Preamble to the Constitution (Jack R. Perry Photography/Shutterstock.com)The Privileges or Immunities Clause and Unenumerated Rights
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Protecting Traditional Rights with the Ninth and Fourteenth Amendments
Friedrich Hayek (1899 - 1992) with a class of students at the London School of Economics, 1948. (Photo by Paul Popper/Getty Images)Bork Was a Great Scholar, But Poor Guide to Modern Originalism
U.S. Supreme Court nominee Robert H. Bork testifies before the Senate Judiciary Committee during his confirmation hearings on Capitol Hill. (AP Photo/Charles Tasnadi)Like Mark Pulliam, I think a lot about Robert Bork: anyone who teaches either antitrust law or constitutional law should, and I teach both. He was great scholar. In particular, he powerfully challenged the conventional views of living constitutionalism that dominated his time and begin to make the intellectual case for originalism. But it was only the beginning of the case and does not mark the best understanding of originalism today.
The Constitution’s Creation Is Compatible with Reading It as a Legal Document
Mary Bilder, a distinguished legal historian, has written an oped arguing that the historical context and drafting of the Constitution shows that originalism is not a suitable interpretive approach for its text. Larry Solum has already asked her five probing questions about her understanding of originalism.
Here I want to focus on her historical claims and in particular her denial that the Constitution should be interpreted as a legal document. To be sure, not all originalists believe that the Constitution is written in the the language of the law, but Michael Rappaport and I do. Bilder’s exposition of an originalism that follows the Constitution’s legal meaning begins by attacking a straw man. She writes: “Originalism reads our Constitution as if it were a modern technical contract written by experienced lawyers or a contemporary statute written by a team of legislators and staffers, parsing and perfecting every word as they wrote it.”
The Constitution is not a contract or, as Chief Justice John Marshall noted, a code, but that does not mean it cannot be a legal document, interpreted with legal rules appropriate to a constitution, as were state constitutions at the time. And Mike and I have recently shown that text of the Constitution—its legal terms and its presupposition of legal interpretive rules– provides powerful evidence that it was written in the language of the law. But even if Bilder does not consider the text relevant historical evidence— which would be a strange position for a legal historian—her arguments from the context of its drafting are weak.
First, a team of lawyers was in fact responsible for perfecting the language of the Constitution.
The Courts and Tradition: A Begrudging Respect
In response to: The Unforgettable Fire: Tradition and the Shape of the Law
Marc DeGirolami’s Liberty Forum essay discusses two contexts in which tradition might influence American law: common law and constitutional law. He suggests that tradition is still robust in the former, less so in the latter. With regard to common law, I think that he’s right that custom underlies a good deal of the law of contracts, torts, property, and more. On the other hand, it strikes me that American common law as interpreted by the judiciary has been far less respectful of precedent (and therefore to some extent, of tradition) than has the common law in other countries. Years ago, I had…
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Professor DeGirolami has written an interesting Liberty Forum essay in behalf of paying respectful attention to tradition as a major aspect of our legal order. However, I think there are two major problems with it. The first is theoretical, particularly in relation to the American political and legal experience. The second has to do with…
In the first paragraph of his celebrated 1881 book on the common law, Oliver Wendell Holmes, Jr. wrote: “The life of the law has not been logic; it has been experience.” Nor was that the first such expression in the annals of American jurisprudence. At the Philadelphia Convention of 1787, James Madison recorded John Dickinson’s…
Michael McConnell on the Ninth Amendment
One of the puzzles in constitutional law has been the original meaning of the Ninth Amendment. Some years ago, during his unsuccessful confirmation hearings, Judge Robert Bork analogized our lack of understanding of the Amendment to the situation where the language of a constitutional provision was obscured by an inkblot. He argued that since we don’t understand the provision, we are in no better position to enforce it than if an ink blot covered it.
Over the years, various explanations have been offered for the amendment. Some have argued that it protects enumerated natural rights to the same extent as the enumerated constitutional rights. Others have interpreted it to have a much less significant role.
In my view, the best interpretation of the Amendment is supplied by Michael McConnell in a relatively recent law review article. At the beginning of my scholarly career, I had come upon the same idea, but was persuaded not to write it up. My mistake, although I don’t think I would have done as good a job as McConnell does.
Dissenting from Natural Rights Nationalism: A Reply to Randy Barnett
Many thanks to Randy Barnett for his very thoughtful response to my post “The Book of Judges,” which criticizes a natural rights constitutional jurisprudence. Barnett says I was going after a straw man—that real defenders of “judicial engagement” are not calling for a philosopher’s debate on the federal bench that would produce a settled list of the type and content of natural rights for federal judges to enforce. He isn’t about defining and specifying natural rights in judicial decisions. Instead, he notes that they exist, and they are protected in the Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment.
The Constitution Created an Expansive, not a Strictly Limited Federal Government
In response to: The Constitution’s Structural Limitations on Power Should Be the Focus of the Bill of Rights
The nation's founding documents displayed under subdued light at the National Archives, Washington, D.C. Image: Library of Congress Prints and Photographs Division Washington, D.C. LC-DIG-highsm-15688 (digital file from original)The revolution of 1787-1791 overthrew a constitution that strictly limited the federal government in favor of one with general welfare and necessary and proper clauses that allowed the federal government to absorb state powers over time. It also tossed out the dogma of separation of powers in favor of a more sophisticated balance of powers. When the states proposed to put that dogma back in the Constitution by Amendment and James Madison convinced the House of Representatives to include it in its Amendment package, the Senate, with its extensive executive powers, disagreed to it.1 Almost all Federalists claimed the Constitution was…
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There is much to commend Professor Garry’s essay. He is eminently correct in saying that the Constitution contemplated a limited government. Whether it adhered to a “limited government model” is a different issue. What is more than curious, however, is Professor Garry’s statement that the “the overall scheme of the original Constitution” is primarily concerned with…
Patrick Garry’s essay “The Constitution’s Structural Limits on Power Should Be the Focus of the Bill of Rights” contains many valuable insights. In particular, it re-affirms the proposition – lost for many years but perhaps gaining some new currency – that the so-called “structural” provisions of the Constitution are, and were intended to be, not…
