A Jeffersonian Proposal for the Constitution

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. 

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Tributes to James Q. Wilson

Numerous fond, appreciative tributes to the late James Q. Wilson over the past days include fine reflections by Michael Barone, Heather Higgins, Yuval Levin (linking to Wilson’s collected articles for The Public Interest and National Affairs), Harvey Mansfield, John Podhoretz (linking to Wilson’s fifty-plus pieces for Commentary), Steven Teles, and George Will.  R. Shep Melnick’s splendid review of the great man’s later essays, published awhile ago in the Claremont Review of Books, appears here.

No More Flukes

The Obama Administration has pushed the regrettable term abortifacient—a term I cannot spell without assistance and a word I dare not attempt to pronounce—into our public discourse. President Obama faces opposition that he cannot resist; he simply will not be able to win this debate, because he is attacking a fundamental liberty, enshrined as such in our Constitution and recognized as such but also believed as such by the vast majority of people. I have wondered why he would even attempt such an outrageous maneuver in any year, much less in an election year. The current rhetoric defending the birth control mandate centers on access to contraception for all women. But that’s clearly not what’s at stake.

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Patrick Charles and Kevin Francis O’Neil: Saving the Press Clause from Ruin

Patrick J. Charles and Kevin Francis O’Neil have posted Saving the Press Clause from Ruin: The Customary Origins of a ‘Free Press’ as Interface to the Present and Future (Utah Law Review, Vol. 2012, No. 3, 2012) on SSRN. Here is the abstract:

Based on a close reading of original sources dating back to America’s early colonial period, this article offers a fresh look at the origins of the Press Clause. Then, applying those historical findings, the article critiques recent scholarship in the field and reassesses the Press Clause jurisprudence of the Supreme Court. Finally, the article describes the likely impact of its historical findings if ever employed by the Court in interpreting the Press Clause.

And from the article:

This brings us to our second point — that if the Press Clause were reinterpreted in accordance with the historical findings outlined in this article, then Branzburg, Zurcher, and Pell would be overruled.Branzburg and Zurcher are wrongly decided under the historical interpretation of the Press Clause because, as a government watchdog with a structural role to play in the separation of powers, the institutional press must be protected from government “ransack[ing]” of newsrooms (through search warrants) and government-compelled disclosure of confidential sources and information (through grand jury subpoenas).Pell is wrongly decided for limiting press access to the same low level as public access vis-à-vis government-controlled information and events.

While I have only reviewed the piece quickly, it appears to have two main themes.  First, it addresses and rejects the view of the Press Clause that Eugene Volokh takes in this important article, where Volokh argues that “the ‘freedom…of the press’ has long been understood as meaning freedom for all who used the printing press as technology – and, by extension, mass communication technology more broadly – and has generally not been limited to those who belonged to the institutional press as an industry.”  Volokh has a good bit of original public meaning evidence for this conclusion.  Charles and O’Neil dispute this.

A second theme of the piece is that original public meaning analysis, which is largely followed by Volokh, is ahistorical and a mistaken way to recover the original meaning.  Here Charles and O’Neil adopt the historians’ frequently articulated criticism of this approach.  I have to say that I rarely find the historians’ criticisms convincing.  I certainly agree with historians that more information is better than less, and that historical context is important.  And I certainly believe that the historical methods used to interpret the Constitution are relevant and even binding. See here.  So, in a way, I accept some of the critique of original public meaning by historians, but much of this critique is accepted by the strictest advocates of original public meaning.  So accepting these points is not a big deal.  A more important point, however, is my sense that historians often use context and claims of historical method largely as ways of ignoring the legal meaning of provisions.  These type of arguments largely leave me cold.

Charles and O’Neil argue:

Under the guise of originalism, many self-proclaimed legal histories assert a different approach. They focus intently on the text of the 1787-1791 constitutional debates and the years immediately following. While this may seem like a fair way to deduce original or public meaning of a constitutional provision, it fails to consider the intellectual origins of the text at issue and its evolution. For instance, are we really to believe that everyone viewed the Press Clause as solely the extension of free speech and being primarily influenced by the works of William Blackstone and a few others? The answer is no, because to understand eighteenth century American constitutionalism is to trace the evolution of political and legal thought from its Anglo origins through its development in the American Revolution, the Articles of Confederation, the ratification of the Constitution, and its subsequent application in legal thought. Any other methodical formulation is a dangerous and ad hoc approach to history.

