The Coming Constitutional Debate: a Citizens Guide ---------------------------------------------------------------------- April 2010 White Paper No. 1 Stephen J.

Markman Justice of the Michigan Supreme Court Distinguished Professor of Constitutional Law, Hillsdale College Hillsdale College Pursuing Truth Defending Liberty Since 1844 ALLAN P. KIRBY JR. CENTER FOR CONSTITUTIONAL STUDIES , AND CITIZENSHIP thekirbycenter.org ----------------------------------------------------------------------- TABLE OF CONTENTS: Executive Summary Introduction Constitutional Issues 1. Privileges or Immunities 2. Positive Rights 3. State Action 4. Political Questions 5. Ninth Amendment 6. Full Faith and Credit 7. Transnationalism 8. Judicial Restraint 9. Miscellaneous Issues a. Federalism b. Separation of Powers c. Limited Government and Rights Advice and Consent Process Conclusion Endnotes About the Author About Hillsdale College ----------------------------------------------------------------------- THE COMING CONSTITUTIONAL DEBATE: A CITIZENS GUIDE Executive Summary The coming debate over the future of the American Constitution hinges upon one critical question: Who will decide questions of public policycitizens acting through their elected and accountable representatives, or unelected and unaccountable judges? This paper argues that unless citizens, those to whom this paper is addressed, engage the constitutional debate, it will be settledwithout their participationby judges. To be decided, whether through debate or by judicial imposition, is whether we the people will live under the Constitution of James Madison, and Abraham Lincoln, or under what is called here the twenty-first century constitution. Under the twenty-first century constitution, the forms of the Founders Constitution would remaina bicameral legislature, periodic elections, state governmentsbut important decisions, those determining the nature and direction of the American experiment, would increasingly be undertaken by federal courts. Rather than merely defining broad rules of the game for the three branches of government, the twenty-first century constitution would compel specific policy outcomes. In 1988, Justice Stephen J. Markman, then Assistant Attorney General in the administration of Ronald Reagan, prepared a report for Attorney General Edwin Meese titled The Constitution in the Year 2000: Choices Ahead. Identifying major areas of coming constitutional controversy, the report charted an understanding of the proper role of the judiciary. In 2009, The Constitution in 2020 was published. Featuring essays from a large group of progressive-minded legal academics, the book sought what it calls redemptive constitutionalisma twenty-first century constitutionalism. Engaging the proponents of the twenty-first century constitution, this paper focuses on eight of the most salient issues in the debate: privileges or immunities, positive rights, state action, political questions, the Ninth Amendment, full faith and credit, transnationalism, and judicial restraint. The paper also outlines other important issues pertaining broadly to federalism, separation of powers, and limited government and rights. It concludes with a consideration of the federal judicial selection process, with special focus on how the United States Senate might attune its advice and consent role in the process to a careful consideration of the Constitutions future. If successful, twenty-first century constitutionalism will entail the diminishment of deliberative and representative government. The twenty-first century constitutional debate has already been engaged; the only question is whether ordinary citizens, and their representatives, will be participants in this debate, or whether it will take place within the exclusive province of judges and lawyers. Introduction As Assistant Attorney General under President Ronald Reagan, I prepared a report in 1988 for Attorney General Edwin Meese titled The Constitution in the Year 2000: Choices Ahead.1 This report sought to identify a range of areas in which significant constitutional controversy could be expected over the next twenty years, ranging from expansion of the so-called right to privacy, narrowing of the Takings Clause of the Fifth Amendment, and redefinition of the religion clauses of the First Amendment. By preparing such a report, I sought to provide a glimpse of the stakes involved in then-ongoing public debates over federal judicial selection and competing understandings of the proper role of the judiciary, and to identify the forks in the road that would determine the changing contours of American constitutionalism. As critical as I believe these issues have been in defining our nations supreme law, the controversies identified in The Constitution in the Year 2000 pall in significance before those that almost certainly will arise over the next two decades. For those who are committed to a traditional constitutionalism, to the Founders Constitution, the resolution of these emerging controversies will determine whether the Constitution of 2030 bears any resemblance to the Constitution that guided this nation for most of its first two centuries. It is critical that those who are committed to preserving our traditional Constitution understand clearly the nature of the upcoming litigative offensive by proponents of a twenty-first century constitution, for there is nothing that such

proponents would like more than to transform beyond recognition, and with a minimum of public attention and debate, a Constitution that served during the previous three centuries to forge the United States into the freest, most prosperous, and most creative nation in the history of mankind. If there is an overarching theme to what proponents of a twenty-first century constitution 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, self- governmentin which the Constitution is largely concentrated upon the architecture of public institutions in order to minimize the likelihood of abuse of state powerwith a system of judicial governmentin which public policy outcomes are increasingly determined by unaccountable federal judges. Rather than merely defining broad rules of the game for the three branches of federal and state government, the new Constitution would compel specific substantive outcomes. Under the twenty-first century constitution, the forms of the Founders Constitution would remaina bicameral legislature, periodic elections, state governmentsbut important decisions, those determining the nature and direction of the continuing American experiment, would increasingly be undertaken by courts, especially by federal courts, populated by lawyers in black robes, lawyers trained by our best and brightest professors, lawyers serving lifetime tenures on the bench and unencumbered by the inconvenience of having to persuade constituencies of the wisdom of their ideas concerning the relationship between the individual and the state. Such courts would be unmoored in any serious way from the language that we the people had placed in the Constitution, and would be informed instead by the perspectives of what Supreme Court Justice Antonin Scalia describes as the law-profession culture,2 a culture increasingly distinct from that of much of the rest of society, as well as those of innovative and creative legal scholars and elite international opinion. The result will be the California referendum process writ national, a process in which the decisions of millions of ordinary voters on matters such as racial quotas, social services funding, and immigration policy were routinely, and peremptorily, overturned by a single judge acting in the name of the Constitutiona Constitution that would not only have been unrecognizable to its creators, but equally unrecognizable to all the past generations of judges who have ever sat upon the courts of this land. If twenty-first century constitutionalism prevails, there will be little accompanying public debate, at least not in which ordinary citizens will have any effective voice. There will be no public debate over the transformation of the Constitution, and, once it has been transformed, there will be no public debate as to countless matters of policy that are now routinely the subject of hearings, negotiations, compromises, and give-and-take within representative and deliberative public bodies. Instead, such debate will be short-circuited by the decisions of judges acting on behalf of a Constitution for our times, a modern, or a living Constitution, one resembling, sadly, the constitutions of failed and crippled nations across the globe. The constitutional revolutionaries of the twenty-first century contemplate an America transformed, not after any modern equivalent of the Lincoln-Douglas debates, not as a result of any landmark votes of those whom the people have elected, and not through any series of transformative elections, but by the determinations of a handful of lawyers sitting on the Supreme Court and lower federal courts. The adoption of a twenty-first century constitution will occur, not likely through high-profile judicial decisions resolving grand disputes of crime and punishment, abortion and the death penalty, or the place of religion in public life, but through judicial decisions resolving utterly forgettable and mundane disputes, the kind mentioned in the back pages of our daily newspapers, if at all. For it is the legal principles and precepts of twenty-first century constitutionalism that will prove so destructive of our Constitution. Once these principles and precepts have been incorporated into the supreme law of the land by the Supreme Court, they will then be insinuated into our daily lives, and applied to an ever-broadening sphere of activities, through countless decisions of lower courts acting in compliance with these newly-established precedents. Such precedents will then be engrained, or institutionalized, within our legal system well before the average citizen begins to appreciate their consequences. We the people will then have established a Constitution in which we the people have become increasingly irrelevant. Constitutional Issues Recognizing as Professor Robert Burt of Yale Law School has observed that constitutional issues often emerge from nowhere,3 let me provide a brief summary of several of the legal theories through which advocates of the twenty-first century constitution hope to transform the Founders Constitution.4 In particular, it is my hope to summarize these theories for ordinary citizens so that they can be better apprised of what is at stake. While judges and lawyers may be its day-to-day custodians, the United States Constitution is a document that is the heritage of every

