Category Archive 'US Constitution'
01 Apr 2020

Harvard Law Professor Rejects Originalism

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Adrian Vermeule, Ralph S. Tyler, Jr. Professor of Constitutional Law at Harvard Law School.

He looks cherubic and harmless, doesn’t he? Well, he rejects the framers’ goal of limited government, preferring the promotion of morality and “the common good.”

He expressed his new vision of illiberal Dworkianism in a recent editorial in the Atlantic, titled “Beyond Originalism.”

Originalism comes in several varieties (baroque debates about key theoretical ideas rage among its proponents), but their common core is the view that constitutional meaning was fixed at the time of the Constitution’s enactment. This approach served legal conservatives well in the hostile environment in which originalism was first developed, and for some time afterward.

But originalism has now outlived its utility, and has become an obstacle to the development of a robust, substantively conservative approach to constitutional law and interpretation. Such an approach—one might call it “common-good constitutionalism”—should be based on the principles that government helps direct persons, associations, and society generally toward the common good, and that strong rule in the interest of attaining the common good is entirely legitimate. In this time of global pandemic, the need for such an approach is all the greater, as it has become clear that a just governing order must have ample power to cope with large-scale crises of public health and well-being—reading “health” in many senses, not only literal and physical but also metaphorical and social.

Alternatives to originalism have always existed on the right, loosely defined. One is libertarian (or “classical liberal”) constitutionalism, which emphasizes principles of individual freedom that are often in uneasy tension with the Constitution’s original meaning and the founding generation’s norms. The founding era was hardly libertarian on a number of fronts that loom large today, such as freedom of speech and freedom of religion; consider that in 1811, the New York courts, in an opinion written by the influential early jurist Chancellor James Kent, upheld a conviction for blasphemy against Jesus Christ as an offense against the public peace and morals. Another alternative is Burkean traditionalism, which tries to slow the pace of legal innovation. Here, too, the difference with originalism is clear, because originalism is sometimes revolutionary; consider the Court’s originalist opinion declaring a constitutional right to own guns, a startling break with the Court’s long-standing precedents.

These alternatives still have scattered adherents, but originalism has prevailed, mainly because it has met the political and rhetorical needs of legal conservatives struggling against an overwhelmingly left-liberal legal culture. The theory of originalism, initially developed in the 1970s and ’80s, enjoyed its initial growth because it helped legal conservatives survive and even flourish in a hostile environment, all without fundamentally challenging the premises of the legal liberalism that dominated both the courts and the academy. It enabled conservatives to oppose constitutional innovations by the Warren and Burger Courts, appealing over the heads of the justices to the putative true meaning of the Constitution itself. When, in recent years, legal conservatism has won the upper hand in the Court and then in the judiciary generally, originalism was the natural coordinating point for a creed, something to which potential nominees could pledge fidelity.

But circumstances have now changed. The hostile environment that made originalism a useful rhetorical and political expedient is now gone. Outside the legal academy, at least, legal conservatism is no longer besieged. If President Donald Trump is reelected, some version of legal conservatism will become the law’s animating spirit for a generation or more; and even if he is not, the reconstruction of the judiciary has proceeded far enough that legal conservatism will remain a potent force, not a beleaguered and eccentric view.

Assured of this, conservatives ought to turn their attention to developing new and more robust alternatives to both originalism and left-liberal constitutionalism. It is now possible to imagine a substantive moral constitutionalism that, although not enslaved to the original meaning of the Constitution, is also liberated from the left-liberals’ overarching sacramental narrative, the relentless expansion of individualistic autonomy. Alternatively, in a formulation I prefer, one can imagine an illiberal legalism that is not “conservative” at all, insofar as standard conservatism is content to play defensively within the procedural rules of the liberal order.

This approach should take as its starting point substantive moral principles that conduce to the common good, principles that officials (including, but by no means limited to, judges) should read into the majestic generalities and ambiguities of the written Constitution. These principles include respect for the authority of rule and of rulers; respect for the hierarchies needed for society to function; solidarity within and among families, social groups, and workers’ unions, trade associations, and professions; appropriate subsidiarity, or respect for the legitimate roles of public bodies and associations at all levels of government and society; and a candid willingness to “legislate morality”—indeed, a recognition that all legislation is necessarily founded on some substantive conception of morality, and that the promotion of morality is a core and legitimate function of authority. Such principles promote the common good and make for a just and well-ordered society.

