Strengthening Constitutional Self-Government

No Left Turns

Constitutional Resistance to Judicial Supremacy

Now available online is Jim Stoner’s timely article on elected officials’ constitutional resistance to the unconstitutional claims of activist judges. But Stoner tends to take it for granted that we know what unconstitutional activism is when we see it. Is there any doubt that ROE falls into that category? Are GRUTTER and KELO really activism, given that they let decisions of state and local government stand?

Discussions - 49 Comments

Activist Judge = one who makes decision you wouldn’t have made.

I have long wished that the judge’s of the most egregious rulings would be arrested for attempting to usurp the power of the legislature. This would at least allow their legislatures a hook to impeach the judges.
Just because they allows Congress (or the state legislature) to met doesn’t mean they haven’t attempted a coup.
Some open and hostile Constitutional warfare would do wonders for getting judges back in-line.

Stoner’s nice piece is in a line of recent scholarship that includes Larry Kramer’s "popular constitutionalism" - which Stoner does not mention. The principled denial of "judicial supremacy" has adherents on both sides of the usual ideological divide, and both sides find Madison and Lincoln to be the key constitutional theorists. This writing, Stoner’s included, seems to point to the possibility of a de-litigation of at least some of the most important political questions, and maybe a healthier politics in this country.

Good point, Steve: The real goal is the de-litigation of important political questions and so a healthier--or more democratic and more responsible--politics. Opposition to judicial activism need not be the special project of social conservatives.

Let’s forget about whether judicial supremecy is constitutional for a moment. The thing I find interesting about its denial is that those who dislike it would negates America’s "mixed constitution." America has a "monarchy" (President), Democracy (Congress), and an Aristocracy (Supreme Court). It would seem that Polyibus, Aristotle, and Montesquei would approve. To the extent that conservatives distrust democracy, it would seem they should favor some judicial activism. Is my analysis crazy? Any thoughts?

Steve S, A thoughtful point. Clearly judicial review is meant to be the most aristocratic part of the separation of powers system--Hamilton describes our top judges in terms of a mixture of moral and intellectual virtue. Following your lead on abstracting from the mere const. issue, I must add that our conservative aversion to the Court is part of our conservative aversion to what passes for an intellectual elite in America today. The opinion of Hamilton, echoed by Tocqueville, that our judges and lawyers would be among those most resistant to vulgar permissiveness and fanatical moral liberationism--or most protective of the forms and formalities that constitute decent ordinary life--turned out to be wrong.

Aristocratic, perhaps. But don’t forget that for Hamilton the judiciary really is "the least dangerous branch", a department i might add that is part of a "wholly popular government"(Fed. 14). If the Constitution establishes a mixed regime, if it requires a non-republican institution to secure natural rights, then "the republican remedy" Madison speaks of earlier on in the Fed. is a sham. The question is, can the judiciary be republicanized? Or is it subject to the same ambivalence Mansfield speaks on re: executive power?

Yes, "wholly popular." The older theory of a mixed constitution got significantly tangled in the actual new design and the surrounding ratification debates, did it not? The Senate, for example, was supposed to be more aristocratic that it rather quickly turned out to be, and the fact that it represented equally the states gave the old idea of mix or balance a wholly new twist. Similarly, the presidency was drawn away from any notion of a patriot king by the appearance of parties. In short, the founders invented new institutions before they had an entirely satisfactory set of categories to describe them. (Brad Collins’ remark about Madison captures this, I think.)

On Peter Lawler’s last point: I believe you can reject "judicial supremacy" on both aristocatic and democratic grounds.

Tangled? If by "mixed constitution" you mean the accomodation of competing views about justice (Aristotle), and not simply the arrangement of different kinds or institutions of power (Publius), I would say the framers deliberately dismissed such a notion. I would reverse the order as you have it, Steve: the framers fit exisitng institutions -- with important improvements -- inherited from colonial experience and the histories of ancient republics into the principles of popular government. The latter was the new discovery or "invention".

By "mixed" I was referring to primarily competing British theories about the nature of the British constitution, some elements of which derived from classical sources. I’m not completely clear about where else we might disagree. I’d be inclined to say that principles and institutions were modified together; or, that the principles emerged most clearly in the debates following the Convention. But maybe that’s too easy-going. Also, there were important variations among the framers or founders, among whom I would include at least some of the Anti’s.

