L S10 Con

Tom W. BellWriting, Reading, and Respecting a Constitution : 

Tom W. BellWriting, Reading, and Respecting a Constitution IHS Liberty & Society Seminar, Chapman University, June 21, 2010 Introduction I. Legal Models II. Legal Threats III. Legal Solutions Conclusion

I. Writing the Constitution : 

I. Writing the Constitution The U.S. Founders wrote a constitution creating a government of delegated, enumerated, and limited powers. Introduction I. Writing II. Reading III. Respecting Conclusion Tom W. Bell, Writing, Reading, and Respecting a Constitution, slide 2, IHS Liberty & Society Seminar, Chapman U., June 21, 2010 a. The "People" of the preamble willingly cede some portion of their alienable rights in order to "insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty . . . .” b. The federal government can properly exercise only those powers specifically enumerated in the constitution. c. Even delegated and enumerated powers cannot be exercised to their utmost; the federal government has only limited powers.

I. Writing the Constitution : 

I. Writing the Constitution 2. How the Constitution reflects these ideals Introduction I. Writing II. Reading III. Respecting Conclusion Tom W. Bell, Writing, Reading, and Respecting a Constitution, slide 3, IHS Liberty & Society Seminar, Chapman U., June 21, 2010 The very notion of a written constitution, one that federal officials must, per Art. VI, cl. 3, swear to support. Structural restraints such as separation of powers, checks and balances, and respect for federalism. The “general welfare” limitation in the Preamble and in Art. I, § 8, cl. 1. The enumerated powers of Congress in Art. I, § 8. The necessary and proper clause, Art. I, § 8, cl. 18. Express limits on Congress in Art. II, § 9. The Bill of Rights.

II. Reading the Constitution : 

II. Reading the Constitution Statist positivists have flipped delegation on its head, claiming that individual rights derive from State power. Modern jurisprudence for the most part accords the federal government plenary power, thus obliterating the principles of delegated, enumerated, and limited powers. Introduction I. Writing II. Reading III. Respecting Conclusion Tom W. Bell, Writing, Reading, and Respecting a Constitution, slide 4, IHS Liberty & Society Seminar, Chapman U., June 21, 2010

II. Reading the Constitution : 

II. Reading the Constitution 3. How should we interpret the Constitution? Introduction I. Writing II. Reading III. Respecting Conclusion Tom W. Bell, Writing, Reading, and Respecting a Constitution, slide 5, IHS Liberty & Society Seminar, Chapman U., June 21, 2010 Original Intent (i.e., we should interpret the Constitution to mean what it was originally intended to mean by those who wrote it). Original Meaning (i.e., we should interpret the Constitution to mean what it originally meant to those who ratified it). Contemporary Authority (i.e. as interpreted by the Supreme Court). d. Contemporary Common-sense (i.e., we should interpret the Constitution to mean what those now allegedly bound by it take it to mean).

II. Reading the Constitution : 

II. Reading the Constitution 4. What do classical liberals think? Introduction I. Writing II. Reading III. Respecting Conclusion Tom W. Bell, Writing, Reading, and Respecting a Constitution, slide 6, IHS Liberty & Society Seminar, Chapman U., June 21, 2010 Of the theories above, classical liberals generally favor original meaning. They appear to do so largely because it: 1) promotes stability and 2) implements the Framers’ libertarian views. Can we do better?

II. Reading the Constitution : 

II. Reading the Constitution The Constitution as Contract: Analogizing the Constitution to an agreement between political and private parties suggests that we should apply principles of contract law to its interpretation. Under that approach: Introduction I. Writing II. Reading III. Respecting Conclusion Tom W. Bell, Writing, Reading, and Respecting a Constitution, slide 7, IHS Liberty & Society Seminar, Chapman U., June 21, 2010 We look for the plain, present, public meaning; A non-waivable default rule of "good faith and fair dealing” applies; Objective meaning--not subjective intent--matters; The plain meaning of text trumps "course of performance" (i.e., precedent). and e. In cases of vagueness, the Constitution’s terms should be construed against political actors.

III. Respecting the Constitution : 

III. Respecting the Constitution 1. Classical liberals generally agree with what Barnett calls “the presumption of liberty.” Introduction I. Writing II. Reading III. Respecting Conclusion Tom W. Bell, Writing, Reading, and Respecting a Constitution, slide 8, IHS Liberty & Society Seminar, Chapman U., June 21, 2010 Barnett argues from the 9th Amendment and other proofs that the Constitution's protects unenumerated natural rights, putting “the burden on government to show that any interference with the exercise of the rights retained by the people is justified.” This presumption of liberty, because it helps to safeguard individual rights, helps (or would, if implemented, help) to make laws promulgated under the Constitution more legitimate. That approach relies solely on hypothetical consent. What about implied and express consent? Can we use them to evaluate the justifiability of a constitution?

III. Respecting the Constitution : 

III. Respecting the Constitution Introduction I. Writing II. Reading III. Respecting Conclusion Tom W. Bell, Writing, Reading, and Respecting a Constitution, slide 9, IHS Liberty & Society Seminar, Chapman U., June 21, 2010 Graduated Consent in Contract and Tort Law: Toward a Theory of Justification, 61 Case Western L. Rev. __ (2010) (forthcoming)

III. Respecting the Constitution : 

III. Respecting the Constitution 2. Towards a consensualist theory of justification. Introduction I. Writing II. Reading III. Respecting Conclusion Tom W. Bell, Writing, Reading, and Respecting a Constitution, slide 10, IHS Liberty & Society Seminar, Chapman U., June 21, 2010 Why value consent? For reasons: 1) transcendental; 2) deontological; and 3) consequentialist. A justification succeeds or fails only relative to a particular audience--not in the abstract. Ask of a justification, “With regard to whom?” We should evaluate justifications relative to how closely they come to winning express consent. Implied consent comes next. Last comes that staple of political theory, hypothetical consent. Ask of of a justification, “Compared to what?”

III. Respecting the Constitution : 

III. Respecting the Constitution Introduction I. Writing II. Reading III. Respecting Conclusion Tom W. Bell, Writing, Reading, and Respecting a Constitution, slide 11, IHS Liberty & Society Seminar, Chapman U., June 21, 2010 d. In sum the Constitution can be justified only with respect to: the parties to whom the Constitution’s justification would apply, and . . . alternative social compacts that come closer to, or fall farther from, winning their express consent.

III. Respecting the Constitution : 

III. Respecting the Constitution Introduction I. Writing II. Reading III. Respecting Conclusion Tom W. Bell, Writing, Reading, and Respecting a Constitution, slide 12, IHS Liberty & Society Seminar, Chapman U., June 21, 2010 e. Upgrading the U.S. Pledge of Allegiance

Conclusion : 

Conclusion Writing the Constitution: What did the Founders mean when they wrote the Constitution? Reading the Constitution: How should we interpret it? Respecting the Constitution: Does it bind us and, if so, why and to what extent? Introduction I. Writing II. Reading III. Respecting Conclusion Tom W. Bell, Writing, Reading, and Respecting a Constitution, slide 13, IHS Liberty & Society Seminar, Chapman U., June 21, 2010