American. The twenty-first century constitutional debate has already been engaged; the only question is whether ordinary citizens, and their representatives, will be participants in this debate, or whether it will take place within the exclusive province of judges and lawyers. 1. Privileges or Immunities No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. . . . (Amendment XIV, 1) Since shortly after the Civil War, the Privileges or Immunities Clause of the Fourteenth Amendment has been understood as protecting citizens with regard to a relatively limited array of rights that are a function of their federal citizenship, such as the right to be heard in courts of justice, the right to diplomatic protection, and the right of free access to seaports. In defining the protections of the Privileges or Immunities Clause in this manner, the Supreme Court in the Slaughterhouse Cases (with six of the seven majority justices appointed by either Presidents Abraham Lincoln or Ulysses Grant) 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.5 Moreover, as the result of other language in the Fourteenth Amendment, authorizing the Congress to enforce its provisions, the Court also indicated its doubts that the Privileges or Immunities Clause was intended to bring within the authority of Congress the entire domain [of powers] belonging exclusively to the states.6 Although reasonable people can draw different conclusions from its ambiguous legislative history as to the precise intentions of the Reconstruction-era drafters of the Privileges or Immunities Clause, Slaughterhouse nonetheless has served as a longstanding foundation of American federalism, maintaining the relative sovereignty of state governments under our Constitution. Although a considerable degree of federal judicial authority has alternatively been achieved with regard to the states since Slaughterhouse by interpretations of the Due Process Clause of the Fourteenth Amendment, prohibiting the states from depriving any person of life, liberty or property, without due process of law, many proponents of a twenty-first century constitution have nonetheless found it awkward and strained to pursue the substantive review of state and local laws under a constitutional provision that is plainly geared only toward ensuring compliance with fair procedures.7 By the adoption of the oxymoronic doctrine of substantive due process, the Supreme Court has imposed some measure of substantive policy obligations upon the states, but constitutional and policy controversies concerning such decisions as Dred Scott and Roe v. Wade, with their roots in this doctrine, have significantly retarded this approach.8 Thus, the longstanding interest of twenty-first century constitutionalists in refashioning the Privileges or Immunities Clause as a new bill of rights within the Fourteenth Amendment, fully binding upon the states and unfettered by any language that might impede a sufficiently-determined judge from identifying at his discretion new obligations to be imposed upon states and localities in the name of upholding an individuals privileges or immunities. As Professor Bruce Ackerman of Yale Law School has written, the Privileges or Immunities Clause has been trivialized by the Supreme Court in Slaughterhouse in the view that anything more robust . . . would endanger familiar principles of federalism.9 It is generally seen as a strength of the Privileges or Immunities Clause that there are no apparent constraints as to what new rights can be discerned from its terms. A transformed Privileges or Immunities Clause can become a wellspring of new judicially-determined rights; it is a well that will not easily run dry. The practical consequences of a broadened Privileges or Immunities Clause would be to authorize federal judges to embark upon a far more aggressive review of state and local decision-making, and thereby to impose an ever broader and more stultifying uniformity upon the nation. Under the Due Process Clause of the Fourteenth Amendment, the Supreme Court has already incorporated, or made applicable to the states, selected provisions of the Bill of Rights that were once viewed as being applicable only to the federal government,10 but these incorporated rights remain defined, and limited, by what is specified within the first eight amendments to the Constitution. By contrast, the new rights that would be imposed by the Privileges or Immunities Clause are not similarly limited; they would not be constrained by the Bill of Rights. Thus, for example, Professor Goodwin Liu of the University of California, Berkeley, Law School has suggested that, at a minimum, the Clause stands for the proposition that all citizens enjoy substantive rights essential to realizing equal standing in the national political community, and that both the courts and the Congress may determine what civil and political rights, and what social and economic entitlements are necessary to make national citizenship meaningful and effective.11 Such a constitutional standard for ascertaining what is a privilege or immunity would ensure that, whatever modicum of federalism remains in this country today, considerably less would

remain tomorrow. In common with their other proposed metamorphoses of the Constitution, in the name of privileges or immunities, the twenty-first century constitutionalist would enhance the authority of judgeswho would be empowered to act in the name of a Constitution made from whole clothand diminish the authority of those in whose name the Constitution was ratified. 2. Positive Rights The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. (Amendment X) For the twenty-first century constitutionalist, perhaps the greatest virtue in redefining the Privileges or Immunities Clause is the prospect of transforming the Constitution from an archaic eighteenthcentury guarantor of negative liberties into a genuinely contemporary charter of affirmative government, guaranteeing individuals an array of positive constitutional rights. As President Barack Obama has observed in assessing the legacy of the Warren Court, [It] never ventured into the issues of redistribution of wealth and of more basic issues of political and economic justice in society . . . the Warren Court wasnt that radical. It didnt 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 cant do to you. Says what the federal government cant do to you, but doesnt say what the federal government or state government must do on your behalf.12 President Obama is correct in his assessment of the limits of the Warren Courts jurisprudence. The Constitution of the Founding Fathers, unlike most contemporary ones, and unlike such international charters as the United Nations Universal Declaration of Human Rights, defines individual rights in negative terms, in terms of what the government cannot do to you. The government, for example, 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. As our Tenth Amendment makes clear, the rights of Americans are broad because the governments powers are few. If the federal government has not affirmatively been delegated some authority by the Constitution and such delegations were limitedthen all related rights are retained by the people or by the states, and the states are each constrained by their own constitutions. Unlike many other modern national constitutions, the United States Constitution does not afford positive rights, or welfare state rights, to material goods such as housing, education, food, clothing, a job, or health careall rights in which there is a corollary obligation upon the state to obtain resources from other citizens to pay for such entitlements. That is, if there is a constitutional right to health care, then there is a constitutionalobligation on governments part to raise revenues for such care. Under our Constitution, legislatures may possess the authority to enact statutes to establish positive rights, but there is no constitutional obligation to do so. As a result, any such statutes can be as narrow or as broad as the legislature determines, and these can be modified, limited, or repealed as the legislature sees fit. Because such rights are determined statutorily, and have not been constitutionalized, judges do not determine their substance, and judges do not determine levels of necessary expenditures or revenues. Instead, these decisions are made by the elected representatives of the people. Thus, in DeShaney v. Winnebago County, a tragic case in which a Wisconsin social services agency released a young child into the custody of his abusive father who proceeded to beat him until he suffered permanent brain damage, the Supreme Court rejected a constitutional lawsuit by the child and his mother against the agency, stating that the Due Process Clause of the Fourteenth Amendment is phrased as a limitation on the states power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the state itself to deprive individuals of life, liberty, or property without due process of law, but its language cannot fairly be extended to impose an affirmative obligation on the state to ensure that those interests do not come to harm through other means [in this instance, through the father] . . . the Framers were content to leave the extent of governmental obligation to the democratic political process (emphasis added).13 Elsewhere, the Supreme Court has similarly concluded that there is no constitutional right to an education.14 Not that state legislatures may not confer a statutory right to an education, as each has done, and define what that right entails, but only that such decisions belong to the people acting through their representative processes. These decisions do not belong to those who exercise only the judicial power, a power described by Supreme Court Chief Justice John Marshall in 1803 as the power to say what the law is, not what it ought to be, the latter power belonging exclusively to the legislature.15 Proponents of the twenty-first century constitution have