These are some great theoretical/founding points. But I still ask: How do we know judicial activism--and the claims for Judicial Supremacy it implies--when we see it?

Peter - Stoner seems to say that activism (deserving of "resistance") occurs when a decision is "off center" [I have been reading Hacker & Pierson] or "out of the mainstream" which is the other cliche - but by what margin, one wants to know). That is, when the other branches, and their constituencies, say so. If this is right, then your question becomes, how do we tell the difference between an ordinary political/ideological dispute from one worthy of being labeled constitutional. This would fit with everybody’s favorite example, Lincoln on Dred Scott.

Peter- P.S. This is not a very satisfactory answer, but I don’t see any other, once you cut the Court off from being the exclusive and authoritative source of constitutional interpretation. Larry Kramer has more examples, and reassuring words for his readers to the effect, no, this isn’t anarchy and I haven’t lost my mind.

This all goes against current public understanding of judicial review. Recall that Nixon’s lawyer, James St Clair, drew unsuccessfully upon this tradition in his argument in the final tapes case -- which in effect would have led to impeachment instead of resignation.

Steve, Good comments. But: DRED SCOTT was big-time activism because it declared the Missouri Compromise--a really important legislative compromise!--unconstitutional based on a clearly wrong and very extreme pro-slavery interpretation of the Constitution. I could say similar things about ROE, and I would add something about the Court declaring key New Deal legislation unconst, although the case there would be more ambiguous. But what about GRUTTER and KELO--where arguably the Court willfully misinterprted the Constitution but in order NOT to declare laws unconstitutional, or when the Court switched and became hyper-permissive on its interpretation of the Commerce Clause in WICKARD in order not to declare a law unconst. (the decision some libertarians hate most)? It’s hard to see, obviously, how elected officials could resist the judicial assertiveness that actually empowers them. (See MARBURY v. MADISON) If judicial activism is our real enemy, then we should limit our battles to excessive judicial assertiveness from both the left and the right, and not be so concerned about the Court letting economic legislation or affirmative action policy slide. Or maybe our enemy is something other or more than judicial activism?

Peter the Trouble-Maker... Any sensible answer (if I can develop one) will take some serious reflection, but now the OSU-Penn State game is about to come on the radio. Second things first.

Dred Scott is the clear, defining example, but we must go to other examples, including ones affirming legislation against constitutional challenge (where affirmation is "activist").

Peter, a suggestion: the paradigm of activist jurisprudence is/should be the Warren-Burger courts, especially in connection with privacy and criminal procedure. This was a (fairly) sustained effort at putting in place a distinctive liberal-progressive view of the individual, liberty, the connection between private and public, and federalism (with judicial supremacy over all). (To be sure, it was rooted in the 1937 ’constitutional revolution, ltd.’ detected and named by E. Corwin, especially as announced in Palko and Carolene Products. But it was the Brennan-led courts that systematically were activists - liberal-progressive activists.) It’s in the light of this long-term transformation, identifiable agenda that I would judge subsequent decisions. Since then the Court and constituitonal jurisprudence are terribly, perhaps hopelessly, skewed. Within the house of law and precedent that was then built, it would be difficult to find actual predecents that were available to do good judging. Rehnquist tried, of course, but as Dick Morgan has written, with very mixed results. So, I guess I’m saying (or blathering) that the cases of ’restraint’ you point to are arguably unprincipled and merely accidents of ... what (fits of restraint? vicissitudes of coalition building)?

So, while Dred Scott is a classic case of judicial activism, I don’t see it as the paradigmatic case.

Paul, more food for thought.

My emphasis was more on Lincoln’s position than on the case itself as pardigmatic.

As the great man says, Paul and Steve, Now you’re cooking with gas...The general line of judicial identity politics Paul describes is about negating state law and transforming ordinary life....And with the exception of some obvious connections between DRED SCOTT and ROE on what amounts to "substantive due process" the race cases can’t be fit into that progressive scheme...But they still have to be considered in figuring out what judicial activism is--without going over the whole record right now, it’s clear to me that the Court has never interpreted the Const. correctly on race. But some results have been activist but const. correct AS RESULTS (BROWN), others have shown judicial restraint and have been dead wrong (PLESSY), others have been activist or at least supported big-time lower-court acitivism, been wrong, and done great harm (SWANN), others have been restrained and arguably wrong (GRUTTER).

