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How Conservatives Abandoned Judicial Restraint, Took Over The Courts And Radically Transformed America

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"How Conservatives Abandoned Judicial Restraint, Took Over The Courts And Radically Transformed America"

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WASHINGTON, D.C. — Child labor laws hurt children. Social Security is an anchor dragging down economic growth, and Medicare should be abolished.

Those are the lessons I learn in a room full of conservative lawyers snacking on lamb sausage and Gorgonzola fondue — a room that’s absolutely packed with top practitioners, right-wing intellectuals and judges. I walked into the room alongside a Texas Supreme Court justice. When I reach to ladle some of the fondue onto a plate full of croutons, my hand accidentally brushes the arm of a federal court of appeals judge.

My sparring partner during much of this closing reception for the Federalist Society’s annual lawyer’s convention, is Ilya Somin, who is a law professor and writer for the Volokh Conspiracy, a popular legal blog that thousands of lawyers, law clerks and judges read every day. As Ilya lays out Social Security’s supposed vices, I wonder if his readers are aware of the breadth of his agenda. I also chide him that voters would have an easy time making up their minds if Republicans campaigned openly on promises to abolish child labor laws and kill Medicare, but he is completely unapologetic for his beliefs. This is not a man who pretends to care about the poor and the middle class in order to sell policies that will lower his own taxes. I leave the reception convinced that he sincerely believes that America’s poor would be better off if they only embraced his vision for a libertarian utopia.

Ilya’s views are not universal, but they are hardly unusual at this gathering of what is arguably the most powerful legal organization in the country. President George W. Bush raided the Federalist Society’s membership to fill the courts with judges who shared his conservative outlook. The convention’s program boasts 15 federal appeals court judges who schlepped to the Mayflower Hotel in Washington, D.C. just to moderate a panel. The annual black tie dinner features Justice Clarence Thomas — another person who believes that federal child labor laws are unconstitutional — as the evening’s main event. And Justices Antonin Scalia and Samuel Alito are in the audience despite the fact that they don’t even have a speaking slot at the convention this year. The judges and justices gathered in Washington are not there because they crave the spotlight or because they are doing someone a favor. They are there because the many men and somewhat fewer women who make up the Federalist Society are their people.

Everyone likes to spend time with friends.

Indeed, for many attendees, their annual pilgrimage to Washington for the Federalist Society convention is an opportunity to reconnect with people they’ve known since the Society was formed three decades ago. Some of the most eminent members of the Society were present close to its founding. Justice Scalia was one of the Federalist Society’s first faculty advisers when he was a professor at the University of Chicago.

Throughout this thirty year history they’ve experienced the highs of the Reagan Revolution and the lows of slowly realizing that George W. Bush was a failed president. They’ve stood together against Roe v. Wade and they’ve stood just as resolutely against Obamacare. But, most importantly, they’ve seen the judiciary reshaped in their image. The single most important fact to understand about the Federalist Society — indeed, about the conservative legal movement in general — is that it once viewed the Supreme Court as its greatest enemy, but the Roberts Court is now the best friend it has in the American government

Cases like Roe are part of the past. Citizens United and the Shelby County case, which gutted the Voting Rights Act, are the wave of the future. After decades of advocating for “judicial restraint,” the lawyers gathered at the Mayflower Hotel have now experienced the ecstasy of watching five men write conservative values directly into the Constitution. And they want to feel that sensation again. And again. And again.

The Moderate Rand Paul

This transformation from a group of lawyers patiently tying their fortunes to Republican electoral victories into activists craving a victory by any means is apparent from the convention’s speaker lineup. In 2007, the Federalist Society demonstrated its clout by hosting the sitting President George W. Bush. One year earlier the convention featured Vice President Dick Cheney. Both speeches demonstrated the Federalists’ positioning as an organization well within the GOP’s mainstream. Here was an organization so widely respected by Republicans that it could draw the party’s top two leaders.

This year, however, the only federal lawmakers featured at the convention were Sens. Mike Lee (R-UT) and Ted Cruz (R-TX) — and this is the second year in a row when Lee and Cruz were the only Members of Congress on the convention’s program. At a time when mainline Republicans are very much in a struggle with Tea Party insurgents for control of the GOP, the Federalist Society casts its lot with the two men most responsible for shutting down the government for half of October.

