Joseph Story (shutterstock.com)Is Early Impeachment Practice Relevant to Original Meaning?
Title page to Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833) (Image: Historic Images / Alamy Stock Photo).The Ratification-Era Understanding of “High Crimes and Misdemeanors”
Signing the Constitution, Louis Glanzman, 1987 (National Park Service)Failed Attempt to Cut Marshall and Story Down to Size
Lithograph of John Marshall by William Henry Brown, 1844 (Metropolitan Museum of Art)The Founders Were Better than Trump and Clinton
Alan Taylor, a historian from the University of Virginia, has written an op-ed in the New York Times arguing that Americans wrongly disparage Donald Trump and Hillary Clinton in comparison to the Founders. Instead of recognizing their similarities to this year’s candidates, Taylor says that we treat the Founders as mythical giants. But, according to Taylor, they were as divided and divisive as these nominees. And the Founders tolerated a society with less sound norms than our own. Moreover, we should just accept that Founders did not resolve the “core principles of our government,” leaving it up to us to fight about them.
This op-ed is misleading and flawed in many respects. It exaggerates the differences in principle as opposed to politics among the Founders. It does not give credit to the Founders’ principles for being a primary cause of the improvement in social norms in America. And its claim that the Constitutional text does not settle core governing principles is a conventional and undefended cliche of the academic Left.
First, while the Democratic-Republicans and Federalists had strong political differences, their respective appointees to the Supreme Court were united on the constitutional principles of creating a strong but limited federal government whose focus was creating a commercial society. That justices of different parties agreed on so much after deliberation is strong evidence that there was substantial, even if not unanimous agreement, on core principles.
For instance, Chief Justice John Marshall and Justice Joseph Story hardly ever diverged on the resolution of constitutional cases, despite being appointed by John Adams and Thomas Jefferson respectively.
Sowing the Seeds of an Originalist Future
U.S. Supreme Court Justice Clarence ThomasNot too long ago, I found myself discussing the U.S. Supreme Court with an acquaintance who does not particularly follow politics. During the conversation, I mentioned the name of Justice Clarence Thomas, which provoked the question, “He’s the one who doesn’t do anything, right?” I suppose there are worse ways that Justice Thomas could be remembered, but the meme that he is a passive presence on the bench is now widespread. This perception is, no doubt, a generalization from the oft-noted fact that Thomas rarely asks questions during oral arguments. Like Calvin Coolidge, whose historical reputation as “Silent Cal” has been…
More Responses
Dr. Ralph Rossum’s most recent book, Understanding Clarence Thomas: The Jurisprudence of Constitutional Restoration, performs the valuable service of cataloguing and synthesizing the jurisprudential work of one of America’s great living jurists. Rossum’s book joins other sympathetic—though not hagiographic—accounts of Justice Thomas’ work, most importantly Professor Scott Douglas Gerber’s First Principles: The Jurisprudence of Clarence…
Ralph Rossum has followed his indispensible volume on Justice Scalia with an equally indispensible analysis of Justice Clarence Thomas’s life and work. The two seem destined to be paired forever. Because they share so much in common, each is the other’s best foil. Professor Rossum draws such contrasts expertly, as have Randy Barnett and Lee Strang,…
I am grateful for the thoughtful commentaries and kind words that Keith Whittington, Lee J. Strang, and Adam White have provided on my essay on Clarence Thomas’s jurisprudence of constitutional restoration. Since all three commentaries address the low value that Thomas, as an originalist, places on stare decisis, I will begin there. Antonin Scalia, the Court’s…
Democracy, Distrust, and the Republican Form of Government
This post consists of two parts: (1) thoughts prompted by re-reading John Hart Ely’s Democracy and Distrust; and (2) something resembling a meditation on the Guaranty Clause. As the reader will see, I am not able to articulate the connection between the two topics in anything but the most general terms. I hope others may be able to do so.
