Antonin Scalia, A Most Memorable Friend

Richard Epstein*

Richard Epstein

Richard Epstein

The sudden death of Justice Antonin Scalia has elicited many tributes about his achievements. It has also sparked extensive reviews of his judicial body of work—and raised some questions about how filling his spot will affect the 2016 presidential election and the future direction of the Supreme Court. Like many others, I shall have more to say about these weighty issues going forward. But for now, I’d like to write about some of my personal interactions with Justice Scalia prior to his appointment to the Court in 1986.

Scalia graduated in the exceptional Harvard Law School class of 1960 along with the late David Currie, for many years my colleague at University of Chicago Law School. Currie helped arrange for Scalia to interview for a potential faculty position at the University of Chicago in early 1977. By that point, the election of Jimmy Carter as President had ended Scalia’s term as head of the Department of Justice’s Office of Legal Counsel, to which Gerald Ford had appointed him in August 1974.

When Scalia appeared for his Chicago job talk, he cut a large figure. The topic of the session was executive privilege vis-à-vis the Congress, an issue on which Scalia had sparred with Congress repeatedly as head of OLC. For Scalia, there was no middle ground on this question. He was a passionate and articulate defender of executive privilege, and noted, correctly in my view, that this was an issue that was not defined by party, but by role. Repeatedly, he stressed that every president of both parties had taken this view, which he thought that the constitutional system of separation of powers required.

Needless to say, he got the job, after which he made his views on that subject, and indeed every other, clear around the law school. Most striking of all, he disdained the hedges, doubts, and qualifications that are the common fare of academic debates. His most powerful article written while a member of the University of Chicago Law School faculty was the lengthy “Vermont Yankee: The APA, The D.C. Circuit, and the Supreme Court.” In it he chastised the Circuit Court of the District of Columbia for flouting both the specific commands of the Administrative Procedure Act, and a long list of Supreme Court precedents, thereby winning the adulation of large segments of the professoriate. His own administrative law decisions, including Whitman v. American Trucking Associations (2001), flow from his by-the-book attitude: “Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.”

It was clear, moreover, as the 1980 presidential campaign rolled into high gear, that Scalia thought of his academic career only as a way station along the path to a political appointment or judicial nomination. During the fall of 1980, Scalia came into my office to announce that it was time for conservatives like us to get off the sidelines and stand four-square behind Ronald Reagan, which he surely did. He did not become Solicitor General as he had hoped. But he eventually received an offer to sit on the Seventh Circuit Court of Appeals, which he turned down. Shortly thereafter, he was offered a position on the Court of Appeals for the District of Columbia, which gave him what he wanted: a direct line into the vast reservoir of administrative law cases that were concentrated in Washington and proximity to the Reagan White House, which would have the opportunity to nominate at least one Supreme Court justice.

While Scalia was on the D.C. Circuit, Policy Review published the cover story, “Beyond the Burger Court: Four Supreme Court Candidates Who Could Lead a Judicial Counterrevolution” in the spring of 1984. That list included Scalia, Robert Bork, William Ball, a staunch defender of religious liberty, and myself.

At the time, there was more than one counterrevolution in conservative jurisprudence afoot. On the one hand, all of us were unhappy with much of the then-current Supreme Court jurisprudence. On the other hand, we had radically different views about what to do about it. Scalia and Bork rightly opposed the freewheeling attitudes of the Warren Court. Many of these slipped over into the Burger Court after 1969, whose agenda in its early years was every bit as interventionist as that of the Warren Court. In 1970, for example, the Supreme Court had decided Goldberg v. Kelly, which for the first time imposed, mistakenly in my view, extensive procedural due process protections before terminating welfare privileges. Then, in 1973, the court unwisely abolished criminal statutes prohibiting abortions in the United States in Roe v. Wade.

Scalia, Bork, and I regarded these decisions as incorrect. But my reasoning was quite different from theirs. For Bork and Scalia, the watchword was judicial restraint. They believed that the Court should not embroil itself in political disputes unless there was a powerful and explicit textual warrant that supported an intervention. The most villainous Supreme Court decision of all, they believed, was Lochner v. New York (1905), which struck down a maximum hour law of ten hours per day and 60 hours per week. They saw it as representing the usurpation of power by an unwise court that had constituted itself as a “super legislature” that had the powers of both Congress and the states.