various grievances with the individual rights premises of the current Constitutionthe purely procedural focus of the Due Process Clause, with its old-fashioned conception of individual rights as those pertaining to life, liberty, and property; the largely negative cast of the few specificallydefined rights within the Bill of Rights; and the limited application of the Equal Protection Clause of the Fourteenth Amendment to rights that have actually been enacted by legislatures as opposed to rights that should have been enacted. These each pose significant, if not insuperable, barriers to what twenty-first century constitutionalists hope to achieve in their reconfiguration of American constitutional principles. The Privileges or Immunities Clause, on the other hand, suffers from none of these infirmities: as best as it can be understood, it is not confined to matters of procedure or of equal treatment; it is not apparently yoked to archaic Jeffersonian notions of limited government; and there is nothing about its operative terms that connote only rights defined in a negative fashion against government. Thus, by overturning a single inconvenient precedent, Slaughterhouse, the Privileges or Immunities Clause can be reinvigorated and infused with fresh meaning. Best of all, privileges or immunities are ill-defined and easily susceptible to definition by judges, more or less at their discretion. In short, in the words of Professor Jack Balkin of Yale Law School, there would be nothing left of the Founders to fetishize.16 As proposed by various twenty-first century constitutional scholars, a privilege or immunity might conceivably be construed to encompass anything pertaining to equal opportunity or basic rights; as guaranteeing social rights or universal rights; as requiring social or economic equality; as embodying a judges conception of civil liberties; as requiring the dismantlement of caste; as imposing a burden upon legislatures to persuade judges that their policies do more good than harm; as upholding affirmative guarantees of national citizenship; as providing for equal standing in the national political community; as upholding rights of equal citizenship; as requiring federal aid to bring states up to a base level; or as establishing constitutional recognition of individual dignity and full membership in the community, to name but a few suggested defining standards. However pleasing these turns of phrases, and whatever conceivably they mean, there should be no mistake: each of these formulations, as well as others offered for determining what constitutes an individual privilege or immunity, and what obligations are thereby imposed upon state and local government, is intended to supplant representative decision-making with the decision-making of unelected, unaccountable, and life-tenured judges. And as the domain of what is required by the Constitution is expanded, the domain of what is left to the people and their elected representatives to decide is narrowed. Just as Roe v. Wade, by constitutionalizing the issue of abortion, has deprived the people of any effective voice in larger questions of abortion policy, the new Privileges or Immunities Clause will inevitably deprive the people of an effective voice in whatever has been constitutionalized. If the twenty-first century constitution prevails, future health-care debates will not occur on C-Span, they will not be waged through letters and other communications to members of Congress, and they will not be influenced by game-changing elections or by executive-legislative roundtables, but they will instead be carried out by confidential memorandums circulating back-and-forth between the chambers of federal appellate judges. Although it was once said of our Constitution that it does not enact Herbert Spencers concept of laissez faire capitalism,17 we will soon see whether it does today enact a European welfare state or even a more thoroughgoing form of socialism. Professor Michael Forbath of the University of Texas Law School writes in this regard, Certain basic social goods must be available to every member of the national community; the market must not govern who enjoys them; no one can justly be excluded. Every American is entitledto a decent education. Every American has a right to health care. . . . We need to reacquaint ourselves with the rich, reformminded, distributive tradition of constitutional law and politics (emphasis in original).18 Similarly, Professor Robin West of Georgetown Law Center asserts that, properly understood, the Fourteenth Amendment doesnt posit law itself as the evil against which individuals need protection. Instead, the absence of law . . . is the bad thing from which citizens must be protected. . . . it seems to be state inaction, not state action, which is unconstitutional (emphasis in original).19 The Fourteenth Amendment, she observes, should not be viewed as hostile to the very idea of affirmative welfare rights, but rather as a vehicle of progressive, egalitarian politics, combating worldly inequality and operating as a mandate of economic justice. This requires an understanding of laws point and purpose as being the protection of people from the oppressions, of each other and not just protection of the individual from the state.20 The remarkable breadth of this new constitutional vision is perhaps glimpsed best from the remarks of Professor Richard Ford of Stanford Law

School, who states, [T]he black ghetto is kept in place by public policy, including policies such as local taxation and revenue distribution (school finance), the delegation of land use authority to local governments (exclusionary zoning), and the organization of U.S. states into localities with a franchise restricted by strict territorial borders and a residency requirement. . . . For constitutional lawyers, the next step follows pretty easily: The policies that perpetuate ghetto segregation are unconstitutional.21 Thus, in lieu of meaningful debate within elected representative bodies concerning great matters of public policynot least of which is the role of self-reliance and personal responsibility in American lifethe twenty-first century constitutionalist would relegate such decisions to courts. Once positive or welfare state rights become embedded as a constitutional first principle, there will be no end to litigation in pursuit of such claims, for there will never be any point of equilibrium at which some persons will not seek more from government as a matter of right. Ours will then be an America given definition by a Constitution in which citizens are entitled to what is possessed by their neighbors; economic redistribution is as deeply engrained a guiding principle as federalism; the great constitutional issues of the day are focused upon levels of food stamp subsidies and whether public housing allowances should be reimbursed at 103 or 108 percent of those of the previous fiscal year; and a never-ending succession of new constitutional rights are parceled out by the successors to our Founding Fathers on the bench when the people are deemed worthy. In short, ours will be a Constitution no longer informed by an eighteenth century Declaration of Independence, but by a twenty- first century Declaration of Dependence. 3. State Action [N]or shall any state deprive any person of life, liberty or property, without due process of law. (Amendment XIV, 1) An element of both the Due Process and the Privileges or Immunities Clauses, and viewed as anachronistic by proponents of the twenty-first century constitution, is the requirement of state action as a precondition to the enforcement of constitutional civil rights. In the Civil Rights Cases, which along with Slaughterhouse is another post- Civil War precedent, the Supreme Court asserted that the guarantees of the Fourteenth Amendment pertain only to 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 [individuals] rights remain in full force.22 However, for advocates of twenty-first century constitutionalism, the Constitution must do more than merely define the relationship between the individual and the state if it is to accomplish the remaking of society; to achieve fairness and equity, as they perceive these, the Constitution must take on the cast of a general legal code, applicable to matters both public and private. Therefore, once again the realm of judicial decision- making must be broadened and the realm of non-judicial decision-making, in this instance private decision-making, must be narrowed. Fourteenth Amendment concepts of due process, equal protection, and privileges or immunities must each be made applicable to private institutions as they are now applicable exclusively to public institutions. In the process, a Constitution defining the rights of the individual, by defining the limits of government, is to be transformed into something much different. Consider, for example, Hillsdale College. Efforts to obscure distinctions between the public and private spheres have consumed a fair amount of time on the part of government officials seeking to regulate the affairs of Hillsdale. Despite being the embodiment of a thoroughly independent and private institution, such 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 assertion, and in order to maintain its independence from federal controls, Hillsdale rejected further grants-in-aid, government officials then sought to justify its regulatory authority on the grounds that Hillsdale was the indirect beneficiary of public tuition assistance going to individual students, even such genuinely-earned tuition assistance as GI benefits. These, it was claimed, essentially rendered Hillsdale indistinguishable from the University of Michigan or Michigan State University in terms of its status as a state actor. In response, Hillsdale once again sought to maintain its independence by disallowing students from receiving public tuition grants, instead bolstering its own scholarship resources. Hillsdale College is hardly the only private institution to have become the object of steadily more aggressive and creative efforts by lawyers and governmental regulators to treat private entities as the perpetrators of state action, and by this fiction to extend the reach of the Fourteenth Amendment of the Constitution. However, it would be much more convenient for those who wish to expand the purview of the public sector, while eroding the autonomy of the private sector, to simply nullify the state

