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Home > News &
Events > Imprimis

About Imprimis

Imprimis is the free monthly speech digest of Hillsdale College and
is dedicated to educating citizens and promoting civil and religious liberty by
covering cultural, economic, political and educational issues of enduring
significance.  The content of Imprimis is drawn from speeches
delivered to Hillsdale College-hosted events, both on-campus and
off-campus.  First published in 1972, Imprimis is one of the most
widely circulated opinion publications in the nation with over 1.8 million
subscribers.

April 2010

Stephen Markman

Justice
Michigan Supreme Court

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The Coming Constitutional Debate

Stephen Markman was appointed Justice of the Michigan Supreme Court in 1999,
and was re-elected in 2000 and 2004. Previously, he served as United States
Attorney in Michigan; as Assistant Attorney General under President Ronald
Reagan, where he coordinated the federal judicial selection process; and as
Chief Counsel of the Senate Subcommittee on the Constitution. He has published
in such journals as the Stanford Law Review and the University of
Chicago Law Review, and has been a distinguished professor of
constitutional law at Hillsdale College since 1993.

The following is adapted from a speech
delivered in Washington, D.C., on February 25, 2010, at an event sponsored by
Hillsdale College’s Allan P. Kirby, Jr. Center for Constitutional Studies and
Citizenship.

AS ASSISTANT ATTORNEY GENERAL under President Ronald
Reagan, I prepared a report for Attorney General Edwin Meese entitled “The
Constitution in the Year 2000: Choices Ahead.” This report sought to identify a
range of areas in which significant constitutional controversy could be expected
over the next 20 years. As critical as I believe those controversies were, they
pale in significance before the controversies that will arise over the next
several decades. The resolution of these emerging controversies will determine
whether the Constitution of 2030 bears any resemblance to the Constitution of
1787—the Framers’ Constitution that has guided this nation for most of its first
two centuries and has rendered it the freest, most prosperous, and most creative
nation in the history of the world.

Proponents of a “21st century constitution” or “living
constitution” aim to transform our nation’s supreme law beyond recognition—and
with a minimum of public attention and debate. Indeed, if there is an
overarching theme to what they wish to achieve, it is the diminishment of the
democratic and representative processes of American government. It is the
replacement of a system of republican government, in which the constitution is
largely focused upon the architecture of government in order to minimize the
likelihood of abuse of power, with a system of judicial government, in which
substantive policy outcomes are increasingly determined by federal judges.
Rather than merely defining broad rules of the game for the legislative and
executive branches of government, the new constitution would compel specific
outcomes.

Yes, the forms of the Founders’ Constitution would
remain—a bicameral legislature, periodic elections, state governments—but the
important decisions would increasingly be undertaken by courts, especially by
federal courts. It will be the California referendum process writ national, a
process by which the decisions of millions of voters on matters such as racial
quotas, social services funding, and immigration policy have been routinely
overturned by single judges acting in the name of the Constitution—not the
Framers’ Constitution, but a “constitution for our times,” a “living
constitution,” resembling, sadly, the constitutions of failed and despotic
nations across the globe.

This radical transformation of American political life
will occur, if it succeeds, not through high-profile court decisions resolving
grand disputes of war and peace, abortion, capital punishment, or the place of
religion in public life, but more likely as the product of decisions resolving
forgettable and mundane disputes—the kind mentioned on the back pages of our
daily newspapers, if at all. Let me provide a brief summary of six of the more
popular theories of the advocates of the 21st century constitution. In
particular, it is my hope here to inform ordinary citizens so that they will be
better aware of the stakes. For while judges and lawyers may be its custodians,
the Constitution is a document that is the heritage and responsibility of every
American citizen.

