Separation of Powers and Federalism

  • May 29, 2012

    by Jeremy Leaming

    Perpetual campaigning for national offices, ongoing and intensifying gridlock in Congress and a Supreme Court that easily invalidates federal laws might be sensibly addressed if only it were easier to amend to the nation’s Constitution. As Sanford Levinson, a leading constitutional scholar writes in a column for The New York Times critical discussion of the Constitution’s imperfections and their impact on governance is needed, but often impossible to entertain because of the reticence to do so by prominent politicians.

    First Levinson notes the problem, writing:

    Our vaunted system of ‘separation of powers’ and ‘checks and balances’ – a legacy of the founders’ mistrust of ‘factions’ – means that we rarely have anything that can truly be described as ‘government.’ Save for those rare instances when one party has hefty control over four branches – the House of Representatives, the Senate, the White House and the Supreme Court – gridlock threatens. Elections are increasingly meaningless, at least in terms of producing results commensurate with the challenges facing the country.

    The nation’s founders, however, were not so wedded to an unchanging governing document. Indeed Levinson points to the Articles of Confederation, which many of the nation’s founders disparaged, and which was eventually dumped because it set up a weak central government.

    But Article V of the Constitution, Levinson writes, makes it one of the world’s most difficult to amend.

    On top of that few national leaders seriously question the Constitution’s adequacy. (He notes Presidents Theodore Roosevelt and Woodrow Wilson were the last to publicly discuss drawbacks of the Constitution.)

  • May 10, 2012
    BookTalk
    Building the Judiciary
    Law, Courts, and the Politics of Institutional Development
    By: 
    Justin Crowe

    By Justin Crowe, an assistant professor of political science at Williams College


    Gee, for a one-time constitutional law professor, Barack Obama sure does seem to harbor a lot of hostility for judges. (And, judging [a legal pun — ha!] by Samuel Alito and Jerry Smith, they for him.) Doesn’t he? First there was the broadside at his 2011 State of the Union criticizing the Court's decision in Citizens United, prompting Alito's now-infamous “not true” moment. Next there was his claim that the Court wouldn't dare strike down the Affordable Care Act as unconstitutional, prompting Smith’s surely soon-to-be-infamous order to a DOJ lawyer for a memo outlining the Justice Department’s views on judicial review. For all his claims about “due deference to the separation of powers” and supposed belief in the importance of an independent judiciary to protect the rights of citizens and the rule of law, it appears Obama only likes the Court — only likes the judiciary more broadly — when it agrees with him. And surely that sort of “anti-judgeite” perspective is a terrible one for American constitutionalism and American democracy. Right?

    Well, yes — sort of ... and no, not at all. In a sense, Obama only really values judicial power to the extent that its exercise comports with his policy preferences. But, at base, who doesn’t? Presidents always want — have always wanted — courts to bend to their will. And politicians generally always try — have always tried — to shape courts to serve their interests. So what? Does this really “politicize” the judiciary in some needless, inappropriate, and harmful way? Does it really demonstrate that judicial power — that judicial independence, that law itself — is somehow perpetually under political siege? Not even remotely.

    As I attempt to show in my recent book, Building the Judiciary: Law, Courts, and the Politics of Institutional Development, any claims that judicial power — that judicial autonomy or judicial independence — has ever been, in any meaningful sense, beyond the sphere of politics are fundamentally incorrect.

  • April 26, 2012
    BookTalk
    The Immigration Crucible
    Transforming Race, Nation, and the Limits of the Law
    By: 
    Philip A. Kretsedemas

    By Philip A. Kretsedemas, an associate professor of sociology at The University of Massachusetts Boston


    For the past two years, the national debate over police involvement in immigration enforcement has focused on Arizona Senate Bill 1070. When it was first enacted, SB 1070 was widely criticized for the broad discretion it allowed Arizona police to question people about their legal status. Much of this criticism focused on the problem of immigrant racial profiling. Opponents of the bill argued that it opened the door for the indiscriminate interrogation of anyone who looks like an unauthorized migrant.

    Even though these complaints figured prominently in the public debate over SB 1070, it is rather telling that they have dropped out of the legal arguments that have been marshaled against the bill. One reason for this curious situation is that complaints about racial profiling and selective enforcement have historically been framed as violations of Fourth Amendment rights. But it also so happens that the legal challenge against SB 1070 is being led by the Department of Justice which, for obvious reasons, is not interested in setting legal precedents that would limit the search and seizure power of the police. The Supreme Court, which is currently deliberating over the DOJ's lawsuit against SB 1070, also has a history of favoring the discretionary powers of law enforcement over Fourth Amendment considerations.

