Waking Up, Smelling the Constitutional Coffee

by Russell Arben Fox on May 17, 2011 · 14 comments <span>Print this article</span> Print this article

in Economics & Empire,Politics & Power

supreme court

[Cross-posted to In Medias Res]

Wichita, KS

Dahlia Lithwick and Ezra Klein are a couple of my favorite pundits in the whole blogosphere. Lithwick is snarky, and Klein is wonky, but they’re both smart, opinionated, insightful, and informed. They’re also both pretty standard members of the progressive, bourgeois liberal class, which means that, in their own different ways, they’re pretty committed to making things work the way their own senses of enlightened rationality tell them they should. Which is why they’ve just written two of the most forehead-slapping posts I’ve ever seen from them: it appears that it’s very frustrating for them to have to look at the forest rather than the trees.

The forest under consideration here is nothing less than the U.S. Constitution itself. Specifically, it’s Article 3 they’re looking at, the part of the Constitution which gave us the Supreme Court; that, and at Marbury v. Madison, the 1803 Supreme Court case that established the principle of judicial review, the principle which allowed the justices on the Court the power to overturn duly legislated acts of law by judging said acts to be unconstitutional…and which, over time, has made the Court what it is today: a dominant, ofttimes domineering, and decidedly undemocratic player in our continuous national debates over what powers the different levels of government should have, and what freedoms individual citizens enjoy, and how to balance the two. The issue is, of course, the Affordable Care Act, and the claim that one of its key features–the mandate that individuals obtain health insurance through their employers, buy it on the open market, or obtain it through subsidized exchanges–violates the limits placed upon the powers of the federal government. For Lithwick and Klein, as well as for most judicial scholars, it’s a no-brainer: of course it doesn’t! All the individual trees–Congress’s power to regulate commerce power, the necessary and proper clause, the taxing power, all of them–appear to line up so as to make the case obvious: the Affordable Care Act is a legitimate democratic decision, which makes use of legitimate government authority, to achieve a legitimate (not to mention moral) public end.

Ah, but then there’s that pesky forest–a forest which is filled with people who, rightly or wrongly, have apparently decided that this particular expansion of federal power (and it is an expansion, no doubt about that), especially coming at this particular political moment, is a bridge too far. The time has come to draw a line in the sand–and if five judges on the Supreme Court choose to so draw, even if the precedents clearly point otherwise, who is to dispute them? Under our present system, apparently nobody. That is what opponents of the ACA are counting on, and which makes Lithwick and Klein–and other good members of the liberal establish–experience some genuine existential angst.

Lithwick, in considering the kind of explicitly partisan arguments–that is, explicitly invoking a particular set of party-organized and party-articulated constitutional arguments–that are being brought forward in this dispute, arguments which have so far been rejected by majorities of three federal courts and embraced by majorities on two (with the results have tracked perfectly with whether the judges in question were Democratic or Republican appointees), shakes her head. She confesses herself to be a “lifelong believer in judicial review,” but that what she sees as the “absurdity” of the arguments being made, it makes her wonder if it isn’t time to stop “believing in the integrity and infallibility of the judicial branch” and take seriously the case against a political system that places such enormous power–and thus creates such hysterical stakes–on the decisions of nine unelected political appointees. Klein may not be struggling with quite as much a crisis of faith, but still admits that everyone has apparently “substantially underestimat[ed] the partisanship of the judiciary on a big, polarizing issue like this one,” and is fearful for our constitutional system itself, as “it’s bad for the judiciary…[to look] less and less insulated from politics.”