1. Privileges or Immunities Clause

Since shortly after the Civil War, the privileges or
immunities clause of the 14th Amendment has been understood as protecting a
relatively limited array of rights that are a function of American federal
citizenship, such as the right to be heard in courts of justice and the right to
diplomatic protection. In defining the protections of the privileges or
immunities clause in this manner, the Supreme Court in the Slaughterhouse Cases
(1873) rejected the argument that the clause also protects rights that are a
function of state citizenship, asserting that this would lead to federal courts
serving as a “perpetual censor” of state and local governments. This decision
has served as a bulwark of American federalism.

Although a considerable amount of federal judicial
authority has since been achieved over the states through interpretations of the
due process clause of the 14th Amendment, many proponents of a 21st century
constitution seek additional federal oversight of state and local laws. Their
strategy in this regard is to refashion the privileges or immunities clause as a
new and essentially unlimited bill of rights within the 14th Amendment. The
practical consequences of this would be to authorize federal judges to impose an
ever broader and more stultifying uniformity upon the nation. Whatever modicum
of federalism remains extant at the outset of this century, considerably less
would remain tomorrow.

2. Positive Rights

For the 21st century constitutionalist, perhaps the
greatest virtue of redefining the privileges or immunities clause is the
prospect of transforming the Constitution from a guarantor of “negative
liberties” into a charter of “affirmative government,” guaranteeing an array of
“positive” rights. As President Obama has observed in a radio interview in
criticism of the legacy of the Warren Court of the 1950s and 1960s, “[It] never
ventured into the issues of redistribution of wealth and . . . more basic issues
of political and economic justice in this society. . . . [T]he Warren Court . .
. wasn’t that radical. It didn’t break free from the essential constraints that
were placed by the Founding Fathers in the Constitution. . . that generally the
Constitution is a charter of negative liberties, says what the states can’t do
to you, says what the federal government can’t do to you, but it doesn’t say
what the federal government or the state government must do on your behalf.”

President Obama is correct. The Framers’ Constitution
defines individual rights in terms of what the government cannot do to you. For
example, the government cannot inflict cruel and unusual punishment, and
therefore the individual has a constitutional right not to be subject to such
punishment; the government cannot engage in unreasonable searches and seizures,
and therefore the individual has a constitutional right not to be subject to
such searches and seizures, and so forth. By contrast, the Framers’ Constitution
does not guarantee rights to material goods such as housing, education, food,
clothing, jobs, or health care—rights that place a related obligation upon the
state to obtain the resources from other citizens to pay for them.

Proponents of a 21st century constitution have many
grievances with the individual rights premises of our Constitution as
written—such as the largely procedural focus of the 14th Amendment’s due process
clause, with its old-fashioned conception of such rights as those to “life,
liberty, and property”; the negative cast of the specifically-defined rights in
the Bill of Rights; and the limited application of the equal rights clause to
things that have been enacted by legislatures (as opposed to things that they
should have been required to enact). Each of these “limitations” poses
significant barriers to what 21st century constitutionalists hope to achieve in
reconfiguring America. This explains their interest in employing the privileges
or immunities clause, which seems to them open-ended and susceptible to
definition by judges at their own discretion.

As various advocates of a 21st century constitution have
urged, a privilege or immunity might be interpreted to allow the invention of a
host of new “rights,” and thus be construed to guarantee social or economic
equality. However pleasing this might sound to some people, there should be no
mistake: adopting this interpretation will supplant representative
decision-making with the decision-making of unelected, unaccountable, and
life-tenured judges. Should the privileges or immunities clause be used in this
way, as a charter of positive rights, ours will become an America in which
citizens are constitutionally entitled to their neighbors’ possessions; in which
economic redistribution has become as ingrained a principle as federalism and
the separation of powers; in which the great constitutional issues of the day
will focus on whether porridge should be subsidized and housing allowances
reimbursed at 89 or 94 percent of the last fiscal year level; and in which a
succession of new “rights” will be parceled out as people are deemed worthy of
them by berobed lawyers in the judiciary.

