Between 2009 and 2020, Josh published more than 10,000 blog posts. Here, you can access his blog archives.


Instant Review: Cosmic Constitutional Theory by Judge J. Harvie Wilkinson

February 17th, 2012

Here are my initial thoughts about Judge Wilkinson’s new book, Cosmic Constitutional Theory. I hope to turn this, preferably soon, into a book review.

Much like most judges who write books about their philosophies (Scalia, Breyer, Posner, etc.) there aren’t many surprises here. Anyone who has followed Judge Wilkinson’s jurisprudence over the last few years knows what he thinks. He disapproves of all constitutional theories. He dislikes originalism. He wrote a prominent articles after Heller lambasting Justice Scalia’s opinion which let the dead of hand of Madison take away the people’s right to self-representation. He dislikes living constitutionalism, for obvious reasons–not a fan of Roe. He dislikes Breyerian and Posnerian pragmatism, thinks its a ruse. His entire jurisprudence is grounded on judicial minimalism, in the Sunstein school, whereby he wishes to leave to the people the right to determine what they want to do.

So what is my theory? The answer is I have no theory. I offer only a set of worn and ordinary observations that have all been voiced many times before. There is nothing novel in the idea that judges should pay attention to the text, structure, and history of the Constitution and not go creating rights out of whole cloth. Or that judges should appreciate “otherness”—the other branches of government, the other sovereign that is state government, the other institutions, professions, and trades that comprise the private sector. Or that liberty is best safeguarded when the allocation of authority to those others is respected by the courts. There is nothing new in the thought that life tenure provides the occasion not for expanding power but for appreciating its limitations. There is nothing remarkable in believing the highest virtues of judging—and of life—are a measure of self-denial and restraint.

I have found many critiques of originalism, living constitutionalism, and pragmatism, but the challenges to minimalism are, well, minimal. No longer. My turn.

Here’s where Wilkinson’s theory breaks down:

It is true, of course, that Lochner and its progeny gave interventions into economic regulation a bad name. But that setback to judicial expansionism was limited and temporary. A new form of intervention arose, this one focused on civil rights and liberties. Major activist decisions of the Warren Court—Brown v. Board of Education,19 Gideon v. Wainwright,20 Reynolds v. Sims,21 and Miranda v. Arizona22—have rightly stood the test of time, and that success doubtless strengthens the belief of today’s interventionists that tomorrow may smile on their bolder efforts too. They are wrong. Decisions like Brown, Gideon, and Miranda represent success stories because they vindicated foundational principles essential to the functioning of our nation. But I doubt there are now Browns and Gideons waiting to be born.

Beyond Gerard Magliocca’s astute comment comparing Wilkinson to “the United States Patent Commissioner in the late nineteenth century that everything that could possibly be invented had already been invented,” (this is similar to Justice Scalia’s “water-under-the-bridge” and “get-over-it” jurisprudence) what is unanswered is what constitutes “vindicat[ing] foundational principles essential to the functioning of our nation.”

What are these foundational principles? Well presumably, principles that are foundational derive from–what for it–the foundation of our nation. And the foundation of our nation is–wait for it–it depends who you ask!

Originalists would say the foundation of our nation is the Constitution as understood by the founders. Where better to get foundational principles than from the founding–the sine qua non of originalism. Living Constitutionalists would say the foundation of our nation is (insert ACS witty something such as ) We the People, Liberty, Freedom, whatever. Pragmatists will take a Jacksonian perspective, and say the foundation of our nation is the balanced functioning of our republic (Constitution not a suicide pact).

And what are these principles to Judge Wilkinson. Well, on my quick read (I’ll track it much more closely later), he seems to identify one foundational principle:

One foundational premise of the American experiment is that self-determination is a valuable good. . . .

So, somehow, Wilkinson needs to derive from principle from somewhere. I presume he gets this from the federalism provisions of the Constitution, and the direct-election provisions (there is not a self-determination clause).

And, how do Brown, Gideon, and Miranda fit in with these unidentified (cosmic?) founding principles? No effort to explain these away from Judge Wilkinson. In fact, the above-quoted section are the only references to Miranda and Gideon in the entire book. There are many citations to Brown, but none answer my question. And are there any other cases on this canonical list? Or is this trio it.