When I share this observation with one of the conference attendees who sat down next to me at the convention’s Saturday luncheon, he agrees with me that Cruz and Lee are divisive figures and even suggests that many of the other people in the room are uneasy about these two senators. Though, when I press him to explain, he quickly confirms that any disagreement with Cruz and Lee is tactical, not substantive. “We like to win,” he tells me, and the two men behind a failed effort to defund Obamacare did not deliver that all-important victory.

He also refers me to a recent New York Times piece contrasting the uncompromising Cruz with Sen. Rand Paul (R-KY), a Tea Party senator who’s making friends with establishment figures and working to reelect Senate Minority Leader Mitch McConnell (R-KY). My dining companion does not hesitate to answer “yes,” when I ask him if he prefers Paul’s approach to Cruz’s.

The Federalist Society convention may be one of the few places on the planet where Rand Paul is praised for a moderate and restrained approach to politics. As a senate candidate, Paul came out against the federal ban on whites-only lunch counters — claiming that permitting private businesses to discriminate on the basis of race is the “hard part about believing in freedom.” More recently, Paul praised an infamous Supreme Court decision named Lochner v. New York which gave employers a sweeping constitutional right to exploit their workers.

Lochner ensured that the courts would treat any law benefiting workers with great skepticism. It not only struck down a New York law preventing bakeries from overworking their employees, it formed the basis of later decisions depriving workers of a minimum wage and of the right to organize. Lochner is frequently taught to law students as an example of how judges should never, ever behave. Until recently, Lochner‘s position in the constitutional anti-canon was unquestioned even among the hardline conservatives who form the backbone of the Federalist Society. The late Robert Bork, a failed Supreme Court nominee who is still spoken off as a fallen martyr in Federalist Society circles, called Lochner an “abomination” that “lives in the law as the symbol, indeed the quintessence of judicial usurpation of power.”

Damn, It Feels Good To Be A Gangsta

At the Mayflower Hotel, however, many of the guests are downright giddy at the notion of judicial usurpation of power. The Saturday luncheon’s program is a debate between federal appellate Judge J. Harvie Wilkinson and Georgetown law Professor Randy Barnett, with Barnett arguing in favor of the position “Resolved: Courts are Too Deferential to the Legislature.”

As an objective matter, Barnett is not a very successful Supreme Court advocate. He is best known for failing to convince the Court to shrink the federal government’s authority when he argued a case known as Gonzales v. Raich, and then for his work as one of the lead advocates behind the failed effort to convince the justices to repeal Obamacare. Yet his fellow Federalist Society members treat him as if he’s a conquering hero. In the convention’s hallways, he’s surrounded by leading practitioners, academics and even judges eager to share his wisdom. At one point, a young woman approaches him simply to say that she wants to “thank him for his eloquence.” If the Federalist Society played walk up music when its speakers took the stage, Barnett’s theme song would be “Damn, It Feels Good To Be A Gangsta“.

Though most of Barnett’s arguments rest on vague rhetoric such as “judges must follow the law,” he does offer one specific example of what he thinks judges should be doing that they currently are not. In a unanimous 1955 decision called Williamson v. Lee Optical, the Supreme Court upheld an Oklahoma law providing that no one could fit lenses into an eyeglass frame unless they did so “upon written prescriptive authority of an Oklahoma licensed ophthalmologist or optometrist.” Thus, just as pharmacists cannot simply hand out prescription drugs without authorization from a physician, the Oklahoma law applied a similar rule to merchants who grind lenses for eyeglasses.

More broadly, Lee Optical stands for the proposition that elected officials who are accountable to the voters — and not unelected judges with life tenure — should decide how businesses are regulated in the United States. As Justice William Douglas explained in the Court’s opinion, “[t]he day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought.” Douglas understood that, when a lawmaker supports a law which is unwise or unworkable, the voters can correct the situation by voting that official out of office. But if a judge decides to substitute their own views for those of the electorate, the people are left without recourse.

Barnett looks at Lee Optical, however, and sees something very sinister behind the Supreme Court’s deference to democratically elected officials. The Oklahoma eyeglass law, he tells the Federalist Society, had nothing to do with protecting the health of people who wear glasses. Instead, he claims, state lawmakers enacted this law because the powerful eye doctor lobby prevailed upon the Oklahoma legislature to do so. It is this kind of “rent seeking legislation,” in Barnett’s mind, that the courts have a duty to strike down.

