Law professors are generally a pretty opinionated lot, and there's always a question of how much to bring one's own views into the classroom. This is especially true in a class with as many charged issues as constitutional law.
My classroom approach is to try to avoid proselytizing, on the rationale that the class isn't about me - it's about the Constitution.
Just the other day I received an anonymous e-mail from one of my students confirming this is the proper approach, at least for me. I'm grateful to this student for sharing the e-mail with me - this is about as good as it gets for a teacher....
With that person's permission, here's the e-mail:
"Now that the semester and finals are over I wanted to take a moment and thank you for your teaching methods this semester in Constitutional Law II. When I refer to your teaching methods, I am referring to your ability to stay politically neutral. Before I took your class this spring I was very concerned about your position on the political ideology scale. I had read your blog a couple times and to say the least, you and I are on opposite sides. Or to sum it up better, you despise President Bush and I believe that he is doing what he believes is best for our country. With Constitutional Law already being such a politically driven subject, I was actually considering not taking the class with you as the professor. In the past, throughout undergrad and lawschool, I have had an overwhelming majority of “liberal” professors and many (most) of them have in some way or another tried to persuade the class to believe as they do, and many of those were business classes which have no real political influence.
"Although a conflicting political viewpoint should never be a reason to avoid someone, if you are in a position to avoid it, most do. During this semester our class had many different discussions over many different topics and you did an amazing job as a mediator. Some professors believe that if they throw in a joke about both sides it clears the air about who they are really attacking, but most of the students in the room know what is really going on. You on the other hand did not do this a single time, you did not voice your opinion on any major controversies, and even with most trivial subjects you avoided giving the class your point of view. You allowed and encouraged class discussion on both points of views on every subject.
"This type of control is very hard to come by with any person, let alone a very political person teaching a very political class topic. Sorry for the rambling, but I am just trying to make sure you realize how much I appreciated you throughout the semester. You allowed me to focus on Constitutional Law, and not my personal objections to your beliefs and because of this, I feel I was able to grasp the content of the class. Even if in the end I did not do well on the final I believe that I understood the subject, and would recommend your Constitutional Law class to anyone.... Thank you again.
MSU Law Student, Constitutional Law II, Spring2008"
Showing posts with label Constitutional philosophies. Show all posts
Showing posts with label Constitutional philosophies. Show all posts
Thursday, May 15, 2008
Thursday, February 28, 2008
In Praise of Libertarian Originalism
Several weeks ago the American Constitution Society and Federalist Society at Michigan State University College of Law invited another professor, Lee Strang, and me to participate in a debate entitled “The Many Faces of Originalism.” Since we’re both like kids in a candy store when asked to talk about the Constitution, we jumped at the chance (well, I jumped at the chance - the debate was his idea).
Professor Strang argued for “Common Good Originalism”; I weighed-in for “Libertarian Originalism.” I think he got it about right when he estimated the two positions are in agreement about 70% of the time and disagreement about 30%. I describe here why I think the Libertarian Originalist interpretive approach to the Constitution is the better of the two.
We might first ask “Why Constitutionalism” at all? Why did We the People choose to solidify certain governmental arrangements and rights by placing them beyond the reach of ordinary politics? Why not a more “democratic” regime of the sort Thomas Jefferson suggested, where any constitution would be more legislative in nature in that it could be easily amended by each generation in order to ensure that the dead past would not constrain the living present?
James Madison, by contrast, favored a different sort of Constitution - the sort we ended up with - one that would provide firm and lasting constitutional constraints to ensure the conditions for the peaceful, long-term operation of democracy in a pluralistic society of many religions, races, ethnicities, and cultural backgrounds.
Originalists of all descriptions basically agree that at its core the Constitution is a kind of rulebook describing how the rules are played. It’s a “pre-commitment strategy” of sorts, designed to restrict lawmakers so they will not make up new rules along the way in order to further their own self-interest. The framers recognized human fallibility and the tendency of power to corrupt, and they intended to prevent lawmakers themselves from making the laws by which they make law.