Comment 18 was by Peter Lawler. I don’t know what the heck happened. I guess I wish I was Paul.

Surely, judicial activism means that the court moves away from the central thesis of the Constitution, which is to preserve individual liberties? If the point of the Constitution is to limit government; therefore to preserve and protect our natural rights, our "Declared" rights to life, liberty and the pursuit of happiness (perhaps throw in a little Locke and say that latter pursuit includes the preservation and protection of personal property, too.)then judicial decisions that abrogate that central thesis are activist. They are certainly actively moving law away from the point and principle of our original text.

The court can not be the only branch of government to define and uphold the Constitution as all members of the other branches swear to do so. We are ALL always pledging to the republic that is defined by that document. We even have a written constitution so that whatever is "mainstream" or even democratically popular at the time can be measured against it, and either found acceptable, say compatible, or be found wanting and therefore incompatible. To make whatever is current and currently popular a "corrective" against the central principle of limited governance, is to actively subvert our first principles and pervert the law of the nation. The Legislative Branch ought not pass laws contrary to the sense and intent of the Constitution, nor should the president ever sign such proposed legislation. To pull, bend, stretch articles of the Constitution to make them say what we popularly wish them to say ought to be known to be wrong.

For example, race ought to be irrelevant in federal law because it is not mentioned in the C. (only the state of servitude is mentioned) DRED SCOTT was horrible in moral terms because of race and the denial of human equality, but wrong in Constitutional terms not just because of what it forced in territories, but because it made anyone with that three/fifths status a non-citizen, which the Constitution never said they were. Roe is silly and to say abortion is protected by the Constitution is absurd. To deny a person humanity and equal protection of the law because they have not breathed air yet is as wrong as to deny humanity because of melanin.

Simply, an activist judiciary is one that subverts the basic tenets of our republican, thereby limited, government by extending government control beyond that which was intended, as stated in our Constitution.

"Are GRUTTER and KELO really activism, given that they let decisions of state and local government stand?"

Yes, they are. GRUTTER violates every test of the 14th Amd.; privileges & immunities, deprivation of liberty and equal protection. KELO repealed the Takings Clause, and without the benefit of an Amendment process.

It is now a liberal meme to accuse conservative jurists of "activism" for striking down laws. But in any case before them, judges must either affirm or deny a law, whether local, state, federal or treaty. If merely striking down (or affirming) a law is "activism", then all judges are by definition "activists".

Nor is Federalism necessarily implicated in activism as your question implies. If a city council say, imposed a poll-tax, and the state courts failed to strike it down, The federal courts would be well within their rights--and duties--to strike down such a law. So what is "activism"? Justice Curtis in ’Dred’:

"Political reasons have not the requisite certainty to afford rules of juridical interpretation. They are different in different men. They are different in the same men at different times. And when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean. When such a method of interpretation of the Constitution obtains, in place of a republican Government, with limited and defined powers, we have a Government which is merely an exponent of the will of Congress; or what, in my opinion, would not be preferable, an exponent of the individual political opinions of the members of this court."

Activism is theft. It steals the power We loaned to the executive and legislative branches and arrogates it unto the courts. It is a lie, as the plain and ordinary meanings of words must be stood on their heads to achieve the desired result. It is not to harsh to call it a coup.

btw, could someone give some recent examples of ’conservative activism’? I suppose ’Dred’ & ’Plessy’ might qualify for their day, but today it is liberals who embrace ’Seperate but Equal’ and the ’One-Drop Rule’ of the Old Confederacy. ’Bush v. Gore’ doesn’t qualify in my opinion for several reasons. But I’d like to see this mysterious beast.

Peter, you’re right about the race jurisprudence. Query: do you agree with Harlan’s Plessy dissent? And the Miller/Fields dissents in Dred Scott?

