The Judicial Bookshelf

A persistent reality of constitutional government in the United States from practically the beginning of the Republic has been the close link between the Constitution itself and the Supreme Court. Oddly, this link derives more from the Constitution's impact on the American political system than from what the Constitution itself actually says or contains. True, Article III included cases “arising under this Constitution” in describing the proper reach of the federal judicial power, and Article VI specified that “[t]his Constitution and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made under the authority of the United States, shall be the supreme Law of the Land … ” ¹ But the document not only provided scant means for enforcing that supremacy, but also failed even to specify how this “supreme Law” should be interpreted. It soon became clear, however that the task of interpretation would fall upon the Supreme Court, as illustrated by Chisholm v. Georgia. ² In the face of assurances made by Alexander Hamilton, James Madison, John Marshall, and others during the ratification debates in 1787–1788 that a state could not, without its consent, be made a defendant in the federal courts by a citizen of another state, ³ the Justices in 1793 construed the language in Article III conferring the federal judicial power in suits “Between a State and Citizens of another State” to encompass a suit brought by a South Carolinian against the State of Georgia. The uproar that ensued prompted swift ratification of the Eleventh Amendment, which reversed the Court's first excursion into the realm of constitutional interpretation. Despite this rebuke, it was only a short time before Chief Justice Marshall insisted that the judicial power encompassed the authority “to say what the law is.” ⁴ Thus, from the assumed role of expounding of the Constitution evolved the companion duty of guarding it as well.     

George Washington and the Building of the Constitution: Presidential Interpretation and Constitutional Development

As first president, George Washington was in an historically unique position to shape the forms and customs of the newly-ratified Federal Constitution. Unlike most previous accounts of his presidency that focus on Washington's symbolic contributions, this essay suggests that he had a very clear substantive constitutional agenda–an agenda which he consciously sought to shape. Specifically, Washington attempted to graft his own views of separation of powers, executive privilege, federalism, and the rule of law on to the Constitution. More of the “original formsrdquo; of the Constitution, then, bear Washington's distinctive mark than heretofore thought.     

Justice Breyer's Constitutional Jurisprudence: Active Liberty and Pragmatism

This analysis of Associate Justice Stephen Breyer's jurisprudence proceeds from his first book devoted to this subject, Active Liberty, a term he derives from Benjamin Constant and that Breyer defines as participatory democracy. Active Liberty and two subsequent books, as well as numerous off-bench writings, explain his jurisprudence of pragmatism, an approach he contrasts with originalism. This article addresses three general questions: Is Breyer's jurisprudence, founded on active liberty and pragmatism, fundamentally consistent with the design of the Constitution? Does his jurisprudence support his opinions in the constitutional decisions examined, a number of which are also treated in his books and articles? In a system that is designed to empower and to limit government, do his jurisprudence and judicial decisions constrain judges? This last question is especially important because of Breyer's thesis “that courts should take greater account of the Constitution's democratic nature when they interpret constitutional and statutory texts.” Breyer believes that his theory of active liberty ameliorates the democratic anomaly between a system “based on representation and accountability” that at the same time entrusts “final or near-final” authority to unelected judges who are insulated from public opinion.     

Was James Madison Ever for the Bill of Rights?

Abstract

This article revisits the question whether James Madison believed the Bill of Rights improved the Constitution. In particular, it asks whether the evidence supports the argument that Madison was persuaded that bills of rights serve an important educative function in constitutional government. It concludes that the evidence does not support this argument and suggests that Madison did not believe that the Bill of Rights improved the Constitution.     

Return of the Whig: Reviewing Historiographies of the Meaning of “Secular” in the Australian Colonial Public Instruction Acts

The term “secular” in the Colonial Australian public instruction acts was always controversial. Recent policy debates seek to draw a connection between its original intent and removing religion from schools, notably Marion Maddox's Taking God to School (2014), and Catherine Byrne's “Free, Compulsory and (Not) Secular” (2013). The issue resurfaced recently in a NSW Teachers' Federation Research Paper (Waight, 2022), and in Gross and Rutland's Special Religious Education in Australia and Its Value to Contemporary Society (2021). I propose that while this is a valid public policy issue, any originalist argument actually relies upon a singular historiographical argument, namely a “Whig” historiography. However, across historians the meaning of “secular” has actually been evaluated through four different historiographies: a “Whig” progress narrative; economic materialism; critical theory; and a religious/nationalist approach. Maddox, Byrne and Waight's approaches can be characterised within a “Whig” approach to Australian education history, originally found in “The Melbourne School” of Austin and Gregory, and the textbooks of Barcan. Its revival presents a good opportunity to survey the topic of education historiography, assess the “Whig” argument, and to propose that religious/nationalist historiography provides a more accurate interpretation of the original intent of the term “secular.”     

