Does a Judge Who Decides a Matter within the Construction Zone Enforce the Constitution? A Question About Construction

One of interesting questions in originalist constitutional theory is the relationship between theory and text.  Some originalists focus on originalist textual arguments, while some originalists argue, as a matter of theory, for originalism, but do so based on theory.  While this is a complicated matter, there is clearly room for both types of arguments.

This issue arises as to the practice of “construction.”  In originalist theory, some scholars draw a distinction between interpretation and construction.  Interpretation is the practice of determining the original meaning.  But what if, as these advocates of construction argue often happens, the original meaning runs out (that is, there is no original meaning as to an issue because the constitutional language is ambiguous or vague)?  Then, those scholars argue that the matter is within the “construction zone” and one must look outside the Constitution to answer it.  For these scholars, having to look outside the Constitution is not a choice that a judge makes.  It is simply the inevitable result of the original meaning running out.

In my own work with John McGinnis, we have been skeptical about construction and have argued that appropriate interpretive rules would avoid (or at least minimize) the need for construction.  But for purposes of this post, assume that we are mistaken and that construction is an important element of constitutional adjudication.

Read More

The Unconstitutionality of Social Security and Medicare

Government social insurance creates some of the most serious problems in western style democracies.  At best, these government insurance programs place tremendous strain on the economy and reduce work incentives.  At worst, they may result in the bankrupting of the society.  In the United States, Social Security pensions and Medicare are the worst culprits.

There are, moreover, alternative arrangements that would avoid these problems.  Some people may favor a fully voluntary system.  Others may favor more government involvement, such as a compulsory private system in which individuals are required to save certain amounts for their retirement or are required to purchase health insurance on some kind.  (For a discussion in the context of unemployment insurance, see here.  For a book comparing private and government insurance more generally, see here.)

While there are arguments for each of these systems, the important point is that they would not involve redistributions.  In particular, they would not require the massive redistributions that these existing systems make from one generation to another – redistributions that are unfair, inefficient, and cause serious political problems. 

Read More

Garrett Epps in the Atlantic on Clarence Thomas

In the Atlantic, Garrett Epps has a piece on Clarence Thomas.  I like Epps.  He has been to two of the Originalist Conferences that I run and his presentations and writing are lively, entertaining, and thoughtful.  And his book on the 14th Amendment was quite enjoyable.  But Epps’s politics are far to the left of Clarence Thomas’s and therefore it is not surprising that he is very critical of Thomas.  In fact, I think Epps was quite unfair to Thomas.  I thought I would respond to some of his major points.

First, Epps starts his piece discussing how Thomas’s confirmation involved charges by Anita Hill that Thomas had sexually harassed her during their tenures at the EEOC.  Epps notes that the “experience left him embittered.”  While Epps sort of presents both sides, he neglects an obvious inference.  The most likely reason that Thomas would have been so embittered by the experience is that he believed the charges were false.  To be clear, I don’t know what happened between the two.  But the failure to note this obvious explanation for Thomas’s reaction is disappointing.

Second, Epps complains that Thomas’s dissent in Obergfell, the same sex marriage case, did not mention the “key gay-rights precedents.”  This complaint is curious.  Thomas joined the three other dissents, which did mention these precedents.  Thomas wrote separately to discuss the original meaning.  Since Thomas had already indicated that he did not believe these dissents reflected the original meaning, he did not need to do so again. 

Read More

Six Posts on Departmentalism and Judicial Supremacy

Yesterday, I completed my series of posts on departmentalism and judicial supremacy.  My main point is that the issue turns largely on the history and that, while more research is needed, one real possibility is that the correct rule is a moderate judicial supremacy. Here are the original five posts: Departmentalism versus Judicial Supremacy – Part I: Some Preliminary Distinctions Departmentalism versus Judicial Supremacy – Part II: Getting from Departmentalism to Judicial Supremacy Departmentalism versus Judicial Supremacy – Part III: Some Thoughts on the History Departmentalism versus Judicial Supremacy – Part IV: The Argument Based on the Constitution Being a New System Departmentalism versus Judicial Supremacy…

Read More

Departmentalism versus Judicial Supremacy – Part V: The Content of the Executive and Legislative Obligation to Follow Judicial Precedents

In this post, I want to draw together some of my earlier posts to explore what the norm of judicial supremacy might be.  Let me remind the reader of two points from my prior posts:  First, the content of the executive and legislative obligation to follow judicial precedents turns in significant part on the relevant practice at the time of the Constitution’s enactment.  Second, there is a similarity between the argument for judicial precedent (which require courts to follow judicial precedent) and the argument for judicial supremacy (which require the executive and legislature to follow judicial precedent).