Kate - I don’t think you have Dred Scott quite right. In denying citizenship to Scott, Taney was not referring to his status as a slave. Taney’s point was that slave OR free Scott could not be a US citizen (and thus be entitled to sue in federal court) because Africans or descendants of Africans could never be US citizens.

sp.: "It is not TOO harsh to call it a ’coup’.

ps: Letting a plainly anti-constitutional law--such as the free-speech provisions of McCain/Feingold--stand, is also a form of activism, even though the executive and legislative branches signed off on it.

Paula & Peter - Harlan’s Plessy dissent is attractive in some ways, or the concluding paragraph is. The trouble is, Harlan accepted the majority’s tripartite analysis of rights, with public schools falling into the "social" category. So the constitution is "color blind" with regard to "civil" rights like seating in trains, but Harlan is otherwise silent. This partly explains why in Brown the Court couldn’t so easily go back and pick up the thread of Harlan’s dissent in Plessy.

Am I right that we have zeroed in on race cases because they are a particular challenge to easy attacks on "judicial activism"?

Let us remember that as the Brown case unfolded, Justice Jackson was an opponent of judicial activism, along with Frankfurter. Both were in the end persuaded that segregation was not "self correcting" without Court intervention.

Steve Thomas, Yes, maybe I could have put it better. I think my point was that, whatver his color, Scott was protected as a citizen by that three-fifths status of servitude. Could that not have been used to protect his citizenship? I know it was not an argument at the time, and I am being anachronistic mentioning it now. Even if someone had mentioned it then, Taney, et al, had a more activist goal in mind which was to use their power on the court to do what they wished with the country on the issue of slavery.

I appreciate Noel’s comments, which gives the essence of what I would like say, much better than I did or can. However, I would also add that the Congress and President, in not resisting the "coup" are not doing their jobs. Bush signing "McCain/Feingold" and leaving it to the S. Court to sort it out is a fine example of that disservice to his oath and to the nation.

Comments 1-27 were actually all written by me. I don’t know what happened. I guess I wish I’m all of you.

I contain multitudes....

Comment 28 is yet another piece of evidence of the creeping pantheism of our time. And Steve is right to show the amibuity of agreeing with Harlan’s dissent and given us a beginning of an explanation for why the Court has never affirmed it. Harlan’s color blind principle with respect to protection of rights can also be viewed as unclear in its application to at least moderate affirmative active. It’s just not clear how he would rule on allegedly temporary efforts sincerely aimed at remedying the effects of past discrimination. And the Reconstruction Congress that passed the 14th A. surely would have had no objection to at least some of them. My own view is that virtually all affirmative action is bad or counterproductive public policy, but it’s not beyond a reasonable doubt that it’s all unconstitutional. We read in George Will’s column today of a likely successful initiative on the ballot in Michigan to make that state’s law color-blind. That popular activism, perhaps better than the Court’s, is way to eliminate all controversy about the issue. Comment 2 by Noel is very spirited and smart and it’s about damn time somebody defended those points. But it’s still not clear to me that when a Court doesn’t declare something unconst. it can be called activism.

Steve Thomas, good comment on Harlan/Plessy; I’ll certainly keep it in mind the next time I read or teach it. Thanks.

There is the awkwardness about the DC segregated schools which speak to original intent vis-a-vis education.

As for why the race cases, it’s primarily because Peter brought them up; I don’t have an agenda. They are, of course, very important and relevant to the issue of how we legally protect and promote human equality and freedom!

Paul - Leaving affirmative action aside (and affirmative action helped cause the rediscovery of Harlan in Plessy), Brown has always posed the big challenge to "original intent" as an intellectual strategy - in turn - to counter judicial activism. As you know, it was so at the time of the Brown deliberations (as your reference to DC school segregation suggests): that’s why the Court in continuing the cases asked for research on the 14th Amendment, and why research on the question continues. I recall that John Roberts, in his confirmation hearing, referred to some of the recent scholarship, by way of suggesting that "originally" the 14th Amendment really did support the Brown outcome (though the Brown Court did not say that). If one doesn’t agree with Roberts’ originalism here, then what? The times change argument doesn’t satisfy? How about Jackson: this is up to Congress! I think we’re left with Bickel’s answer: the constitrution permits, but does not require this outcome, especially by the Ely principle, that there was otherwise no political mechanism available to break through the racial status quo.