A Look Back at the Steel Seizure Case

During every national emergency, the system of checks and balances designed, as James Madison wrote in Federalist 51, to prevent a power grab by any of the three branches by giving each “the necessary constitutional means and personal motives to resist encroachments of the others,” comes under great pressure. ¹ After the September 11, 2001 terrorist attacks upon the World Trade Center and the Pentagon, the public looked to the President to take extraordinary measures. Congress quickly moved to expand executive powers to meet the emergency, confirming the view of a leading textbook on the presidency that “it has become the dominant institution in a system designed for balanced government.” ²     

Rethinking the Politics–Religion Distinction

William T. Cavanaugh argues that the politics–religion distinction presupposes covert commitments that inappropriately support a “migration of the holy” from the church to the state. Despite his strong critical instincts, several of his genealogical propensities appear to stand in tension with his commitments to constitutional democracy and the universality of grace. By contrast with Cavanaugh, John Rawls’ post-metaphysical reformulation of the politics–religion aims to identify a public criterion compatible with a plurality of comprehensive doctrines. Although I commend Rawls for retaining some form of this distinction, I question the possibility of a post-metaphysical standpoint and its compatibility with his commitment to what he calls the “fact of pluralism.” Drawing on Bernard Lonergan’s transpositions of human nature and grace in this paper’s final section, I develop an alternative account of the relationship between politics and religion that aims to harmonize some of the strongest insights from the work of Cavanaugh and Rawls.     

The President and the Public: Inaugural Addresses in American History

This article examines presidential inaugural addresses to gain a perspective on the changing relationship between the people and the presidency throughout American political history. The analysis suggests three distinct models of inaugural address—constitutional, party, and plebiscitary—each articulating a different understanding of presidential leadership and the relationship between the presidency and the people. The constitutional presidents see themselves largely as restrained, constitutional officers with a minimal relationship to the people. The party model yields a role for the president which is more tied to the people's will, especially as expressed through party. Even though tied more strongly to the public, party presidents recognize constitutional limits on their roles and powers. Plebiscitary presidents often eschew party affiliation and the guise of constrained constitutional officer, and cast themselves as engines of the American political system fully tied to public opinion. Plebiscitary presidents often make few references to other political actors or to the Constitution. Beyond helping us to better understand the contours of American political development, this analysis challenges the prevalent assumption in studies of the presidency that nineteenth-century presidents were not popular or “public” leaders.     

Antonin Scalia and the Dilemma of Constitutional Originalism

Antonin Scalia has had a very significant and healthy impact on the way people talk about American constitutional law. Thanks largely to Justice Scalia’s forceful and eloquent voice, originalism is now so respectable that even those who seek to advance an aggressive and progressive “living constitution” frequently find it prudent to pose as expositors of the Constitution’s original meaning. Scalia’s substantial effect on the terms of debate in constitutional law, however, is not likely to be matched by a comparable influence on the future of the law itself. Apart from political realities that affect appointments to the Court, originalism faces obstacles that have deep historical roots. This essay explores those obstacles before considering two examples that suggest why Scalia’s originalism is unlikely to make a decisive contribution to the reformation in constitutional law that he sought.     