The Supreme Court, insulated from politics? How can anyone actually write lines like that with a straight face? Hasn’t there been more than enough research on this topic already? The U.S. Supreme Court, just like every other federal or state court, is a political institution. That’s not to argue that upholding the ideal of the law as a neutral adjudicator in the midst of a politically divided and pluralistic nation has no relevance to maintain a stable body politic; it surely does. But the fissures which have emerged over the Affordable Care Act are reflecting something much larger than the breakdown of the sort of consensus which folks like Lithwick and Klein, and many millions of others, have apparently long assumed to be natural; it’s the democratic tension of creating a polity premised upon self-government, and then extending and contorting and corrupting that polity to such a degree, over such a long period of time, that the more egregiously undemocratic elements of it can’t help but become focal points of crisis. Not a total, immediate crisis, to be sure; the cynics and doubters of democracy will observe that most people, most of the time, would just rather not have to think about what is involved in governing themselves, in caring for their own community, and paying the costs of such, and the fact that the obviously skewed nature of Supreme Court decisions over the years haven’t much affected the overall legitimacy of the Court in the eyes of most Americans might be taken as evidence of that fact. But the additional fact that, in the wake of the passage of the ACA, we have seen moves of the sort which the dominant figures in our political class would have considered utterly scandalous only a few years ago–with nearly a quarter of the states in the union talking seriously about reviving nullification, a constitutional idea of state sovereignty that had its last hey-day during the struggle over the desegregation of public schools–suggests that the forest may be on the move, and contented defenders of the individual trees within our national forest need to wake up to that fact.

My position is that, with every additional bit of timber which is thrown on the constitutional fire, I see more and more wisdom in writers as different as Bill Kauffmann and Peter Levine–two thinkers who, despite their likely huge disagreements, both recognize that the problem isn’t with the trees in the forest, but the size and shape of the forest itself. We all need to continually re-educate ourselves in what it means to take responsibility for our lives, our families, our neighborhoods, our public spaces–but we also need to find or build contexts where conceiving of that responsibility is even a possibility. It just may not be possible in a continent-wide nation, where authority is centralized and participation is made overwhelmingly dependent upon access to elite expertise, restricted venues of access, and most of all money. Perhaps there are “progressive” (though I would call them populist or communitarian) routes to empowerment, or perhaps secessionist solutions are the only ones still on the table. Or perhaps there is still some tinkering that can be down around the edges of our constitutional system, to make it slightly more governable. (Matt Yglesias is right that part of the reason why the Supreme Court has been able to make itself into such a dominant entity is because our legislative branch, particularly the Senate, is marvelously dysfunctional.) Those kind of meliorist solutions have an appeal to me, as an academic–and therefore, as much as I try to get myself and my students out into the real world right next door to us, and as much as I try to expose them and myself to radical alternatives, pretty much a member of the bourgeois liberal political class right alongside Lithwick and Klein as well. And so, for better or worse, I’ll probably keep supporting those solutions, and keep reading those authors; after all, they are good writers, and they do have good ideas, sometimes. But overall, I confess I have less and less confidence in the way we’ve “constituted” this particular American forest every day.

{ 14 comments… read them below or add one }

avatar JonF May 17, 2011 at 6:31 pm

Re: Ah, but then there’s that pesky forest–a forest which is filled with people who, rightly or wrongly, have apparently decided that this particular expansion of federal power (and it is an expansion, no doubt about that), especially coming at this particular political moment, is a bridge too far.

Then they ought pursue its repeal in the same place it was enacted: the legislature. That’s the conservative argument every time the Supeme Court strikes down some popularly enacted piece of legislation. And frankly, I think it’s a good arguement– if only conservatives would stick to it. And it’s not as if the task would be impossible: the GOP already controls the House, in 2013 there’s an excellent possibility they will also control the House. And if not in 2013 then quite likely in 2o17 they will regain the presidency. Really, what’s wrong with doing this the way the Constitution envisions, rather than running to the Court like a spoiled child running home to cry to Mama when his will has been thwarted?

avatar Wessexman May 17, 2011 at 7:45 pm

Is that the conservative argument though JonF? I’m currently reading the works of Fisher Ames, a very conservative yankee, and he seems to be quite glad of the power of the judiciary to overpower the legislature when needed. Conservatism, in the Burkean sense, is not democratic. It has an affinity for subsidiarity, for reasonable decentralism and particularism, it believes a balanced state has a democratic elements and rules in the interests of all the people, but it doesn’t necessarily blush at supporting non-democratic elements, quite the reverse.

