The Coming Constitutional Debate Stephen Markman Justice, Michigan Supreme Court https://www.hillsdale.edu/news/imprimis/archive/issue.asp?year=2010&month=04 The following is adapted from a speech delivered in Washington, D.C., on February 25, 2010, at an event sponsored by Hillsdale Colleges Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship. 1. Over the next 20 years there will be many critical points of contention about the Constitution. The resolution of these emerging controversies will determine whether the Constitution of 2030 bears any resemblance to the Constitution of 1787the Framers Constitution that has guided this nation for most of its first two centuries and has rendered it the freest, most prosperous, and most creative nation in the history of the world. 2. Proponents of a 21st century constitution or living constitution aim to transform our nations supreme law beyond recognitionand with a minimum of public attention and debate. Indeed, if there is an overarching theme to what they wish to achieve, it is the diminishment of the democratic and representative processes of American government. It is the replacement of a system of republican government, in which the constitution is largely focused upon the architecture of government in order to minimize the likelihood of abuse of power, with a system of judicial government, in which substantive policy outcomes are increasingly determined by federal judges. Rather than merely defining broad rules of the game for the legislative and executive branches of government, the new constitution would compel specific outcomes. 3. If the progressive views win out, the important decisions would increasingly be undertaken by courts, especially by federal courts. It will be the California referendum process writ national, a process by which the decisions of millions of voters on matters such as racial quotas, social services funding, and immigration policy have been routinely overturned by single judges acting in the name of the Constitutionnot the Framers Constitution, but a constitution for our times, a living constitution, resembling, sadly, the constitutions of failed and despotic nations across the globe. 4. Let me provide a brief summary of six of the more popular theories of the advocates of the 21st century constitution. In particular, it is my hope here to inform ordinary citizens so that they will be better aware of the stakes. For while judges and lawyers may be its custodians, the Constitution is a document that is the heritage and responsibility of every American citizen. a. The privileges or immunities clause of the 14th Amendment has been understood as protecting a relatively limited array of rights that are a function of American federal citizenship .the Supreme Court in the Slaughterhouse Cases (1873) rejected the argument that the clause also protects rights that are a function of state citizenship .[Many] many proponents of a 21st century constitution seek additional federal oversight of state and local laws. Their strategy in this regard is to refashion the privileges or immunities clause as a new and essentially unlimited bill of rights within the 14th Amendment. The practical consequences of this would be to authorize federal judges to impose an ever broader and more stultifying uniformity upon the nation. b. For the 21st century constitutionalist, perhaps the greatest virtue of redefining the privileges or immunities clause is the prospect of transforming the Constitution from a guarantor of negative liberties into a charter of affirmative government, guaranteeing an array of positive rights .adopting this interpretation will supplant representative decision-making with the decision-making of unelected, unaccountable, and life-tenured judges .ours will become an America in which citizens are constitutionally entitled to their neighbors possessions; in which economic redistribution has become as ingrained a principle as federalism and the separation of powers c. A barrier posed by both the due process and the privileges or immunities clauses, and viewed as anachronistic by 21st century constitutionalists, is the requirement of state action as a precondition for the enforcement of rights. In the Civil Rights Cases (1883), another post-Civil War precedent, the Supreme Court asserted that these provisions of the 14th Amendment prohibited only the abridgment of individual rights by the state. It is state action of a particular character that is prohibited. . . . The wrongful act of an individual is simply a private wrong and if not sanctioned in some way by the state, or not done under state authority, the [individuals] rights remain in full force. However, for advocates of 21st century constitutionalism, if fairness and equity are to be achieved, the Constitution must become more like a general legal codeapplicable to both public and private institutions. d. In areas that were once viewed as inappropriate for judicial involvement, federal courts have begun to assert themselves in an unprecedented and aggressive manner. The limited role of the judiciary, for example, with regard to matters of national defense and foreign policy is not explicitly set forth in the Constitution, but such matters have from time immemorial been understood to be non-justiciable and within the exclusive responsibility of the elected branches of government. As far back as Marbury v. Madison (1803), Chief Justice John Marshall recognized that Questions in their nature political . . . can never be made in this Court. e. Another looming constitutional battleground concerns the meaning of the Ninth Amendment to the Constitution: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Many 21st century constitutionalists understand this amendment to say that there is some unknown array of unenumerated rights that lie fallow in the Constitution, waiting only to be unearthed by far-sighted judges. The problem is that, in the words of Justices Stewart and Black, this understanding of the amendment turns somersaults with history and renders the courts a day-to-day constitutional convention. the Ninth Amendment was adopted to emphasize that our national government is one of limited powers. Its principal purpose was to prevent an extension of federal power, not to provide an open-ended grant of judicial authority that would have the opposite effect. f. Transnationalists believe that international and domestic law are merging into a hybrid body of transnational law, while so-called nationalists persist in preserving a division between domestic and foreign law that respects the sovereignty of the United States. Transnationalists believe that domestic courts have a critical role to play in incorporating international law into domestic law, while so-called nationalists claim that only the political branches are authorized to domesticate international legal norms. I hope you will read the entire article. Elections have consequences.