The Supreme Court and the Interstate Slave Trade: A Study in Evasion, Anarchy, and Extremism

Opponents of slavery often argued that the federal government possessed the constitutional authority to outlaw the interstate slave trade. At its founding in 1833, the American Anti‐Slavery Society declared that Congress “has a right, and is solemnly bound, to suppress the domestic slave trade between the several States.” The idea had been endorsed earlier, during the Missouri controversy of 1819–1820, by both John Jay and Daniel Webster. Later on, in the 1840s and 1850s, it was supported by such prominent politicians as John Quincy Adams, Salmon P. Chase, and Charles Sumner. Defenders of slavery were, of course, horrified by the suggestion that the South's peculiar institution might be attacked in this way, and they vehemently denied that the Constitution permitted any such action. The prolonged debate over the issue focused on two key provisions of the Constitution. One was the Commerce Clause (Article I, Section 8, Clause 3), which says that Congress has the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The other was the 1808 Clause (Article I, Section 9, Clause 1), which says that the “Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight.” Abolitionists held that the Constitution sanctioned congressional interference in the domestic slave trade both generally, by virtue of the Commerce Clause, and specifically, by virtue of the 1808 Clause. They argued that since slaves were routinely bought and sold, they obviously were articles of commerce, and therefore Congress had unlimited authority over interstate slave trafficking. Furthermore, they said, the words “migration or importation” in the 1808 Clause meant that as of January 1, 1808 Congress had acquired the right not only to ban the importation of slaves, but also to prohibit their migration from one state to another. Defenders of slavery replied that Congress could not interfere in property rights and that the power to regulate commerce did not include the power to destroy it. They also said that the word “migration” in the 1808 Clause referred, not to the domestic movement of slaves, but to the entry into the United States of white immigrants from abroad. ¹     

Martin Luther's Use of Rhetorical Masks for Jews,Princes, Clerics,and other Enemies: The Problem of Meaning in a Post Modern Age

In modern times, there is a common widespread and common misunderstanding of Martin Luther's views on Jews, Peasants, Clergy, Women, and Princes. An analysis of Luther's rhetorical use of “masks” as metaphors will help us understand that he was not the father of anti‐Semitism, or of political and social elitism. The purpose of this article is to explore and understand Luther's rhetorical intent in the context of early modern German culture. The central thesis of this article is that Martin Luther may have had in his use of rhetorical masks in his public discourse a hidden communicative strategy. Often his masks involved vulgar, crude, and violent words in his attempt to stimulate and persuade public opinion. Does language have consistent long‐term meaning regardless of context? Michael Giesecke, a professor of German linguistics, correctly argues that each cultural period develops its own ways of triadic perception that involves thinking, acting, and communicating. New ways of processing information as we now see in the electronic revolution holds true in the cultural shift in the sixteenth century fostered by the printing press. The new medium of printed works forces a new way of thinking in every affected age. Our problem is to understand the “new way.”     

The Judicial Bookshelf

Some may be surprised to realize that nearly a half century has lapsed since publication of The American Supreme Court by Robert G. McCloskey. ¹ One reviewer praised the book as “unique,” one that could be read “profitably by layman, student, lawyer, and constitutional lawyer.” ² Readers familiar with that compact volume will recall the antinomy that the author put forward as the defining theme of American constitutional history: the tension between fundamental law and popular sovereignty. The latter suggests will and the former restraint. The antinomy is reflected in the founding documents of the Republic. The Declaration of Independence trumpets “inalienable rights” in the same paragraph that it emphasizes “government by the consent of the governed.” The Constitution, “ordain[ed] and establish[ed]” by “We the people,” insisted in Article VI that it “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” This conflict between equally valid principles lies at the heart of judicial review in the federal courts, where appointed and politically unaccountable judges sit in judgment on the actions of the politically accountable representatives of the people. In McCloskey's view, one principle “conjures up the vision of an active, positive state; the other emphasizes the negative, restrictive side of the political problem.” ³ Opposites though these principles are, Professor McCloskey emphasized that Americans have managed to cling simultaneously to both. “But like most successes in politics and elsewhere, this one had a price. The failure to resolve the conflict between popular sovereignty and fundamental law perhaps saved the latter principle, but by the same token it left the former intact. And this meant that fundamental law could be enforced only within delicately defined boundaries, that constitutional law, though not simply the creature of the popular will, nevertheless had always to reckon with it, that the mandates of the Supreme Court must be shaped with an eye not only to legal right and wrong, but with an eye to what popular opinion would tolerate.” ⁴     

A Challenge to Presidential Wars: Smith v. Obama

From World War II to the present time, presidents have exceeded constitutional and statutory authority in exercising the war power. In doing so, they violate the rule of law, the principle of self-government, and the system of checks and balances. The U.S. Constitution expressly rejected the British model that placed with the Executive exclusive authority over external affairs, including taking the country from a state of peace to one of war. The Framers assigned that power solely to Congress. A lawsuit filed in 2016, Smith v. Obama, asked a federal district court to decide whether President Obama may engage in war without receiving express authority from Congress.     

