Starting this Sunday, folks with paid subscriptions will have access to a weekly audio companion to the newsletter—including a preview of coming attractions and some other (less substantive) content.
Being a fan of audio formats like podcasts (BTW - always a fan of listening to you join Leah, Kate and Melissa on the Strict Scrutiny podcast!), I appreciate your adding this feature to your newsletter.
A legal question I'd enjoy seeing you address in an upcoming issue: Why hasn't it been included as part of proposed court reforms to address security/enforcement issues? As you pointed out in #122 (Contempt of the Supreme Court), the U.S. Marshals Service is an agency within the DOJ, and so SCOTUS is at the mercy of the Executive branch if it should face trying to enforce a contempt judgment against it. Also, members of the court are again at the mercy of the Marshals service for personal protection against threats/acts of violence. As Rep. Eric Swalwell was quoted in a recent NPR article (that also featured Prof. Vladeck), "A judge's security is dependent in many ways on the Marshals Service who the president appoints to protect the judges, and if a president doesn't like a decision that's coming from a judge, theoretically they could pull their security." That, of course, was precisely what Trump did to several people, including former members of his own administration (Bolton, Fauci, Pompeo, Milley, etc).
It seems at least a reasonable request that SCOTUS be given both the budget and at least some authority over their own security/enforcement. Please consider this a potential topic to include in a future newsletter.
And as always, thank you for your work in helping the rest of us stay informed.
The federal government comes in three parts, an executive, a legislative, and a judicial branch. The legislative branch enacts laws, the executive enforces them, the judiciary interprets them and applies them to the cases before them. These functions are not to be mixed. Courts do not enforce their own judgments. Separation of powers does not apply only between Congress and the Executive branch. It applies equally between the judiciary and the other two branches. Of course you can conjure up all kinds of dark what ifs, but that is scant reason to overturn our entire, well-worked-out system. As for Milly, etc., they were not deprived of protection during their time in government and had no entitlement to it I once they were no longer in service. The courts could hire their own security officers, of course, but they cannot have their own law enforcement body.
By "enforcement", I was specifically addressing the topic of a contempt judgement against the Executive branch. My understanding is that the courts have legal tools available to pursue contempt enforcement, even if the Marshal's service decides not to. But, was interested in a more thorough discussion. Regarding protection: again, I was merely interested in what is legally permissible and/or required. If Milly and the other former Executive Branch members aren't 'entitled' to a security detail, why did they have it and why did Trump remove it? If they aren't entitled, what is the historical reasoning for why only the President receiving it? Thanks for the reply.
Not as you posed it. No system is perfect and some bad things can happen under the separation of powers doctrine, but worse things can happen if you start rationalizing away those softening of the separation of powers and start mixing them. (By the way, the separation of powers did not involve merely executive, legislative, and judicial branches. It also is involved in Congress, hence two houses, Senate and House of Representatives, and states vs. federal government. The states are not mere political subdivisions of the United States akin to the relationship between states and their counties. States are sovereigns in their own right that delegated some of their sovereign authority to the federal government, retaining all others. This is why we have the electoral college. This is also why we speak of the federal government, not the national government. We are a federal republic; not a democracy nor a nation.
Every tyranny and major humanitarian disaster (and we are speaking of horrendous disasters; think Nazi Germany and fascist Italy, the French Revolution, the “Great Leap Gorward, the Leninist and Stalinist engineered famines, and Pol Pot, for example) in modern history has started from Utopianism and emergency powers. There is a reason we say that “the road to hell is paved with good intentions” and that “the perfect is the enemy of the good”. Fact-based is not synonymous with true or correct. One can easily start with actual facts and reach a false conclusion. The founders were well acquainted with the dangers of good intentions and the concentration of power. They expressly debated the tendency of government to cry crisis and emergency, that things are too important in the moment to spend time in debate. They embodied the common sayings of their day that “neither liberty nor property are safe when the legislature is in session” and that “conscience is weak enough in the individual; in groups it is nearly non-existent”. Their entire conception in separation of powers was to keep the branches of government in such tension that they would pay their attention to jealously guarding their prerogatives, thereby leaving us alone. What they understood better than many of our contemporaries seem to do is the enduring frailty of human nature. Those who think the Constitution is out of date would do well to understand the difference between being old (and in the history of the world two centuries is hardly old) and being obsolete. The founders believed a strict adherence to the Constitution is necessary and to the separation of powers most of alll. You advocate weakening of these strictures even more, whether you think so or not. I don’t doubt your sincerity, but I respectfully do doubt your wisdom.
