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Bench Memos

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Duelling Presumptions



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My last posting ended by taking a rather different view than does Robert Alt of the Court’s recent rulings on commerce and sovereign immunity. Now I’ll tackle our disagreements more directly.

Robert claims to embrace the idea of “coordinate branch construction” of the Constitution, and he cites some fairly uncontroversial instances of the nonjudicial branches reasoning about, and asserting, their own independent view of the Constitution’s meaning. But he insists that “[c]oordinate branch construction does not equal the political question doctrine,” and he holds that “unless the Constitution clearly reserves determination to a particular branch” other than the judiciary, then ultimately the Court has the right and duty to correct the other branches’ transgressions against the Constitution–with a final authority that cannot be gainsaid short of a constitutional amendment, I take him to be saying (if he isn’t saying that, I’d be glad to stand corrected).

Yet without the “political question doctrine,” there isn’t really much left of “coordinate branch construction,” if there is any crack through with a constitutional issue can enter a courthouse door. More importantly, when Robert insists that everything under the Constitution is the Court’s proper business unless it is “clearly reserve[d]” to another branch, I wonder what would make it clear enough for him. Does he wish for a “textually demonstrable constitutional commitment” of an issue to one of the political branches? Then he has adopted the jurisprudence of William Brennan (the last quote is from his 1962 opinion in Baker v. Carr), not that of John Marshall.

In any case, I would reverse the presumption. In light of the absence of any plain textual authorization of all-purpose “judicial review” (as Mark Levin has pointed out), we should presume that no constitutional issue is the business of the Supreme Court unless it can be demonstrated to be so. So far, I haven’t seen a demonstration (by the Court or anyone else) that the scope of the commerce power is to be policed by courts of law.

More momentarily.



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