David Strauss

Cross posted at University of Chicago Law School Faculty Blog

David Strauss

Jack Balkin’s insightful and fair-minded response raises several interesting issues.

1. First, the "levels of generality" problem. The "original expected applications" originalists have a solution to this problem, in theory. They would say that a provision should be construed at the level of generality that was originally understood (or that the Framers intended, or whatever). So: can the Cruel and Unusual Punishment Clause be interpreted to forbid capital punishment? That would depend on whether the original understanding was that the Clause was to be interpreted dynamically; and if so, how dynamically. Specifically, was the original understanding that the Clause should be interpreted dynamically enough to permit "cruel and unusual" to be extended to cover capital punishment at some point in the future? (And I guess the further question, for this kind of originalist, would be whether we are now at that point.)

This is a note on Larry Kramer's "popular constitutionalism" thesis that I posted today on the H-Law listserv. It's belated because I was first thinking of making it about...well, two years ago! Better late than never. For me, the debate over Kramer's book was frustrating because I thought everyone was missing at least one of his main points. To exaggerate a bit, everyone was so interested in his argument about contemporary judicial review that they missed the wonderful original research about the intellectual origins of constitutionalism in the eighteenth century. Also, the critiques of his book had too much of a "flavor of the month" dismissiveness about them.

I know from personal experience how difficult it can be to find early evidence of American thinking on constitutionalism and judicial review. Quick -- what's the best intellectual (as opposed to doctrinal) history of the origins of judicial review? (I mean prior to the 1770s when all the fun begins) In my experience at least, the biblio is a little thin, something Gordon Wood noticed in the 1980s. That's what makes Kramer's book so valuable in my view. It is one of the few intellectual histories available. But to understand Kramer's argument, you have to grasp his main point.

Many of the discussions of Kramer's book have been frustrating in that

Cross posted at University of Chicago Law School Faculty Blog

Like David Strauss, I’m delighted to be able to participate in this exchange on liberalism and originalism.

In his first post, David makes two criticisms of originalism. The first is that it is empty; it has no real content. The second is that it is illiberal; it has bad content. (Note that these two claims are at least potentially in tension with each other.)

Cross posted on University of Chicago Law Faculty Blog

The discussion between David Strauss and myself about whether originalism is a good idea for liberals has by now gone well beyond the narrow question of originalism itself and moved on to far deeper topics-- rhetoric, faith, and legitimacy. I cannot address all the valuable things David has to say in his last post, but here are a few comments on what I thought was most worthy of note.

I. "Rhetoric" versus "Legal Argument"

Tomorrow I'll be speaking at the American Enterprise Institute at a panel jointly sponsored by AEI and Brookings on Steve Teles's wonderful new book, The Rise of the Conservative Legal Movement: The Battle for Control of the Law. Also on the panel will be Michael Greve, an AEI scholar in residence who was the cofounder and executive director of the Center for Individual Rights, an important conservative public interest law firm. William Galston of Brookings will moderate.

Teles's book is important in many respects; indeed, it is likely to become the standard history of the rise of legal conservatism. For me what is interesting is the light it sheds on how living constitutionalism actually works, in this case, living constitutionalism from the right.

Apparently everyone is up in arms over the fact that John McCain was born in the Panama Canal zone in 1936. Is he a "natural born citizen" eligible to be President under Article II, section 1, clause 4 of the Constitution?

I have to tell you, frankly, that whether McCain is "natural born" is the least of our worries. If you are truly an originalist, as I am, nobody is eligible to be president today.

I recently took Ed Whelan's simple one question test to determine whether you are really an originalist and confirmed that, yes, I am one of that proud and hardy band.

Q. The Constitution provides, as one of the criteria to be eligible to become president, that a person must be a "natural born Citizen" (or, alternatively, in a provision that long ago ceased to apply to any living persons, "a Citizen of the United States, at the time of the Adoption of this Constitution") How would you figure out what the phrase "natural born Citizen" means?

