All Posts Tagged With: "Constitution"
This post was also inspired by Professor Larry Klugman. He picked up a digital “20 Questions” game at Walmart for a few dollars to play around with it. He figured it would contain many commonly picked items, but thought its range would be somewhat limited. Klugman reports that it successfully guessed what he was thinking of well within twenty questions, until he tried “The Constitution.”
This time he beat the machine by lasting more than 20 questions. On the 24th attempt, the machine finally ventured a guess. It didn’t get “Constitution” but the answer was still intriguing.
The item the machine guessed was “a receipt.” Professor Klugman urged me to share this with the blog, noting he thought the answer was surprisingly intellectual. In many ways the Constitution is a receipt for our democracy.
Article V of the Illinois Constitution deals with the Executive Branch.
Today Pat Quinn discussed a provision that allows a Governor to “step aside” rather than resign.
Article V, Section 6. (c). Whenever the Governor determines that he may be seriously impeded in the exercise of his powers, he shall so notify the Secretary of State and the officer next in line of succession. The latter shall thereafter become Acting Governor with the duties and powers of Governor. When the Governor is prepared to resume office, he shall do so by notifying the Secretary of State and the Acting Governor.
If the office of Lieutenant Governor is vacated, it remains empty until the end of the term. So if Pat Quinn becomes Governor through Blagojevich’s impeachment or resignation, he will not have a Lieutenant Governor.
Article V, Section 7. If the Attorney General, Secretary of State, Comptroller or Treasurer fails to qualify or if his office becomes vacant, the Governor shall fill the office by appointment. The appointee shall hold office until the elected officer qualifies or until a successor is elected and qualified as may be provided by law and shall not be subject to removal by the Governor. If the Lieutenant Governor fails to qualify or if his office becomes vacant, it shall remain vacant until the end of the term.
On April 25th, 1976, the Chicago Cubs were closing out a weekend series at Dodgers’ Stadium. In the 4th inning, two hippies ran out onto the field with an American flag, lighter fluid, and some matches. After dousing the flag, and attempting to engulf the flag in flames, Rick Monday, a Cubs outfielder, ran and snatched the flag as they were about to light it. Shortly thereafter, the crowd rose and began an impromptu chorus of “God Bless America”.
Personally, I think this event shows how torn our country was during the Vietnam War ERA (I hope that pacifies Tom). It may be someone’s constitutional right to burn the flag…but thankfully, it is also another citizen’s right to rip that flag away and prevent it from being burned (I’m sure the breaking and entering onto the field didn’t help their cause either). The only thing that could have made the thing a bit sweeter would have been if the Cubs didn’t lose this one in a heart-breaker at the bottom of the 10th inning; it was an unearned run no less.
Earlier today I participated in a debate on constitutional interpretation at my law school. What seems like long ago now, my friend Josh Rohrscheib and I once debated jurisprudence in the Daily Illini. In that article, I adopted the Ira Carmen position of essentially converting the judge’s role into that of a functional social scientist. Our own Lawrence Solum has a great description of Originalism, with a good summary of where the academic literature currently stands on it. I am going to invite the other three participants in the debate to contribute their thoughts to this post (Ken Logsdon, Jake Briskman, and Omar Jafri). Logsdon presented the pro-Originalist position, while I presented the rebuttal to Living Constitutionalism, which I have pasted below. I cannot defend Originalism, because I do not genuinely adhere to it, but I can attack the moral aristocracy created by Living Constitutionalism, which is what I do in the polemic that I delivered:
The problem with Living Constitutionalism isn’t so much with its fair and moderate reading of the Constitution, it is more so with its admittedly rare tendency to produce results which do not comport with the evolving standards of the community. This debate largely comes down less to that of interpretation and more to that of how we view the role of the judiciary in our democratic structure of governance. Living Constitutionalism is useless at its best and vile at its worst. It’s useless because mechanisms exist to channel and convert the evolving sentiments of the public into law. It’s vile because of the license it grants to a few justices to undermine democratic legitimacy by determining the scope of rights and of federalism. In 1987, Supreme Court Justice Thurgood Marshall delivered a lecture, “The Constitution: A Living Document,” in which he argued that the Constitution must be interpreted in light of the moral, political, and cultural standards of the epoch, which is essentially what is argued for here today. The question though is who gets to be the barometer of the contemporary moral, political and cultural standards? Our opponents propose that barometer be the justices in some cases, rather than the people themselves as expressed through their legislators. It’s a curious concept that a justice would be able to better divine the moral and political attitudes of an electorate than the statesmen elected to gauge that very subject. Rights are something we all enjoy that are so fundamental to who we are as a society that we have decided to remove them from the table of debate and to not allow democratic consideration of them. So I can see three basic mechanisms by which a citizenry can express its preferences for expanding into new avenues of constitutional rights and the balance of federalism: 1) What Ken has laid out through the PI Clause, which would maintain democratic legitimacy, 2) The usual legislative process, which is equipped with great fact finding tools that the judiciary is not equipped with, and 3) the Amendment process. Liberals should fear living constitutionalism as well.