Exactly, except of course through ideology, these individuals and ‘scholars’ can conclude the ACA is constitutional I can’t understand. I know any sort of reliance on original meaning is anathema to the left in the US, but surely the whole basis of the federal constitution is to limit the power of the federal government? The ACA appears to reverse any appearance of that.

The cure to me seems simple and yet it is of course very unfashionable; Strict and Original Construction. This is how you partially depoliticise the judiciary by removing a lot of interpretative room, thereby empowering the legislature while maintaining the judiciaries power as a check on the other branches of the government. Such an Construction certainly seems to rule out the ACA.

avatar Russell Arben Fox May 18, 2011 at 11:12 am


Exactly, except of course through ideology, these individuals and ‘scholars’ can conclude the ACA is constitutional I can’t understand.

Because it follows obvious legal precedents which go back over 70 years. Now, one could argue–and indeed, such an argument would fit in well with what I am claiming here–that those precedents are themselves solely expressions of “ideology”. If we do want to think about them that way, then we shouldn’t have any problem with elected majorities deciding to read the Constitution in line with their ideologies…which can then be replaced with other readings of the Constitution when parties with other ideologies are elected themselves to a majority. The issue is whether we’re comfortable with the idea of allowing some particular vision of government–whether or not such is “ideological”–to be imposed through undemocratic actions. For decades, various progressives had no problem whatsoever with judicial review, because they liked the precedents being laid down. Now those precedents may be overturned, and some will claim that doing so is a “restoration” to a proper understanding of the Constitution, while the aforementioned progressives will claim its all partisanship. Why don’t we just accept that the judicial branch, for all its importance in maintaining a stable polity, is a political (and hence, perhaps, “ideological”) entity, engaged in whatever readings of the constitutional tradition it feels are politically warranted, and ask ourselves whether we really think self-government is served by such an unelected aristocracy? Maybe it is; certainly the opponents of the Affordable Care Act, once it is (likely) declared unconstitutional, will think so. But they didn’t think so for decades of other precedents, and perhaps that ought to encourage us to rethink the whole thing.

avatar Albert May 18, 2011 at 1:39 pm

JonF, Roe v. Wade pretty much eviscerated inclinations of recent generations of conservatives to do things through the legislature rather than focusing on the courts. Can’t really blame them, unless you’re willing to undo the judicial activism that precipitated the focused resolve.

At any rate, I think it’s becoming clearer that as American society fractures socioeconomically, culturally, religiously, etc. it will be increasingly difficult for the civil religious mythology to unite the people politically. This would probably be better for healthcare; many European nations have universal healthcare at lower costs despite (some might say because of) their small population, like Denmark at ~5 million. So “economies of scale” don’t require a single system covering everybody in the U. S. Heck, California (pop. 37 million) by itself would be the ~4th largest country by GDP; surely they could have their own healthcare system and have enough “economies of scale” to make it work. Making a bunch of regional or state systems would allow for greater political acceptance of the system as well.

avatar Wessexman May 19, 2011 at 4:33 am

Russell, but surely the US federal constitution was founded upon the idea of limited government? Surely the individual mandate removes any limitation on the federal government?

When it comes to interpretation, I realise that a Strict and Original Construction does not solve or problems or close all interpretative leeway, but surely it goes a long towards those goals, surely it would greatly depoliticise the judiciary. All the other Constructions seem to turn the judiciary into the political body it is now and that you describe Russell, but not Originalism, or at least not to the same degree.

avatar Wessexman May 19, 2011 at 7:30 am

That should be a limited a government of enumerated powers. Even arch-federalists like Alexander Hamilton recognised that the federal government was granted the powers the constitution gave it and anything else was to be reserved. It is clear that the ACA pretty much implies that the federal government is limited in nothing it can make even the flimsiest case to regulate. The original role of the feds versus the states seems then to be basically reversed and anything, if anything, is not very explicitly granted to the states alone then the feds reserve the right to control over it.

There may well be much precedent for this, but then the question becomes what the values of precedent is versus Original intent and whether indeed there is much historical continuity between the (written) Constitution of 1787 and the early Republic and the one the US currently has.

avatar Barry A. McCain May 19, 2011 at 9:50 am

“The cure to me seems simple and yet it is of course very unfashionable; Strict and Original Construction.”