    It is important to keep this context in mind when evaluating the legal arguments that are being levied against SB 1070. The DOJ is advancing a finely pitched argument which takes issue with the law making powers of local governments but not the search and seizure practices of law enforcement. It is also bears noting that the DOJ is not opposing local immigration laws on principle. The DOJ supported Arizona's employer sanctions law (penalizing businesses that hire unauthorized migrants) which was subsequently upheld by the 9th Circuit and Supreme Court. The federal government also doesn't seem to be opposed, on principle, to the involvement of police in enforcing federal immigration laws. The Obama administration has actually given state and local police new opportunities to enforce immigration laws. It has only taken issue with local enforcement practices that operate outside of the federal-local enforcement arrangements that have already been authorized by federal law.

  • March 29, 2012
    BookTalk
    Framed
    America's 51 Constitutions and the Crisis of Governance
    By: 
    Sanford Levinson

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


    I am immensely grateful to be invited to discuss my new book, Framed: America’s 51 Constitutions and the Crisis of Governance, to the readers of ACSblog. I have crafted these comments in a way that highlights what may be an important difference between my take on the Constitution and that of many of my friends in the ACS. Although many, perhaps most of us, share the perception that the contemporary United States is increasingly caught in a “crisis of governance,” attention tends to be addressed at the defects of particular leaders, including, of course, the present majority of the United States Supreme Court. There is much with which I agree in the vision of The Constitution in 2020  set out in the book co-edited by my friends and casebook co-editors Jack Balkin and Reva Siegel.

    However, I believe that we cannot begin to diagnose the causes of our crisis by focusing only on what I call the Constitution of Conversation. It can also be described as the litigated Constitution, and it is litigated precisely because clever lawyers are highly skilled in demonstrating that the indeterminate language of, say, the Commerce or Equal Protection clauses of the Fourteenth Amendment, can be used to support a constitutional vision congruent with the collective goals of the lawyers’ clients or perhaps the lawyers themselves (if they are “cause lawyers”).  In any event, these conversations are known to all of us, and we see them being spelled out particularly passionately with regard to the Affordable Care Act.

    But the most important political realities of the Affordable Care Act are first that it took literally more than a half century to pass after initial proposals by Harry Truman and, secondly, that it is a defective bill in many respects with regard genuinely to getting a handle on the costs of a modern medical system. To explain these realities requires no conversation about the “meaning” of the Constitution. Rather, it requires addressing too-often-ignored “civics class” features of the United States Constitution. How does a bill become a law (or, more practically, why do most legislative proposals have only a snowballs chance in hell of being passed)? The answer lies in the almost insurmountable hurdles set up by the particular American system of bicameralism and the opportunity of presidents to veto any legislation they do not like on policy grounds, with the near impossibility of overrides. I will rejoice when the Supreme Court upholds the Affordable Care Act, as I still think is likely. But it should also be recognized that what the Court will be doing, at best, is saying that a mediocre, albeit necessary, piece of legislation is constitutional if it can run the minefield against progressive legislation established in 1787 and left remarkably unchanged since then. That is the importance of looking at the basic “framing” of the Constitution and the assumptions underlying it. It was designed by people who were basically mistrustful of popular democracy and, more particularly, redistributive legislation. They succeeded quite well in creating a political system that stifles both.

  • March 22, 2012
    BookTalk
    The Revolutionary Constitution
    By: 
    David J. Bodenhamer

    By David J. Bodenhamer, executive director of The Polis Center and a professor of history at Indiana University-Purdue University Indianapolis.


    When addressing the Harvard Law School Association in 1913, Oliver Wendell Holmes, Jr. worried that “that fear was translated into doctrines that had no proper place in the Constitution or the common law.”  His corrective was simple: “It seems to be at this time that we need education in the obvious more than the investigation of the obscure.” Although Holmes was speaking about socialism and judges he deemed “naïf and simple-minded,” his admonition seems equally appropriate for our own constitutionally contentious era. Of course, bitter disputes over the meaning of the Constitution are nothing new; they have been a hallmark of public discourse since the 39 signing delegates left Philadelphia. So other than a reminder that controversy and division are common to our history, what “education in the obvious” do we require today?

    We too often forget that the Constitution is a revolutionary document. It embodied a fundamental re-scripting of assumptions about government. Chief among them was the invention of popular sovereignty, a conception of the people as both rulers and ruled, or as John Jay noted, “sovereigns without subjects” who “had none to govern but themselves.” This concept was necessary to accommodate another innovation, federalism, which James Madison acknowledged was “unprecedented … It stands by itself.” But it was the only way to resolve the inconsistency of imperium in imperio, a sovereignty within a sovereignty. Over two centuries, these solutions, radical for their time (and for ours), have been instrumental in the development of a more democratic and egalitarian nation because once marginalized and excluded groups demanded to be counted among the people who ruled themselves. And they usually succeeded first in the states, Brandeis’s famed “laboratories of democracy,” before the nation-at-large accepted their claims. But as often happens with revolutionary legacies, there is a counter-narrative to this progressive story. The inventions of popular sovereignty and federalism also have produced great mischief: they have offered a veneer of legitimacy to a variety of “isms”— racism, nativism, separatism, and the like — that acted to deny liberty rather than advance it.