What are the prospects for constitutionalism and the rule of law under President Donald Trump?
One of the signal achievements of Bertrand de Jouvenel was establishing the existential status of power: “The Minotaur,” he called it, a metaphysical entity, nearly organic, with an instinct for both survival and expansion. If Mark Tushnet’s overeager call, predicated on a Hillary Clinton presidency, for judges to emerge from what he alleged to be their “defensive crouch liberal constitutionalism” and slay the foes of Progressivism demonstrated anything, it was that there is, miracle of miracles, such a creature as a judicial Minotaur. Randy Barnett’s much discussed and certainly much warranted reply at The Volokh Conspiracy confirms it. Yet the judicial Minotaur…
This post answers the question that ended my last one, which is how seriously to take something Justice Kennedy wrote about the Fourteenth Amendment in judicially promulgating a federal constitutional right to same-sex marriage. But the post also does more: it points toward a general framework for thinking about the relationship between the Constitution and constitutional law.
One of the questions I had when I became a professor of law was “What does it mean to profess law?” Another: “What law is it that I am to profess?”
We have seen many examples of an “engaged judiciary” at the state court level, and it isn’t always pretty.
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.
Yale law professor Heather K. Gerken is among the country’s most prolific and creative federalism scholars. In cooperation with two co-authors (Ari Holtzblatt and James T. Dawson—hereinafter, “Gerken & Co”) she has embarked on a project to develop a theory of “The Political Safeguards of Horizontal Federalism.”
Denise A. Spellberg, Associate Professor of history and Middle eastern Studies at the University of Texas at Austin, is the author of the highly regarded work, Politics, Gender, and the Islamic Past: The Legacy of ‘A’isha Bint Abi Bakr. She was involved in controversy in 2008, when she reviewed the galleys of a novel, The Jewel of Medina, for Random House, and criticized the work on many grounds including warning a number of times that the book might instigate violence among some Muslims, specifically against Random House and its employees. Random House then withdrew publication of the book, but the novel was subsequently published in a number of countries, including the United States.
In this work with the eye-startling title, Thomas Jefferson’s Qur’an: Islam and the Founders, Spellberg investigates all manner of references among the founding generation to Islam in order to assert two themes 1) that the founders’ references to “imaginary Muslims” led them to include other minorities, such as Jews, Catholic Christians, and Deists, as full citizens, and 2) that America is now in the grip of “Islamophobia,” and many Americans are attempting to “disenfranchise” Muslims from their rights as full citizens.
A recent WSJ editorial, The SEC as Prosecutor and Judge, comments on the SEC’s hints that it will be shifting its enforcement of insider trading laws from the courts to administrative adjudications:
A year after vowing to take more of its law-enforcement cases to trial, Securities and Exchange Commission officials now say the agency will increasingly bypass courts and juries by prosecuting wrongdoers in hearings before SEC administrative law judges, also known as ALJs. “I think you’ll see that more and more in the future,” SEC Enforcement Director Andrew Ceresney told a June gathering of Washington lawyers, adding that insider trading cases were especially likely to go before administrative judges.
Ceresney undoubtedly thinks this will be efficient — not to mention advantageous in avoiding those pesky critters known as judges and juries.
Yesterday, the Supreme Court heard oral argument in Bond v. United States. Mrs. Bond had smeared a toxic chemical on a romantic rival’s doorknob and mailbox, resulting in a thumb burn. She was federally prosecuted for violating a federal statute that implements the international Chemical Weapons Convention. The statute is broad indeed; as Justice Alito noted in an earlier round of litigation, it makes poisoning a goldfish with vinegar a federal crime. Earlier coverage is here.
After the argument, it’s possible that the case may decide some very large constitutional questions, thanks in no small part to the government’s breathtakingly aggressive stance. The key question is whether the feds can mow constitutional federalism barriers by treaty and implementing legislation. Solicitor General Verrilli’s answer was an emphatic “yes.” Not a good idea: excerpts from the transcript (which is here) convey the justices’ incredulity.