I agree with Wessexman, in principle, but I find two “flaws”: That the Founders, for all there wisdom, could not have foreseen every application of the Constitution, esp. given the putatative advances in life, culture, and technology in the last ~225 yrs; and, another seminal founding document, the Declaration of Independence, firmly decrees “when the government becomes destructive of these ends [life, liberty, etc.], it is the Right of the People to alter of abolish it”. Add those to the “Elastic Clause” and one could reasonably argue that, from the beginnng, Americans have accepted the fact that things will change.

I’m not sure how I feel about all that–and I very well could be wrong–but that’s how it appears to me. Generally speaking, I see all of this as a “natural” outgrowth of a country being founded, literally, by a bunch of men in a room who thought their ideas were better than everyone else’s. Therefore, it’s decidely unironic that Americans act both arrogantly and as if there are “entitled” to whatever brilliance they deem themselves worthy.

Full disclosure: I’m Irish by my heritage, American by my birth, and Texan by the grace of God.

avatar Russell Arben Fox May 19, 2011 at 10:05 am


It is clear that the ACA pretty much implies that the federal government is limited in nothing it can make even the flimsiest case to regulate.

Barry McCain’s comment provides a good response to this, I think: with over 225 years of technological, demographic, and moral change behind it, I think it is far from obvious what kind of case is “flimsy” and what kind of case isn’t. And don’t forget as well, as McCain also pointed out, that alongside the Constitution with its enumerated powers you have the Declaration of Independence, with its highly expansive and aspirational notion of rights and “self-evident” truths. You may think it is “self-evident” that the ACA’s justification for expanding federal powers is flimsy, but just what is the evidence for that assertion?

That’s the point of precedent in the common law system we have–to provide that other people have, at other times, found a claim to be legitimate. Appealing to “original intent” doesn’t get you out of this, I think; by the early 1800s, while most of those who helped write the Constitution were still alive, you had serious disagreements over what “commerce” meant, what “delegation” meant, etc. The “original intent” of the founders was being subject to political contestation from the very beginning. Which, I think, is appropriate for a democracy. My beef is that we dress up that contestation in robes, attempt to sacralize it with the dignity of law, and leave it beyond immediate and continuous negotiation and compromise; hence the enormous build-up of precedents on the one side of any dispute, just waiting nervously some judge to die and be replaced by another judge, who will choose to alignment herself with a build-up of precedents on the other side of the dispute. No, I really don’t think “original intent” would de-politicize the Court. Getting rid or, or at least greatly limiting judicial review, so that the Court had less that it could legitimately do in the first place, would.

avatar Wessexman May 19, 2011 at 8:36 pm

The argument against Strict and Original Construction is of course always made with the appeal to the fact things change. I’m not sure I buy this. Yes, there has been change, but do technology and demographic really have that much of effect on the basic structures of the US written Constitution? Do they change the basic principles involved? I don’t think so. A Strict and Original view can reasonably accommodate most of those change, it seems to me. Maybe it won’t do so in a way acceptable to liberals and others like them, but I don’t think it cannot deal with most of these changes, by minor adjustments. Even if it couldn’t stay exactly Strict and Original, it could still aim to be so as much as possible.

Surely the declaration of independence is not a constitutional document in the US?

The ACA’s reasoning is flimsy because the individual mandate basically removes all limits to the federal government, it reverses the original view of the federal government as one of only enumerated powers with all others being reserved to the states. Yes, there have been many who didn’t support this view in history, but if it is correct, why did the US draw up an encompassing, written constitution? What is the point in such a document if you don’t have some attempt at Strict and Original Construction? You might as well adopt the ‘bastardised’, popular view of the British constitution where it is believed(wrongly) the Crown-in-parliament can change the constitution at will. I cannot see how you go from the American system of a written constitution of enumerated powers, no matter how broad, and courts which review the constitutionality of the actions of the other branches, to the sort of vulgar view of the British constitution without massive, root-and-branch constitutional change in the US. Meanwhile a Strict and Original Construction, as far as is possible, is the only way, it seems to me, of both limiting the federal gov’t in its current constitutional set-up and as far as possible depoliticising the federal judiciary.