I certainly agree it is important to know the history of freedom of the press before offering an original public meaning analysis.  But that does not mean that the meaning in 1720 was the meaning in 1789.  Or that the meaning in 1789 was a compromise between the meaning in 1720 and 1789, or that there was no clear meaning in 1789.  Historians must recognize that the relevant question is what the language meant in 1789, and, if its 1720 meaning is not reflected in the later sources, that may be because the meaning changed.  Thus, it makes sense that originalist articles, which are already long, should focus on the later evidence.

I must admit that perhaps I am not understanding the historians.  Or perhaps they do not understand legal methods and legal meaning.  Or perhaps the truth is somewhere in between.

Judicial Blame Avoidance, Part 2

Yesterday’s post interpreted Mass v. EPA as a Supreme Court exercise in institutional blame avoidance. Today, as threatened, a second, more incendiary example: affirmative action in higher education. With the February 21 cert grant in Fisher v. University of Texas, the question has returned to the Court; it’s worth a quick look.

The precedents and their holdings are familiar. Justice Powell’s controlling opinion in Regents of the University of California v. Bakke (1978) held that universities may not use racial quotas or set-asides; however, they may use race as a “plus factor.” In the Michigan affirmative action cases, Gratz v. Bollinger and Grutter v. Bollinger (2003), the Court essentially reaffirmed that holding, adding a few wrinkles such as the elevation of “diversity” to the status of a “compelling” state interest. (Disclosure: I directed the law firm that instigated the Michigan cases, although I moved on before the Court decided them.)

The Bakke-Grutter rule is obviously a sham: you can always make the “plus factor” big enough to reach any pre-determined racial balance. What the rule actually means—or at any rate, what it signals to university administrators—is that quotas are okay, so long as you lie about them (for example, by making a show of “individualized” comparisons).

The cases share several additional characteristics. There’s the ostentatious pronouncement of a “strict scrutiny” standard of review, which the Court then conspicuously fails to apply. There’s the pathetic attempt to cover that open flank with outside-the-record expertise from trusted institutions (Harvard in Bakke, the U.S. military in the Michigan cases). There’s the craven effort to hit a political ”sweet spot”—the conflicted consensus of an electorate that doesn’t like quotas and preferences but also recoils at the prospect of “lily-white” elite institutions (an education blob canard, but let that slide).

And then, there is the obvious attempt to put distance between the Court and the on-the-ground consequences of its pronouncements. What one wants to know is, how much of a preference is too much? That question, the cases don’t answer. Institutions get to experiment at the outer perimeters of the Constitution—a practice the Court never tolerates in venues where it wants to boast and claim credit, such as core free speech. For example, Grutter’s “diversity” interest promptly migrated from the education context for which it was designed into public employment (see, e.g., Petit v. City of Chicago, 352 F.3d 1111 (7th Cir. 2003)). In Fisher, the University of Texas seized on the rationale to defend preferences as a means of producing diversity at the classroom level (and good luck with that). Should we attribute those escapades to the Supreme Court’s implicit encouragement, or to institutional overreach and bad faith? Stay tuned for the next we-wash-our-hands ruling.

What strikes me as most problematic about the Court’s posture is that we have more than enough institutions that punt, obfuscate, and shift and avoid blame. We have allowed politicians to construct a vast web of mechanisms that facilitate the practice. The administrative state is one;  “cooperative” federalism is another. In its better moments, the Supreme Court has recognized the need for disciplining, accountability-forcing rules: the anti-commandeering rule of Printz v. United States, for example, or the “clear statement” rule. (For a learned exposition see The Upside-Down Constitution, Ch. 15.) Those rules—and we need more of them—would gain credibility if the institution that generates them could hold itself to a higher standard and say, when it matters: this one is on us.

Diversity and the American Warrior

Seldom has an American president so enthusiastically embraced a public policy doctrine than President Obama has the doctrine that diversity benefits groups possessing it. Last August, he began an Executive Order ‘establishing a coordinated government-wide initiative to promote diversity and inclusion in the federal workplace’ by declaring:

‘Our Nation derives strength from the diversity of its population…’

That from which the American nation has derived its strength is not its diversity in terms of race, creed, color, religion, gender and sexual orientation, but in equality under the law, which permits the magnitude and diversity of the skills and talents of its members to be employed usefully.

