Last week, John McGinnis had a characteristically insightful post on Our Two Supreme Courts. One is the political court—an aristocratic institution that restrains public passions. On that court, the justices vote their preferences on God, guns, and gays. The other is the legal court, which takes care of boring jurisdictional and CivPro-ey stuff and where the justices, acting as the good lawyers they are, often reach unanimous decisions. The only way to reunite the courts, John writes, is for the justices to bring the legal rigor that’s on display in ERISA or bankruptcy cases to bear on the high-falutin’ ConLaw issues.
December 15 was Bill of Rights Day. People have different reactions to the Bill. For some, it is the most important feature of the Constitution, indicating and protecting the rights that people enjoy. The rest of the Constitution may be a good one, but it is these rights that are essential. For others, the Bill of Rights is a regrettable feature that gave the Court the opportunity to govern the country in many areas in whatever it desires.
My view is somewhere in between. I believe that the structural features of the Constitution – the separation of powers and federalism – are key features for preserving liberty and good government. But I also believe that the individual rights are an important part of the constitutional mix, protecting substantial interests against government intrusion. Significantly, the Bill of Rights is primarily enforced through a feature of the separation of powers – judicial review.
It is often forgotten that the Bill was initially applied only to the federal government, not to the states. In many ways, it was a federalism provision, preventing the distant federal government from infringing on the rights of people. It was not that people believed that the states should be able to violate those rights. Instead, they believed that many of those rights were already protected by state bills of rights and that the state governments could be better trusted to protect those rights.
Kurt Lash comes to Liberty Law Talk to discuss his newest book, The Fourteenth Amendment: The Privileges and Immunities of American Citizenship. If you think the Slaughter-House Cases of 1873 gutted the Privileges or Immunities Clause of constitutional meaning and set us on our present course of strangely incorporating the Bill of Rights through the Due Process Clause, then you need to listen to this conversation. Lash argues that the original public meaning of the Fourteenth Amendment's Privileges or Immunities Clause is definite once you understand the context of the debate in the 39th Congress. Rather than emerging from the Comity…
Don't miss this month's Liberty Law Forum on the Constitution's structural limitations of power and the Bill of Rights: Contributions from Patrick Garry, Ed Erler, Michael Ramsey, and Kenneth Bowling. How should contemporary defenders of limited government and the rule of law understand and learn from the New Deal's revolutionary movement? The current Liberty Law Talk with Gordon Lloyd, co-author with David Davenport of The New Deal & Modern American Conservatism, discusses this question. Liberty Law Reviews: William Atto on Scott Berg's Wilson: In 1879 . . . he published his essay “Cabinet Government in the United States,” in the International Review. Clearly…
In "Limited Government and Individual Autonomy" Michael Ramsey joins the discussion in the current Liberty Forum on the Constitution as a Bill of Rights. Scott Yenor reviews in our Books feature this week Mark Brandon's States of Union: Family and Change in the American Constitutional Order: Brandon’s description of marriage and family life reflects a notable narrowing of what “constitutional” means. The original constitutional vision reflected a comprehensive system of how to sustain republican self-government in the long term. Government had its tasks, private institutions including the family had their tasks, and the proper functioning of each depended on the other. From…
There are stronger constitutional arguments on both sides of same-sex marriage than any disputants are willing to acknowledge. But the particular manner in which U.S. District Judge Robert J. Shelby reached his decision, announced Friday, overturning Utah’s state constitutional amendment defining marriage heterosexually is a tangle of faulty reasoning and judicial arrogance that will disserve the cause he aims to advance.
The first clue that something is amiss is revealed in the stunning—well, maybe not; but still—error of basic civics on the opinion’s seventeenth page: “When the Constitution was first ratified, [citizens’ fundamental rights] were specifically articulated in the Bill of Rights and protected an individual from certain actions of the federal government.”
That claim—coming here from a federal judge—would cost a freshman points on a blue-book exam. Any student of introductory American government knows the Constitution was ratified over explicit objections that it did not contain a Bill of Rights and on its Framers’ specific insistence that including one might weaken the edifice they had constructed.
My 10-year-old, fruit of my own loins, came home from fifth grade on Constitution Day to announce that his teacher could no longer demand his homework because the Fourth Amendment entitled him to be “secure in his documents.” This, like all sensitive situations, was to be handled with a degree of delicacy: interest in the Constitution to be celebrated, fallacies about it to be clipped before flowering.
“Did you read the Constitution in school?’
“Yeah.” Pause. “Well, we read the Bill of Rights.”
In a January 17 speech to students at Texas A&M University, Danny Glover, the actor from Lethal Weapon etc., attempted to disparage the constitutional right to arms with the critique that “The Second Amendment comes from the right to protect themselves from slave revolts, and from uprisings by Native Americans.”
This is abundantly wrong and I hope the students will not consider Mr. Glover a definitive source on the question. But I will give him credit for the try. He attempted to engage the issue by at least skimming one piece of the voluminous scholarship in this area.
His comment seems based on a cursory reading of a 1998 law review article by Professor Carl Bogus. First, it warms the academic’s heart that a Hollywood actor would sit down and read a law review article, although I acknowledge the possibility that someone just told him about it.
Either way, his education is incomplete (as is true for all of us). Mr. Glover’s mistake is to have taken one dubious thing and run with it. That is almost always a mistake and especially so in the gun debate. But Danny Glover’s mistake is also a teaching tool that illuminates the broader conversation.
I’m quite grateful to Michael Ramsey for his engagement with the arguments in my book, Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. I appreciate, of course, his praise of the parts that alone, he says, would be “worth the purchase price of the book”—the parts on those landmark cases of Near v. Minnesota, the Pentagon Papers and the Snepp case—perhaps with the iconic case of Bob Jones University thrown in. But I’d record a special gratitude for a move of his that has become regrettably rare in the review of books: a willingness to cite extended…
From Michael Klarman's review of Pauline Maier's book Ratification: The People Debate the Constitution, 1787-1788 in the Harvard Law Review: If Madison is the hero of Ratification, then Patrick Henry is the villain. Henry’s early and vociferous opposition to British efforts in the 1760s to assert greater control over the colonies, which put him at risk of a treason prosecution, had made him a revolutionary icon. In 1787–1788, Henry waged war on the Constitution. Widely regarded as the greatest orator of his age (p. 230), Henry dominated the Virginia ratifying convention, holding the floor for as much as one-quarter of the…