To be sure, some have attempted to ground an idea of the common good on an originalist understanding, taking advantage of the natural-rights orientation of the founding era. Yet that approach leaves originalism in ultimate control, hoping that the original understanding will happen to be morally appealing. I am talking about a different, more ambitious project, one that abandons the defensive crouch of originalism and that refuses any longer to play within the terms set by legal liberalism. Ronald Dworkin, the legal scholar and philosopher, used to urge “moral readings of the Constitution.” Common-good constitutionalism is methodologically Dworkinian, but advocates a very different set of substantive moral commitments and priorities from Dworkin’s, which were of a conventionally left-liberal bent.

Common-good constitutionalism is not legal positivism, meaning that it is not tethered to particular written instruments of civil law or the will of the legislators who created them. Instead it draws upon an immemorial tradition that includes, in addition to positive law, sources such as the ius gentium—the law of nations or the “general law” common to all civilized legal systems—and principles of objective natural morality, including legal morality in the sense used by the American legal theorist Lon Fuller: the inner logic that the activity of law should follow in order to function well as law.

Common-good constitutionalism is also not legal liberalism or libertarianism. Its main aim is certainly not to maximize individual autonomy or to minimize the abuse of power (an incoherent goal in any event), but instead to ensure that the ruler has the power needed to rule well. A corollary is that to act outside or against inherent norms of good rule is to act tyrannically, forfeiting the right to rule, but the central aim of the constitutional order is to promote good rule, not to “protect liberty” as an end in itself. Constraints on power are good only derivatively, insofar as they contribute to the common good; the emphasis should not be on liberty as an abstract object of quasi-religious devotion, but on particular human liberties whose protection is a duty of justice or prudence on the part of the ruler.

RTWT

The framers were, of course, conscious that the new Republic would be composed of thirteen colonies, founded at different times by different groups of people for different reasons with differing cultures, economies, and dominant religious denominations. They were living in a time in which the disastrous European Wars of Religion loomed large in memory, and they had drawn the rational conclusion that attempts by the State to control the conscience of the individual with regard to opinion and forms of conduct not impacting others were both tyrannical and futile.

Professor Vermuele thinks otherwise. Having ascended to an eminent position in the modern academical meritocratic order, he considers himself wiser than Madison, Jefferson, Washington, Franklin, and the other framers, and he obviously believes his own contemporary apprehension of morality and “the common good” is better than theirs, and superior as well to that of the 330 million other living Americans whom he is prepared to instruct and coerce.

Personally, I am no more interested in being ruled by Platonic Guardians of the Roman Catholic Integralist bent than I am by being ruled by bien pensant left-wing sophisters like the late Ronald Dworkin.

19 Dec 2019

Shameless

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21 Mar 2019

“Candidates Propose Changes To Fix Flaw In Constitution That Allows Republicans To Be Elected”

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Babylon Bee:

A number of Democrats have proposed changes to the structure of government that they think would help them win, such as lowering the voting age to 16, abolishing the Electoral College, packing the Supreme Court, and changing how Senate seats are allocated. Now, though, some of the Democratic presidential hopefuls are attacking the heart of the matter: what they call an “outdated Constitution” that sometimes “allows Republicans to be elected.”

“The election of Trump exposed a fundamental flaw in the Constitution,” Senator Elizabeth Warren said at a campaign rally. “Everyone said Hillary was supposed to win, but she didn’t. And we’re afraid that in the future, maybe Democrats won’t win again. We can’t allow that.”

Warren and numerous other Democrats have proposed an amendment to the Constitution that will state that only Democrats are allowed to win elections, a proposal they say will increase election “fairness.”

“When I think about someone other than a Democrat being elected,” said Senator Cory Booker, “it makes me so mad.” He then raised his fists and shook them, a gesture indicating he was mad. Candidate Beto O’Rourke also spoke out for the proposed amendment, though all he got out was, “It’s a great–” before skateboarding into a tree and quickly fleeing the scene of the incident.

