Alan Taylor, a historian from the University of Virginia, has written an op-ed in the New York Times arguing that Americans wrongly disparage Donald Trump and Hillary Clinton in comparison to the Founders. Instead of recognizing their similarities to this year’s candidates, Taylor says that we treat the Founders as mythical giants. But, according to Taylor, they were as divided and divisive as these nominees. And the Founders tolerated a society with less sound norms than our own. Moreover, we should just accept that Founders did not resolve the “core principles of our government,” leaving it up to us to fight about them.
This op-ed is misleading and flawed in many respects. It exaggerates the differences in principle as opposed to politics among the Founders. It does not give credit to the Founders’ principles for being a primary cause of the improvement in social norms in America. And its claim that the Constitutional text does not settle core governing principles is a conventional and undefended cliche of the academic Left.
First, while the Democratic-Republicans and Federalists had strong political differences, their respective appointees to the Supreme Court were united on the constitutional principles of creating a strong but limited federal government whose focus was creating a commercial society. That justices of different parties agreed on so much after deliberation is strong evidence that there was substantial, even if not unanimous agreement, on core principles.
For instance, Chief Justice John Marshall and Justice Joseph Story hardly ever diverged on the resolution of constitutional cases, despite being appointed by John Adams and Thomas Jefferson respectively.
Justice Antonin Scalia is criticized these days ostensibly not for the substance but for the style of his opinions. His writing is said to be disrespectful as when he critiques the Justice Kennedy’s opinion in Obergefell, the recent case on same-sex marriage. There he stated: “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag.” He also noted: “The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”
I cannot join in the criticism of his style. That is not to say I particularly warm to the all rhetoric of his dissent in Obergefell. It is not as powerful as that of his masterpiece in Casey, which also had harsh passages, but his disdain has a point. The value of an opinion is measured by the coherence of its reasoning. If someone’s opinion is as unreasoned as Kennedy vapidities about identity, it is worth pointing out with some virulence. What John Hart Ely famously said of Roe is true of Obergefell: it is not constitutional law and gives almost no sense of an obligation to try to be.
If Scalia believes (and I think he has reason to believe) that the many of the justices joining in Kennedy’s opinion were doing so for its result not for its reasons, they are not acting judicially. Ridicule in defense of the rule of law is no vice.
A Kansas court has just ruled that it would be unconstitutional under that state’s founding document to spend $548 million on police, infrastructure, health care or welfare. The court’s ruling does not explicitly disclose this, of course, nor will the judges on the panel admit it. But this is what happens when judges, who reside in a magical, apolitical world shorn of scarcity and therefore tradeoffs, mandate hundreds of millions of dollars in new education spending: The money comes from someplace else.
Ted Frank, founder of the Center for Class Action Fairness, comes to Liberty Law Talk to discuss class action abuse and the need for reform of much of the current system. The Fallacies of States' Rights or the problems created by John Marshall's nationalism? Adam Tate considers both notions in this week's review essay, "The Fallacies of Marshallian Nationalism." Getting education right in America: Russ Roberts talks with Eric Hanushek of Stanford on the costs of having a mediocre education system. JP Morgan's 4 parts: investment banking, traditional banking, asset management, and private equity are worth more separately than their present combination: So…
In my first post on Gordon Lloyd’s journal article “Marshall v. Madison: The Supreme Court and Original Intent, 1803-1835,” I looked at the impressive data he analyzed on the Marshall Court’s use of Founding sources in its constitutional cases. Of note is Lloyd’s definition of a Madisonian Originalism: “[T]he meaning of the Framers’s understanding is to be discovered in the decisions of the State Ratifying conventions, the records of the Federal Convention and the First Congress, and such contemporaneous expositions as the Federalist. Moreover, the Constitution requires a “liquidation of meaning” over time; put differently, Madisonian Originalism requires both “initial consent” and “recurring consent.””
Lloyd, however, goes beyond this in the second part of the article in order to engage John Marshall’s reasoning in some of the most significant constitutional cases during his tenure.
Gordon Lloyd’s paper entitled “Marshall v. Madison: The Supreme Court and Original Intent, 1803-1835” was recently published in the journal Criminal Justice Ethics 32:1, 20-50. The paper is ambitious. It seeks to answer the question of “When reading the opinions of the Marshall Court, is one reading an exposition which takes its bearing from the American Founding or reading an interpretation which relies on a philosophy of jurisprudence that can be separated from the Founding?”
Jean Yarbrough's Theodore Roosevelt and the American Political Tradition is the subject of the current Liberty Law Talk. This podcast considers Roosevelt as both student and statesman of American constitutionalism. What is Stalin's curse? Paul Hollander, the great historian of totalitarianism, reviews Robert Gellately's Stalin's Curse in our books section this week. The curse, it seems, is Stalin's personality and the poison of his ideological policies emanating across the twentieth century into our own time. Michael Greve's The Upside-Down Constitution is the subject of lengthy and highly-informed discussion at Balkinization this week, well worth your time. Here also is the podcast I…
The central question of constitutional law is the role of the Supreme Court in our system of government. Yale law professor Akhil Reed Amar’s America’s Unwritten Constitution: The Precedents and Principles We Live By argues for a role even more expansive, if possible, than at present.
Constitutional law is the product of judicial review, the power of judges to invalidate policy choices made by other officials of government on the ground that they are prohibited by the Constitution. Although the power obviously creates the danger of making the judiciary — more specifically, the Supreme Court — superior to the legislature and the ultimate lawgiver, it is not explicably provided for in the Constitution. It was established and defended by Chief Justice John Marshall in the famous case of Marbury v. Madison, however, on the ground that it is inherent in a written constitution. This was not correct in that other nations had and have written constitutions without judicial review. Limiting judicial review to enforcement of a written Constitution does, however, serve the purpose of making it a tool of constitutionalism rather than simply a transference of policymaking power to judges. America’s Unwritten Constitution rejects that limitation.
In my previous post, I noted that the distinction between a tax and a regulation was well understood by the American revolutionaries. The distinction had to do with the purpose of the law. A tax was a law that was designed to raise money to pay for government, and a regulation was designed to influence (or regulate) human actions. To be sure, taxes do influence behavior, and many regulations do raise revenue, but those features are incidental to their purpose. Hence the colonists thought it would be legal for Parliament to regulate trade by making foreign molasses more expensive in the colonies, but Parliament could not legally impose a duty on foreign molasses if the main purpose of that duty was to raise revenue.
Tories, according to the American definition of the term, claimed that this was a distinction without difference. From their perspective, all laws that raise revenue were equally legal, regardless of the purpose of the law. For their part, the American Whigs said that the difference between a tax to raise revenue and a duty to regulate trade was obvious and important. Their constitutionalism focused on ends as much as it focused on means. Because the government existed, in part, to secure property, it was unconstitutional for Parliament to tax the colonists without their consent.