Whether it derives from the right or left, the argument for judicial supremacy—giving the judiciary the last word in sequence in constitutional interpretation—distills to this: Because no one can be trusted with unchecked power, the judiciary must be trusted with unchecked power.
In a recent article published at the Harvard Law Review Forum, Paul Clement and Professor Neal Katyal emphatically denied the existence of any substantial controversy as to whether Senator Ted Cruz meets one of the eligibility requirements for the presidency, viz., whether he is a “natural born citizen” of the United States. Any claim otherwise, they argue, is “specious,” for the historical evidence “clearly” demonstrates that he is such a natural-born citizen; because he was born to a citizen mother and thus a citizen “from birth,” he was a “natural-born citizen.”
I write to note my disagreement with their certitude, but tentative agreement with their conclusion.
Many thanks to Randy Barnett for his very thoughtful response to my post “The Book of Judges,” which criticizes a natural rights constitutional jurisprudence. Barnett says I was going after a straw man—that real defenders of “judicial engagement” are not calling for a philosopher’s debate on the federal bench that would produce a settled list of the type and content of natural rights for federal judges to enforce. He isn’t about defining and specifying natural rights in judicial decisions. Instead, he notes that they exist, and they are protected in the Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment.
Empowered by the elections of 2014, Republicans face the question common to all who have had revolutionary changes imposed on them: Are we to accept what was done to us so as not to further revolutionize our environment, hoping our restraint will lead our adversaries to restrain themselves whenever they return to power?
Senator Harry Reid (D-Nev.), who, as Minority Leader pioneered the filibuster of appellate judicial nominees—vide, Miguel Estrada—and then as Majority Leader abolished the rule that allows it, had this to say in the wake of the midterms: “This is not get-even time.” Just as understandably, Senator Orrin Hatch (R-Utah) argues for teaching “these blunder-heads that they made a big mistake” by giving them “a taste of their own medicine.”
Presidential power scholar Stephen Knott discusses in this latest edition of Liberty Law Talk his book Rush to Judgment: George W. Bush, the War on Terror, and His Critics, recently released in paperback form by University Press of Kansas. Knott has a point in this book. He argues convincingly that the vituperative critics of George W. Bush’s use of executive power, in many instances, were willfully ignorant of the historical use of these powers. Past presidents, ranging from George Washington, Thomas Jefferson, James Madison, Abraham Lincoln and certain presidents in the twentieth century, defended and exercised powers similar to those…
Charles Austin Beard (1874-1948) was a more complicated and interesting thinker than the Progressive sage commemorated during the centennial of his An Economic Interpretation of the Constitution of the United States. Perhaps that’s the problem with writing a book with a thesis so simple and straightforward as to discourage careful consideration of the work as a whole.
Though Constitution Day has come and gone (it was September 17), it may still be appropriate to honor the enactment of our Founding charter by looking into the question of “civic literacy” and “civic engagement.” By the first, I mean knowledge largely about American history and political institutions. The second is meant to denote participating in the political process, passively by voting and actively by contributing to and working on campaigns, trying to influence others’ votes, attending political events, contacting officials, signing petitions, and writing letters to the editor.
Constitutions are supposed to create a framework of good government that cannot be easily upended. As Justice David Brewer remarked, the Constitution is supposed to protect “Peter sober from Peter drunk.” Or to use the canonical analogy from classical literature, a good constitution functions like the ropes that prevent Ulysses from throwing himself into the sea in response to the sirens’ call.
Frequently, however, the United States Constitution is criticized for its inability to accommodate the current preferences of the people.
President Obama told the nation that he, on his own presidential authority, has committed the American people to actions in the Middle East that common sense calls war. But he did not call it war. He directed those actions against persons who call themselves Islamic but who he said were not Islamic, who rule a state with the (often enthusiastic) consent of its people but who Obama said were not a state. He said that allies largely would carry this campaign’s weight. But the countries he mentioned have made clear that they will do no such thing. This makes no sense, and augurs further disasters abroad.
The arguments by which the Obama administration is countering lawsuits that seek to limit Obamacare subsidies to participants in “exchanges” established by states—a limit that is specified in the Obamacare law itself—have raised the outcome’s stakes. Administration officials argue that the plain, unmistakable, uncontested language of the Affordable Care Act (ACA) is less important than what they want the law to mean, and that hewing to its words would deprive millions of people of the subsidies that the administration had granted them regardless of those words. Therefore the courts should enforce what the administration wants rather than what the law says.