That’s from Joe Huffman’s Quote of the Day, attributed to author Jack Anderson, from his book Inside the NRA: Armed and Dangerous. As Joe commented, “what rational person doesn’t think it needs ‘restoring’?”
Antonin Scalia, perhaps my favorite sitting Supreme Court Justice has said:
It is literally true that the U.S. Supreme Court has entirely liberated itself from the text of the Constitution.
We are free at last, free at last. There is no respect in which we are chained or bound by the text of the Constitution. All it takes is five hands.
He’s also said that the federal and Supreme Courts are, with their decisions, “building a Constitution for a country I don’t recognize.”
There’s been a long debate over at The Volokh Conspiracy over the phrase “The Constitution in exile,” a concept referring to the the Constitution of the U.S. before FDR got his hands on the reins. One of the commenters at Volokh found this reference:
In 1935 the Supreme Court emphatically rejected the industrial code provisions of the NIRA in A.L.A. Schecter Poultry Corp. v. United States. The Court, led by Chief Justice Hughes, argued that “Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested.” In his concurring opinion, Justice Cardozo famously characterized the industrial code provisions as “delegation running riot.” But after Roosevelt’s 1937 attempt to subvert the judiciary’s independence by enlarging the Court, the Court never again struck down a New Deal statute on delegation grounds. Fear of Court-packing concentrated the mind wonderfully, and the judiciary chose not to stand in the path of the administrative state.
The nondelegation doctrine joined the doctrine of enumerated powers in jurisprudential limbo, as an integral part of what Judge Douglas Ginsburg has called “the Constitution-in-Exile.” Along with their “textual cousins,” the Necessary and Proper, Contracts, Takings, and Commerce clauses, these doctrines have been, according to Ginsburg, “banished for standing in opposition to unlimited government.”
Recently we’ve seen the publication of law professor Randy Barnett’s book, Restoring the Lost Constitution, based on the belief that the Constitution has been selectively shredded for a variety of reasons over its history, beginning long before FDR. The book begins with:
Growing up, I was like most Americans in my reverence for the Constitution. Not until college was the first seed of doubt planted in the form of an essay by a nineteenth-century abolitionist and radical named Lysander Spooner. In his best-known work, No Treason: The Constitution of No Authority (1870), Spooner argued that the Constitution of the United States was illegitimate because it was not and could never have been consented to by the people on whom it is imposed. Although as an undergraduate I found Spooner’s argument unanswerable (and I must admit so it remained until I was in my forties), the problem was largely theoretical. My mind may have doubted, but my faith remained.
Until I took Constitutional Law at Harvard Law School. The experience was completely disillusioning, but not because of the professor, Laurence Tribe, who was an engaging and open-minded teacher. No, what disillusioned me was reading the opinions of the U.S. Supreme Court. Throughout the semester, as we covered one constitutional clause after another, passages that sounded great to me were drained by the Court of their obviously power-constraining meanings. First it was the Necessary and Proper Clause in McCulloch v. Maryland (1819), then the Commerce Clause (a bit) in Gibbons v. Ogden (1824), then the Privileges or Immunities Clause of the Fourteenth Amendment in The Slaughterhouse Cases (1873), the the Commerce Clause (this time in earnest) in Wickard v. Filburn (1942), and the Ninth Amendment in United Public Workers v. Mitchell (1947).
Nor were these landmark decisions isolated cases. In countless other opinions, the Supreme Court justices affirmed they meant it when they said the Constitution did not mean what it apparently said.
The point is, a lot of “rational people” think the Constitution needs restoring. Or at least a lot of refurbishment.
So I found it very interesting today when I found this article at Law.com (thanks to Denise at The Ten Ring). It seems that lefty law professor Laurence Tribe has decided not to complete a second volume of his textbook American Constitutional Law. The story states:
Tribe’s treatise, first published in 1978, has been acclaimed as the leading — or at least the most provocative — modern synthesis of constitutional doctrine, assigned to countless law students and cited in more than 60 Supreme Court decisions. He revised it in 1988 and again in 1999 when the first volume of the third edition was published.
That most recent volume made headlines, surprisingly enough, because in it Tribe embraced a more individual rights view of the Second Amendment than he had before — a shift that the National Rifle Association and other gun rights advocates seized on as vindication of their longtime assertions.
Just so you know, the “individual rights view” Tribe “embraced” in the Third Edition took this form:
Perhaps the most accurate conclusion one can reach with any confidence is that the core meaning of the Second Amendment is a populist / republican / federalism one: Its central object is to arm ‘We the People’ so that ordinary citizens can participate in the collective defense of their community and their state. But it does so not through directly protecting a right on the part of states or other collectivities, assertable by them against the federal government, to arm the populace as they see fit. Rather the amendment achieves its central purpose by assuring that the federal government may not disarm individual citizens without some unusually strong justification consistent with the authority of the states to organize their own militias. That assurance in turn is provided through recognizing a right (admittedly of uncertain scope) on the part of individuals to possess and use firearms in the defense of themselves and their homes — not a right to hunt for game, quite clearly, and certainly not a right to employ firearms to commit aggressive acts against other persons — a right that directly limits action by Congress or by the Executive Branch and may well, in addition, be among the privileges or immunities of United States citizens protected by §1 of the Fourteenth Amendment against state or local government action.