3. State Action

A barrier posed by both the due process and the privileges
or immunities clauses, and viewed as anachronistic by 21st century
constitutionalists, is the requirement of state action as a precondition for the
enforcement of rights. In the Civil Rights Cases (1883), another post-Civil War
precedent, the Supreme Court asserted that these provisions of the 14th
Amendment prohibited only the abridgment of individual rights by the state. “It
is state action of a particular character that is prohibited. . . . The wrongful
act of an individual is simply a private wrong and if not sanctioned in some way
by the state, or not done under state authority, the [individual’s] rights
remain in full force.” However, for advocates of 21st century constitutionalism,
if fairness and equity are to be achieved, the Constitution must become more
like a general legal code—applicable to both public and private
institutions.

Consider, for example, Hillsdale College. Despite being
the embodiment of a thoroughly private institution, government officials have
sought to justify the imposition of federal rules and regulations upon Hillsdale
by characterizing the college as the equivalent of a state entity on the grounds
that it received public grants-in-aid. When in response to this rationale, and
in order to retain its independence, Hillsdale rejected further grants, the
government then sought to justify its rules and regulations on the grounds that
Hillsdale was the indirect beneficiary of grants-in-aid going to individual
students, such as GI Bill benefits. Once again in response to this rationale,
Hillsdale asserted its independence by barring its students from receiving
public grants, even those earned as in the case of GI benefits, and instead
bolstered its own private scholarship resources. We have witnessed a steadily
more aggressive effort by governmental regulators to treat private institutions
as the equivalent of the state, and thereby to extend public oversight.

However, it would be more convenient simply to nullify the
state action requirement altogether. Professor Mark Tushnet of Harvard Law
School, for example, would reconsider the Civil Rights Cases:

The state-action doctrine contributes nothing but
obfuscation to constitutional analysis. It works as a bogeyman because it
appeals to a vague libertarian sense that Americans have about the proper
relation between them and their government. It seems to suggest that there is a
domain of freedom into which the Constitution doesn’t reach. We would be well
rid of the doctrine.

If Professor Tushnet succeeds in this mission, Hillsdale’s
policies concerning such things as tuition, admissions, faculty hiring,
curriculum, and discipline will each have to pass the scrutiny, and receive the
imprimatur, of judges.

4. Political Questions

In areas that were once viewed as inappropriate for
judicial involvement, federal courts have begun to assert themselves in an
unprecedented and aggressive manner. The limited role of the judiciary, for
example, with regard to matters of national defense and foreign policy is not
explicitly set forth in the Constitution, but such matters have from time
immemorial been understood to be non-justiciable and within the exclusive
responsibility of the elected branches of government. As far back as Marbury v.
Madison (1803), Chief Justice John Marshall recognized that “Questions in their
nature political . . . can never be made in this Court.”

Yet just in the last several years, the Supreme Court, in
a series of 5-4 decisions, has overruled determinations made by both the
legislative and executive branches regarding the treatment of captured enemy
combatants. Most notably, the Court ruled in Boumediene v. Bush (2008) that
foreign nationals captured in combat and held outside the United States by the
military as prisoners of war—a war authorized by the Congress under Article I,
Section 8, and waged by the President as Commander-in-Chief under Article II,
Section 2—possess the constitutional right to challenge their detentions in
federal court. Thus, in yet one more realm of public policy—one on which the
sovereignty and liberty of a free people are most dependent, national
defense—judges have now begun to embark upon a sharply expanded role.

If there is no significant realm left of “political
questions,” if there are no longer any traditional limitations upon the exercise
of the judicial power, then every matter coming before every president, every
Congress, every governor, every legislature, and every county commission and
city council can, with little difficulty, be summarily recast as a justiciable
dispute, or what the Constitution, in Article III, Section 2, describes as a
“case” or “controversy.” As a result, every policy debate taking place within
government, at every level, will become little more than a prelude for judicial
resolution.

