The Great Fall was in 1787

[Kurt Lash]

Not at all.  One can assume that majoritarian democratic acceptance includes both the particular precedent and an underlying theory supporting that precedent.  Under our constitution, however, mere majoritarian acceptance of a principle does not qualify for constitutional entrenchment.

As an original matter, one would reject the majoritarian assertions of power (and principle) if they are out of step with the original understanding of the constitution.  However, if courts erroneously allow the majority to exercise such power, and successive political majorities do so, then a point may be reached (and that is as strong as I will make the claim), where rule of law considerations counsel upholding the precedent, but not extending it to any other area that have not received the same historical acceptance and exercise by political majorities.  By definition, rule of law values would not apply (or would not apply as strongly) in such cases.

This theory would not apply, however, in cases where an erroneous judicial precedent removed an issue from majoritarian debate and acceptance.

This is what I meant by "pragmatic originalism":  one can accept the precedent without giving the underlying principle the same constitutional value as one would a matter that had received the double-supermajoritarian debate and acceptance envisioned by Article V.  This distinguishes this approach from most theories of living constitutionalism, I believe.




----- Original Message -----
From: Frank Cross <crossf at mail.utexas.edu>
Date: Thursday, August 18, 2011 11:16 am
Subject: Re: RE: The Great  Fall was in 1787
To: Kurt Lash <Kurt.Lash at lls.edu>, Sanford Levinson <SLevinson at law.utexas.edu>
Cc: "Finkelman,	Paul <paul.finkelman at albanylaw.edu>" <Paul.Finkelman at albanylaw.edu>, "ConLawProf (conlawprof at lists.ucla.edu)" <conlawprof at lists.ucla.edu>


> I don't think this theory makes sense.  It assumes that the democratic acceptance is limited to the very particular action, as opposed to an underlying principle.  Is there any basis for that assumption?

> And if erroneous decisions can become good through public acceptance, why stop such erroneous decisions in the first place?  Why not make them, see if they get public acceptance, and then decide depending on whether they do.  This doesn't seem like an argument against allowing erroneous decisions in the first place.


> At 11:06 AM 8/18/2011, Kurt Lash wrote:
> I think that Madison had it exactly right.  In cases where an interpretive error has left a matter in the hands of political majorities, the weight of long-standing democratic acceptance can counsel allowing the precedent to continue.

> But, because the precedent is based on error, this counsels not following it even in cases arguably analogous (internal improvements) which lack the same historical pedigree.

> This is not living constitutionalism.  It is pragmatic originalism.

> ----- Original Message -----
> From: Sanford Levinson <SLevinson at law.utexas.edu>
> Date: Thursday, August 18, 2011 10:53 am
> Subject: RE: The Great  Fall was in 1787
> To: forwarding for fcross <crossf at mail.utexas.edu>, Kurt Lash <Kurt.Lash at lls.edu>, "Finkelman,Paul <paul.finkelman at albanylaw.edu>" <Paul.Finkelman at albanylaw.edu>
> Cc: "ConLawProf (conlawprof at lists.ucla.edu)" <conlawprof at lists.ucla.edu>

> > I think that Madison�s argument is a form of �amendment outside Article V�:  That is, he refused to say that he was wrong in his original constitutional opposition to the �Bank, but he nonetheless conceded that that had become irrelevant because the Constitution had in effect been amended by acquiescence to the usurpation and he would recognize the legitimacy of the new understanding.  We know, thanks to his veto of the public roads bill on literally his last day in office, that he was capable of adhering to his constitutional principles, so one has to explain why his principles of �91 were no longer �operative� in 1816, when he signed the renewal (and, as Paul points out, his veto a year earlier of the new charter was based on policy and not constitutional grounds).  Dare one call this an example of �living constitutionalism� in action?

>  

> > sandy

>  

> > From: conlawprof-bounces at lists.ucla.edu [ mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Frank Cross
> > Sent: Thursday, August 18, 2011 10:43 AM
> > To: Kurt Lash; Finkelman, Paul <paul.finkelman at albanylaw.edu>
> > Cc: ConLawProf (conlawprof at lists.ucla.edu)
> > Subject: Re: The Great Fall was in 1787

>  


> > So Madison thought the bank was unconstitutional and destructive of liberty but deferred to majoritarian acceptance?  That seems the most salient matter of constitutional interpretation.

