The Legacy of Justice Stevens

On May 12th, Northwestern University and the Northwestern University Law Review held a symposium celebrating the legacy of Justice John Paul Stevens (JD '47).  A number of leading scholars and court watchers gathered to participate in the event, as did the Justice himself.  The participants covered many different aspects of the Justice's life and legacy throughout the day.

The Constitutional Politics of the Tea Party Movement

We would like to conclude our series on the constitutional politics of the Tea Party movement by offering a recording of the panel discussion that gave rise to the four essays published in the Northwestern University Law Review Colloquy. The panel convened for the Annual Meeting of the Association of American Law Schools held in San Francisco on January 6, 2011. In this discussion, Colloquy contributors Sanford Levinson, Randy Barnett, Jared Goldstein, and Ilya Somin, along with Nathaniel Persily, explore the emergence of the Tea Party movement and offer perspectives on its history, membership, rhetoric, and ambitions. 

You can listen to the recording below or here.

 

 

The Tea Party Movement and Popular Constitutionalism

Ilya Somin[*]

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Introduction

The rise of the Tea Party movement followed a period during which many academic students of constitutional law focused on “popular constitutionalism”: the involvement of public opinion and popular movements in influencing constitutional interpretation.[1]  Many of these scholars argue that popular constitutional movements have a beneficial impact on constitutional law,[2] and some even contend that popular constitutionalism should supplant judicial review entirely.[3]  At the very least, the last generation of constitutional scholarship has established that public opinion influences and significantly constrains judicial interpretation of the Constitution.[4]

Can Popular Constitutionalism Survive the Tea Party Movement?

Jared Goldstein[*]

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The sudden emergence and prominence of the Tea Party movement raises important questions about the role of the Constitution in popular politics.  More than any political movement in recent memory, the Tea Party movement is centrally focused on the meaning of the Constitution.[1]  Tea Party supporters believe that the nation is facing a crisis because it has abandoned the Constitution, and they seek to restore the government to what they believe are its foundational principles.[2]

The Tea Party, the Constitution, and the Repeal Amendment

Randy Barnett[*]

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On February 19, 2009, CNBC financial correspondent Rick Santelli stood on the bustling floor of the Chicago Mercantile Exchange and pronounced what will be historic words: “We’re thinking of having a Chicago Tea Party in July.  All you capitalists that want to show up at Lake Michigan, I’m going to start organizing it.”[1]  Rallies were held around the nation on April fifteenth of that year.  Over the summer, Tea Party members showed up en masse at Congressional town halls.  A September twelfth march on Washington drew thousands of people to the National Mall.  This, in a nutshell, was how the social movement called the Tea Party was born.

If We Have an Imperfect Constitution, Should We Settle for Remarkably Timid Reform? Reflections Generated by the General Phenomenon of “Tea Party Constitutionalism” and Randy Barnett’s Particular Proposal for a “Repeal Amendment”

Sanford Levinson[*]

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There is, of course, no single template for “Tea Party Constitutionalism,” given that it is a large, somewhat inchoate movement that inevitably contains different, often conflicting, strains.  As someone from Texas, I am tempted to focus on some of the more extreme ideas associated with various politicians wishing to take advantage of the anger projected by many Tea Partiers toward the national government.  Thus at least two candidates for the 2010 Republican nomination for the Texas governorship (including the ultimately successful incumbent, Rick Perry) endorsed or at least flirted with nineteenth century ideas of “nullification” and even secession as a potential response to what is perceived as an overreaching national government.[1] More striking, presumably, was the proclamation by the (unsuccessful) Republican candidate for the Senate from Nevada, Sharron Angle: “Our Founding Fathers, they put that Second Amendment in [the Constitution] for a good reason, and that was for the people to protect themselves against a tyrannical government . . . .  In fact, Thomas Jefferson said it’s good for a country to have a revolution every 20 years.  I hope that’s not where we’re going, but you know, if this Congress keeps going the way it is, people are really looking toward those Second Amendment remedies.”[2]

The Constitutional Politics of the Tea Party Movement

Richard Albert[*]

Editor's Note: this is the beginning of a series based on a panel that took place at the 2011 Annual Meeting of the Association of American Law Schools on the subject of The Constitutional Politics of the Tea Party Movement.

