As a minor follow-up to Ilya’s post below on the lack of consensus among constitutional scholars about the constitutionality of the individual mandate, I would ask a question: Is there a consensus among constitutional scholars about the constitutionality of anything? The only thing I can think of is Brown v. Board. Everyone agrees school segregation is unconstitutional. Beyond that, the consensus seems to break down: No two constitutional scholars have the same theory of what the Constitution allows, and you can pretty much always find someone to say a controversial law is unconstitutional.
As for the constitutionality of the individual mandate, my sense is that if we’re more precise we end up with conclusions something like this: (a) it’s constitutional if you follow existing judicial precedents, (b) it may or may not be constitutional if you follow a particular theory of constitutional interpretation, depending on which theory you follow, and (c) legislators and the President should exercise their own independent responsibility to ensure that the legislation is constitutional, a responsibility that they can plausibly satisfy by following either judicial precedents or some normative theory of interpretation. That’s my sense of things, at least.
CrazyTrain says:
True, but the reasons for why they believe it is unconstitutional are very much in dispute. And there is no consensus on school desegregation in Washington DC (eg Bolling).
December 23, 2009, 7:22 pmMike says:
It’s bothersome for law professors to thoughtlessly toss around “constitutionality.”
Will the United States Supreme Court uphold The Recently Enacted Law? If yes, then the law is constitutional. The end.
If people want to talk law philosophy, then that’s something else. Well, the Court shouldn’t uphold the law, because under my view of the Constitution, it’s unconstitutional. Fine. But be clear.
It’s not that the law is unconstitutional. It’s that you think the law is unconstitutional. Which is something entirely different.
December 23, 2009, 7:23 pmRichard Epstein says:
Orin’s post is unconstitutional.
December 23, 2009, 7:24 pmOrin Kerr says:
Richard Epstein is unconstitutional. So there!
December 23, 2009, 7:26 pmRichard Epstein says:
Only if one accepts an untenably expansive view of the Commerce Clause can Orin be correct that my very existence is in gross violation of our Nation’s fundamental charter.
December 23, 2009, 7:33 pmMark says:
Orin, What do you mean by ‘consensus’? Does consensus mean unanimity? I thought that consensus meant something weaker than unanimity, so that it would be consistent with consensus that there is an outlier or two who rejects the consensus view.
December 23, 2009, 7:47 pmChris Travers says:
Does that mean that anything the court refuses to adjudicate due to political question doctrine is fundamentally Constitutional?
So, for example, consider this far-fetched hypothetical. Suppose the Senate is the only body that gets to decide whether their members meet Constitutional requirements as a matter of fact in order to serve. Suppose an elderly senator is refused to be seated because the individual was born on Feb 29th and the senate doesn’t like him. Therefore they read the age requirement as applying to birthdays and, well the guy has only had 20 birthdays (i.e. has lived 80 calendar years), not the required 30 (i.e. 120 calendar years). The individual sues.
The court rules that the senate alone is a finder of fact in this issue and therefore it is a political question, not one for the court.
Does that make the exclusion of the senator Constitutional? Practically yes. In the abstract, I would say clearly not.
December 23, 2009, 8:00 pmBrett says:
There aren’t a lot of defenders of the constitutional right to secession anymore.
And isn’t there a consensus that the President has the constitution right to fire cabinet members?
Those two things are actually pretty big deals, historically speaking!
December 23, 2009, 8:00 pmShelbyC says:
The power of Congress to regulate commerce among the several states?
December 23, 2009, 8:04 pmMark N. says:
There’s a lot of Texans, including the state’s governor, who seem to feel that the question isn’t totally settled…
December 23, 2009, 8:09 pmBrett says:
Any law professors [or other people who qualify as experts in Orin's sense] in Texas [or elsewhere] who will stake their reputation on it? Seriously – I’m curious.
December 23, 2009, 8:29 pmOrin Kerr says:
Brett,
I would guess that Randy Barnett believes there is a constitutional right to secession, but you would have to ask him.
