Balkinization  

Saturday, June 15, 2019

The Other Side of the Mountain: Restoration, Redemption, and Originalism

Guest Blogger

For the symposium on Ken Kersch, Conservatives and the Constitution (Cambridge University Press, 2019).

Ken I. Kersch

My new book, Conservatives and the Constitution:  Imagining Constitutional Restoration in the Heyday of American Liberalism (Cambridge University Press, 2019), does many things -- some of which I had in mind, some of which I was only half-conscious, and the rest of which is for others to say.  One thing I clearly wanted to do in mapping what a broad spectrum of movement conservatives were saying and writing about the U.S. Constitution in the postwar, pre-Reagan “wilderness” years -- the heyday of American liberalism -- was to suggest that the understandings of contemporary readers concerned with the trajectory of American political life generally, and the nature and trajectory of modern conservatism more specifically, might be deepened by looking at conservatism and conservative constitutionalism through new lenses, asking different questions, and gathering new information.

The posts of Ann Southworth, Sandy Levinson, Steve Griffin in particular do the book the great justice of describing it accurately, and underlining precisely what it aspires to do, and does.  By some happy alchemy, moreover, they did so prismatically:  Ann, Sandy, and Steve each describe the book from a different angle.  Together, their posts offer a rounded portrait of the book.

Although both Mark Tushnet’s and Andy Koppelman’s posts make significant observations and raise important, even key, questions -- which I will address in due course -- they are also, to my mind, a bit off-base.  In framing the book as essentially involving the two separate spheres of “political scientists” and legalist originalists, Tushnet perhaps inadvertently suggests that this is a book is mostly about constitutional argument by conservative political scientists in the postwar years.   That is not the case, as the descriptions of the book by the other contributors to the Balkinization symposium make clear.
Read more »

Sunday, June 16, 2019

Ayn Rand, Gary Lawson, and the Supreme Court

Guest Blogger

For the symposium on Ken Kersch, Conservatives and the Constitution (Cambridge University Press, 2019).

Ken I. Kersch
Gary Lawson has contributed two provocative, engaging, and very interesting posts for the symposium on my book Conservatives and the Constitution.   What follows is a response to the first first, and the second second.

Gary’s first, more general post responds to Conservatives and the Constitution in light of his own significant experiences as a conservative legal movement insider at the highest levels, including as a clerk to Antonin Scalia on both the D.C. Circuit and on the Supreme Court, in the Office of Legal Counsel at the height of the Reagan administration, and as a founder of The Federalist Society.  Gary reports that he and his friends mostly had not read Leo Strauss, Richard Weaver, or John Courtney Murray.  This does not surprise me, nor is it inconsistent with the thesis of my book.  My argument is that the different parts of the movement had their own touchstones for their framings and political and economic philosophies (or, to touch base with Gary’s second post, their own metaphysics and epistemologies).   Gary’s deep background in Rand and Ludwig von Mises fit who he was.  That of Right-Wing Catholics would fit who they were.  And that of evangelical Christians would fit who they were.  I would not expect those from each of these different parts of the coalition to know the entire breadth and scope of the thought of the others.   That is why I argue that they came to coalesce around the common language of legalist originalism:  it came to serve as a common ground, and a basis for distinguishing their allies from their opponents, or even their enemies.  That is my argument, or at least an important part of it.    

I would be remiss if I did not pause here to observe -- it seems to me contra Mark Tushnet’s argument that there was no direct relationship between the views of the political (and economic, and theological, etc.) thinkers I recount in my book and Reagan administration, Supreme Court, and legal academic originalism -- that, as it happens, Gary Lawson, a major figure in the latter three endeavors, testifies that, in fact, he read deeply in it (although, to be sure, in his own corner of it, as would be expected).  That testimony seems to me to support my argument.  
Read more »

Saturday, September 14, 2019

Is the Constitution a Power of Attorney? A Commentary on Lawson and Seidman

John Mikhail


In April 2018, the Georgetown Center for the Constitution awarded its first Thomas M. Cooley Book Prize of $50,000 to Professors Gary Lawson and Guy Seidman for their book, ‘A Great Power of Attorney’: Understanding the Fiduciary Constitution (Kansas University Press, 2017).  To celebrate the book and its authors, the Center held a symposium at Georgetown that featured critical responses to A Great Power of Attorney by Ethan Leib and Jed Shugerman, Richard Primus, Suzanna Sherry, and myself.  The collected papers, together with a reply from Lawson and Seidman, will be published in The Georgetown Journal of Law & Public Policy.

My contribution to the symposium is now posted to SSRN.  It consists of a detailed refutation of the main originalist thesis of A Great Power of Attorney, along with the conditional defense of a competing claim Lawson and Seidman reject: that the Constitution is best understood as a corporate charter.

I refer to this defense as “conditional” because it is meant to be an answer to an if-then question.  If one seeks to classify the Constitution in terms of familiar eighteenth-century legal categories – for example, as a contract, trust, power of attorney, or corporate charter – then which category seems most appropriate?  My answer is that the Constitution is most appropriately characterized, not as a power of attorney, but as a corporate charter.

Of course, one might reasonably wonder whether this enterprise of characterizing the Constitution in terms of other legal categories is misguided.  The Constitution is what it is, after all, not some other thing.  In my commentary, I do not consider this wholesale rejection of Lawson and Seidman’s project of categorizing the Constitution.  Instead, I engage with their project on its own terms and argue that the Constitution is better understood as a corporate charter than as a power of attorney.

