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The Embattled Constitution

The Embattled Constitution

Edited by Norman Dorsen
With Catharine DeJulio
Marsha S. Berzon
Michael Boudin
Stephen Breyer
Guido Calabresi
Robert H. Henry
Robert A. Katzmann
Pierre N. Leval
M. Blane Michael
David S. Tatel
J. Harvie Wilkinson
Diane P. Wood
Copyright Date: 2013
Published by: NYU Press
Pages: 385
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  • Book Info
    The Embattled Constitution
    Book Description:

    "An indispensable and provocative guide through the thicket of today's most challenging constitutional controversies by some of the most eminent judges of their time. It offers an invaluable peek behind the curtain of judicial decision making." - David Cole, Professor of Law, Georgetown University The Embattled Constitution presents the fourth collection of the James Madison lectures delivered at the NYU School of Law, offering thoughtful examinations of an array of topics on civil liberties by a distinguished group of federal judges, including Justice Stephen Breyer of the U.S. Supreme Court. The result is a fascinating look into the minds of the judges who interpret, apply, and give meaning to our embattled Constitution. In these insightful and incisive essays, the authors bring to bear decades of experience to explore wide-ranging issues. The authors also discuss how and why the Constitution came to be embattled, shining a spotlight on the current polarization in both the Supreme Court and the American body politic and offering careful and informed analysis of how to bridge these divides. Contributors include Marsha S. Berzon, Michael Boudin, Stephen Breyer, Guido Calabresi, Robert H. Henry, Robert Katzmann, Pierre N. Leval, M. Blane Michael, Davis S. Tatel, J. Harvie Wilkinson, III, and Diane P. Wood.Norman Dorsenis Stokes Professor of Law and Co-Director of the Arthur Garfield Hays Civil Liberties Program at NYU School of Law. He has directed the James Madison lecture series since 1977.Catharine DeJulioisan Associate in the law firm of Sidley Austin LLP. During law school, she served as Editor-in-Chief of the New York University Law Review.

    eISBN: 978-0-8147-6280-6
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
    (pp. ix-x)
    (pp. 1-6)

    The publication ofThe Embattled Constitution, the fourth volume of the James Madison lectures, which were founded in 1959, marks a new phase of constitutional law and civil liberties.¹ The lectures published here appear at a time when the Supreme Court is sharply polarized, with seemingly intractable political forces sustaining, indeed encouraging, its ideological divisions.

    The Supreme Court has always been split. In the 1920s and 1930s three Justices—Holmes, Brandeis, and Stone—sought to overthrow the Court’s constitutional formalism that invalidated legislative attempts to soften the rigors of laissez-faire capitalism while simultaneously rejecting most civil liberties claims. In 1937...

  5. 1 Our Democratic Constitution
    (pp. 7-36)

    The United States is a nation built on principles of human liberty—a liberty that embraces concepts of democracy. The French political philosopher Benjamin Constant understood the connection. He distinguished between liberty as practiced by the ancient Greeks and Romans and the “liberty” of the eighteenth- and nineteenth-century “moderns.”¹ Writing thirty years after the French Revolution and not long after the adoption of our American Constitution, Constant said that the “liberty of the ancients” consisted of an “active and constant participation in collective power.”² The ancient world, he added, believed that liberty consisted of “submitting to all the citizens, without...

  6. 2 Federal and State Courts: Restoring a Workable Balance
    (pp. 37-54)

    We take the role of the inferior federal courts in this country for granted. It seems to us perfectly natural to have independent and inferior federal courts below the Supreme Court, and a separate system of state courts. But in fact, our system of parallel state and federal courts is unusual in a federalism, to put it mildly. In Canada, for instance, the provincial supreme courts are named by the central government.¹ It’s as if the judges of the New York Court of Appeals or the justices of the Connecticut Supreme Court were named by the President of the United...

  7. 3 Judicial Methodology, Southern School Desegregation, and the Rule of Law
    (pp. 55-106)

    Americans have fiercely debated the proper role of Article III courts in our constitutional system ever since Chief Justice John Marshall declared inMarbury v. Madisonthat it is “emphatically the province and duty of the judicial department to say what the law is.”¹ This debate often has focused on Supreme Court decisions involving some of our nation’s most historic events: the Court’s 1873 evisceration of the Fourteenth Amendment’s Privileges or Immunities Clause,² its use of substantive due process to strike down progressive legislation at the turn of the century,³ its invalidation of key New Deal programs,4 and its opinion...