December 23, 2009, 8:32 pmJ. Aldridge says:
Not everyone. Actually Bingham said Ohio’s school segregation was perfectly permissible under the 14A.
December 23, 2009, 8:33 pmChris Travers says:
Now we need a post about the myth of an expert consensus on anything.
Why limit it to questions of Constitutional law?
Also there might consensus in broad outlines of things, such as atomic theory or biological evolution, but that hardly means there is alwas any sense of consensus about any specific element.
December 23, 2009, 8:37 pmOrin Kerr says:
J. Aldridge,
With all due respect, I don’t think you count as a constitutional scholar. And whatever you think Bingham thought — which seems to be different from whatever everyone else thinks Bingham thought — Bingham is seriously dead.
December 23, 2009, 8:37 pmCase Law says:
Can’t one make the arguement that unequal school segregation is unconstitutional, meaning that separately equal schools would be constitutional, while separate unequal schools aren’t? If the separate schools had equal funding and provided a truly equal academic experience, why wouldn’t that be constitutional? Such schools really didn’t exist in the South (or North), as one set of schools were much better academically than the other, so this is rather academic. But the law allows schools to segregate based on gender on the grounds the academic experience is better for one gender.
Just sayin’.
December 23, 2009, 8:39 pmSara says:
How about nullification?
December 23, 2009, 8:46 pmPaul Horwitz says:
Orin, quite seriously, I wonder whether it’s so much that everyone agrees that Brown is right as that everyone, or more accurately everyone who wishes to be taken seriously in the legal version of polite society, pretty well has to agree that Brown is right. I don’t mean thereby to suggest it’s not, or that most people who feel it is right aren’t sincere about it. But there is also a sense that any theory of constitutional law and interpretation that hopes for any traction at all had better reach the conclusion that school segregation, which is widely agreed to have been a moral wrong, is unconstitutional. Hence the at times acrobatic work of advocates of a variety of interpretive approaches to show, or ensure, that Brown makes the cut under their particular theory.
December 23, 2009, 8:50 pmBrett says:
Well, all right then. That’s a big one. Looks like I’m only one for two. I’ll still take presidential firing power, and add (tentatively) the absence of any serious defenders of the Jacksonian position on the constitutionality of the charter of the Bank of the U.S.. Slim pickings, to be sure, but not foreseeable circa 1800.
December 23, 2009, 8:54 pmAnon21 says:
Perhaps this just suggests that Brown is widely acknowledged as a super-precedent establishing a constitutional anti-segregation principle which is now part of the Constitution itself. Thus, theoretical contortions to justify Brown should be seen as of a piece with theoretical contortions needed to encompass both the anti-democratic and pro-democratic pieces of the Constitution.
December 23, 2009, 9:02 pmOrin Kerr says:
Brett,
I’m sure there are some people who disagree with your other positions: I don’t follow the literature, so I am just guessing.
Paul,
I see them as the same thing: They have to, so they do. It’s the one fixed data point of constitutional interpretation in our legal culture.
December 23, 2009, 9:12 pmAndrew says:
Is there a consensus among constitutional scholars about the constitutionality of anything? Of course, and almost all of it has never been litigated, because the Constitution is clear on its face.
For example: people cannot be bought and sold as property; a president cannot be elected to a third term; the person with the least votes is not elected to Congress unless unopposed; et cetera.
All of these items follow from a normative theory of interpretation: the theory that the Constitution means what it obviously says on its face.
That is why I have a HUGE problem with the following statement by Orin:
This is flat wrong, IMHO. If judicial precedents someday say that people can be bought and sold as property, or a president can be elected to a third term, or the runner-up can be elected, then legislators cannot discharge their responsibility by merely following judicial precedents.
In other words, I’m afraid that Orin has adopted the view that the Constitution is whatever the judiciary says, and legislators need not look beyond what the judiciary says, at the actual Constitution as originally intended.