Back to Brown, to paraphrase Stephen Colbert’s interview with Justice Stevens–Is Brown v. Board a great opinion, or the greatest opinion?

None of this is to deny, however, that rank discrimination against historically disadvantaged groups was a blight upon this country that living constitutionalism did well to alleviate.

Whether Brown or Marbury v. Madison was the Court’s most important decision may be debatable, but what cannot be disputed is that modern America’s debt to the Brown Court is incalculable.

So if Brown, Gideon, and Miranda are such outliers that will never repeat, I suppose we can play with some hypotheticals. Let’s assume Judge Wilkinson sat on the Fourth Circuit in the early 20th century instead of the late 20th century. I think one of the cases that was consolidated in Brown v. Board of Education began in Wilkinson’s beloved home-Commonwealth of Virginia. Had he sat on that panel, what would have have done? If WIlkinson had a case in the early 1960s involving a criminal defendant who was interrogated without knowing his rights, what would he have done? Or perhaps a more plausible question, would he have joined the Fourth Circuit’s opinion in Dickerson, finding that Congress abrogated Miranda (if it is not a foundational principle, surely the elected branches could get rid of it!)? On what foundational premises would have considered Gideon? Plessy? Dred Scott (no 14th Amendment, yet)? And the list goes on and on.

And what about VAWA? Lest we forget that Judge WIlkinson concurred in Judge Luttig’s quite-originalist en banc opinion (relying on an originalist Lopez opinion) finding that VAWA was unconstitutional, in what ultimately became United States v. Morrison.

As this century draws to a close, it seems appropriate to examine the course of its jurisprudence 890*890 and the place of this case within it. The decision before us is an especially difficult one because it pits the obligation to preserve the values of our federal system against the imperative of judicial restraint.

I agree that section 13981 of the Violence Against Women Act exceeds the authority of Congress under both the Commerce Clause and Section 5 of the Fourteenth Amendment. Our ruling reaffirms the fundamental principle that our national government is one of enumerated—and therefore limited—powers. See, e.g., United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995).

Nonetheless, it is a grave judicial act to nullify a product of the democratic process. The hard question is whether our decision constitutes an indefensible example of contemporary judicial activism or a legitimate exercise in constitutional interpretation. Respect for the institutions of self-government requires us, in all but the rarest of cases, to defer to the actions of legislative bodies. In particular, “[t]he history of the judicial struggle to interpret the Commerce Clause … counsels great restraint before [we] determine[] that the Clause is insufficient to support an exercise of the national power.” Lopez, 514 U.S. at 568, 115 S.Ct. 1624 (Kennedy, J., concurring). I would add to that cautionary tale not only the judiciary’s parallel experience with economic due process but also the activist legacy of the Warren and early Burger Courts. By considering today’s decision in light of history’s often cold assessment of the product of those prior eras, we may ascertain whether we forsake to our peril the high ground of judicial restraint.

(spends several paragraph attacking three stages of activism he doesn’t like– Lochner, Social (including GIdeon, Brown, two of his favorites, but not Miranda), and Rehnquist federalism, which he likes

The common thread of contemporary activism is an interest in reviving the structural guarantees of dual sovereignty. For instance, Congress may not stretch the commerce power so far as to regulate noncommercial areas of traditional state concern— activity that “has nothing to do with `commerce’ or any sort of economic enterprise, however broadly one might define those terms.” Lopez, 514 U.S. at 561, 115 S.Ct. 1624. Nor may Congress “define its own powers by altering the Fourteenth Amendment’s meaning.” City of Boerne, 117 S.Ct. at 2168. The Court has preserved the states’ immunity in federal court, defending their right not to be sued without consent. See Seminole Tribe, 517 U.S. 44, 116 S.Ct. 1114, It has enforced the “etiquette of federalism,” Lopez, 514 U.S. at 583, 115 S.Ct. 1624 (Kennedy, J., concurring), barring Congress from “commandee[ring] the legislative processes of the States,”New York, 505 U.S. at 161, 112 S.Ct. 2408 (internal quotation marks omitted), and forbidding the national government from “impress[ing] the state executive into its service” by “command[ing] the States’ officers … to administer or enforce a federal regulatory program.”Printz, 117 S.Ct. at 2371, 2384.

