Prof. Johnson grades the Original Constitution a B-, Madison rolling over in his grave

Over at PrawfsBlawg, Professor Johnson, writes that the original Constitution drafted in Philadelphia is not that well written, and contains many scriveners errors and interlinations.

He points out one crucial error that I never noticed:

In Article I, Section 3, explaining Senate procedure upon the impeachment of the president, there is this doozy. The intended language is: “When the President of the United States is tried, the Chief Justice shall preside[.] The original uncorrected, verbless text is: “When the President of the United States the Chief Justice shall preside[.]”

How can you screw up and write something like that unless you are totally mentally wandering while doing it? This is the Constitution of the United States of America for crying out loud. You’d think you could focus. And if you can’t get it right the first time, then I say grab another sheet of parchment and start from the top of the page. Where is the craftsmanship?

Johnson references a total of four interlineations in the Constitution: “U.S. Const. art. I, § 2 (“the”); art. I, § 3 (“is tried,”); art. I, § 10 (“the” in two different places).” Also, Johnson blasts the drafter, Shallus for a shoddy job including “erasures, a misspelling, and wildly inconsistent capitalization”

As Johnson notes, “the federal district court for the District of Columbia, where the Constitution currently resides, has declared legal documents unenforceable on grounds of sloppiness.”

What’s a Textualist to do when the text of the Constitution is flawed? If you saw Scalia, the Textualist who holds the Constitution on his shoulders, if you saw that he stood, blood running down his chest, his knees buckling, his arms trembling but still trying to hold the text of the Constitution aloft with the last of his strength, and the greater his effort the heavier the Constitution bore down upon his shoulders – What would you tell him?

Shrug.

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Comparing the Rational Basis Test to the Political Question Doctrine

This is something I’ve been thinking about since I learned the IJ way.

As you all probably know, the rational basis test is the lowest tier of scrutiny Courts apply to judge the constitutionality of governmental action. If the court can think of any explanation why a governmental action has a rational basis, no matter how absurd, even if it is different from the government’s proffered justification, the court will uphold the governmental action. Except in very few cases, like Craigmiles, under the rational basis, the Court provides no meaningful scrutiny whatsoever.  In this post, I am not discussing the policy justifications of why the rational basis is applied. Those are thoughts for another time. Rather, I just want to focus on what the court is actually doing.

One way to look at it, is to compare treatment of Lee Optical style rational basis review to a nonjusticiable political questions. If you look at what the court is doing, they are not actually judging, but in fact are leaving the determination to other branch. The question is, why bother calling it a test? There is no test. They definitively punt to the legislative branches. And this punt is so huge, it would definitely hit the new scoreboard at Cowboys Stadium.

If the courts are not willing to scrutinize an action, maybe the courts shouldrather abstain altogether, like they do with the political question doctrine. But perhaps, the courts need to fashion some test, however meaningless, to maintain the appearance of judicial legitimacy.

I’m working on an article on this point. Possible titles, “Why the rational basis test is not a test at all, but an abstention doctrine. ” Or maybe, “Drop the charade. Rational basis test as a political question.”

I’ll post some more musings along the way.

Posted in Constitutional law, Rational Basis Test. Comments Off on Comparing the Rational Basis Test to the Political Question Doctrine

Law Rev Article: Hessick on the Presumption of Constitutionality

Interesting new article from Professor Hessick of Arizona State on the Presumption of Constitutionality, scheduled to be published in the Notre Dame Law Review. The abstract:

One of the judiciary’s self imposed limits on the power of judicial review is the presumption of constitutionality. Under that presumption, courts supply any conceivable facts necessary to satisfy judicially created constitutional tests. The Supreme Court has given three reasons for the presumption: to show due respect to legislative conclusions that their enactments are constitutional, to promote republican principles by preventing courts from interfering with legislative decisions, and to recognize the legislature’s institutional superiority over the courts at making factual determinations. This Article argues that the presumption does not sensibly implement these reasons. It further argues that these reasons equally, if not more strongly, support judicial deference to legislative interpretations of the Constitution, and consequently that courts should revisit their refusal to defer to such interpretations.

Legal Theory Blog: Hessick on the Presumption of Constitutionality.

I find it odd that the author cites Randy Barnett’s work only 3 times in footnotes. Professor Barnett’s Restoring the Lost Constitution, The Presumption of Liberty explains at great lengths why the Constitution calls for a reversal of the presumption of constitutionality, and demands, in certain cases, a presumption of liberty.

