The Declaration of Independence and the American Theory of Government: “First Come Rights, and Then Comes Government”

The topic of this panel is the Declaration of Independence, to which I devoted a chapter of my recent book, Our Republican Constitution. I want to draw on that book to make five points

The Separation of People and State

The subject of American exceptionalism, about which much has been written, is extremely complex. There is no simple way to describe all the ways in which America differs from the other nations of the world. The United States Constitution is a central part of the creed that defines, creates, and preserves American exceptionalism. The American vision of constitutionalism includes at least four distinctive elements: the belief in adherence to a founding document: a written Constitution; the belief in constitutionally limited government; the legal enforcement of these limits by an independent judiciary, and the invocation of these limits by the Congress, the Executive, state governments, and the People themselves; and the anti‐democratic nature of the Constitution’s republican form of government. Each of these elements has come under challenge by American constitutional law professors, at least some of whom prefer the European model of constitutionalism to the American one. To the extent that these elements are eroded, America becomes less exceptional, which is a welcomed development among some of those same legal academics. The separation of People and State is preserved by the Constitution because no one can claim to speak for the People: neither the President (unlike various dictatorships) nor the Congress (unlike the parliamentary systems that dominate throughout the rest of the world). This separation, like the separation of Church and State, provides the space for the rest of the American ideology of classical liberalism to survive. In contrast, the rest of the world’s democratic regimes, whether or not they have written constitutions, are far more susceptible to capture by interests and also by the ideological fashions of the day. In the author\u27s view, the separation of People and State has served America well

Clauses Not Cases

Clauses Not Cases is a Response to Robert Post and Reva Siegel, Questioning Justice: Law and Politics in Judicial Confirmation Hearings, Yale L.J. (The Pocket Part), Jan. 2006. In Questioning Justice, Robert Post and Reva Siegel make three claims. First, that the Constitution authorizes the Senate to rest its judgement, in part, on the constitutional philosophy of nominees to the Supreme Court; second, that this practice is justified on grounds of democratic legitimacy; and third, that it is best implemented by asking nominees “to explain the grounds on which they would have voted in past decisions of the Supreme Court.” The author agrees entirely with the first and most important of these propositions. He disagrees, however, that either the Constitution as a whole, or this particular practice is best justified on grounds of democratic legitimacy, or that their proposal is the best way to assess the philosophy of nominees

The Disdain Campaign

A response to Pamela S. Karlan, The Supreme Court 2011 Term Forward: Democracy and Disdain, 126 Harv. L. Rev. 1 (2012). In her Foreword, Professor Pamela Karlan offers a quite remarkable critique of the conservative Justices on the Supreme Court. She faults them not so much for the doctrines they purport to follow, or outcomes they reach, but for the attitude they allegedly manifest toward Congress and the people. “My focus here is not so much on the content of the doctrine but on the character of the analysis.” She describes Chief Justice Roberts’s opinion of the Court as “a thinly veiled critique of Congress: the fools couldn’t even figure out how to structure section § 5000A to render it constitutional.” And of the Chief Justice’s attitude, she says that “[h]e conveyed disdain even as he upheld the Act.” In her conclusion, she asks, “if the Justices disdain us, how ought we to respond?” This question echoes how she begins her provocative piece: “The Court’s dismissive treatment of politics raises the question whether, and for how long, the people will maintain their confidence in a Court that has lost its confidence in them.” Although Professor Karlan also offers insightful observations comparing the Roberts Court with the Warren Court, her principal theme is reflected in these passages and the very title of her piece: “Democracy and Disdain.” According to Karlan, in addition to whatever may be wrong with their principles and doctrines, the conservative Justices simply have a bad attitude. To paraphrase the Captain in Cool Hand Luke, they don’t have their “minds right.” It is this quite distinctive thesis the author wishes to examine here. For, as it happens, the left knows a thing or two about disdain

Bad Trip: Drug Prohibition and the Weakness of Public Policy

The case against prohibition is overwhelming precisely because so many different types of considerations all point to a single solution: the legalization of illicit drugs. The complexity of the case against prohibition means, however, that it cannot be presented adequately by a few anecdotes or even a lengthy essay. Nothing less than a book-length treatment will suffice and, fortunately, that book has been published. America\u27s Longest War is an ambitious effort to evaluate the effectiveness of the policy of prohibition. It accomplishes this by marshalling the empirical research that has been done on both drugs and drug prohibition and then offering persuasive analysis of this data. In this review, the author is able to touch upon only a few evocative highlights. In part I, the author relates some of the least known and most provocative facts that Duke and Gross report about licit and illicit drugs. In part II, he discusses the origins of drug prohibition. If the merits of drug prohibition are to be questioned seriously, then the many myths about drug use must be challenged-and Duke and Gross have done so effectively. In part ill, the author relates the grave social costs of drug prohibition that Duke and Gross document and adds a few they missed. The harmful consequences discussed in part Ill each reflect the morals of the stories with which he began this review. In part IV, the author examines the prevailing public policy approach to lawmaking that is responsible for the origination and continuation of the drug war and advocate a more principled approach. He makes clear, this is not a critique of public policy analysis, the source of much very useful information. Rather, the author criticizes adherents of a public policy model of decisionmaking that rejects what they refer to as a simplistic or doctrinaire reliance on general principles or individual rights to decide questions of legal coercion. Instead, they posit that legal coercion is best guided by public policy experts who are competent to formulate rational solutions to what they abstractly define as social problems. The author argues that the evidence presented in America\u27s Longest War is an indictment, not only of the War on Drugs, but also of this method of legal decisionmaking, though Duke and Gross seem not to appreciate fully this important lesson. Although adherence to sound principles does not substitute for the knowledge provided by good public policy analysis, the author explains why the use of legal coercion to pursue worthwhile public policy objectives should be constrained by principles or rights. Finally, in part V, the author briefly considers alternatives to the current regime of prohibition, including the form of legalization favored by Duke and Gross. Although far preferable to the status quo, he discusses how the principles identified in part IV reveal deficiencies in their proposal

