Constitutional Interpretation and Change

  • March 1, 2016
    BookTalk
    An Argument Open to All
    Reading "The Federalist" in the 21st Century
    By: 
    Sanford Levinson

    by Sanford Levinson, W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair and Professor of Government, University of Texas at Austin School of Law

    Early in my new book, An Argument Open to All: Reading "The Federalist" in the 21st Century, I refer to the set of essays published in 1787-1788 as “the best known, most widely read and analyzed extended work of American political thought.” I now believe, from talking to many colleagues and students, that the reference to “widely read” is almost certainly wrong. Many people have no doubt read Federalists No. 10, 47, 51, and 78, but there are 81 additional essays, most of which languish in obscurity.

    So the central question is whether there is good reason for a 21st century reader in fact to read The Federalist beyond the few “greatest hits.” It is obvious why someone interested in the formation of the Constitution would be interested in the entire corpus. Interestingly, it is less obvious why anyone with a particular interest in interpreting the Constitution would have to read it; very few of the 85 essays actually relate to the controversies that come before the judiciary or other constitutional interpreters in the 21st century. Most of them are devoted to explaining why the system established by the Articles of Confederation was “imbecilic;” why unifying behind a new constitution was essential to defense against what we would today call threats to our national security; and broad discussions of the institutions that comprise our political system (and which, being “hard wired,” are almost never the subjects of litigation).

    My book consists of 85 separate essays, each one corresponding to the respective original essay. They offer not so much an exegesis of the original as an inquiry whether it still has anything to tell us about constitutionalism in the 21st century. Underscoring the “presentism” of the essays is the fact that I refer exclusively to Publius, the notional author, and not to the actual historical authors Alexander Hamilton, John Jay, or James Madison. One of the consequences of adopting that approach is that I don’t have to concern myself with the question of the authors’ “sincerity” or genuine belief in their own arguments, shaped to elicit the votes of ratifiers at the state ratification conventions in 1788. My audience is persons interested in the Constitution in 2016 (or in 2020). Should they (you) make time at least to read my book and perhaps even return to The Federalist itself? To a degree that genuinely surprises even me, given my own doubts when I embarked on this project, I think the answer is yes.

  • February 22, 2016
    Guest Post

    by Joseph Thai, Watson Centennial Chair in Law and Presidential Professor, University of Oklahoma College of Law

    Even in death, Justice Antonin Scalia is larger than life. Praise upon his passing has been outsized from both friends and foes of his jurisprudence—ranking him at least as “one of the country’s most influential jurists” if not “the most important justice in American history.” Time will tell whether these extraordinary assessments are prescient or premature.

    What is clear today is that the theory of constitutional interpretation that Justice Scalia championed—originalism—is one justice away from extinction on the Supreme Court. The only other avowed originalist in the history of the Court is Justice Clarence Thomas. This stark fact runs counter to the false dichotomy often peddled to the public that conservative jurists are faithful to the Constitution because they stick to its original or “dead” meaning (to quote Justice Scalia), while liberal jurists play fast and loose with constitutional text in favor of an updated or “living” meaning (again, Justice Scalia) that matches their own contemporary values.

    In fact, the most cutting critic of originalism on the current Court is also one of its most conservative members, Justice Samuel Alito. For example, at oral argument in a case assessing the constitutionality of a ban on the sale of violent video games to minors, Justice Alito mocked Justice Scalia’s questioning about the original meaning of the First Amendment and its application to the case by boiling down his inquiries thus: “Well I think what Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them?”

    And in a Fourth Amendment case involving surreptitious GPS tracking of a car over the course of a month, Justice Alito poked fun at Justice Scalia’s originalist methodology. He refused to join Justice Scalia’s opinion for the Court even though he agreed with the result, for rather than applying modern Fourth Amendment principles to “a 21st-century surveillance technique,” the Court “[i]ronically . . . has chosen to decide this case based on 18th-century tort law.” What is more, Justice Alito noted, “The Court suggests that something like this might have occurred in 1791” with a constable hiding in a coach, “but this would have required either a gigantic coach, a very tiny constable, or both—not to mention a constable with incredible fortitude and patience.”