I’ll be attending a conference at Arizona State Law School in a few weeks. Perhaps Professor Hessick will be around. But I look forward to reading it.

H/T Legal Theory Blog

Posted in Articles, Constitutional law. Comments Off on Law Rev Article: Hessick on the Presumption of Constitutionality

The Debate over Privileges or Immunities and the 2nd Amendment Rages on Volokh Comments

Over at the Volokh Conspiracy comment threads, a debate is raging over the Privileges or Immunities Clause and the 2nd Amendment Incorporation Case, McDonald v. Chicago.

A sampling of the comments may help explain why this is such a hot and controversial area, and why conservatives, libertarians, and liberals are all up in arms over the outcome of this case.

PubliusFL says:

What I can tell you is why libs like Jerry Brown [Attorney General of California] are supporting P&I incorporation. They’re hoping they can use the same theory to enforce other rights, unrelated to gun ownership, against state governments.

In Response to Publius, Angus says:

This is it exactly. This cases seems to make strange bedfellows. You have conservatives praising incorporation and denouncing federalism, leftists denouncing incorporation and praising federalism, and then a third group who look at this and say “Wow, we’re not interested in the gun issue, but we could really use case’s outcome to get what *we* want.”

In Response to Angus, troll_dc2 says:

Yes, yes, yes. The issue is actually less crucial than it formerly would have been both because of the use of the Due Process Clause to do the incorporation and the enactment of all sorts of civil rights laws, but if the conservative pro-gun types have to use the Privileges and Immunities Clause to get the Second Amendment to apply to the states, they may well discover that the Privileges and Immunities Clause might make the states subject to other federal rights, not all of which they might approve. So while the pro-gun result will look like a victory, the precedent that is established could bite them in the long run.

In response to Publus, geokstr says:

Yet no one believes that the left, by incorporating the 2A, can then use this theory to get everything they want. As you said above, to “…enforce other rights…against state governments.”

With a one vote shift in the balance of SCOTUS, they can also then use an incorporated 2A “against state governments” once the new court finds the hidden emanation that says this is all about formal state militias, not individual rights to own guns.

Wow. After watching how the left operates for all these decades, and still not understanding how they operate. Reminds me of an old Abbott/Costello routine: “…inch by inch, step by step, slooowwwly I turned…”, and there stood the monster.

This interesting alliance and bedfellows this creates is fascinating. See mainly the Amicus brief for this case signed by Randy Barnett AND Jack Balkin.

For these reasons, I compare revisiting the Privileges or Immunities Clause to opening up Pandora’s Box. We really don’t know what will come out. But we have to be prepared.

Though, perhaps one of the best NSFW comments is:

don’t incorporate me bro says:

Sounds like a blockbuster. The question presented is a legal academic’s wet dream.

For once, no comment from your humble blogger.

Interesting Law Rev: Articles I & III on Enumeration

In my second post today involving Seinfeld, Professor Gil Seinfeld from Michigan Law has posted an interesting article on SSRN

Legal Theory Blog: Seinfeld on Articles I & III on Enumeration.

    Article I, § 8 and Article III, § 2 of the U.S. Constitution deploy parallel strategies for constraining the power of the federal government. They enumerate powers that the national legislature and judiciary, respectively, are permitted to exercise and thereby implicitly prohibit these two branches of government from exercising powers not enumerated. According to conventional thinking, this strategy has failed in connection with Article I and succeeded in connection with Article III. That is, it is widely acknowledged that Congress routinely exercises powers that are difficult to square with the Article I enumeration; but it is commonly thought that the subject matter jurisdiction of the federal courts is, in fact, limited to the nine categories of cases specified in Article III, § 2. If one examines the crucial cases governing the constitutional limits on federal court jurisdiction, however, it becomes apparent that the enumeration in Article III, § 2, like its cousin in Article I, does little work when it comes to reining in federal power. This is reflected most dramatically in the fact that the Supreme Court has never struck down a federal statute on the ground that it confers jurisdiction on the federal courts in cases lying outside the enumeration in Article III. Instead, over the years, Congress has enacted numerous jurisdictional statutes that push hard on the limits specified in Article III, § 2, and the Justices have consistently found ways — through a series of highly tendentious interpretive moves — to avoid deeming these provisions unconstitutional. This article explores the similarity of our practice under Articles I and III. It seeks to demonstrate, in particular, that despite the strict enumeration rhetoric that pervades the case law and scholarly commentary relating to federal court jurisdiction, the Supreme Court has shown little interest in keeping the federal courts within the subject matter limits of Article III, § 2.