action requirement altogether. Professor Frank Michelman of Harvard Law School, for example, sees as desirable a body of constitutional law that has application to the legal norms governing the conduct and relationships of nongovernmental actors . . . . [I]t should be no more awkward for a court, on constitutional grounds, to block private economic power [where it infringes upon equal opportunity and basic rights] than to block a government from doing so. However, a so-called state action rule . . . currently stops courts from applying constitutional standards to relations and transactions between private parties. . . .23 While Professor Michelman acknowledges difficulties in moving in the direction of constitutionalizing private relations, ultimately he is confident that upper-echelon judges possess the wisdom and judgment to reweigh the orderings of constitutionally resonant interests, and to balance the constitutionally sensitive interests that may exist on both sides of a private dispute.24 Of course, what constitutes a constitutionally resonant, or a constitutionally sensitive, interest is not to be confused with what comprises a plain oldfashioned constitutional interest, since the latter are already quite well-protected and Professor Michelman envisions that there is much more that courts need to do. In truth, Professor Michelman is prescribing the replacement of private decision-making with judicial decision-making. Judges will divine new privileges, new immunities, new rights, and new standards of equal protection, and each of these will be made applicable to the universe of relationships occurring between individuals, governments, businesses, and private organizations and associations of every conceivable type. Professor Michelman inquires with a few introductory illustrations, Should parents be disallowed from conditioning inheritances on marriage within their faith? Should churches be disallowed from reserving jobs . . . for co-religionists? Should employers and employees never be allowed to opt for employment that either side can terminate freely at any time without having to give reasons? Dont we see constitutionally resonant concerns on both sides? And dont we then have to ask ourselves which we trust more these days and in the coming years to work out resolutions reflecting our mix of values and concerns: elected governments acting alone, or governments acting under limits imposed by judges applying constitutional norms to the best of their understanding?25 Apparently, allowing an individual to act by his or her own norms is not even among the options to be considered. Similarly, Professor Mark Tushnet, also of Harvard Law School, instructs us that [t]imes have changed, and the Civil Rights Cases must be reconsidered.26 He writes, The state-action doctrine thus contributes nothing but obfuscation to constitutional analysis. It works as a bogeyman because it appeals to a vaguely libertarian sense that Americans have about the proper relation between them and their government. The stateaction doctrine seems to send the message that theres a domain of freedom into which the Constitution doesnt reach. . . . We would be well rid of it.27 For Professor Tushnet, the state action doctrine would be superseded by an inquiry as to whether the state owes any duty to regulate the private entity. Such duty would presumably be assessed in the same vague and standardless manner as would Professor Michelmans inquiries concerning what comprises a constitutionally resonant or a constitutionally- sensitive interest. Each of these determinations would, of course, be undertaken by our guardians on the bench, looking to their own elevated consciences, rather than to the Constitution whose actual language asks no such questions as those posed by Professor Michelman or Professor Tushnet, and therefore supplies no relevant answers. In the end, Hillsdale Colleges policies concerning such matters as tuition, diversity, admissions, curriculum, multiculturalism, affirmative action, discipline, and honor codes, would each have to survive the scrutiny, and receive the imprimatur, of judges. By this erosion of historical constitutional distinctions between that which is public and that which is private, the most genuine realm of diversity within American societythe diversity of a private sector with its range of interests, enthusiasms, perspectives, rituals, and practiceswill have been further deadened. 4. Political Questions The Congress shall have the power to declare war . . . To make rules concerning captures on land and water . . . To establish a uniform rule of naturalization; the President shall be Commander in Chief of the Army and Navy of the United States. (Article I, 8; Article II, 2) In realms of public policy that were once viewed as inappropriate for judicial intervention, federal courts, especially the Supreme Court, have begun to assert themselves in an unprecedentedly 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 largely non-justiciable and within the exclusive responsibility of the executive and legislative branches of government. That is, the

Constitutions judicial power has traditionally been understood as requiring deference by the judiciary to the judgments of the popular and accountable branches of government. As far back as Marbury v. Madison, Chief Justice Marshall recognized that, Questions in their nature political . . . can never be made in this Court.28 Political questions have subsequently been clarified as those in which there was some textually demonstrable constitutional commitment of the issue to a coordinate political department, as well as by the impossibility of a courts undertaking independent resolution without expressing lack of the respect due coordinate branches of the government.29 Yet, just since the beginning of the twenty-first century, the Supreme Court in a series of closely-divided decisions has arrogated unto itself authority concerning the treatment of captured enemy military combatants, overruling contrary determinations of both the Congress and the president. Most notably, in Boumediene v. Bush,30 the Supreme Court ruled that foreign nationals captured in combat and held outside the United States as prisoners of wara war assented to by the Congress and waged by the president as commander in chiefpossess a constitutional right to challenge their detentions in federal court. Thus, in yet one more realm of policyone as to which the sovereignty and liberty of a free people are most dependent, national defense judges have now embarked upon a sharply expanded role. The Supreme Court has bestowed constitutional rights upon enemy combatants who previously enjoyed none, it has overturned the judgments of the branches charged with ensuring this countrys national security, it has eroded the Constitutions apportionment of powers by asserting that the presidents exercise of his authority as commander in chief may require the vindication of judges, and it has initiated an ongoing role for federal judges in developing rules and procedures to ensure the meaningful judicial review of military detention decisions.31 As Justice Scalia stated in dissent, Boumediene makes unnervingly clear, how to handle enemy prisoners . . . will ultimately lie with the branch that knows least about the national security concerns that the subject entails.32 And to Justice Clarence Thomas, such decisions are of a kind for which the judiciary has neither aptitude, facilities nor responsibility and which [have] long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.33 In similar fashion, the Supreme Court has also recently disregarded traditional strictures concerning judicial involvement in matters of immigration and naturalization, curtailing the deference owed by the judiciary to the president and the Congress. Just as due process rights have been redefined and expanded to cover enemy combatants, due process rights have also been redefined and expanded to cover illegal aliens who have no right to be in this country and who have been in perpetual violation of its laws from their initial moment of entry. In Zadvydas v. Davis, the Court articulated an apparent constitutional right on behalf of an illegal alien to supervised release in the United States if, after being held in detention awaiting deportation for six months, he has not yet been accepted by his home country.34 Thus, whether the illegal Yemeni immigrant must be released into the United States is now constitutionally a function of whether the country of Yemen itself wishes to allow that person back into Yemen, not whether such release is in the best interests of the United States. To Professor Harold Koh of Yale Law School, there can be no law-free zones, no extralegal spaces, no realm within which judges should not have the final word, no matter to which branch the Constitution actually allocates decision-making responsibility.35 How far do our human rights and constitutional obligations extend? is a question that, for Koh, has been brought into sharp relief by Abu Ghraib and the debates over extraterritorial torture, the mistreatment of detainees at Guantnamo, and the denial of habeas corpus and full trial rights to suspected enemy combatants.36 Professor David Cole of Georgetown Law Center further opines that there is . . . no reason that due process should be inapplicable altogether simply because the United States is acting outside rather than inside its physical borders.37 The Supreme Court will soon be faced with critical decisions concerning what remains of the political questions doctrine, whether there are any areas remaining within our Constitution in which policy decisions can be undertaken by legislative and executive officers absent the scrutiny, secondguessing, and vindication of judges. If there is no longer any vital doctrine of political questions, if there are no longer traditional limitations upon the exercise of the Constitutions 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 recast as a justiciable dispute or a case or controversy. As a result, every significant debate taking place within government, at every level, will become little more than a prelude for final judicial resolution. All that will be left to do by elected representatives will be the full- time administration of judicial orders and