I, meanwhile, have never thought that the Constitution explicitly mandates judicial restraint. Rather, the document contains a set of terse but broad procedural and substantive guarantees that should be given their ordinary meaning as of the time, subject to the usual rules of constitutional interpretation on such implied matters as the police power, dealing with the power of the state to regulate for the health, safety, general welfare, and morals of the community. That approach yields the same negative judgments of Goldberg and Roe that Scalia had long championed. But it requires, as David Bernstein has clearly shown, a very different view on Lochner, where New York’s effort to suppress bakery competition does not fall within the ambit of any acceptable police power justifications.

The difference between my views and Scalia became visible at a debate that took place at a conference run by the Cato Institute on economic liberty in 1984. Scalia was the keynote speaker at that event, and I was listed as the first speaker on the next panel. Having no prepared remarks, I took the occasion to offer my own impromptu refutation of Scalia’s view that any embrace of economic liberties in jurisprudence was the equivalent of jumping from the frying pan into the fire. Both Scalia and I published our views thereafter in the January 1985 issue of Regulation Magazine, his under the title of “On the Merits of the Frying Pan,” and mine under the title of “The Active Virtues,” a conscious play on the “passive virtues” that had been defended in 1960 byAlexander Bickel in his Supreme Court Foreword to the Harvard Law Review.

Ultimately, the difference between us concerned the error rate of judicial interventions. Scalia well knew that there were legislative mistakes on the books, but feared that the courts would only make matters worse by intervening. I took the position that intervention was not only possible but desirable on constitutional grounds, so long as the Court did not stray beyond its textual mandate, which contained the broad takings clause—“nor shall private property be taken for public use, without just compensation.” Owing to the lax level of interpretation that had sanctioned the major innovations of the New Deal, the entire statute book was open for attack, so much so that my book Takings: Private Property and the Power of Eminent Domain advanced the bold argument that the entire meddlesome corpus of New Deal legislation was unconstitutional because of its interference with private property relations. That conclusion could not have been more at odds with Scalia’s jurisprudence, which did not give a central place to the protection of competition or my wholesale attack on legal monopolies. Indeed, at one event at Chicago, he described my views as “bizarre,” which to many people they are.

Ironically, however, my views did attract the attention of then–Attorney General Edward Meese, who was curious about how they applied to the scope of federal power under the Commerce Clause. He invited me to speak on these issues at a conference he set up at the Department of Justice.  The issue had long vexed me. In examining the sources, I became more convinced than ever that the Supreme Court’s decisions in NLRB v. Jones & Laughlin (dealing with labor) and Wickard v. Filburn (dealing with agriculture) expanded the commerce power beyond its earlier limitations to cross-border transactions, and were borne of the same desire to legitimate the cartelization of commerce of the New Deal state.

At the luncheon following the DOJ talk, I sat at a table with Ed Meese, Robert Bork, and Antonin Scalia. The conversation quickly turned to the judicial role in commerce power cases, and elsewhere in the Constitution. Scalia took a strong line in favor of judicial restraint, which thus led to his acceptance of the 1937 settlement on the scope of the commerce power. Bork, as was his wont, pushed hard and wondered whether the difficulties with political faction required a more aggressive stance to curb federal power. Just as the discussion got more intense, an aide came up to Meese and in a stage whisper announced that the President urgently wanted him to go to the White House. Meese promptly left the table, and Scalia’s nomination to the Supreme Court was announced shortly thereafter. Who knows what tipped the balance between the only two leading contenders for the first nomination, or just what would have happened if both Scalia and Bork, who was later “borked,” had been on the Supreme Court together. But history often turns on strange coincidences.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

The Classical Liberal Constitution

Richard Epstein

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This coming week, Harvard University Press will publish my new book, The Classical Liberal Constitution: The Uncertain Quest for Limited Government. This 700-page volume took me over seven years to complete, and it offers a distinctive third approach to constitutional law that helps explain why the current Supreme Court’s conceptual framework is in a state of serious intellectual disrepair on many, but by no means all, issues.

Conventional wisdom divides constitutional judges and scholars into two warring camps: conservative and progressive. The classical liberal offers a third point of view, by explaining how our Constitution secures a system of strong property rights and limited government. It does so by rejecting the deep antitheoretical strand that often guides both conservative and progressive thought, and leads both groups—for somewhat different reasons—to support a highly deferential, if misnamed, “rational basis” test to assess the constitutionality of congressional and legislative action.

