The Volokh Conspiracy

I find it interesting that Madison considered "Congress" to be plural in his noun-verb agreements. Was this generally the case back then, and can the moment when it became singular be pinpointed?

The British still sometimes use plural verb forms with collective nouns ("The team are...")

Never mind Congress, when do we get one on the Court? Having left a trail of debris after themselves over the years it might be an opportune time to cast a cynical eye in that direction.

All of this propaganda, I take it, is Professor Barnett's feeble effort to prepare the ground for that imminent innovation, the judicial veto -- imminent given the appointment of Alito. And, once the Federalist Society's numerous represenatives among the Federal judiciary have elevated themselves to a judicial House of Lords, the better to impede legislative democracy, no doubt we will be treated to erudite expositions of the Executive's role in Constitutional interpretation, as well. The steady building of the fascist State, which, remarkably, attracts so little hostility from Prof. Barnett, will be further advanced by the monarchical veto, dressed up as the "signing statement".

A Congress, which does not articulate its intention to the satisfaction of a hostile judiciary, will have its laws suspended, pending a further explication, not because a court has found them unconstitutional, but because the court has not found a sufficient basis to "defer" to the Congress's judgement in the matter. That's rich. But, Congress's intention, however well-stated, will not be allowed to breach a President's well-articulated assertion that he shall not be bound by this and that and the other thing. Oh, what a bulwark against violations of our Constitutional rights do we erect here! Torture prisoners? Oh, I'm sorry: I know the Congress "intended" to prohibit that, on numerous occasions, but, really, the President has declared his understanding that he can detain and torture anyone he likes, or dislikes, and we cannot have an activist judiciary interfering with the President's ability to detain people indefinitely, and question them "vigorously" whenever he gets around to it.

Not just lots of mainstream people. Everyone believed the federal government is one of limited power. Everyone, just about, still does. But what are the limits? And how do we tell where they are? Are exercises of federal power that were, literally, unimaginable in 1787 illegitimate under present conditions? If so, why? If not, why not? Little of what I've read on this is particularly helpful. Muddling through looks good by comparison.

SL: "So what?"

So what is the judicial veto, the extension of judicial review to include the power to suspend a law, not because it is actually unconstitutional, but because Congress, in its legislative history or text, has not made a sufficient finding in support of its constitutionality.

A short time ago, Barnett treated us to some remarks on judicial negation and legislative restraint, in which he suggested that the Judiciary should be more aggressive in demanding that Congress justify its assertions of Constitutional authority, that is, the judicicary should rule invalid laws, which do not carry with them a sufficiently persuasive statement of legislative intent with regard to the Constitutional power of Congress to enact them. I propose adopting a "presumption of liberty" by which the burden is placed on Congress to establish that its laws are truly "necessary and proper"—what it used to debate but no longer. Barnett: "I think experience with the scrutiny given laws governing the freedoms of speech and press strongly suggests that Congress will be more circumspect if courts are less deferential. Paradoxically, this would result in a congressional judgment of constitutionality to which courts could defer." This is the sort of judicial deference to which Alito referred in his confirmation hearings, the sort of deference, which led Alito to dissent in Rybar: "the statute challenged here would satisfy the demands of the Commerce Clause if Congress simply added a jurisdictional element"

Or, cast your eyes on Alito's majority opinion in CHITTISTER, which turns on Alito critiquing the Congress's specific attention to the problem of family leave in State employment: "Notably absent is anyfinding
concerning the existence, much less the prevalence, in
public employment of personal sick leave practices that
amounted to intentional gender discrimination in violation
of the Equal Protection Clause. For example, Congress did
not find that public employers refused to permit as much
sick leave as the FMLA mandates with the intent of
disadvantaging employees of one gender." Or yeah, (paraphrasing Alito) and FMLA provides a substantive right, and Congress could do that under the 14th amendment, but, sorry, we're not going there, because Congress emphasized a different part of the 14th amendment.

All of these four quotes are from after the Constitution and Bill of Rights were written and adopted. Some earlier quotes would therefore be more useful if the meaning of the Constitution is at issue here.

Also, I don't see how this particular quote from Madison is "libertarian." The point Madison was making is that when Congress is acting pursuant to implied powers instead of express powers, then the courts have some power to review those acts for necessity and propriety. If we take this statement by Madison as gospel, it suggests no limitation on actions pursuant to express congressional power.

More importantly, even regarding action pursuant to the implied powers, Madison was merely saying WHO has authority to determine constitutionality. Madison's analysis applies both to acts that impinge on liberty as well as acts that expand liberty. The quote is thus liberty-neutral.

Bruce Wilder writes:

All of this propaganda, I take it, is Professor Barnett's feeble effort to prepare the ground for that imminent innovation, the judicial veto -- imminent given the appointment of Alito.

It isn't imminent--it has been present for some time, in Lochner, in Lawrence, in Romer v. Evans, in Cleburne v. Cleburne Living Center, in innumerable obscenity cases. Now, you can make an argument that particular decisions were rightly decided based on a specific constitutional provision--but the idea that there was a "presumption of liberty" in the early Republic is absurd.

There was a presumption of limited federal power--which didn't last very long, once the magic incantation of interstate commerce regulatory authority was turned from a limitation on the states into an all encompassing power of the federal government. Particular state constitutions limited authority of the state governments as well. But a default "presumption of liberty" is Professor Barnett's hobby horse for striking down all legislative enactments of which he disapproves.

CEC: "It isn't imminent--it has been present for some time"

In refering to Alito's dissent in Rybar, and his opinion in Chittiser, as examples of a doctrine of judicial veto, I meant to invite comparison to the delaying veto of the House of Lords, and also to distinguish it from the conventional doctrine of judicial review. In conventional judicial review, the Court straightforwardly declares that Congress or a State cannot do X. Where the basis for judicial review is resolution of a conflict between something Congress or a State can generally do, and something Congress or a State is specifically prohibited from doing, as in a violation of one of the Constitution's rights guarantees, there may be some of kind weighing test, or a requirement of rational purpose, or the like, to resolve the conflict.

In Rybar, Alito is so far from simply declaring the statute in question as unconstitutional, as to assert that Congress could have made the law Constitutional, not by modifying any of its provisions, but modifying its legislative history, to include an assertion of its constitutionality, to which Alito could defer.

In Chittiser, which, conventionally, would call for some kind of weighing test, to determine whether Congress was within its 14th amendment authority to overcome the 11th amendment, Alito, again, chooses to complain that Congress did not supply an adequate legislative history. (Rehnquist, of course, did the conventional weighing test thing, in upholding the FMLA's application to the States.)

I am sorry that I did not make myself clearer.

I am not one of those people, who think either the 9th or 10th amendments is meaningless, and, like you, I think the Commerce Clause is much abused, though the unfortunate textual opacity of the 14th amendment and the cleverness of Congress in devising a bondage of discretionary funding and unfunded mandates play their part, as well. A serious federalism, however, would not advocate an anachronistic revival of 18th century rules and structures, long ago proven impractical; to make a vigorous federalism work, we'd need a very different set of States, with a greater degree of geo-economic coherency -- I don't see it happening, so I'm willing to muddle through, cheered by the likes of Lopez (1995), but not really hopeful.