Gordon Lloyd and Steve Ealy provide considerable material to ponder. The gist of their argument seems to be that rather than a Progressive political culture centered on quadrennial presidential elections and a governmental system featuring a considerable policy-making authority for both the president and the Supreme Court, we ought to prefer a “Madisonian” system. While sympathetic toward, and indeed enthusiastic for, their criticisms of our current political culture, I demur from their ascription of their views to James Madison. Their Madison is not Madison as I understand him, and I prefer the real thing. Consider the Lloyd/Ealy account of Madison’s response…
It is subtle, or at least ironic, to use a term—“liquidate”—that has lost its original meaning to initiate a discussion of constitutional interpretation. Today the word still has a legal usage, referring to the payment and settlement of debts. The OED finds that meaning in English publications at the time that Madison and Hamilton employed…
Gordon Lloyd and Steve Ealy make a compelling case for liquidation, what they call “Originalism for the Living Generation,” as the most Madisonian means of settling constitutional meaning. Grounded as it is in Madisonian text and example, from The Federalist to the bank veto, the superb account Lloyd and Ealy offer is difficult to assail…
Alan Taylor, a historian from the University of Virginia, has written an op-ed in the New York Times arguing that Americans wrongly disparage Donald Trump and Hillary Clinton in comparison to the Founders. Instead of recognizing their similarities to this year’s candidates, Taylor says that we treat the Founders as mythical giants. But, according to Taylor, they were as divided and divisive as these nominees. And the Founders tolerated a society with less sound norms than our own. Moreover, we should just accept that Founders did not resolve the “core principles of our government,” leaving it up to us to fight about them.
This op-ed is misleading and flawed in many respects. It exaggerates the differences in principle as opposed to politics among the Founders. It does not give credit to the Founders’ principles for being a primary cause of the improvement in social norms in America. And its claim that the Constitutional text does not settle core governing principles is a conventional and undefended cliche of the academic Left.
First, while the Democratic-Republicans and Federalists had strong political differences, their respective appointees to the Supreme Court were united on the constitutional principles of creating a strong but limited federal government whose focus was creating a commercial society. That justices of different parties agreed on so much after deliberation is strong evidence that there was substantial, even if not unanimous agreement, on core principles.
For instance, Chief Justice John Marshall and Justice Joseph Story hardly ever diverged on the resolution of constitutional cases, despite being appointed by John Adams and Thomas Jefferson respectively.
Justice Antonin Scalia is criticized these days ostensibly not for the substance but for the style of his opinions. His writing is said to be disrespectful as when he critiques the Justice Kennedy’s opinion in Obergefell, the recent case on same-sex marriage. There he stated: “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag.” He also noted: “The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”
I cannot join in the criticism of his style. That is not to say I particularly warm to the all rhetoric of his dissent in Obergefell. It is not as powerful as that of his masterpiece in Casey, which also had harsh passages, but his disdain has a point. The value of an opinion is measured by the coherence of its reasoning. If someone’s opinion is as unreasoned as Kennedy vapidities about identity, it is worth pointing out with some virulence. What John Hart Ely famously said of Roe is true of Obergefell: it is not constitutional law and gives almost no sense of an obligation to try to be.
If Scalia believes (and I think he has reason to believe) that the many of the justices joining in Kennedy’s opinion were doing so for its result not for its reasons, they are not acting judicially. Ridicule in defense of the rule of law is no vice.