Just to reiterate, my initial post was a request (not statement of any legal opinion of mine) for Professor Vladeck to consider the issue of court security/enforcement in a future newsletter. There can be ways to address those matters that would not violate the Constitution (including separation of powers). With regard to court security, you may have seen the news last week that Congressional Democrats introduced a bill that would shift control of the U.S. Marshals Service from the executive branch to the federal judiciary, in an effort to insulate the agency from political interference and guarantee that judges receive strong security protections. With regard to court enforcement: again, I was specifically addressing the possibility of a contempt judgement against the Executive branch, after which the Marshals Service declines to enforce it (which, after Judge Brian Murphy's finding on Wednesday regarding the South Sudan deportations, is a very real possibility). This, too, appears to have legally-permissible options, as is described in this Just Security analysis: https://www.justsecurity.org/113218/federal-courts-enforce-orders-without-marshals/
I noticed that, too, but it is also an issue I've encountered with other sites (Youtube, etc). I'm not sure what remedy(ies) might be possible on the web site hosting-side of things, but there are workarounds in several audio players (like VLC) to play single (mono) audio channels in both speakers.
Steve, You may have thought it was a quiet week at the Supreme Court, but on Monday the Court granted my Petition for a Writ of Certiorari in my case entitled Berk v. Choy, MD which may resolve the split in the Circuits on whether state Affidavit of Merit requirements for medical malpractice cases apply in federal court, both on diversity and federal question cases. See 24-440.
Please explain how executive orders work. Are EO's law? Where does the money come from to pay for the actions ordered via EO? Can Congress nullify an EO? Etc.
No, executive orders are not law. They are formalized directions to executive branch departments, agencies, bureaus, offices and officials as to how to carry out the President’s responsibilities and to effectuate his policies, including, among other things, his interpretation of laws within the purviews of those bodies and officials. These various departments, etc, are alter egos for the President who is the sole Constitutional executive official. E.O.s do not regulate private conduct, but the various executive bodies and officials do, within their statutory authorities and the President has the right and power to tell them how to carry out their duties. The money to carry out the agencies’ duties (from departments levels on down) comes from congressional appropriations but, contrary to what you hear, rarely are these funds line items for a specific amount of money to be spent on a specific project or subdivision of an agency, though this does happen from time to time. Indeed, most E.O.s need not entail any specific expenditures at all or, if they do, the actual amount may be de minimis (small in the scheme of things) or even non-existent.
One such, Executive Order 12,630, which I drafted while at DOJ in the Reagan Administration, required executive agencies and departments to consider the impact of their regulatory and enforcement, and other actions, on private property rights. Its purpose was multiple. We considered that government official should, as we expect, police, doctors, architects, lawyers, etc., to, know the law and police themselves. We felt that government should, like any private business, do risk assessment in planning and carrying out their actions to avoid stumbling into fiscal liabilities and at least to be aware of the potentiometer and to structure their actions so to minimize the costs. And finally, we considered private property is important to the well-being and prosperity of the country. With that in mind, we required agencies to structure their actions so to impinge on private property no more that it absolutely must. After the E,O. Was signed and published, I drafted the AG’s implementing guidelines and then travelled around the country teaching agencies on the E.O. and its implementation. Did that cost money? Yes, but a very small amount, especially to the extent it prevented much greater liability from accruing to the government and to the extent that benefitted the country and private property owners. In short, all this was done to ensure the federal government stayed with constitutional bounds. And trust me, I had to meet and confer with every damned agency department, etc., there was (an eye opening process), and we got a lot of resistance.