Lest there be any doubt, Barnett is concerned with far more than the price of eyeglasses in Oklahoma. In a 2012 speech at the libertarian George Mason School of Law, Barnett laid out his theory of Lee Optical in much greater detail, and he openly admits that he would go much further than simply overruling this one case — “I would prefer that courts adopt a ‘presumption of liberty’ of the sort the Court seemed to employ in Lochner.” Barnett is offering the promise of cheaper eyeglasses, but what he’s really after is a constitutional right to exploit workers.

Barnett’s narrative about Lee Optical taps into most Americans’ legitimate belief that lawmakers should not be doling out favors to interest groups. Yet it also ignores the far more compelling reason why courts do not second-guess economic regulation. Virtually every single law benefits some interest groups at the expense of others. Medicare taxes the healthy and the young to pay the salaries of doctors. Public schooling taxes the childless to pay members of teachers unions. Laws banning murder force professional hitmen to give up their livelihood entirely! If the mere fact that a law picks economic winners and losers — or even the fact that it came into being because a particular group lobbied for it — were a strike against that law’s constitutionality, then nearly all laws are suspect.

The reason why the courts abandoned the kind of inquiry Barnett proposes is that there is nothing in the Constitution that instructs judges on just how divorced a law’s effects must be from its ostensible purpose before the courts are empowered to strike the law down. And when judges divorce their own decisions from the Constitution’s text, there is nothing preventing them from imposing their views on the American people.

The Dying Breed

The task of defending this traditional argument for a limited judicial role falls to Judge Wilkinson, who offers some populist rhetoric of his own to explain why judges should not overstep their bounds — how would you feel, Wilkinson asks, “if one profession was calling all the shots for you?” Well, maybe the rest of the country doesn’t want to have all of the shots called by lifetime-appointed lawyers!

But it’s soon clear that, if the Federalist Society played walk up music for Judge Wilkinson, his theme song would be “Yesterday’s News.” Wilkinson was once one of President Bush’s five finalists for the Supreme Court seat that ultimately went to Chief Justice Roberts, but he harbors no illusions that the Federalist Society’s winds still blow in his direction. Wilkinson demonstrates his commitment to judicial restraint by labeling Roberts decision upholding the Affordable Care Act a “courageous and correct” decision, but he pauses before he does so and invites the audience to boo him if they choose. Though a few isolated claps could be heard at the back of the room, the rest of the conference loudly accepts his invitation.

Indeed, even the moderator of this debate, arch-conservative Fifth Circuit Judge Jerry Smith, opens the discussion by suggesting that he prefers Barnett’s warmed-over Lochnerism to Wilkinson’s deference to democracy. Smith introduces Wilkinson by telling a story about when the two men met many years before — “I was a right-wing activist,” Smith jokes, and Wilkinson “was an establishment Republican.”

There are still a handful of judges like Wilkinson left — Republicans who still believe that Democratic officials should be free to govern if the American people choose to elect Democrats. Judge Jeffrey Sutton, who led one of the Federalist Society’s practice groups before his appointment to the bench, broke with his fellow Federalists and rejected an attack on the Affordable Care Act. Several months later Judge Laurence Silberman, a conservative who once received the Presidential Medal of Freedom from President George W. Bush, wrote an opinion holding that the legal attacks on health reform have no basis “in either the text of the Constitution or Supreme Court precedent.” But these two men were outliers in a judiciary where Republican judges rarely hesitated to deal a blow to Obamacare.

Both Sutton and Silberman were also noticeably absent from the Federalist Society’s convention.

Similarly, in 2004 the California Supreme Court included six Republicans and only one Democrat. Yet all but one of the court’s Republicans rejected a challenge to a California birth control law that’s strikingly similar to an Obama Administration rule that’s now under attack in the federal courts. The sole dissenter in that case was Justice Janice Rogers Brown, a severely conservative judge who once labeled the New Deal a “socialist revolution” and likened Social Security to cannibalism.

Nine years after Brown was a lonely voice crying out against California’s birth control law, her views on birth control are now shared by the overwhelming majority of Republican federal judges who’ve weighed in on the Obama Administration’s rules. One of those judges, thanks to a federal judicial appointment from President Bush, was Janice Rogers Brown.

