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Imp Rim Is Apr 10
Imp Rim Is Apr 10
The following is adapted from a speech delivered in Washington, D.C., on February 25,
2010, at an event sponsored by Hillsdale College’s Allan P. Kirby, Jr. Center for
Constitutional Studies and Citizenship.
HILL SDALE.EDU
HILLSDALE COLLEGE: PURSUING TRUTH • DEFENDING LIBERT Y SINCE 1844
defining broad rules of the game for the the Constitution is a document that is
legislative and executive branches of the heritage and responsibility of every
government, the new constitution would American citizen.
compel specific outcomes.
1. PRIVILEGES OR IMMUNITIES CLAUSE
Yes, the forms of the Founders’
Constitution would remain—a bicameral Since shortly after the Civil War, the
legislature, periodic elections, state gov- privileges or immunities clause of the
ernments—but the important decisions 14th Amendment has been understood
would increasingly be undertaken by as protecting a relatively limited array of
courts, especially by federal courts. It will rights that are a function of American
be the California referendum process writ federal citizenship, such as the right to
national, a process by which the decisions be heard in courts of justice and the right
of millions of voters on matters such as to diplomatic protection. In defining the
racial quotas, social services funding, and protections of the privileges or immunities
immigration policy have been routinely clause in this manner, the Supreme Court
overturned by single judges acting in the in the Slaughterhouse Cases (1873) rejected
name of the Constitution—not the Framers’ the argument that the clause also protects
Constitution, but a “constitution for our rights that are a function of state citizen-
times,” a “living constitution,” resem- ship, asserting that this would lead to fed-
bling, sadly, the constitutions of failed eral courts serving as a “perpetual censor”
and despotic nations across the globe. of state and local governments. This
This radical transformation of decision has served as a bulwark of
American political life will occur, if it American federalism.
succeeds, not through Although a consid-
high-profile court −´ erable amount of fed-
Imprimis (im-pri-mis),
decisions resolving [Latin]: in the first place eral judicial authority
grand disputes of war has since been achieved
EDITOR
and peace, abortion, Douglas A. Jeffrey
over the states through
capital punishment, DEPUTY EDITOR
interpretations of the
or the place of reli- Timothy W. Caspar due process clause of
gion in public life, COPY EDITOR the 14th Amendment,
but more likely as the Monica VanDerWeide many proponents of a
product of decisions ART DIRECTOR 21st century constitu-
Angela Lashaway
resolving forget- tion seek additional
PRODUCTION MANAGER
table and mundane Lucinda Grimm federal oversight of
disputes—the kind CIRCULATION MANAGER state and local laws.
mentioned on the Patricia A. DuBois Their strategy in this
back pages of our STAFF ASSISTANTS regard is to refashion
Kim Ellsworth
daily newspapers, if Wanda Oxenger the privileges or immu-
Mary Jo Von Ewegen
at all. Let me provide nities clause as a new
a brief summary of Copyright © 2010 Hillsdale College and essentially unlim-
six of the more popu- The opinions expressed in Imprimis ited bill of rights within
are not necessarily the views
lar theories of the of Hillsdale College. the 14th Amendment.
advocates of the 21st Permission to reprint in whole or The practical conse-
in part is hereby granted, provided
century constitution. the following credit line is used: quences of this would
In particular, it is my “Reprinted by permission from Imprimis, be to authorize federal
a publication of Hillsdale College.”
hope here to inform judges to impose an
SUBSCRIPTION FREE UPON REQUEST.
ordinary citizens ISSN 0277-8432
ever broader and more
so that they will be Imprimis trademark registered in U.S.
stultifying unifor-
better aware of the Patent and Trade Office #1563325. mity upon the nation.
stakes. For while Whatever modicum
judges and lawyers of federalism remains
may be its custodians, extant at the outset
2
APRIL 2010 • VOLUME 39, NUMBER 4 < hillsdale.edu
of state action as a precondition for the institutions as the equivalent of the state,
enforcement of rights. In the Civil Rights and thereby to extend public oversight.
Cases (1883), another post-Civil War prec- However, it would be more convenient
edent, the Supreme Court asserted that simply to nullify the state action require-
these provisions of the 14th Amendment ment altogether. Professor Mark Tushnet
prohibited only the abridgment of indi- of Harvard Law School, for example,
vidual rights by the state. “It is state action would reconsider the Civil Rights Cases:
of a particular character that is prohibit-
ed. . . . The wrongful act of an individual The state-action doctrine contrib-
is simply a private wrong and if not sanc- utes nothing but obfuscation to
tioned in some way by the state, or not constitutional analysis. It works as
done under state authority, the [individu- a bogeyman because it appeals to a
al’s] rights remain in full force.” However, vague libertarian sense that Ameri-
for advocates of 21st century constitu- cans have about the proper relation
tionalism, if fairness and equity are to be between them and their govern-
achieved, the Constitution must become ment. It seems to suggest that there
more like a general legal code—applicable is a domain of freedom into which
to both public and private institutions. the Constitution doesn’t reach. We
Consider, for example, Hillsdale would be well rid of the doctrine.