Professor Vladeck, I truly appreciate your style and the substance of your illumination of our Constitution. I look forward to whatever you care to share verbally so that I can listen to it repeatedly and ruminate on it even when I'm also doing something else.
You solicited suggestions, so I respectfully request that you kindly commence First One by illuminating and elaborating on the first words of our Constitution. Doing so is commensurate with the text, structure and purpose of our Constitution. It also seems especially necessary and proper at this time because of the many actions of federal (purported) public servants attacking people for exercising the rights and freedoms secured by the First Amendment. Their open and notorious attacks evidence a huge collective blind spot in our view of our Constitution. For about a year, federal judges have been attacking students and universities. Now, the president and DOJ attorneys are attacking students, universities, judges, attorneys and federal employees. Our purported public servants are making a sham and a shambles of our Constitution.
If SCOTUS ever even considers the first words of our Constitution, it almost always is to essentially (and clearly erroneously) dismiss them as a mere "preamble." SCOTUS justices very seldom have acknowledged that the so-called Preamble has profound fundamental substantive significance. But that has been changing. Every current SCOTUS justice (with the possible exception of Justice Kavanaugh) and many recent past justices authored or joined in opinions (majority, plurality, concurring or dissenting) that emphasized the profound principle underlying our entire Constitution and evidenced most strikingly by the first words of our Constitution--the sovereignty of the people. SCOTUS justices' occasional honorable mentions of the first words of our Constitution are important but egregiously inadequate.
Coincidentally, next year is the 250th anniversary of our Declaration of Independence and its crucial second paragraph (one people declaring our independence from all tyranny and abuses of power by people in power). But right now, America needs a national dialogue that truly does as Chief Justice Marshall admonished speaking for a unanimous SCOTUS in 1819 in McCulloch v. Maryland: "we must never forget, that it is a constitution we are expounding."
We have, collectively, too often forgotten that our Constitution is the written elaboration of how one people formed one nation. We have forgotten that our Constitution is a written elaboration on and establishment of the legal and political principles and precautions stated in our Declaration of Independence. We have forgotten how the people established and asserted their sovereignty (generally, the personal sovereignty of each person over himself or herself, and also the political sovereignty of the people collectively over all public servants).
In McCulloch, Chief Justice Marshall speaking for a unanimous SCOTUS also elaborated on the most important principles of our people that made us a nation:
"The government of the Union [ ] is, emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and [exclusively] for their benefit. This [national] government is acknowledged by all to be one of enumerated [limited] powers. [ I]t can exercise only the powers granted to it . . . . . That principle is now universally admitted."
As Justice Alito (joined by Justices Scalia and Thomas) put it in a dissenting opinion in Obergefell v. Hodges, 576 U.S. 644, 741 (2015), "In our system of government, ultimate sovereignty rests with the people, and the people have the right to control their own destiny."
The words that the Founders and Framers chose to introduce our Constitution were designed to introduce the American sovereign. Justice James Wilson (the Founder and Framer who is perhaps most responsible for the fact that our Constitution begins with the words "We the People") explained the profound significance of what many public servants (including many SCOTUS justices for hundreds of years) routinely dismissed as a mere "preamble."
Justice Wilson in 1793 in Chisholm v. Georgia emphasized that the first and foremost separation of powers in our Constitution is between the sovereign people and our public servants: “ ‘The PEOPLE of the United States’ are the first personages introduced” by our Constitution. "To the Constitution of the United States the term SOVEREIGN, is totally unknown. There is but one place where it could have been used with propriety. . . . [T]hose, who ordained and established that Constitution" rightfully could "have announced themselves 'SOVEREIGN' people of the United States."
The first words of our Constitution introduce American sovereigns and emphasize that "We the People" did "ordain and establish" our "Constitution" and our "Union" to "establish Justice" and "secure the Blessings of Liberty to ourselves." Those were our first words as Americans, as one people of one nation. They were our first words as a nation.
Thinking about the sequence of introducing personages, a clear pattern emerges. Even the structure of Articles I, II and III emphasize the sovereignty and supremacy of the people. Our Constitution introduced, first, the People, second, our directly-elected representatives (Congress), third, our indirectly-elected representative (the president), and, last, the unelected judges of SCOTUS and lower courts.