[OK Chimes In: No, Andrew, that is not what I am saying.
1) First, you're setting up an impossible hypothetical. You ask what would happen if the Supreme Court adopted a position that no one could ever possibly adopt, and you then say it would be terrible if Legislators agreed with the position that no one could ever possibly adopt because the Supreme Court had adopted the position no one could adopt. I agree, it would be terrible. But if no one could ever adopt the position, neither of these things can ever occur in the first place.
2) I see the question of legislators discharging their responsibility as essentially a good faith test. Of course, you don't have to see it that way: You can hold legislators to whatever personal theory of the universe and the constitution you like. But I personally see it as a good faith test. Thus, it seems to me that if a majority of the Supreme Court takes a position, it is hard to fault a legislator for not objecting to legislation consistent with that position on the ground that the Supreme Court was wrong and the legislator has a duty to reject the Supreme Court. You can certainly fault the legislator for voting yes for a bad law, and you can vote against him for it. But I think it's a weak objection as a matter of constitutional duty.]
December 23, 2009, 9:15 pmJ. Aldridge says:
He might be dead, but many today among the living sure loves to twist what he left behind as justification for their legal arguments. And those who think they know what he thought never bothered studying his legal thinking, but have allowed the court to develop their opinion for them, which has been known to be incorrect.
[OK Chimes in: It's not just that he "might" be dead. He's really really really dead. ]
December 23, 2009, 9:19 pmMark Field says:
I suspect you could find someone who’d deny the existence of gravity, but I doubt he’d be willing to jump off a cliff.
December 23, 2009, 9:25 pmOff Kilter says:
OK: Paul,
I see them as the same thing: They have to, so they do. It’s the one fixed data point of constitutional interpretation in our legal culture.
Orin, as a conceptual matter, do you see any difference between one who literally believes the Eucharist and someone who claims to believe the Eucharist because denying it would remove him from a network very dear to him? I grant distinguishing these individuals as a third-party observer might be challenging, but to claim there is NO difference in principle between them seems odd…
[OK Chimes In: I'm Jewish, Off Kilter. I'm not good on conceptual differences relating to different beliefs in the Eucharist.]
December 23, 2009, 9:26 pmMark Field says:
That’s not a normative theory. That’s a theory which says, implicitly, “the Constitution means [what I personally understand] it obviously says on its face.”
December 23, 2009, 9:28 pmAndrew says:
No, Mark. Some judges prefer to find more ambiguity than others, but no one believes that every single word of the Constitution is 100% ambiguous.
December 23, 2009, 9:36 pmTwirip says:
No, it is part of constitutional law. That’s a very different beast from the Constitution.
December 23, 2009, 9:37 pmTwirip says:
It’s actually somewhat understanable that legal professionals would adapt that view. It doesn’t make it right, but it’s understandable. Their standing in their profession depends on their saying that sort of thing.
[OK Chimes In: As I note above, that is not what I was saying. Also, please be civil: I had to delete one of your comments above on civility grounds. A comment that consists of reprinting another person's comment and merely adds the phrase "Utter nonsense" is not civil.]
December 23, 2009, 9:41 pmEMB says:
I’d be surprised if Perry really thinks this; I’m pretty sure he’s just trying to stir up Texas vs. Washington feelings for his campaign against Hutchison.
I think it is still very much up for debate however whether Texas still has the right to split into up to five states (with correspondingly more senators and electoral votes).
December 23, 2009, 9:48 pmBrett says:
Well, it took me about three minutes to find Saikrishna Prakash’s 2006 Virginia Law Review article calling into question the “conventional wisdom” on presidential removal power (PDF here), so I’m foiled again. Oh well.
December 23, 2009, 9:49 pmTRE says:
Prof. Epstein, will you sign my blog post?
December 23, 2009, 9:52 pmdave hoffman says:
Orin,
Don’t go PoMo!