Thanks to Jack for responding so quickly to my post. I’ll try to keep these further thoughts on a relatively general level, because I don’t mean to respond point by point. Jack makes clear that principles do not have to have a historical pedigree as long as the original semantic meaning of the text is preserved. This clarification makes me think of something that bothered me as I read the Constitutional Commentary symposium. In the world of text and principle, what is the role of amendments and how do you tell when you need one? You might say to alter the semantic meaning of a piece of text (or a Court opinion) we don’t like anymore, but actually there are few amendments that do that. Another possibility is that we add amendments when we need new principles, but that is perhaps made unnecessary by the capaciousness of constitutional principles, a quality that Jack notices. Here we encounter some arguments well known in constitutional history such as: we don’t need the bill of rights because such guarantees were structurally built into the 1787 Constitution, we don’t need the thirteenth amendment because Congress already has the power, we don’t need additional rights guarantees as long as the Constitution is informed by the principles of the Declaration of Independence, and so on.

One of the respondents to my previous post points out, altogether correctly, that George W. Bush isn't truly "unaccountable." It's possible, after all, that Congress could impeach him or that it would simply vote to cut off all funds for even one more day in Iraq. Putting to one side the fact that the latter action would be irresponsible in the extreme, any genuine analysis of the notion of the American "constitutional dictatorship" must include attention to the vital role that political parties play in our political system.

Imagine, for example,

that Ross Perot had been elected and then embarked on Bush's policy in Iraq. One wonders if he would have been successful, precisely because there would have been no institutionalized party backing the Texas maverick. Even if he could have initiated some activities using his constitutional commander-in-chief powers, one could well expect that members of both parties would have been eager to engage in oversight and, should he turn out to be so dangerously adventurist as George W. Bush has been, he might well have been impeached. Who, after all, would have had any interest in saving him? Indeed, the impeachment would dramatically demonstrate to Americans the dangers of deviating from the sacred two-party system and succumbing to the blandishments of an "independent."

Can the President disregard the torture statute, or the Uniform Code of Military Justice, if he concludes that the restrictions in such statutes make the successful prosecution of an armed conflict more difficult? Is FISA unconstitutional as applied to the war against al Qaeda? Can the President disregard the Geneva Conventions? The Habeas Act? Legislative restrictions on detention, interrogation, combat, etc.?

The second part of my article with David Barron on the President's authority to disregard congressional limitations on the conduct of war is now available online here. (First part is here.) The abstract:
Over the past half-century, discussions of constitutional war powers have focused on the scope of the President’s “inherent” power as Commander in Chief to act in the absence of congressional authorization. Professors Barron and Lederman argue that attention should now shift to the fundamental question of whether and when the President may exercise Article II war powers in contravention of congressional limitations, when the President’s authority as Commander in Chief is at its “lowest ebb.” This Article is the second part of a two-part effort to determine how the constitutional argument concerning such preclusive executive war powers is best conceived.

During the past decade, prominent political scientists have written terrific essays under the rubric "political regimes." Many essays cite as foundational such previous work as Robert Dahl’s "Decision-Making in a Democracy: The Supreme Court as a National Policymaker," 6 Journal of Public Law 279 (1957). Neither Dahl nor the first studies which elaborated his thesis, however, used the term "political regimes" to describe their analysis. Indeed, these foundational works had a somewhat different point than works which self-consciously employ the "political regimes" label. At least, this is true of an essay I wrote that is sometimes cited in this vein. With some luck, this post (and possibly a few others) will clarify matters and not add to the confusion.

Many supporters of Second Amendment rights are, pardon the pun, up in arms over the Bush Administration Justice Department's amicus brief in Heller, the Second Amendment case now before the Supreme Court. The government's brief recognizes an individual right to bear arms but argues that historically the right excluded felons (even though they are presumably part of "the People"). Moreover, it argues that the Second Amendment may permit a wide range of reasonable regulations of firearms.

Probably the most famous dissent in the history of the United States Supreme Court is Holmes’ dissent in Lochner (1905). “The 14th Amendment does not enact Mr. Herbert Spencer’s Social Statics,” he declaimed.

“A constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizens to the state or of laissez faire.”

Holmes’ attack on the majority has been quoted innumerable times, and is widely considered a brilliant statement of what was wrong with the majority view.

There is reason to believe that Holmes’ got his argument—or at least the idea—from an article that was published a dozen years earlier (which I accidentally stumbled across). In 1893, making an argument that is remarkably resonant of Holmes’ dissent, C.B. Labatt described what he saw as a newly emerging theory of constitutional interpretation:

Mike Huckabee is the latest Republican candidate to call for amending the Constitution, though Mitt Romney has led the way. It was "flip-flop" Mitt who in recently told the Family Values Research Council's Values Voter Summit, "I will work with the people in this room, as I have for the past four years, to champion a federal marriage amendment to protect marriage as the union of a man and a woman. ... Make no mistake: a federal amendment is the only way we can protect marriage from liberal, unelected judges" [who may, of course, be interpreting the Equal Protection Clause accurately, a possibility that Romney presumably doesn't recognize].