Judges like Wilkinson, in other words, could soon become an endangered species. While few judges admit, as Brown does, that they would revive Lochner and fully embrace Randy Barnett’s vision, Republicans simply aren’t much interested in judicial restraint during the age of Obama.

The Failure of Richard Nixon

This embrace of Barnett over Wilkinson is a very recent development. In his 2007 address to the Federalist Society, President Bush labeled judicial activism a direct assault on the will of the people — “some judges give in to temptation and make law instead of interpreting. Such judicial lawlessness is a threat to our democracy, and it needs to stop.” At a 2006 debate with Justice Stephen Breyer co-sponsored by the Federalist Society, Justice Scalia warned that it is “very undemocratic” for judges to read expansive new rights into the Constitution. In a 2006 address, then-Secretary of Homeland Security Michael Chertoff credited the Federalist Society for helping catapult the concept of judicial modesty into the legal mainstream — “in large part because of the work that the Society and others have done, the claim for judicial modesty is sufficiently well-established that everybody understands, even the critics of that claim, that they have to take it seriously and they have to address it.”

The fact that the Society was once a bastion of judicial restraint is easy to understand in light of the landscape at the time of its founding. The year 1982 was actually a rare moment of weakness for conservative lawyers. For most of the nation’s history, America’s judges stood with industrialists against their workers, with unreconstructed racists against African Americans, and with the wealthy against nearly any effort to diminish their fortunes. The Supreme Court gave its blessing to a nationwide sugar monopoly. It declared the income tax unconstitutional. And it gave every federal judge in the country sweeping power to act as union busters. One year later, it embraced the noxious doctrine of separate but equal.

In the coming decades, the justices held child labor laws unconstitutional. They gave employers sweeping rights to exploit their workers. And they spent President Franklin Roosevelt’s first term aggressively trying to frustrate the New Deal. As one of the era’s most influential legal scholars explained, “the conservative classes stand in constant fear of the advent of an absolutism more tyrannical and more unreasoning than any before experienced by man—the absolutism of a democratic majority.” And the United States Supreme Court was more than happy to protect these “conservative classes” from democracy.

Though Roosevelt eventually filled the Court with justices less hostile to self-governance, there was little unifying principle animating his nominees beyond a willingness to permit elected officials to govern. His nominees included civil libertarians, bigots, liberal activists and judicial minimalists. They also included some very fortunate surprises. Justice James Byrnes, who once claimed that lynching is necessary “in order to hold in check the Negro in the south,” quit the Court just over a year after his appointment. Justice Hugo Black, who once belonged to the Ku Klux Klan, emerged as an unexpected defender of civil rights for African Americans. Though Roosevelt’s justices took the law in a much more progressive direction then their predecessors, they accomplished this goal largely by rejecting the kind of activism that animated Lochner. An inactive Court was a progressive Court, at least compared to its predecessors.

Indeed, the very idea that the judiciary could actively push the law in a more liberal direction was virtually unheard of before Chief Justice Earl Warren donned his black robe in 1953. Warren’s tenure, which ushered in modern free speech doctrine, acknowledged the Constitution’s promise of “one person, one vote,” struck a law banning birth control and began with the Court’s celebrated decision in Brown v. Board of Education, was the first time in American history that the Court consistently embraced the Constitution as a progressive document.

By 1968, conservatives resented the Warren Court’s liberalism just as intensely as Roosevelt resented the justices’ previous efforts to impose laissez-faire Social Darwinism upon the rest of the nation. President Richard Nixon campaigned on a promise to appoint “strict constructionists” to the bench and then replaced nearly half of the Court’s members, but Nixon did not even attempt to revive the conservative activism that dominated the Court for much of its history. Indeed, liberalism continued to chalk up big wins even after Nixon’s four appointees were firmly ensconced on the bench. These nominees did provide the votes to impose strict limits on public school desegregation and to declare that poor children do not have a right to the same educational resources as rich children, but three of Nixon’s four justices also joined the modern right’s most hated decision in Roe v. Wade. Indeed, Roe was authored by Justice Harry Blackmun, who would eventually abandon his earlier conservatism and become one of the most liberal members of the Court.