The Lochner Syndrome

Conservative thinkers often start their constitutional analysis with neither text nor structure, but with their own view of the proper role of the Supreme Court in a democratic society. In their view, the essential choices about the social and economic structure properly belong to the political branches of government at both the federal and state level.

The view holds that the judiciary should override statutes and executive actions only in exceptional cases. They think no judge should translate his policy objections to particular laws into constitutional terms. Thus, in The Tempting of America, Robert Bork called the Supreme Court’s 1905 decision in Lochner v. New York—which by a five-to-four vote declared New York’s controversial maximum-hours law unconstitutional—an “abomination” that “lives in the law as the symbol, indeed the quintessence of judicial usurpation of power.”

Unlike conservatives, progressives defend these laws. But their judicial attitude is driven by the same skepticism about judicial intervention in economic matters. That is the message of Justice Oliver Wendell Holmes’ famousLochner dissent: “a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire.

So it is that two giants at the opposite ends of the political spectrum make the identical mistake: Neither thinks that it is possible to map onto the U.S. Constitution a substantive theory of government. Holmes makes that mistake when he talks about “a constitution” when the proper frame of reference should be the United States Constitution. Bork decries Lochner as “judicial usurpation” because he denies that there can be an independent textual or structural basis for striking down any economic regulation, no matter how misguided it may be.

What is perverse about both positions is that a constitution (indeed any constitution) is adopted precisely to establish some permanent framework in which laws can be made and validated. An ancient constitution could follow Justinian’s maxim “quod principi placuit legis vigorem habet,” which states, “that which is pleasing unto the prince has the force of law.” However, the U.S. Constitution explicitly rejects this approach by adopting all sorts of measures intended to diffuse the power of public officials: in part through federalism, in part through the division of government power into the Congress, the President and the Courts. These structural protections are augmented by a broad catalogue of individual rights, which checks both federal and the state power. Judicial usurpation is, to be sure, one sin. But to read these broad protections narrowly is the inverse mistake of judicial abnegation.

As applied to Lochner’s maximum hour law, the legislature should be required to justify exactly why, in a free society, it has the right to make a judgment about how many hours individuals should work and under what conditions. That point may not be absolute, but by the same token, ordinary liberty does carry with it the presumptive right to choose employment of one’s choice, with narrow exceptions for military service and jury duty.

Otherwise, surely under our Constitution, no state could order its citizens to accept certain jobs against their will. The same principle against governmental interference with individual liberty also is at work when government seeks to stop people from working in a job of their own choosing. If A uses force to prevent B from working for C, he commits the tort of interference with advantageous relations, and can be enjoined from that behavior. Put government in the role of A, and it is in exactly the same position.

The Police Power Exception

Of course, government prohibits people from engaging in criminal activity and taking advantage of the helpless. Indeed, both of those long-standing social norms have become embedded in the police power, under which federal and state governments may regulate individual activity to protect, as the phrase goes, “the safety, health, morals and general welfare” of the public at large. Inclusive as this list may seem, it does not negate key constitutional guarantees. In particular, the police power rationale does not let government pass overtly paternalist legislation on the one hand or overtly anticompetitive legislation (as in Lochner) on the other.

It is here that the underlying substantive vision matters. Under the classical liberal constitution, maintaining a free and open market for both capital and labor is an essential government function, which resonates in the explicit guarantees with respect to contract, private property, and the freedom of speech and the press. These apparently disparate guarantees are all linked together by the common sentiment that the state must show a serious justification before it can limit their exercise. The class of justifications is not open-ended, and it never includes the anticompetitive and protectionist legislation that is routinely sustained based on a supposed need to correct abuses of the market that are unrelated to duress, fraud, and monopoly.

More specifically, the proper scope of the police power is tied to the two reasons that lead people to join a political compact in the first place. The first reason is to control the use of force and fraud. The second is to allow state taxation and coercion to facilitate gainful interactions among individuals who are unable by themselves to create the much needed public goods—including defending against foreign threats, maintaining domestic order at home, and providing the common infrastructure of roads and other public facilities—because of insuperable transaction costs. The simple but powerful notion that justifies these coercive actions is that all individuals receive just compensation from the state for their tax dollars in the form of a higher level of personal security and economic prosperity.

