No doubt that it is the duty of judges to say what they believe the law is, but that does not mean they are the only ones - juries have their role to play.
As my children will readily attest, I’m a techno-idiot and a stranger to the internet. It takes a lot to drag me into the blogosphere. However, Liberty Fund’s proposal to run this blog with my dear buddy Mike Rappaport was too good to pass up.
The point of this enterprise, as I see it, is to revitalize and elevate a constitutional debate that, in my estimation, has gotten bogged down. On the political Left, constitutional theory has to satisfy a vast range of “progressive” policy commitments before it can get a hearing. On the Right, a well-intentioned insistence on interpreting the Constitution one clause at a time has been taken to excess. In the process, it has crowded out a proper and urgent appreciation of the Constitution’s broader purposes—its “genius,” as John Marshall used to say.
Of course: the constitutional text has to count. And of course: judicial flights into untethered, postmodern “values” and aspiration is a constitutional problem. But as to the former, you can’t make sense of the bare-bones text without some deeper theory of what the thing is supposed to do. As to the latter, judicial imperialism isn’t our only constitutional problem.
The nation’s fiscal ruin is a constitutional problem. The relentless march of the rent-seeking society is a constitutional problem. The sprawl of a feckless, meddlesome, poorly monitored administrative state is a constitutional problem. So is the demoralization of our commerce.
I’m not sure what, if anything, can be done about those problems. Plainly, though, they are upon us, and they merit more sustained attention—as constitutional problems—than they have received. Thus, my contributions to this blog are aimed at readers who are interested in (and, if they haven’t spent the past decades in a coma, worried about) our legal and especially our constitutional order at a level beyond interpretation.
As Fred Smith, ingenious President of the Competitive Enterprise Institute, likes to say: “The Constitution isn’t perfect, but it’s a lot better than what we have now.”