Taken as a whole, the decisions preserve Congress as an institution of broad but enumerated powers, and the states as entities having residual sovereign rights.

As abbreviated as the preceding discussion is, it will suffice to pose the critical question. Will the current era of judicial scrutiny stand the tests of time and public acceptance any better than the prior eras have? The facial similarities between the present jurisprudence and the New Deal era underscore the dilemma. Yet upon closer scrutiny, the current wave of judicial decisions bears little relation to those which crested early in this century. If one remains attentive to the pitfalls of the past, the present jurisprudence holds the promise to be an enduring and constructive one, for its aims and means differ significantly from those of prior eras.

So is striking down a law based on Section V appropriate? Curiously, Wilkinson has this to say in his book:

Then too the supposedly nonactivist Rehnquist Court limited Congress’s powers under the commerce clause14 and Section 5 of the Fourteenth Amendment (VAWA),15 though such interventions hardly penetrated the core of legislative prerogative and had the beneficial effect of enhancing the democratic process in the several states.

Could not the same be said about the health care challenge? Nope.

Conservatives, for example, may understandably regard the 2010 health care reform bill as a leviathan crammed with unknown mischiefs, but to invalidate it on originalist grounds will require analysis that had best be better than good. The idea that Congress is constitutionally disabled under the commerce power from regulating activity affecting one-sixth of the national economy strikes me as a heavy judicial lift. Any decision that is less than bulletproof will be seen as a purely political undertaking, a revival of Lochner’s freedom of contract theory in originalist guise.

Was Morrison Lochner? Guess not.

That’s the gist.

A few other points, not really in any particular order.

First, I will bring up arguments I made against Wilkinson in Originalism for Dummies way back when I was a 3L in response to his UVA law review article.

On that article, also Lund and Kopel’s pwnage (which makes many of the same arguments I did) will be used. Plus Judge SIlberman’s attack on Wilkinson:

Next came the Virginia Law Review article published by Jay Wilkinson, which must have been rushed into print directly after the Supreme Court’s opinion. Judge Wilkinson did not offer his own analysis of the Second Amendment. He merely took Justice Stevens’s opinion, juxtaposed it against Justice Scalia’s, and concluded the issue was a close call. Therefore, in his view, the majority should have deferred to legislation. In an extraordinary analogy, he comparedthe majority opinion to Roe v. Wade. Of course, Roe is based on wholly fictitious constitutional language – it is a jurisprudential castle in the sand – whereas the Second Amendment is real constitutional wording.

Plus I have a number of blog posts looking at WIlkinson’s work.

This analysis of his opinion in Masciandaro, and this post about his judicial restraint.

Stay tuned.

Justice Peckham was *not* an originalist

January 13th, 2012

Gerard Magliocca (whom I met recently at AALS) links to Justice Peckham’s (you know, the guy that wrote Lochner) opinion in Maxwell v. Doe, holding that the Privileges or Immunities Clause does not incorporate the bill of rights.

Counsel for plaintiff in error has cited from the speech of one of the Senators of the United States, made in the Senate when the proposed Fourteenth Amendment was under consideration by that body, wherein he stated that among the privileges and immunities which the committee having the amendment in charge sought to protect against invasion or abridgment by the states were included those set forth in the first eight amendments to the Constitution; and counsel has argued that this court should therefore give that construction to the amendment which was contended for by the Senator in his speech.

What speeches were made by other Senators and by Representatives in the House upon this subject is not stated by counsel, nor does he state what construction was given to it, if any, by other members of Congress. It is clear that what is said in Congress upon such an occasion may or may not express the views of the majority of those who favor the adoption of the measure which may be before that body, and the question whether the proposed amendment itself expresses the meaning which those who spoke in its favor may have assumed that it did, is one to be determined by the language actually therein used, and not by the speeches made regarding it.

