No Kings Act and Judicial Supremacy
Was Marbury v. Madison a mistake?
Harvard Law professors Nikolas Bowie and Daphna Renan take to the op-ed pages of the NYT to proclaim, “The Supreme Court Has Grown Too Powerful. Congress Must Intervene.“
The Supreme Court’s stunning decision this summer interpreting the Constitution to give presidents broad immunity from federal criminal laws is only the latest of its many opinions undermining Congress’s efforts to protect constitutional democracy, from its 19th-century invalidation of federal civil rights laws to its more recent curbing of the Voting Rights Act.
This is a curious framing. The premise of Constitutional democracy is that there are limits to what elected policymakers may do. Going back to at least the 1803 case Marbury vs. Madison (and arguably long before that), it has been the province of the courts to judge whether legislation and executive actions passed Constitutional muster.
Today even Americans who decry these opinions largely accept the idea that the court should have the final say on what the Constitution means. But this idea of judicial supremacy has long been challenged. And the court’s immunity decision has set in motion an important effort in Congress to reassert the power of the legislative branch to reject the court’s interpretations of the Constitution and enact its own.
Congress has always had the power to overturn the Supreme Court on matters of statutory interpretation. But if it can overturn decisions on what the Constitution permits by mere legislation, then judicial review is all but meaningless.
“Make no mistake about it: We have a very strong argument that Congress by statute can undo what the Supreme Court does,” Chuck Schumer, the Senate majority leader, said recently as he announced the introduction of the No Kings Act. The measure declares that it is Congress’s constitutional judgment that no president is immune from the criminal laws of the United States. It would strip the Supreme Court of jurisdiction to declare the No Kings Act unconstitutional. Any criminal actions against a president would be left in the hands of the lower federal courts. And these courts would be required to adopt a presumption that the No Kings Act is constitutional.
While I’m more sympathetic to the idea of presidential immunity than most of our commentariat, I agree that SCOTUS has overreached on a good number of decisions of late—including on the scope of that ruling. Then again, I’ve thought that at various points of time over the roughly four decades that I’ve been paying attention.
Indeed, I’ve come to agree that the courts simply have too much power. Given that, practically speaking, the Constitution means whatever at least five Justices think it does at any given moment, they’re effectively a sitting Constitutional Convention. That was never the intent of the Framers nor even of John Marshall. But, two hundred twenty years in, it seems obvious that we’d need a Constitutional amendment to restructure the system.
It might seem unusual for Congress to instruct federal courts how to interpret the Constitution. But the No Kings Act follows an admirable tradition, dating back to the earliest years of the United States, in which Congress has invoked its constitutional authority to ensure that the fundamental law of our democracy is determined by the people’s elected representatives rather than a handful of lifetime appointees accountable to no one.
Should the No Kings Act pass, it would take its place among a constellation of occasions when Congress protected its more democratic interpretation of the Constitution.
Again, “democratic” and “Constitution” are in tension. By definition, the Constitution limits what majorities are allowed to impose on society through the force of state power.
As Congress considers the No Kings Act, it should not just embrace the presumption that its laws are constitutional but also institutionalize it.
The presumption that laws passed by Congress are constitutional is an old idea, one the court itself once avowed. Even after 1803, when the court took the position in Marbury v. Madison that it had the power to disagree with Congress about the constitutionality of federal legislation, the court spent the next five decades deferring to Congress about the meaning of the Constitution. It was not until 1857 that the court attempted to override Congress’s constitutional judgment in a case, Dred Scott v. Sandford, that rejected Congress’s power to limit the spread of slavery. The court’s claim of supremacy inspired Abraham Lincoln to object that “if the policy of the government, upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court,” then “the people will have ceased to be their own rulers.”
I have often cited the half-century gap between Marbury and Scott as evidence that the court was shrewd in accumulating power. Indeed, Marbury was perfect in that regard: It invalidated a portion of an Act of Congress, ruled against the sitting President, and compelled neither to do anything. Thus, it asserted great power to itself in a way that would not be met with immediate challenge.
At the same time, the basic principles of Marbury — “Congress does not have the power to pass laws that override the Constitution” and “It is emphatically the province and duty of the Judicial Department to say what the law is” — have been largely unchallenged to this day. Indeed, the very question Bowie and Renan raise was at stake in that case: “The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.” The unanimous opinion was that it was decidedly the former.