College. Despite being the embodiment of
a thoroughly private institution, govern- If Professor Tushnet succeeds in this
ment officials have sought to justify the mission, Hillsdale’s policies concerning
imposition of federal rules and regula- such things as tuition, admissions, faculty
tions upon Hillsdale by characterizing hiring, curriculum, and discipline will
the college as the equivalent of a state each have to pass the scrutiny, and receive
entity on the grounds that it received the imprimatur, of judges.
public grants-in-aid. When in response
4. POLITICAL QUESTIONS
to this rationale, and in order to retain its
independence, Hillsdale rejected further In areas that were once viewed as inap-
grants, the government then sought to propriate for judicial involvement, federal
justify its rules and regulations on the courts have begun to assert themselves in
grounds that Hillsdale was the indirect an unprecedented and aggressive man-
beneficiary of grants-in-aid going to indi- ner. The limited role of the judiciary,
vidual students, such as GI Bill benefits. for example, with regard to matters of
Once again in response to this rationale, national defense and foreign policy is not
Hillsdale asserted its independence by explicitly set forth in the Constitution, but
barring its students from receiving public such matters have from time immemorial
grants, even those earned as in the case of been understood to be non-justiciable and
GI benefits, and instead bolstered its own within the exclusive responsibility of the
private scholarship resources. We have elected branches of government. As far
witnessed a steadily more aggressive effort back as Marbury v. Madison (1803), Chief
by governmental regulators to treat private Justice John Marshall recognized that
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APRIL 2010 • VOLUME 39, NUMBER 4 < hillsdale.edu
“Questions in their nature political . . . can array of unenumerated rights that lie fal-
never be made in this Court.” low in the Constitution, waiting only to be
Yet just in the last several years, the unearthed by far-sighted judges.
Supreme Court, in a series of 5-4 deci- Professor Thomas Grey of the
sions, has overruled determinations made Stanford Law School has suggested, for
by both the legislative and executive example, that the Ninth Amendment
branches regarding the treatment of cap- constitutes a “license to constitutional
tured enemy combatants. Most notably, decisionmakers to look beyond the sub-
the Court ruled in Boumediene v. Bush stantive commands of the constitutional
(2008) that foreign nationals captured in text to protect fundamental rights not
combat and held outside the United States expressed therein.” Rights to abortion,
by the military as prisoners of war—a war contraception, homosexual behavior, and
authorized by the Congress under Article similar sexual privacy rights have already
I, Section 8, and waged by the President been imposed by judges detecting such
as Commander-in-Chief under Article rights in the Ninth Amendment. The
II, Section 2—possess the constitutional problem is that, in the words of Justices
right to challenge their detentions in fed- Stewart and Black, this understanding of
eral court. Thus, in yet one more realm the amendment “turns somersaults with
of public policy—one on which the sov- history” and renders the courts a “day-to-
ereignty and liberty of a free people are day constitutional convention.”
most dependent, national defense—judges The more conventional understanding
have now begun to embark upon a sharply of the Ninth Amendment has viewed it in
expanded role. the historical context of the Bill of Rights,
If there is no significant realm left of of which it is a part. By this understanding,
“political questions,” if there are no longer it was written to dispel any implication that
any traditional limitations upon the exer- by the specification of particular rights in
cise of the judicial power, then every mat- the Bill of Rights, the people had implicitly
ter coming before every president, every relinquished to the new federal govern-
Congress, every governor, every legisla- ment rights not specified. Like the Tenth
ture, and every county commission and Amendment—which serves as a reminder
city council can, with little difficulty, be that powers neither given to the federal
summarily recast as a justiciable dispute, government nor prohibited to the states in
or what the Constitution, in Article III, the Constitution are reserved to the states
Section 2, describes as a “case” or “con- or to the people—the Ninth Amendment
troversy.” As a result, every policy debate was adopted to emphasize that our national
taking place within government, at every government is one of limited powers. Its
level, will become little more than a pre- principal purpose was to prevent an exten-
lude for judicial resolution. sion of federal power, not to provide an
open-ended grant of judicial authority that
5. NINTH AMENDMENT
would have the opposite effect.
Another looming constitutional battle-
6. TRANSNATIONALISM
ground concerns the meaning of the Ninth
Amendment to the Constitution: “The Professor Harold Koh of the Yale Law
enumeration in the Constitution, of School, and now State Department Legal
certain rights, shall Counsel, is perhaps
not be construed to the leading propo-
deny or disparage nent of what he calls
others retained by the “transnationalism,”
people.” Many 21st which he contrasts
century constitutional- DID YOU KNOW? with the “nationalist
ists understand this An expanded version of these remarks philosophy” that has
can be obtained from Hillsdale College’s
amendment to say that Allan P. Kirby, Jr. Center for Constitutional Continued on back page
there is some unknown Studies and Citizenship at hillsdale.edu/
kirbycenter.
5
Continued from previous page
characterized American constitutional law
US POSTAGE PAID
Hillsdale College
for the past 220 years.
* * *
It is with the intention of generating debate,
and of providing a roadmap to help us better
navigate the constitutional forks-in-the-road
that will soon be facing our nation, that I offer
these thoughts. While there has never been a
time in our history in which there was not seri-
ous constitutional debate among our people, I
would submit that there have been few times
in which this debate was more fundamental in
defining the American experiment. ■