Antonin Scalia

Lawson on Conservatives versus Constitutionalists

Is the Rule of Law a Law of Rules or a Law of Law? Some conservatives seem to prefer the former. Should they?

|The Volokh Conspiracy |

Gary Lawson, writing on Gundy v. United States decision in the Cato Supreme Court Review discusses the potential difference between conservative jurisprudence and constitutionalist jurisprudence.

If one is truly an originalist—or, as I would prefer to term it, a constitutionalist—one will not worry too much about how rule-like or standard-like a norm the Constitution prescribes in any given setting. To a constitutionalist, that is the Constitution's call to make, not the judge's. If the Constitution gives you a vague and mushy standard, a constitutionalist will do his or her best to apply the vague and mushy standard. There is no a priori reason to suppose that the Constitution will always prescribe crisp and clear rules, and there is a great deal of empirical evidence to the contrary. Constitutionalists think that cases should be decided on the basis of the Constitution, whatever role for courts that turns out to prescribe.

But if one is less a constitutionalist than a conservative,145 one might worry a great deal about the "appropriate" judicial role, public perceptions of the Court, the dangers of judicial "activism," and a host of other policy-laden considerations that are not grounded in constitutional meaning. Judicial conservatives, as opposed to judicial constitutionalists or originalists, have long worried about exactly these sorts of considerations. Indeed, those considerations are a large part of what defines someone as a judicial conservative.

In the particular context of delegation, Lawson explains how this distinction explains why Justice Gorsuch is more willing to consider whether there are constitutional limits on the delegation of authority to administrative agencies than was Justice Scalia. Although Scalia acknowledged that excessive delegation could pose constitutional problems, he did not believe there was a ready, judicially administrable test to distinguish permissible delegations from impermissible ones.

For more on this distinction, see Lawson's article with Stephen Calabresi, The Rule of Law as a Law of Law, which is styled as a response to Scalia's famous paper, The Rule of Law as a Law of Rules.

NEXT: Public Education as Public Indoctrination

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  1. Yeah! Great job. I have Office setup you can know about it. https://getinfos.org/office-setup/

  2. Lawson’s constitutionalism sounds a lot like obedience for obedience sake, but without the grounding in divine inspiration that scripturalists can fall back on.

  3. This whole discussion is founded on the rather flawed premises that (1) it is possible to know what the framers would have thought about any given issue; and (2) that what they thought is relevant when conditions are completely different now than they were when the Constitution was adopted.

    What would the framers have thought about Internet porn? Or electronic surveillance? Or private ownership of large magazine weapons that can kill a dozen schoolchildren in less than a minute? Anyone who thinks they can tell us with any certainty what the framers would have said about any of those things is simply deluding himself.

    On the other hand, I think I have a pretty good idea what the framers would have thought about a Supreme Court that includes women and blacks. So, it’s an entirely legitimate question why we should care what they would think about anything else given that most of them were racists and misogynists, and otherwise completely out of touch of what today is mainstream thought.

    1. Personally, I have a pretty good idea what Ben Franklin would have thought about internet porn. But he *might* have been an outlier.

      I think you’re seriously downplaying the extent to which we understand their thinking. It’s not like they were shrinking violets about expressing themselves.

      Are there modern issues that we could only be guessing as to what they’d think? Undoubtedly. But we know what they thought about private ownership of weapons, or surveillance.

      It’s actually the government run school system they wouldn’t have anticipated, not people owning guns capable of killing school children.

      1. We know what they thought about private weapons ownership in an era in which we did not have tens of thousands of Americans dying annually because of gun violence, much of it with military grade super weapons used in school shootings. If they could see those conditions, maybe they would still reach the same conclusion and maybe they wouldn’t. I don’t know, and neither do you. I’m not willing to guess.

        And that’s even before we get to my second point, which is that their known opinions are about as polar opposite as current American opinions as can be imagined on a number of subjects. Many of them would have been mortified that we had a Black president for eight years. Giving them veto power over current polity makes no more sense than giving Oliver Cromwell veto power over current English polity, and for the same reason. Their opinions, whatever they may be, are based on circumstances that have not existed for . a very long time.

        1. Man, are you ever historically ignorant. The murder rate in the founding era is estimated to be over 30/100K, in contrast today it’s about 5/100K. They’d be starkly amazed at how few murders were taking place, not appalled at our high murder rate.

          1. Brett, thank you for proving my point. We live in an era in which 5/100 is intolerable, unlike earlier eras in which many times that was par for the course. We think differently than they did. What they thought is simply not relevant to contemporary standards of what is acceptable.