What individual Senators or Representatives may have urged in debate, in regard to the meaning to be given to a proposed constitutional amendment, or bill, or resolution, does not furnish a firm ground for its proper construction, nor is it important as explanatory of the grounds upon which the members voted in adopting it.”

Peckham was the anti-originalist. So I wonder where he got the 14th Amendment’s liberty of contract from?

Has originalism jumped the shark?

December 4th, 2011

After oral arguments in McDonald v. Chicago, I argued that Justice Scalia jumped the originalism shark. I even co-authored an Op-Ed questioning if Justice Scalia has abandoned originalism. Though, after reading a recent dialectic between Jack Balkin and Gerard Maglioca, and Steve Calabresi’s new article arguing that gender discrimination is banned by the 14th Amendment, I have to wonder whether originalism, as a jurisprudence, and not just its faint-hearted adherents, has jumped the shark.

Gerard sums it up nicely:

Steve Calabresi is the co-author of a forthcoming article claiming that gender discrimination violates the original understanding of the Fourteenth Amendment. Jack defends the Court’s abortion decisions as an originalist reading of the same amendment. Michael McConnell claims that racial segregation was contrary to the original understanding (and so on). No doubt someone will soon tell us that a decision upholding the individual mandate is originalist.

So has originalism jumped the shark if every claim is justified by originalism?

Jack expresses the concern succinctly, but dismisses it:

Perhaps Gerard is worried that everyone someday will claim to be an originalist and then originalism will mean nothing. I can see why *originalists* might be concerned at this state of affairs, but this should hardly trouble a non-originalist. Indeed, one would think that many non-originalists would be pleased.

Gerard cites Karlan who has written about genericide:

The answer draws from Pam Karlan’s observation that originalism is undergoing a form of genericide. In trademark law, a brand becomes generic if it comes to refer to the class of goods itself (e.g., aspirin used to be a mark for the product and now just is the product). That’s harmful primarily to the brand owner that loses its powerful trademark rights, but it could also be harmful to the public by robbing it of a clear differentiation between products. (Indeed, courts have been hesitant in recent years to declare an established mark generic.)

Personally, I think that there is considerable value in retaining a sharp distinction between constitutional theories (Practice is a different matter, since courts almost never use a consistent theory.) It just seems to me that once anything can be labelled as originalist, then that term is no longer useful and may just obscure the truth. 

Gerard, picking up on Jack’s note that originalism is not like toothpaste, writes that it is like toothpaste:

Indeed, originalism may be the most powerful brand ever developed by constitutional theory, which explains why it is being embraced by so many and why it is probably inevitable that it will lose its distinctiveness.



Larry Solum gets into the fray, as does Mike Ramsey.

Andrew Koppelman relatedly writes:

The recent exchange over originalism between Gerard Magliocca and Jack Balkin made me think again about what is distinctive about originalism. I’d like to suggest that originalism is a distinctive rhetorical strategy, one that somehow connects the proposed course of action, judicial or otherwise, with the revered framers of the Constitution. This is not just generic constitutional argument. It is a distinctive modality of constitutional interpretation. Its function is to connect our present course of action with the project of the framers. Originalist argument is any argument that aims to persuade you that this kind of continuity is possible. . . .

Originalism is fundamentally about a narrative of rhetorical self-identification with the achievements of a founding historical moment. That is the real basis of its power. An originalist argument will be powerful to the extent that can persuade its audience that it can keep faith with that identification. I do not intend to be pejorative when I say that originalist argument is a kind of constitutional rhetoric, connecting us with the past, constructing a narrative of national identity. Persuasive advocacy is an honorable undertaking. It can never be illegitimate to call your audience’s attention to something that they care about, or ought to care about, such as “your father would have been appalled by what you are proposing to do.”

This is about right but I don’t know that it’s limited to originalism. Since time immemorial lawyers have couched their arguments in what people a long time ago did. Magna carta, by itself did little, but english lawyers transformed it centuries later into this great charter where so many rights were formed. There is nothing new under the sun, right?