For all of these reasons, it’s not hard to imagine the despair conservative lawyers felt when the Federalist Society was founded in 1982. They backed a conservative president who campaigned on a promise to appoint conservative judges, and what that got them was legal abortion in all fifty states.

Restoring Lochner was a pipe dream. What conservatives needed was a truce.

The Constitution in 2000

President Ronald Reagan’s pledge to appoint judges who support “judicial restraint” was that truce. Judicial restraint meant that judges would not question minimum wage laws or engage in union busting, but it also meant that they wouldn’t strike down abortion laws. Judicial restraint meant that a Republican president who won two consecutive landslide electoral victories could carry out this mandate without interference from the unelected branch. And judicial restraint appealed to an electorate who naturally believed that their judgment was superior to that of a few elite members of the legal profession. Meanwhile, the newborn Federalist Society provided Reagan with the evangelists he needed to carry this message to that profession.

Behind the scenes, Reagan’s Justice Department crafted a vision that was quite a bit more nuanced than The Gipper’s pleas for restraint. As Dawn Johnsen has explained, much of the ground work for many of the Rehnquist Court’s decisions from the 1990s and the early 2000s which restricted the federal government’s power to legislate are was laid by the Reagan Justice Department and by President Reagan’s approach to judicial nominees. Among other things, a series of Reagan Era Justice Department documents laid out the administration’s disagreement with many Supreme Court decisions and instructed the Department’s attorneys to advance legal arguments that would promote a conservative legal vision.

For the most part, however, the Rehnquist era’s decisions had a marginal impact on congressional power — at least compared to the sweeping conservative activism now advocated by people like Barnett and Brown. Two of the most widely discussed decisions, U.S. v. Lopez and U.S. v. Morrison, left largely untouched the federal government’s sweeping authority to regulate the national economy — though it did limit its ability to enact non-economic regulation. Others limited the ability of individuals to sue states that violate their civil rights. But nothing in either the Rehnquist Court’s decisions or in the Reagan Administration’s documents predicted the kind of activism now advocated by much of the Federalist Society’s membership. To the contrary, one of the most significant Reagan documents rejects the idea that judges can enforce rights that aren’t specifically mentioned in the Constitution — a position that renders Lochner an impossibility:

Where the Constitution does not specify the value to be preferred, there is no principled way for courts to discern and provide preferred treatment for such a value. Whether such a value should be accorded protection, and how much protection it ought to receive, are political matters, reserved by the Constitution to the democratic majorities in the states and the political branches of the federal government.

Nor did this this fear of a judicial overreach cease when Ronald Reagan left office. George W. Bush’s first Supreme Court nominee — Chief Justice Roberts — told the senators overseeing his confirmation hearing that he would “prefer to be known as a modest judge.” He also warned that when judges make policy judgments, “they lose their legitimacy.” Even Justice Alito, a man who’s since emerged as the Supreme Court’s most intelligent and most effective conservative partisan, gave a nod to judicial restraint during his hearing. “[I]f judges begin to go further and announce and decide questions that aren’t before them or issue opinions or statements about questions that aren’t before them,” he told the Senate Judiciary Committee, “what happens when you do that is that you magnify the chances of getting something wrong.”

Endless Possibilities

Roberts and Alito may have spoken of restraint during their confirmation hearings, but their confirmations placed the Supreme Court in conservative hands and obviated the biggest reason why Republicans once craved a modest judiciary. America in the year 2013, with Obama firmly ensconced in the White House and conservatives just as firmly in control of the Supreme Court, was the mirror opposite of the world the Federalist Society’s founders perceived in 1982. And what’s the point of judicial restraint when you know the judges aren’t going to do much of anything that you disagree with in the first place?

Indeed, it is difficult to exaggerate just how radically the judicial landscape has changed since the days when Justice Scalia was an up-and-coming lawyer heading an office in the Nixon Justice Department. The Society wasn’t just founded not that long after Roe v. Wade, it also was born nine years after the Supreme Court came within a hair of equalizing some of the disparities between the rich and the poor. The plaintiffs in San Antonio Independent School District v. Rodriguez challenged Texas’ policy of tying part of local school district funding to local property taxes, a practice which ensures that wealthy areas will have better-funded schools than poorer districts simply because property in more affluent areas is worth more. The Court, by a 5-4 vote with all four of Nixon’s appointees in the majority, allowed this system to stand.