decrees. 5. Ninth Amendment The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. (Amendment IX) Another looming constitutional battleground concerns the meaning of the Ninth Amendment to the Constitution. Many twenty-first century constitutionalists view the Amendment as communicating that there is some unknown array of unenumerated rights that lie fallow within the Constitution, waiting only to be unearthed by far-sighted judges applying their own conceptions of natural justice. Professor Thomas Grey of Stanford Law School has stated, for example, that the Ninth Amendment constitutes a license to constitutional decision-makers to look beyond the substantive commands of the constitutional text to protect fundamental rights not expressed therein.38 Rights of abortion, contraception, and homosexual conduct, and similar sexually-orientedprivacy rights, have been imposed by judges detecting such rights in the Amendment. However, in the words of former Supreme Court Justices Potter Stewart and Hugo Black, this understanding turns somersaults with history39 and would render the courts a day-to-day constitutional convention.40 Instead, 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, the Amendment was designed to dispel any implication that by the specification, or enumeration, of particular rights in the Bill of Rights, the people had implicitly relinquished other rights not specified or enumerated. The Ninth Amendment must be read in conjunction with the Tenth Amendment, which specifies that, The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.41 The retained rights described in the Ninth Amendment were understood by the Founders as those many rights that remained after the few powers that were delegated to the federal government were subtracted from the peoples original sovereignty. These retained rights, or powers reserved as they were sometimes termed, cannot by definition conflict with or trump the powers delegated to the federal government because they are defined as the corollary. That is, the retained rights of the Ninth Amendment are defined obversely to the powers that have been delegated to the federal government. A constitutional right is viewed simply as the opposite of a governmental power, as merely a power not delegated to the federal government. Thus, if under the Constitution, the federal government has been delegated the power to outlaw or punish counterfeiting, then no person retained the constitutional right to engage in counterfeiting. If, on the other hand, the federal government has not been delegated the power to compel the purchase of health insurance, then this right was retained by the people. The proper constitutional inquiry is always whether a particular power has been delegated to the federal government: if it has been, there is no retained right; if it has not been, then there is such a right, at least with regard to the federal governmental action. Perhaps most importantly, however, the retained rights of the Ninth Amendment cannot logically be limiting upon the states, for the Constitution does not delegate powers to the states but only to the federal government, and therefore the states cannot violate rights by carrying out undelegated powers. Only the federal government can violate such rights. As the Tenth Amendment makes clear, the only constitutional rights protected against the states are those that are a function of the Constitutions relatively few prohibitions upon the power of the states. That is, the federal and state governments enjoy vastly different relationships with the Constitution: the states draw none of their powers from the Constitution, while the federal government draws all of its powers. Therefore, a right retained with respect to the federal government may or may not also be retained with respect to a state. That would depend upon what is provided for in the state constitution: have the people of a particular state limited such retained rights through their state constitution? One would not look to the federal Constitution, and certainly not to federal judges, for the definition or enforcement of such purely state rights. The Ninth Amendment then, like the Tenth Amendment, was adopted to emphasize that our federal government is one of limited powers. Its principal purpose was to avoid an implied extension of federal power. The Ninth Amendment authorizes courts to declare unconstitutional acts of Congress that exceed its limited and delegated powers, even where such acts do not contravene a specific provision of the Bill of Rights. Judge Robert Bork has observed that the Amendment is not a mere inkblot, and not an open-ended grant of judicial authority.42 Rather, as Justice Anthony Kennedy has observed, the Ninth Amendment is a recognition of state sovereignty . . . and of the role of states in defining human rights.43 The twenty-first century constitutionalist would transform what is at its core a proclamation of limited constitutional government into a warrant for unlimited judicial government. 6. Full Faith and Credit Full faith and credit shall be given in each state to the

public acts, records, and judicial proceedings of every other state. (Article IV, 1) Professor William Eskridge of Yale Law School has written that by 2020, the U.S. Constitution ought to be ripe for a national constitutional requirement that states must provide some legal structure for samesex relationships.44 Until then, Professor Eskridge believes not that family law can be entrusted to the democratic processes, only that litigative efforts will be largely directed toward state judges interpreting state constitutions.45 Dissent to this proposition within the twenty-first century constitutional community arises largely with regard to Professor Eskridges relatively pessimistic timetable for constitutional change. While recognizing that the decline of the nuclear family generates an understandable anxiety among Americans, and that liberal constitutionalism should be responsive to this anxiety, he counsels that this must not be done in ways that disrespect choice and equality norms. . . .46 If twenty-first century constitutional values prevail, by some conjunction of the Full Faith and Credit and the Equal Protection Clauses, decisions concerning traditional, as well as not-so-traditional, domestic institutions catalogued by Professor Eskridge as including marriage, adoption, child custody, domestic and registered partnerships, cohabitation, covenant marriages, mix-and-match parenting, child support, and new reproductive technologies will be removed from the states, and the people, and placed, as a matter of constitutional law, within the purview of the judiciary.47 The issue, as it has been throughout these remarks, is not the wisdom of any particular policy, but rather who is entitled under our Constitution to make decisions concerning these policies, the people through their elected representatives or judges? What is the proper venue for such decision-making? The Full Faith and Credit Clause was intended both to unify the states as part of a single union, and to underscore the sovereignty of the states, by according respect for their judicial proceedings in the courts of other states. Debts incurred in Nebraska would be respected in Indiana, child custody determinations in Florida would be honored in Illinois, and estate determinations in Michigan would be maintained in Texas. However, the Clause also references the public acts of other states, in addition to their judicial proceedings. The precise circumstances in which a state under the Full Faith and Credit Clause must accord deference to the public acts of another state remain uncertain. It seems unlikely that the Clause was intended to allow a single state, no matter how outlying and aberrational its policies, to impose such policies as a matter of full faith and credit upon every other state. As the Supreme Court has remarked, attributes of [state] sovereignty preclude resort to the Full Faith and Credit Clause as the means for compelling a state to substitute the statutes of other states for its own statutes . . . the Full Faith and Credit Clause does not require one state to substitute for its own statute, applicable to persons and events within it, the conflicting statute of another state.48 A clear understanding of the lines of demarcation between the sovereignty interests of one state and the full faith and credit interests of another state, as noted, has yet to be articulated. However, a reconciliation of these interests that required states to conform their own policies to the contrary and objectionable policies of other states, including even the most extreme of these, would effectively transform the Full Faith and Credit Clause from a shield upholding the integrity of the states into a sword threatening this same integrity. Equally significantly, it would once again enhance the role of the judiciary in enabling case-by-case determinations as to which state policies were worth preserving and which were not. The constitutional status of state laws would no longer be a matter of sovereignty, but merely of judicial sufferance. Pursuant to its authority in Article IV to prescribe the effect of the Full Faith and Credit Clause, Congress has enacted legislation that would allow each state to maintain its own definition of marriage, and many states have asserted this same right to define its own domestic policies and institutions.49 Nonetheless, there is no reason to suppose that the right alignment of justices on the Supreme Court might not conclude that such assertions of national and state legislative authority are each trumped by the Courts alleged authority to strike the balance between the interests of Vermont in having full faith and credit given to its marital policies and the interests of Louisiana in maintaining its own contrary policies. This prospect is clearly heightened by the Courts growing disregard of the political questions doctrine and the deference required under this doctrine to Congresss judgments on matters in which there has been a textually demonstrable constitutional commitment of the issue to a coordinate political department[s], such as those pertaining to the Full Faith and Credit Clause. 7. Transnationalism Professor Koh is perhaps the leading proponent of what he describes as the philosophy of transnationalism. He compares this with what he describes as the philosophy of nationalism, that has inexplicably taken hold of American legal institutions for the past 220 years. The transnationalist and the nationalist

philosophies differ, inasmuch as the transnationalists tend to believe in the political and economic interdependence of nations, while nationalists focus instead on preserving U.S. autonomy. The transnationalists recognize that international and domestic law are merging into a hybrid body of transnational law, while nationalists preserve a rigid division between domestic and foreign law. Transnationalists believe that domestic courts have a critical role to play in incorporating international law into domestic law, while the nationalists claim that only the political branches are authorized to domesticate international legal norms.50 Linda Greenhouse of the New York Times has described this phenomenon as judges becoming participants in a worldwide constitutional conversation.51 Professor Koh is not alone in what he views as the developing schism on the courts. Professor Cole also predicts that the shift in the twenty-first century will be from federal to transnational regulation.52 To Professor Cole, the appeal of international human rights law extends to such matters as the death penalty, criminal justice, gay rights, and economic and social rights, where international human rights standards often reflect more robust visions than does current U.S. constitutional law.53 The Constitutions original understanding, he asserts, is recapitulated today in the universalist understanding of human rights that animates various human rights treaties . . . we will be best served by a strategy . . . that seeks to employ the rhetoric and tactics of the international human rights movement to help frame our constitutional vision. We should steer clear of appeals to citizenship in favor of the more universal claim of human dignity, which rests ultimately on personhood.54 Professor Michelman elaborates that twenty-first century constitutionalists should . . . want a body of constitutional law that is receptive to influence by the norms and practices of a broader community of constitutional-democratic jurisdictions and tribunals,55 while Professor Vicki Jackson of Georgetown Law Center explains that if one believes that the Fourteenth Amendment infuses the Constitution with a commitment to antisubordination, the jurisprudence of a country like South Africa may be illuminating on the possibilities and limitations of such an approach.56 Needless to say, whatever has been opined concerning the anti-subordination principle by the judicial powers-that-be in Pretoria and Johannesburg, neither the ratification history of the Fourteenth Amendment nor the past 140 years of Supreme Court decisions on this Amendment is replete with references to this principle. Professor Koh predicts that the clash between competing visions of American constitutional law, between transnationalism and nationalism, 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 will proceed. He asks, What will the United States and the world look like if we just let constitutional change happen? And what will they look like if we seize this moment to push our constitutionalism and our politics in better directions?57 Just as Professor Koh views the Supreme Court as having acted to strengthen the role of the federal government during various historical eras, a parallel phenomenon will unfold over the next generation: the development of a transnationalist legal system . . . through the interpretive activities of U.S. courts in delineating the relationship between domestic courts and international and foreign tribunals.58 In practice, as best as anyone can understand this particular blank check to the judiciary, 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, 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 places like Geneva and The Hague; it would expose American soldiers and our elected leaders to international sanctions for supposed war crimes and violations of the Earth; and it would substitute for the judgments of persons representing the American people, and holding paramount the interests of the United States of America, the judgments of European functionaries and multinational panels of judges finely balancing the interests of this country with those of countries controlled by dictators and autocrats throughout the world. 8. Judicial Restraint Lest anyone view the forthcoming debate over the twenty-first century constitution as arising exclusively in the context of broader assertions of judicial authority, this would not be entirely incorrect. Most twenty-first century constitutionalists anticipate that judges might also get in the way in limited circumstances. Professor Cass Sunstein, for example, of the University of Chicago Law School, describes what he identifies as an emerging conservative judicial activism which must be fought off.59 Judges of this stripe would strike down affirmative action programs under the Equal Protection Clause, gun control laws under the Second Amendment, restrictions on commercial and

