Constitutional Interpretation

January 31, 2014|Constitutional Interpretation, Federalism, inequality, Peter Lawler, Randy Barnett, Tyler Cowen

Clarifying the State of Our Liberty

I am grateful for to Peter Lawler for his interesting comment on my post. I agree with much of it. My focus in The State of Our Liberty—an implicit response to the State of the Union– was on the effects our government is having on liberty, which I think are generally not happy. Lawler believes, and I do as well, that technological developments may nevertheless help foster liberty.

Indeed, I am even somewhat more optimistic than Lawler in this regard, because I do not believe technology poses as much risk to equality as he appears to think. As I have written on this blog, technological innovation helps equality in important respects, because innovations create a pool of cheap and free goods that everyone soon enjoys. Middle class people and the very rich have more equal lives today than did the middle class and very rich in previous times, because both spend an increasing amount of time on the internet and their experience there is not dissimilar. And innovations like smart phones go down the income scale much more rapidly than do previous innovations like refrigerators.

Moreover, the social media of today equips a much broader group of people to spend a large part of their lives writing and otherwise expressing themselves through blogs and even Facebook postings. As Clive Thompson has written in his excellent book, Smarter than You Think, the personal creativity enabled by social media dwarfs that of the letter writing of old. Thus, I do not agree that even a robotic future will relegate people to lives of passive entertainment, which appears to be the view Peter Lawler ascribes to Tyler Cowen. They will be able to follow their passions in ways that are inexpensive and largely free.

September 5, 2012|Constitutional Interpretation, Obamacare, Ronald Dworkin

Constitutional Interpretation as Fairness: Ronald Dworkin and the Axioms of Obamacare

by Bradley C. S. Watson|Leave a Comment

Ronald Dworkin, a liberal supernova who has long radiated more heat than light, seems to be fading faster than we knew. In a recent piece in the The New York Review of Books (“A Bigger Victory Than We Knew,” August 16, 2012) he embraces a liberalism so platitudinous it would make even his academic colleagues blush, if he taught anywhere other than a top-10 American law school. For him, the Affordable Care Act satisfies “a fundamental requirement of political decency.” Obamacare’s baffling and formidable mixture of mandates, regulations, and taxes can, it seems, be derived almost syllogistically from a conception of justice as fairness, though Dworkin also claims that the scheme “is less efficient and rational than a single-payer system like Great Britain’s” (something a legal philosopher oughta know).

May 13, 2012|Constitutional Interpretation, Originalism, Precedent

Is Precedent Consistent with Originalism? A Response to Some Comments

by Mike Rappaport|10 Comments

My post on The Greater Originalist, which argued that following precedent was consistent with originalism, prompted some comments by Andrew Hyman and Tim Sandefur. Here I will briefly articulate my theory of constitutional precedent (developed with John McGinnis) and then respond to their questions.

My view of precedent is as follows. First, I argue that the Constitution itself allows for precedent. In particular, the original meaning of the Constitution contemplates common law precedent rules that are binding on judges. But the Constitution also allows Congress to enact precedent rules that would displace the common law rules.

Second, I argue on policy grounds that the best precedent doctrine would be an intermediate one that follows the original meaning except in limited circumstances when the benefits of precedent outweighs the benefits of following the original meaning. This doctrine, however, should employ rules to identify the situations when precedent should be followed, and should not allow judges to employ a balancing test to determine whether to employ precedent.

One of the precedent rules that I defend would have judges follow precedents that have the same degree of support that a constitutional amendment would require. In that situation, the precedent would have many of the characteristics of a constitutional provision. Of course, a constitutional amendment would be superior, because it would have been actually enacted. But overturning precedents that have such strong support also has serious costs.

March 8, 2012|Constitutional Interpretation, Constitutionalism, Federalist 14, Originalism, Thomas Jefferson

A Jeffersonian Proposal for the Constitution

by Sanford Levinson|6 Comments

There are two basic approaches one can take to thinking about the United States Constitution. One is to treat it is a given, whether that refers only to the specific document proposed and ratified in 1787-88 with subsequent textual amendments or to the body of case law developed over the past two centuries. In any event, the lawyerly task with regard to a constitution that is treated as already existing is to engage in debates about its interpretation.

What, for example, are the powers of the President? One might focus on the difference in language between Article One (“all powers herein granted”) and the more laconic language of Article II (“the executive power”) or on the meaning of the Commander-in-Chief Clause; or, commonly, one might parse at length various opinions issued by the Supreme Court over the years, including, of course, Justice Jackson’s now-canonical opinion in the Steel Seizure Case, with its “three-part test” elaborating the basic structure of presidential authority. There are, of course, literally thousands of other possible examples.

January 31, 2012|

The Usefulness of Constitutional Law

by Nelson Lund|2 Comments

In response to: The Uselessness of Constitutional Law

As usual, I find myself charmed by Mike Paulsen’s provocative style, which is on full display in The Uselessness of Constitutional Law. And, as usual, I agree with much of what he says. He is certainly right, for example, that constitutional law should not be taught in the manner of a bar preparation course. I also agree that constitutional law should not be part of the first year curriculum, where it is liable to be a misleading distraction at best. Paulsen’s most significant claim is that constitutional law instructors, on the courts and in the academy, are mostly corrupters of easily…

Not Contrarian Enough: A Response to Michael Stokes Paulsen’s Critique of Contemporary Courses on Constitutional Law

by Sanford Levinson

January 31, 2012|

Not Contrarian Enough: A Response to Michael Stokes Paulsen’s Critique of Contemporary Courses on Constitutional Law

by Sanford Levinson|1 Comment

In response to: The Uselessness of Constitutional Law

I agree with approximately 90% of Michael Stokes Paulsen’s remarks on the “uselessness of constitutional law,” so anyone looking for a defense of the professoriate to teach constitutional law will be sorely disappointed. That leaves the 10% difference between us, to which I shall turn presently. First, though, I want to take a few lines to underscore the points where we agree. I am not sure the right question is why we teach constitutional law at all in law schools. After all, we teach lots of courses that are fairly esoteric and/or of interest primarily to the professors who teach them. …

The Usefulness of Constitutional Law

by Nelson Lund

January 31, 2012|

The Uselessness of Constitutional Law

by Michael Stokes Paulsen|13 Comments

Why do we teach “Constitutional Law” in law schools? What is the point, really? Do we teach Constitutional Law in order to teach legal methodology and sound legal reasoning? (That question probably begs laughter.) Or is it to teach knowledge deemed essential for “citizenship” in some sense, and especially for lawyer-citizenship – kind of a “Civics for Lawyers” rationale?

Clarifying the State of Our Liberty

Constitutional Interpretation as Fairness: Ronald Dworkin and the Axioms of Obamacare

Is Precedent Consistent with Originalism? A Response to Some Comments

A Jeffersonian Proposal for the Constitution

The Usefulness of Constitutional Law

In response to: The Uselessness of Constitutional Law

More Responses

Not Contrarian Enough: A Response to Michael Stokes Paulsen’s Critique of Contemporary Courses on Constitutional Law

Not Contrarian Enough: A Response to Michael Stokes Paulsen’s Critique of Contemporary Courses on Constitutional Law

In response to: The Uselessness of Constitutional Law

More Responses

The Usefulness of Constitutional Law

The Uselessness of Constitutional Law

Responses

Not Contrarian Enough: A Response to Michael Stokes Paulsen’s Critique of Contemporary Courses on Constitutional Law

The Usefulness of Constitutional Law

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