What turns on this disagreement?  Principally, the extent of government power.  As Suzanna Sherry observes in her contribution to the symposium, one main impetus of A Great Power of Attorney appears to be defending a narrow theory of government power on originalist grounds.  Equating the Constitution with a power of attorney lends itself to this deregulatory, small-government vision.  By contrast, characterizing the Constitution as a corporate charter supports a more robust understanding of government power, for at least two reasons.  First, as Lawson and Seidman explain, corporate charters are supposed to receive the most favorable possible interpretation to effectuate their purposes.  Second, the corporate charter conception of the Constitution implies that the Government of the United States is vested with the power to fulfill every purpose for which that government was formed, including the six great objects enumerated in the Preamble.  This was the progressive vision of the Constitution advanced Franklin D. Roosevelt, who maintained that the national government had the power to promote the general welfare.  It also was the constitutional theory embraced by Benjamin Franklin when, in his last public act, he petitioned Congress to abolish slavery.  As Jonathan Gienapp, Richard Primus, and David Schwartz have recently shown, similar appeals to implied powers, grounded in the Preamble and Necessary and Proper Clause, were used throughout the founding era, particularly in connection with the Bank of the United States.  Yet this progressive vision of the Constitution is hardly congenial to Lawson and Seidman, who have labored diligently for many years to defend a much narrower conception of government power.

Read more »

Friday, June 21, 2019

Balkinization Symposium on Ken Kersch, Conservatives and the Constitution- Collected Posts

JB


Here are the collected posts for our Balkinization symposium  on Ken Kersch's new book, Conservatives and the Constitution: Imagining Constitutional Restoration in the Heyday of American Liberalism (Cambridge University Press, 2019).

1. Jack M. Balkin, Introduction to Balkinization Symposium on Ken Kersch, Conservatives and the Constitution

2. Gary Lawson, Right About the Constitution

3. Mark Tushnet, Originalism in Political Science and Law

4. Sandy Levinson, Why Ken Kersch's Book is an Indispensable revelation about our constitutional situation

5. Ann Southworth, The Power of Constitutional Frames http://balkin.blogspot.com/2019/06/the-power-of-constitutional-frames.html

6. Stephen Griffin, Kersch on Conservatives and the Constitution

7. Andrew Koppelman, Scary Stories: Kersch on Conservatism

8. Mark Graber, The First and Second Founders in Conservative Thought

9. Gary Lawson, Randians And The Constitution: Imagining Epistemological Restoration In The Heyday Of American Liberalism

10. Ken I. Kersch, The Other Side of the Mountain: Restoration, Redemption, and Originalism

11. Ken I. Kersch, Ayn Rand, Gary Lawson, and the Supreme Court

12. Ken I. Kersch, Stories About Whiteness?



Friday, June 07, 2019

Why Ken Kersch's Book is an Indispensable revelation about our constitutional situation

Sandy Levinson

For the symposium on Ken Kersch, Conservatives and the Constitution (Cambridge University Press, 2019).

I am delighted to have this opportunity to praise and begin to assess the importance of Ken Kersch's truly remarkable book Conservatives and the Constitution.  I would place it in the same category as Jonathan Gienapp's equally remarkable book The Second Creation:  Fixing the American Constitution in the Founding Era, also the subject of an extended Balkinization symposium.  That is, anyone within the scholarly community who has an interest in the broad topics of the respective books, the American founding in the case of Gienapp, the foundations and presuppositions of "conservative constitutionalism" in the case of Kersch, must read these books or else be deemed functionally illiterate.  It is not that one must agree with every one of the arguments presented by these truly transformational scholars.  Rather, each is an historical archeologist who brings forth new information and perspectives that challenge all sorts of conventional wisdoms and, therefore, must be confronted by those who profess to be truly competent with regard to the issues under discussion.

So what is the subject of Kersch's book?  It is important to look carefully at the subtitle that follows the colon after Conservatives and the Constitution:  Imagining Constitutional Restoration in the Heyday of American Liberalism.  That is, Kersch is not focusing on contemporary 21st century conservatives and their particular takes on constitutional interpretation.  Instead, he is focusing on debates conducted among opponents of the liberal consensus that were dominant during the "heyday of American liberalism," the period between World War II and the election of Ronald Reagan in 1980 that indeed helped to effectuate a sea-change in American politics.  This included, of course,  debates about and within our peculiar legal/political institution called the American Supreme Court.

Read more »

Tuesday, December 05, 2017

Update on the Calabresi-Hirji paper on the Federal Judiciary

Guest Blogger

Gary Lawson

Steve Calabresi is on his way to Israel for a week – without a laptop.  He asked me to let interested readers know that he and Shams Hirji have taken their paper on judgeships down from SSRN in order to make some revisions in light of the extensive comments generated by the paper.  A revised version should be back up within a few weeks.  The conversation continues.  Thanks.  Gary Lawson.


Tuesday, March 06, 2012

Bad News for Everybody

Andrew Koppelman

My Yale Law Journal Online defense of the health insurance mandate, Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform,
got a lot of attention - more than 100,000 hits in first month – but you can’t please everyone. It elicited an eviscerating response from Gary Lawson and David Kopel, Bad News for John Marshall.

I now defend myself in Bad News for Everybody: Lawson and Kopel on Health Care Reform and Originalism.