In its English foundations the Common Law is complex and not simply based on precedent, at least in the Middle Ages and more or less until the Civil War when its political and constitutional role largely died between the competing claims of sovereignty between the King and Parliament. In its broadest form it was simply supposed to be based on the fundamental laws and customs of the realm. Upon such a foundation it aimed to standardise the laws and customs of England. Not of course possessing a fully codified constitution this was done through judicial precedent, which clarified and elaborated on the foundational principles and documents of English Law and our Constitution, from the Law Codes of the Anglo-Saxon Kings to the Charter of Liberties, the Coronation Oath and Magna Carta 1215. But this precedent was not the Constitution itself, but only its elaboration and clarifications where this was necessary, it was always(for centuries.) subordinate to the fundamental Laws and Customs of the realm. In a sense even such documents as Magna Carta and the Charter of Liberties were meant to be only a clarification and elaboration upon already settled constitutional principles going back to before the conquest. One only has to study Langton’s and Henry I’s words and actions to see this. It was from both these sources, the fundamental Laws or Constitution and its elaboration in the Common Law, that parliament(originally a judicial body.) got its authority, as in a sense did the monarch, though he had primacy over such secondary bodies as parliament. Now obviously this, our ancient Constitution, is in abeyance. It is now flippantly declared that the Crown-in-parliament(and the Guardian folks would like it to be just parliament or indeed the House of Commons.) is sovereign and can override Magna Carta 1215 or even throw away British sovereignty. This isn’t our ancient constitution and neither is it the way the common law was originally to operate. Maybe it doesn’t matter that much to Yanks, but the important thing is to remember that the Common Law was once not simply about following precedent blindly, that precedent was supposed to be anchored in the general and historical principles of the English Constitution, Laws and Customs.

avatar Russell Arben Fox May 20, 2011 at 7:42 am


Yes, there has been change, but do technology and demographic really have that much of effect on the basic structures of the US written Constitution? Do they change the basic principles involved? I don’t think so. A Strict and Original view can reasonably accommodate most of those change, it seems to me.

At some point, I wonder if this is becoming a semantic discussion, hung up on how we understand certain words. For example, what exactly do you count as a “basic structure” or a “basic principle”? For example, the Constitution grants the federal government the power to “regulate commerce…among the several states.” Is that a principle? And moreover, what does it mean? What did it mean to businesspeople when it was written in the late 18th-century, when there were no telegraphs, telephones, or any kind of reliable interstate roadways? What does it mean today, in an age of extensive electronic and digital commerce? The exact same thing? How could that be, when the actual business being conducted is radically different from that which was in the minds of those who penned the words (unless we want to attribute to them the power of prophecy). The same sort of questions can be asked about such basic words as “rights”, once slavery came to an end, or once women began to enter the workforce and demanded the privilege of owning property in their own name. I really think the legitimate interpretive issues here are far less obvious than you’re implying.

That does not mean, of course, that interpreting words required that we end up with the sort of nation we have today. The many debates about the commerce clause, or about the Bill of Rights, could have gone in different directions and laid down different precedents; we could have ended up more like Switzerland than a world power (and that would have been better for our mostly long-lost republican ethos, but historically I’m not sure how that would have been possible, with the Constitution itself granting the federal government authority over the management of new territories, and the setting of terms for ratifying new states). But I think you’re supposing that “strict and original construction” gives some fairly obvious standard against which all policies and laws (like the ACA) can be measured against and found wanting, and I don’t think that supposition stands up to scrutiny.

