Geoffrey R. Stone's 'Fill in the Blank Constitution' NYT Op-Ed

[Robert Sheridan]

What do you make of the notion that since some people are able to 
benefit far out of proportion than the rest from the economic 
opportunity presented by their society's law, government, and markets, 
that they should be expected to pay more in taxes to contribute not only 
to that regime but, say to the welfare of the rest whose presence 
arguably contributed to their great benefit?  A sort of "to whom much is 
given, much is expected" argument?  Is it fair to tax Buffet, Gates, and 
the Bonus Babies we've been hearing about so much lately, more heavily 
than, say the Lehman Brothers clients who lost out when we let it sink 
during the recent crisis?  Or are graduated tax rates just so much 
(more) Socialism?  Does the Constitution speak to this?  Or only the Tea 
Party folks?

rs



Kemper, Mark wrote:
> That may have been what Professor Stone argued, but that doesn't mean he was correct. Democracy has the potential to be a great leveler, and so one might consider those with wealth to constitute a minority group that is worthy, in certain instances, of having its property rights protected by courts from the grasping hand of the state (which might be doing the bidding of the majority class that lacks wealth). I understand the footnote 4 idea that wealthy individuals should normally be able to protect themselves through the political process, but that may not be true in some (perhaps many) instances—especially if the government restricts how the wealthy can use their resources to influence the political process. So maybe the Court got it right in Citizens United.
>
> Best,
> Mark
> ________________________________________
> From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu] On Behalf Of Pohlman, Harold [pohlman at dickinson.edu]
> Sent: Wednesday, April 14, 2010 3:08 PM
> To: Malla Pollack; Robert Sheridan
> Cc: CONLAWPROFS professors
> Subject: Re: Geoffrey R. Stone's 'Fill in the Blank Constitution' NYT Op-Ed
>
> Actually I don’t think Prof. Stone is putting the conservatives and the liberals on the same level.  In his view, the liberals have a better understanding of the role of the federal judiciary because it coincides more closely with what the founders intended, well, at least with what Madison intended.  He writes,  “Although the framers thought democracy to be the best system of government, they recognized that it was imperfect. One flaw that troubled them was the risk that prejudice or intolerance on the part of the majority might threaten the liberties of a minority. As James Madison observed, in a democratic society “the real power lies in the majority of the community, and the invasion of private rights is chiefly to be apprehended ... from acts in which the government is the mere instrument of the major number of the constituents.” It was therefore essential, Madison concluded, for judges, whose life tenure insulates them from the demands of the majority, to serve as the guardians of our liberties and as “an impenetrable bulwark” against every encroachment upon our most cherished freedoms.”
>
> Regarding conservative activists, Stone writes, “Conservative judges often stand this idea on its head. As the list of rulings above shows, they tend to exercise the power of judicial review to invalidate laws that disadvantage corporations, business interests, the wealthy and other powerful interests in society. They employ judicial review to protect the powerful rather than the powerless.”
>
> These quotes support the conclusion that Stone believes that liberal activism is superior to conservative activism because it understands the judicial role to be the protection of the rights of minorities from the “prejudice” or the “intolerance” of the majority or of the powerful interests of society.
>
> Interestingly, later in the piece, Stone writes: “Faithfully applying our Constitution’s 18th- and 19th-century text to 21st-century problems requires not only careful attention to the text, fidelity to the framers’ goals and respect for precedent, but also an awareness of the practical realities of the present. Only with such awareness can judges, in a constantly changing society, hope to keep faith with our highest law.”  How this quote fits together with the other two is not addressed.
>
> In reaction, I would suggest that one of the “practical realities” that judges must deal with is how the majority understands the scope and meaning of individual rights and that this is true independent of “the prejudices” or the “intolerance” of the majority.  Courts can strike down legislative aberrations brought on by temporary shifts in popular opinion, but they can’t ignore for long the pervasive and deep evolving beliefs of the American people.
>
> Harry Pohlman
> Dickinson College
>
>
> On 4/14/10 12:22 PM, "Malla Pollack" <mallapollack3 at gmail.com> wrote:
>
> I have not yet read Stone's piece. However, I would like to point out an excellent book supporting the position described in Robert Sheridan's email.:
> Joseph M. Lynch, Negotiating the Constitution: The Earliest Debates Over Original Intent (Cornell Univ. Press 1999)
>
> Malla Pollack
>
> On Wed, Apr 14, 2010 at 11:16 AM, Robert Sheridan <rs at robertsheridan.com> wrote:
> http://tinyurl.com/y73v5o8
>
> fyi
>
> Prof. Stone observes, if I may oversimplify, that the originalist position was to draft open-ended principles and leave it to us to fill in the blanks as time goes by.  The conservatives do it their way, the liberals do it theirs. Activist evolvers all. Forget balls and strikes.  Check it out.
>
> rs
>
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