RTWT

12 Dec 2018

Hamburger on the Administrative State

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13 May 2018

The Death of Obama’s Legacy Proves the System Actually Still Works

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David Harsani observes approvingly.

It’s strange that a president who had such a transformative effect on our national discourse will leave such a negligible policy legacy. But Barack Obama, whose imperial term changed the way Americans interact and in some ways paved the way for the Trump presidency, is now watching his much-celebrated and mythologized two-term legacy be systematically demolished.

This, in many ways, tells us that American governance still works.

When President Trump announced that the United States would withdraw from the Iran nuclear deal, he was able to do so without much difficulty because the agreement hinged on presidential fiat rather than national consensus. Obama’s appeasement of Iran was only one in a string of unilateral norm-busting projects that deserve to be dismantled.

You’ll remember the panic-stricken coverage we endured when the United States withdrew from the faux international Paris climate agreement last year. It’s true that the deal was oversold as a matter of policy, but it was symbolic of how the Obama administration concerned itself more with international consensus than domestic compromise.

We know because the president would never have won ratification for a deal remotely similar to the one he entered — nor did he attempt to. Obama had about as much interest in genuine concession as his political adversaries did.

The defense rested on the idea that the Republican-led Congress had failed to “do its job” and act on issues Democrats had deemed vital. But Congress, of course, “acted” all the time by checking the president’s ambitions. This was not only well within its purview but also in many ways the reason the electorate handed the GOP Congress in the first place.

Even if you substantively supported Obama’s actions, the reasoning that girded these supposedly temporary executive decisions was soon revealed to be abusive. In 2012, Obama told the nation that the Deferred Action for Childhood Arrivals program, a stand-in for legislation, was merely a “temporary stopgap measure.” By the time Trump overturned it, the measure represented “who we are as a people.” That’s because by “temporary” Obama always meant “until Democrats can make it permanent through the courts or electoral victories.”

RTWT

08 Jan 2018

And He Was Right!

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15 Jun 2016

Trump Just Bailed on the Second Amendment

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Tweet150

Trump just joined Chuck Schumer and Diane Feinstein in coming out for no-due-process, at-will suspension by unelected federal officials of a constitutional right.

Why bother trying to pass any new Gun Control Law, when one federal agency or another can simply add anyone (or everyone) to a list of people now instantly, abracadabra! without constitutional rights?

What Constitution? What Rule of Law? Trump would say. We have to be smart.

This is where you wind up when you choose a pragmatist unconstrained by principles or ideas as your leader. Of course, we already had lots of professional leaders of the same kind already. They are called liberals and democrats. Donald Trump is the same thing, just appearing currently in a conservative clown suit and pretending to be a brave opponent of Political Correctness. The real Trump is completely indifferent to political philosophy, principles, theory, and ideas. The real Trump is a sociopathic narcissist driven to personal aggrandizement at any cost. He’s exactly the same kind of creature as Hillary Clinton or John Kerry, just more vulgar and with a more limited vocabulary.

So he’s backtracked on Gun Control. Put him in office (if you can, which many of us doubt) and watch him backtrack on everything else, including those promised conservative Supreme Court appointments which you keep arguing justify supporting this orange-faced mountebank with a woodchuck on his head for president. Wake up, Trumpkins!

01 Mar 2016

Without Scalia

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Ramirez46

09 Oct 2015

Obey the Constitution and State Law, Not Five Judges

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Photoshopped version of: Vasili Pukiriev, Неравный брак [The Unfitting Marriage], 1862

Breitbart:

More than sixty prominent legal scholars are out with a statement saying the Supreme Court’s Obergefell decision “cannot be taken to have settled the law of the land.” Therefore the scholars are calling upon federal and state office holders, along with regular citizens, to act as if the decision is invalid.

The scholars write that the bare-majority decision on gay marriage lacks “anything remotely resembling a warrant in the text, logic, structure, or original understanding of the Constitution.” The ruling “must be judged anti-constitutional and illegitimate,” they say.

Signers of what some will consider a controversial proposition include Professor Robert George of Princeton University, who said, “We stand with James Madison and Abraham Lincoln in recognizing that the Constitution is not whatever a majority of Supreme Court justices say it is. We remind all officeholders in the United States that they are pledged to uphold the Constitution of the United States, not the will of five members of the Supreme Court.”