Thanks much for the explanation of the roots of the common law in England; it’s good to hear it explained by someone with some real knowledge of the relevant history. But that history itself becomes a bit of a problem, doesn’t it, in the sense of being grounded upon something that is, as your own words describe it, “ancient”? You say that “it is now flippantly declared that the Crown-in-parliament…is sovereign”. Not being terribly well versed in recent British history, I’ll be happy to be corrected on this point, but isn’t that “flippant declaration” now at least 200 years old, if not older? Doesn’t the assertion that Parliament (meaning, in practice, the majority party in Parliament) holds sovereignty go back to Walpole? Doesn’t it, at some point, become merely quaint to insist that the common law rests essentially upon ancient laws associated with the monarchy, when it hasn’t been interpreted or acted upon in that manner since Blackstone?

avatar Wessexman May 20, 2011 at 7:20 pm

I’m just not sure that those technological changes really mean that much from the standpoint of the principles involved. Either the commerce is interstate, not matter how vast and technologically advanced it is, or it isn’t. I don’t think that whether it is done via high-speed broadband, telegraph wires or carrier-pigeon effects the basic principles involved.

I certainly think that Strict and Original Construction leaves room for interpretation, but at least it limits that interpretation. There is no fear that totally new rights, like the right to abortion stemming from the right to privacy or happiness that no US politician or judge or founder had ever dreamed of before, will be unearthed using this construction. That does remove quite a bit of the politicisation of the judiciary; no longer could liberal social ideology be a pillar of some judge’s constitutional construction. You could of course try to get rid of the power of judicial review from the judiciary, but that seems a far more root-and-branch change in a written constitution than Strict and Original Construction.

I’m a traditional conservative, I suppose that is considered quite quaint in itself, when it is not considered sinister, in contemporary Britain. I might as well go the whole way. The problem with the idea of the sovereignty of the Crown-in-Parliament, which does go back to the 18th century, apart from its lack of historical sanction, is that it doesn’t make sense. If one follows the historical rise of this sovereignty then one finds that parliament owes its existence only to the monarch. It then leads you to one of the three basic theories of the English Constitution; the absolute sovereignty, except for any restraint from Coronation Oath perhaps, of the monarch’s prerogative. This is the second, in historical and political sanction, of the three theories, but it doesn’t hold up in my book because it is clear that our constitution originally did not accept it. The only other theory that allows for the sovereignty of the Crown-in-Parliament is the worst theory, that which simply says the English Constitution changes willy-nilly whenever it is in anyway ‘adapted’. Hence Guardian types will tell you absurdly that Britain is now a ‘democracy’ in a real, constitutionally binding sense. This theory has no historical sanction, it doesn’t really act in any sense as a restraint or decent political framework and it doesn’t make sense in an historical constitution like England’s, where there are so many aspects of the constitution. Without any sort of attempt at historical continuity and an enlivening spirit for the constitution you are left with nothing to bind all these elements together. Stephen Langton and that great , Earl of Pembroke who drew up the Great Charter were very, very different men to Tony Blair. If you remove any sort of idea of a continuity then our constitution becomes simply incongruous, inconsistent and nonsensical. This is basically what has happened, the British constitution and politics in general are chaos.

The third and last theory of our constitution is the one I’ve already spoken of. This was not dead in the 18th century, particularly among the Tories, and Disraeli more or less championed it. Indeed even those who did not know or support it consciously often did unconsciously, any time they tried to talk of the historical continuity and consistency of the English political framework, as many Whigs as well as Tories did in the long 18th century, from Lord Somers(who drew up the Declaration of Rights.) onwards.

So, quaint though it may be, I have no embarrassment in championing this one of the three possible views of the British Constitution and our Common Law, it is the only one with proper historical continuity and consistency and the only one, unless we start over again, that has the ability to form a decent political framework for Britain. This must be doubly so in contemporary Britain, whose political framework is chaotic, which more and more aims to be ruled by a single legislative assembly, the new Rump parliament, and which has been infected by numerous anti-English, anti-Common Law, Continental and Jacobin principles, laws and authorities from the Human Rights Act to the European Commission. In this climate it is time to dig up Disraeli and Coke and Langton I think(l mean figuratively of course, but sometimes I’m tempted to make the snide comment that digging up these sort of figures in the literal sense would at least give us a preferable parliament to those we’ve had for decades.).

avatar Eric Scheunemann May 23, 2011 at 5:20 pm

Regarding this passage in the article by Mr. Fox:
…(Federal regulation of health care) “violates the limits placed upon the powers of the federal government. For Lithwick and Klein, as well as for most judicial scholars, it’s a no-brainer: of course it doesn’t! All the individual trees–Congress’s power to regulate commerce power, the necessary and proper clause, the taxing power, all of them–appear to line up so as to make the case obvious: the Affordable Care Act is a legitimate democratic decision, which makes use of legitimate government authority, to achieve a legitimate (not to mention moral) public end.”

