Monday, August 12, 2013
The Riddle of Constitutional Formalism
Gerard N. Magliocca
Next month I will begin a series of talks on John Bingham to coincide with the publication of my book. As I reflect on what I will say, I keep returning to the idea that Bingham was America's most important legal formalist. That may sound like a strange claim to make about a politician, but hear me out.
Consider Bingham's 14th Amendment formalism as it relates to incorporation of the Bill of Rights (or some of them). Over at PrawfsBlawg Kurt Lash has an interesting post on perhaps incorporating the 10th Amendment, well beyond Amendments 1 through 8, all of which have not been incorporated as yet. How formal is formalism when almost 150 years have elapsed since the ratification of the 14th Amendment?
Thaddeus Stevens (played by Lionel Barrymore and Tommy Lee Jones).
Good discussion. I do think the 14A had some force before 1968.
Joe's reference to "before 1968" would go back to at least 1954, the Warren Courtyears; prior to 1954,less force, in my view.
In a comment on Bruce Ackerman's post at this Blog, I made reference to Alfred H. Kelly's "Clio and the Court: An Illicit Love Affair," 1965, Sup. Ct. Rev. 119. At pages 132-134, II. Adamson v. California Revisited Kelly discusses some of the 14th Amendment history that Gerard may be interested in for purposes of this post. (I assume Gerard is familiar with Kelly's essay, which I had earlier described as quite detailed on "law office history.")
(Kelly referred to the Warren Court as consisting of libertarians. I don't know if today's libertarians would be prepared to accept that categorization.)
Legal formalism is courts applying the law as written to the facts of a case rather than amending it in a common law fashion to achieve a desired outcome.
How is Reconstruction a failure of formalism when the Reconstruction era courts repeatedly refused to apply the Civil War amendments as written?
A legal formalist need not be a member of a court. Legal formalism can be set forth in statutes enacted as well as the Constitution and Amendments thereto. I assume that Gerard referred to Bingham as "America's most important legal formalist" because of the care he took in framing the provisions of the 14th Amendment. Our SALADISTA may not accept Gerard's characterization, but why does our SALADISTA leap to the courts as a measure of Bingham? Was Bingham a legal formalist? He could have been even though the Reconstruction Era courts may not have been.
I was not addressing Gerard's characterization of Bingham, but rather the subsequent assertion that formalism failed because the courts did not enforce the Civil War amendments Bingham and others drafted.
Who sees Reconstruction as a failure of formalism? Reconstruction was a failure of political leadership. Lincoln's view was undeveloped at his death; Andrew Johnson's was designed to put his white friends in power; Congress' was to disestablish slavery and punish the South for the Civil War; Southerners' was to overcome the shame of not having servants and to resist social and political equality; former slaves wanted protection of their new rights (as did Grant) and free education. But equality fatigue, the power of big city Democratic machines, the lust for wealth, financial scandals, and the realpolitik of Hayes-Tilden brought an end to Reconstruction.
The Supreme Court's failure, in the Civil Rights Cases and Plessy v. Ferguson and similar cases, to enforce the 13th-15th Amendments was due to its own calculation that only military occupation would make that possible, and that was not in the cards. Justice Breyer makes much of Eisenhower's sending troops to Little Rock to enforce school desegregation, but would the Court have decreed desegregation if it knew that the Administration was not going to enforce it? I think not. The Court and the Executive were both driven by the Cold War need to deprive the Communists of a stick with which to beat the US in a world freeing itself from colonialism.
In a comment of mine on Prof. Ackerman's post at this Blog on National Security and the Speech and Debate clause, i asked:
"Query: Has the phrase 'shall not be questioned' in the Speech or Debate clause been compared to a similar phrase in the 14th Amendment's public debt clause? What does adoption history (respectfully 1789 and 1868) tell us about the original meanings of these phrases?"
I put this out as a silent teaser since the public debt/government shut-down issue may emerge shortly after Congress returns. Much of the language of the 14th Amendment had been subjected to previous testing of language in the Constitution, statutes and court decisions.
No one took the bait on my teaser. So I repeat it here as a test of legal formalism. How does the Court react to legal formalism? r.friedman's comment provides a good response. History is apparently not fixed in meaning as suggested by Jack Balkin in his recent article on new originalism and uses of history. The Court has not been consistent with history. Despite the efforts of Bingham et al with the 14th Amendment, its meaning as determined by the Court has ebbed and flowed with the political tides.
Sometimes the law precedes society in what is possible. The 14th Amendment was largely moot in its own day, but it created the necessary space in the law that society would be able to use later on once it had sufficiently advanced to recognize the justice of equal rights.
as "America's most important legal formalist" because of the care he took in framing the provisions of the 14th Amendment. Our SALADISTA may not accept Gerard's characterization, but why does our SALADISTA leap to the courts as a measure of Bingham?fut 14 coins elo boosting fifa ultimate team coins lol boostPost a Comment