Madison and the Liquid Constitution

Clear blue sky

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.

Read More

Do Liberals Want Conservative Nonoriginalists?

Over at the Volokh Conspiracy, Randy Barnett, as an aside, asks liberals the following question: Why would you possibly want a nonoriginalist “living constitutionalist” conservative judge or justice who can bend the meaning of the text to make it evolve to conform to conservative political principles and ends? However much you disagree with it, wouldn’t you rather a conservative justice consider himself constrained by the text of the Constitution like, say, the Emoluments Clause? In his U.S. Today Column, Glenn Reynolds picks up on the idea and explores various decisions that might be overturned based on a conservative living constitutionalism. Barnett’s is an…

Read More

Crouching Congress, Hidden Judges

US Capitol Building, Washington DC

One of the signal achievements of Bertrand de Jouvenel was establishing the existential status of power: “The Minotaur,” he called it, a metaphysical entity, nearly organic, with an instinct for both survival and expansion. If Mark Tushnet’s overeager call, predicated on a Hillary Clinton presidency, for judges to emerge from what he alleged to be their “defensive crouch liberal constitutionalism” and slay the foes of Progressivism demonstrated anything, it was that there is, miracle of miracles, such a creature as a judicial Minotaur. Randy Barnett’s much discussed and certainly much warranted reply at The Volokh Conspiracy confirms it. Yet the judicial Minotaur…

Read More

Will Judges Debate the Layout of Shower Areas?

Paragraph Rechtsstreit

Aristotle teaches that justice is necessary where friendship has failed. His point is that the strictures of the law need only be imposed where ordinary, informal, face-to-face interactions collapse. Lawsuits—and, for that matter, laws—thus begin where comity and common sense end. That is worth keeping in mind as the first frontal constitutional challenge to the U.S. Department of Education’s attempt to impose a one-size-fits-all approach to transgender access to intimate facilities—bathrooms, locker rooms, and showers—works its way through the courts.

Read More

Why Libertarians Should be Originalists

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.

Read More

Broken Engagement?

Contributors to Law and Liberty have continued the lively debate between conservative proponents of “judicial restraint,” who are concerned about increased “judicial activism,” and libertarians who view the judiciary as a bulwark against majoritarianism. The general theme is a familiar one, even if the labels themselves sometimes impede understanding. The crux of the debate often turns on the standard of review courts should apply when laws are challenged, and which party should bear the burden of proof. Under the so-called “rational basis” test formalized by the U.S. Supreme Court in the 1938 decision in United States v. Carolene Products Co., economic…

Read More

Partisanship, Nonpartisanship, and Nino

American Election

The Republicans are already backing off a bit or more from their hastily conceived policy of obstruction. There are loads of precedents for the obstruction, engaged in by both parties. Democratic whining about its deployment against President Obama’s nominee is as cheeky as it is hypocritical. Still, the higher road—the electorally more effective road, too—is perfect respect for constitutional forms.

Read More

The Judicial Necessity of Constitutional Choice

Close-up of the U.S. Constitution

Cass Sunstein is among the country’s foremost legal scholars, distinguished by both his prodigious output and an interdisciplinary approach that draws on the insights of behavioral psychology, economics, and social science research. In his latest book, Constitutional Personae: Heroes, Soldiers, Minimalists, and Mutes, he gives us an engaging study of jurisprudential comportment that classifies judges into the four groups of the subtitle.

Read More