McConnell vs. Breyer:

Via Ted Frank over at, Judge Michael McConnell has a rather devastating (though unfailingly polite) review of Justice Stephen Breyer's Active Liberty in the Harvard Law Review.

As an aside, I'm a bit skeptical of McConnell's conclusion that Supreme Court decisions regarding federal regulation of "intrastate commerce" have been accepted by the nation. Putting aside the issue of whether "the nation" is even aware of the issue, I'm not at all confident that a constitutional amendment mimicking the holding of Wickard v. Filburn, much less Gonzales v. Raich, would pass even today.

UDPATE: Judge McConnell responds in the comments below: "The reason Raich and Wickard are controversial is that they arguably do not involve 'commerce' — not that Congress lacks the power to regulate what is genuinely commerce (albeit intrastate). Just because a particular interpretation is very widely accepted does not mean that every marginal extension of that interpretation is widely accepted."

Yes, that's right, though of course the "public" doesn't understand these fine legal distinctions. The point, I think, is that while public opinion has likely made its peace with a substantial expansion of federal regulatory power relative to the pre-New Deal baseline, I think there is still substantial (even if perhaps not majority) opposition to granting the federal government what in legal terms would be called a general "police power"--the power to regulate everything and anything, subject only to the restraints of the Bill of Rights, which is a reasonable description of the current state of the law.

Meanwhile, Sasha writes: "'Accepted by the nation,' as we know from public choice, isn't the same as 'able to pass if proposed in a constitutional amendment.' Would a constitutional amendment pass that overruled Wickard v. Filburn or Gonzales v. Raich?" Good point, so let me elaborate: my normative baseline is that if "overwhelming public acceptance" (McConnell's words) over time is to give dubious Supreme Court opinions "legitimacy and authority," it should be because these opinions could, if necessary, ultimately be ratitified via the normal Article V process; at least, one should be able to expect a reasonable chance that such ratification would occur. That's likely true of McConnell's other examples: extension of equal protection principles to the federal government, prohibition of sex discrimination by states (despite the failure of the ERA, I think you could likely get the current state of the law ratified), and prohibition of gross malapportionment of Congressional districts in the states.

McConnell (and Me) vs. Breyer:

Judge Michael McConnell's critical review of Justice Breyer's recent book Active Liberty overlaps in some ways with my own critique of the same book, recently published in the Northwestern Law Review. But, interestingly, the similarities are probably outweighed by the differences. Although I agree with most of Judge McConnell's points, and he might agree with many of mine, our divergent academic interests led us to focus on somewhat different issues in our respective reviews. McConnell's review and mine came out at about the same time and I didn't have the chance to see his piece before submitting my own. Here's an excerpt from the abstract to my review:

Justice Stephen Breyer's new book, Active Liberty: Interpreting Our Democratic Constitution, is an important contribution to the longstanding debate over the relationship between democracy and judicial review. Breyer argues that judicial power should be used to facilitate citizen engagement in the democratic process . . .

Part II shows that Breyer's claim that judges should explicitly weigh consequentialist considerations in making decisions may lead the judiciary well beyond its field of competence. This point is dramatically illustrated by the sometimes superficial treatment of democracy in Justice Breyer's own book, which ignores tensions between different conceptions of democracy and often fails to consider relevant empirical evidence.

I also contend that a sounder judicial approach to democracy would look more favorably upon judicial limits on the power of the federal government in order to foster federalism. Such efforts could, at least at the margin, strengthen the federal government's accountability to voters by limiting the impact of political ignorance. They could also impose accountability on government by strengthening citizens' ability to vote with their feet instead of just at the ballot box.

Part III assesses Breyer's critique of originalism. While the Justice is right to point out some key flaws in originalist jurisprudence, the force of his critique is weakened by his failure to make crucial distinctions. Breyer's analysis conflates textualism and originalism. Yet these two modes of interpretation are distinct and we could coherently embrace one while rejecting the other. Many of Breyer's criticisms of originalism do not necessarily apply to textualism. Breyer focuses primarily on what scholars call original intent originalism, which seeks to divine the specific intentions of the Framers. He largely ignores the more compelling (and today more widely accepted) approach of original meaning originalism, which holds that judicial interpretation should be based on the generally understood public meaning of the Constitution's words at the time of enactment.

Ultimately, Justice Breyer is right to claim that the judiciary may have a valuable role in promoting democracy. But his prescriptions on how it should achieve that goal are far less compelling.

UPDATE: I have added a link to Judge McConnell's review essay.

Did the Public "Accept" Unlimited Federal Commerce Clause Authority?