The argument has essentially left health care behind. I initially argued that in order to invalidate the mandate, you would have to throw away decades of settled law. Lawson and Kopel seem to agree with me on that, but they’re not unhappy about the prospect. So I now seem to be on the Burkean conservative side of this debate, trying to beat back radicals who want to remake the world in accordance with their abstract, untested theory.

Gee, and I thought I was on the political left.

Monday, June 10, 2019

Scary Stories: Kersch on Conservatism

Andrew Koppelman

For the symposium on Ken Kersch, Conservatives and the Constitution (Cambridge University Press, 2019).


With the departure of Anthony Kennedy and the arrival of the Trump appointees, the Supreme Court may be inaugurating a new order in which women are forced to have babies, the state sponsors majoritarian religion, and regulation is hamstrung, giving businesses competitive incentives to pollute and defraud their customers.  Ken Kersch’s Conservatives and the Constitution suggests that this transformation has deep roots in the right wing intellectual movements of the mid-twentieth century. 

Kersch tells a scary story, with the various strands of conservative extremism coming together into a rough beast whose hour is come round at last.  The general purport is to warn us about the looming danger. 

But the book also shows some political opportunities for the left – opportunities that Kersch doesn’t explore.

Read more »

Saturday, March 17, 2012

Bad news for Paul Clement

Andrew Koppelman

The challengers to the health care mandate have filed their Supreme Court brief – the definitive statement of the case against the mandate, drawing on the strongest arguments that have been made against it by advocates and federal judges, and authored by conservative superlawyer Paul Clement. It is astoundingly thin and weak. A standard admonishment to young lawyers is that they should address the very strongest arguments on the other side, instead of substituting weak caricatures of their opponents’ views. Yet the brief does this repeatedly.


Read more »

Thursday, August 16, 2007

Ed Whelan Joins In

JB

Over at NRO, Ed Whelan has offered a series of posts commenting on my exchange with Matthew Franck. (Hat tip once again to Jonathan Adler over at the Volokh Conspiracy.) Ed makes three key points, each of which is ultimately about the same thing-- he wants to restrain judges and leave decisions to the political process. As I explained in my exchange with Matthew Franck, this is all very well and good, but it is in some sense orthogonal to the debate over originalism. In addition, Ed's version of originalism has many of the problems I identified in my original articles.

Ed argues that the distinction I draw between original meaning and original expectations is a false dichotomy. But the version of originalism he offers merely restates the dichotomy in much the same way that I would have. Borrowing from Gary Lawson and from John McGinnis and Mike Rappaport, Ed argues that we are not interested simply in the psychological states-- intentions and expectations-- of people who lived at the time of the adoption of a particular constitutional text (we must remember that different parts of the Constitution were adopted at different times.). Rather, we are interested in how a fully informed audience of hypothetical people living at the time of adoption would have applied the text. What actual people thought, believed, and expected is merely evidence of what this hypothetical audience would have thought, believed and expected. So far, so good.

In addition, Ed's argument suggests, we are not interested merely in applications per se but in the principles that the hypothetical generation would have applied and how they would have applied them. In order to determine these principles, we use evidence of how people at the time would have applied the constitutional text and their own statements of purpose and principle as data points that allow us to construct principles that will usually produce results roughly similar to the data points we started with. Thus, for example, if we want to know how to apply the principle of equality guaranteed by the Fourteenth Amendment's Equal Protection Clause, we should use original expected applications and explanations of principles and purposes offered by members of the adopting generation as evidence of what a hypothetical member of that generation would have judged constitutional or unconstitutional.

Because we are dealing with a hypothetical audience rather than an actual audience (i.e. one with limited factual knowledge), there may be some differences, but, as McGinnis and Rappoport explain, if the number of differences between our principles and original expected applications becomes too great, then that is strong evidence that we have chosen the wrong principles or described them at the wrong level of generality. In particular, McGinnis and Rappoport argue, the generation that produced the Fourteenth Amendment might have gotten the facts wrong, and might not have known about new technologies, but we should not assume that they were mistaken about morals or values. If they thought that the guarantee of equal protection was consistent with very limited rights for married women then the principles we construct should account for that value judgment.

I'm happy to add this theory-- call it hypothetical expectations originalism-- to the list of possible originalisms, but it isn't really very different in practice from what I've called original expected application. Indeed, Ed reads me far too narrowly: I've always assumed that someone like Scalia would be interested not merely in the results that people expected but also their reasons for expecting them, and I've always assumed that one should extrapolate from historical understandings to deal with cases of new technologies and changed factual circumstances. I've never found the "originalism is wrong because people in 1787 didn't have radios" argument very convincing. I think Scalia's view that we should extrapolate from what we know about the adopting generation's assumptions to take new technologies into account is eminently sensible.

But even if we adopt all these bells and whistles, Ed's version of originalism still has all the same problems that I identified in my article. It can't explain why the Fourteenth Amendment requires colorblindness-- the history simply doesn't support it. It can't explain why cases like Loving v. Virginia are correct, because the adopting generation would have seen laws banning interracial marriage as a question of social equality, not civil equality, and therefore untouched by the Fourteenth Amendment. The evidence also suggests that Congress thought it could make grants to free blacks (including blacks who had never themselves been enslaved) without running afoul of the Constitution, and it suggests that Adarand, Croson are wrongly decided. Ed's model can't explain the modern sex equality cases, or, for that matter, much of modern First Amendment jurisprudence, including the commercial speech cases.