The Latest Instalment in the Whig Interpretation of Australian Education History: Catherine Byrne's JORH Article “Free,Compulsory and (not) Secular”

The original meaning of the term “secular” in the “free compulsory and secular” nineteenth‐century Australian public education acts is often contested, and has recently become part of a contemporary debate about the presence of confessional religion in state schools. I outline four different interpretations expressed in Australian education history writing, then review the recent Journal of Religious History article “Free, Compulsory and (not) Secular” by Catherine Byrne, arguing that it belongs to the secular liberal or “Whig” interpretation of the meaning of “secular” in the acts. The article is critiqued for forcing sources to conform to an overly rhetorical narrative device: a polarised structure valorising Victorian legislator George Higinbotham, and demonising New South Wales legislator Sir Henry Parkes. The article is also criticised for sub‐optimal source‐work, lack of awareness of the corpus of Australian education history, and overt contemporary policy agendas. I also suggest that the larger “Whig” interpretation of “secular” as part of a liberal progress narrative, underemphasises a religious hermeneutic and a critical theory hermeneutic: that a Protestant consensus about state schooling and “secular” in the Public Education Acts was also a deeply sectarian device for excluding Catholics from a dominant social settlement, just one part of a systemically divided and prejudicial culture.     

The Battle over Brown's Legitimacy

Constitutional scholars have given few Supreme Court rulings the attention that they have lavished upon the celebrated decision in Brown v. Board of Education . Yet the literature of public law is surprisingly unedifying with regard to the process by which the desegregation decision achieved iconic status in American legal culture. Scholarly inattentiveness to the history of Brown's reputation is startling, given that southern politicians were not the only persons in 1954 to characterize the decision as a manifest instance of judicial legislation. Even persons sympathetic to desegregation conceded that the Justices had circumvented traditional legal constraints in rendering Brown . In the years immediately following the ruling, some scholars appealed to the notion of a "living Constitution" to defend Brown against charges that it conflicted with the original understanding of the Fourteenth Amendment and with the "separate but equal" doctrine that the Court had established in Plessy v. Ferguson . But critics, some of whom even accepted the concept of the "living Constitution," also challenged the Court's reading of social fact—that is, its claims regarding the inherent inequality of segregated schools—which supposedly justified judicial recognition of a right that conflicted with precedent and with the intentions of the Framers of the Equal Protection Clause.     

The Pillars of “Mahathir's Islam”: Mahathir Mohamad on Being-Muslim in the Modern World

Unlike his bourgeois economic nationalism or diplomatic posturing on behalf of the developing world, Mahathir Mohamad's encounter with Islam remains a largely understudied aspect of his 22-year rule of Malaysia (1981–2003). There is a marked reluctance to take seriously his pronouncements on Islam and engage with his representations of what being-Muslim should entail in the modern world. This essay takes the view that Islam, in fact, represents a significant component of the former Malaysian prime minister's political repertoire, and that an analysis of what may be described as “Mahathir's Islam” can provide a compelling alternative account of his momentous premiership. It argues that while Mahathir's engagement with Islam was fraught with contradictions and has produced a number of negative consequences that affect Malaysian society as a whole, his discourse also contained the ingredients of what Bellah and Hammond (1980) have famously described as civil religion. Mahathir's public representations of Islam – in particular, his championing of the individually responsible believer and interpretation of the message to the Prophet Muhammad as a this-worldly and pro-active “theology of progress” – can thus provide religious validation to the cosmopolitanism of the street that has helped underwrite the social peace of multi-religious Malaysia.     

The 1999 Republic Referendum: Is there a Cycle?