The Original Meaning of the Judicial Power

In this paper, the author refutes any claim that judicial review was invented in Marbury v. Madison, or that, because it is contrary to the original meaning of the Constitution, it must be justified by some nonoriginalist interpretive methodology. He will do so, not by discerning the shadowy and often counterfactual intentions of the founding generation, but by presenting as comprehensively as he can what the founders actually said during the constitutional convention, in state ratification conventions, and immediately after ratification. These statements, taken cumulatively, leave no doubt that the founders contemplated judicial nullification of legislation enacted by the states and by Congress. In short, the author shall demonstrate that the original meaning of the judicial power in Article III, included the power of judicial nullification. Many constitutional scholars who do not consider themselves to be originalists nevertheless acknowledge that originalism provides the starting point of constitutional interpretation or at least is a factor to be considered among others. It is equally important that these nonoriginalists are made aware of the substantial evidence that the original meaning of the judicial power included the power to nullify unconstitutional laws

Three Keys to the Original Meaning of the Privileges or Immunities Clause

Establishing the original meaning of the Fourteenth Amendment’s Privileges or Immunities Clause requires a wealth of evidence. But three key data points are crucial to identifying the core of its meaning. First, Supreme Court Justice Washington’s explanation of the meaning of “privileges and immunities” in Corfield v. Coryell; second, the rights protected by the Civil Rights Act of 1866; and third, Michigan Senator Jacob Howard’s speech explaining the content of the Privileges or Immunities Clause when introducing the Fourteenth Amendment to the United States Senate in 1866. Any theory of the Privileges or Immunities Clause and its original meaning that cannot comfortably accommodate these three items is highly questionable

Necessary and Proper

In this article, the author maintains that, if the courts are to hold Congress to the exercise of its enumerated powers, then they must come to grips with the congressional power: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. While the Necessary and Proper Clause has long been used to greatly expand congressional power, he argues that, to the contrary, it provides a two-part standard against which all national legislation should be judged: Such laws shall be necessary and proper. According to this standard, laws that are either unnecessary or improper are beyond the powers of Congress to enact. In part I, the author considers the meaning of this requirement. First, he identifies what he calls the Madisonian and Marshallian conceptions of necessity. Next, the author discusses the meaning of proper, the other half of the standard that all laws enacted by Congress must meet and discuss how propriety is distinct from necessity. Finally, in part II, he considers a doctrinal means of implementing the Necessary and Proper Clause. The author concludes that a rigorous application of the necessary and proper standard would serve to protect both the enumerated and, especially, the unenumerated rights retained by the people

Foreword: Is Reliance Still Dead?

One thing I found out when I was a prosecutor is that you should never tell a police officer he cannot do something, for that just serves as an open invitation for him to do it. In recent years, I have learned a similar lesson about legal scholarship which I should probably keep to myself but won\u27t. If you proclaim the existence of a scholarly consensus, this is an open invitation for academics to try to demolish such a claim

Kurt Lash\u27s Majoritarian Difficulty: A Response to a Textual-Historical Theory of the Ninth Amendment

Kurt Lash believes that, in addition to individual natural rights, the Ninth Amendment protects collective or majoritarian rights as well. In this essay the author explains why Lash’s majoritarian vision is contrary to the antimajoritarianism of the man who devised the Ninth Amendment, James Madison, and those who wrote the Constitution. Not coincidentally, it is contrary to the individualism of the other amendments constituting the Bill of Rights, and the public meaning of the Ninth Amendment as it was received during its ratification. It is also contrary to the individualist conception of popular sovereignty adopted in the text of the Constitution as interpreted by a 4 to 1 majority of the Supreme Court in its first major constitutional decision. And it is contrary to the individualist interpretation of the Ninth Amendments by the one source Lash cites who actually uses the word collective: St. George Tucker. In sum, the collectivist interpretation of the phrase others retained by the people is anachronistic—a projection of contemporary majoritarianism onto a text which is and was most naturally read as referring to the natural rights retained by all individuals, and to these rights alone