As the abolitionist Frederick Douglass explained, the presumption that federal laws are constitutional reflects the fact that a bill becomes law only after it has been debated and passed by Congress and considered and signed by the president — all of whom, like judges, take an oath to support the Constitution. As the national legislature makes national policy, it necessarily determines what kinds of laws are constitutionally appropriate. Some might disagree about the constitutionality of a law, but regular elections give voters a say among competing interpretations. Like many of his contemporaries, Douglass argued that any judge who attempts to defy such a statute should have “strong, irresistible and absolutely conclusive” reasons for doing so.
Here, I emphatically agree. Judges should presume the good faith of the elected branches and, given the significant hurdles that passing laws requires, they ought to be presumed Constitutional. (We apply this principle in the Executive branch routinely: orders from the President and his agents are presumed legal unless it’s glaringly obvious that they’re not.) The courts should be, well, judicious in overturning Acts of Congress.
This is, however, a very different thing than saying that, if the Court deems a law in violation of the Constitution, it must nonetheless be enforced if it can pass a second time. That may well be a perfectly valid system—it is essentially* the one used in the UK—but it’s not the one the Framers designed. If we wish to change to a new one, we should amend the Constitution.
In recent years, however, the court has seemed particularly uninterested in forbearance, as five or six justices routinely upend Congress’s longstanding interpretations of the Constitution. For example, nearly 50 years after Congress and the president first decided that the Voting Rights Act of 1965 was appropriate legislation and after several more Congresses, presidents and Supreme Court majorities agreed that the law was constitutional, five justices in 2013 invalidated a crucial provision of the law.
This is really a bad example. The VRA is both a means of enforcing the provisions of the 15th Amendment and very much in tension with the Equal Protection Clause of the 14th Amendment as well as the Doctrine of Equality of States. For decades, SCOTUS warned that the provision in question had an expiration date. While it’s debatable whether the time had come to strike it down, it’s certainly true that Jim Crow had been dead for a very long time when it happened.
Over 100 years after Congress and the president first determined that the integrity of federal elections required limiting the power of corporations to overwhelm voters by spending from their coffers, five justices in 2010 struck down Congress’s bipartisan campaign finance reform, ruling that the government may not ban political spending by corporations in candidate elections.
Which was very much in line with judicial rulings going back to at least 1976 (Buckley vs. Valeo). And, frankly, even without judicial interference, we’ve seen that attempt after attempt to regulate campaign finance going back to 1974 have been overwhelmed by the desire to put money into the system.
Though the court has declared itself supreme in constitutional interpretation, the only thing the Constitution explicitly allows the Supreme Court to do is exercise “the judicial power.” The Constitution does not define this phrase. Nor does anything about the phrase inherently give judges the power to review acts of Congress. In Britain, the same phrase has long referred to judges’ power to enforce, not second-guess, the laws passed by Parliament.
This argument was made by conservatives unhappy by liberal rulings for decades. I’ve made variations of it myself. But the legal scholarship into the origins of judicial review makes it clear that, while not explicitly mentioned in the text of the Constitution, it was simply presumed to be a fact by the Framers. It’s simply how the law as they knew it had always functioned.
While the Constitution leaves the Supreme Court’s power ambiguous, it empowers Congress to pass and the president to sign whatever laws they think are “necessary and proper for carrying into execution” all the powers vested by the Constitution in arms of government like the Supreme Court. The Constitution’s text envisioned that Congress might decide to create federal trial courts, empowering them to decide certain cases and controversies. It also envisioned that Congress might make “regulations” and “exceptions” to the Supreme Court’s appellate jurisdiction.
Congress has done all of that. It has always determined — and at times changed — the power of the Supreme Court and the lower federal courts to decide constitutional questions.
Indeed, doing so was among the very first acts of the very first Congress: the Judiciary Act of 1789. But that Act’s granting of original jurisdiction to the Supreme Court a matter that was not granted in the text of the Constitution was a deciding point in Marbury.
The very first Congress set up detailed rules for federal courts, telling them which cases they were allowed to decide, when and how they could reach those decisions and what kinds of orders they were allowed to issue. When Thomas Jefferson was worried that federal courts were too partisan, he signed laws passed by Congress that abolished circuit courts and effectively canceled the Supreme Court’s next term.
“Effectively” is doing a lot of work here. Congress rather clearly doesn’t have the authority to order the Supreme Court not to meet. But, yes, it has the power to create and thus abolish lower courts**, and doing so would certainly impact the Supreme Court’s caseload.