          2. “We know what they thought about private weapons ownership in an era in which we did not have tens of thousands of Americans dying annually because of gun violence, much of it with military grade super weapons used in school shootings. If they could see those conditions, maybe they would still reach the same conclusion and maybe they wouldn’t.”

            Well, congratulations on turning on a dime as soon as I pointed out that your factual premise was BS. Heads you win, tails I lose, is your approach to this.

            1. Brett, I made two points: One, that we can’t know what the framers thought, and two, even if we can, what they thought is irrelevant because times have changed. My turning on a dime was simply shifting from my first point to my second one.

              I’d like to hear you address that one. The framers were fine with public floggings, slavery, restricting the vote to white property owners, and committing genocide against the Indians. It’s hard to imagine a group of people with views less reflective of our own. Why in this day and age should anyone care what they thought?

              1. “We know what they thought about private weapons ownership in an era in which we did not have tens of thousands of Americans dying annually because of gun violence, much of it with military grade super weapons used in school shootings. ”

                Factual assertion, and totally bogus. You really did claim they might have changed their minds about the right to keep and bear arms if they could see our (Enormously lower!) murder rate.

                “Why in this day and age should anyone care what they thought?”

                Because they wrote the Constitution, and until amended, it still means what it meant when adopted.

                Amendment: That’s how you change the meaning of laws. That’s the ONLY way you change the meaning of laws. Any other approach to “changing” meaning is just an attempt to circumvent the procedural protections in Article V so that the federal government can free itself of being bound by a constitution.

                The founding fathers, some of them anyway, were way too comfortable with slavery by today’s standards. (I guarantee to you, we’re way too comfortable with some other evil by the standards of 200 years from today.) And the ones who weren’t, thought that it was a dying institution, and they could kick the can on getting rid of it to a time when doing so wouldn’t involve destroying a federation that was their only defense against being snapped up again by the great powers.

                But we’ve already gotten rid of slavery and the legal inequality of the races, and the fight today is not over who gets those rights, but over whether they should be retained, or abolished for everybody.

                And you’re on the abolished side of that fight.

                1. My factual assertioh was not totally bogus, I read history differently than you do. In Jefferson’s day, you could go to a public place without having to worry that you and a dozen of your other citizens might get blown away by a nut with an AK-47. Yes, the murder rate was higher but it was mostly committed one or two at a time by people with lower grade weapons who could be more easily defended against. Maybe the framers would have drawn that distinction too; maybe not. I can’t know and neither do you. So on that point we just disagree.

                  And yes, the Constitution can be amended, but the framers gave us an amendment process that’s damn near impossible, specifically for the purpose of leaving carved in concrete the views of people who supported slavery, public floggings, and Indian genocide. If you recall the ERA fight from the 1970s, we can’t even pass something as basic as gender equality, despite having broad public support. It hasn’t even worked that well as a governing document; it gave us a bloody civil war and today gives us political paralysis unknown anywhere else in the Western world. Our Congress can’t even pass a budget or prevent routine government shutdowns.

                  And just to be clear, even with all that I don’t think the courts should ignore it. I am, however, perfectly fine with ignoring the intent of the framers and giving it a broad reading. The Framers would have been mortified by Wickard v. Filburn, but the holding of Wickard v. Filburn is one way to read the text.

                  1. ” In Jefferson’s day, you could go to a public place without having to worry that you and a dozen of your other citizens might get blown away by a nut with an AK-47.”

                    You can do that today, too. Anybody who walks around in fear of being gunned down either lives in a ghetto in a city run by Democrats for the last 50 years, or is clinically paranoid. In the vast reaches of the country, people don’t even give a thought to the risk of being shot, which is minuscule unless you’re associating with violent criminals.

                    Objectively, unless you live in some hellhole where Democrats set the rules and are in bed with urban gangs, your risk of being shot is enormously smaller than it would have been in the 1790’s. Enormously!

                    So your whole idea that the 2nd amendment was adopted in an era where the risk of being shot wasn’t a consideration is bogus.

                    “And yes, the Constitution can be amended, but the framers gave us an amendment process that’s damn near impossible, specifically for the purpose of” erasing treasured civil liberties that stand in the way of the left seizing untrammeled power.

                    The amendment process is perfectly workable for amendments that are popular. It was abandoned by Congress because the values of our self-perpetuating political class have diverged far enough from those of the average citizen that the amendments they’d want would be rejected by us, and the amendments we want they’d never give the time of day.

                    The answer to that is a constitutional convention, not empowering judges to declare that the Constitution doesn’t mean what it says.

