I am honored to be a part of this debate on the Bill of Rights with such accomplished and knowledgeable scholars. The three responding essays by Dr. Bowling, Professor Erler and Professor Ramsey provide keen insights on constitutional law and history. Indeed, the historical discussions in the three essays are more detailed than is my lead essay. And for this, I give my highest compliments to the responders. Their discussion demonstrates the vital importance of history in constitutional interpretation. More than just demonstrating the importance of history, however, the responders also reveal the kind of inquiry and perspective needed for an…
The Constitution’s Structural Limitations on Power Should Be the Focus of the Bill of Rights
Ever since the Warren era of expansive individual rights jurisprudence, leading to the Court’s substantive due process jurisprudence culminating in Roe v. Wade, jurists, as well as the public at large, have grappled with the issue of judicial activism in the individual rights area. At the same time, by the time of the Warren Court, constitutional law had evolved to the point of denying the courts any meaningful role in enforcing the limited government principles incorporated in the Constitution. This essay, recognizing the continuing controversy over the Court’s individual rights jurisprudence, attempts to reconcile these two different strains in constitutional…
Responses
There is much to commend Professor Garry’s essay. He is eminently correct in saying that the Constitution contemplated a limited government. Whether it adhered to a “limited government model” is a different issue. What is more than curious, however, is Professor Garry’s statement that the “the overall scheme of the original Constitution” is primarily concerned with…
Patrick Garry’s essay “The Constitution’s Structural Limits on Power Should Be the Focus of the Bill of Rights” contains many valuable insights. In particular, it re-affirms the proposition – lost for many years but perhaps gaining some new currency – that the so-called “structural” provisions of the Constitution are, and were intended to be, not…
The revolution of 1787-1791 overthrew a constitution that strictly limited the federal government in favor of one with general welfare and necessary and proper clauses that allowed the federal government to absorb state powers over time. It also tossed out the dogma of separation of powers in favor of a more sophisticated balance of powers.…
