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Tom W. Bell Writing, Reading, and Respecting a Constitution

Introduction I. Legal Models II. Legal Threats III. Legal Solutions Conclusion. Tom W. Bell Writing, Reading, and Respecting a Constitution. IHS Liberty & Society Seminar, Chapman University, June 18, 2012. Introduction I. Writing II. Reading III. Respecting Conclusion.

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Tom W. Bell Writing, Reading, and Respecting a Constitution

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  1. Introduction I. Legal Models II. Legal Threats III. Legal Solutions Conclusion Tom W. BellWriting, Reading, and Respecting a Constitution IHS Liberty & Society Seminar, Chapman University, June 18, 2012

  2. Introduction I. Writing II. Reading III. Respecting Conclusion Tom W. Bell, Writing, Reading, and Respecting a Constitution, slide 2, IHS Liberty & Society Seminar, Chapman U., June 18, 2012

  3. Introduction I. Writing II. Reading III. Respecting Conclusion Tom W. Bell, Writing, Reading, and Respecting a Constitution, slide 3, IHS Liberty & Society Seminar, Chapman U., June 18, 2012

  4. Introduction I. Writing II. Reading III. Respecting Conclusion Tom W. Bell, Writing, Reading, and Respecting a Constitution, slide 4, IHS Liberty & Society Seminar, Chapman U., June 18, 2012

  5. Introduction I. Writing II. Reading III. Respecting Conclusion a. The "People" of the preamble willingly cede some portion of their alienable rights in order to "insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty . . . .” b. The federal government can properly exercise only those powers specifically enumerated in the constitution. c. Even delegated and enumerated powers cannot be exercised to their utmost; the federal government has only limited powers. I. Writing the Constitution The U.S. Founders wrote a constitution creating a government of delegated, enumerated, and limited powers. Tom W. Bell, Writing, Reading, and Respecting a Constitution, slide 5, IHS Liberty & Society Seminar, Chapman U., June 18, 2012

  6. Introduction I. Writing II. Reading III. Respecting Conclusion Tom W. Bell, Writing, Reading, and Respecting a Constitution, slide 6, IHS Liberty & Society Seminar, Chapman U., June 18, 2012

  7. Introduction I. Writing II. Reading III. Respecting Conclusion The very notion of a written constitution, one that federal officials must, per Art. VI, cl. 3, swear to support. Structural restraints such as separation of powers, checks and balances, and respect for federalism. The “general welfare” limitation in the Preamble and in Art. I, § 8, cl. 1. The enumerated powers of Congress in Art. I, § 8. The necessary and proper clause, Art. I, § 8, cl. 18. Express limits on Congress in Art. II, § 9. The Bill of Rights. I. Writing the Constitution 2. How the Constitution reflects these ideals. Tom W. Bell, Writing, Reading, and Respecting a Constitution, slide 7, IHS Liberty & Society Seminar, Chapman U., June 18, 2012

  8. Introduction I. Writing II. Reading III. Respecting Conclusion However proves expedient? According to the S.Ct. and its precedents—i.e., “living” constitutionalism? Original Meaning—i.e., what it meant to those who ratified it? (Compare original intent.) d. According to the consent of the governed—i.e., what those now allegedly bound by the Constitution interpret it to mean? II. Reading the Constitution 1. How should we interpret the Constitution? Tom W. Bell, Writing, Reading, and Respecting a Constitution, slide 8, IHS Liberty & Society Seminar, Chapman U., June 18, 2012

  9. Introduction I. Writing II. Reading III. Respecting Conclusion Tom W. Bell, Writing, Reading, and Respecting a Constitution, slide 9, IHS Liberty & Society Seminar, Chapman U., June 18, 2012

  10. Introduction I. Writing II. Reading III. Respecting Conclusion Tom W. Bell, Writing, Reading, and Respecting a Constitution, slide 10, IHS Liberty & Society Seminar, Chapman U., June 18, 2012

  11. Introduction I. Writing II. Reading III. Respecting Conclusion Look for the plain, present, public meaning; A non-waivable default rule of "good faith and fair dealing” applies; Objective meaning—not subjective intent; The plain meaning of text trumps "course of performance" (i.e., precedent); Vague terms construed against drafter; and f. Disputes settled by disinterested parties. II. Reading the Constitution 2. The Constitution as Contract: Tom W. Bell, Writing, Reading, and Respecting a Constitution, slide 11, IHS Liberty & Society Seminar, Chapman U., June 18, 2012

  12. Introduction I. Writing II. Reading III. Respecting Conclusion Barnett argues from the 9th Amendment and other proofs that the Constitution's protects unenumerated natural rights. This presumption of liberty helps (or would, if implemented, help) to make laws promulgated under the Constitution presumptively legitimate. That approach relies solely on hypothetical consent. What about implied and express consent? III. Respecting the Constitution 1. The Presumption of Liberty Tom W. Bell, Writing, Reading, and Respecting a Constitution, slide 12, IHS Liberty & Society Seminar, Chapman U., June 18, 2012

  13. Introduction I. Writing II. Reading III. Respecting Conclusion Tom W. Bell, Writing, Reading, and Respecting a Constitution, slide 13, IHS Liberty & Society Seminar, Chapman U., June 18, 2012

  14. Introduction I. Writing II. Reading III. Respecting Conclusion Tom W. Bell, Writing, Reading, and Respecting a Constitution, slide 14, IHS Liberty & Society Seminar, Chapman U., June 18, 2012

  15. Introduction I. Writing II. Reading III. Respecting Conclusion Graduated Consent in Contract and Tort Law: Toward a Theory of Justification, 61 Case Western L. Rev. 17 (2010) Tom W. Bell, Writing, Reading, and Respecting a Constitution, slide 15, IHS Liberty & Society Seminar, Chapman U., June 18, 2012

  16. Introduction I. Writing II. Reading III. Respecting Conclusion • Arguments for consent: 1) transcendental; 2) deontological; • consequentialist; • aretaic (virtue-based). • Ask of a justification, “With regard to whom?” • Ask of of a justification, “Compared to what?” III. Respecting the Constitution 2. A consensualist theory of justification. Tom W. Bell, Writing, Reading, and Respecting a Constitution, slide 16, IHS Liberty & Society Seminar, Chapman U., June 18, 2012

  17. Introduction I. Writing II. Reading III. Respecting Conclusion • d. In sum the Constitution can be justified only relative to: • the parties to whom the Constitution’s justification would apply, and . . . • alternative social compacts that come closer to, or fall farther from, winning their express consent. III. Respecting the Constitution Tom W. Bell, Writing, Reading, and Respecting a Constitution, slide 17, IHS Liberty & Society Seminar, Chapman U., June 18, 2012

  18. Introduction I. Writing II. Reading III. Respecting Conclusion e. Upgrading the U.S. Pledge of Allegiance III. Respecting the Constitution Tom W. Bell, Writing, Reading, and Respecting a Constitution, slide 18, IHS Liberty & Society Seminar, Chapman U., June 18, 2012

  19. Introduction I. Writing II. Reading III. Respecting Conclusion Conclusion Writing the Constitution: What did the Founders mean when they wrote the Constitution? Reading the Constitution: How should we interpret it? Respecting the Constitution: Does it bind us and, if so, why and to what extent? Tom W. Bell, Writing, Reading, and Respecting a Constitution, slide 19, IHS Liberty & Society Seminar, Chapman U., June 18, 2012

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