When the Dred Scott court said that Congress could not ban the spread of slavery in federal territories, Lincoln signed a law in 1862 that did just that. When it looked as though the post-Civil War court would try to nullify Congress’s Reconstruction-era attempt to create multiracial democracy in the South, Congress enacted a law that stripped the court of the power to review its statute. And when the court later refused to enforce federal laws that promoted a more just political economy and banned child labor, Congress and the president ultimately compelled the court to change its mind by threatening to rein in the court or increase the number of justices.
These are all different things. The 1862 law was clearly unconstitutional insofar as Dred Scot hadn’t been overturned by subsequent SCOTUS ruling or the 13th Amendment. Who would have sued to overturn it in the midst of the Civil War was unclear. Congress clearly doesn’t have the power to strip SCOTUS of the authority to hear cases and, indeed, the court subsequently overturned scads of Congressional Acts pursuant to Congress’ express power under the 14th Amendment to enforce equal protection. And threatening to pack the courts is a political act, not a matter of constitutional power of the courts.
The purpose of such legislation was not to evade the Constitution. To the contrary, it was to allow the people and their representatives to enforce their interpretation of the Constitution against a small group of judges who would defy it.
Here, we agree. To the extent the Court is broadly seen as acting in contravention of the Constitution, it loses legitimacy. And deference to its orders is purely a matter of reputation: it has essentially no power to enforce its rulings absent the belief that it is a legitimate interpreter of the Constitution and not a partisan actor. It’s what prevented Richard Nixon from simply telling a unanimous Supreme Court to go to hell when it ordered him to turn over the tapes. Instead, he complied and tendered his resignation.
Previous justices understood that their power comes from Congress and the public’s acceptance of how they exercise it. Shortly before Robert H. Jackson joined the Supreme Court in 1941, he testified before Congress to caution against judicial overreach. He observed that it is “a responsibility of Congress to see that the court is an instrumentality in the maintenance of a just and constitutional government and that it does not become an instrumentality for the defeat of constitutional government.”
Jackson was uneasy about the power the court had arrogated to itself after the Civil War to declare an act of Congress unconstitutional. Echoing Douglass, he wrote that if the court were to exercise such a power, it should do so exclusively in a clear case — what Jackson described as “a case in which the incompatibility of the statute with the provisions of the Constitution was beyond honest dispute.”
Again, this has been my longstanding position. But it’s ironic that it’s now being taken by liberals who had spent decades cheering on a Supreme Court that routinely overturned laws they didn’t like on absurdly thin Constitutional pretext.
The No Kings Act gestures at this standard with the requirement that courts adopt it when they interpret Congress’s command to treat the president as any other public official.
Aside from the fact that the President simply isn’t “any other public official” but the embodiment of what has become the most powerful of our three branches of government, it’s just not clear where Congress would derive the power to tell the Supreme Court how to do its job.
But as Congress debates the bill — and as future Congresses debate other laws to promote the general welfare — Congress should go further to institutionalize the idea that the court “not become an instrumentality for the defeat of constitutional government.”
This is, effectively, a shorthand for “make rulings we don’t like.” Almost any major Supreme Court decision will evoke outrage from some significant segment of society. If the idea is simply that the majority should be able to legislate as it pleases—provided it can overcome the already-extant antimajoritarian features of our system—then we should just do away with judicial review altogether rather than doing so on a piecemeal basis. We’re moving down that road with the filibuster, for example, but that’s something the Senate can do on its own. It’s pretty clear this one would require amending the Constitution.
To do so, Congress could pass a statute declaring that when asked to apply a federal law, a judge must do so unless the judge believes the law is unconstitutional beyond honest dispute.
Just as Congress will always think laws it passes are “necessary and proper” (see: Federalist 78), a Supreme Court Justice declaring a law unconstitutional will always think he’s doing so honestly.
To ensure there is no honest dispute, Congress could require the judge to enforce the law unless the Supreme Court certifies by a supermajority or unanimous vote that there are no reasonable grounds to defend it. In this way, Congress would require the justices to show, by their votes, that the incompatibility of the law with the Constitution is beyond honest dispute.
While I would love to go back to the days of unanimous rulings—and thus modestly written opinions—on the most contentious issues, I don’t see where Congress would get this authority.