As Thomas Paine explained in Rights of Man, “A Constitution is a thing antecedent to a Government, and a Government is only the creature of a Constitution…. [I]f experience should hereafter show that alterations, amendment, or additions are necessary, the Constitution will point out the mode by which such things shall be done, and not leave it to the discretionary power of the future Government…. A Government … cannot have the right of altering itself. If it had, it would be arbitrary. It might make itself what it pleased; and wherever such a right is set up, it shows there is no Constitution.”
And Madison, in Federalist 51: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” Men – and women – are not angels, of course, so a Constitution IS necessary.
On this much originalists of all descriptions can agree. But there are some things on which we disagree. Specifically, we disagree upon the scope of rights and liberties protected in the Constitution.
The libertarian originalist understands that the Bill of Rights defines some, but certainly not all, of the rights and liberties to be protected by the Constitution. The Ninth Amendment explicitly and unequivocally makes the point: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This is given added effect when read together with the Tenth Amendment, which states, “The Powers not delegated to the United States by the Constitution … are reserved to the States respectively, or to the people.” It is the people, in other words, who have the ultimate authority – not the government; and it is the people whose interests are to be protected – not the government’s. As Jefferson said, ““[K]ings are the servants and not the proprietors of the people.”
On this view, since government exists in the first place to preserve individual liberty, liberty presumptively trumps government power when the two come into opposition. While there is no question democratic government plays a vital role in determining policy for the community (people are not angels, after all), anytime it acts it must satisfy the burden of demonstrating its actions do not improperly limit liberty. As Paine says in Rights of Man, “Man did not enter into society to become worse than he was before, not to have fewer rights than he had before, but to have those rights better secured.”
The libertarian originalist looks at the constitutional text, structure, and history, and concludes that the single irreducible value eclipsing all else under the American constitutional regime is Liberty/Freedom. Historian Eric Foner explains, “No idea is more fundamental to Americans’ sense of themselves as individuals and as a nation than ‘freedom’ … or ‘liberty.’ The Declaration of Independence lists liberty among mankind’s inalienable rights; the Constitution announces as its purpose to secure liberty’s blessings….”
Historian Bernard Bailyn reports that the most basic goals of the American Revolutionary Era were to “free the individual from the oppressive misuse of power, [and] from the tyranny of the state.” Thomas Paine captured this understanding of the superior natural relationship of the people to their government in two enormously influential pamphlets, Common Sense in 1776 and Rights of Man in 1791-94, stating, “Society in every state is a blessing, but government even in its best state is but a necessary evil; in its worst state an intolerable one…; Government, like dress, is the badge of lost innocence….”
Or, to put it in more contemporary terms, imagine being able to use the constitutional equivalent of the “Google-Earth” feature of the popular internet search engine to zoom-in for detailed constitutional concepts and zoom-out for the more global concepts. If we were to zoom-out all the way to view the Constitution from the widest possible angle, where only the single most fundamental overriding principle of the document is legible, we would see the words “Liberty/Freedom.”
If courts were to adopt the libertarian originalist perspective in interpreting the Constitution, conservative and liberal judges would not need to argue about what rights and liberties existed or did not exist at the time of the framing – instead, the presumption is that a broad universe of rights and liberties do exist, and government may only limit them upon demonstration of very good reasons.
But what we have in modern America is an altogether different story. The original libertarian understanding of the Constitution is nowhere to be found in the conventional wisdom of either liberal or conservative (or anywhere in between) mainstream constitutional theory, both of which view rights and liberties like so many sugar cubes to be doled-out to a cooperative pony. As Professor Randy Barnett explains, “The Constitution that was actually enacted and formally amended creates islands of government powers in a sea of liberty. The judicially redacted Constitution [we have today, however,] creates islands of liberty rights in a sea of government powers.”
How this happened is a story for another day. (But if you’re interested, see Michael Anthony Lawrence, Government as Liberty’s Servant: The ‘Reasonable Time, Place & Manner’ Standard of Review for All Government Restrictions on Liberty Interests, 68 La. L. Rev. 1 (2007).)