campaign speech under the First Amendment, broad exercises of regulatory authority under legislative non-delegation principles, takings of private property under the Fifth Amendment, and much else.60 Professor Ford expresses a similar concern that the Constitution could conceivably be deployed to hinder progressive agendas, limiting or forbidding, for example, affirmative action, school desegregation, race-sensitive electoral reapportionment, and public contracting set-asides for women- and minority-owned businesses.61 And Professor Balkin, writing with Professor Reva Siegel, also of Yale Law School, warns that progressives must be vigilant to ensure that courts give the political process more latitude in deciding when race or sex-conscious laws are needed to dismantle caste. . . .62 Thus, it would be misleading to speak of the forthcoming constitutional debate as one between believers in judicial activism and believers in judicial restraint. For, in the same way that unwarrantedly activist judges may act beyond the judicial power by concocting law out of whole cloth, unwarrantedly restrained judges may act beyond the judicial power by failing to uphold protections that are genuinely conferred by the Constitution. What is wrong with twenty-first century constitutionalism is not that it is overly activist, or overly restrained, but that it is activist when the Constitution commands restraint, and it is restrained when the Constitution commands action. This is because twenty-first century constitutionalism accords little consideration to the actual language, plan, or history of the Constitution, which should be the determinants of what is required in its name. Rather, twenty-first century constitutionalism is committed to the transformation of the Constitution. Because its advocates are well-aware that public support could never be secured for amending the Constitution through the established procedures of Article V in ways they support, the twenty-first century constitutionalist has little recourse than to consistently offer distorted and farfetched interpretations of our supreme law and trust that these interpretations will be secured, not by the rule of law, but by the rule of like-minded men and women, all garbed in black robes. 9. Miscellaneous Issues While I have attempted here to share some sense of the great constitutional debate that is now quietly emerging in the land, there will be a wide range of other specific constitutional issues that are likely to come before the judiciary. At the core of a substantial number of these controversies will be the recurrent question, Who makes decisions under our Constitution? The following are a few of these controversies, which I have categorized as implicating one or another of the auxiliary precautions of the Constitution, federalism, the separation of powers, and limited government:63 a. Federalism (1) To what extent will state criminal punishments be nationalized, in the same manner that state criminal procedures have already been nationalized, by federal courts exercising proportionality review under the Cruel and Unusual Punishment Clause of the Eighth Amendment? (2) To what extent will Tenth Amendment federalism issues continue to be viewed by the Court as effectively outside its power of judicial review? (3) To what extent will the authority of state courts be further undermined by novel and expansive theories of habeas corpus review by federal district courts? (4) To what extent will the Establishment Clause of the First Amendment be viewed as compatible with school vouchers and other innovative state approaches to educational reform? (5) To what extent will the Commerce Clause of Article I impose any meaningful limitation upon the exercise of federal legislative power, and the resultant diminishment of state legislative power? Indeed, to what extent will any of the provisions of Article I, 8 remain a meaningful limitation upon the exercise of congressional power? (6) To what extent will the Equal Protection Clause, and the Fifteenth Amendment, be viewed as requiring states to adopt particular policies on such electoral matters as felon voting, pre-election day registration, bilingual ballots, voter fraud and integrity measures, single-member electoral districts, racial and ethnic gerrymandering, and proportional representation? (7) To what extent, if any, are there limitations upon the ability of the federal government to impose rules and regulations upon the states in areas of policy traditionally within the jurisdiction of the states, such as domestic law, through the practice of attaching conditions to federal grants-in-aid? (8) To what extent will new fundamental rights be identified that can be made the subject of state and local legislation only if they satisfy strict judicial scrutiny? (9) To what extent will the enforcement clauses of the Thirteenth, Fourteenth, and Fifteenth Amendments be understood to confer legislative authority by the Congress to restrict state action? (10) To what extent will the Privileges and Immunities Clause of Article IV allow states to retain distinctions between the rights of their own citizens and those of non-citizens? b. Separation of Powers (1) To what extent will the issuance of increasingly broad executive orders and executive agreements, and other unilateral actions undertaken by the president, be viewed as compatible with the Constitutions grant of legislative and executive powers? (2) To what extent will governmental

anti-terrorist initiatives be treated primarily as matters of criminal justice, as opposed to matters of national defense and security? (3) To what extent will the development of broad public policies undertaken through litigation, such as the Google book digitalization project, for example, continue to be viewed as implicating the federal judicial power rather than the federal legislative power? (4) To what extent will the constitutional separation of powers accommodate increasingly nontraditional governmental decision-making bodies, e.g., panels on which experts are empowered to make determinations concerning the rationing of public health-care benefits; fiscal-policy taskforces empowered to offer spending and taxing recommendations that would be guaranteed a vote in the Congress; and pay czars? (5) To what extent will the traditional doctrines of standing be curtailed so that the decisions of the legislative and executive branches can more easily be challenged before the judiciary? (6) To what extent will the continued growth of the administrative state, and increasingly broad delegations of legislative power by the Congress, be sustained under Article I? (7) To what extent will the provisions of international treaties entered into by the United States be required to satisfy the provisions of the United States Constitution? To what extent will such treaties be viewed as self- enacting in terms of their impact upon the state and federal governments? (8) To what extent will the Equal Protection Clause of the Fourteenth Amendment continue to accommodate government quotas, set-asides, affirmative action, disparate impact analysis, special ethnic tribal rights, and race/ethnic-conscious decision-making? Will there be any realistic movement toward a phase-out of such programs as was the expectation of Supreme Court Justice Sandra Day OConnor in her opinion allowing the University of Michigan Law School to take race into consideration in its admissions policies? (9) To what extent in order to uphold privacy rights in the realm of abortion does the Constitution require the adoption of particular substantive policies on such matters as affordable child care, sex education, prenatal health care, and parental leave? (10) To what extent will a Reconstruction-era precedent allowing the Congress to make exceptions to the appellate jurisdiction of the Supreme Court be affirmed, reversed, or explained? c. Limited Government and Rights (1) To what extent under the Equal Protection Clause will governments be precluded from distinguishing between citizens and non-citizens in terms of eligibility for social services, participation in public programs, and qualifications for public employment? To what extent will alienage or even illegal alienage become a suspect or protected constitutional category worthy of heightened judicial protection? (2) To what extent does the First Amendment permit the accommodation of religious views in such areas as fair housing laws, abortion conscience clauses, and faith-based social services programs? (3) To what extent will broadened environmental laws and regulations be reconciled with private property rights under the Takings Clause of the Fifth Amendment? (4) To what extent will growing religious diversity within the United States require new understandings of the Establishment and Free Exercise Clauses of the First Amendment? (5) To what extent will the Contracts Clause of Article I remain a meaningful part of the Constitution, pertaining in some manner to foreclosure policies, cram-downs, bondholder rights, and debtor-creditor relations? (6) To what extent will the First Amendment be viewed as tolerating governmental restrictions upon associational speech and campaign advertising, restoration of the fairness and equal time doctrines, and public subsidies of the media? To what extent, as urged by Professor Robert Post of Yale Law School, will new forms of speech be identified that do not deserve constitutional protection, including possibly commercial speech, communications of media conglomerates, campaign contributions, and racist speech? (7) To what extent is there a constitutional entitlement to the continued receipt of public funding of the sort articulated recently by a federal district court in Acorn v. United States? (8) To what extent is birthright citizenship, automatically granting American citizenship to the children of illegal aliens born within the United States, compelled by 1 of the Fourteenth Amendment? (9) To what extent will capital punishment remain constitutional and, even if it does remain so, to what extent will it remain an effective and practical sanction in light of various constitutional preconditions and restrictions placed upon its application? (10) With the Supreme Court having decided that the right to keep and bear arms under the Second Amendment is a right belonging to individual citizens, to what extent will this right be interpreted to allow or restrict the ownership and possession of firearms? Advice and Consent Process Defenders of the American Constitution are on their strongest footing, not when their arguments are presented in the courtroom or in the college classroom, but when they are presented directly to the American people. The critical choke-point in checking- and-balancing the federal judiciary, and in preserving the integrity of the Constitution, is