There are other approaches to reconciling the role of the court with representative democracy — from allowing Congress to override specific constitutional rulings to eliminating constitutional review of congressional legislation more generally. Many of these have been proposed across American history and imposed by other Western democracies like Canada and Britain. The No Kings Act would be no panacea. But it would be a start.
Liberals would be happy with these provisions given a conservative—arguably radical–majority on the Court. But there are currently three Justices (Thomas, Alito, and Sotomayor) over 70 and one (Chief Justice Roberts) just shy of it. It’s conceivable that a President Harris with a Democratic Senate could replace three of them in her first term and have a young, Democratic-majority Court by the end of her second. And liberals would love to have that bulwark against an eventual Republican government.
Judicial review is so deeply engrained in our system of governance that, while I’ve spent considerable timing thinking about the norms that ought to apply to it and ways to reform it to achieve those norms, it has never really occurred to me to do away with it altogether. Doing so would be incredibly difficult, given the barriers to amending the Constitution. But I’m certainly open to the idea.
Interestingly—if perhaps not surprisingly—Bowie and Renan want to retain judicial review of state legislators.
Importantly, statutes protecting federal law would preserve the court’s ability to check state laws that defy federal constitutional commitments, as the court did in Brown v. Board of Education when it enforced a federal statute to find racial segregation by states unconstitutional. While the court’s defiance of laws enacted by Congress and the president puts an unelected tribunal at the top of our democracy, its enforcement of federal law secures national authority against state nullification.
For this reason, members of the civil rights bar, the labor movement, Congress, the judiciary and the academy who have historically opposed the court’s supremacy over Congress have often supported federal laws that invite courts to review state actions.
While, on the surface, this seems to be about the probability of outcomes they like rather than about Constitutional principles, it is certainly true that the states have a history of flouting Federal law and the US Constitution. But it’s interesting to prefer democracy over judicial supremacy in the one instance and vice versa in another.
*It’s complicated, in that there’s essentially no judicial review for Acts of Parliament but the House of Lords performs an analogous function. But, ultimately, the House of Commons will prevail if they wish to override the objections of the upper house.
**Presumably, the impacted Article III judges would still hold their positions for life. What that would entail absent courts is unclear.
I actually don’t think that the tension is the constitution v. democracy, per se. As I often note, democracy does not mean, anywhere (not even the UK, which you note and comes closer than most systems) unfettered majority rule.
But democracy does dictate that at some point that the general, albeit not specific in all cases, direction of government does conform to the will of the people. Granting that that is hard to discern, if there is an enduring majority on a matter (say, gun control or reproductive rights) and the Court is in opposition to that enduring majority, something is out of alignment.
The problem is not, ultimately, the Court as much as it is the distortions of public sentiment created by the Senate and the Electoral College (which, in combination, give us the judiciary).
This is made worse by the fact that as a strategic choice we get judges chosen specifically to serve multi-decades and is then reinforced by the random exigencies of when people end up dying.
If this was just a system wherein the Court is not as responsive to majority sentiment in the heat of the moment but were otherwise operating on some lofty understanding of the constitutional order, I would be less concerned than I am. But this is not the case. Not only do I think that most judicial interpretation philosophies are really not as intellectual rigorous as presented, I think that they are mostly rationalizations for producing preferred outcomes.
These are deep problems and I think are far more than just liberals or conservatives being upset in the moment over a given set of rulings.
It may be that the judicial branch needs “adjusting” as was the executive and the legislative before the formation of the USA, but it will come out of another English Civil War, of which our Revolution, was an iteration. The sovereign in the US is the Constitution, not the government, the President, Congress or the Supreme Court. Usurp the Constitution in the eyes of the People and only violence will remain. And while many believe the Civil War resolved the question of whether states can leave the Union, that only applies while enough states remain to impose upon the secessionists.
One additional thought: while I agree that there is a need for a body to be able to judge the constitutionality of a given law or process, I am not especially convinced that the Court is the Keeper of Constitutional Knowledge that it pretends to be (and is often described).
A system of fixed terms that rotate in a way that is better adapted to the evolving public sentiment would be an improvement, as would guaranteeing a certain number of appoints by each president be a corrective to some of these problems (along the lines of the Fed model).
@JKB:
The sovereign in the US the citizenry, not the constitution.
@JKB: A serious, if maybe slightly snarky question: have you read any books from, say, the late 20th Century onward?