Article VI emphasized that our "Constitution" and federal "Laws" that were "made in Pursuance thereof" (by our representatives who may be held accountable to us in elections) "and all Treaties" are "the supreme Law of the Land; and the Judges in every State" (all judges throughout our nation) "shall be bound thereby." It also emphasized that the first and foremost duty and loyalty of all legislators and "all executive and judicial Officers, both of the United States and of the several States" is "to support this Constitution."
The words of every article in the Constitution further emphasized the sovereignty and supremacy of the people over our public servants. In Article I, the sovereign people emphasized that nobody in federal government could exercise any power that was not “necessary and proper for carrying into Execution” the “Powers vested by this Constitution in the Government of the United States” (for the purposes stated in the Preamble). In Section 1 of Articles I, II and III, the sovereign people “vested in” (delegated only limited powers to) our public servants in “Congress,” in and under the office of the “President,” and on the “one supreme Court” and “inferior Courts” that “Congress” was delegated the power to “ordain and establish.”
The Ninth Amendment expressly emphasized a principle that was implicit in the original Constitution: all "rights" are "retained by the people" regardless of whether any right (ever) is included in any "enumeration in the Constitution." The Tenth Amendment did the same. It expressly re-emphasized that We the People "by the Constitution" merely "delegated to the United States" certain limited "powers" and "prohibited by it [our Constitution] to the States" certain "powers" (e.g., in Article I, Section 10 and Amendments XIII, XIV, XV, XIX, XXIV and XXVI) and we "reserved to the States" certain powers and "reserved" to "the people" all residual "powers."
All the foregoing established and confirmed (repeatedly) that We the People clearly did not vest any power in any federal public servant to abridge any right or freedom in the First Amendment. Many times, the Founders and Framers emphasized that our Constitution vested no such power. In emphasizing that our original Constitution established that We the People did not even need to reserve any right that is now secured by our Bill of Rights, Alexander Hamilton in The Federalist No. 84 asked: "why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?"
The First Amendment emphasizes rights and powers that the people necessarily exercised to create, empower and restrain state, as well as federal, governments. So the First Amendment emphasizes rights and powers that the people necessarily retained when We the People created our nation, e.g., freedom of thought, expression, association. No public servant was delegated in the U.S. Constitution or could possess under any state constitution any power to injure any of us for exercising our First Amendment rights or freedoms.
We need to be more clear and more emphatic in reminding our public servants of their proper place (as Article III emphasizes) "under this Constitution" and "the Laws of the United States."
Although I didn't get on board on day one, I did just get an email that my subscription had been renewed, so I at least have been along for part of the journey. I did have a comment about your teaser. Before I read your comment about not making the final cut on the audio for the book, I listened to the audio, and thought to myself (having worked my way through undergrad as a "staff announcer" on KEFM in Nacogdoches) that you had a decent radio voice. But your teaser also prompted a couple of questions. Maybe I will have to listen to see if you answer them this Sunday: 1) how did you answer Justice Kennedy on whether Marbury v. Madison was decided correctly? and 2) the most burning question of all, which is your choice of whether amicus is pronounced AM-a-kis or a-ME-kis? And was that influenced by your Texas sojourn? Thanks for all the good commentary.
How about a piece on how admitted lawyers who are touring in DC can attend an oral argument? Do you have to get in line at midnight? Still bring quarters for the lockers? Decorum inside, can you leave early, dress code, and other minutiae.
Thank you, Steve, for always using language that shows you understand that some of us are experiencing financial hardship. Yours is one of the very few Substacks I just can't live without - at least as long as Social Security is still hobbling along. Poor doesn't equal ignorant.
With love and gratitude for all the important work you're doing.
Being a fan of audio formats like podcasts (BTW - always a fan of listening to you join Leah, Kate and Melissa on the Strict Scrutiny podcast!), I appreciate your adding this feature to your newsletter.