The question is really “constitutional to whom”, and the answer is “to the public,” since that is the audience that this particular fight is being directed at. I don’t imagine that Barnett, or Epstein, intend to convince other constitutional scholars with their arguments. Rather, they seem to want to provide an (allegedly) non-political ground to fight HCR. In the public, constitutional really only means “it’s constitutional if you follow existing judicial precedents”: isn’t that exactly the way that laws are thought about in the limited ways we talk about them in today’s politics? (e.g., Roberts’ umpires!) The second (normative) and third (structural) meanings of constitutionality aren’t shared publicly. Or to put it differently, if in 233 years, scholars were trying to interpret the constitution that we’d (oddly) decided to derive from the posts on the Volokh Conspiracy, Randy’s version of constitutional (your “b”) would not be the original meaning of the term. As I noted on Ilya’s thread, it is heterodox, private and academic.
[OK Chimes In: I don't think the public recognizes the different subtle meanings at play here. Before I went to law school, I assumed that saying something was unconstitutional or not was like solving a big engineering problem. That is, there was an objective answer, and the experts were helpful because they were skilled at deriving and revealing those answers. Part of my concern with the claims today about whether the mandate is constitutional is that a lot of the claims by constitutional law "experts" are obviously of a different nature.]
December 23, 2009, 9:55 pmChris Travers says:
Hmmm….. My thinking on this (I am not an expert) is a little different.
The issue in my opinion is that the court in Plessy v. Fergusson stated as a central holding that people were entitled to equal treatment by the state regardless of race. The court at that point did not so much endorse segregation as simply refuse to strike it down in the absence of evidence that the segregation at hand was fundamentally unequal.
By the time Brown came around, it was quite clear that racial segregation meant inequality. The Brown court didn’t really rule that all segregation was inherently antithetical to equality (for example, they didn’t strike down gender segregation of restrooms which can still be separate but equal), but they basically concluded that the Plessy test was unworkable and therefore had to be overruled in order to fulfil the central promise of the 14th Amendment, as articulated even in Plessy: Equal treatment without regard to race.
(as a side note, I think that rhetoric aside, Brown bears much the same relationship to Plessy as Casey does to Roe)
December 23, 2009, 10:23 pmAndrew says:
Orin, suppose the Supreme Court takes the position that the federal government may spend money virtually however it likes, once it has already lawfully acquired that money (e.g. via taxation). Perhaps you’ll find that scenario somewhat plausible.
Now, if your a Congresscritter, no matter what you do will compy with this position of the Supreme Court. Thus, suppose Congress collectively says, “No, we think the Constitution demands that every dime spent by Congress must be tied directly to some enumerated power rather than merely the vague general welfare.” SCOTUS may disagree with that conclusion of Congress, but SCOTUS certainly is not going to strike down the resulting legislation that strictly ties spending to enumerated powers.
So, basically, I would indeed fault a legislator who simply assumes that every SCOTUS decision is 100% correct, without attempting to form his or her own view about what the Constitution really means.
It is not hard to fault a legislator who supports legislation that he or she thinks SCOTUS will approve, if the legislator thinks that SCOTUS was wrong and should not approve it.
[OK Chimes In: Andy, you seem to agree with me that this is a good faith test. The difference seems to be that you believe that legislators have an affirmative obligation to be constitutional theorists and to apply their own personal constitutional theories to each item of legislation that they vote on. I think that's just too much to ask of politicians.]
December 23, 2009, 10:33 pmAndrew says:
No, Orin, I simply think that when a legislator takes an oath to support and defend the Constitution, that should mean something more than that they will abide by past and likely court decisions. Additionally, constitutional interpretation is not merely about competing theories; it’s also sometimes about plain meaning. Even when it is about competeing theories, I don’t think it’s too much for a congressman to read a relevant court case and decide if he thinks the dissent is more convincing.
[OK Chimes In: Andrew, how far is "something more"? For example, how is a non-lawyer member of Congress -- let's say he's a businessman -- supposed to know if he finds the dissent more persuasive? Based on what? Finally, I think following plain meaning is itself a theory. And is that plain meaning at the time of the framing? Or plain meaning in the present? At some point it's turtles all the way down.]
