El Paso County is strongly Republican, the interior city of Colorado Springs has been center/center-left for years. Senate District 11 was carved to make the election of a Democrat possible, and it worked. Voter registration in SD 11 is about a third, a third, and a third among Democrats, Republicans, and Independents, with Democrats having the largest third and Republicans the smallest. Morse barely won re-election in 2010, and might have lost if not for the presence of a Libertarian on the ballot.

As the conventional wisdom expected, voter turn-out was relatively low. Morse was recalled by  51-49%. The conventional wisdom of Colorado politics had been that Morse would probably lose, but that the election would be tight, and there was a chance that he might win. As things turned out, Republicans turned out greatly in excess of their registration percentage, and that was probably the difference.

Both sides had hard-working GOTV programs, but apparently the Democrats did not succeed in convincing enough of their less-enthusiastic voters to vote. This is in contrast to 2012, when Obama won the district by 21%.

Pueblo, the largest city in southern Colorado, delivered the result that stunned almost everyone. For more than a century, Pueblo has been a Colorado stronghold of working-class union Democrats. Like most of southern Colorado, it has a large Hispanic population. Obama won Senate District 3 by 19% in 2012. In 2010, Democratic Senator [...]

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Originalism and the Constitutionality of Military Intervention in Syria

At the Originalism Blog, Prof. Michael Ramsey, a leading academic expert on constitutional war powers, has an excellent post on the implications of the original meaning for the constitutionality of an attack on Syria without congressional authorization (quoting, in part, from a 2011 post he wrote during the debate over the Libya conflict):

Every major figure from the founding era who commented on the matter said that the Constitution gave Congress the exclusive power to commit the nation to hostilities. Notably, this included not only people with reservations about presidential power, such as James Madison and Thomas Jefferson, but also strong advocates of the President’s prerogatives, such as George Washington and Alexander Hamilton. As President, Washington on several occasions said that he could not undertake offensive military actions without Congress’ approval. Hamilton is especially significant, because his views on the need for a strong executive went far beyond those of his contemporaries. Yet Hamilton made it very clear that he read the Constitution not to allow the President to begin a war – as he put it at one point, “it belongs to Congress only, to go to war….”

The fact that our use of force is limited to air strikes should not matter. Limited wars were well-known in the 18th century (Britain and France fought a limited war at sea and in North America during the American Revolution). The U.S. fought two limited wars early in its history, against France beginning in 1798 and against Tripoli in 1801. So far as I know, every person commenting on these events at the time thought that Congress had to authorize any initiation of force, even limited naval attacks….

Thus the founding generation thought the Constitution reserved war-initiation power to Congress. How could this be, though, if Congress has only the power


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What Kind of a Theory is Originalism?

Mike Rappaport has an interesting post about how to justify originalism. In particular, Rappaport writes about what kind of a theory originalism is. Is it a “normative” theory (what kind of theory would produce good policy), an “interpretive” theory (what kind of theory actually assesses the meaning of the document) or what I’d called a “positivist” theory (what kind of theory best conforms to what the law is today)?

Personally, I am most sympathetic to the positivist arguments for originalism, but I’ve noticed that a lot of confusion in theoretical debates about originalism seems to stem in part from confusing these three different kinds of arguments. Rappaport apparently plans to write more posts about the issue, which I look forward to reading. [...]

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Suzanna Sherry on “Universally Condemned” Supreme Court Decisions

In her latest rejoinder in our debate about “judicial activism,” Prof. Suzanna Sherry helpfully clarifies her view on what qualifies as a “universally condemned” Supreme Court decision. This is important, because Sherry claims that we have more reason to fear excessive judicial passivity than excessive “activism” (which she defines as striking down laws or official actions) because all of the “universally condemned” decisions of the past have been ones that upheld laws that should have been struck down. For my previous post and links to earlier posts by Sherry, myself and Orin Kerr, see here).

Unfortunately, Suzanna to some degree vacillates between two different definitions of “universally condemned.” Initially, she describes these rulings as “cases that everybody today would decide the other way, whether or not they were writing on a blank precedential slate.” By that definition, as I argued in previous posts, such cases on her list as Bradwell v. State (1873) and Korematsu would not qualify, because leading jurists such as Richard Posner (who argues that Korematsu was right), and Antonin Scalia (whose logic suggests Bradwell should go the other way today only because intervening precedent he thinks is wrong) are willing to defend them. Later in the post, Suzanna suggests that “A universally condemned case… is one that is, in Ilya’s terms, universally viewed as morally abhorrent. It doesn’t matter that it has its legal defenders, because the opposite decision is also legally defensible.”