I’ve always been fascinated by Article III, § 2, and the scope of Congress’s powers to limit the jurisdictions of the Court. This became a huge hullabaloo after Lujan, when Cass Sunstein slammed Nino in What’s Standing After Lujan? Of Citizen Suits, Injuries, and Article III. Whenever Congress attempts to limit the Court’s jurisdictions, as this author puts it, “Justices have consistently found ways — through a series of highly tendentious interpretive moves — to avoid deeming these provisions unconstitutional.” Convenient, eh?

Just a thought, but wouldn’t these statutes by definition be political questions? Or at least, on separation of powers grounds, shouldn’t the Court avoid these. The correct answer, of course, is no, because the Supreme Court is the final arbiter of these matters, and they saw what the law is. I look forward to perusing this article, nonetheless.

H/T Legal Theory Blog

Posted in Articles, Constitutional law. Comments Off on Interesting Law Rev: Articles I & III on Enumeration

Question Presented in 2nd Amendment Case Asks About Privileges or Immunities Clause!

The Question Presented in McDonald v. Chicago is:

“Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.”

This is HUGE!

Alan Gura for the Petitioner, as well as several of the leading Amici have all briefed about the Privileges or Immunities Clause. That the Justices framed the question to inquire about incorporation through the Due Process Clause or the Privileges or Immunities Clause is breathtaking (well to me at least).

Nascent followers of the blog will remember some of my more recent posts on P/I in the context of the 2nd Amendment and the future of the Constitution in 2020.

This question presented will make my work in progress, Opening Pandora’s Box. The Privileges or Immunities Clause and the Constitution in 2020, all the more relevant prior to this case being argued.

Update: I will be attending the Constitution in 2020 Conference in New Haven. If they don’t discuss P/I in light of the 2nd Amendment, I will be sure to ask. Stay tuned for my live blogs.

Update Again: I just saw the link from Instapundit! Thanks for the link!

Update Again (at 1:30 EST). I launched this blog less than 24 hours ago, and I have already received 1,200 hits from Instapundit. This is a real Instalanche! Please help spread the word about my fledgling blog; add me to your RSS Feed, follow me on Twitter, check me out on Facebook, and peruse my published articles on SSRN. Thanks!

Update Again (at 3:53 EST). Just hit 1600 hits! Please also see my new post discussing an ensuing debate over the Privileges or Immunities clause in the comment thread of the Volokh Conspiracy. This issue is just heating up. The oven at this blog has already been preheated. Thanks!

What does “constitutional” mean? To a formalist, Is and Ought are the same thing.

I won’t revisit the Volokh Conspiracy’s battle royale on whether Obamacare is Constitutional. To summarize, the debate hinged, in part over whether the phrase “constitutional” should be based on whatever the Supreme Court says it means, or what the original text of the Constitution conveys.

One way the bloggers attempted to reconcile this debate was by defining constitutionality based on what “is” constitutional and what “ought” to be constitutional. Orin Kerr fell into the former group, and Randy Barnett fell into the latter.

I tend to agree with Randy, but perhaps for different reasons.

Stare Decisis for Constitutional decisions is much weaker than for other areas of the law. Namely because changing the text of the Constitution was purposefully created as a difficult process by the Framers. Justice Thomas has said numerous times that he has no problem reversing Constitutional Law decisions, no matter how long they’ve been around, if they’re wrong.

This is a formalist view, from a formalist Justice. This might sound frigthening to some theorists, but to a formalist Is and Ought are the same thing. If the original meaning of the Constitution conveys a certain understanding of the law, that IS the Law, and if the Nine had previously said something else, they OUGHT to change their opinion.

Put differently, from a strictly formalist perspective, if the Constitution IS not being properly interpreted, it OUGHT to be changed to what IT means.

Assume for arguments sake the commerce clause had an obtainable meaning in 1789. Under this formalist reasoning, the meaning of the Commerce Clause is what it was in 1789. If the Nine think different, it OUGHT to be what it was in 1789. In this case, what it IS, and what it OUGHT to be are one in the same.

I realize I’m late to this discussion, but this theory, in my opinion helps to reconcile the debate.