Theorists and pragmatists in the American legal academy fight over the content of constitutional law as fiercely as do liberals and conservatives or Republicans and Democrats. Grand theorists insist that constitutional debates are best settled by reference to such broader principles as originalism or “all men are created equal.” Pragmatists respond that such matters are better settled by empirical investigations aimed at establishing the costs and benefits of particular policies or institutional arrangements. Free Speech & Human Dignity boldly champions the theorist perspective. Steven J. Heyman’s exceptionally accessible perspective on the First Amendment contends that fundamental constitutional problems are best resolved through a return to natural rights thinking. “Free speech,” he maintains, should be justified “primarily on intrinsic grounds, as a right of human nature and republican citizenship.” The analysis that follows is an important addition to the literature on the First Amendment, even if unlikely to convert more empirically oriented constitutional thinkers.

Today in Washington, D.C., Doug Kendall will announce the formation of a new public interest law firm, the Constitutional Accountability Center. The new center will be dedicated to litigation that promotes a proper understanding of text, history and structure and that demonstrates that our Constitution, correctly interpreted according to its original meaning, is a progressive document. I'm a member of the Board of Advisors and I wish Doug every success in his efforts.

Mark Kende, Professor of Law at Drake and current chair of the Section on Constitutional Law has an inspired idea for the program at the next AALS meeting. The program notice is below. Scholars perhaps overuse the concept of a "crisis" (although it is eye-catching), but there is little doubt there are some strange doctrinal developments in U.S. conlaw. Mostly because of Justice Kennedy, I find I have a harder time explaining to students what the "standard" approach to equal protection and substantive due process jurisprudence is supposed to be. But perhaps it is fairer to say the entire Court seems less interested in the sort of hyper-articulated "tiers of scrutiny" which I absorbed in law school as among the most important doctrinal developments of the 1970s. That entire era in conlaw now seems played out. Again, "doctrinal chaos" seems a bit strong, there are always important inconsistencies in conlaw jurisprudence. But more attention should have been paid to Laurence Tribe's announcement, in the wake of the Schiavo mess in 2005, that he could not produce a new edition of his famous conlaw treatise.

2009 ANNUAL AALS MEETING: AALS SECTION ON CONSTITUTIONAL LAW CALL FOR PAPERS: IS AMERICAN CONSTITUTIONAL LAW IN CRISIS?

Well, because surely not enough has been written about the Heller case already . . . I thought I'd weigh in with three fairly discrete observations about it. My remarks in many respects complement what Akhil Amar and Kenji Yoshino have recently posted.

1. First, there has almost certainly been more textualist and originalist writings -- in the briefs, the blogosphere, the law reviews, etc. -- about this case than about any other in recent memory. (This is largely a function of the fact that there is so little Supreme Court doctrine on point, and thus an argumentative void that could easily be filled by appeals to text and original meaning.) Yet in my unscientific small survey, I've yet to find even one observer of the Court who thinks that textualist and/or originalist arguments will have the slightest effect on the vote of even a single Justice in the case . . . just as in most other constitutional cases (such as the Sixth Amendment right to counsel case argued this morning), in which such arguments are window dressing, at best.

Before making some general observations about Charlie Savage’s new book Takeover, I want to say that this is one of the best journalistic accounts concerning presidential power (a topic difficult to explain to a lay audience) published in a long time. Savage appears to be a tireless reporter and he takes on many interesting issues in the book. I agree with him (or his sources) on many specific points concerning the Bush II administration’s use of power. Here are a few: trying to set up military commissions from scratch (or even use them at all) was a major error; the analysis of presidential power in the torture memos was incompetent; trying to conduct NSA domestic surveillance outside of FISA was illegal; and there is no such thing as unilateral presidential authority to ignore an otherwise valid congressional statute.

Kofi Annan announced today that a power sharing agreement has been reached between Kenya leaders Mwai Kibaki, the incumbent who claimed victory after a disputed presidential election in December, and Raila Odinga, the opposition leader. According to news reports, Odinga will hold the post of Prime Minister, an innovation in Kenya, and Kibaki’s and Odinga’s parties will each hold 50% of cabinet positions.