5. Ninth Amendment

Another looming constitutional battleground concerns the
meaning of the Ninth Amendment to the Constitution: “The enumeration in the
Constitution, of certain rights, shall not be construed to deny or disparage
others retained by the people.” Many 21st century constitutionalists understand
this amendment to say that there is some unknown array of unenumerated rights
that lie fallow in the Constitution, waiting only to be unearthed by far-sighted
judges.

Professor Thomas Grey of the Stanford Law School has
suggested, for example, that the Ninth Amendment constitutes a “license to
constitutional decisionmakers to look beyond the substantive commands of the
constitutional text to protect fundamental rights not expressed therein.” Rights
to abortion, contraception, homosexual behavior, and similar sexual privacy
rights have already been imposed by judges detecting such rights in the Ninth
Amendment. The problem is that, in the words of Justices Stewart and Black, this
understanding of the amendment “turns somersaults with history” and renders the
courts a “day-to-day constitutional convention.”

The more conventional understanding of the Ninth Amendment
has viewed it in the historical context of the Bill of Rights, of which it is a
part. By this understanding, it was written to dispel any implication that by
the specification of particular rights in the Bill of Rights, the people had
implicitly relinquished to the new federal government rights not specified. Like
the Tenth Amendment—which serves as a reminder that powers neither given to the
federal government nor prohibited to the states in the Constitution are reserved
to the states or to the people—the Ninth Amendment was adopted to emphasize that
our national government is one of limited powers. Its principal purpose was to
prevent an extension of federal power, not to provide an open-ended grant of
judicial authority that would have the opposite effect.

6. Transnationalism

Professor Harold Koh of the Yale Law School, and now State
Department Legal Counsel, is perhaps the leading proponent of what he calls
“transnationalism,” which he contrasts with the “nationalist philosophy” that
has characterized American constitutional law for the past 220 years.

Transnationalists believe that international and domestic
law are merging into a hybrid body of transnational law, while so-called
nationalists persist in preserving a division between domestic and foreign law
that respects the sovereignty of the United States. Transnationalists believe
that domestic courts have a critical role to play in incorporating international
law into domestic law, while so-called nationalists claim that only the
political branches are authorized to domesticate international legal norms.
Professor Koh predicts that these disagreements will play out in future Supreme
Court confirmation hearings, and that these appointments will be “pivotal” in
determining by 2020 the direction in which the jurisprudence of the United
States proceeds.

In practice, transnationalism would legitimize reliance by
American judges upon foreign law in giving meaning to the United States
Constitution; it would bind federal and state governments to international
treaties and agreements that had never been ratified by the United States Senate
much less enacted into law by the Congress; it would render both the domestic
and international conduct of the United States increasingly beholden to the
review and judgment of international tribunals in Geneva and the Hague; it would
expose American soldiers and elected leaders to the sanctions of international
law for “war crimes” and “violations of the Earth”; and it would replace the
judgments of officials representing the American people, and holding paramount
the interests of the United States, with the judgments of multinational panels
of bureaucrats and judges finely balancing the interests of the U.S. with those
of other nations—including authoritarian and despotic governments—throughout the
world.

* * *

It is with the intention of generating debate, and of providing a roadmap to
help us better navigate the constitutional forks-in-the-road that will soon be
facing our nation, that I offer these thoughts. While there has never been a
time in our history in which there was not serious constitutional debate among
our people, I would submit that there have been few times in which this debate
was more fundamental in defining the American experiment.

Copyright © 2010 Hillsdale College. The opinions expressed in
Imprimis are not necessarily the views of Hillsdale College. Permission
to reprint in whole or in part is hereby granted, provided the following credit
line is used: “Reprinted by permission from Imprimis, a publication of
Hillsdale College.” SUBSCRIPTION FREE UPON REQUEST. ISSN 0277-8432.
Imprimis trademark registered in U.S. Patent and Trade Office #1563325.

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