The American idea of a good government is just very austere. We’ve basically said there’s no wisdom outside of making you sure don’t go too far. That’s it. Everything else represents prudence. Just call balls and strikes forever, and crush the activist within you that thinks the EPA can regulate carbon.
It’s backed by people who are very strange, and more deeply wound up about processes used to deal with modern life than they are the thought of a guy running for President who tried to overturn the last election. It only makes sense when you think of the end product, which is like Project 2025 staffed by incels and nazis. But what sense does that make to anybody, even the people paying for it?
@Steven L. Taylor:
But, for example, large majorities in the South, at least, supported Jim Crow despite the plain language of the 14th and 15th Amendments. The Constitution is supposed to prevail over the will of majorities.
More recently, the majority sentiment in the wake of the 9/11 attacks yielded some laws and executive actions that were plainly in violation of Constitutional provisions. It’s up to the courts to safeguard them.
With respect to guns and abortion and the Constitution, I would argue one is explicitly mentioned in the document, with a rather healthy debate as to what it means in modern contexts, and the latter was a creation of SCOTUS.
Unfortunately, I’ve increasingly come to this view myself. I don’t know that it was always that way, as there are clear instances of Justices voting against their preferred party/policy outcomes over many decades. The current Court, though, certainly seems to manage to arrive at an outcome aligned with the interests of the GOP most of the time.
In the past, I would have agreed for the most part. But I find the way the DC case ruling played out was way too political to believe that the ruling wasn’t just another in a line of political moves.
1. Don’t take up the case on immediate appeal.
2. Don’t hear it until the last minute possible.
3. Don’t rule until the last minute possible.
4. Do everything to make the Executive immune while still maintaining a thread of king-making deniability. And I am not even sure they cared about the deniability as much as getting Barrett on board (see footnote 3 of the ruling).
@BugManDan: 5. Leave everything unclear, guaranteeing Trump can file appeals until past the election.
@James Joyner:
Rather plainly there are lines wherein human rights have to be protected. That does not mean that basic public policy ought to be set by the minority.
I would further add the part of the reason Jim Crow prevailed in the South was because the Court allowed it by shutting down civil rights legislation in the immediate aftermath of the Civil War and that the filibuster was used in the Senate that represented a minority of the country in allowed Jim Crow to continue.
@James Joyner:
I think in many was it was ever thus (a glaring example is Dred Scott). First, we pay more attention to the dramatic cases than otherwise, which makes cases of partisan reversal more likely to be in our consciousness. Second, the parties are sorted in the way that changes the calculation. It has changed politics in ways I don’t think are fully acknowledged–especially when retroactive examples are used.
@James Joyner:
Did they? Or do you (unconsciously) write out of existence the significant number of blacks in the south who very much did not support Jim Crow? I don’t doubt that a majority of the population in the south supported Jim Crow, but (especially in states like Mississippi where blacks made of 45% or so of the population and at least some whites didn’t approve) I question whether that majority was as large as we often assume.
This point was first driven home to me by “A Quick Word on Gettysburg,” a piece Ta-Nehisi Coates published in The Atlantic in 2011 where he pointed out that when Faulkner, writing about Pickett’s charge, reported that “For every Southern boy fourteen years old, not once but whenever he wants it, there is the instant when it’s still not yet two o’clock on that July afternoon in 1863,” he was writing only about white boys. I was far too old for that to have been the first time for me to have considered the fact that most of the history I had learned about the south, not just from my much-loved but racist southern grandfather but also in school, had simply ignored the black south, assuming that those people neither had nor deserved agency, but there you have it.
This didn’t just fall out of the sky as an inevitable consequence of institutional design. The Kochtopus, for lack of a better term, set out in the 80s to create the Federalist Society to select and groom potential judges and get them appointed. They also created “originalism”, a judicial philosophy enshrining the elitist attitudes of the Founders and thereby designed to produce conservative outcomes.
And the rot goes back further, at least to the 60s and the birth of “Law and Economics”, a philosophy of judicial activism encouraging judges to make decisions substituting their poor understanding of economics for the legislatures’ political processes. A poor understanding subject to molding by paid attendance at numerous symposia. Which philosophy basically destroyed anti-trust law, turning it into what Robert Bork’s students called his course, Pro-Trust Law.
We’re seeing the results of a lot of money being spent to subvert the judiciary and the law. It’s not coincidence that much of the effort has gone into removing any barrier to the flow of money into politics.
@Steven L. Taylor:
I thought this potential remediation merited repeating for emphasis.
