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

The Case for the Repeal Amendment

Today, a political movement has arisen to oppose what seems to be a highly discretionary and legally unconstrained federal government. Beginning in the Bush Administration during the Panic of 2008 and accelerating during the Obama Administration, the federal government has bailed out or taken over banks, car companies, and student loans. It is now preparing to vastly expand the Internal Revenue Service to help it take charge of the practice of medicine for the first time in American history. This marked and rapid increase of power has shaken many Americans who are now looking to the United States Constitution with renewed interest in the limits it imposes on the powers of Congress. Despite what the Constitution says, however, federal judges have allowed Congress to exceed its enumerated powers for so long, it seems they no longer entertain even the possibility of enforcing the text. Judges appointed by both Republican and Democratic presidents largely operate within what academics call the New Deal settlement. By this it is meant that the courts allow Congress to exercise unchecked power over the national economy and everything that may affect it, limited only by the express guarantees of the Bill of Rights. In this arena, with some exceptions, the post-New Deal judiciary disagrees only on whether other unenumerated rights may also receive protection and, if so, which ones. But whatever few additional fundamental rights may be recognized, they do not include the protection of any so-called economic liberty that might inhibit the national regime of economic regulation. In this manner, the original scheme of islands of federal powers in a sea of liberty has been transformed into a regime of islands of rights in a vast sea of national power. But judicial passivism is not the only cause of expanding congressional power. Also responsible are two changes to the Constitution\u27s structure that were made in 1913 as populist or progressive reforms but which fundamentally altered the relationship between the federal government, the states, and the people as it appears in the Constitution\u27s text

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

Was Slavery Unconstitutional Before the Thirteenth Amendment? Lysander Spooner’s Theory of Interpretation

In 1843, radical abolitionist William Lloyd Garrison called the Constitution of the United States, a covenant with death and an agreement with hell. Why? Because it sanctioned slavery, one of the greatest crimes that one person can commit against another. Slavery was thought by abolitionists to be a violation of the natural rights of man so fundamental that, as Lincoln once remarked: If slavery were not wrong, nothing is wrong. Yet the original U.S. Constitution was widely thought to have sanctioned this crime. Even today, many still believe that, until the ratification of the Thirteenth Amendment prohibiting involuntary servitude, slavery previously had been constitutional, and for this reason, the original Constitution was deeply flawed. But in 1845 one man disagreed with the conventional wisdom. That man insisted that slavery was not only a moral abomination; it was also unconstitutional. His name was Lysander Spooner and he defended this position in a book, entitled The Unconstitutionality of Slavery. While rejecting his conclusion, Garrison wrote of Spooner\u27s argument: We admit Mr. Spooner\u27s reasoning to be ingenious--perhaps, as an effort in logic, unanswerable. Historians of abolitionism know Spooner\u27s name, but lawyers, law professors and their students generally do not. This is a pity. For Lysander Spooner deserves a place of honor among American lawyers, both for the principles for which he stood against the crowd and for the brilliance with which he defended those principles. In this Essay, though the author will be unable to do his analysis complete justice, he wants to describe the method of constitutional interpretation that led Spooner to his conclusion about slavery. In many ways, Spooner\u27s interpretive approach has a very modern ring. In important respects, however, his approach is preferable to those commonly used today and worthy of study for this reason alone

The Ninth Amendment and Constitutional Legitimacy: Foreword to the Symposium on Interpreting the Ninth Amendment

Does the Constitution of the United States of America impart legitimacy on legislation enacted under its auspices? If so, how? Is a citizen bound in conscience to obey such legislation? If so, why? Does legislation create a duty of obedience simply because it was enacted by a group of persons calling themselves a legislature, or is there some other reason? Would any constitution impart such legitimacy or is there something special about the character of those that do? If the latter, does the United States Constitution have the requisite character? While I shall not definitively answer these questions in this Foreword, I hope to flesh them out enough to show that they belong in the ongoing debate concerning the proper contours of judicial review. For, while the proper method of interpreting the Constitution and the appropriate role of judicial review are hotly debated, few discuss whether and why a citizen has a moral obligation to adhere to legislation that results from constitutional processes. There is an unspoken assumption that legislation resulting from constitutional processes creates at least a prima facie duty of obedience in a citizen

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

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