December 23, 2009, 11:00 pmAndrew says:
Well, the people who wrote the Constitution did so with a minimum of technical language, so that the people would easily understand it. But if now we want to let not just the people off the hook, but also let their elected representatives off the hook, then we’re on shaky ground. Sure, legislators should trust the courts….but verify.
[OK Chimes In: Can you list some of the key phrases that you think are easy to understand? That might be helpful.]
December 23, 2009, 11:13 pmMark Field says:
Whether something is ambiguous can only be decided in context. In the right situation, every clause of the Constitution could be ambiguous.
There really is no such thing as the “plain meaning rule” applicable to all cases and all times. It’s a theory of interpretation and not a very persuasive one because it relies too much on the subjective beliefs of the individual reader. Saying a meaning is “plain” has the same logical force as declaring an argument “obvious”; which is to say that it persuades those who are already on your side.
December 23, 2009, 11:39 pmTRE says:
Judicial nihilism is all fine and good, but there are many practical problems. Even the theoretical plurality of justices ruling that the 13th amendment does not prohibit chattel slavery have their “own view” of constitutionality prior to issuing their ruling. The caveat should be on the other side. “Judicial constitutionality.”
December 24, 2009, 12:03 amJ. Aldridge says:
It wasn’t the min of technical language that made the Constitution understandable, but the very few powers granted that did. The Constitution is easy to understand by honest folks who simply ask themselves simple questions like “how was commerce regulated?” and not what an activists might think it means.
December 24, 2009, 12:05 amRohan says:
There’s a lot of stuff that constitutional but obvious. For example, the right of a citizen who is a permanent resident and of age to vote. But that’s so obvious now, that no one even considers it.
So what you’re really asking is there anything which is moderately controversial and yet there is a consensus. I think that might be hard to find. If there’s a consensus, it’s probably not controversial.
December 24, 2009, 12:17 amDave says:
It is impossible to promise to “support and defend” something undefined in your own mind. What would you be supporting? Nothing.
You could make a promise to support whatever the Supreme Court says the Constitution means, but that would be a different oath than the one that members of Congress take. That would be an oath to the court.
The promise the members make, however, is to the constituents whom they represent. So, they are on the hook to have a personal opinion as to what the Constitution says.
December 24, 2009, 12:20 amCrazyTrain says:
You may think that is a clever and provocative statement, but it has no grounding at all in reality. Brown was pretty quickly understood to have completely discredited Plessy (even if it did not do so explicitly and, indeed, appeared to really try not to do explicitly). Casey was understood to mean what it said, i.e., it “reaffirm[e]d . . . Roe’s central holding.” No amount of clever acrobatics can justify your assertion. Sorry.
December 24, 2009, 12:22 amAndrew says:
Orin asked: “Can you list some of the key phrases that you think are easy to understand?” I already mentioned some, like the 22d Amendment, the slavery clause of the 13th Amendment, et cetera.
In the context of incorporation of the Bill of Rights, I think the Due Process Clause is exceedingly easy to understand as well. Anyone with
half a brainan interest in the intended meaning can see that Congress obviously did not intend the Fifth Amendment to cover matters in the other nine amendments, given that Congress allowed the states to ratify the Fifth Amendment but reject the other nine.But maybe that’s an argument for another day….
More to the point here is that some provisions of the Constitution are very unclear, but unclear in such a way that a legislator is just as competent to make an educated guess as any judge. And, to the extent that SCOTUS has based a long-ago interpretation on deference to Congress, why shouldn’;t Congress be able to change its mind?
December 24, 2009, 12:24 amCrazyTrain says:
Seriously? “Due process of law”? “Privileges or immunities of citizens of the United States”? “Equal protection of the laws”? The contours of these limitations on States’ powers were easily understood at the time? There were some pretty divergent views about what those clauses meant within a few years of them being passed, see, e.g., the differing opinions and assertions in the Slaughterhouse cases. And that is just one section of one amendment!!