Ron Wyden, Democrat of Oregon, has introduced SCOTUS reforms that include this idea among several others. We’d need a Democratic trifecta to have this go anywhere.
@gVOR10:
I am reading this to mean that the Originalists are actually deciding the way the founders would have. If this was the case, I think that it would at least be defensible. Instead, they claim that, while ignoring anything that they don’t agree with from the founders – see recipes for abortion “drugs’ in Poor Richard’s Almanac and gun control laws in place at the time of the constitution and after that were not challenged by the framers or anyone until their grandkids were dead.
@gVOR10: Even if no appeal is filed the trial will not finish (or maybe even start) before the election, because of the SC delays.
I do not believe that originalism is defensible. It is bunk.
Let us imagine that some combination of time travel and the Vulcan mind-meld were possible, and the members of the Supreme Court could actually meet with the Founding Fathers to seek their counsel on an issue pending before the Supreme Court. Let’s say the issue was whether the First Amendment prevents a State from regulating violent video games. The Court-critters would solemnly bow, heap praise on the assembled sub-committee of the Founders (you just know the Founders would appoint a committee rather than gathering as a whole), and then gravely importune, “Does the State of California have the authority to regulate violent video games, or does the First Amendment prohibit such regulation?” I suspect the Founders’ sub-committee would ask three questions in response:
First – “What is California?”
Second – “What is a video game?”
And third – “Why on earth are you asking us? We’ve been dead for a long time. Can’t you figure this out for yourselves?”
On a practical note, political parties have learned how to game the system to force their policy preferences through the Supreme Court — strategic retirements, refusing to hold a vote on Garland, demanding ideological purity through the Heritage Foundation, etc. I’d say that the Republicans learned by doing this, and the Democrats learned by watching, but a lot of the reason we are in this mess is RBG wanted to be replaced by the first woman President.
On a more philosophical level, what is the value of a Supreme Court if it cannot be a check on Congress when Congress oversteps its bounds?
Aside from Supreme Court reform that makes the court large enough that one person being replaced isn’t likely to radically change the way the constitution is interpreted, I’d want to require a supermajority to hold that laws are unconstitutional. Make the court a lot more small-c conservative.
I don’t entirely recommend Erwin Chemerinsky’s Worse Than Nothing: The Dangerous Fallacy of Originalism. While he does critique originalism thoroughly, he doesn’t quite establish or favor a firm alternative. the other objection is that he sometimes resorts to originalism to take down originalist positions.
Chemerinsky does make a really good point when he asks “whose original intent.” He reminds us there were a number of delegates at the convention that wrote the constitutions, and beyond that a much larger number of state legislators who ratified it. So whose intent do we take?
@DAllenABQ:
It’s one of those new states the document you created allow us to add.
It’s a play. Give or take. A melodrama where people are invited to boo and hiss at the villain.
And shoot at them with fake guns.
That’s a good question, but if we are able to wrench them from their graves and force them to speak, I’d be all for it.
Because the Founders would reveal themselves to not be the enlightened figures of the past, in some glorious reimagining of America as grand design that is now a fallen nation that needs to be restored. They would reveal themselves to be filthy racists and sexists, boorish shitheads of low morals, haggling over the structure and rights granted rather than starting with a wondrous design.
They would show, by their very shitty nature, that we are a country whose greatest days are in the future, not the past.
It would put an end to originalism.
(But, failing that resurrection technology, I think we should pretend that they were enlightened people who really meant that everyone should be equal, who didn’t live up to their ideals and challenged us to do so)
@Kathy: The Reconstruction amendments also radically changed the relationship between states and the federal government, and set forth a much more robust notion of equality.
But we seldom see the Reconstruction era congress referenced by originalists. Did they debate other changes? Did they believe the constitution already granted X so they didn’t bother? Given the opportunity to examine our current situation, would they be ok with how their beautiful works were being interpreted?
Or should we defer to 17th century English magistrates who convicted people of witchcraft to determine issues like abortion, because of common law and originalism?
@Steven L. Taylor: “A serious, if maybe slightly snarky question: have you read any books from, say, the late 20th Century onward?”
I find it amusing that JKB has to turn to an unremembered book from 1907 in his attempt to describe the state of the nation today… considering that as much time has passed since its publication as had elapsed between that auspicious date and the founding of the Republic.
Surely nothing of significance has changed over the second half of the country’s lifespan.