It appears that the post-election crisis, and the negotiations to stop the killing, have accomplished what several years of efforts to reform the Kenya constitution have been seeking: divided executive power, with leadership shared between a President and a Prime Minister.

While the agreement may succeed in bringing the immediate crisis to a close, it will be interesting to see how this divided government will function pending the next round of elections.

My colleague Sandy Levinson asked me whether Roger Clemens got a raw deal. In particular, he asked whether Senator Mitchell's report that Roger Clemens was among the major league baseball players accused of steroid use shows the folly of the Supreme Court's constitutional rules in defamation cases. New York Times v. Sullivan and its progeny hold that public figures cannot succeed in defamation suits unless they show actual malice. (The actual case in point is Gertz v. Robert Welch, which extends the NYT privilege from public officials to public figures like Clemens). After all, Sandy pointed out, Clemens can't clear his name by suing Senator Mitchell. All he can do is cost the newspapers and Mitchell (and himself) hundreds of thousands of dollars in legal fees in a case that he will eventually lose because the bar is set so high.

I'm going to crosspost this at http://www.utexas.edu/law/faculty/slevinson/undemocratic/blog/, which is devoted entirely to discussion of the ideas in Our Undemocratic Constitution (and which, since the Moyers interview, is getting some participation). I invite anyone on this list to join the discussion there.

The heart of Mark's post is as follows:

Dahlia Lithwick and Eric Posner question my political science-style account of living constitutionalism, in which popular mobilization and partisan entrenchment in the judiciary play a major role in shaping constitutional change. Dahlia doesn't like the normative implications of my account, while Eric largely agrees with the account descriptively but thinks it makes judicial review superfluous. Let me respond to Dahlia in this post, and respond to Eric in a later post.

Grading constitutional law examinations provides an interesting window into what students are thinking and not thinking. As is the case with most professors, I find grading rather tedious, save for the occasional amusing mental typo. This year’s winner, on an examination that was quite good, was "the theory of the unitary executive gives the president the power to lead a rebellion against the United States." I hope no one tells Dick Cheney. Still, several points might be of broader interest and do not seem to be a violation of confidentiality.

Needless to say, many pundits are now commenting on the rules of the Democratic Party re the selection of its presidential candidate. See, e.g., E.J. Dionne's column in today's Washington Post, where he writes that "Democrats have contrived a nominating contest that even Rube Goldberg would have considered too convoluted, too dysfunctional and too improbable to name as his own." Save for the certainly peculiar way by which Texas names its delegates--I had the pleasure of voting twice for Barack Obama, once in early voting (in a secret ballot) and then several days later at my local caucus (which is definitely not secret)--I don't share the hostility to a preference-sensitive proportional representation system that does not negate the votes of everyone who doesn't vote for "the winner" (who may, as with McCain in a number of states, get distinctly less than a majority of the vote). But I've already made such arguments, and I won't rehearse them again. My current grumpiness is about something else, though regular readings of Balkinization shouldn't be surprised by what I'm about to write.

Probably the most famous dissent in the history of the United States Supreme Court is Holmes’ dissent in Lochner (1905). “The 14th Amendment does not enact Mr. Herbert Spencer’s Social Static,” he declaimed.

“A constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizens to the state or of laissez faire.”

Holmes’ attack on the majority has been quoted innumerable times, and is widely considered a brilliant statement of what was wrong with the majority view.

There is reason to believe that Holmes’ got his argument—or at least the idea—from an article that was published a dozen years earlier (which I accidentally stumbled across). In 1893, making an argument that is remarkably resonant of Holmes’ dissent, C.B. Labatt described what he saw as a newly emerging theory of constitutional interpretation:

Bob Bauer

Chris Elmendorf, who has written some of the best work on institutional design in the field, has offered a thoughtful response to our extended riff on the merits of the Carter-Baker Commission's voter ID decision. We agree with much of his nuanced and smartly critical post. We agree fully, for example, with his points on the right uses to make of experts. More generally, we think that Elmendorf overstates our dissatisfaction with the Carter-Baker Commission: one of us has had positive things to say about the Commission's role, and the other has acknowledged its usefulness despite harboring stronger reservations about the Commissions design and decisionmaking process.