Making This Work

The willful suppression of private competition does not come within a country mile of serving these objectives. Instead, misguided legislation often spends public dollars to make all private citizens worse off than they would otherwise be, which is not the case when the sensible enforcement of the antitrust laws controls cartels and other anticompetitive activities.

It is just this basic pattern that explains the greatest successes of our constitutional order. When the justices escape their habitual skepticism about the power of legal theory, they can work wonders by making those key judgments needed to implement the classical liberal constitution. When the justices care about outcomes, they become classical liberals in spite of themselves. Here are two examples.

The First Amendment states that that Congress “shall make no law abridging the freedom of speech.” But it is possible to bring this abstraction down to earth in a way that is consistent with the general constitutional plan. The first point to note is that freedom of speech has to be read broadly to cover, as it does, all forms of expression. No devotee of judicial restraint could think that the First Amendment protects the words spoken in a play but not the gestures of the actors. Yet at the same time, no notion of textual literalism could defend the proposition that the protection of freedom of speech allows individuals to foment riots, to cheat their customers, or to organize cartels.

Now the classical liberal account of wrongful conduct shapes the police power exceptions to the basic constitutional guarantee. Yet by the same token, the Court has increasingly recognized that it is an indefensible stretch to think that this conception of the police power sustains the campaign finance laws, like McCain/Feingold, which limit corporate speech and thus thwart the active political competition they should advance.

Progressives may like this legislation, and some (but by no means all) conservatives may tolerate it. But under a classical liberal constitution, the only proper way to limit political contributions is to enforce the constitutional limitations on government power. Once the scope of government is so limited, individuals and groups no longer have any incentive to lobby governments for benefits that they can no longer dole out free of constitutional restraint.

The identical classical liberal argument applies with equal force to structural issues. As a textual matter, the Constitution gives Congress the power “to regulate commerce among the several states.” It does not in so many words restrict the power of the state to act when Congress does not. But from the early nineteenth century on, courts have developed a Dormant Commerce Clause jurisprudence that has worked wonders in preserving an internal common market for goods and services within the United States.

But why did it succeed? Because the justices, both conservative and liberal, tasked with constitutional enforcement, have always been keenly aware of the dangers that state barriers pose to domestic trade and national prosperity. Far from deferring to anyone, they have taken the task of constitutional design seriously and have adopted the classical liberal presumption of distrust to trade barriers, which are now subject to narrow police power justifications.

Any state, under the watchful eye of the Court, may keep out various kinds of animals and materials that pose a serious danger to the health and safety of the citizens. But they reverse field on Lochner because they now rigorously enforce the line between health and safety regulation on the one hand and anticompetitive legislation on the other. They don’t take refuge in the weak rational basis test to let state governments do as they please, but root out anticompetitive laws (like many maximum hour laws) masquerading as safety regulations.

Getting the Court Back Into the Game

The bottom line here is that the same mindset that works for individual rights works for understanding of the structural constitution. In both areas the result of energetic government, or what Clark Neily calls “judicial engagement,” pays handsome and enduring public dividends. The principles embodied in the classical liberal constitution are not those that work only in this or that era. They are principles for the ages, which is why they deserve to be embedded in constitutional jurisprudence. Yet all too often, these basic principles are rejected for ephemeral concerns that undermine our constitutional well-being.

It is not possible in this short essay to go through the many permutations on this common theme that are developed at length in my book Classical Liberal Constitution. But it is imperative to remember that eternal vigilance is indeed the price of liberty. When our Supreme Court drops its guard and defers to the federal government on matters of taxation and regulation, we end up with a huge government that saps the energy of a nation and gives us the tragedy that is Obamacare.

The Court’s progressives uphold these laws because they believe in their efficacy, even though labor unions and agricultural cartels always work against the long-term aggregate interests of the community. For their part, conservatives often practice a narrow and misguided originalism that ignores the foundational economic principles that lend coherence to the Constitution as a whole. The classical liberal approach does neither. It rejects both the judicial restraint of the conservatives and the economic naiveté of the progressives, and in so doing supplies the only blueprint for judicial action that can help lift this nation from its current malaise. We pay a high price for straying from first principles.

