Tag: Michael Paulsen

Constitutional Change: A Parable

 

640px-Scene_at_the_Signing_of_the_Constitution_of_the_United_StatesOn Monday I say, “Here is a wonderful document. It establishes a federal republic based on checks and balances with the purpose of protecting our natural rights and securing the blessings of liberty. It is a living document, and explains how we can update it if we need to.” And you say, “This is a good document.” On Tuesday I say, “The document has some new sentences. Now it also says we should end slavery.” And you say, “That is also good.”

On Wednesday, however, I say, “Now the document says there are some other rights that overrule some of the old ones.” And you say, “Can I read the new sentences?” I reply: “There are no new sentences. Just a new meaning.” You ask, “Where did the old meaning go, and how did you squeeze this new meaning into the old sentences?”

On Thursday I say, “Now the document says we have the right to marry any way we like. Today two men can marry each other, and tomorrow they can marry five men or five women; after that, perhaps they can marry their mothers and their dogs if they like.” You ask when the document started meaning this, and I answer “Just this morning.” You ask when I updated the words to include this new meaning and I say, “The words have not changed since Tuesday.” It’s hard to say what will happen on Friday, but it probably won’t be good.

Member Post

 

I’ve been reading a little Constitutional law lately. I wrote about Michael Paulsen in “The True Meaning of Marbury v. Madison“ and “Unlearning Constitutional Law.” This little essay completes the (apparently) three-part series which started with those two posts. In this post, for a change, I’m looking into some credible reasons to disagree with Paulsen. Fortunately, they apply to a […]

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The True Meaning of Marbury v. Madison

 

hqdefaultMichael Stokes Paulsen is one of America’s most prominent scholars of constitutional interpretation, and the co-author (with his son) of the recently-released, The Constitution: An Introduction. I just discovered his fascinating 2004 article, “The Irrepressible Myth of Marbury.” From the introduction:

Nearly all of American constitutional law today rests on a myth. The myth, presented as standard history both in junior high civics texts and in advanced law school courses on constitutional law, runs something like this: A long, long time ago — 1803, if the storyteller is trying to be precise — in the famous case of Marbury v. Madison, the Supreme Court of the United States created the doctrine of “judicial review.” Judicial review is the power of the Supreme Court to decide the meaning of the Constitution and to strike down laws that the Court finds unconstitutional.

But, he argues, “nearly every feature of the myth is wrong.”

Book Review: Constitution 101

 

shutterstock_219829600If you want to learn about constitutional law without going to law school, the first thing you should do, of course, is listen to the Law Talk Podcast. But after that, you should check out The Constitution: An Introduction, the new book by law professor Michael Stokes Paulsen and his son, Luke. My review of the book is now available at City Journalbut here’s a summary.

The book’s first half provides an overview of the Constitution’s key provisions and an introduction to the major schools of constitutional interpretation, including the authors’ own originalist perspective. The second half offers a condensed history of American constitutional law. With sidebars on many of the personalities who shaped constitutional doctrine—not just judges, but politicians and litigants too—the book does an excellent job of placing legal controversies in historical context.

Some of you will already know Professor Paulsen, particularly for his vociferous criticisms of Roe v. Wade, the source of our modern American “right” to abortion on demand, including the essay that Troy commented on here in 2013. The Paulsens do not discuss Roe until late in the book, but in some ways that 1973 decision shapes the entire narrative. Every bad trend in American jurisprudence — from Dred Scott on — is seen as a prelude to the kind of judicial activism that produced Roe.