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.
In a previous post, I discussed my new paper, The Duty of Clarity. There I show that the original meaning of the Constitution requires a clear violation of its terms before invalidating legislation. But the Constitution also demands that judges use the ample interpretive methods available to clarify the precise meaning of our fundamental law. Both the obligations of clarity and clarification flow from the judicial duty, a duty that is an aspect of the judicial power granted under Article III of the Constitution.
My paper helps resolve the long standing debate about whether judges should defer to the legislature. Judges are empowered to use legal methods to clarify a constitutional provision, and if they can be made clear by these methods, the provision offers a basis to invalidate legislation. But if judges cannot disambiguate or eliminate vagueness, they have no authority to replace the legislature’s judgment with their own.
Since finishing a draft of the paper, I have come across one more powerful piece of evidence for this proposition. It is widely agreed among early Supreme Court justices that this duty of clarity exists and was binding on them. Nevertheless, I had not previously found any instance in which a justice claimed that the duty was the proximate cause of a refusal to hold legislation unconstitutional.
The case in which the duty of clarity appeared to be decisive was United States v. Ravara.
McCutcheon v. FEC reveals fundamental differences between the Roberts Court majority and the dissenters about the First Amendment’s protection of political speech. The justices in the majority asserted the traditional view that the First Amendment is an individual right. In contrast, Justice Breyer argues for the McCutcheon dissenters that the First Amendment is in part a “collective right,” and thus government interests in favor of campaign finance regulation are not “to be weighed against the constitutional right to political speech. Rather they are interests represented in the First Amendment itself.” The latter view makes it much easier to upheld government restrictions that are targeted at resources to support speech at election time.
To support his view of the First Amendment as embodying a “collective right,” Breyer appeals to Founding-era statements that describe how speech connects a legislator with the sentiments of his constituents. But the materials he cites undermine his claims. First, he purports to demonstrate that James Wilson believed that “the First Amendment would facilitate a ‘chain of communications between the people and those to whom they have committed the exercise of the powers of government,” by quoting a snippet from a lecture by Wilson on the Constitution.
But the quote from Wilson does not appear in a discussion of the First Amendment, as Justice Breyer states, but in a discussion of the novelty and virtue of representative government, as opposed to “monarchical, aristocratical, and democratical” forms of government.
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…