Ed may not have much of a problem with that. His view may be that Adarand and Loving v. Virginia are wrong, and so too are all the modern sex equality cases, the commercial speech cases and most of contemporary first amendment doctrine. His view may be that all of this should be left to the political process. If so, that's fine, but I'd like to hear it from him. It will help me understand where we actually agree and disagree. If he thinks that these cases are still correctly decided, I'll need to hear a bit more about the history he is relying on. My investigations in these areas, particularly in the areas of the Fourteenth and First Amendments, suggest that he has some explaining to do.

Ed's larger point, I take it, is that if we want to apply our present day notions of equality and freedom of expression, we can enact our values through the democratic political process. That is, if we are more egalitarian than previous generations, we should use the political process to pass laws that enact our present day values. The problem is that if you adopt Ed's model of original meaning originalism the federal government doesn't have the power to pass much of this legislation. Under Ed's version of original meaning it's not clear why the New Deal cases like Darby and Wickard are correctly decided, and it's certainly not clear why the Civil Rights Act of 1964 was constitutional. If Ed has views on this, I'd love to hear them but I have to say that I'm pretty skeptical. Originalism of the kind he seems to be contending for, it seems to me, would mean that the federal government would not have had the power to dismantle much of the edifice of Jim Crow in the South, not to mention the power to pass laws protecting women or the disabled from discrimination. His version of originalism would generate a federal government that could not enact today's values.

If I am skeptical about this, so too is the Justice Ed clerked for, Antonin Scalia. To his credit, Justice Scalia has admitted forthrightly that he is only a "faint-hearted" originalist because he accepts the New Deal settlement, and, one presumes, the constitutionality of the 1964 Civil Rights Act. If Ed is also a "faint hearted" originalist, I'd like to know that as well. It will help me understand where he is coming from and where we actually agree and disagree.

As I pointed out in my original article, if you are a faint hearted originalist of the Scalian sort, you have to continually leaven your respect for originalism with all sorts of non-originalist precedents (non-originalist, that is, from the perspective of Scalia's theory, not mine). In fact, the number of these precedents just gets larger and larger over time. And then you come to the embarrassing question of why you want to keep some non-originalist precedents around and even extend them, and not others that you would be happy to overrule. Why go on and on about Lawrence v. Texas if you are going to extend the commercial speech cases, for example? Why make such a fuss about Griswold and Roe if you are going to keep Loving v. Virginia and Adarand? Why fulminate about the Violence Against Women Act if you are going to keep the Fair Labor Standards Act and the Civil Rights Act, and-- dare I say it-- the powers of the modern Presidency? It is very hard to escape the conclusion that the "faint-hearted originalist's" judgments of what to keep and what to discard are being subtly-- and sometimes not so subtly-- influenced not by the values of the adopting generation, but the values of the "faint-hearted originalist" judge.

One thing you can say about my text and principle approach is that you don't have to engage in these shenanigans. You don't have to keep telling everyone what a very committed originalist you are while you conveniently disregard your announced methodology with respect to most of the existing case law. I think that if you are going to be an originalist you should be consistent about it. This is what I am trying to do. Ed may not like my version of originalism, but he should understand how it tries to offer a consistent commitment to the original meaning of the constitutional text and its underlying principles.

And this brings me back to what I think is Ed's real objection. He is worried that my theory of text and principle does not constrain judges in the way he would like to constrain them. That is, he is really worried about judicial restraint, not fidelity to original meaning.

But my point-- which I have made repeatedly in my articles-- has been that originalism does not and cannot constrain judges all by itself. Originalism is a theory of fidelity in interpretation, not a theory of judicial review, and it is certainly not a one-size-fits-all method for ensuring judicial constraint. It is the bedrock or framework on which judicial practice should build. Judicial practice means starting with text and principle but not ending with it. Judges should consult all of the standard modalities of legal argument to flesh out and implement original meaning. These modalities include enactment history, expected applications, structural arguments, precedents (both judicial and non judicial), and the opinions and views of previous generations about the best interpretation of the constitutional text. In my view originalism is a framework that rules some interpretations out of bounds, but does not do most of the work of deciding specific cases. It leaves a great deal to be filled in by judges doing what judges normally do-- reasoning from the traditional modalities of legal argument. In addition, as I describe in my article, there are structural features-- like the appointments process and the fact that the Supreme Court is a multimember body-- that keep decisions within the mainstream in the long run.

Ed's version of originalism, by contrast, tries to do too much. That's why his method produces all the problems I have mentioned. My fear is that if Ed's method is the right one, then nobody who serves on the federal bench-- Justices Thomas and Scalia included-- can be a consistent originalist today, in which case it is very difficult to know what the debate is all about. By contrast, I am trying to give an account of originalism that is both faithful to the Constitution and that not only judges, but also ordinary citizens, can use.

Sunday, January 22, 2017

The Constitution of Abnegation

Guest Blogger

Jeffrey Pojanowski

For the Symposium on Adrian Vermeule, Law's Abnegation



            Law’s Abnegation is an intellectual force to be reckoned with. This is especially so if, like me, you think administrative law should place more emphasis on law than it currently does. Vermeule contends that today law is like a lion crouching beneath the throne of the administrative state, and that is how it should be. Even further, he averts that law’s supine position is in some deeper sense inevitable. These provocative arguments from doctrine, decision theory, and jurisprudence offer a coherent, unified vision of administrative law. One may not ultimately be convinced, but the book’s argument and example demand a response in kind.

