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The Perennial Publius, part 34



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There are gems aplenty in Federalist No. 34, where Alexander Hamilton manages to touch on a remarkable range of arguments from a starting point in the apparently narrow issue of the concurrent taxing power of the federal government and the states.  He warns of “set[ting] up theory and supposition, against fact and reality.”  He condemns the “novel and absurd experiment in politics, of tying up the hands of government from offensive war, founded upon reasons of state.”  He more or less foresees the French Revolution a year and a half before the storming of the Bastille.

But perhaps we should glance at a passage that reminds us that for Hamilton, an energetic national government will also be a limited one, intruding on American civil society far less than the government we have become accustomed to in the last century:

“What are the chief sources of expence in every government? . . . The answer, plainly is, wars and rebellions—the support of those institutions which are necessary to guard the body politic, against these two most mortal diseases of society.  The expences arising from those institutions, which are relative to the mere domestic police of a state—to the support of its legislative, executive and judiciary departments, with their different appendages, and to the encouragement of agriculture and manufactures, (which will comprehend almost all the objects of state expenditure) are insignificant in comparison with those which relate to the national defence.”

By the standards of 1788, Alexander Hamilton was the “big government” guy in the argument.  Today, who knows where he’d be?  (Okay, maybe Rick Brookhiser knows!)  But it sure looks like he would regard the national government as bloated beyond its proper business, and maybe beyond its capacity to be effective at its proper business, when the national defense in wartime takes up less than half the national budget.

(For explanation of this recurring feature, see here.)

Tags: Garnett

Debating “Judicial Activism”



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Over at the Penn. Law Review’s “PENNumbra” site, they are hosting an online debate between me and Professor Kermit Roosevelt about Roosevelt’s new book, The Myth of Judicial Activism. Here’s the teaser:

“Judicial activism,” writes Professor Kermit Roosevelt, of Penn, has been employed as an “excessive and unhelpful” charge—one “essentially empty of content.” As a substitute, Roosevelt reviews here the framework for analysis of Supreme Court opinions that receives fuller treatment in his recent book, The Myth of Judicial Activism. Professor Richard W. Garnett, of Notre Dame, is willing to go along with “much, though not all,” of Roosevelt’s position.

Ultimately, Garnett suggests “that ‘judicial activism’ might be salvaged, and used as a way of identfying and criticizing decisions . . . that fail to demonstrate th[e] virtue” of constitutional “humility.”

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Partial Birth Abortion and Stare Decisis: What Would Lincoln Do?



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Here is an opinion piece, “What Would Lincoln Do?,” from the current issue of The Weekly Standard, which is adapted from the amicus curiae brief that Mike Paulsen (Minnesota) and I filed in the upcoming partial-birth-abortion cases.  Here is a bit:

For as long as Americans have known about the several thousand partial-birth abortions performed each year, they have–by comfortable and consistent margins–agreed with the late senator Daniel Patrick Moy nihan that “[the procedure] is infanticide, and one would be too many.” Nevertheless, the Supreme Court declared six years ago in Stenberg v. Carhart that Nebraska’s effort to ban this particular late-term abortion method violated the right to abortion that was manufactured in the 1973 Roe v. Wade case.

Congress responded with a ban of its own, one that was designed to satisfy the standards set out in Carhart. But this effort, the federal Partial-Birth Abortion Ban Act of 2003, has now been rejected by lower federal courts. The question before the Court now, in Gonzales v. Carhart and Gonzales v. Planned Parenthood, is whether the justices will permit us to regulate this procedure, which revolts Red and Blue America alike. . . .

In fact, the justices could probably uphold the federal ban without reversing the Stenberg decision. But they shouldn’t. The Court’s time and constitutional powers would be better spent, and the rule of law better served, if Stenberg were simply abandoned.

What about stare decisis, though? Don’t the editors at the Times have a point when they urge deference to precedent? Of course they do. It is eminently sensible for courts to stick with settled decisions, absent special and strong justification. But the doctrine of stare decisis, properly understood, is not an inexorable command of blind, unquestioning adherence to the most recently decided case. It is not, as Justice Frankfurter once put it, the “imprisonment of reason.” It is, instead, a principle of judicial policy, a flexible, practical idea that leaves plenty of room for discretion as to how it should be applied in any given set of circumstances. . . .

Contrary to the ruling in Stenberg, nothing in our constitutional text, history, tradition, or structure supports, let alone compels, the conclusion that the American people may not affirm our commitment to decency and human dignity by rejecting partial-birth abortion. Nor does the judicial policy of stare decisis shackle the Court to such a horribly wrong precedent–be it Stenberg or Dred Scott.

Tags: Garnett

Re: Dellinger and Judicial Supremacy



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I think that’s right, Ramesh.  One of the most striking aspects of Dellinger’s argument is when he suggests that the most defensible form of executive behavior is any “course of action [that] facilitates the court’s involvement” in supplying a presumptively definitive settlement of a disputed constitutional question.  Dellinger is terribly exercised by what he sees as the Bush administration’s “avoidance of judicial review.”  But of course a robust assertion of executive authority under the Constitution is under no obligation to submit constitutional questions to the judiciary.  Nor is it even obligatory for the executive (or the legislature) to heed all judicial pronouncements on the Constitution’s meaning.  Dellinger, conventionally, seems to think such obligations are inseparable from allegiance to the Constitution itself.

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