A legal question I'd enjoy seeing you address in an upcoming issue: Why hasn't it been included as part of proposed court reforms to address security/enforcement issues? As you pointed out in #122 (Contempt of the Supreme Court), the U.S. Marshals Service is an agency within the DOJ, and so SCOTUS is at the mercy of the Executive branch if it should face trying to enforce a contempt judgment against it. Also, members of the court are again at the mercy of the Marshals service for personal protection against threats/acts of violence. As Rep. Eric Swalwell was quoted in a recent NPR article (that also featured Prof. Vladeck), "A judge's security is dependent in many ways on the Marshals Service who the president appoints to protect the judges, and if a president doesn't like a decision that's coming from a judge, theoretically they could pull their security." That, of course, was precisely what Trump did to several people, including former members of his own administration (Bolton, Fauci, Pompeo, Milley, etc).
It seems at least a reasonable request that SCOTUS be given both the budget and at least some authority over their own security/enforcement. Please consider this a potential topic to include in a future newsletter.
And as always, thank you for your work in helping the rest of us stay informed.
The federal government comes in three parts, an executive, a legislative, and a judicial branch. The legislative branch enacts laws, the executive enforces them, the judiciary interprets them and applies them to the cases before them. These functions are not to be mixed. Courts do not enforce their own judgments. Separation of powers does not apply only between Congress and the Executive branch. It applies equally between the judiciary and the other two branches. Of course you can conjure up all kinds of dark what ifs, but that is scant reason to overturn our entire, well-worked-out system. As for Milly, etc., they were not deprived of protection during their time in government and had no entitlement to it I once they were no longer in service. The courts could hire their own security officers, of course, but they cannot have their own law enforcement body.
By "enforcement", I was specifically addressing the topic of a contempt judgement against the Executive branch. My understanding is that the courts have legal tools available to pursue contempt enforcement, even if the Marshal's service decides not to. But, was interested in a more thorough discussion. Regarding protection: again, I was merely interested in what is legally permissible and/or required. If Milly and the other former Executive Branch members aren't 'entitled' to a security detail, why did they have it and why did Trump remove it? If they aren't entitled, what is the historical reasoning for why only the President receiving it? Thanks for the reply.
I know. That doesn’t;t change my answer.
And what I stated is fact-based and also respects separation of powers in the Constitution.
Not as you posed it. No system is perfect and some bad things can happen under the separation of powers doctrine, but worse things can happen if you start rationalizing away those softening of the separation of powers and start mixing them. (By the way, the separation of powers did not involve merely executive, legislative, and judicial branches. It also is involved in Congress, hence two houses, Senate and House of Representatives, and states vs. federal government. The states are not mere political subdivisions of the United States akin to the relationship between states and their counties. States are sovereigns in their own right that delegated some of their sovereign authority to the federal government, retaining all others. This is why we have the electoral college. This is also why we speak of the federal government, not the national government. We are a federal republic; not a democracy nor a nation.
Every tyranny and major humanitarian disaster (and we are speaking of horrendous disasters; think Nazi Germany and fascist Italy, the French Revolution, the “Great Leap Gorward, the Leninist and Stalinist engineered famines, and Pol Pot, for example) in modern history has started from Utopianism and emergency powers. There is a reason we say that “the road to hell is paved with good intentions” and that “the perfect is the enemy of the good”. Fact-based is not synonymous with true or correct. One can easily start with actual facts and reach a false conclusion. The founders were well acquainted with the dangers of good intentions and the concentration of power. They expressly debated the tendency of government to cry crisis and emergency, that things are too important in the moment to spend time in debate. They embodied the common sayings of their day that “neither liberty nor property are safe when the legislature is in session” and that “conscience is weak enough in the individual; in groups it is nearly non-existent”. Their entire conception in separation of powers was to keep the branches of government in such tension that they would pay their attention to jealously guarding their prerogatives, thereby leaving us alone. What they understood better than many of our contemporaries seem to do is the enduring frailty of human nature. Those who think the Constitution is out of date would do well to understand the difference between being old (and in the history of the world two centuries is hardly old) and being obsolete. The founders believed a strict adherence to the Constitution is necessary and to the separation of powers most of alll. You advocate weakening of these strictures even more, whether you think so or not. I don’t doubt your sincerity, but I respectfully do doubt your wisdom.