  8. 4 Our Eighteenth-Century Constitution in the Twenty-First-Century World
    (pp. 107-138)

    Fine wines and Stradivarius violins improve with age, taking on greater richness and depth as the years go by. For many, if not most, other things in today’s frenetic world, value is evanescent. To be old is all too often to be out of date and ready for disposal. In this paper, I explore which conception of age better describes our Constitution—now 215 years old. Is this eighteenth-century document, along with its eighteenth-century Bill of Rights and its other seventeen Amendments, still up to the job? How well is it serving the demands we are placing upon it, particularly...

  9. 5 Judging under the Constitution: Dicta about Dictum
    (pp. 139-168)

    In the quaint language of eighteenth-century England, when judges elevated their status and authority by conducting their business in Latin, it was known as “obiter dictum”—in the plural, “dicta.” This referred to a judge’s insignificant aside remark—something to be treated lightly or, frankly, ignored. Cardozo in his time expressed amazement that judges, of all people, might “put their faith in dicta.”²

    Why would I talk about something so insignificant? The problem is that dicta no longer have the insignificance they deserve. They are no longer ignored. Judges do more than put faith in them; they are often treated...

  10. 6 Judge Henry Friendly and the Mirror of Constitutional Law
    (pp. 169-192)

    Henry Friendly served as a judge on the U.S. Court of Appeals for the Second Circuit from 1959 until his death in 1986. During that period, he wrote almost one thousand opinions,¹ several books,² thirty or so fullscale articles,³ and many tributes and book reviews.⁴ The power and quality of his work made him the most admired legal scholar and craftsman then sitting on the federal circuit courts, dominating his era as Learned Hand had dominated the 1930s through the 1950s.

    A number of Friendly’s articles and a share of his opinions concern constitutional law, broadly taken to include not...

  11. 7 Toward One America: A Vision in Law
    (pp. 193-206)

    The present age will go down in American history as a partisan and polarizing one. Indeed, that may be its defining characteristic. America has had deeply divisive eras before—the Federalist-Republican period and the Civil War spring to mind—but those eras divided over deeply consequential principles. The partisan differences of the present era are hardly insignificant, but these differences do not justify what can be described without exaggeration as the sheer magnitude of mutual hate. Thus again we have an America defined by colors—red and blue states—less portentous than the Civil War’s blue and gray, but in...

  12. 8 Securing Fragile Foundations: Affirmative Constitutional Adjudication in Federal Courts
    (pp. 207-244)

    I was so very pleased to have been invited to deliver the fortieth Madison Lecture. This honor is an especially meaningful one for me, as one of my predecessors in the Madison Lecture series was Justice William Brennan, for whom I clerked on the Supreme Court. In fact, Justice Brennan is the only person to have stood at this lectern twice—he gave the Madison Lecture in 1961¹ and again in 1986.²

    In his first lecture, in 1961, Justice Brennan described a vigorous debate then taking place in the courts about whether and to what extent the federal Constitution constrains...

  13. 9 Reading the Fourth Amendment: Guidance from the Mischief That Gave It Birth
    (pp. 245-272)

    It is a special privilege for me, as a graduate of the New York University School of Law, to have been invited to deliver the James Madison Lecture. A chief purpose of this lecture series is “to enhance the appreciation of civil liberty.”¹ Upon recalling this purpose, I thought immediately that the Fourth Amendment—the bulwark of our privacy protection—merits renewed attention and appreciation.

    The Fourth Amendment consists of two connected clauses. The first guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”² The second specifies that...

  14. 10 Living Our Traditions
    (pp. 273-296)

    In a book published in 1990, Bernard Schwartz bemoaned:

    Like Hamlet’s father, “original intention” is a ghost that refuses to remain in repose. The notion that constitutional construction should be based solely upon the intention of the framers has, despite its utter fatuousness, never been laid to rest. For it is one of those delusively simple concepts that promises a facile solution to the most difficult of our legal problems—purporting, in the process, to eliminate the uncertainty that too frequently prevails in constitutional law and to curb the excesses of judicial activism.²

    Today I want to talk about originalism,...

  15. 11 Statutes
    (pp. 297-356)

    I owe much to James Madison, that diminutive giant, one of the founding architects of our constitutional structure. In my pre-bench, academic days, much of my work focused on the challenges of governance, on the ways that our institutions operate, and on the obstacles to and steps toward the more effective functioning of government. My research and writing concentrated on a range of subjects having to do with governance, including the determinants of agency discretion,¹ and how the institutions of national government—the legislative, executive, and judicial branches—affect outcomes over time.² I viewed lawmaking as a continuum of institutional...

    (pp. 357-358)
    (pp. 359-360)
  18. INDEX
    (pp. 361-376)