> > At 10:30 AM 8/18/2011, Kurt Lash wrote:

> > Content-type: multipart/alternative;
> >          boundary="Boundary_(ID_JnMLuw8nx7tWWsUdMhkm2A)"
> > Content-language: en

> > Since none of us have access to Madison's internal thoughts, all we have is what he publicly wrote about the matter.  In his letters, he insisted that he signed the bank bill in deference to the long-standing majoritarian acceptance of the bank, not because he had changed his mind about the arguments put forward to support the bank.  Madison criticized Marshall for implying otherwise in McCulloch.  See James Madison, Detached Memoranda, in James Madison: Writings at 745, 756; Letter from James Madison to Charles Ingersoll (June 25, 1831), in The Mind of the Founder: Sources of the Political Thought of James Madison 390-93 (Marvin Meyers ed., Brandeis University Press 1981) (1973).

> > As for the Sedition Act, the First Amendment issue is secondary.  Federalists had to explain how this fell within the powers of Congress in the first place.  Not surprisingly, supporters of the Sedition Act like John Marshall relied on the broad interpretation of federal power put forth by Hamilton in his defense of the Bank bill.  See, e.g., The Address of the Minority in the Virginia Legislature to the People of that State; Containing a Vindication of the Constitutionality of the Alien and Sedition Laws 7 (Augustine Davis ed., 1799) (Richmond, Va.).

> > Finally, Jefferson's 10th amendment arguments just strengthens my point.  Jefferson insisted that a proper limited construction of federal power would not allow the Sedition Act.  Madison agreed.  In his famous Report of 1800, Madison rejected the Hamiltonian view as essentially granting the government unlimited power, thus violating the Tenth Amendment's principle that Congress has only limited enumerated powers.  It was because there was no power to enact this law that Madison argued it violated both the 1st and Tenth Amendments.

> > The fact that the Bank and the Sedition Act were supported by the same theory of federal power, and Madison's consistent public rejection of the same, I think illuminates a good deal.  Seeing the relationship between the two disputes supports Madison's argument that the theory of power supporting the bank was ultimately destructive of the peoples' liberty.

> > Kurt T. Lash
> > Alumni Distinguished Professor of Law
> > Director, Program in Constitutional Theory, History and Law
> > University of Illinois College of Law

> > ----- Original Message -----
> > From: "Finkelman, Paul <paul.finkelman at albanylaw.edu>" <Paul.Finkelman at albanylaw.edu>
> > Date: Thursday, August 18, 2011 9:35 am
> > Subject: RE: The Great  Fall was in 1787
> > To: Kurt Lash <Kurt.Lash at lls.edu>, Steven Jamar <stevenjamar at gmail.com>
> > Cc: "ConLawProf (conlawprof at lists.ucla.edu)" <conlawprof at lists.ucla.edu>

> > > Madison surely  changed his mind on the value of a bank -- he decided we needed one so badly that it was in fact "necessary and proper."  And thus constitution.  Madison vetoed the bonus bill -- which he supported -- because he did not think it was constitutional, and asked instead for an amendment to allow it.  He vetoed the first bank bill he got on policy grounds, NOT constitutional grounds, and then signed the second.  This is clearly a change of mind.

> > > Many people thought the Sedition Act did not violate the first amendment because it was not a prior restraint, and the law allowed truth as a defense and the jury to decide the whole matter.  

> > > It is worth remembering that Jefferson opposed the Sedition Act mostly on 10th Amendment grounds, not 1st Amendment, and as President pushed for state prosecutions of his opponents.  And then, when he could not prosecute people where the federalists controlled the states, he supported federal common law prosecutions for sedition.  Fortunately, Chief Justice Marshall did not agree, in Hudson and Goodwin (1812?) [I am on the road and can't look up the exact date.]  My point here is that Prof. Lash's reference to Washington and the Sedition Act does not really illuminate very much, since apparently federalists and Jeffersonians supported federal prosecutions for speech.  The only important opponent of the Sedition Act who was consistent in opposing speech prosecutions without regard to the politics of the person was Alexander Hamilton,

>  
>  
> > > *************************************************
> > > Paul Finkelman, Ph.D.
> > > President William McKinley Distinguished Professor of Law
> > > Albany Law School
> > > 80 New Scotland Avenue
> > > Albany, NY 12208
>  


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> > Frank B. Cross
> > Herbert D. Kelleher Centennial Professor of Business Law
> > McCombs School of Business
> > University of Texas
> > CBA 5.202 (B6500)
> > Austin, TX 78712-0212
> > 512.471.5250 


> Kurt T. Lash
> Alumni Distinguished Professor of Law
> Co-Director, Program in Constitutional Theory, History and Law
> University of Illinois College of Law
Frank B. Cross
> Herbert D. Kelleher Centennial Professor of Business Law
> McCombs School of Business
> University of Texas
> CBA 5.202 (B6500)
> Austin, TX 78712-0212
> 512.471.5250



Kurt T. Lash
Alumni Distinguished Professor of Law
Co-Director, Program in Constitutional Theory, History and Law
University of Illinois College of Law


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