For now my point is simply this. The most important, influential writings and commentaries of the American founding and reconstruction eras extol the virtues of freedom. By contrast, we do not find any serious argument in these writings for the sort of overly-powerful government that we have today in America. Nothing in the Constitution – not even an appropriate healthy respect for recognizing community interests as identified through the democratic process - mandates such an extreme level of judicial deference to government as currently exists. The judiciary’s current presumption-of-constitutionality review offers government too much temptation and leeway to act in ways that infringe Liberty/Freedom, which, as we have seen, constitutes the very core ideals upon which the nation was founded and the Constitution is designed to protect.
Professor Strang argued for “Common Good Originalism”; I weighed-in for “Libertarian Originalism.” I think he got it about right when he estimated the two positions are in agreement about 70% of the time and disagreement about 30%. I describe here why I think the Libertarian Originalist interpretive approach to the Constitution is the better of the two.
We might first ask “Why Constitutionalism” at all? Why did We the People choose to solidify certain governmental arrangements and rights by placing them beyond the reach of ordinary politics? Why not a more “democratic” regime of the sort Thomas Jefferson suggested, where any constitution would be more legislative in nature in that it could be easily amended by each generation in order to ensure that the dead past would not constrain the living present?
James Madison, by contrast, favored a different sort of Constitution - the sort we ended up with - one that would provide firm and lasting constitutional constraints to ensure the conditions for the peaceful, long-term operation of democracy in a pluralistic society of many religions, races, ethnicities, and cultural backgrounds.
Originalists of all descriptions basically agree that at its core the Constitution is a kind of rulebook describing how the rules are played. It’s a “pre-commitment strategy” of sorts, designed to restrict lawmakers so they will not make up new rules along the way in order to further their own self-interest. The framers recognized human fallibility and the tendency of power to corrupt, and they intended to prevent lawmakers themselves from making the laws by which they make law.
As Thomas Paine explained in Rights of Man, “A Constitution is a thing antecedent to a Government, and a Government is only the creature of a Constitution…. [I]f experience should hereafter show that alterations, amendment, or additions are necessary, the Constitution will point out the mode by which such things shall be done, and not leave it to the discretionary power of the future Government…. A Government … cannot have the right of altering itself. If it had, it would be arbitrary. It might make itself what it pleased; and wherever such a right is set up, it shows there is no Constitution.”
And Madison, in Federalist 51: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” Men – and women – are not angels, of course, so a Constitution IS necessary.
On this much originalists of all descriptions can agree. But there are some things on which we disagree. Specifically, we disagree upon the scope of rights and liberties protected in the Constitution.
The libertarian originalist understands that the Bill of Rights defines some, but certainly not all, of the rights and liberties to be protected by the Constitution. The Ninth Amendment explicitly and unequivocally makes the point: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This is given added effect when read together with the Tenth Amendment, which states, “The Powers not delegated to the United States by the Constitution … are reserved to the States respectively, or to the people.” It is the people, in other words, who have the ultimate authority – not the government; and it is the people whose interests are to be protected – not the government’s. As Jefferson said, ““[K]ings are the servants and not the proprietors of the people.”
On this view, since government exists in the first place to preserve individual liberty, liberty presumptively trumps government power when the two come into opposition. While there is no question democratic government plays a vital role in determining policy for the community (people are not angels, after all), anytime it acts it must satisfy the burden of demonstrating its actions do not improperly limit liberty. As Paine says in Rights of Man, “Man did not enter into society to become worse than he was before, not to have fewer rights than he had before, but to have those rights better secured.”
The libertarian originalist looks at the constitutional text, structure, and history, and concludes that the single irreducible value eclipsing all else under the American constitutional regime is Liberty/Freedom. Historian Eric Foner explains, “No idea is more fundamental to Americans’ sense of themselves as individuals and as a nation than ‘freedom’ … or ‘liberty.’ The Declaration of Independence lists liberty among mankind’s inalienable rights; the Constitution announces as its purpose to secure liberty’s blessings….”