Just as liberals like Hugo Black and Yale’s Akhil Amar can be Originalists, so too can conservatives forge new rights under the mask of living constitutionalism. When justices begin pulling rights down from the fleecy golden Platonic clouds (paraphrasing Carmen), it makes it possible for rights to collide. These Platonic pipelines to the ethereal truth begin running into each other. Suppose that you have Justice Alito come along and say I think that moral philosophy and my gauge of the evolving standards of the community tell me that all potential fathers should have an equal say in the abortion decision. 50/50. Suddenly we have contradictory positions based upon the same jurisprudence, and so rather than trying to persuade us to adopt living constitutionalism, you should be doing the opposite, you should be urging us to stick with Originalism, you don’t want us having that kind of power, trust me…just as we don’t want you having that kind of power either. It’s all well and good when living constitutionalism is employed by someone on your side, but it becomes pernicious and poisonous when someone who does not agree with you begins to employ it, which of course, under your framework, they would be free to do. Just think of Scalia’s smirking glee.
Rehnquist’s Living Constitutionalism article in the Harvard Law Review quotes Lincoln eloquently summarizing the frustrations of the electorate after Dred Scott, “[T]he candid citizen must confess that if the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.” The harm that CJ Taney inflicted upon the court’s reputation and judicial legitimacy took about a generation to repair, according to Rehnquist. Judicial decisions which usurp the democratic function have the effect of generally lowering the credibility of all subsequent Court decisions, after all, credibility is the force of the judiciary.
Probably the best analogy to Roe is Lochner. The right to contract is analogous to the right to privacy. The Social Darwinism and economic libertarianism of the day was thought by the justices to be the prevailing and evolving standard of the community. In his famous dissent, Holmes said, “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics. Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. A constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States. I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.” Lochner was an awful decision and a prime example of living constitutionalism employed by people liberals would disdain: economic libertarians. Holmes was saying that the Constitution defines the rules the game, the peculiar political philosophies of abortion or economics or biology are questions that ought only be answered by the legislatures. The Constitution does not purport and cannot sufficiently answer those political questions even when divined and decoded by the most eminent Platonic philosophers. Many living constitutionalists wish to disown Roe by labeling it as living constitutionalism misapplied or misunderstood, many pro-choicers admit that it is a bad decision. But you cannot disown Roe, without disowning living constitutionalism, you have to accept the good with the bad. When you grant that broad sweep of authority you fling open the flood gates to poorly wrought decisions.
Looking forward to inevitable Constitutional issues…biology and politics. The state should be able to stop a woman from giving birth to a zebra in the future, or to stop super human children from being born, which will absolutely be possible in our lifetime, ehh I’m not sure about the zebra, but the Einstein+Michael Jordan child is reasonable. It is a small constitutional step from Roe to a future justice saying, “A woman has the right of privacy to do what she wants with her body regarding biological manipulations of a fetus.” Of course, such engineering would have enormous effects on society at large and would not just affect the woman and her privacy. When you expand the breath of rights guaranteed us you risk building a foundation for future rights that may disquiet and discomfort you.
This is not to say that Originalists cannot disagree. During “the court’s 2003-2004 term, Scalia and Thomas voted together in only 73 percent of cases, and six other pairs of justices agreed with each other more often than Thomas and Scalia did.” The key however is that is narrows the band of discretion allowed a justice, which if you view the band of discretion as straddling the line of the best outcome, then reducing the variance will tend to produce results closer to the best outcome a greater percentage of the time.
The Judiciary is a bastion of unwavering law. The legislature is a bastion of wavering law. If liberals were happy with the legislative outcomes of this country, they would have no use for living constitutionalism. Living Constitutionalism is an expression of liberal legislative frustration. Frustration that the rest of the country doesn’t envision the same vast panoply of rights. Living Constitutionalism states that sometimes the democratic process breaks down and is incapable of properly guiding the country, which is ultimately a theory that states “these people don’t know what’s best for them and so the educated elite need to dictate it to them because they will eventually, in 20 years perhaps, realize that it’s best for them.” The problem is, that they could be wrong about the proper moral and social avenue for America. When you grant a justice the authority but not the fact finding tools to act as a legislature, it seems to me that you unnecessarily encroach on the legislative territory. I beg for examples as to when this encroachment would be necessary given the Originalist framework we have proposed.