End Runs Around the Constitution

Judge Andrew P. Napolitano*

Two weeks ago we learned that the National Security Agency (NSA) has been spying on the chancellor of Germany and on the president of the United States. Last week we learned that it has spied on the Pope and on the conclave that elected him last March. This week we learned that it also has spied on the secretary general of the United Nations and has hacked into the computer servers at Google and Yahoo.

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What’s going on?

President Obama, who has yet to address these outrages to serious questioners, must know of them, because apparently he has gotten into the habit of wanting to know in advance what is on the minds of those with whom he is scheduled to meet. The New York Times reported recently that it learned from NSA whistleblower Edward Snowden that the NSA happily told Obama what U.N. Secretary-General Ban Ki-Moon was planning to ask him well in advance of when he asked it. The NSA could have learned that only from its surveillance of the secretary general’s personal cellphone calls, emails and texts. It seems the NSA is providing this service to its clients, and chief among them is the president.

Also among them are other parts of the government, such as the Department of Justice, the IRS, the FBI and the Department of Homeland Security. This is where we find even more dangers to personal freedom than the constitutional violations and personal privacy outrages visited on all Americans and on foreign officials. The NSA claims it can operate outside the restraints of the Fourth Amendment. The NSA and its congressional apologists have argued that because its task is essentially to gather foreign intelligence for national security purposes only, and because the Fourth Amendment, which requires detailed language in search warrants particularly describing the person or place to be searched and the person or thing to be seized, only restrains the government when it is engaged in criminal prosecutions and not when it is on a fishing expedition for intelligence purposes, the Fourth Amendment does not restrain the NSA.

Yet, the plain language of the Fourth Amendment protects everyone in America from government intrusion in their persons, houses, papers and effects, whether the government is looking for evidence of crimes or of evidence of sophistry. The NSA’s argument that the Fourth Amendment only regulates criminal prosecutions is nonsense. It never has seriously been made to or accepted by the Supreme Court, and it defies what we now know about the client list of the NSA. Its clients consist surely of the 15 or so other intelligence agencies in the federal government. But its clients are also the premiere federal agencies that decide whom to prosecute. In order to decide whom to prosecute, these agencies need to examine evidence. And if the evidence they are examining has come through extra-constitutional means, these agencies are destroying the fabric of liberty they have sworn to uphold, which includes the use of only lawfully and constitutionally gathered evidence.

The NSA’s own behavior defies its argument that so long as it is not involved in obtaining evidence for criminal prosecutions, it is free to use extra-constitutional means to gather data. The whole purpose of the Fourth Amendment is to prevent the government from going house to house without probable cause until it finds evidence of a crime -- as British soldiers did to the colonists -- and then using that evidence in criminal prosecutions. But if the NSA can go from computer to computer without probable cause until it finds what it wants -- and turn some of that evidence over to law enforcement -- the Constitution’s protections effectively have been short-circuited.

Why does the government, which has sworn an oath to uphold the Constitution, find ways to short-circuit it? The answer goes to the nature of government. Even in a free society, government always grows, always expands and always wants to control more human behavior. But government that operates in secrecy, where no one can see it and criticize it, will do whatever it can get away with -- like spy on the Pope, share unconstitutionally acquired evidence with law enforcement or sate the president’s curiosity.

As if all of this were not bad enough, we learned just a few days ago that the NSA has hacked into the enormous computer servers of Google and Yahoo. These two companies, which have been coerced into and rewarded for their cooperation with the NSA, have now been betrayed by their spying partners in the government. They must have been gullible enough to believe that all NSA access to their hardware had been by consent or at least by court order and with their knowledge. It is almost inconceivable that any judge of the FISA court ordered hacking, as that is expressly prohibited by federal statute. Hacking is criminal no matter who orders it.

Even some of the president’s congressional supporters now acknowledge that the NSA is out of control and destroys more liberty than it protects.

Why would the NSA do all of this? Because in secret it can cut constitutional corners with impunity. And it no doubt believes it is easier to tap into the telephones and computers of all 330 million of us who live in the United States in order to monitor the few dozen among us whom it really wants to watch than to develop probable cause against its true targets as the Framers intended and the Constitution expressly requires. And as well, who knows what teasing cute morsel its agents can deliver to the president before his next Oval Office visitor arrives?

Is this the government the Framers gave us? Is this the government to which we consented? Is this the government most conducive to personal liberty in a free society? The answers are obvious.

 

*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution. The most recent is "Theodore and Woodrow: How Two American Presidents Destroyed Constitutional Freedom." 