Just to reiterate, my initial post was a request (not statement of any legal opinion of mine) for Professor Vladeck to consider the issue of court security/enforcement in a future newsletter. There can be ways to address those matters that would not violate the Constitution (including separation of powers). With regard to court security, you may have seen the news last week that Congressional Democrats introduced a bill that would shift control of the U.S. Marshals Service from the executive branch to the federal judiciary, in an effort to insulate the agency from political interference and guarantee that judges receive strong security protections. With regard to court enforcement: again, I was specifically addressing the possibility of a contempt judgement against the Executive branch, after which the Marshals Service declines to enforce it (which, after Judge Brian Murphy's finding on Wednesday regarding the South Sudan deportations, is a very real possibility). This, too, appears to have legally-permissible options, as is described in this Just Security analysis: https://www.justsecurity.org/113218/federal-courts-enforce-orders-without-marshals/
I hate myself a bit for saying this, but must quit, y'know, saying "y'know." Sorry…
This Texas Grannie looks forward to hearing your girls from time to time! Also, I think your voice is just fine
It's all good, so far. Please keep us updated on the Mahmoud Khalil case, and thank you. For all of it.
Hey Steve, just so you know, the embedded audio seems to only have sound in the left channel from what I can tell.
I noticed that, too, but it is also an issue I've encountered with other sites (Youtube, etc). I'm not sure what remedy(ies) might be possible on the web site hosting-side of things, but there are workarounds in several audio players (like VLC) to play single (mono) audio channels in both speakers.
Thank you so much!
Steve, You may have thought it was a quiet week at the Supreme Court, but on Monday the Court granted my Petition for a Writ of Certiorari in my case entitled Berk v. Choy, MD which may resolve the split in the Circuits on whether state Affidavit of Merit requirements for medical malpractice cases apply in federal court, both on diversity and federal question cases. See 24-440.
Please explain how executive orders work. Are EO's law? Where does the money come from to pay for the actions ordered via EO? Can Congress nullify an EO? Etc.
No, executive orders are not law. They are formalized directions to executive branch departments, agencies, bureaus, offices and officials as to how to carry out the President’s responsibilities and to effectuate his policies, including, among other things, his interpretation of laws within the purviews of those bodies and officials. These various departments, etc, are alter egos for the President who is the sole Constitutional executive official. E.O.s do not regulate private conduct, but the various executive bodies and officials do, within their statutory authorities and the President has the right and power to tell them how to carry out their duties. The money to carry out the agencies’ duties (from departments levels on down) comes from congressional appropriations but, contrary to what you hear, rarely are these funds line items for a specific amount of money to be spent on a specific project or subdivision of an agency, though this does happen from time to time. Indeed, most E.O.s need not entail any specific expenditures at all or, if they do, the actual amount may be de minimis (small in the scheme of things) or even non-existent.
One such, Executive Order 12,630, which I drafted while at DOJ in the Reagan Administration, required executive agencies and departments to consider the impact of their regulatory and enforcement, and other actions, on private property rights. Its purpose was multiple. We considered that government official should, as we expect, police, doctors, architects, lawyers, etc., to, know the law and police themselves. We felt that government should, like any private business, do risk assessment in planning and carrying out their actions to avoid stumbling into fiscal liabilities and at least to be aware of the potentiometer and to structure their actions so to minimize the costs. And finally, we considered private property is important to the well-being and prosperity of the country. With that in mind, we required agencies to structure their actions so to impinge on private property no more that it absolutely must. After the E,O. Was signed and published, I drafted the AG’s implementing guidelines and then travelled around the country teaching agencies on the E.O. and its implementation. Did that cost money? Yes, but a very small amount, especially to the extent it prevented much greater liability from accruing to the government and to the extent that benefitted the country and private property owners. In short, all this was done to ensure the federal government stayed with constitutional bounds. And trust me, I had to meet and confer with every damned agency department, etc., there was (an eye opening process), and we got a lot of resistance.