First, in order for Congress to achieve a legitimate moral public end, Congressmen would have to demonstrate legitimate public morals themselves. So much for that argument.

Respectfully, the problem with “most judicial scholars” is that for them, federal power to regulate health care is a “no brainer”. As with any “expert” specialization, there is a tendency to follow the status quo, or else face rejection, so it isn’t given a “second thought” (which requires the brain).

Simply, there are no constitutional provisions for federal or state regulation of health care in the U.S. Constitution, period.

Powers not specified in the Constitution are reserved to the states, or to the people (Bill of Rights — demanded by the citizens before accepting what “the educated experts” wrote for us).

Therefore, federal regulation of health care is “unconstitutional”.

Congress may use their limited powers to create federal regulation of health care as Mr. Fox explains, HOWEVER this must pass the Jury, otherwise it is no law at all, “though having the form and name of law” (16th American Jurisprudence, Second Edition, Section 177).

Since you “try to expose (your students) and yourself to radical attitudes”, a Republic is where the “citizens have the absolute authority” by definition (since you appear to have confused this absolute power with those limited powers granted to the judiciary). The citizens therefore have the final say, “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed” (U.S. Constitution, Article III, Sect. 2, Clause 3). Trial by Jury is where the citizens exercise their absolute power over their limited servant government.

“I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its Constitution.” — Thomas Jefferson, Letter to Thomas Paine (1789)

Again, a common error of the “corporately educated” (again, no attack here, just an observation — as we are all “cells in the body of our Nation as citizens”, let us work cooperatively…) regarding “nullification”, Mr. Fox discusses State Nullification, but neglects to discuss Jury Nullification (see http://www.fija.org). Trial by Jury is where the common individual citizen has more power than the Congress, the Presidency and the Judiciary combined, because with their one vote of “not guilty” they personally nullify any law that the government has created for them. This is “government by the consent of the governed” that Abraham Lincoln refers to in the Gettysburg Address. Since the Jury vote requires a unanimous decision, all it takes is for only one juror to vote “not guilty” and they then exercise their absolute power to personally stop an unconstitutional law. Mr. Fox fails to mention that Fugitive Slave laws, upheld by the U.S. Supreme Court overturning State Nullification, were in fact finally overturned by the citizens through Jury Nullification on an individual case basis.

Alcohol Prohibition also ended by Citizen (Jury) Nullification of Federal Law. (However this is not taught in corporately regulated government schooling, and even less mentioned in “recognized” law schools — which serve the corporate status quo, not the citiznes.) As a result of Jury Nullification, the prosecution eventually ceases to attempt to enforce laws that are not supported by the local citizens. This is how “government by the consent of the governed” actually works — a key requirement for the effective citizen control of our Republic, a citizen government.

“The jury has an “…. unreviewable and unreversible power ….to acquit in disregard of the instructions on the law given by the trial judge….”. U.S. v. Dougherty (1972), Supreme Court of the United States.

“The Juror has not only the right, but the obligation, to find a verdict in his own best understanding, judgment, and conscience, even though it is directly opposed to the direction of the court.” — Sam Adams, 1777 (This should be printed as a reminder on every bottle of Sam Adams’ beer!)

Respectfully submitted,
Eric Scheunemann

avatar Siarlys Jenkins June 7, 2011 at 10:09 am

A government of limited powers includes constitutional limits on the exercise of power by the elected legislature. Some things the state, any component of the state, is simply not authorized to do. Some powers are reserved to the people, or to each individual to decide for themselves. If that is to be anything but a piece of paper, there needs to be some body authorized to declare an unconstitutional act of the legislature null and void. That argument appears in several numbers of The Federalist Papers. It was not original to John Marshall, it did not suddenly spring to mind when deciding Marbury v. Madison, and it wasn’t invented by “activist judges” in 1954.

