John Roberts's Refusal to Defend
Federal Statutes inMetroBroadcasting
James G. Wilson
james.wilson at law.csuohio.edu
Thu Sep 8 09:35:23 PDT 2005
It is far from clear that John Locke would endorse any conception
of "Lockean liberalism" justifying extensive judicial review. The
Second Treatise strongly defends majoritarianism; it was an intellectual
justification for the emerging English doctrine of Parliamentary
Sovereignty. Again and again, Locke said the government cannot take
your "property" (which he often defines broadly to include life,
liberty, property, and the enjoyment of "innocent delights") without
your consent. However, "consent" can be given either personally or
through one's duly elected representatives (who should be chosen in
well-apportioned districts). This approach is consistent with
Blackstone, who appluaded the common law's significant regulation of
private property. It is also reflected in Benjamin Franklin's
revolutionary ideology: The British Parliament was turning the
colonists into slaves by taxing them (depriving them of property)
without representation (i.,e., without their consent).
Michael Zimmer wrote:
> Even assuming Scott's view of the understanding in 1787, that is
> incomplete even from a true originalist viewpoint. What is to be
> construed today is the Constitution of today, with all of its
> amendments. For example, that the original understanding in 1787 was
> clear that the Senators were to be selected by the state legislatures
> cannot have any effect today because of the 17th Amendment. Would
> anyone argue otherwise?
>
> The Bill of Rights happened. The Civil War and the Civil War
> Amendments happened. We have 27 Amendments that all need to be taken
> into account in trying to interpret the Constitution, even from an
> originalist point of view. Any complete originalist approach to the
> Constitution today must focus on the document as it exists today and
> then try to understand the implications flowing from the originalist
> understanding in light of the document we have today. The slicing and
> dicing of the whole Constitution into the originial understanding of
> each part that is the product of this incomplete original
> understanding approch is unsupportable intellectually.
>
>
> Michael J. Zimmer
> Professor of Law
> Seton Hall Law School
> One Newark Center
> Newark, NJ 07102
> 973.642.8833
> 973.642.8194 fax
>
> -----conlawprof-bounces at lists.ucla.edu wrote: -----
>
> To: <marty.lederman at comcast.net>, <CONLAWPROF at lists.ucla.edu>,
> <s-gerber at onu.edu>
> From: "Samuel Bagenstos" <srbagenstos at wulaw.wustl.edu>
> Sent by: conlawprof-bounces at lists.ucla.edu
> Date: 09/08/2005 10:45AM
> Subject: Re: John Roberts's Refusal to Defend Federal Statutes
> inMetroBroadcasting
>
> This all makes good sense to me -- though I might not endorse the
> ultimate arguments -- but notice that once we go down this road we
> seem to lose the Scalia/Meese argument for originalism, which is
> that it disciplines and constrains judges by preventing them from
> reading their own preferences into the Constitution. To decide
> what is a correct originalist decision on Scott's theory, we have
> to make a judgment about what is the "best" interpretation of
> Lockean liberalism, no? And that sounds a lot like the kind of
> "fundamental values" approach to interpreting the Constitution
> that folks like Scalia and Meese have opposed.
>
> This is not to criticize Scott. I don't know if anyone really
> buys the Scalia/Meese constraint story. But it seems to me that
> lots of people would agree with an "originalism" that says we have
> to identify a set of values, at a relatively high level of
> generality, that the Constitution was originally intended to
> endorse, and then figure out the implications of those values for
> our cases. That, I thought, was the Warren/Brennan approach.
>
> ====================================
> Samuel R. Bagenstos
> Professor of Law
> Washington University School of Law
> One Brookings Drive
> St. Louis, MO 63130
> 314-935-9097
> Personal Web Page:
> http://law.wustl.edu/Academics/Faculty/Bagenstos/index.html
> Disability Law Blog: http://disabilitylaw.blogspot.com/
>
> >>> Scott Gerber <s-gerber at onu.edu> 9/8/2005 10:35 AM >>>
> I'll respond to both Sam Bagenstos and Frank Cross via this post.