the judicial advice and consent process in the Senate. Once this process has been completed, the judicial nominee becomes the judge, and he or she remains in that position for life. Impeachment or removal of a judge on the basis of particular decisions is no possibility at all. So if defenders of Madisons, and indeed Lincolns, Constitution are to prevail in the forthcoming debate, and if the American Constitution is not to be altered beyond recognition without the people being made aware of what is being done in their name, there must be debate, and such debate practically can only take place within the advice and consent process. It is beyond the scope of this paper to do more than offer several brief, and mostly obvious, suggestions as to how the debate over the twenty-first century Constitution can be best engaged: (1) Supreme Court confirmation hearings must come to be viewed as a periodic opportunity in our nations life to assess the state of our Constitution, and to communicate to the American people the nature of ongoing legal debates, whose resolution will determine what that Constitution, and what the United States of America, will look like to their posterity. (2) Supreme Court confirmation hearings should be focused upon the state of the Constitution as much as upon the qualifications of the nominee. To the extent that a person is to become a temporary custodian of the Constitution as a justice, the public is entitled to be informed how that person intends to carry out this extraordinary responsibility, and it is entitled to assurances that their Constitution will be faithfully maintained as a result of that justices tenure on the bench. (3) The gravity of the confirmation process should be underscored by more fully examining lower federal court nominees as to their perspectives concerning significant constitutional issues and trends. (4) In view of its Horatius-like position in the judicial nomination process, and in view of the growing impact of the judiciary upon our nations life, membership on the Senate Judiciary Committee should be designated for senators, lawyers or not, who are the most highly-regarded by their colleagues for their commitment to the Constitution and for their appreciation of its principles. While the Judiciary Committee may have a limited power of the purse, and only modest legislative jurisdiction, its dominant role in overseeing the perpetual regeneration of one of the three branches of our national government should mark appointment to this Committee as a showing of singular trust and honor. (5) Members of the Judiciary Committee should make clear in their examination of judicial nominees that there are distinctions between seeking commitments as to how a nominee will decide a particular future case (improper); ascertaining the approaches by which the nominee will interpret, and thereby give meaning to, the Constitution (proper); and eliciting perspectives concerning broad constitutional issues (proper), such as a color-blind Constitution, positive or welfare state rights versus negative constitutional rights, and transnationalism. Senators should be consistent in drawing these distinctions, without regard to the party of the president who appointed the nominee. (6) Senators should take care to avoid conflating disagreement over a nominees judicial philosophy with that nominees lack of credentials, character, or integrity. The constitutional debate will be enhanced if it remains a genuinely constitutional debate. (7) Senators should seek more sustained opportunities to question Supreme Court nominees in order to generate a fuller and more complete understanding of the nominees perspectives on often-difficult and complex issues of constitutional policy. Preparation for thoughtful and relevant follow-up questioning is all-important in making the most of the confirmation process. (8) Without sacrificing the precision that may be required in the interchange between senators and nominees, senators should take care to communicate to the public the practical consequences of often-arcane constitutional issues and principles. In particular, they should emphasize the dominant constitutional issue of our times: who gets to make policy decisions? (9) Finally, efforts should be undertaken to introduce constitutional discussion more routinely into the general legislative process. Members of Congress take an oath to the same Constitution as do judges. Inquiries concerning matters of constitutional authority should more routinely be raised during committee and floor debate. Also, legislative innovations such as constitutional impact statements in committee reports, constitutional authority statements in bills and resolutions, and more extensive constitutional inquiries in Senate Judiciary Committee questionnaires, should be seriously considered. Conclusion President Barack Obama has stated, . . . what matters on the Supreme Court is those five percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the twenty-fifth mile of the marathon. That last mile can only be determined on the basis of ones deepest values, ones core concerns, ones broader perspectives on how the world works, and the breadth of ones empathy.64 If the twentyfirst century constitution prevails, there will be a far higher figure than five percent of cases as to