            The book’s central claim is that the New Deal’s doctrinal consensus on administrative law has collapsed and that all the pieces have fallen toward deference to administrative agencies. Chief Justice Hughes in the 1932 case Crowell v. Benson envisioned a compromise in which courts would review questions of law de novo while deferring to agencies on other most other matters. But in area after area, Vermeule argues, law’s empire has ceded ground to the administrative state, checking agencies only when they veer into patent unreasonableness. Accordingly, an administrative law that legitimizes active agencies while reserving “lawyers’ questions” for the courts is untenable. Even less plausible, a fortiori, are more radical critiques of the administrative state based on constitutional originalism or classical separation-of-powers theories. Vermeule argues that the courts did not lose their territory because some Golden Horde of bespectacled bureaucrats stormed law’s citadel. Rather, lawyers opened up the gates for good, lawyerly reasons. To return to the book’s Dworkinian metaphor, the law worked itself pure, but in doing so dissolved into a shell of its former self. Or so the argument goes.

            Despite my more legalist orientation, I find substantial portions of the book’s claims persuasive. For example, Vermeule offers a compelling argument that courts should not demand pristine rationality and exhaustive explanations when agencies make policy at the frontiers of knowledge. Of course, adherents to the Crowell compromise can readily accede to this critique: if policy is for agencies and law is for courts, any appropriately deferential review of agency policymaking should incorporate sound insights about reasoning under epistemic uncertainty.

            But Vermeule argues that the Crowell compromise is untenable as a matter of theory: the arc of history must either bend toward legal abnegation or judicial supremacy, but not an internal separation of powers. Though his argumentation is formidable, here I am less convinced. Claims about the inevitable instability of Crowell rest on a controversial—and in my view, mistaken—premise about the radical inseparability of law and policy, one which Vermeule does not defend at length, though perhaps he feels he need not given its pervasiveness in the legal academy. That said, the presence of jurists like Judge Brett Kavanaugh on the D.C. Circuit, who has criticized judicial intrusion on agency policymaking while also expressing discomfort about Chevron deference to agency legal interpretations, could indicate that the Crowell fusion has a longer half-life than Vermeule thinks. Nor am I convinced that judicial abnegation on interpreting statutes or regulations—the heartland of law’s proverbial empire here—is as pronounced as Vermeule believes.
Read more »

Thursday, January 26, 2017

The Political Construction of Administrative Law

Mark Graber

For the Symposium on Adrian Vermeule, Law's Abnegation

Judicial review and administrative law are politically constructed.  A generation of historical institutionalists (Keith Whittington, Howard Gillman, Leslie Goldstein, Scott Lemieux, Paul Frymer, Kevin McMahon, Ran Hirschl, etc.) demonstrated that the judicial power to declare laws unconstitutional thrives in the United States and throughout the world because elected officials from the First Congress of the United States to the Israeli Knesset at the turn of the twenty-first century empowered courts to declare laws unconstitutional.  Adrian Vermeule in Law’s Abnegation: From Law’s Empire to the Administrative State brilliantly documents how both elected officials and federal judges have similar ceded substantial policy making power to the administrative agencies.

Claims that judicial review and administrative law are politically constructed do not entail that constitutional courts and administrative agencies are pawns serving higher masters.  Governing officials have reasons empower other institutions to make independent judgments.  Courts and administrative agencies can reduce the volume of decisions made by other institutions.  They often have special expertise that other governing institutions lack.  Courts and administrative agencies are sometimes the proverbial canaries in the mineshafts.  Other governing officials may prefer foisting controversial decisions off on less politically accountable decision makers to deflect blame for unpopular decisions (while reserving the right to take credit if a consensus forms that the court or agency did the right thing).

The political construction of judicial review and administrative law has normative consequences.  If the Judiciary Act of 1789 and related legislation better explain the establishment and development of judicial review in the United States than Marbury v. Madison (1803) and related judicial decisions, then the conventional countermajoritarian difficulty makes little sense.  If contemporary administrative law largely consists of courts working out the fundamental logic of a combination of past political and legal decisions, then attacks on the administrative state as lacking legal foundations make as little sense.  Claims that elected officials should take back usurped power from the courts or that courts should take back usurped power from administrative agencies ignore the mechanisms by which power was freely given rather than stolen in the middle of the night.

The political construction of judicial review and administrative law pose particular problems for originalists.  Originalists insist that constitutional decision makers should make every effort to return the constitutional order to its pristine form.  Historical institutionalists, however, point out that constitutional institutions in their pristine form provided political actors and judges with reasons and incentives to abandon originalism.  Law’s Abnegation similarly details how constitutional institutions operating in their pristine form produced the contemporary administrative state.   If Merlin by magic returned the American constitutional order to its pristine form, historical institutionalism and Vermeule’s work suggest that the same reasons and incentives that produced contemporary judicial review and contemporary administrative law will reproduce those practices in the very near future.   The problem, if a problem exists, is one of constitutional design rather than a problem of individual decision makers betraying the commitments of a constitutional order. 