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Seminars for Graduate and Law Students at the Witherspoon Institute’s Simon Center

The Witherspoon Institute’s Simon Center on Religion and the Constitution is offering two seminars this summer for early-career faculty, and for graduate and law students.

Church and State: Religion in the Young American Republic
This seminar, held on the campus of the Princeton Theological Seminary from July 29 to August 4, 2012, will explore the interaction of religion and political life in the early American republic, from colonial and revolutionary times to the early nineteenth century, employing primary sources and emphasizing theological perspectives as well as political and legal ones.  Many of the readings will be in drawn from Dreisbach and Hall’s anthology The Sacred Rights of Conscience, published by Liberty Fund.  The seminar is open to post-doctoral, tenure-track, and non-tenure-track scholars in political science and political theory, history, law, and religious studies.  Faculty for the seminar will be leading historians of religion in early American history: Prof. Mark Noll of the University of Notre Dame, Prof. Harry Stout of Yale University, and Prof. Gerald McDermott of Roanoke College.  More information can be found here: 

Moral Foundations of Law
This seminar, held on the campus of Princeton University from August 5 to 11, 2012, examines the relation of moral and legal philosophy, the debate between positivism and the natural law, and questions regarding constitutionalism and judging, among other subjects.  The seminar is open to rising 2L and 3L students in law school, as well as LLM and SJD candidates; graduate students in political philosophy and jurisprudence may also apply.  Faculty for the seminar will be Gerard V. Bradley of Notre Dame Law School; John M. Finnis of Oxford and Notre Dame; Matthew J. Franck of the Witherspoon Institute; Patrick Lee of Franciscan University; and Gerard Wegemer of the University of Dallas.  Judge Edith Jones of the Fifth Circuit is scheduled as a guest speaker.  Applications are due March 30, 2012.  More information can be found here:

Mass v. EPA Reconsidered: Our Duplicitous Court

Among the Supreme Court’s most lamentable habits is a lack of candor in cases of grave political, economic, and social import.

By “lack of candor,” I don’t mean the shading or the strategic deployment of legal arguments. That comes with the constitutional territory, and we have tolerably efficient social practices—the publicity of judicial opinions, a watchful and disputatious legal profession—to flush out mistakes and misconduct. What I mean is (1) a deliberate judicial attempt to recruit political institutions (Congress, states, lower courts) into bringing about desired social outcomes, coupled with (2) an ex ante maneuver to evade responsibility for an anticipated adverse result.

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Exciting Announcement from the Claremont Institute

The Claremont Institute recently launched the Center for the Jurisprudence of Natural Law .  The Project is being led by Hadley Arkes, who has intervened in this space a few times. The Center will be leading with a conference later this year that will more fully explore the connections between the Constitution and natural law reasoning. I hope you make this site’s contents part of your reading. For starters, here is an opening piece by Arkes entitled “Turning the Tables on Obamacare: Returning to Natural Rights.”



The Constitution of Liberty and Law, Legislation, and Liberty

Yesterday, I posted on people’s preferences for Capitalism and Freedom versus Free to Choose.  I also noted that one’s preference may turn on which book one read first.

The same issues of preference and timing arises with Hayek’s two great works — The Constitution of Liberty and Law, Legislation, and Liberty (LL&L).  For me, the better work is The Constitution of Liberty, and not surprisingly I read it first.  (In fact, I read it in that critical period of 1977-1978 when I was becoming persuaded of libertarian ideas. )  So my preference for it may reflect what I called in my prior post the freshness bias.

But these are also different works.  The Constitution of Liberty is more of a restatement of classical liberalism whereas LL&L is an attempt to improve upon the tradition.  Moreover, the Constitution of Liberty is less enamored of the common law method than LL&L.  I prefer the Constitution of Liberty because I think more of it is correct — the speculations in LL&L, especially about the common law method, seem to be mistaken at times and overstated.  That said, I have to agree that LL&L is probably the more interesting book — it is quite innovative, even if the Constitution of Liberty was no slouch in that area.

I suppose that one could continue this exercise with other libertarian classics.  Ayn Rand’s two books, Atlas Shrugged and the Fountainhead come to my mind.  I read Atlas Shrugged first and liked it better, while people I know who read the Fountainhead first tend to prefer it.