Prior to the Third Edition, Tribe had almost nothing to say on the Second Amendment; pro, con, or neutral. You can imagine the shockwave that rippled through the gun control community when that was published.
The reason Tribe gives for not finishing Volume 2?
Tribe’s announcement came April 29 in a letter to Justice Stephen Breyer, who had asked him casually how he was coming on the second volume, which was scheduled to cover individual rights issues.
Tribe decided to write Breyer back. His “Dear Steve” letter and a 12-page elaboration will be published by Green Bag, Davies’ law review at George Mason.
Tribe, 63, said neither personal factors nor ennui were at issue in his decision not to proceed. “It’s not my health, which is fine,” he wrote. “Or that I’ve lost interest in the questions the unpublished chapters would have discussed or the drive to pursue them doggedly.”
Rather, Tribe said he had made his decision because, as he told Breyer, “conflict over basic constitutional premises is today at a fever pitch,” moving rapidly in unpredictable directions. “No treatise, in my sense of that term, can be true to this moment in our constitutional history — to its conflicts, innovations and complexities.”
Tribe implies that a mere catalog or hornbook reciting recent decisions might be achievable, even if rapidly outdated. But a treatise seeking to explain constitutional themes and pull together seemingly disparate doctrines can’t be done now, Tribe asserts. “I do not have, nor do I believe I have seen, a vision capacious and convincing enough to propound as an organizing principle for the next phase in the law of our Constitution.”
The Constitution of the United States is, as such things go, a remarkably short legal document. It’s a contract between a people and their government that’s supposed to spell out the powers of and restraints on the federal government, and that’s pretty much it. It runs only 30 pages long when published in hardback, whereas Prof. Tribe’s tome (Vol. 1) goes 1470 pages in explaining it. Tribe expounds on the difficulty of explaining simple individual rights issues:
(A)ttempting to proclaim a new synthesis would bespeak utter hubris were it not so manifestly quixotic.
(Only a lawyer…)
I found this interesting, too:
Tribe cited the current debate over the use of international law in Court decisionmaking, renewed discussion of the “Constitution in Exile” movement, and sharp divisions over Establishment Clause doctrine as examples of flux in constitutional law. He also took a swipe at the “tragic” handling of the Terri Schiavo case by President George W. Bush and others, and conveyed a general discontent with the combative conservatism that he sees dominating the legal landscape.
Tribe’s statement marks “an important moment” in legal scholarship, Yale’s (Professor Jack) Balkin says, because of Tribe’s status as the leading symbol of liberal constitutional interpretation. “When Larry Tribe says that a paradigm shift may be on the way, it is worth sitting up and taking notice.”
Georgetown University Law Center professor Mark Tushnet, former president of the Association of American Law Schools, also said Tribe’s decision is noteworthy — and understandable. “There is always fluctuation, a buzz about certain doctrines,” says Tushnet. “But here he’s saying, correctly I think, that the uncertainty is much greater. Constitutional law has been proceeding on a plateau or a mesa, but now we are moving toward the edge.”
The edge of what, though? This last quote is one that raised an eyebrow:
Vanderbilt University Law School Professor Suzanna Sherry says Tribe is “a little late in realizing there is no grand unifying theory.”
No? I thought the “grand unifying theory” was the rights of individuals? Didn’t the Declaration of Independence spell it out pretty clearly?
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. —That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.
Isn’t the subtitle of Professor Barnett’s book The Presumption of Liberty?
Yes, I think Laurence Tribe is on to something. We’ve perverted the intention of the Founders, folded, spindled, mutilated and shredded the meaning of the Constitution for over two hundred years, until now – as Scalia states – we are no longer bound to it in any recognizable way. The founding legal document of our nation is null and void. The “grand unifying theory” has been discarded. Constitutional law hasn’t been “proceeding on a plateu or mesa,” it’s been hurtling down a slippery slope, and Tribe may indeed be correct when he apparently predicts an upcoming precipice.
A while back I wrote The Road to Hell is Paved with Good Intentions, the first of a four-part series I called “The Courts Will Not Save Us.” Parts of this essay have been excerpted from it, but I recommend that you read that piece if you have not already as an illustration of just how far we’ve come since the Constitution was ratified. And I’ll repeat one more quotation from my favorite appeals court justice, Alex Kozinski, in conclusion:
The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed – where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.
I cannot help but wonder if Laurence Tribe has seen the possibility that our disconnect from the Constitution may lead, in the not too distant future, to a time when “the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees.”
And I wonder how well he sleeps at night?
UPDATE, 6/7: Et tu, Nino?