I wonder if the same Ely point could once again be made about safe-district gerrymandering.

"Original intent" at best ambiguously supports the BROWN result. Nothing supports the actual BROWN argument, which makes no const. sense. BROWN gots its legimitmacy, in part, from the growing sense that PLESSY should be reversed, but PLESSY wasn’t really reversed. So the only way really to justify BROWN as not an example of judicial activism is the conclusion that the Court resolved a const. distortion that couldn’t have been resolved--at least anytime soon--by the more political or popular branches. And that "political" perception of BROWN laid the foundation for further activism in the pursuit of solutions to social problems. Maybe that’s the way "race" can be integrated into the identity politics activism Paul describes.

Peter, I think we agree so far.

Brown and the aftermath sent thousands off to law school to make the world a better place, and their ambition was an important element in the "rights revolution."

What do you and Paul say is the connection between Brown and "identity" politics? Do you mean the further ambition that the law should do for women and gays, for example, what it did for African Americans? Yeah, that must be what you mean.

That, Steve, must be it--with the implication of let constitutional formalities be damned in the interest of expanding liberty.


Just as one can tell a lie by omission or commission, so too can "activism" be practiced.


Scot was never considered "3/5ths" of a citizen. Enslaved blacks were counted as 3/5ths of a person for apportionment purposes in the House of Representatives, effectively giving more clout to their owners. Slaves would therefore have been better off had they been counted as 0/5ths.

This awful compromise was reached to hold the fledgling country together. Had the Founders pressed the issue, we might well have been reconquered by England or even created a Confederacy with a four score and seven year head start. However, the Framers did contemplate eventual abolition when they wrote "The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight..."

In his brilliant dissent in ’Dred’--which should be known to every school-child--Justice Curtis eviscerated the activist Taney’s claim that ’the black man had no rights any white man was bound to respect’. Curtis proved that black citizens in at least some states had been full citizens from the very beginning. It really is a masterpiece of American jurisprudence, historically researched, flawless in its cites--and the man’s penumbra never emanated one inch.

To me ’Dred’ stands as a warning to activists; it lit the spark that plunged this nation into civil war.

My question still stands;
Miranda, Roper, Hamdan, Lawrence, Kelo, Roe, etc.--Recent liberal activism all. Recent conservative activism--???

Or. . .follow out the legal formalisms in the interest of expanding what equal means, historical context be damned. To try to draw a distinction between "civil rights" and the rights of other legal classes of people is to be misunderstood, I find.

But our original subject was, how to identify judicial activism and how to construct some sort of a principled response to it and to its shadow, judicial supremacy. And I think we agreed that sometimes judicial activism is justified: in the school desegregation cases and, many would argue, the first redistricting cases.

I agree that there’s been no egregious conservative activism since the 30s. I disagree that the 3/5th compromise made anyone 3/5ths of a citizen.

Well, I’m feeling mighty self-satisfied, as this is one the best conversations I’ve ever had with myselves here on NLT. Although I think when I was wishing I was "Steve Thomas" in comment 25, I wasn’t very clear about the limitations of Harlan’s dissent. I mean, all I said was that Harlan was "silent" about the application of the principles he found in the 14th/13th/Constitution to public schools. But didn’t Harlan insist upon equality before the law? How is any non-private school a merely social form of segregation? By what reasoning did he accept the majorities’ tripartide scheme? Was he sincere about that reasoning? Well, this is probably more confusion than I can clear up for myself, but maybe the Steve Thomas fit will come upon me again, and for that moment I’ll be enlightened.

And as for my gnawing over the problem of activism, there is this genuinely commonsensical definition of activism available: "Activism can be pretty neutrally defined as the wrongful use of the power we call judicial review (Not it’s wrongful non-use, though)." This is from a recent NRO Matthew Franck article, which I’ll link below.

Here’s the link.


No, we both agree: there were no "3/5ths citizens". There were slaves in some states with no rights and free blacks in certain states and jurisdictions with full or nearly full citizenship rights.

Anyway, thank you and Kate for the kind words.