Historian Bernard Bailyn reports that the most basic goals of the American Revolutionary Era were to “free the individual from the oppressive misuse of power, [and] from the tyranny of the state.” Thomas Paine captured this understanding of the superior natural relationship of the people to their government in two enormously influential pamphlets, Common Sense in 1776 and Rights of Man in 1791-94, stating, “Society in every state is a blessing, but government even in its best state is but a necessary evil; in its worst state an intolerable one…; Government, like dress, is the badge of lost innocence….”
Or, to put it in more contemporary terms, imagine being able to use the constitutional equivalent of the “Google-Earth” feature of the popular internet search engine to zoom-in for detailed constitutional concepts and zoom-out for the more global concepts. If we were to zoom-out all the way to view the Constitution from the widest possible angle, where only the single most fundamental overriding principle of the document is legible, we would see the words “Liberty/Freedom.”
If courts were to adopt the libertarian originalist perspective in interpreting the Constitution, conservative and liberal judges would not need to argue about what rights and liberties existed or did not exist at the time of the framing – instead, the presumption is that a broad universe of rights and liberties do exist, and government may only limit them upon demonstration of very good reasons.
But what we have in modern America is an altogether different story. The original libertarian understanding of the Constitution is nowhere to be found in the conventional wisdom of either liberal or conservative (or anywhere in between) mainstream constitutional theory, both of which view rights and liberties like so many sugar cubes to be doled-out to a cooperative pony. As Professor Randy Barnett explains, “The Constitution that was actually enacted and formally amended creates islands of government powers in a sea of liberty. The judicially redacted Constitution [we have today, however,] creates islands of liberty rights in a sea of government powers.”
How this happened is a story for another day. (But if you’re interested, see Michael Anthony Lawrence, Government as Liberty’s Servant: The ‘Reasonable Time, Place & Manner’ Standard of Review for All Government Restrictions on Liberty Interests, 68 La. L. Rev. 1 (2007).)
For now my point is simply this. The most important, influential writings and commentaries of the American founding and reconstruction eras extol the virtues of freedom. By contrast, we do not find any serious argument in these writings for the sort of overly-powerful government that we have today in America. Nothing in the Constitution – not even an appropriate healthy respect for recognizing community interests as identified through the democratic process - mandates such an extreme level of judicial deference to government as currently exists. The judiciary’s current presumption-of-constitutionality review offers government too much temptation and leeway to act in ways that infringe Liberty/Freedom, which, as we have seen, constitutes the very core ideals upon which the nation was founded and the Constitution is designed to protect.
Wednesday, February 21, 2007
Old (Feb.1,2006): Why Justices' Constitutional Philosophies Matter
Why Justices’ Constitutional Philosophies Matter
By: Michael Anthony Lawrence
With Joseph Alito’s confirmation to the U.S. Supreme Court, it is appropriate to take a moment to reflect upon why all Americans - Republicans, Democrats, Libertarians, Socialists, Greens, Blues, and Reds alike - should care deeply about the constitutional philosophies of the men and women who sit on the Supreme Court.
Like Achilles of Greek myth, the U.S. Constitution is strong yet vulnerable. The Constitution’s vulnerability derives, ironically, from the source of its greatest strength -the power of the Supreme Court to strike down the unconstitutional actions of the legislative and executive branches.
The Constitution’s vulnerability is dangerously exposed when the Court fails to exercise this judicial power to rein-in the excesses of the executive and legislative branches, because there is simply no other institution left to protect individual and minority rights. Occasionally the Court has so failed, as it did during World War I when it upheld vast legislative prohibitions on speech; or during World War II when it refused to curb executive forced-relocation and internment of thousands of innocent Japanese-Americans, but our history would look quite different if the Court had not eventually come back around in these instances and others to the position that the Court needs to check the power of the democratically-elected executive and legislature.
