George Will’s Constitution

Constitution word written wood block. Wooden ABC

George Will has enjoyed a long career as a public intellectual, an especially illustrious one for a Right-of-center figure. For over four decades, Will’s commentary has appeared in intellectual magazines and newspapers including National Review, the Washington Post, and Newsweek. He has many books to his name as well as a widely syndicated newspaper column, for which he won a Pulitzer Prize in 1977. A Ph.D. from Princeton, he’s also a familiar talking head on television, often sporting a bow tie and playing the role of the sober, erudite Washington insider.

Those four decades have been a tumultuous period in our political culture; it would not be surprising if Will’s political views had evolved over that time, and indeed they have. His 1983 book, Statecraft as Soulcraft, was a full-throated paean to strong-government Tory conservatism, in the Burkean tradition. He has lately been tacking in the libertarian direction.

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Judicial Review: Birth of a Notion

The members of the U.S. Supreme Court have different ideas about what constitutes good judicial policy as well as how best to achieve that policy. From where do these ideas originate? Professor Kevin T. McGuire (PoliSci, UNC Chapel Hill) explains: Evolutionary psychology suggests that an answer may lie in early life experiences in which siblings assume roles that affect an adult's likely acceptance of changes in the established order. According to this view, older siblings take on responsibilities that make them more conservative and rule-bound, while younger ones adopt roles that promote liberalism and greater rebelliousness. Applying this theory to the…

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The Rise of Judicial Review for Economic Liberty

Judicial review of state intrusions on economic liberty is on the move. The Fifth, Sixth, and Ninth Circuits have held that pure economic protectionism is an illegitimate government purpose and fails even the most lenient rational basis review. In Craigmiles v. Giles, the Sixth Circuit similarly struck down restriction on casket makers’ ability to sell their wares without following the regulations applicable to funeral homes. In Merrifield v. Lockyer, the Ninth Circuit also held that economic protectionism is not a legitimate government interest. The court struck down a law that created different licensing categories for different types of exterminators, and this classification had no purpose other than helping some exterminators and harming others.

This trend represents a dramatic change from what was the norm—the routine dismissal of claims of interference with economic liberty.  These dismissals were rooted in two famous (or infamous) Supreme Court decisions that decreed an extremely relaxed form of review of economic legislation that was thought to amount to no review at all. 

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Larry Tribe’s (Belated) Mea Culpa

Laurence Tribe talks as Vice President Biden listens, November 2010.

Seeing the star of Vice President Biden finally begin to fade with his decision to not seek the Democratic Party’s presidential nomination reminded me of the rather sad spectacle that occurred during his chairmanship of the Senate Judiciary Committee in 1987. When my friend, the late Bernard H. Siegan, was nominated by President Reagan for the U.S. Court of Appeals for the Ninth Circuit that February, he faced a firestorm of opposition due to his seminal advocacy of property rights and economic liberties.

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The Judicial Power Permits only Interpretation, not Construction

Danger sign, warning background

The most import current debate in originalism is between those who believe that judiciary in the course of judicial review can engage only in interpretation and those who believe it can also fill in a  “construction zone” when the semantic meaning of a provision runs out. The latter originalists, such as Randy Barnett, Larry Solum and Jack Balkin, make a strong distinction between clear and unclear language in the Constitution. For clear language, judicial review can find a precise original semantic meaning for a provision and there is no need for the judge to consult anything but the semantic  meaning.  Unclear language, in contrast, creates a construction zone.  Within that zone,  the judge may appeal to materials other than its original meaning in the course of judicial review.

Mike Rappaport in a recent post poses an important question for the latter camp, wondering how they can really be acting as originalists when engaging in construction. Whatever their theoretical arguments about the necessity of construction, how can constructionists be claiming to deciding a matter based on the Constitution? As Mike lucidly puts it:

If the Constitution is defined as the original meaning of the words in the document – the standard definition of originalists – then the answer appears to be no: the judge who decides a matter in the construction zone is not deciding the matter based on the Constitution.  And if the judge is not deciding based on the Constitution, then his decision is not enforcing the supreme law of the land

Mike then notes that one possible response of those who believe in construction is to claim that the “judicial power” gives judges the authority to engage in construction. But in my recent paper, The Duty of Clarity, I show why the Constitution’s understanding of judicial power is inconsistent with construction. There I demonstrate that judicial review was thought to permit judges the authority not to follow a statute only if it were, in Alexander Hamilton’s words, in “irreconcilable variance” with the meaning of the Constitution.

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Fighting Federalism: Damon Root’s Overruled (Part One)

U.S. Supreme Court building in Washington D.C.

Supreme Court pundits generally have the Court’s members pegged along a simple political spectrum, with “liberal” denoting one side and “conservative” the other (with Justice Anthony Kennedy endlessly dancing from one side to the other). The assumption is that constitutional interpretation falls along a simple liberal-conservative continuum. Damon Root’s new book, Overruled: The Long War for Control of the Supreme Court, suggests that this binary view is too simplistic. A third approach, libertarianism, presents a theory of limited government power that is indebted to, and yet distinguishable from, post-New Deal liberalism and traditional social conservativism. Like most constitutional conservatives, libertarians call…

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Guardians of the New Class

Justice on Wooden Piece Arranged by Businessman

Those of us who believe in the rule of law and limited government are understandably flummoxed by the conclusion of the Supreme Court’s 2014-15 term: in rapid succession, and generally by narrow margins, the Court “fixed” an internal defect in the ObamaCare statute (King v. Burwell); recognized so-called “disparate impact” claims under the Federal Housing Act (Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc.); created a constitutional right to same-sex marriage and struck down contrary state laws (Obergefell v. Hodges); and re-wrote the “elections clause” of Article I, section 4 to allow non-legislative redistricting (Arizona State Legislature v. Arizona Independent Redistricting Commission).

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The Constitutional Morality of Restraint

Randy Barnett and Ed Whelan have revived the supremacy debate in the wake of the Chief Justice’s opinions in King and Obergefell, with Barnett arguing most recently that judges should be guided by the “constraint” of the text rather than “deference,” both of which he classifies as forms of restraint. Much commends that notion, and the distinction is analytically useful. But in the course of embracing a particular strain of originalism, it finds itself in tension with the original understanding of the judges’ role. Barnett’s standard for judicial nominees is a “proven record of willingness to be constrained by the original…

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We Must Be Forced to Be Free

rousseau

Many things will be said in the coming days about the Supreme Court’s holding in Obergefell v. Hodges, better known as the same-sex marriage case.  I don’t think I can in general improve upon the dissents written by the four Supreme Court justices—who object to the sweeping and poorly reasoned argument offered by Justice Anthony Kennedy as the “reasoned judgment” of a “bare majority” of his colleagues.  But I think I have something to add to the discussion regarding Kennedy’s understanding of his role as a Supreme Court justice.

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