Reva Siegel and Robert post’s article on Heller is on similar lines.
I’m still thinking this through

FDR On Constitution Day

September 23rd, 2011

Gerard Magliocca links to FDR’s Constitution Day speech from 1937, shortly after the Court-packing and the switch in time. It is effectively a tour-de-force for judicial abdication, calling the Constitution “a layman’s document, not a lawyer’s contract.” Roosevelt even doubts the role of the Court to engage in judicial review–oddly enough citing that layman’s document, “the Constitution says nothing about any power of the Court to declare legislation unconstitutional.” One passage in particular, though, seems to undercut the entire speech:

Let me put the real situation in the simplest terms. The present government of the United States has never taken away and never will take away any liberty from any minority, unless it be a minority which so abuses its liberty as to do positive and definite harm to its neighbors constituting the majority. But the government of the United States refuses to forget that the Bill of Rights was put into the Constitution not only to protect minorities against intolerance of majorities, but to protect majorities against the enthronement of minorities.

Nothing would so surely destroy the substance of what the Bill of Rights protects than its perversion to prevent social progress. The surest protection of the individual and of minorities is that fundamental tolerance and feeling for fair play which the Bill of Rights assumes. But tolerance and fair play would disappear here as it has in some other lands if the great mass of people were denied confidence in their justice, their security and their self-respect.

A few things.

First. To say the present government of the United States has never taken away liberty from minorities is so wrong I can’t even begin. The same administration that a few years later rounded up Japanese Americans in internment camps? The same government that sanctioned brutal oppression and discrimination against racial minorities in the South, notwithstanding power under the 14th and 15th Amendment. The same government that took the United States off the gold standard, effecting the largest taking of the 20th century by devaluing all gold. Bullshit. Sorry.

Second. The Bill of Rights does not protect majorities against minorities. Which provision in the Bill of Rights, that layman’s contract, is FDR referring to? The Bill of Rights, adamantly demanded by the Anti-Federalists as a quasi-condition of ratification, is inherently counter-majoritarian!

Third. “Social progress” is not the sole purpose of society. Arguably, protection of people’s security is, though this does not come at any cost (cost, you see!).

Fourth. This sentence–“The surest protection of the individual and of minorities is that fundamental tolerance and feeling for fair play which the Bill of Rights assumes”–must ring hollow for minorities oppressed by the government. Segregated schools? Phsawh. Fair play is where it’s at!

Fifth. This sentence–“But tolerance and fair play would disappear here as it has in some other lands if the great mass of people were denied confidence in their justice, their security and their self-respect”–sounds like something Orval Faubus, the governor of Arkansas, may have said after President Eisenhower sent in federal troops to desegregate Little Rock High School.

In closing, FDR wrote:

 I ask that majorities and minorities subordinate intolerance and power alike to the common good of all.

Hollow words to an African American living in the Jim Crow South.

The same people who laud FDR’s words and praise with respect to telling the Court to butt out with social progress are apt to be the same people who praise the Warren Court for doing what they did to reinforce the representation and liberties of minorities. This revists the entire Lochner/Brown tension. The reasoning for both are not very different. Before you praise FDR, think how the same words, spoken twenty years later, after Brown v. Board would sound.

Original Crime, Federalism, and the Guarantee Clause

May 18th, 2011

Gerard Magliocca has another fascinating post discussing the Guarantee Clause in the context of Federalism.

The Guarantee Clause (Art. IV, s. 4) provides:

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

Garard notes that during the Pullman Strike, the Governor of Illinois argued that in the absence of an “application of the Legislature,” the Federal Government could not intervene in state matters. This last bit though, was quite interesting in light of my research into original crime:

In effect, the Guarantee Clause can be read as affirmatively privileging state authority over criminal law, which is stronger than the thought that Congress simply lacks enumerated power in that area. Lot of people complain about the growth of federal criminal law, and they make a Commerce Clause argument against that trend (think Lopez) or invoke the Tenth Amendment.  It turns out that the best textual support for state autonomy in garden-variety criminal matters, though, comes from the Guarantee Clause.

I’m not quite sure what “garden-variety criminal matters” would be implicated. The Guarantee Clause only seems to come into play in cases of “invasion.” In the absence of such disorder, how would this federalism provision limit the power of the feds and preserve state autonomy?

I’ll have to consider this further for my Original Crime article, if I ever actually get to it.