Our anchor for 225 years and counting: the enduring significance of the precise text of the Constitution.

Author:Kavanaugh, Brett M.
Position:The Evolution of Theory: Discerning the Catalysts of Constitutional Change

Thank you so much for inviting me to Notre Dame. As a Catholic, I appreciate what this university stands for--a mission of training people, to educate students to help others of all faiths and backgrounds. As a Judge, I appreciate what this esteemed law school has done to train students in the law, to teach them both the fundamentals and the big picture, to teach them what to know and how to think. In the pantheon of great American law schools, this school stands as one of the finest.

I am so grateful to Dean Newton for welcoming me here. I thank Stephanie Maloney and the Law Review for their hard work, wonderful organization, and gracious hospitality. I thank my great friend Professor Bill Kelley for helping to arrange my trip. Bill and I worked together at three different times--first in the Solicitor General's office when he was an Assistant and I was what is now called a Bristow Fellow, second in Judge Starr's independent counsel office in those unpleasant duties, and finally in the White House when I was Staff Secretary and Bill was Deputy White House Counsel. There is no finer public servant and no finer man. I am grateful to Bill for mentoring me and for his loyal friendship over the years.

The topics we have been discussing today with leading thinkers of the legal academy are fascinating and important. What explains constitutional change in the Supreme Court? How do we explain and understand past changes? How do we predict and know when there is to be future change?

When one comes to Notre Dame, whether for a law review symposium or for a football game or for both, your mind is drawn to fundamentals and history. This is a place that oozes history, and in that vein, I want to take a step back and focus on the text of our Constitution. I want to focus on that text in two dimensions. First, I want to explain how the text of the Constitution creates a structure--a separation of powers--that protects liberty. And in particular, I want to emphasize how that structure tilts toward liberty, how it creates legislative and executive branches with finely specified powers so as to protect individual liberty against oppressive legislation. Second, I want to focus on the role of the Supreme Court in that constitutional structure--and how the Court itself looks to the precise words of the constitutional text both to preserve the separation of powers established by the Constitution and to protect individual liberty. My overriding message will be that one factor matters above all in constitutional interpretation and in understanding the grand sweep of constitutional jurisprudence--and that one factor is the precise wording of the constitutional text. It's not the only factor, but it's the anchor, the magnet, the most important factor that directs and explains much of constitutional law, particularly in the realm of separation of powers.


    Let's begin with the structure established by the text. The Framers of the Constitution met in Philadelphia in the summer of 1787 because of dissatisfaction with the weak national government established under the Articles of Confederation. (1) Several problems had become apparent. The national government was too weak to defend the territory and security of the United States. (2) The national government had little ability to raise revenue by way of taxes so as to support the necessary defense efforts. (3) And the splintered nature of the country at that time hindered commerce and trade, including foreign trade, and thus hindered prosperity. (4)

    A main goal, therefore, was to establish a strong central government able to protect security and promote prosperity. (5) At the same time, the Framers were keenly aware that the people within this new country consisted of many factions--those with property and those without, creditors and debtors, landed interests and manufacturing interests, and moneyed interests and many lesser interests. As Madison said in Federalist 10, "The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government." (6) Madison further explained that the Constitution had to "secure the public good and private rights" against the danger of majority rule while "at the same time to preserve the spirit and the form of popular government." (7)

    How to do this? How to create a strong central government without infringing on individual rights? Did the Framers in Philadelphia simply dictate a bill of rights to protect individuals from the majority? No. That was not the first order of business because the Framers understood that a bill of rights without a structure to protect those rights would be largely meaningless. As a practical matter, such a bill of rights would be precatory for individual legislators and executives. The danger to liberty, the Framers knew, was concentration of power. As Madison explained in Federalist 47, "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny." (8) Madison explained that tyranny could come from a single executive in whom all powers are concentrated, or from a legislature that assembles all power in its hands, the definition of despotic government. So what is the opposite of concentration of power? Separation of power. Madison explained that "the preservation of liberty" requires that the "three great departments of power should be separate and distinct." (9)

    Consistent with Madison's observations, we often remark that the Constitution's separation of powers protects liberty. We say that structure protects liberty.

    But what do we mean by that? I think people often say that without really thinking about what it means. Do we know what those high-minded platitudes mean in practice? How exactly does the separation of powers protect liberty?

    First we need to know what we mean by liberty. And while there are many different conceptions of liberty, the liberty protected by the separation of powers in the Constitution is primarily freedom from government oppression, in particular from the effects of legislation that would unfairly prohibit or mandate certain action by individual citizens, backed by punishment. There is certainly a conception of positive liberty--of entitlement to certain government benefits or support. And legislatures are equipped under our constitutional structure to provide that kind of benefit. But that is not what we are usually referring to when we say that the separation of powers protects liberty. The separation of powers primarily protects freedom from government action.

    So we know what liberty we are referring to. How does the Constitution's structure protect liberty? To answer that question we need to read the text.

    In order to protect individual liberty and guard against the whim of majority rule, the Framers first made it very difficult to enact laws. There would be no one person--no king or queen--who could simply declare the law. (10) Likewise, there would be no one body of legislators who could enact laws. (11) Rather, the Framers required the concurrence of three separate entities to enact legislation: the House, the Senate, and the President. (12) They provided, of course, for the possibility of the Legislature's overriding a presidential veto, but only with the concurrence of two-thirds of both houses of Congress. (13)

    In order to enact tax laws, or to prohibit certain activities, or to regulate commerce, the national government would require action by three separate entities. In order to pass, legislation would require consensus and broad support. The system was designed to be difficult. Keep this in mind today. The Framers wanted it to be hard to pass legislation. Legislation that attained broad support was less likely to be oppressive--to unfairly benefit one faction at the expense of another. We can talk about whether we should alter that process by constitutional amendment, but the Constitution as ratified made legislation difficult to pass.

    And there was more. Hard as it would be to enact legislation, the Framers were not content to rely on the protections of bicameralism and presentment alone. For laws that regulate private individuals and entities--laws that tell you that you cannot do something or must do something, backed by threat of an executive enforcement action and criminal punishment or civil sanctions--an enforcement entity separate from the Legislature would have to decide to in fact prosecute the violation of that law. This separate enforcement entity would be the President of the United States, as assisted by subordinate officers in the executive branch. (14) This is what we call the Executive's prosecutorial discretion--the ability to decide whether to prosecute violations and violators of certain laws. (15)

    The Executive was simultaneously given an extraordinary and unfettered power to pardon. (16) Think about that: in one person alone is vested the power to pardon violations of federal law. And you might think, well, that is an enormous power to leave to one person; how does that make sense given that the Framers were so concerned about such a concentration of power? But it's actually consistent with the Framers' design when you keep in mind that the pardon power works only in the direction of liberty--it's a check to decide to protect someone's liberty against enforcement of what the Executive deems an oppressive law, even if a prior Executive had decided to prosecute the individual for violating the law.

    So as an individual citizen, your liberty--your freedom from coercive federal government action--cannot be infringed until legislation is enacted, which requires the concurrence of...

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