Thank you for your detailed explanation. Very helpful.
Professor Vladeck, I truly appreciate your style and the substance of your illumination of our Constitution. I look forward to whatever you care to share verbally so that I can listen to it repeatedly and ruminate on it even when I'm also doing something else.
You solicited suggestions, so I respectfully request that you kindly commence First One by illuminating and elaborating on the first words of our Constitution. Doing so is commensurate with the text, structure and purpose of our Constitution. It also seems especially necessary and proper at this time because of the many actions of federal (purported) public servants attacking people for exercising the rights and freedoms secured by the First Amendment. Their open and notorious attacks evidence a huge collective blind spot in our view of our Constitution. For about a year, federal judges have been attacking students and universities. Now, the president and DOJ attorneys are attacking students, universities, judges, attorneys and federal employees. Our purported public servants are making a sham and a shambles of our Constitution.
If SCOTUS ever even considers the first words of our Constitution, it almost always is to essentially (and clearly erroneously) dismiss them as a mere "preamble." SCOTUS justices very seldom have acknowledged that the so-called Preamble has profound fundamental substantive significance. But that has been changing. Every current SCOTUS justice (with the possible exception of Justice Kavanaugh) and many recent past justices authored or joined in opinions (majority, plurality, concurring or dissenting) that emphasized the profound principle underlying our entire Constitution and evidenced most strikingly by the first words of our Constitution--the sovereignty of the people. SCOTUS justices' occasional honorable mentions of the first words of our Constitution are important but egregiously inadequate.
Coincidentally, next year is the 250th anniversary of our Declaration of Independence and its crucial second paragraph (one people declaring our independence from all tyranny and abuses of power by people in power). But right now, America needs a national dialogue that truly does as Chief Justice Marshall admonished speaking for a unanimous SCOTUS in 1819 in McCulloch v. Maryland: "we must never forget, that it is a constitution we are expounding."
We have, collectively, too often forgotten that our Constitution is the written elaboration of how one people formed one nation. We have forgotten that our Constitution is a written elaboration on and establishment of the legal and political principles and precautions stated in our Declaration of Independence. We have forgotten how the people established and asserted their sovereignty (generally, the personal sovereignty of each person over himself or herself, and also the political sovereignty of the people collectively over all public servants).
In McCulloch, Chief Justice Marshall speaking for a unanimous SCOTUS also elaborated on the most important principles of our people that made us a nation:
"The government of the Union [ ] is, emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and [exclusively] for their benefit. This [national] government is acknowledged by all to be one of enumerated [limited] powers. [ I]t can exercise only the powers granted to it . . . . . That principle is now universally admitted."
As Justice Alito (joined by Justices Scalia and Thomas) put it in a dissenting opinion in Obergefell v. Hodges, 576 U.S. 644, 741 (2015), "In our system of government, ultimate sovereignty rests with the people, and the people have the right to control their own destiny."
The words that the Founders and Framers chose to introduce our Constitution were designed to introduce the American sovereign. Justice James Wilson (the Founder and Framer who is perhaps most responsible for the fact that our Constitution begins with the words "We the People") explained the profound significance of what many public servants (including many SCOTUS justices for hundreds of years) routinely dismissed as a mere "preamble."
Justice Wilson in 1793 in Chisholm v. Georgia emphasized that the first and foremost separation of powers in our Constitution is between the sovereign people and our public servants: “ ‘The PEOPLE of the United States’ are the first personages introduced” by our Constitution. "To the Constitution of the United States the term SOVEREIGN, is totally unknown. There is but one place where it could have been used with propriety. . . . [T]hose, who ordained and established that Constitution" rightfully could "have announced themselves 'SOVEREIGN' people of the United States."
The first words of our Constitution introduce American sovereigns and emphasize that "We the People" did "ordain and establish" our "Constitution" and our "Union" to "establish Justice" and "secure the Blessings of Liberty to ourselves." Those were our first words as Americans, as one people of one nation. They were our first words as a nation.