I would like to comment on the Dred Scott case. Commenters have missed (ignored) one of the crucial issues in the case. I am not familiar with all of the case’s legal reasoning on the following legal ground, but I have read a bit about the case. The case deals with standing (which has been commented on) AND the takings clause.

It was probably impossible to outlaw slavery short of a constitutional amendment. This was because of the 5th amendment’s takings clause, the very clause conservatives were so angry about in Kelo. A slave was personal property. The federal government could not allow slavery or divest ownership of slaves unless it was for "public use" and the owner was paid "just compensation."

From time to time anti-slavery people spoke of paying owners for their slaves. This would have satisfied the "just compensation" component of the takings clause, but it would not satisfy the "public use" of it. Anti-Kelo people should consider what a rigid "public use" construction does. Unless the government were to employ slaves on building infrastructure or government buildings, it would not have been able to outlaw slavery. If one adopts a "public purpose" reading of the takings clause then this issues are no longer important.

It should be noted that the 5th amendment at this time only applied to the federal government, not the States. States were free to do whatever they wished concerning slavery. It would seem most likely that the federal government could not have constitutionally outlawed slavery in any area of land since this resulted in a taking without "public use." It would therefore be up to each State to do it upon formation. This would result in Douglas’ "popular soverignity" being constitutional, while Lincoln’s federal lawmaking would not be. I believe this is why when Lincoln speaks about Dred Scott he always speaks of the standing issue (blacks could not be citizens) and not the takings issue, where it would seem he had no constitutional way around the problem. Please do not cite the Missouri compromise, etc. as evidence it was constitutional; the government does things all the time that are not.

Oops, the "allow" in the second paragraph should read "outlaw"

Steve Sparks - Tell me if I have missed your point in the following.

I believe the best answer that Lincoln had was the one he gave so carefully at Cooper Union. The Missouri Compromise was in a line of decisions that revealed the "framers’" answer to Lincoln’s carefully posed question: "Does the proper division of local from federal authority, or anything in the Constitution, forbid our Federal Government to control as to slavery in our Federal Territories? No, said Lincoln.

That is, Lincoln believed the framers agreed with him, and not with you, on the constitutional question. And he carefully says "or anything in the constitution." He was a lawyer; he knew about takings. In this, his most scholarly speech, Lincoln called himself a conservative. The clear implication was that Douglas was not.

I haven’t made a count, but I’d bet that Lincoln spoke much more often about the takings part (that is, the Court wrongly overruled the Missouri Compromise) than about the standings part (The Court wrongly said slave or free, blacks cannot be U.S. citizens).

Others will know more, but I cannot recall seeing discussion at the time that made your point about "public use" in connection with compensated abolition. Perhaps this was because most people recognized that slaves were not ONLY property; or perhaps they thought abolition was an exercise of the police power and serving the public good was an adequate substitute for "public use."

Me, Myself, and I - Short answer, I don’t know for sure.

Longer answer: (1) equality was not, and is not, a simple idea. The discussion regarding equality in Plessy was not unusual. Indeed, one can find it foreshadowed in the Lincoln- Douglas debates when Lincoln responds to Douglas’ race-baiting. (2) From what I know about Harlan’s biography, he was nothing if not sincere. He and his family had been slave-holding southern Whigs.

Steve Thomas:

Thank you for your thoughtful response. It is clear you know about Lincoln, probably much more than me. I used to know a bit about his speeches and the period, but have forgot.

I skimmed over the Cooper Union address and do not think it supports your conclusion. Lincoln says that pro-slavery people argue that 5th amendment’s "due process" clause (NOT the takings clause) prohibits the government from outlawing slavery in the territories. Lincoln then states that Douglas alleges the 10th amendment’s reservation of rights to States and citizens prohibits the federal government from outlawing slavery. I honestly do not think Lincoln ever touched the takings issue. I think he knew it was not a winable argument. I also think the takings clause argument was around because abolisinists hated the Constitution so much.

Looking back at the Cooper Union speech, the argumentation seems flawed. Lincoln marshalls much data to hide the fact that his premise is flawed, in my opinion. His premise is that the founders knew about the Constitution, therefore actions they took regarding slavery were right.

This is clearly untrue. It does not take into account the passions of people, sloth, and behind the scenes deal making. Behind the scenes deal making (per Clay) had to happen because they knew any open conflict would weaken the country.