Originalism: A Necessary Tool But Not a Constitutional Panacea

Richard Epstein

In their short contribution to this issue, “Originalism and the Good Constitution” John McGinnis and Michael Rappaport link together two conceptions that I think should be kept forever separate. As their provocative title suggests, they claim that the path to a good Constitution, capital C, lies through originalism. The central point in their argument is that the Constitution and its Amendments have been battled-tested through a rigorous adoption process that at every point along the way required some level of supermajority support—a requirement that makes it more likely that only sounder provisions are likely to work their way into the fabric of American Constitutional law.

The Exclusion of Women and Blacks

The claim, as they develop it, runs into difficulty because some of the principles that worked their way into the constitutional were less than ideal. Toward the end of their paper they hone in on two exceptions to the basic rule, namely “The Exclusion of Blacks and Women” from their rightful place in the Constitutional order. This pairing is odd in the extreme because the Constitution says nothing about the status of women at all. The key text dealing with voting in the House of Representatives, in Article I, Section 2, Clause 1, takes no stand on suffrage, but contents itself with a devolution program that provisions that “the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” (There was no parallel issue for elections to the Senate or the Presidency, which were done by the state legislatures and the Electoral College respectively.) But there are, for example, no independent federal prohibitions on the election or appointment of women to any position created under the Constitution, including the President of the United States. To be sure, the Constitution did not require the participation of women in the electoral process until the adoption of the Nineteenth Amendment in 1919.

The constitutional history on the question of race is a different matter altogether for that is an issue on which the Constitution has a lot to say. But in their effort to link originalism to the good Constitution, McGinnis and Rappaport are not faithful to the principles of interpretation that lie between the originalist project. No system of interpretation, originalist or otherwise, is intended to purify the Constitution of any structural errors in judgment that were incorporated into the body of the text. Interpretation is not covert for legislation. Quite the opposite, the only thing that a sensible theory can do is to be sure that the implementation of any given provision is consistent with the dominant text that is subject to interpretation.

Indeed one test of a sound theory of interpretation is that it is as faithful in its implementation of bad and immoral texts as it is of good and enlightened ones. And just that principle is showed clearly in looking at one of the most odious texts in the Constitution, dealing with the question of fugitive slaves, without ever deigning using the word “slave:”

Art. IV. Sec. 2, Cl. 3 No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

The Clause is inserted into the Constitution right after the Extradition Clause that in parallel language states:

Art. V, sec. 2, cl. 2: A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

Both of these clauses are exceedingly well drafted and leave no room for the imagination. A consistent originalist will apply the same technique to reading them both, and see in them categorical obligations to return both slaves and criminals to their owners in the one case and the proper state authorities on the other. Put in a different way, the Constitution explicitly treats slaves, who have done no wrong, and criminals, who may have done serious wrongs, in exactly the same fashion. Odious, but clear.

Accordingly, there is in my view no interpretive dodge that allows for Courts to soften the constitutional obligation for fugitive slaves while keeping it robust and in tact for fugitive criminals. Nor in my view is it possible to raise any valid constitutional objection to the Fugitive Slave Act of 1793, which created a federal system for the recapture of slaves, and, by invoking the Supremacy Clause, negated all state laws that purported to soften the effect the Constitutional provision by giving sanctuary to escaped slaves. Nor when that onerous regime started to unravel, was there any constitutional objection to the passage of the still harsher regime of the Fugitive Slave Act of 1850, passed as part of the Compromise of 1850 in an effort to keep the Union together.

The Limits and Uses of Interpretive Theory

The question is whether this sordid history should embarrass the defenders of any form of constitutional originalism, and the answer to that question is no. The task of originalism is one of interpretation. The point of interpretation is to develop norms that allow for the effective implementation of a scheme so as to prevent slippage between the general plan of the party who enacted the law and the application of that law by other officials, be they members of the Executive Branch or the Judiciary. That problem is raised to its highest level in constitutional matters, but the problem of fidelity to law exists in the interpretation of every document, whether it is found in a constitution, statute, regulation or private contract.

The public official that chooses not to enforce these laws while they are in effect faces a serious crisis of conscience in dealing with the Fugitive Slave laws, and for that reason may well decide to resign his office rather than enforce a law that he thinks, and correctly thinks, violates the core position of any system of natural law that affords to all persons free and equal status in the state of nature, which slavery profoundly denies. Yet no theory of interpretation can cure these fundamental defects in world view. The originalist theory of interpretation on constitutional matters has to live in the bed that the Framers have forced them to lie until those laws are changed.