Read more »

Monday, February 11, 2013

The Deafening Silence of Conservative Stars on the Constitutionality of the Voting Rights Act

Doug Kendall

One of the glaring things revealed by a review of the briefs in Shelby County v. Holder is the dearth of serious constitutional scholars in the fray supporting the conservative attack on the Voting Rights Act. On Shelby County’s side are the predictable array of political scientists like Abigail Thernstrom, election policy hacks like Hans von Spakovsky, and Reagan-era war horses like John Eastman. But where are the leading conservative constitutional thinkers on this – Mike McConnell, Eugene Volokh, Randy Barnett, Gary Lawson, and Steve Calabresi? None of these bright-light conservative names grace the briefs on behalf of Shelby County and, so far, their silence has been deafening in the public debate. As University of Kentucky law professor Josh Douglas has pointed out over at PrawfsBlawg, it’s really hard to find a credible academic to provide “balance” to a panel discussion on Shelby (though Cato’s Ilya Shapiro has gamely offered to fill this void).

Perhaps the problem is that many conservative scholars have been harshly critical of the Court’s jurisprudence on this topic, especially the “congruence and proportionality” test established in City of Boerne v. Flores for reviewing the constitutionality of congressional action under the Fourteenth (and presumably the Fifteenth) Amendments. Indeed, the scholarship of conservatives such as McConnell, Calabresi, Michael Stokes Paulsen, and Judge John T. Noonan forms a critical anchor of the brief Constitutional Accountability Center filed in Shelby County on behalf of the federal government. Judge Noonan, a Reagan appointee to the Ninth Circuit, wrote a book called Narrowing the Nation’s Power that accuses the conservative majority on the Rehnquist Court of issuing “decisions that return the Country to a pre-Civil War understanding of the nation.” McConnell penned a deservedly-famous Harvard Law Review article blistering the Court for breaking faith with the Fourteenth Amendment in Boerne, calling the Religious Freedom Restoration Act (RFRA) “precisely the sort of enforcement statute envisioned by the Fourteenth Amendment.” And, Calabresi, too, has argued that RFRA was “an appropriate remedial measure to define what constitutes an abridgement of freedom to worship.” On the question of what constitutes “appropriate legislation,” he argued that “more deference to Congress with its greater fact-finding resources both makes a lot of sense and seems contemplated by the text.” Surely, these same constitutional principles apply to the Voting Rights Act, which enforces the Fifteenth Amendment’s clear constitutional prohibition on racial discrimination in voting.

There really isn’t another side on the constitutional question in Shelby County. If there is a serious, scholarly defense of congruence and proportionality as an original matter, I haven’t seen it. Neither has Justice Scalia, who after “reluctantly” joining Boerne and other cases applying the congruence and proportionality tests, dropped off the bandwagon in 2004, with this blistering criticism:
I yield to the lessons of experience. The congruence and proportionality standard, like all such flabby tests, is a standing invitation to judicial arbitrariness and policy driven decisionmaking. Worse still, it casts this Court in the role of Congress’s taskmaster. Under it, the courts (and ultimately this Court) must regularly check Congress’s homework to make sure that it has identified sufficient constitutional violations to make its remedy congruent and proportional. As a general matter, we are ill advised to adopt or adhere to constitutional rules that bring us into constant conflict with a coequal branch of Government. And when conflict is unavoidable, we should not come to do battle with the United States Congress armed only with a test (congruence and proportionality) that has no demonstrable basis in the text of the Constitution and cannot objectively be shown to have been met or failed.
Perhaps National Review editor (and prominent conservative) Ramesh Ponnuru put it best in a blistering op-ed in the New York Times that appeared shortly after the most recent Voting Rights Act case, NAMUDNO v Holder, came down:
 [W]hen it comes to the race cases before the Supreme Court, too many conservatives abandon both originalism and judicial restraint. . . . None of the justices — not even Justice Thomas, the most originalist member of the court — discussed any historical evidence about what the ratifiers of the 15th Amendment intended. It is hard to believe that, back in 1870, they wished to empower courts to determine which voting rights laws were necessary. The occasion for the amendment was, after all, the end of a civil war brought about in significant part by judicial overreaching in the Dred Scott case. 
Ponnuru’s point is a simple and powerful one: if conservatives believe the Voting Rights Act is bad or outdated public policy, they should take these complaints to Congress, not the courts. It appears that the reason we’ve heard so little from the scholarly right on Shelby County is that the scholarly right itself believes the case against the constitutionality of the Voting Rights Act is exceptionally weak.

Saturday, September 22, 2012

B.U. Symposium on Living Originalism and The Living Constitution

JB

Boston University Law Review has published a symposium on my book, Living Originalism, and David Strauss's book, The Living Constitution. Here are the papers:

* * * * *

Boston University Law Review

Volume 92 Number 4 - July 2012

CONTENTS

SYMPOSIUM

ORIGINALISM AND LIVING CONSTITUTIONALISM: A SYMPOSIUM ON JACK BALKIN'S LIVING ORIGINALISM AND DAVID STRAUSS'S THE LIVING CONSTITUTION

PANELIST PAPERS

The Roots of the Living Constitution 
Jack M. Balkin
Page 1129
Can Originalism Be Saved? 
David A. Strauss
Page 1161
Dead Document Walking 
Gary Lawson
Page 1225
Constitutional Principles
David Lyons
Page 1237
In Medias Res 
Larry Yackle
Page 1259

RESPONSE AND COLLOQUY

Response and Colloquy
Jack M. Balkin & David A. Strauss
Page 1271


Thursday, November 05, 2009

Separation of Powers and the Administrative State

Rick Pildes

As I've noted here before, in early December the Supreme Court is going to engage one of the most important cases of the Term, Free Enterprise Fund v. The Public Company Accounting Oversight Board, which raises questions about how the Constitution assigns powers between Congress and the President over the control of administrative entities. The case arises in the complex area of financial regulation; it involves a constitutional challenge to the institutions Congress created in the Sarbanes-Oxley Act of 2002 to oversee accounting and auditing practices for public companies, in the wake of the Enron, Worldcomm, and serious corporate failings of that moment. Given the new institutions Congress is considering or might consider for financial regulation in response to the recent financial crisis, the Court's decision could have direct implications for these policy choices.