Thinking about the sequence of introducing personages, a clear pattern emerges. Even the structure of Articles I, II and III emphasize the sovereignty and supremacy of the people. Our Constitution introduced, first, the People, second, our directly-elected representatives (Congress), third, our indirectly-elected representative (the president), and, last, the unelected judges of SCOTUS and lower courts.
Article VI emphasized that our "Constitution" and federal "Laws" that were "made in Pursuance thereof" (by our representatives who may be held accountable to us in elections) "and all Treaties" are "the supreme Law of the Land; and the Judges in every State" (all judges throughout our nation) "shall be bound thereby." It also emphasized that the first and foremost duty and loyalty of all legislators and "all executive and judicial Officers, both of the United States and of the several States" is "to support this Constitution."
The words of every article in the Constitution further emphasized the sovereignty and supremacy of the people over our public servants. In Article I, the sovereign people emphasized that nobody in federal government could exercise any power that was not “necessary and proper for carrying into Execution” the “Powers vested by this Constitution in the Government of the United States” (for the purposes stated in the Preamble). In Section 1 of Articles I, II and III, the sovereign people “vested in” (delegated only limited powers to) our public servants in “Congress,” in and under the office of the “President,” and on the “one supreme Court” and “inferior Courts” that “Congress” was delegated the power to “ordain and establish.”
The Ninth Amendment expressly emphasized a principle that was implicit in the original Constitution: all "rights" are "retained by the people" regardless of whether any right (ever) is included in any "enumeration in the Constitution." The Tenth Amendment did the same. It expressly re-emphasized that We the People "by the Constitution" merely "delegated to the United States" certain limited "powers" and "prohibited by it [our Constitution] to the States" certain "powers" (e.g., in Article I, Section 10 and Amendments XIII, XIV, XV, XIX, XXIV and XXVI) and we "reserved to the States" certain powers and "reserved" to "the people" all residual "powers."
All the foregoing established and confirmed (repeatedly) that We the People clearly did not vest any power in any federal public servant to abridge any right or freedom in the First Amendment. Many times, the Founders and Framers emphasized that our Constitution vested no such power. In emphasizing that our original Constitution established that We the People did not even need to reserve any right that is now secured by our Bill of Rights, Alexander Hamilton in The Federalist No. 84 asked: "why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?"
The First Amendment emphasizes rights and powers that the people necessarily exercised to create, empower and restrain state, as well as federal, governments. So the First Amendment emphasizes rights and powers that the people necessarily retained when We the People created our nation, e.g., freedom of thought, expression, association. No public servant was delegated in the U.S. Constitution or could possess under any state constitution any power to injure any of us for exercising our First Amendment rights or freedoms.
We need to be more clear and more emphatic in reminding our public servants of their proper place (as Article III emphasizes) "under this Constitution" and "the Laws of the United States."
Steve, thanks for this additional benefit.
Although I didn't get on board on day one, I did just get an email that my subscription had been renewed, so I at least have been along for part of the journey. I did have a comment about your teaser. Before I read your comment about not making the final cut on the audio for the book, I listened to the audio, and thought to myself (having worked my way through undergrad as a "staff announcer" on KEFM in Nacogdoches) that you had a decent radio voice. But your teaser also prompted a couple of questions. Maybe I will have to listen to see if you answer them this Sunday: 1) how did you answer Justice Kennedy on whether Marbury v. Madison was decided correctly? and 2) the most burning question of all, which is your choice of whether amicus is pronounced AM-a-kis or a-ME-kis? And was that influenced by your Texas sojourn? Thanks for all the good commentary.
I hope everything substantive remains text. Audio wastes my time.
How about a piece on how admitted lawyers who are touring in DC can attend an oral argument? Do you have to get in line at midnight? Still bring quarters for the lockers? Decorum inside, can you leave early, dress code, and other minutiae.
Thank you, Steve, for always using language that shows you understand that some of us are experiencing financial hardship. Yours is one of the very few Substacks I just can't live without - at least as long as Social Security is still hobbling along. Poor doesn't equal ignorant.
With love and gratitude for all the important work you're doing.
Will it be like auditing your class? ;)