                    1. Dude, I hope you feel better for having gotten that anti-Democrat screed out of your system. We get that you hate Democrats but if you do a side by side statistical analysis of cities run by Democrats to cities run by Republicans you’ll find that Democratic cities compare favorably. Boston, Seattle, Portland, San Francisco are all fine places to live with low crimes rates and great economies. Of course there are counter examples on both sides, so perhaps whether a city is a great place to live has to do with factors other than having a Democrat as a mayor.

                      And yes, the chances of being killed in a mall shooting are pretty remote. So are the chances of being killed by a nuclear bomb or dying of typhus, but we still don’t allow private ownership of nuclear weapons, or employment in restaurants by people with typhus, and for good reasons. Sometimes the consequences of being unlucky are great enough to justify being legislatively proactive.

                      And (stage whisper): Nothing you’ve said proves that we know, or can know, what the framers would have thought would be the appropriate response to school and mall shootings had they lived to see them. You’re entitled to your opinion of course, but it is just your opinion.

                      You’re also entitled to your personal opinion that judges declare the Constitution doesn’t mean what it says. So long as there is textual support for their holdings, it’s within the boundaries of acceptable. I don’t disagree with you, by the way, that judges should not actually re-write the Constitution; where we disagree is that I think the intentions of the framers are largely irrelevant to that analysis.

                      The ERA had broad popular support. It still failed. It was killed by a handful of mostly Southern state legislators; you can probably count on your fingers and toes the people who actually kept it from being ratified.

                    2. […] not empowering judges to declare that the Constitution doesn’t mean what it says.

                      So give up Incorporation. The entire reason it’s worth capitilizing is because it’s, at best, logically implied by the 14th Amendment, but not actually in the 14th Amendment, and so instead of being part of the text is it’s own legal theory about what it means (in opposition to what it says).

                      And let’s not forget all the conservatives who think the 9th and 10th Amendments are dead letters, right up until it’s their ox being gored, then suddenly they’re like “well clearly it’s here! for reasons that weren’t obvious until it was my ox being gored!”

                      Face it. Y’all love re-interpreting the Constitution as much as anyone else. You just have a fetish for claiming you aren’t, and that the founders just happened to mean what you want them to have meant.

        2. We do in fact know what the Founders thought about having “military grade super weapons” in private hands. They were all for it. At the time of the Founding, private citizens could and did own every weapon of war up to and including fully-armed ships of the line. And if you ever read a description of the bombardment of a town, you’ll find out that “killing a dozen schoolchildren in less than a minute” is pretty minor as historical atrocities go.

    2. “would the framers have thought” — why does that matter? The Framers were not _our_ elected representatives; they had no mandate to agree to anything on _our_ behalf. What matters is what _we_ thought when we read what they wrote and agreed to live by it.

    3. What would the framers have thought about Internet porn?

      Best case scenario, they would have said it’s a state issue and been OK with states banning it. Remember: the First Amendment did not restrict states when it was first adopted.

      Or electronic surveillance?

      Probably against.

      Or private ownership of large magazine weapons that can kill a dozen schoolchildren in less than a minute?

      They were from a time when private ownership of canons and warships was permitted, so I think this is another easy one.

      On the other hand, I think I have a pretty good idea what the framers would have thought about a Supreme Court that includes women and blacks.

      Yep. One of my frequent questions regarding “originalism” and such is why should folks who would have been disenfranchised in 1792 America think it’s such a great idea to try and go back to it.

  4. I think you’re seriously downplaying the extent to which we understand their thinking. It’s not like they were shrinking violets about expressing themselves.

    The founding fathers barely agreed on the time of the day at any given moment. They may of voted in favor of something but not all for the same reasons.

    It’s actually the government run school system they wouldn’t have anticipated

    Many of the founding fathers were staunch supporters of public education – especially Adams and Franklin.

    If nothing else – your response proves Krychek_2 point.

    1. Well, they were certainly in favor of an educated public, which is not quite the same thing as universal mandatory education. The first compulsory education law in America wasn’t until the 1850’s.

      Jefferson was very much the exception in calling for a public school system, but even he thought compulsory education would be an outrage.

      1. Yes, it’s true that Jefferson was in favor of a public school system, but given his actions on other demands for federal funding (of infrastructure like canals and roads, for example) I think he would be shocked by a federal department of education.

        1. On the basis that it wasn’t a federal responsibility.

          1. Exactly.

  5. I wonder if there will be some Conspiracy commentary on the FISA court’s selection of a Mr. Kris to oversee the FISA reforms at the FBI?

    Kris is famous for his vehement denials that there were any FISA abuses by the FBI in the first place, long after they were public knowledge. It seems clear the FISA court doesn’t want reform, they just want a whitewash.

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