Notice that there is an important difference between Suzanna’s first definition and her second. A decision that some view as legally correct (and therefore would decide the same way today), might be universally denounced as “morally abhorrent” in the sense that virtually everyone today agrees that it upheld a deeply unjust law or policy. Bradwell (which upheld a state law excluding women [...]

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Rejoinder to Suzanna Sherry on the Case for “Judicial Activism”

Vanderbilt law professor Suzanna Sherry has written a thoughtful response to my and Orin Kerr’s critiques of her article “Why We Need More Judicial Activism.”

To briefly recap, Suzanna contends that courts should err on the side of excessive “activism” (defined simply as striking down laws or other official actions) rather than excessive restraint, because all of the handful “universally condemned” Supreme Court decisions she identifies fall into the category of cases where the Court upheld laws that it should have struck down. Unlike Orin, I agree with Suzanna’s conclusion, but have objections to her methodology. In particular, I argued that it is a mistake to evaluate 200 years of judicial review based solely on a few of the Courts’ very worst decisions. I also suggest that Suzanna was inconsistent in applying her criteria for determining which cases are “universally condemned.”

Suzanna has responded to my second criticism, though not my first:

Ilya… doesn’t think I’ve picked the right cases. As a general response, I would repeat my response to Orin, and suggest that the trend towards rights-expansion supports my argument whether or not we quarrel over particular cases.

But I probably should be more careful about my definitions. When I talk about universally condemned cases, I mean cases that almost everyone wishes had come out the other way or would want the Court to decide otherwise today.

So I don’t much care whether Korematsu or Bradwell applied precedent correctly or reached a result that seemed dictated by the (then-known) “facts.” We are ashamed of the government’s actions in those cases, and we would be prouder if we could point to some government institution that stood up for what’s right.

As for Justice Scalia, I find it hard to believe that even he would uphold a law banning women from


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Suzanna Sherry on the Case for “Judicial Activism”

Vanderbilt law professor Suzanna Sherry recently posted an interesting article on “Why We Need More Judicial Activism”, which led to a symposium at The Green Bag, and a critique by co-blogger Orin Kerr. I agree with Sherry’s main point: that we need more judicial review, not less, and that historically federal courts have erred more often and more seriously by upholding laws that should have been invalidated than by striking down laws that should have been in place. At the same time, I am dubious about her particular reasoning.

I. How Should We Evaluate the Costs and Benefits of Activism?

In my view, courts tend to err on the side of upholding too many laws because of the incentives created by the political system in which they operate. Federal judges are appointed by the president and confirmed by the Senate. This diminishes the likelihood that they will want to strike down laws that enjoy strong support from these other political elites, or from the general public that elects them. In addition, federal judges depend on the other branches of government to enforce their decisions, and they know that enforcement will be weak or even nonexistent if they make rulings that offend other political elites or public opinion too much. These constraints are particularly likely to deter courts from striking down federal laws; but they also make it less likely that judges will strike down state laws that enjoy substantial support at the federal level. In addition, I think the historical harm caused by decisions that erroneously upheld laws is vastly greater than that caused by mistaken decisions that cut the other way. Obviously, this conclusion (which I won’t try to defend in detail here), rests on contestable judgments about both constitutional interpretation and the real-world effects of various [...]

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Can Lawyers Ascertain the Meaning of the Living Constitution?

I agree with most of what co-blogger Randy Barnett says in his recent post responding to critics who claim that lawyers and judges cannot determine the original meaning of the Constitution. But I think we should also pay attention to the opposite question of whether lawyers can figure out the meaning of the living Constitution.

The main alternative to originalism, after all, is some form of living constitution theory. People who claim that originalism is too difficult to apply often implicitly assume that applying living constitution theory is, by contrast, relatively easy. Much of the time, that is not so. Consider, for instance, the famous Carolene Products claim that courts should give special protection to the rights of “discrete and insular minorities.” It is often hard to figure out which groups really are discrete and insular minorities, and which policies discriminate against them or inflict disproportionate harm on them. Bruce Ackerman’s classic article “Beyond Carolene Products is a good discussion of some of these problems.

Or consider John Hart Ely’s famous theory that judicial review should be “representation-reinforcing,” by striking down laws that seriously undermine people’s ability to participate in the democratic process effectively. Justice Stephen Breyer similarly argues that judicial review should promote democratic participation. Often, figuring out what is or is not representation-reinforcing turns out to be a complex question that requires understanding of empirical social science and normative democratic theory to answer intelligently. There are serious representation-reinforcement rationales for some forms of judicial review that Ely and Breyer consider to be clearly anti-democratic. I give some examples here.

Other forms of living constitution theory have similar complexities. Even if your approach is to simply rely on precedent and try to build on its logic when novel cases arise, there are going to significant challenges. As [...]

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