The modern argument about an “activist judiciary” popped up loudly after Brown v. Board of Education, and has continued ever since, albeit with new and different issues. The fact was, the federal courts had by and large finessed the 13th, 14th and 15th amendments out of effective existence for seventy years or so. It came as a real shock to the post-Confederacy Southern Establishment, but the Supreme Court was simply saying, oh yeah, the Constitution really does mean what it says.

Of course, we all know that many constituencies and interest groups have taken the fuzziest possible version of what exactly that meant, and tried to generalize to “I have a constitutional right to whatever I want.” Probably the notion that “equal protection of the laws” requires states to license one human relationship in exactly the same manner as another (demonstrably quite distinct) human relationship is the ultimate example. In case that’s not clear, while I would have no objection to my state legislature providing gay couples with some sort of license, or even calling it marriage, it is not THE SAME THING as the heterosexual relationship currently called marriage, and there is no constitutional right to formal state recognition.

When it comes to health care, defenders of the new law have been clumsily remiss in responding to constitutional criticisms. I would put it this way: Congress is authorized by “We the People of the United States” to regulate interstate commerce. When those words were written, most commerce was intrastate. Some of the more salutary expansion in federal powers, e.g., the Fair Labor Standards Act, are constitutional now, whereas they may not have been in 1800, simply because most of our commerce, and employment IS interstate and international in character. The constitution didn’t change, the scope of interstate commerce changed. No infinitely flexible “living constitution” is required.

When medical care delivery was a matter of Doc Jones leaving his apple orchard, saddling his horse, and riding down the road because Sally brought word that Ma was about to deliver her baby, it was, constitutionally, none of the feds’ business. However, medical care delivery is almost entirely delivered by for-profit institutions, unquestionably engaged in interstate commerce. Ergo, the act is constitutional. That is a good thing, because we NEED protection from the monsters running this business. The bill was clumsy, and suffered from a lack of leadership in putting it together, but it was not unconstitutional.

Of course the individual requirement is troubling as a matter of individual liberty — although the idea was originally Orrin Hatch’s, crafting a Republican alternative to the Hillary Clinton plan of 1993. It was also adopted by Mitt Romney in Massachusetts. The sad fact is, we are a compassionate culture, so when someone shows up at the emergency room with a heart attack at age 53, we are NOT going to kick them out on the street like the fabled ant to the grasshopper, callously telling them “You thought you didn’t need insurance when you were 25 – you didn’t pay your fair share, so now you can just die.” Since we won’t do that, the next best thing is to require everyone to pay up. Social security runs on the same basis.

Fiscal conservatives need to face up to that: talk about death panels all you want, every bit of that health care is going to be paid for by SOMEONE. As for myself, I am currently uninsured. In 2014, I will be insured. I looked up what I will be expected to pay on the Kaiser Foundation web site. It will not be painless, but it will be affordable, and if my income rises, I will pay more. That’s fair enough. I do want the option to pick a high-deductible, low-premium plan, then put money into an HSA. That’s not for everyone.

avatar Pat March 7, 2013 at 8:02 pm

Dotted Amon the landscape of law, particularly landlord-tenant law, employment law, family law, and even Constitutional law are the remnants of what might be classified as the theme of people as property that, at one time or another, were allowed to become the community standard, derived as our law was from Anglophiles whose society was based upon those principles first through feudalism.

Though people as property is no longer the funamental relationship of one to another, abortion limits and limitations on voting rights harken back to such an age when people were property, when property ownership conferred privilege, and where employment and housing providers, I.e., the job creators, were deemed to have the need for greater rights than others due to capital risk, ignoring human rights for their own sake, not for utility.

constitutional law driven by these principles of capital risk, and people as property inevitably fall into negotiated rights, often decided by wealth, not human rights. Funamental rights require reviews of law to extract such remnants by which civil liberties are limited, curtailed, etc. if equality is to be the legal standard.

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