December 24, 2009, 12:28 amCrazyTrain says:
That’s not responsive at all. You are simply saying what the due process clause of the fifth amendment did NOT mean. That’s easy — I will assert with 100 percent certainty that it also does not mean that the federal government is required to buy Orin Kerr a beer (and everyone — with the possible exception of Mr. Kerr — will agree with me). Now, do what I think is hard: tell us what it means under your “easily understood, non-technical” view that everyone allegedly understood in 1791? I really want to hear it.
December 24, 2009, 12:30 amAndrew says:
Crazy-train, while there may be some ambiguity in some of those phrases, there is also some certainty. For example, if SCOTUS were to cite the Equal Protection Clause as grounds for striking down statutes that forbid drug use, on the ground that such statutes treat illegal drugs “unequally” to legal drugs, then that would be a definite faux pas that a legislator should be able to observe just as well as anyone else.
December 24, 2009, 12:33 amTGGP says:
Didn’t Raoul Berger not accept Brown v Board? He’s dead, but more recently than Bingham (and I’ll note that I find it plausible Aldridge is not misrepresenting Bingham regarding this particular issue).
Scalia has said that Brown is such an important precedent that originalism must give way for it. Does Clarence Thomas really think it’s constitutional?
December 24, 2009, 12:36 amAndrew says:
Please note that when CrazyTrain quotes the words “easily understood, non-technical” he is not quoting me. Who is being quoted, I know not.
December 24, 2009, 12:41 amCrazyTrain says:
Again, you are simply asserting what these terms do NOT mean, not what they “clearly” mean.
December 24, 2009, 12:44 amAndrew says:
CrazyTrain, I said above: “no one believes that every single word of the Constitution is 100% ambiguous.” Likewise, no one believes that every single word of the Constitution is 100% unambiguous — including me.
December 24, 2009, 12:48 amOff Kilter says:
Orin, if the Eucharist doesn’t work for you, feel free to substitute the story of an oil lamp with only 1 day’s worth of oil that really burns for 8 days vs is claimed to have burned for 8 days.
Do law schools give courses in how to blow off substantive questions one would rather avoid? Do you teach such a course? You’re very good at it.
The fact is, there’s a clear epistemic difference between truly believing Brown is constitutional and secretly believing but never publicly claiming it’s not constitutional, despite the fact third-parties might never be able to distinguish the two positions. Ignore it if you wish, but it’s a difference nonetheless.
[OK Chimes In; Off Kilter, if you would like to comment here, please be civil. My sense is that this comment is not civil: "Do law schools give courses in how to blow off substantive questions one would rather avoid? Do you teach such a course? You're very good at it." Perhaps I am mistaken, but this seems like an attempt at biting sarcasm to me. It is therefore in violation of our comment policy. I believe you have violated our comment policy before, specifically in snippy comments made to me, so please consider yourself warned. (Also, given that I frequently spend hours of almost every day responding on the merits to anonymous internet commenters such as yourself, I think your sarcasm is rather misplaced.) As for your question, it seems to be asking if real faith is the same as fake faith. The answer is no: One is real and the other is fake. But I'm not sure how that is is a novel observation. Perhaps the difficulty is the suggestion in your earlier comment "to claim there is NO difference in principle between them seems odd." I gather this means you think I made such a claim, but I don't see where I did. At the very least, I did not mean to. As a result, it's not that I was trying to avoid your question. I just didn't understand it or see its relevance, as it was referring to terms I didn't understand and criticizing me for a position I didn't take. Best, Orin]
UPDATE: It occurs to me, Off Kilter, that you may have been responding to my response to Paul. I didn’t realize that: I had written about 6 to 8 substantive responses in the thread, and I didn’t see that was what you were referring to. In response to that comment: I guess I don’t know how to tell if someone really believes in a constitutional decision, versus really really believes, or maybe doesn’t believe but says they do. Of course there is a conceptual difference. But I don’t know how to tell the difference. Lie detector test? Truth serum? Really, I don’t know. More broadly, I’m not sure I see the relevance of that for the point I was making in the thread. Indeed, if you think that conceptual difference is critical, then it only makes the point of the thread more strongly than before.]