In a recent post and comments, co-blogger David Bernstein and Judge Michael McConnell debate the question of whether a majority of the public has "accepted" the nearly unlimited federal power to engage in "economic" regulation reflected in cases such as Wickard v. Filburn and, most recently, Gonzales v. Raich, and whether they would have been willing to support a constitutional amendment giving Congress virtually unlimitede regulatory authority. It so happens that I presented some data on this question in a 2003 article in the William & Mary Law Review. The data strongly suggests that, during the New Deal era when the transition to the modern view of the Commerce Clause took place, the majority of the public opposed unlimited congressional power of this type. Here's an excerpt (citations available in the article itself):

In 1936-37, Gallup conducted three surveys asking respondents whether they supported a constitutional amendment to give Congress expanded power to regulate industry and agriculture,the fundamental question at issue in New Deal constitutional change. In a January 1936 survey, Gallup asked: "Would you favor or oppose an amendment to the Constitution transferring to the Federal Government the power to regulate agriculture and industry?" Forty-three percent of respondents answered "yes," while a strong majority of 57 percent said "no." In a similarquestion asked in December 1936, Gallup surveyed respondents as to the issue of : "Would you favor an amendment to the Constitution giving Congress the power to regulate agriculture,commerce, industry, and labor?" Once again, a majority (51%) said "no," while 42% answered yes and seven percent expressed no opinion....

In March 1937, Gallup asked if respondents would "favor an amendment to the Constitution giving congress greater power to regulate industry and agriculture." This question differs from the previous two in that it posits a potentially much more modest increase in federal regulatory power. Instead of asking about giving Congress "the power to regulate" industry and agriculture, which implies complete power over these subjects, it merely suggests granting Congress regulatory power "greater" than that which it currently possesses. Not surprisingly, this more modest grant of power was supported by a much higher percentage of respondents than the broader one. Fifty-eight percent of respondents in the March 1937 survey said that they favored the proposed amendment, while 42 percent said that they were opposed. Nonetheless, as Barry Cushman points out, it is significant that 42 percent may have opposed any broad increase in federal regulatory authority at all. This suggests that much of the opposition to increased federal power expressed in the two 1936 surveys was quite deeply rooted.

(pp. 625-26 of the published version of the article).

I should emphasize that there is no doubt that the majority of the public in the 1930s favored increasing federal regulatory authority beyond pre-New Deal levels. But that, of course, is not the same thing as favoring virtually unlimited federal power over "economic" affairs.

What about public opinion since the 1930s? We cannot know for sure, since to my knowledge there is no recent polling data directly on point. Nonetheless, since at least the 1960s, majorities have consistently said that the federal government has too much power. Most recently, in polls conducted during this fall's elections, 54% said that government is "doing too much" that should be left to individuals and businesses, while only 37% said that government is doing too little. Such views are not logically incompatible with a belief that the Constitution should be interpreted to give Congress virtually unlimited power to regulate "economic" activity. For example, voters might believe that Congress has this power, even though it shouldn't, or might want government to do more in the economic field, but less overall. The second conjecture is partly contradicted by the survey cited above, which found that 51% said that government should do "more" to promote "traditional values," which implies (in conjunction with the overall result that a majority believes that government is doing too much) that the government activism on economic issues is more unpopular than on "social" ones. As for the first, I doubt that most of the general public rigorously distinguishes between constitutional considerations and policy ones. At the very least, however, the survey data seems to cut against Judge McConnell's contention (quoted by David) that the virtually limitless post-New Deal interpretation of congressional Commerce Clause power has been "accepted by the nation."

It goes without saying that decisions like Wickard and Raich might be correct even if the majority of the public does not "accept" them. The apparent absence of public support, only undermines those justifications for the decisions that rely on the idea that unlimited federal regulatory authority is supported by a broad public consensus.

UPDATE: Some commenters ask why it should matter whether a majority of the public supports an unlimited congressional commerce power or not. As I said in the original post, I myself do not believe that the popularity of a particular interpretation of the Constitution has much bearing on its correctness. However, many scholars and jurists disagree. Many (including apparently Judge McConnell) contend that courts should hesitate to reverse even a flawed constitutional decision if that decision has, over time, come to command widespread public support. Other scholars, such as Bruce Ackerman, argue that broad popular support for revision of the Constitution during a "constitutional moment" (which, he believes, the New Deal was), justifies a change in constitutional interpretation even if there has not been a formal constitutional amendment. The lack of strong popular support for decisions such as Wickard and Raich is important from the standpoint of several widely accepted theories of constitutional interpretation, even though it may not matter much from a pure textualist or originalist point of view.

Related Posts (on one page):

  1. Did the Public "Accept" Unlimited Federal Commerce Clause Authority?
  2. McConnell (and Me) vs. Breyer:
  3. McConnell vs. Breyer: