Reddit reviews America's Constitution: A Biography
We found 8 Reddit comments about America's Constitution: A Biography. Here are the top ones, ranked by their Reddit score.
Random House Trade
Reddit reviews America's Constitution: A BiographyWe found 8 Reddit comments about America's Constitution: A Biography. Here are the top ones, ranked by their Reddit score.
Subscribe to:
Podcasts:
I try to make it a priority to learn something new and relevant every day. This means I am on SSRN a lot looking for white papers and at least one (but usually two) non-fiction/policy books in my monthly pipeline. Currently:
I am almost always listening to a podcast unless it's rude.
Except that the Court expressly held otherwise in Heller, holding that "militia" at the time meant simply all adult males capable of bearing arms (an argument btw which i first heard from a liberal in a book I highly recommend: https://www.amazon.com/Americas-Constitution-Akhil-Reed-Amar/dp/0812972724 )
American democracy's pretty well documented.
See, e.g., here, here, here, here, here, here, and, say, here.
I have to push you on some points on the Supreme Court matter.
First, keep in mind that the Supreme Court, in its first years, was NOT a prestigious institution. John Jay retired as the first Chief Justice to serve as the governor of New York; my Federal Courts professor liked to remind us that at least one framer declined to sit on the Supreme Court and, instead, took a job on a state high court. (I can't recall who that is just now.) The Court was not a prestigious appointment until Marshall, to whom we'll return momentarily.
I think you overstate Jay's role in coming to the conclusion that the Supreme Court cannot render advisory opinions. This question was in fact debated at the Constitutional convention with Randolph (and Madison) supporting the concept of a Council of Revision, which would square legislative acts with the Constitution before their enactment into law. This would have removed the current Article III's requirement that there be a "case or controversy" prior to the Supreme Court taking jurisdiction, and therefore, amounted to the issuance of advisory opinions on each and every congressional act. Even before that, the delegates of Massachusetts had proposed a draft that included an advisory opinion power for the Supreme Court -- something already extant in Massachusetts' own court. The measure failed. (Source: Hart & Wechsler) Note, too, that the advisory opinion was known at common law, but falling into disuse by the time of 1787.
When Jay issued his letters counselling against advisory opinions, then, he was repeating an issue that the Constitutional Convention had actually settled. Perhaps it was novel in that Jay first applied the notion that the convention records comprised significant "legislative history," but this was settled.
You also misunderstand the effect of Attorney General opinions. Critically, they bind no-one other than the Attorney General, and then only because the AG doesn't like to reverse itself, and so, won't prosecute someone for an act they have previously decided was legal. Consider AG opinions to be based in auctoritas rather than potestas, to use the Augustan formulation. It is no defense, if an executive officer is sued by a private litigant, that the officer's acts were undertaken at the advice of the Attorney General.
Moving on to Marshall -- and this has been a focus of debate for the entire length of the Republic, and before -- the prevailing view is that the judicial review power is both heavily implied by the constitutional structure, and well-documented at the Convention. Though the power was never exactly debated at the Convention, it was discussed, and incorporated into Federalist 78. It's really hard to argue that the Federalist Papers did not represent the will of the Framers. Query then whether Marshall's decision in Marbury was a power grab, or bold only in that it gave form to an as-of-yet-formless principle.
Marshall's effect on the Commerce Clause is more contentious. But the newer, shinier view is that of Akhil Amar, that "Commerce" at the founding was intended to encompass exactly what Marshall made it.
tl;dr: All of the above is to dispute only that Marshall and the early Court invented concepts wholesale. They set to law what was destined to be law, and chose their battles so that the principles came through clearly. But the principles they were effectuating had, to some extent, already been decided -- by them -- at the Convention.
Oh, and as to OP's main point, Washington definitely made many choices with an eye towards setting (or avoiding) precedent. He pointedly did not wish to die in office, for one, for fear that future presidents would feel obligated to (or try to) seek re-election until death. Recall there were no term limits in 1789.
Great rebuttal. Nice to get a little dirty. I guess I'll respectfully push back on a couple points you raised. As part of getting a specialization certificate in this stuff, I actually did have to plow through a few constitutional history courses and read primary sources from founding fathers. Actually, if you get really jazzed about this stuff I highly recommend Yale constitutional law scholar and historian Bruce Ackerman's "We the People" books. He makes some really interesting arguments I'd never encountered anywhere else that actually make a lot of sense. Although Ackerman's colleague, Akhil Amar probably disagrees and has a super interesting book on this subject too that's an incredible read.
So what you've written raises a ton of issues, most are very difficult if not impossible to every truly ascertain, and I'll try to address as many as possible. But I think my global point relates to this: none of this stuff is clear. You've cited a lot of things as canon but the reality is that there's pretty credible evidence for each side of the debate. So I'd at least try to temper the concrete, assured tone in lieu of a more passive, abstract, and conditional tone to reflect just how incredibly vague the historical trends of constitutional thought have evolved over the last 200+ years.
I guess, what I'm trying to say is: it's complicated. And if I have one quibble with your post it's that you make everything seem so definite. I don't think any truly objective scholar of constitutional history worth their salt and reputation would ever come down unequivocally on one side or the other.
(1) First, trying to pin down original intent of the EC by the Founding Fathers is entirely a fools errand. As I'm sure you know, our best understanding of the minds of our Founding Fathers comes from Madison's notes which, having had the pleasure of slogging through every last damn word in them, tend to be scattershot, confusing, and dense. It's not always clear what the hell is happening, but they're the best we've got.
What we know about the EC during the debates is pretty scant. Frankly, the Bill of Rights was never supposed to be a thing. Madison, as well as many of his Federalist cohorts, was of the opinion that enumerating individual rights was the worst decision ever. It meant pigeonholing rights instead of leaving them subject to open interpretation. So actually writing them down would constrict individual rights instead of giving us more. The only reason we have a BoR is because Anti-Federalists were threatening to gum up the works and keep passage of the Constitution from moving forward in the few states the Fathers had a prayer of getting ratified in.
So why's this explication relevant? Because a lot of people on both sides of this shouting match about the EC tout the language and subsequent interpretations as being gospel proof of their side. But in reality, the damn thing was never supposed to be there in the first place. It came down to just a last
minutesecond compromise that we have it. To me--for what it's worth--it seems silly for either side to get so worked up on a historical anomaly/technicality. But that's just me.(2) What did the Founders really think of the EC though? Well again, hard to say. We really don't know that much. Quite honestly, the Founders were more concerned with some of the original drafts of the EC that used the word "national religion" because of the word "national." Both Federalists and Anti-Federalists were pissy about Europe sticking its nose in the Americans' business. And using a word like "national" felt too domineering and "European." That's what the real and biggest fight was over: what do we even call the federal government?
Madison's few clue on the issue comes from this passage,
>Mr. Madison said, he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience. (http://press-pubs.uchicago.edu/founders/documents/amendI_religions53.html)
Many scholars read this passage as an indication that Madison didn't want the federal government to compel any person in the US to be compelled to worship any religion they didn't want to. Actually, this kind of philosophical thinking seems to comport fairly well with Sandra Day O'Connor's Endorsement Test articulated in Lynch v. Donnelly that's still widely used today (http://en.wikipedia.org/wiki/Endorsement_test).
So it seems to me unfair to characterize the Founders' attitudes as being largely ignored today when one of the Supreme Court's current tests for finding an EC violation seems to be taken right out of the mouth of our best primary source documentarian Founder himself. Sure they're not entirely the same and there's grey area on each side, but to be so stalwart seems a little disingenuous and actively ignoring an objective, measured look at the historical context, no?
(3) And finally, I'll skip the unpleasant counter-arguments where I throw anti-religious Founder quotes at you, and you rebut with religious ones ad nauseum until we're sick and tired of Googling and mining for quotes to bolster our sides. That just sounds awful.
Instead, I'll just pose a simple question: let's say I give you the full benefit of the doubt (I don't, but hypothetically) and say that the historical background is unequivocally clear, without any grey area that the Founders wanted to only prohibit a national/state religion, but they still haven't clearly articulated that in the EC, but the intent exists nonetheless. Well, why should we be bound to their intent on an unclear Clause over 200 years later?
This definitely brings us into the weeds of originalism vs. social citizenship interpretations of the Constitution. I guess I'll play my hand and say I'm a mix of the original public meaning version of originalism with the evolving social citizenship interpretation. But my point still remains: even if I concede all your historical points, why should that bind us today?
I mean, just as a primer, here are some of the main problems with tethering ourselves to the past in an originalist sense:
This last problem touches on the problem in Bolling v. Sharpe. Basically, if you want to take your argument about what the Founders believed seriously (again, assuming that all your original points are conceded), then you have to apply your principle to the entire document. And if you do this, the concept of "Separate but Equal" comports entirely with the Founders' constitutional principles. Said less pedantically, if you're being consistent in your theory, then there's almost no wiggle room to get out of striking down separate but equal laws without being slightly hypocritical.
So in conclusion, I guess I just don't find your historical and interpretative evidence/philosophies compelling enough to settle the matter with the sureness that you seem to. Again, you may be right, but the current evidence and theory--in my evaluation--is much more nuanced, nebulous and complicated for my taste to be so sure.
tl;dr: the actual evidence is too uncertain and unreliable to be so unequivocal in your characterization of constitutional history and interpretation.
https://www.amazon.com/gp/aw/d/0812972724/ref=mp_s_a_1_1?ie=UTF8&qid=1526744485&sr=8-1&pi=AC_SX236_SY340_FMwebp_QL65&keywords=america%27s+constitution+a+biography&dpPl=1&dpID=51YZrTSyeLL&ref=plSrch
https://smile.amazon.com/Americas-Constitution-Akhil-Reed-Amar/dp/0812972724
I'd suggest America's Constitution: A Biography.
No single branch of the government has a monopoly on enforcing the constitution. In fact, it's an important part of our system of checks and balances that each branch of the government has a means of upholding the constitution. The judiciary can strike down laws it finds to be unconstitutional; the legislature can repeal laws in finds to be unconstitutional; and the executive can not enforce laws they find to be unconstitutional.