In an odd way, the predicament that any judge faced in the application of odious constitutional provisions like the Fugitive Slave Clause is a tribute to the power of the originalist modes of interpretation. It is all too fashionable today to insist that any particular constitutional text can be endowed with whatever meaning we think that serves some important social function, including the creation of a good society, or, to use the words of McGinnis and Rappaport, to show that “originalism” generates constitutional interpretations that are likely to have better consequences today than those of nonoriginalist theories.”

The Gun Control Example

I think that this is wishful thinking. I am at a complete loss to understand why that particular claim should be regarded as true in the absence of firm linkage to some constitutional text. What makes it so difficult to evaluate their claim, moreover, is that McGinnis and Rappaport do not offer in their article any particular case that proves the general theory. They do, however, refer at the outset to Justice Scalia’s originalist arguments in Heller v. District of Columbia (2008), which struck down a District of Columbia gun control law that forbade the possession of a firearm in the home for use for self-defensive purposes. The text of the Second Amendment reads:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The initial phrase which refers to the security of “a free State” is correctly understood as referring to the states of the United States, and not to some abstract state anywhere on the globe that is protected by some universal provision of justice. The Framers were well aware of the role that sovereignty played in domestic and international affairs, and thus adopted an Amendment that was intended to prevent the federal government from encroaching on the the power of the states over their own people, and thus had no application to the District of Columbia.

Suppose, however, that all this is wrong, and that Justice Scalia got it right when he struck down the statute under the Second Amendment. How do we know that this leads to good social consequences in light of the fierce public debate over the soundness of gun control laws. The core of that debate is over means/ends relationships. Neither side to the debate thinks that murder or mayhem are social goods. The sole question is whether the gun control laws advance the end of a safer society by removing guns from general circulation, or whether they frustrate that end by taking guns out of the hands of law-abiding individuals, giving criminals a wider berth for action. That empirical debate cannot be resolved by a correct rendition of the Second Amendment.

Indeed in most cases where the Constitution authorizes various powers of regulation, it remains an open question of whether these powers are exercised for good purposes or for ill. Within this framework the traditional arguments over originalism continue to hold sway. Does the Constitution create a regime of limited federal powers that reserve extensive areas of autonomy to the states? And, with the passage of the Fourteenth Amendment, does the Federal government now have greater power to ensure that the states do not encroach on either the “privileges or immunities” of the citizens of those states protected under the Fourteenth Amendment. There are many difficult issues of interpretation that must be resolved to answer these questions. I offer my own qualified version of originalism in my new book The Classical Liberal Constitution. But for the moment, it seems that any appeal to supermajority voting in the manner of McGinnis and Rappaport is not likely to resolve those difficulties.

'To Regulate,' Not 'To Prohibit': Limiting the Commerce Power

Challenging conventional wisdom, NYU Law Professor Barry Friedman and Genevieve Lakier '11 persuasively argue in a new article that Congress does not possess the power to ban items in interstate commerce.  

Today it is taken for granted that Congress’s power “to regulate . . . Commerce among the several States” includes the power to shut interstate markets down. That is why, for example, Congress is understood to have the power to ban the possession and use of marijuana, even though twenty states have expressed contrary preferences, either for the medicinal or recreational use of the drug. This Article argues that as a matter of constitutional history and theory both, this familiar assumption about congressional power is wrong. First, the Article demonstrates that the original understanding, which prevailed for over one hundred years, did not grant Congress the power to ban markets. Congress could pass “helper” statutes to facilitate state choices, and it could even ban particular goods (such as diseased cattle) “in service” of the interstate market; but it could not simply prohibit all commerce in products of which it disapproved. Second, the Article demonstrates that although this understanding changed following the 1903 Supreme Court decision in Champion v. Ames, none of the reasons supporting the change justify Congress possessing the power today. Finally, this Article examines theoretical justifications for congressional power grounded in law and economics and constitutional theory to suggest that the power “to regulate” interstate commerce should not be understood to include the power to prohibit it. The argument has implications for national bans on articles and activities such as interstate gambling, drugs, raw milk products and assault weapons.