The conversation Richard Reinsch has sparked on constitutional liquidation is less about constitutional meaning than about the ultimate—note “ultimate”—authority to ascertain it. It is true, as Randy Barnett, among others, notes, that liquidation is a longstanding topic in originalist thought. But Reinsch suggests a new avenue, writing that republican politics bien entendu is the ultimate (see above) expositor of constitutional meaning and that this is true generally, not just in ambiguous or indeterminate cases.
Is the U.S. Supreme Court a court? On the one hand, the answer seems obvious. It says so right in there in the name. Plus, the justices wear those funny robes. Strong evidence, I admit. On the other hand, see every Supreme Court decision involving constitutional law over the past century and a half. I could rest my case there, but I haven’t gotten to the point yet. If the Supreme Court is a court, it is a weird one, and that often creates a great deal of confusion about how the Court does or should operate.
Generally speaking, we might think that a key characteristic of a court is that it resolves disputes in accord with some pre-established set of legal rules. It is not clear that the Supreme Court actually does that. The justices have relatively little interest in resolving disputes, and they have little concern for pre-established legal rules.
Let’s unpack that a bit.
In The Federalist #10 James Madison famously observes that the “most common and durable source of factions has been the various and unequal distribution of property.” But Madison discusses numerous other sources of faction as well:
Mark L. Movesian’s post on the Virginia Statute for Religious Freedom of 1786 brought to mind Patrick Henry’s failed 1784 proposal, A Bill Establishing A Provision for Teachers of the Christian Religion.
Henry styled the bill as serving practical, even worldly, purposes. Nothing about the duties of persons to God or about the truth of Christianity. Instead Henry asserted that civil benefits flow from Christian teaching. He argued “the general diffusion of Christian knowledge hath a natural tendency to correct the morals of men, restrain their vices, and preserve the peace of society.”
Connecticut’s Roger Sherman was the only Founder to help draft and sign the Declaration and Resolves (1774), the Articles of Association (1774), the Declaration of American Independence (1776), the Articles of Confederation (1777, 1778), and the U.S. Constitution (1787). As a member of the first federal Congress, he played an influential role in drafting the First Amendment.
Yet when Supreme Court justices have turned to history to interpret the Establishment Clause, they have referenced Sherman only three times. By way of contrast, Thomas Jefferson, a man who played no role in drafting or ratifying the amendment, is referenced 112 times.
If there is any doubt remaining that the slogan “change” had no content when it was proffered as a reason for electing a President, consider this: Barack Obama bid farewell to the nation without calibrating his calls for change to his assertions of having already achieved it. President Obama’s farewell last night—delivered not in the traditional sedateness of the Oval Office but rather at the site and in the manner of a campaign rally—thus served as a primer on the shift from the liberal politics of amelioration to the Progressive politics of historical teleology. It should be said that despite the setting, he…
The American people have learned much about the Electoral College since the November election. Much has been learned about the origins, evolution and contemporary functioning of our system of presidential elections. We have debated the merits of our system versus allowing a simple national popular vote. We have seen an unprecedented campaign to try to get electors to vote against their pledge. And some have tried to instruct us on the nuances of the Founding environment that created our unique electoral system.
But among all the good information and honest debates have arisen a misleading half-truth aimed at undermining the Electoral College.
Law professor Paul Finkelman ominously opines that Americans would be “disgusted” if they knew the real origin of the Electoral College was in protecting slavery.
With the US House of Representatives representing the people, and the US Senate representing the states (more so prior to the adoption of the 17th Amendment, but that’s another discussion), the US Congress is a recognizable extension of the “mixed-government” rationale for legislative bicameralism.
Whatever the outcome of this year’s election, conservatives and other friends of American constitutionalism have our work cut out for us. The Republican candidate for president has not shown much familiarity with or interest in the workings of our constitutional system. And the Democratic candidate (as usual) has evinced a desire to continue, with judicial backing, a transformation of that system—one that further enhances executive and regulatory power while weakening the powers of Congress.
Richard Primus has argued that it would not make sense for a libertarian to be an originalist. But his arguments impose an unreasonably high standard for a libertarian’s choice of interpretive method, and reflect, like another recent post, a misunderstanding of originalism.
First, he says that the Constitution does not entrench libertarian principles as such. True enough. Libertarianism is a philosophy of the twentieth century. The key provisions of the Constitution are from the late eighteenth and mid-nineteenth century. But for a libertarian who wants to decide which constitutional interpretive philosophy should be instrumentally useful (to be clear that is not I), it should not matter that the Constitution does not perfectly capture libertarianism. Instead, the question should be whether an originalist view would move constitutional law today toward more libertarian results than plausible competing interpretive theories. And here the answer is yes.
First, the original Constitution sharply limited the scope of the federal government and constrained it through the separation of powers.