The Vanderbilt Law Review has created an online Symposium to discuss and debate the issues in the case. The Symposium introductory essay is written by Professor Peter Strauss, and the contributors are Professors Steven Calabresi, Harold Bruff, Gary Lawson, and myself. For those interested, the Symposium is here: http://www.vanderbilt.edu/lawreview/

Monday, June 28, 2010

The Free Enterprise Decision: A Symbolic Victory for the "Unitary Executive Branch" Vision of the Presidency, but of Limited Practical Consequence

Rick Pildes

In a much anticipated separation-of-powers decision, the Court today held unconstitutional a provision of the Sarbanes-Oxley Act (SOX). I view Chief Justice Roberts's opinion, for a 5-4 Court, as a symbolic victory for the "unitary executive branch" view of the Presidency, but as little more than symbolic. The decision has no practical effect at all on the Sarbanes-Oxley Act; the SEC and the Board that administers the Act will go on as before. Indeed, lost in the headlines will be the fact that the Court actually rejected all the most expansive constitutional challenges to the SEC and to SOX. It accepted only the most narrow challenge; the Court held that the SEC had to have the power to remove Board members at will, rather than being able to remove them only for "good cause" (as SOX essentially provided). And even on that score, the Court simply severed the offending provision from the law and told the SEC and the Board to get on with continuing to administer SOX. In the view of the seven former SEC Chairman I represent in this case, the decision will change nothing in the on-the-ground relationship between the SEC and the Board. The SEC already has effective power to control the Board fully; the decision will not change that reality. Congress does not have to do anything legislatively in response to the Court's decision. To those in the business community who are hostile to SOX and were hoping the decision would undercut SOX in a major way and throw the statute back into Congress's lap to reconsider -- such as, presumably, the Free Enterprise Fund itself -- the decision is a total loss.

Moreover, despite the headline of "Court holds SOX unconstitutional," the decision is also a loss on many fronts to the "unitary executive branch" view. Proponents of this view believe independent agencies are themselves unconstitutional. The challengers argued that independent agencies, such as the SEC, unlike executive departments of the government, such as the Treasury, were not "departments" within the meaning of the Constitution and hence Congress could not give independent agencies the power to appoint inferior officers. The Court unanimously rejected that view. Similarly, many of the leading proponents of the "unitary executive branch" view, including academics like Steven Calabresi and Gary Lawson, had argued that the Board was constitutional only if the President, with Senate consent, appointed the Board members -- as opposed to the current law, in which the SEC appoints the Board members. The Court unanimously rejected that position too.

The big battle over the "unitary executive branch" view has always been whether independent agencies are constitutional. To see how removed from that battle today's decision, notice the irony of where the Court ends up: to protect the President's power to control administration of the laws, an independent agency, the SEC, must have greater power to fire the people who work under it, such as Board members. The opinion has some of the most robust language in 90 years in support of the unitary executive branch view, but for now at least, the fight is really at the margins of this issue, as today's decision confirms. One way to view the decision is that unitary executive branch proponents have lost the war, over independent agencies, but the unique structure of the SEC-Board relationship provided them an opportunity to at least draw a line somewhere. But anything is possible, and if the Court majority wants to revive the larger battle at some point, the language of today's opinion could be put in service of that mission.

UPDATE: I noticed that at the Volokh blog, John Elwood has a response to the case that is very similar to mine. I agree with John's comments there.

Monday, April 19, 2010

Balkinized Constitutionalism at Princeton and Newport

JB

I'll be talking about the ideas in my forthcoming book on constitutional interpretation on Wednesday the 28th in Princeton. I'll be giving the 2010 Donald S. Bernstein Lecture next Wednesday at 4:30pm in Dodds Auditorium in Robertson Hall. The title of the lecture is "Fidelity and Flux: How We Build Our Constitution."

This Friday, April 23d, I'll be in Newport, Rhode Island, at the New England Political Science Association meeting, responding to critiques of the book by my fellow originalists Steve Calabresi, Gary Lawson, and Keith Whittington. Ken Kersch will moderate the food fight.

My forthcoming book on constitutional interpretation (hopefully due out sometime in 2011) doesn't have a title yet, so I've given it different names wherever I go, trying each one on for size. When I figure out what to call it, I will let you know. I've considered and rejected as titles "War and Peace" and "The Brothers Karamazov," since I have been reliably informed that they have already been used.




Wednesday, June 05, 2019

Introduction to Balkinization Symposium on Ken Kersch, Conservatives and the Constitution

JB


This week and next at Balkinization we are hosting a symposium on Ken Kersch's new book, Conservatives and the Constitution: Imagining Constitutional Restoration in the Heyday of American Liberalism (Cambridge University Press, 2019). This is a history of conservative thought about the Constitution before the Reagan Era.