which nothing would matter more than a judges deepest values, core concerns, and breadth of empathy. Judges would be making more decisions, and they would be making more decisions in which the law would only get you through the twenty-fifth mile, if indeed it got them anywhere close to that. The central value of twenty-first century constitutionalism is not the Constitution, but the judge. Supreme Court Chief Justice Charles Evans Hughess famous aphorism that the Constitution is what the judges say it is, would take on new meaning under the twenty-first century constitution, for the extent to which judges would be required to look outside themselves to the actual language of the Constitution would be diminished, while the extent to which they would be enabled to look inside themselves, to their own consciences, would be sharply expanded.65 Professor Yochai Benkler of Harvard Law School urges, [W]e must train ourselves to think of the constitution of society, of the totality of the sources of freedom and constraint, equality and inequality, and to think of law in terms of its role in the broadly defined system of freedom and constraint.66 With all due respect, we must also train ourselves to think of Professor Benklers description as that of a constitutional regime in which the rule of law effectively binds everyone but judges. It is with the intention of promoting public debate as to the wisdom of the twenty- first century constitution, and of providing a roadmap for ordinary citizens in understanding what is at stake, that I offer these thoughts. The current non-debate over twenty-first century constitutionalism must be transformed into a genuine debate if the American people are not to be deprived of their constitutional heritage. While there has never been a time in our history in which there was not vigorous constitutional debate, I would respectfully suggest that there have been few eras in which this debate was more fundamental to defining the character of our Constitution, and of our people. ------------------------------------------------------------------------- Endnotes 1 U.S. Department of Justice. Office of Legal Policy. Report to the Attorney General, The Constitution in the Year 2000: Choices Ahead in Constitutional Interpretation. October 11, 1988. Washington, D.C.: Department of Justice. 2 Lawrence v. Texas, 539 U.S. 558, 602 (2003) (J. Scalia dissent). 3 Burt, Robert. 1991. High Court in 2010 A.D. National Law Journal (September 9): 31. 4 Balkin, Jack M., and Reva B. Siegel, eds. 2009. The Constitution in 2020. New York: Oxford University Press. 5 Slaughterhouse Cases, 83 U.S. 36, 78 (1873). 6 Slaughterhouse Cases, 83 U.S. 77. 7 See, e.g., Miranda v. Arizona, 384 U.S. 436 (1966); Shapiro v. Thompson, 394 U.S. 618 (1969), as well as other U.S. Supreme Court decisions in which the guarantees of the Bill of Rights have been incorporated, or made applicable to the states, or in which fundamental rights have been discerned in the Due Process Clause and thereby guaranteed against state violation. 8 Scott v. Sandford, 60 U.S. 393 (1857); Roe v. Wade, 410 U.S. 113 (1973). 9 Ackerman, Bruce. 2009. The Citizenship Agenda. In The Constitution in 2020, 110. 10 Barron v. Baltimore, 32 U.S. 243 (1833). 11 Liu, Goodwin. 2009. National Citizenship and the Promise of Equal Educational Opportunity. In The Constitution in 2020, 127. 12 Interview with Barack Obama, WBEZ-FM, Chicago, Il, 2001, http://www.youtube.com/watch?v=iivL4c_3pck (April 28, 2010). 13 Deshaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 195 (1988). 14 San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973). 15 Marbury v. Madison, 5 U.S. 137, 177 (1803). 16 Balkin, Jack M., and Reva B. Siegel. Introduction. In The Constitution in 2020, 3. 17 Lochner v. New York, 198 U.S. 45, 75 (1905) (J. Holmes dissent). 18 Forbath, William E. Social and Economic Rights in the American Grain. In The Constitution in 2020, 58. 19 West, Robin. The Missing Jurisprudence of the Legislated Constitution. In The Constitution in 2020, 82. 20 Ibid., 84-6, 89-90. 21 Ford, Richard T. Hopeless Constitutionalism, Hopeful Pragmatism. In The Constitution in 2020, 144, 146. 22 Civil Rights Cases, 109 U.S. 3, 11, 17 (1883). 23 Michelman, Frank. Economic Power and the Constitution. In The Constitution in 2020, 48, 50. 28 24 Ibid., 50-51. 25 Ibid., 51. 26 Tushnet, Mark. State Action in 2020. In The Constitution in 2020, 73-4. 27 Ibid., 74, 77. 28 Marbury v . Madison, 5 U.S. 137, 170 (1803). 29 Baker v. Carr, 369 U.S. 186, 217 (1962). 30 Boumediene v. Bush, 553 U.S. 723 (2008). 31 Boumediene v. Bush, slip op., at49, 69. 32 Ibid., at 6 (J. Scalia dissent). 33 Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (slip op., at 8) (J. Thomas dissent). 34 Zadvydas v. Davis, 533 U.S. 678 (2001). 35 Koh, Harold Hongju. America and the World, 2020. In The Constitution in 2020, 316-17. 36 Ibid., 321. 37 Cole, David. Strategies of the Weak: Thinking Globally and Acting Locally toward a Progressive Constitutional Vision. In The Constitution in 2020, 304-5. 38 Grey, Thomas. 1975. Do We Have an Unwritten Constitution? Stanford Law Review 27 (1975): 703, 709. 39 Griswold v. Connecticut, 381 U.S. 479, 529 (1965) (J. Stewart dissent). 40 Griswold v. Connecticut, 381 U.S. 479, 513 (1965) (J. Black dissent). 41 See generally, U.S. Department of

Justice, Office of Legal Counsel, Report to the Attorney General, Wrong Turns on the Road to Judicial Activism: The Ninth Amendment and the Privileges or Immunities Clause. 1987. Washington, D.C.: Department of Justice. 42 U.S. Congress. Senate. Committee on the Judiciary. 1987. Nomination of Robert H. Bork to be Associate Justice of the Supreme Court of the United States. 100th Cong., 1stsess., Sept. 1987. 43 U.S. Congress. Senate. Committee on the Judiciary. 1987. Nomination of Anthony M. Kennedy to be Associate Justice of the Supreme Court of the United States. 100th Cong., 1st sess., Dec. 1987. 44 Eskridge, Jr., William N. A Liberal Vision of U.S. Family Law in 2020. In The Constitution in 2020, 249. 45 Ibid., 248-49. 46 Ibid., 252. 47 Ibid., 249-251. 48 Pacific Employers Ins. Co. v. Industrial Accident Comm'n., 306 U.S. 493, 501-502 (1939). 29 49 Defense of Marriage Act, Public Law 104-199, 110 Stat. 2419 (1996). 50 Koh, Harold Hongju. America and the World, 2020. In The Constitution of 2020, 318-19. 51 Linda Greenhouse, New York Times, 6 July, 2003, section 4. 52 Cole, David. Strategies of the Weak: Thinking Globally and Acting Locally toward a Progressive Constitutional Vision. In The Constitution in 2020, 301. 53 Ibid., 307. 54 Ibid., 304, 310. 55 Michelman, Frank. Economic Power and the Constitution. In The Constitution in 2020, 48. 56 Jackson, Vicki C., Progressive Constitutionalism and Transnational Legal Discourse. In The Constitution in 2020, 292. 57 Koh, Harold Hongju. America and the World, 2020. In The Constitution of 2020, 314, 319. 58 Ibid., 320. 59 Sunstein, Cass R. The Minimalist Constitution. In The Constitution of 2020, 38. 60 Ibid., 38-40. 61 Ford, Richard T. Hopeless Constitutionalism, Hopeful Pragmatism. In The Constitution in 2020, 148-49. 62 Balkin, Jack M., and Reva B. Siegel. Remembering How to Do Equality. In The Constitution of 2020, 101. 63 Madison, James (Publius), Federalist 51, in Alexander Hamilton, James Madison, and John Jay. The Federalist Papers. Clinton Rossiter, ed. New York: Mentor, 1999, 319. 64 Sept. 22, 2005, Statement of U.S. Senator Barack Obama in opposing the Supreme Court nomination of John Roberts, http://obamaspeeches.com/031-Confirmation-of-Judge-John-Roberts-ObamaSpeech.htm (April 28, 2010). 65 Hughes, Charles Evans. Speech before the Chamber of Commerce, Elmira, New York, May 3, 1907. Addresses and Papers of Charles Evans Hughes, Governor of New York, 1906-1908. New York: G.P. Putnams Sons, 1908, 139. 66 Benkler, Yochai. Information, Structures, and the Constitution of American Society. In The Constitution of 2020, 195. -------------------------------------------------------------------------- This paper was first delivered as remarks for a February 25, 2010, event sponsored by the Hillsdale College Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship. -------------------------------------------------------------------------- About The Author Stephen Markman was appointed as Justice of the Michigan Supreme Court in 1999 and re-elected in 2000 and 2004. Prior to being appointed to the Court, Justice Markman practiced law with the Miller, Canfield, Paddock & Stone in Detroit. From 198993, he served as United States Attorney in Michigan, where he was responsible for one of the largest federal prosecutors offices in the country and received national attention for his efforts in combating violent street crime and public corruption. Justice Markman served for four years as Assistant Attorney General of the United States under President Ronald Reagan. In that position, he headed the Justice Departments Office of Legal Policy, which served as the principal policy development office, and coordination center for the federal judicial selection process. Prior to this, he served as Chief Counsel of the United States Senate Subcommittee on the Constitution for seven years. Justice Markman has authored scholarly articles for the Stanford Law Review, the University of Chicago Law Review, the University of Michigan Journal of Law Reform, the American Criminal Justice Law Review and the Harvard Journal of Law and Public Policy. He has also served as a contributing editor of National Review. Since 1993, Justice Markman has taught constitutional law at Hillsdale College as a distinguished professor of constitutional law. ------------------------------------------------------------------------- About Hillsdale College Hillsdale College was founded in 1844 and has built a national reputation through its maintenance of a classical core curriculum and its principled refusal to accept any federal or state taxpayer subsidies. It also conducts a large outreach effort that promotes civil and religious liberty, including a monthly speech digest, Imprimis, with a current circulation of 1.8 million. Through teaching the principles and practices of American constitutionalism, Hillsdales Allan P. Kirby Jr. Center for Constitutional Studies and Citizenship seeds to inspire all Americans to act worthy of the blessings of liberty. Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship Hillsdale College 10 G St., NE, Suite 710 Washington, D.C. 20002 kirbycenter@hillsdale.edu ----------------------------------------------------------------------thekirbycenter.org ###