I have been asked for my response to Sanford Levinson’s plea for a Jeffersonian approach to constitutionalism that refuses to treat the document as the Ark of the Covenant and treats it as a social arrangement that should be subject to intelligent revision that take into account its failures, which become ever clearer with over time. I would fight against this general approach with every fiber of my being. It is not because I think that the current state of affairs is ideal, when manifestly it is not. It is rather that I think that any revision of the document will…
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.
Mike Rappaport’s Feb. 7 post flagged a New York Times piece by Adam Liptak, headlined “’We the People’ Loses Appeal With People Around the World.” The article summarized a study by David S. Law and Mila Versteeg, purporting to document the waning global influence of the U.S. Constitution since the 1980s. To summarize today’s and tomorrow’s post: the authors are probably right. But the picture is a great deal more complicated than their study (let alone Liptak’s summary) suggests. Moreover, and pace Liptak’s snarky subhead (“The Constitution has seen better days”), there’s no reason to worry.
Mike Ramsey, over at the Originalism Blog, makes reference to originalism for state constitutions. One state constitution that appears to receive an originalist interpretation is the Utah Constitution. Over the summer, I gave a talk on originalism, derived from this article, to the Utah Bar Association, and was pleased to discover that the Utah Supreme Court appears to have adopted an originalist methodology for interpreting its Constitution. Here is an excerpt from the Supreme Court decision in American Bush v. City of South Salt Lake, 140 P.3d 1235 (2006): The scope of Utah's constitutional protections “may be broader or narrower than”…
Philip Hamburger's essay is a simple, elegant, truthful, and noble statement of the judicial role by one of this country's leading legal historians. Over the years, Professor Hamburger has been distinguished for the fearless and wise way he has approached our legal and constitutional traditions, and his ability to cut through currently popular academic cant. It sometimes seems that for most American legal academics legal and constitutional history begins in 1954, with the United States Supreme Court's unanimous decision in Brown v. Board of Education, when the Court declared, with alarmingly little basis in Constitutional law, that it had the…
In response to: Judicial Office and the Liberty Protected by Law
Ilya Somin reconsiders federalism and the protection of individual freedoms.
In Bond v. United States, an otherwise unremarkable recent Supreme Court ruling, a unanimous Court emphasized a profoundly important point: that “[f]ederalism secures the freedom of the individual” as well as the prerogatives of state governments. In addition to setting boundaries “between different institutions of government for their own integrity,” constitutional federalism also “secures to citizens the liberties that derive from the diffusion of sovereign power.”
The case has important implications for both the immediate future of constitutional law and deeper issues of constitutional theory. For the near future, the decision suggests that the Court is not likely to reject federalism claims merely because they seem to be motivated by a desire to protect individual freedom rather than an interest in state autonomy for its own sake. More broadly, the case focuses attention on the ways in which limits on federal government power really do promote individual liberty.
Bond arose out of a tragic domestic situation. Philadelphia resident Carol Anne Bond discovered that a close friend of hers was pregnant, and that Bond’s husband was the father. In an effort to get revenge on this woman, Bond allegedly placed dangerous chemicals in areas the other woman was likely to touch, with the result that the latter got a burn on her hand. Prosecutors charged Bond with violating a federal law that forbids the use of chemicals that can cause death or serious injury to persons or animals, except for a “peaceful purpose.” Bond’s lawyers contended that this law is unconstitutional because it violates the Tenth Amendment, which holds that “the powers not delegated” to the federal government by “the Constitution” are “reserved to the States… or to the people.” Only states, Bond argued, have the authority to regulate criminal behavior of this type.
The federal government claimed that Bond is not allowed to raise this argument because the Tenth Amendment’s constraints on the scope of congressional power are intended to protect state governments, not individual citizens. The Supreme Court, as we have seen, decided otherwise because federalism protects individual freedom as well as state sovereignty.