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The Tea Party movement and its constitutional vision for the United States is perhaps the hottest topic in American public law today.  The rising tide of popular support for the Tea Party movement has transformed what was once cast aside as a fleeting faction into a formidable force in American politics—one that could augur significant consequences for the contours of American constitutional law in the years ahead.

Lost in Space: Laurence Tribe's Invisible Constitution

Eric J. Segall[*]

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For over two hundred years, scholars, judges, and constitutional theorists have debated whether the American people possess fundamental rights and liberties beyond those derived from the explicit text of the United States Constitution.  As early as 1798, Justices Chase and Iredell differed over whether Supreme Court Justices should employ natural law principles to decide the cases before them.[1]  Almost one hundred years later, James Bradley Thayer argued for greater judicial deference to political institutions by suggesting that judges should invalidate decisions by the elected branches only when those decisions were clearly inconsistent with unambiguous constitutional text.[2]  In the 1960’s, Alexander Bickel wrote of the “counter-majoritarian difficulty,”[3] spawning hundreds of law review articles written by the legal academy’s most esteemed scholars trying to justify decisions such as Brown v. Board of Education, Baker v. Carr, and Roe v. Wade[4] against the charge that the rights protected in those cases could not be gleaned through constitutional text and history.[5]  And in 1975, Thomas Grey wrote his seminal article Do We Have an Unwritten Constitution?,[6] which helped spark a volume of responses on this question from eminent scholars on both the left and the right.[7]  Now, one of the most prominent constitutional lawyers of our generation and our chief legal doctrinalist, Laurence Tribe, has tried to contribute to this discourse with his book The Invisible Constitution.[8]  Given my inclination to agree with Professor Tribe’s politics, and in light of his substantial reputation as a teacher, scholar, and constitutional litigator, it would be wonderful to report that his new book adds to the considerable literature on this subject.  Unfortunately, The Invisible Constitution fails to advance the debate.

There Is Nothing Pragmatic About Originalism

By David S. Law[*] and David McGowan[**]

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[Editor's Note:  We are proud to present Parts III and IV of this Colloquy Essay.  Parts I and II were published here last week, and you can view the piece as a whole here.  Previous pieces in this series, by Professors John McGinnis, Michael Rappaport, and Ethan Leib, can be found here.]

III.  Tipping the Scales:  The Relative Costs and Benefits of Originalism and Pragmatism

In this Part, we identify four flaws in McGinnis and Rappaport’s cost-benefit analysis, all of which serve to disguise the actual costs of originalism and to inflate its benefits relative to other approaches.  First, supermajority approval of amendments is very costly, to the point that beneficial amendments may never be adopted.  Second, originalism is subject to significant error costs.  Third, a court may pick better policies than a supermajority.  Fourth, the costs of originalism accumulate during the inevitable delay that attends our supermajoritarian process of constitutional amendment.

There Is Nothing Pragmatic About Originalism

By David S. Law[*] and David McGowan[**]

[download pdf]

[Editor's Note:  We are proud to present this Colloquy Essay in two installments.  Parts I and II are published here, and Parts III and IV are published here.  Previous pieces in this series, by Professors John McGinnis, Michael Rappaport, and Ethan Leib, can be found here.]

John McGinnis and Michael Rappaport propose that originalist constitutional adjudication produces better consequences than competing approaches.  They say they have “sketch[ed] the main elements of a pragmatic defense of originalism.”[1]  We disagree.  Pragmatism is about how well things work in practice, not how they should work in theory.[2]  McGinnis and Rappaport’s argument turns pragmatism on its head:  it rests not on any evidence of originalism’s actual superiority to other approaches, but rather on theoretical claims about the supermajoritarian character of originalism and the merits of supermajoritarian policymaking.

Part I of this essay explains why originalist judging does not honor the results of what McGinnis and Rappaport would consider “appropriate” supermajoritarian decisionmaking.  Part II demonstrates that supermajority rules do not necessarily lead to the adoption of beneficial policies.  We show that the actual effect of such rules depends upon a host of additional factors that cannot be analyzed in the abstract.  In Part III, we review the ways in which McGinnis and Rappaport understate or ignore the costs of originalism, relative to those of other approaches.  Finally, in Part IV, we present evidence that non-originalist judicial decisionmaking has, in fact, done a good job of enhancing social welfare, as measured by popular approval of the Court’s decisions.