The Constitution, The Courts, and Conservatism

Recommended Reading:

To learn more about other important figures in constitutional law, we encourage you to visit ContemporaryThinkers.org, a website covering the ideas and influence of pioneering intellectuals of the twentieth and twenty-first centuries. Sponsored by the Hertog Foundation, ContemporaryThinkers.org includes sites devoted to Walter Berns, Martin Diamond, Herbert Storing, and many others.

Readings:

• Brutus 15
• Federalist 78 (Hamilton)
• Federalist 37 (Madison)
• Federalist 51 (Madison)
• Tocqueville, Democracy in America (excerpts)
• Gibbons v. Ogden (1824)

Discussion Questions:

1. What is the nature and character of judicial power, according to Brutus? To Publius? To Tocqueville?
2. Why does Publius believe that the judiciary is the “least dangerous branch?” What assumptions (e.g., about the branches of government, law as a profession, human nature, etc.) are reflected in this argument?
3. Is judicial independence a constitutional virtue or a constitutional vice?
4. In a constitutional government based on popular sovereignty, how much power should we commit to the countermajoritarian body of judges and lawyers?
5. To what extent do Brutus’s, Publius’s, and Tocqueville’s account of the judicial power presume certain qualities among the judges themselves?

Readings:

• Pierce v. Society of Sisters (1925)
• Lochner v. New York (1905)
• Buck v. Bell (1927)
• Griswold v. Connecticut (1965)
• Eisenstadt v. Baird (1972)
• Alexander Bickel, “Notes on the Constitution” (1975)
• William Rehnquist, “The Notion of a Living Constitution” (1976)

Discussion Questions:

1. What is judicial restraint? How is it opposed to judicial activism?
2. In deciding cases and controversies, how should judges go about exercising “merely judgment?” Is judicial restraint an answer to this problem?
3. What is the “counter-majoritarian difficulty” facing judges? Why might judicial review have a tendency to “weaken the democratic process” over time?
4. How much deference should judges give to Congress? To the will of the majority?

Readings:

• Edwin Meese, “Speech Before the ABA” (1985)
• Antonin Scalia, “Originalism: The Lesser Evil” (1989)
• Antonin Scalia dissenting, Planned Parenthood v. Casey (1992)
• Harvey Wilkinson, “Originalism: Activism Masquerading as Restraint” (2012)

Discussion Questions:

1. What is originalism, according to Meese and Scalia? How is original intent different from original meaning?
2. What were modern originalism’s early proponents trying to accomplish? Does originalism accomplish it?
3. How can the Constitution’s objective original meaning be ascertained and applied by judges? What should judges do when that meaning is not readily apparent—and, more important, how can they know when they’ve arrived upon such an ambiguous case?
4. Why does Scalia call originalism “the lesser evil”?
5. Is Wilkinson correct in arguing that originalism does not actually promote judicial restraint?

Readings:

• Randy Barnett, “Scalia’s Infidelity” (2006)
• Debate: “Scalia v. Epstein” (1985)
• Clarence Thomas, “Toward a ‘Plain Reading’ of the Constitution: The Declaration of Independence in Constitutional Interpretation” (1987)
• Clarence Thomas, “The Higher Law Background of the Privileges or Immunities Clause of the Fourteenth Amendment” (1989)
• Hadley Arkes, “A Natural Law Manifesto” (2011)

Discussion Questions:

1. What is judicial engagement? How is it different from judicial restraint or judicial activism?
2. What is judicial engagement’s relationship to originalism?
3. How strongly bound should judges be to the doctrine of stare decisis?
4. Should judges read the Constitution in light of natural rights theory or the natural law principles of the Declaration of Independence? Does such an approach constrain or empower judges?
5. How should conservative jurists balance their devotion to a law’s original public meaning with other conservative principles in judicial decision-making (e.g., precedent, federalism, popular rule, etc.)?
6. What do Barnett’s, Thomas’s, and Arkes’s respective approaches share in common? In what ways do they disagree with one another?

Readings:

• Abraham Lincoln, First Inaugural Address (1861)
• Thomas W. Merrill, “Bork v. Burke” (1995)
• Employment Division v. Smith (1990)
• Yuval Levin, “Taking the Long Way” (2014)
• Mary Ann Glendon, “The Land of Rights” (1991)
• Alexander Bickel, “Watergate and the Legal Order” (1974)

Discussion Questions:

1. What is conventionalism? Why should conservatives prefer conventionalism, according to Merrill?
2. What is the “conservative idea of liberty,” according to Levin?
3. How much deference should judges give to states and local communities? To practical experience and tradition?
4. To what extent does the legitimacy of a democratic government rest on the consent of the people, and to what extent does it rest on the correctness of its principles?