December 24, 2009, 12:53 amOrin Kerr says:
CrazyTrain writes:
Not only do I disagree, but I disagree strongly.
December 24, 2009, 1:15 amVolokh Groupie says:
I’d have to echo Paul’s point here. Brown vs. Board is really an issue of having to agree with the decision to be taken seriously. The fact that McConnell bent over backwards to try to get an originalist agreement with the position seems to make that clear (along with the criticism Maltz leveled at those articles). And that certainly doesn’t seem to be the same as actually believing in the decision on a normative con law level. Imagine trying to make the same argument in another field, like say Climate Modeling.
And by the standard you’re proposing Orin, there are plenty of things Con Law scholars agree with: Judicial Review, McCulloch v Maryland extended powers, Wickard, etc
December 24, 2009, 1:24 amJ. Aldridge says:
[Deleted by OK. OK Explains: J. Aldridge, you have written hundreds of comments here on what Bingham thought the original meaning of the 14th Amendment was. You really need to stop. I poked fun at it with the VC Drinking Game, but you keep on making the same point over and over and over again. If you do not stop, I will ban you from commenting here.]
December 24, 2009, 1:29 amCraig R. Harmon says:
The ‘plain meaning’ of the Constitution is not always so easy to sus out. What, for example, is the plain meaning of “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”? Does that literally mean that Congress cannot pass any law that in any way infringes upon the speaking or printing of anything? May Congress not pass libel laws or laws against fraud in advertising or business practices? Obviously “…shall make no law…” means something quite different to Congress and the SCOTUS than those words would seem to mean on their face. Or those words were never intended to be taken in their strictly literal sense.
I’m no lawyer so if I’m missing something very basic to lawyers, please be gentle. Did anyone ever actually think that those words were intended to be applied in a strictly literal sense? That is to say, that the U. S. Congress could not pass any law abridging speech or press?
December 24, 2009, 2:40 amRich Rostrom says:
Constitutionalisms that there is an expert consensus on:
Each state shall be represented by two Senators.
House seats shall be apportioned among the states by population.
Presidential appointments shall be approved or rejected by the Senate.
States may not coin money.
Presidential electors vote separately for President and Vice President.
Women (or men) cannot be excluded from voting as a class.
The term of a new Congress begins on January 4; the term of a new President begins on January 20.
Congress has jurisdiction over the District of Columbia.
If the Vice President was impeached, he could preside over his own trial before the Senate. (The Chief Justice presides if the President is impeached; the VP presides over the Senate at all other times if he wants to.)
The privilege of habeas corpus may be suspended. (When and by whom – controversial. That it can be, not controversial.)
December 24, 2009, 2:59 amPragmaticist says:
“The belief that a limited government will stay limited is truly utopian.” – Murray N. Rothbard, libertarian anarchist.
December 24, 2009, 8:07 amMark Field says:
Various individuals have made this argument at different times over the years, at least rhetorically: Thomas Jefferson and Hugo Black are 2 prominent examples.
December 24, 2009, 10:35 amJoe says:
Hugo Black was somewhat selective in his adherence and accepted limitations as well when it was tied to some lawless action … something he apparently thought included wearing armbands and jackets with bad words.
Brown v. Bd., of course, was controversial when it was decided, with Learned Hand among those dubious. A few scholars would still probably question the decision.
http://www.brennancenter.org/content/resource/second_guessing_the_supreme_court/
December 24, 2009, 10:54 amHans Bader says:
The individual mandate exceeds Congress’s power under the Commerce Clause, under United States v. Morrison, 529 U.S. 598 (2000), which said that the Commerce Clause can only be used to reguate economic activity — (not non-economic activity, much less inactivity, like refusal to buy health insurance by a young person who does not consume medical care.)