  • February 1, 2016
    Guest Post

    by Juan Perea, professor of law, Loyola University Chicago School of Law

    *This post is part of ACSBlog's Symposium Recognizing Black History Month.

    Most contemporary historians conclude that the American Constitution is a proslavery document. When I speak with historians about teaching constitutional law, often they are shocked that law professors typically do not teach the Constitution as proslavery. I think the general failure to teach the Constitution as a proslavery document does a major disservice both to students and to society.

    So what do I mean when I label the Constitution “proslavery?” I mean that the Constitution protected slavery and promoted slave ownership. The Constitution’s text contains several proslavery clauses. The Apportionment Clause, Article I, Section 2, added three-fifths of “all other Persons” ‒ slaves ‒ to the number of free inhabitants of a state for purposes of representation. This clause, by boosting the number of representatives in Congress for the slave states, guaranteed political protection for slavery. The same three-fifths ratio boosted the representation of slave states in the Electoral College during presidential elections. The slave import limitation, Article I, Section 9, prohibited Congress from regulating the international slave trade until 1808, 21 years after ratification of the Constitution. Not only was Congress forbidden from regulating the transoceanic slave trade, but Article V of the Constitution explicitly forbids amending the slave import limitation, one of only two such forbidden matters in the whole document. Lastly, the Fugitive Slave Clause, Article IV, Section 2, guaranteed nationally, for the first time, the right of slave owners to pursue and reclaim their slaves anywhere throughout the land.

    The Constitution thus protected slavery by increasing political representation for slave owners and slave states; by limiting, stringently though temporarily, congressional power to regulate the international slave trade; and by protecting the rights of slave owners to recapture their escaped slaves. The Constitution also promoted slave ownership by promising increased political representation while keeping unregulated the flow of slaves through the international slave trade for 21 years. Pretty significant protections, don’t you think?

    At this point one might ask, didn’t Reconstruction abolish slavery and require equal protection of the laws? Yes, the Reconstruction amendments did accomplish these things. However, the formal abolition of slavery only changed the rules of play, not the game of white domination itself. Slave codes became black codes, which became Jim Crow laws, which became race-neutral laws with outsized, unfair disparate impacts on people of color. Formal equal protection has yielded, in the main, only ostensibly race-neutral laws with heavily disparate racial impacts.

  • January 11, 2016
    Guest Post

    by Saul Cornell, the Paul and Diane Guenther Chair in American History, Fordham University

    In a thoughtful post on Politico, legal scholar Austin Sarat ponders why liberals have not made over-turning  District of Columbia v. Heller (2008)  a high priority. In that decision  a narrow 5-4 majority reversed 70 years of precedent and established, for the first time in the Court’s history, an individual right to possess a weapon for self-defense outside of the context of service in a well-regulated militia. Predictably, gun rights ideologues, such as the National Review’s Charles Cooke, have responded to Sarat in a vituperative manner, demonstrating once again how widespread ignorance about early American history continues to cloud this debate. Sadly, knowledge of the relevant history has never been a requirement for entry into the Second Amendment debate. Indeed, knowledge of history seems to be almost inversely proportional to ones commitment to gun rights ideology. Before demonstrating the multiple errors in Cooke’s flawed version of history, it is important to consider Sarat’s question: What should progressives do about Heller

    The first thing to observe is that Scalia’s absurd originalist methodology has been thoroughly discredited in the scholarly literature.  Some of the harshest criticism has come from true constitutional conservatives, including J. Harvie Wilkinson and Charles Fried. Although the methodology in Heller, as Judge Posner has written, borders on incoherent – the outcome—declaring an individual Second Amendment right to have a gun for self-defense—is what most Americans believe to be true, including such liberal stalwarts of gun control as Charles Schumer and, yes, President Barrack Obama. Indeed many scholars, most notably Reva Siegel, have noted that Heller is really an example of living constitutionalism dressed up in originalist garb. This fact presents a real dilemma for progressives. Given that most Americans believe that the Second Amendment now protects an individual right and most liberals favor a theory of a living Constitution—what should liberals think about Heller? This is not the place to answer that question, but Sarat deserves credit for raising the issue, which merits some thoughtful attention by progressives.