> I'll
> reply briefly, both because I hope folks will read the full treatments
> mentioned in my prior post and because I'm in the middle of
> preparing for
> class. (FYI, I know Mark Tushnet at least read my Thomas book.
> He kindly
> cites it in several places. Consequently, Mark is immune from my
> criticism
> of legal elites!)
>
> It's easy to oppose affirmative action and support privacy, which
> I do, on
> liberal originalist grounds. With respect to affirmative action, the
> Declaration of Independence commits the regime to a Lockean liberal
> approach to government: the Constitution protects individual, not
> group
> rights. That's why Justice Thomas opposes affirmative action.
>
> Another central tenat of Lockean liberalism is that government
> should be
> limited (charged chiefly with protecting individual rights).
> Privacy is
> CENTRAL to this conception of government.
>
> With respect to abortion, the answer to that depends on when life
> begins.
> If life begins at conception, the Constitution can't protect abortion
> because the fundamental law of nature in Lockean liberalism is the
> preservation of life. If life doesn't begin at conception, a
> woman has a
> natural liberty right to choose abortion (up to the point when the
> fetus is
> a life).
>
> All of this is discussed in the previously-mentioned sources.
>
> Best,
> Scott
>
>
>
> At 09:52 AM 9/8/2005 -0500, Samuel Bagenstos wrote:
> >Prof. Gerber's comment, as usual, makes me very curious. I
> wonder if he
> wouldn't mind explaining, for the benefit of the list, whether, if
> one can
> be an originalist opponent of affirmative action, one could also be an
> originalist defender of Griswold and Roe. I'm actually very
> interested in
> what would be the distinction, from an originalist perspective,
> between the
> two settings.
> >
> >====================================
> >Samuel R. Bagenstos
> >Professor of Law
> >Washington University School of Law
> >One Brookings Drive
> >St. Louis, MO 63130
> >314-935-9097
> >Personal Web Page:
> http://law.wustl.edu/Academics/Faculty/Bagenstos/index.html
> >Disability Law Blog: http://disabilitylaw.blogspot.com/
> >
> >>>> Scott Gerber <s-gerber at onu.edu> 9/8/2005 9:43 AM >>>
> >I respectfully suggest that Marty Lederman is oversimplying the
> original
> >intent approach to constitutional interpretation. As I
> demonstrate in my
> >book FIRST PRINCIPLES: THE JURISPRUDENCE OF JUSTICE THOMAS (NYU
> Press,
> >1999; expanded ed. 2002), Justice Thomas employs originalism in his
> >opposition to affirmative action (albeit liberal originalism). I
> explain
> >the difference between conservative originalism and liberal
> originallism in
> >TO SECURE THESE RIGHTS: THE DECLARATION OF INDEPENDENCE AND
> CONSTITUTIONAL
> >INTERPRETATION (NYU Press, 1995). There is an article about my
> theory of
> >originalism in one of the recent issues of the Harvard Journal of
> Law and
> >Public Policy (it's not written by me, but rather about my theory).
> >
> >Legal elites have probably read none of the three above-cited
> sources.
> >
> >Scott Gerber
> >Law College
> >Ohio Northern University
> >
> >
> >
> >Marty Lederman writes [in part]:
> >
> >And, if it's the case that Roberts had such strong views about the
> >constitutionality of federal affirmative action, I think we can
> also assume
> >this: that his constitutional understandings and commitments are not
> >determined by plain (or "original") meaning, or by original
> intent -- not
> >that he has ever suggested otherwise.
> >
> >**********
> >Scott Gerber
> >Law College
> >Ohio Northern University
> >Ada, OH 45810
> >419-772-2219
> >http://www.law.onu.edu/faculty/gerber/
> >
> >_______________________________________________
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> >
> >
> >
> **********
> Scott Gerber
> Law College
> Ohio Northern University
> Ada, OH 45810
> 419-772-2219
> http://www.law.onu.edu/faculty/gerber/
>
> _______________________________________________
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>
>------------------------------------------------------------------------
>
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