While I have said that there does not appear to be evidence of genuine departmentalism at the time of the Constitution – of the executive and legislature being entirely free to ignore judicial precedents – it is not clear what the practice was.  One possibility is that the executive and legislature were bound to follow the courts once a single case (that is, precedent) was decided.  Another, in my view more likely, possibility is that a series of decisions by the courts reaching the same result were required before the executive and legislature were obligated to follow the judicial precedents.

One bit of evidence for this latter view is that this appears to have been the rule as to a court’s obligation to follow its own precedent.  A single precedent did not appear to obligate a court to follow that precedent.  Such a precedent needed to be considered, but it was not binding.  Rather, it was a series of precedents that obligated a later court to follow the precedent.  See here.

Read More

Departmentalism versus Judicial Supremacy – Part IV: The Argument Based on the Constitution Being a New System

In my last post, I noted that the advocates of departmentalism do not rely on pre-constitutional practice to found their view.  Instead, they tend to argue that the Constitution adopted a new system, one in which each of the branches is equally entitled to interpret the Constitution. The problem with this argument is that it lacks support.  The Constitution both relied upon the preexisting English and state systems as well as establishing some innovations.  The question for departmentalists is to show that the Constitution actually adopted departmentalism. Here is what I regard as the basic textual problem with arguing that the new…

Read More

Departmentalism versus Judicial Supremacy – Part III: Some Thoughts on the History

In my previous post, I noted that any obligation of the executive and Congress to follow court precedents – either a strong judicial supremacy or a milder obligation to follow a series of court decisions – would have its source in either an interpretation of the Constitution’s judicial power or federal common law.  But that reading of the Constitution or the common law would require evidence that judicial precedents were seen as imposing such an obligation.

What then might that evidence be?  One possible source of evidence are statements made by various framers at the Philadelphia and Ratification Conventions that Randy Barnett has recently blogged about.  For example, he notes that James Wilson said:

If a law should be made inconsistent with those powers vested by this instrument in Congress, the judges, as a consequence of their independence, and the particular powers of government being defined, will declare such law to be null and void; for the power of the Constitution predominates. Any thing, therefore, that shall be enacted by Congress contrary thereto, will not have the force of law.

One might read Wilson as stating that a judicial decision declares an unconstitutional law “null and void” and therefore the executive is obligated not to enforce it.  But Wilson need not be read that way.  As Ed Whelan notes, this statement might be understood instead as stating that the executive will as a practical matter not be able to enforce laws that the courts are unwilling to apply in adjudications.

Read More

Departmentalism versus Judicial Supremacy – Part II: Getting from Departmentalism to Judicial Supremacy

After a short detour responding to Mike Paulsen, I am back to elaborating on my view of the departmentalism/judicial supremacy debate.  As I noted in my last post, the basic question turns on whether the executive or Congress must follow judicial precedents.

What might obligate the executive or Congress to follow judicial precedents?  One starts, of course, with the text of the Constitution.  The judicial power extends only to “cases” and “controversies.”  Therefore, in the absence of anything else, a judicial decision cannot bind other than as to the judgment.  The judgment decides the case; the precedent is about possible future cases that have not arisen.  This is part of the core of the case for departmentalism.

Read More

Paulsen on Departmentalism versus Judicial Supremacy

I have started a series of posts on the departmentalism – judicial supremacy debate in an effort to explain my position, which inclines towards, but does not go all the way towards judicial supremacy.  But I am going to interrupt that planned series to briefly respond to a post written by my former Yale Law School classmate and OLC colleague Mike Paulsen.  Mike sets up a “horrible hypothetical” – one that involves a horrible situation – involving an awful law that prohibits speech that the First Amendment protects, punishes its violation with torture that violates the Eighth Amendment, and unconstitutionally prohibits the President from pardoning the persons convicted.  (It also violates other clauses as well.)  The Supreme Court then upholds the constitutionality of the law as to an individual. Mike asks, among other things, whether the President is constitutionally obligated to enforce the law.

Legally, the answer would seem to be clear.  The courts, with Supreme Court review, have issued a judgment that requires the torturous punishment and prohibits pardons.  But Mike’s horrible hypothetical appears designed to make us resist this conclusion – it is just such a horrible decision and outcome!  But there are several reasons that allow us to easily avoid the pull of this hypothetical.

Read More

Departmentalism versus Judicial Supremacy – Part I: Some Preliminary Distinctions

Since I was away on vacation when this debate began, I am coming late to the party. But I have some distinctive views on this issue and so I thought I would write some posts about the matter.

I should start out by saying that I have something of an intermediate view of the matter – I recognize that both sides have some strong points to make.  In the end, I stand much closer to the judicial supremacy side, but for different reasons than at least some of those defending the position.

I originally encountered this issue in law school and especially at the Meese Justice Department when Attorney General Meese gave a speech defending departmentalism.  I initially was attracted to a moderate departmentalist position, but over time I began to have second thoughts.  By the time I published this paper (here and here) in 1993, I had already moved towards seriously doubting the departmentalist position.  And I have only become more skeptical over time.

Read More