There are many ways to interpret the results of the 1999 Australian referendum on whether the Constitution should be altered 'to establish the Commonwealth of Australia as a republic with a president appointed by a two-thirds majority of the members of the Commonwealth Parliament'. One possible interpretation that has not been investigated so far suggests that the result reflects the fact that there is a 'preference cycle' over the three constitutional models that dominated the debate preceding the referendum. This research note uses survey data and public choice theory to investigate whether this interpretation sheds any further light on the referendum results.     

Mostafa Malekian: Spirituality,Siyasat‐Zadegi and (A)political Self‐Improvement

Mostafa Malekian has yet to receive much attention in Western academic literature pertaining to Iranian intellectual life, but inside Iran, he has emerged as a popular public intellectual; seen as both a culmination of and rupture with the project of “religious intellectualism.” Rather than offer a revolutionary and politically engaged vision of Islam, or a “reformist” or “democratic” interpretation of Shi?ism, his project seeks to integrate what he calls “rationality” (?aqlaniyat) and “spirituality” (ma?naviyat). As Malekian's project has developed, it has broken, in a number of important respects, with mainstream Islam as practiced in Iran, the religious reformist project, and even organized religion as a whole. This article seeks not only to offer one of the first comprehensive analysis of his existential and social thought in English, but also to analyze his project's deep affinities with a pervasive fatigue vis‐à‐vis collective projects of political emancipation and even “politics” tout court, in the latter phases of the “reformist” President Hojjat al‐Islam Seyyed Mohammad Khatami's tenure.     

The Judicial Bookshelf

Millions were reminded on January 20, 2009, that the inauguration of an American President is as remarkable as it is routine. In this distinctly republican rite, the chief executive publicly subordinates himself to the fundamental law of the land. As the Constitution dictates, “[b]efore he enters on the Execution of his Office, he shall take the following Oath or Affirmation: ‘I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.’” ¹ This display of constitutional fealty was remarkable because the variety of political systems, experiences, and cultures across today's globe graphically illustrates that the seamless and peaceful transfer of authority from one political party or individual to another, as was witnessed at President Barack Obama's inauguration and at President George W. Bush's inauguration in 2001, is not always a foregone occurrence everywhere. January's event was routine in that, from the outset of government under the Constitution and with the notable and tragic exception of 1860, the defeated party or individual has accepted, if not welcomed, the verdict rendered by the electoral process. That was the outcome even in 1800, when the notion of a violence‐free shift of control in a country founded on the principle of government by the “consent of the governed” ² was first put to the test at the presidential level. The assumption of authority by Thomas Jefferson and the Democratic‐Republicans from John Adams and the Federalists marked the world's first peaceful transfer of power from the vanquished to the victors as the result of an election. ³ Given the stark national partisan differences that had crystallized in the short time since ratification of the Constitution and the fact that finalization of the election required extraordinary intervention by the House of Representatives to break an Electoral College tie, this outcome was a greater achievement than is sometimes acknowledged. “Partisanship prevailed to the bitter end and showed no signs of abating,” according to one historian who has recently revisited this critical and precedent‐setting election. “Over the campaign's course, George Washington's vision of elite consensus leadership had died, and a popular two‐party republic … was born.” ⁴     

KOSELLECK ON MODERNITY,HISTORIK, AND LAYERS OF TIME

In the scholarly reception of his work, Reinhart Koselleck's notion of modernity and his theory of multiple times have been cast as essentially at odds with each other. This article argues that although these positions are valid, Koselleck's writings can also accommodate an interpretation according to which the theory of multiple temporalities, or “layers of time,” provides theoretical ground for the modern understanding of time and history. Elaborating on this insight, the article shows the linkages sustaining the unity between Koselleck's formal theory of multiple times and his interpretation of modernity. To that end, I outline the main premises of the temporalization thesis that lies at the heart of Koselleck's theory of modernity, scrutinize his notion of Historik within which the framework “layers of time” belongs, and explore Niklas Olsen's and Helge Jordheim's interpretive accounts on how to conceive of the relationship between the two strands in Koselleck's thought. Ultimately, I argue that “layers of time” entails the formal conditions for historical acceleration, which is crucial for explaining the emergence of a specifically modern temporality wherein experience and expectation increasingly grow apart.