And it can’t be sustained based on tax powers, either (given that it’s not an income tax; does not satisfy the Constitution’s original requirements for direct or indirect taxes; and, alternatively (assuming a 1920′s era Supreme Court decision is still good law), the tax power can’t be used to circumvent the Supreme Court’s commerce-clause decisions). However desireable it might be as a policy goal, it is unconstitutional.
The racial preferences in the bill (and its bizarre provision, demanded by Senator Burris (D-IL), that preference be accorded “indigenous” organizations advocating for African-Americans — known as the ACORN provision) violate the Supreme Court’s Adarand decision, the Federal Circuit’s Rothe decision, and the Ninth Circuit’s Western States Paving and Monterey Mechanical v. Wilson decisions.
Law professor Richard Epstein argues that the bill is unconstitutional for many other reasons, as does Professor Rob Natelson.
I discuss enumerated power objections to the bill here and here.
I discuss equal protection objections to the bill here.
A member of the U.S. Commission on Civil Rights, which objects to race-based provisions in the bill (including provisions that would make it easier for institutions that cater to minority patients to have penalties reduced for abusing such patients — the alleged “beat granny” provisions), discusses the issue here.
December 24, 2009, 11:48 amGuesty says:
I think its important to point out that positions which are currently uncontroversial may become controversial if its politically expedient.
The Ninth Amendment keeps getting trotted out by various factions upset with the bailouts or the proposed public option, though no scholars take the arguments seriously.
Similarly, the birther arguments aren’t grounded in longstanding citizenship controversies but concocted to support political positions.
I would bet that any so called settled issue could be quickly polarized given the right situation.
December 24, 2009, 12:15 pmChris Travers says:
The USCCR letter can be read here.
December 24, 2009, 1:11 pmChris Travers says:
Heh…. Seems like the disproportionate penalties for patient abuse for long term care facilities based on the racial makeup of the patients seems to be the most direct denial of equal protection under the laws to racial minorities I have seen in my lifetime.
I can’t remember any previous law that said that penalties for committing a crime against a black man should be stated as less in the statute than against a white man. That’s just crazy.
Maybe we DO need section 5 of the Voting Rights Act still after all….
December 24, 2009, 1:18 pmepeeist says:
As several others have noted, one “has” to agree with Brown, but I know I’ve read/seen (maybe in a bio of CJ Earl Warren?) criticism of Brown on a constitutional level.
I’m in the somewhat odd position of agreeing with the decision, while thinking it was wrong in law (on a related note, I think abortion is morally wrong but Roe v. Wade was “good” constitutional law and thus the correct decision).
I think racial segregation and Jim Crow and all that was disgusting, but given the history of the U.S. and the Constitution, I really can’t see how segregation was unconstitutional (in principle; as practiced, because of the horrible inequality, yes). I think I once read something about a 19th century (supreme?) court case involving segregated railway travel in which a black (not the term the case used!) female plaintiff was successful in her suit because the railway did not provide EQUAL segregated facilities for her to travel in 1st class.
December 24, 2009, 2:31 pmAngela says:
That’s not necessarily true. IIRC SCOTUS wrote that DUI road blocks are unconstitutional, but chose to allow them anyway for the public good. We have lost so many individual freedoms in that name that it’s pretty pointless to pretend that the Constitution is even relevant any more. Other than giving certain law professors distinguished titles, what’s the point, really?
December 25, 2009, 7:21 pmSteve2 says:
Professor Kerr, years ago when I learned that judges do not give that meaning to determinations of constitutionality and that law schools train students not to think in those terms it soured me on the idea of going to law school. I didn’t want to be involved in anything that didn’t have objective answers.
I’ve heard that Justice Minton was a third. I’m a very unprominent 4th example, since I regard the Constitution as America’s source code, to be read literally and compiled by plain meaning.
December 27, 2009, 12:33 am