    As far as Cooke’s ill-informed gun rights rant goes, a closer look at the evidence easily demonstrates why he might want to reconsider heading back to Oxford for some serious training in history beyond his undergraduate courses.  His simplistic and anachronistic take on a complex legal and historical issue is a bit of an intellectual embarrassment to his distinguished alma mater.  Consider his first point that it is “unbelievable” that “that the Founders’ intent in codifying the Second Amendment was to protect the right of individuals to join an organization over which the federal government has constitutionally granted plenary power.” Gun rights advocates seldom seem to grasp the historical relationship between the Second Amendment right as framed and the complex politics of the militia in the Founding era.  At the time of its framing, anti-Federalists demanded both a transfer of federal control of the militia back to the states and protection for the right to bear arms for use in the militia. There are hardly any contemporary examples of discussions of a right to hunt or other private uses of firearms during ratification.  This does not mean that Americans did not value such rights, but not every right was elevated to the status of a constitutional provision.  There is no mention of a right to travel in the Constitution, but clearly Americans understood that this right existed.  In the end Anti-federalists were out maneuvered by Federalists and got the right to bear arms and no provision providing for a restoration of   state power over the militia. Here is what a leading Anti-Federalist author, using the penname “Centinel,” said about an early draft of the Second Amendment:

    A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed, &c.”  It is remarkable that this article only makes the observation, “that a well regulated militia, composed of the body of the people is the best security of a free state;” it does not ordain, or constitutionally provide for, the establishment of such a one.

    Justice Scalia actually quotes this text in Heller and somehow twists its original meaning into a defense of an individual right to have arms. The obvious meaning of the text belies such a reading. “Centinel” shared the common Anti-Federalist complaint that the Second Amendment asserted a principle about militias, but failed to provide any structural means to guarantee it. There is nothing “farcical” about this—it is part of the complex historical give-and-take that resulted in the adoption of the first ten amendments.          

  • November 17, 2015
    Guest Post

    by Adam Winkler, Professor of Law, UCLA Law. Winker is author of Gunfight: The Battle over the Right to Bear Arms in America.

    As the Supreme Court has made clear, the Second Amendment is not an insurmountable barrier to gun control. President Barack Obama should not let the stalemate in Congress be one either. That’s why I, along with numerous other law professors, signed the “Statement of Law Professors on the Constitution and Executive Action to Reduce Gun Violence.” Even in the absence of new federal gun legislation to require every gun buyer to pass a simple background check, the president should continue to seek ways to reduce gun violence through executive action.

    Although Obama’s use of executive powers follows longstanding presidential tradition, it has proven controversial. Some have suggested – incorrectly – that executive action on guns would be unauthorized under the Constitution or undermine the Second Amendment right to keep and bear arms. In fact, however, the Second Amendment gives the government wide leeway to regulate guns to enhance public safety. Moreover, the Constitution vests Obama with the obligation to insure that congressional mandates “be faithfully executed,” enabling him to take executive action.

    Executive action designed, for instance, to clarify existing federal statutes is clearly within the president’s power. The president can, and should, clarify when a gun seller is “engaged in the business” of dealing firearms and thus required to have a federal license. He should also apply the existing federal law barring gun possession by people convicted of misdemeanor crimes of domestic violence to non-married couples and prioritize prosecution of illegal gun buyers. None of these reforms undermine the individual’s right to keep and bear arms for self-defense.  

    As with all individual rights, the president should be sure to pursue only those executive actions that do not infringe the Constitution. As the Statement suggests, however, there is much President Obama can still do to reduce gun violence well within the Constitution’s boundaries.