We have assembled a terrific group of commentators, including Steve Calabresi (Northwestern), Erwin Chemerinsky (Berkeley), Mark Graber (Maryland), Steve Griffin (Tulane), Andrew Koppelman (Northwestern), Gary Lawson (B.U.), Sandy Levinson (Texas), Ann Southworth (U. C. Irvine), and Mark Tushnet (Harvard)

At the conclusion, Ken will respond to the commentators.

Friday, January 20, 2017

On Adrian Vermeule's Law's Abnegation

Sandy Levinson

For the Symposium on Adrian Vermeule, Law's Abnegation.

This is an exceptional book that certainly deserves a wide readership within the community of academic lawyers and legal theorists.  I really don’t have very much to say about it of a critical nature, in part because I am most certainly not an expert in administrative law, the central topic of the book.  But I assume that I am part of the target audience, inasmuch as I’m interested not only in constitutional law, but also the broad contours of American constitutional and legal development, and the book offers an extremely interesting and challenging take on those topics. 
            The book both begins and ends with reference to Ronald Dworkin; indeed, the title itself is both a play on and critique of one of Dworkin’s major books, about “law’s empire” and the crucial role that courts play as “fora of principle.”  Vermeule, on the other hand, is arguing that the modern state is primarily an administrative state, where most public policy is in fact made, albeit under often very broad delegation from Congress, by administrative agencies.  More to the point is the fact that these agencies have been accorded more and more discretion by the judiciary.  What is so fascinating about Vermeule’s thesis—and sure to spark some vigorous debate (though not by me)—is that “law’s abnegation” is not the product of “external” political or social forces that seized control away from formerly powerful courts.  Instead, as he puts it, it is a product of a basically common-law process of doctrinal analysis and development. The “chastened and self-effacing version of law [Vermeule is describing] is itself a product of law’s processes, working themselves pure.”   That is, it is judges themselves who have recognized, over the past seventy-five years or so since the seminal case of Crowell v. Benson that begins the book, that it simply makes good sense, in terms of accepted legal principles, to defer to administrative agencies except under unusual circumstances.
            Vermeule argues that the extent of law’s abnegation is insufficiently recognized, not least because academics who teach (and edit casebooks on) administrative law tend to overemphasize (or misinterpret) a relatively few outlier cases in which the judiciary seems to discipline agencies instead of recognizing the overwhelming array of cases, both within the Supreme Court and “inferior” federal courts, that submit to decisions made by the agencies.  What is especially interesting, relative to the Dworkinian program of emphasizing “right answers” to all legal questions, is that such deference, almost by definition, requires judges to accept as perfectly acceptable answers that they themselves disagree with in terms of first-order validity.  Instead, they accept what by stipulation are “wrong answers” because administrative agencies are entitled to deference with regard to choosing answers.  Vermeule notes that Dworkin never once wrestled with the problem of administrative law or the administrative state.  He preferred to discuss a relatively few cases, almost none of them truly exemplary of the realities of modern statecraft and the ever-diminishing role of courts and judges.  Vermeule therefore offers a very powerful critique of the remarkably limited range of Dworkin’s actual reference to contemporary law even as he claims, presumably sincerely, to be working within the Dworkinian categories of looking for the “best fit” of decided caselaw and then the most attractive justification for what the fit reveals. 
            Along the way, he also delivers quite devastating critiques of three prominent defenders of what might be termed the “old order” of critics of the administrative state, Jeremy Waldron, Philip  Hamburger, and Gary Lawson.  The principal thrust of Vermeule’s argument is precisely that the developments they deplore are in fact “internal” to the operation of the separation of powers systems they claim to privilege and to the disciplined legal analysis of the judges whose roles they want to re-invigorate.
Read more »

Wednesday, August 05, 2020

Reports of the Reagan Era’s Death Are Greatly Exaggerated

Guest Blogger

For the Symposium on Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020).

Amanda Hollis-Brusky

Taking Back the Constitution is an ambitious book that covers a wide swath of territory in its attempt to explain, critique and offer alternatives to the contemporary Supreme Court and its constitutional agenda. While it treads over fairly well-trodden territory in its critique of the Roberts Court, Originalism, and the conservative counterrevolution more broadly, it takes a more constructive turn towards the end, offering potential alternatives, “possibilities” (ix), and ways of decentering the courts and judges altogether in favor of a more “popular constitutionalism” (243-257).

Scholars and practitioners interested in future directions and possibilities for constitutional law and judicial politics post-Trump will find plenty of fodder for discussion and debate in this book.
In this essay I want to take to task an assertion that is repeated multiple times in Taking Back the Constitution – that the Reagan Revolution and the Reagan constitutional regime is decaying and will soon be replaced by something else. As someone who keeps close tabs on the Federalist Society and the conservative legal movement, this struck me as startling.  

All the evidence I can find suggests, to the contrary, that the Reagan Revolution is alive; thriving even. I also suggest that President Trump’s record breaking 200 plus appointments to the federal bench – including two Supreme Court justices – will not be a turning point in the conservative constitutional order. Because of who these nominees are, because of their vetting and ties to the Federalist Society network – an organization that, at its core, was designed to nurture, develop and implement the agenda of the Reagan revolution – I suggest that the Trump administration has, in fact, extended the life-cycle of Reagan-era constitutionalism.  

Read more »

Older Posts

Home