Some jurists and scholars protest that judicial “activism” is undemocratic and inappropriate. These arguments ignore the fact that the broad judicial power to correct majoritarian excesses is precisely how the founders originally envisioned the Court’s role in the constitutional design. As James Madison said (as urged by his friend Thomas Jefferson) on June 8, 1789 in asking the First Congress to adopt the Bill of Rights, “one [needs] to control the majority from those acts to which they might be otherwise inclined… independent tribunals of justice will consider themselves in a peculiar manner … [to] be an impenetrable barrier against every assumption of power in the legislative or executive [branch]; they will be naturally led to resist every encroachment upon rights….”
So as we see increasing numbers of Supreme Court jurists whose constitutional philosophies provide for a very powerful “unitary” executive with little judicial interference, there is justifiable cause for concern. This concern is far from arcane – at the extreme, an unchecked executive can lead to excesses of the sort that occurred in Germany in the 1930s and 40s. Hitler himself came to power, after all, through popular acceptance of the ideas of German jurists like Carl Schmitt, who argued in the 1920s and 30s that Article 48 of the German Constitution “conferred an unlimited authority in the executive as ‘protector of the Constitution’ to suspend the Constitution during a state of emergency, as long as he restored the Constitution when the emergency ended.”
In short, the U.S. Supreme Court as newly-composed must not shrink from fulfilling its crucial - yes, active - historic role of critically reviewing the actions of the executive and striking them down where necessary.
By: Michael Anthony Lawrence
With Joseph Alito’s confirmation to the U.S. Supreme Court, it is appropriate to take a moment to reflect upon why all Americans - Republicans, Democrats, Libertarians, Socialists, Greens, Blues, and Reds alike - should care deeply about the constitutional philosophies of the men and women who sit on the Supreme Court.
Like Achilles of Greek myth, the U.S. Constitution is strong yet vulnerable. The Constitution’s vulnerability derives, ironically, from the source of its greatest strength -the power of the Supreme Court to strike down the unconstitutional actions of the legislative and executive branches.
The Constitution’s vulnerability is dangerously exposed when the Court fails to exercise this judicial power to rein-in the excesses of the executive and legislative branches, because there is simply no other institution left to protect individual and minority rights. Occasionally the Court has so failed, as it did during World War I when it upheld vast legislative prohibitions on speech; or during World War II when it refused to curb executive forced-relocation and internment of thousands of innocent Japanese-Americans, but our history would look quite different if the Court had not eventually come back around in these instances and others to the position that the Court needs to check the power of the democratically-elected executive and legislature.
Some jurists and scholars protest that judicial “activism” is undemocratic and inappropriate. These arguments ignore the fact that the broad judicial power to correct majoritarian excesses is precisely how the founders originally envisioned the Court’s role in the constitutional design. As James Madison said (as urged by his friend Thomas Jefferson) on June 8, 1789 in asking the First Congress to adopt the Bill of Rights, “one [needs] to control the majority from those acts to which they might be otherwise inclined… independent tribunals of justice will consider themselves in a peculiar manner … [to] be an impenetrable barrier against every assumption of power in the legislative or executive [branch]; they will be naturally led to resist every encroachment upon rights….”
So as we see increasing numbers of Supreme Court jurists whose constitutional philosophies provide for a very powerful “unitary” executive with little judicial interference, there is justifiable cause for concern. This concern is far from arcane – at the extreme, an unchecked executive can lead to excesses of the sort that occurred in Germany in the 1930s and 40s. Hitler himself came to power, after all, through popular acceptance of the ideas of German jurists like Carl Schmitt, who argued in the 1920s and 30s that Article 48 of the German Constitution “conferred an unlimited authority in the executive as ‘protector of the Constitution’ to suspend the Constitution during a state of emergency, as long as he restored the Constitution when the emergency ended.”
In short, the U.S. Supreme Court as newly-composed must not shrink from fulfilling its crucial - yes, active - historic role of critically reviewing the actions of the executive and striking them down where necessary.
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