Specifically, the signers are telling office-holders to, “refuse to accept Obergefell as binding precedent for all but the specific plaintiffs in that case, recognize the authority of states to define marriage, and the right of federal and state officeholders to act in accordance with those definitions.”

The letter urges government officials to, “pledge full and mutual legal and political assistance to anyone who refuses to follow Obergefell for constitutionally protected reasons, and to open forthwith a broad and honest conversation on the means by which Americans may constitutionally resist and overturn the judicial usurpations evident in Obergefell.”

They remind office-holders that they pledge to uphold the Constitution of the United States, “not the will of five members of the Supreme Court.”

They cite Presidents Madison and Lincoln as justification for their position. President Lincoln acted as if the Dred Scott decision — that neither slaves nor free blacks could be considered American citizens and that the federal government had not right to regulate slavery in the federal territories — was illegitimate and he refused to recognize that it effected anyone in the country except the immediate plaintiffs.

The letter was signed by scholars from a wide range of academic institutions including Kansas State, Boston College Law School, Boston University, Michigan State University, Texas Tech, University of Oxford, Villanova, Vanderbilt, Amherst, Notre Dame, Catholic University of America and many others.

30 Sep 2015

Sophistry as the New Constitutionalism

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ObergefelCartoon

Bruce P. Frohnen, at the University Bookman, points out how the recent SCOTUS Obergefel decision typifies the operation of modern American government outside the realm of law.

Can’t get the votes you need? Simply change the rules of the Senate. Lack sufficient support to ratify a treaty? Re-define it as an Executive Agreement. Can’t get Gay Marriage through the legislatures? Interpret some new “rights” out of the Constitution.

Limited government with defined powers is magically transformed into totally unlimited government, free to do anything the community of fashion strongly desires to do.

What made Justice Kennedy´s decision in Obergefell so damaging was not its seemingly endless, vapid paeans to individual autonomy and other pseudo-intellectual claptrap. The inferior quality of Kennedy´s musings is beside the point. The problem is that his musings have no basis in our Constitution or in the moral and intellectual traditions that shaped it and our culture. Kennedy´s legal reasoning, such as it is, flagrantly violates the rule of law in order to impose the “correct” policy on the nation.

The judiciary’s willful conduct has inured it, and us, to the tactics of ideological force.

I am hardly the first to point out that Obergefell substitutes the will of judges for the rule of law. It demands of the people that they forego their obligation to follow and uphold the law of the land and instead bow to the will of the rulers. Such commands are inimical to any semblance of ordered liberty. Unfortunately, these commands, issuing ever-more frequently from the courts and the administrative state, have become deeply embedded in our legal culture and have rendered our legal nomenklatura immune to arguments rooted in reason and to principles of fair play and civil discourse. At the same time, the judiciary’s willful conduct has inured it, and us, to the tactics of ideological force.

Read the whole thing.

26 Sep 2015

Attention Charles Krauthammer

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BrainSurgeon

04 Sep 2015

Constitutional Jurisprudence in 2015

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ConstitutionTorn

Christopher Taylor identifies the point we’ve reached in America’s relationship to its Constitution.

And so we reach the point at which I’ve given up the idea of ever getting back to the constitution today. In fact, I’ve come to the realization that there’s no point in appealing to the document as any kind of governing and restraining document because the government and people have simply abandoned it except as a fetish.

Recent supreme court decisions have simply negated the constitution entirely, building on decades of ignoring and twisting the document, inventing things not in it until its simply trash. And all of this happened because of well-meaning tiny little steps, any one of which the founding fathers would have been enraged at, but we sigh and shrug at today.

There is no rational basis for thinking that any government will reverse this. It simply is without precedent in human nature and history for a politician to voluntarily surrender their own power or a government to weaken its self. There is only one direction, one trend: toward tyranny.

The founders knew this. They did their best to lock in our freedom and protect this inevitable tendency of the state. It was so well done that the nation lasted more than a century with great, widespread liberties. That era is over, and only one future lies before us, barring some act of God.

The only question is what lies beyond that point, and how we get through it.

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