The premise the founders obeyed the Constitution is given the lie with the example of the Sedition Act passed by Congress in the 1790s. The Framers were in that Congress, and they passed that Act, yet everyone would surely agree it violated the 1st amendment. A newspaper man was prosecuted and thrown in jail because he said he wanted to see the wadding in a canon hit Adams on the fat butt, can anyone seriously think that does not violate the 1st amendment?

Once Lincoln’s premise fails (that the founders act constitutionally because they have "knowledge") then Cooper Union’s argument falters.

If you could show me any Lincoln speeches dealing with Takings I would really appreciate it. I will probably read Dred Scott over fall break.

Steve Sparks - You are right that I was too casual about the 5th Amendment. I will have to check to be more precise, and I will try to do that. You can too: I’d look first at Fehrenbacher.

On Cooper Union: L’s premise is not quite "the founders knew about the Constitution, therefore actions they took regarding slavery were right." This is too general, and Lincoln’s research was more specific. You then restate the premise as "the founders obeyed the Constitution" and then you mention the Sedition Act. You’d have to do what Lincoln did: count up how many of "the thirty-nine" signers supported that Act. I do not know the answer.

Here’s something else we might consider. Lincoln at Cooper Union relies on a precise idea of "framers" [signatories] as a source of authority for defining a specific power (by majority vote!). We often use "founders" in a less precise sense (and I’m part of that "we"). Certainly it includes all who signed the Declaration, all who stayed until the end of the Convention, those who played a big part in ratification, some like Adams and Jefferson who weren’t in Philadelphia, John Marshall. . . (Sometimes I try to argue that the list ought to go on to include Martin Van Buren!) So framing and founding aren’t the same thing. One could say that Lincoln enlists the framers in order to keep the founding on track.

One implication of the distinction may be that the founding contains legitimate partisan differences (personified by Hamilton v. Jefferson, for example, or expressed in the Jefferson-Adams correspondence), while (according to Lincoln) there are some constitutional questions that can be settled authoritatively by reference to the "framers."

I mention this because it may have implications for the big background question with which Peter Lawler started us off, long ago it seems.

P.S. Van Buren not because he was a Democrat, but because he was a founder and theorist of party, as we know from Hofstadter, Ceaser and Silbey (and long ago, Weber).

Noel, I know the original intent of the 3/5’s clause, but honestly, I am an innocent bystander, a mere citizen, and if Supreme Court justices can ignore original intent and make the Constitution mean what thatever they like, why can’t I? If I look at the language of the 3/5’s clause, I can see that is about the terms of citizenship: taxation and representation. To be 3/5’s of a citizen was to have a stake in citizenship, as 3/5’s is better than none. Scott had presumably been that portion of a citizen for the government’s purposes (taxation) and for his owner’s purposes (representation) then he must have most of a citizen’s rights and was definitely defined by the Constitution as a person.

Ok, I am having fun, and being no Constitutional expert, feel free to take liberties. Of course, no one saw it like that, but I suggest that they could have and it would have been closer to the intent of the Declaration and the Constitution that what Taney’s court decided. Hence, I do not see how my reading of the words of the C. is any worse than that of those who see the redistribution of income and property as being part of "provide for the general welfare" or a "right to privacy" (and where is that?) being a cover for the killing of the unborn, nor how KELO is rightly covered. All of those things, and much of the far above cases mentioned by you guys, seem to me, the innocent and ignorant citizen, to be adding to the power of government to control, suppress or contain my sovereignty. (I suppose Roe empowers me, to allow me to kill my child if I choose and I ask, what kind of power is that?)

Surely our larger problem is government "taking" in many ways. Even to state and local governments taking small freedoms, and the State in it’s many aspects nibbling piecemeal at the whole cloth of our liberties. Each and any little bit is not so much, nearly nothing, but in the aggregate what does this mean?

And incidentally, Steve Thomas, I liked this line, One could say that Lincoln enlists the framers in order to keep the founding on track. and will steal it, and the larger point, to use if I am ever allowed to teach history, again.

Kate - feel free to steal from the common property: the line was meant to capture what we all learned from Jaffa and, following him, from others like McPherson.

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