In his debate with Professor Barnett, Judge Wilkinson warned the gathered lawyers and judges that if they abandon judicial restraint today, they could open the floodgates to cases like Rodriguez — or even that judges could create entirely new entitlement programs. In the short term, however, this fear is hardly justified. So long as the Roberts Court’s current majority sits, it’s impossible to imagine the Supreme Court revisiting Rodriguez. Or expanding Roe. Or doing much of anything that would move the law in a progressive direction that doesn’t involve the rights of gay people — one of the few areas where so-called swing Justice Anthony Kennedy actually votes like a moderate. Conservatives have little to fear from judicial activism in 2013, so they have little incentive to maintain the truce President Reagan once sought.

Just as importantly, it’s difficult to exaggerate just how much the Obamacare litigation has changed constitutional lawyers’ impressions of what is now possible. When the lawsuit was filed, nearly every informed observer agreed with Judge Silberman that the lawsuit had no basis in constitutional text or Supreme Court precedent. Reagan’s former Solicitor General Charles Fried quipped that he would “eat a hat which I bought in Australia last month made of kangaroo skin” if the justices struck the law down.

Indeed, as Josh Blackman explains in his detailed history of the lawsuits challenging health reform, many of the lawyers closest to the litigation initially believed it was a weak case. David Rivkin, one of the leading trial attorneys challenging the law, admitted to Blackman that his “colleagues were privately skeptical” that Rivkin could win. Randy Barnett himself, after reading a pair of op-eds Rivkin co-authored laying out his legal case, concluded that “[i]f those were the best arguments that the law is unconstitutional, then I figured it must be constitutional.”

And yet this argument that was widely mocked by lawyers across the political spectrum came within one vote of capturing the Supreme Court. If that could happen, why not test the limits of how far these five conservative justices are willing to go?

The Spirit of Liberty

Barnett relies on what Wilkinson describes as the “very vaguest phrases of the Constitution” to support his libertarian vision. He primarily cites the Ninth Amendment, which provides that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” and the Fourteenth Amendment’s command that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” as the provisions in the Constitution that require a judicial takeover of America’s economic policy. It’s easy to see why Judge Wilkinson would like a little more guidance from the Constitution’s text before he appoints himself overseer of the nation’s economy.

But the belief that judges should be cautious before claiming they’ve found the One True Way to read the Constitution is quite often dismissed at the Federalist Society’s convention. As is Wilkinson’s rejoinder to Barnett — that when the Constitution is uncertain it’s best to defer to people who can actually get voted out of office.

A Friday morning panel that also features Professor Barnett is moderated by federal appellate Judge Edith Jones, who the Federalist Society staffer tasked with introducing the panel describes as a “longtime friend of the Federalist Society.” Jones is undoubtedly a good friend of the Federalists, but she’s also a fairly notorious figure among the remainder of the legal community. Jones once voted that a man could be executed despite the fact that his lawyer slept through much of his trial. The Houston Chronicle reported that she once advised workers claiming discrimination to “[t]ake a better second job instead of bringing suit.” And she once proposed increasing Texas’ rate of executions by eight to twelvefold.

She’s also under investigation for allegedly claiming that African-Americans and Hispanics are predisposed towards violent crime.

Towards the end of her Friday morning panel, Jones describes the Constitution as “one of the clearest, greatest documents in world history,” a description that earns her a round of applause from the audience. Yet, for all that her fellow Federalists approved of this statement, it is a ridiculous claim that casts a fair amount of doubt upon whether Judge Edith Jones has actually read the Constitution.

Few people question the Constitution’s greatness, and rightly so, but the document is absolutely riddled with ambiguity. What on earth are the “privileges or immunities of citizens of the United States?” What makes a search or seizure “unreasonable?” Which punishments are “cruel and unusual?” If the government wants to deny someone “liberty,” how much “process” is “due?” What is a “public use” of private property? How should the United States guarantee a “republican form of government?” What is the “general welfare of the United States?” Which laws are “necessary and proper” for carrying into effect Congress’ enumerated powers?

Many of these questions perplexed lawyers and public officials even before the Constitution was ratified, and judges, attorneys and scholars continue to struggle with them to this very day. And yet Edith Jones, a woman who believes that the constitutional right to an attorney does not include the right to have that attorney be awake, is certain that she knows exactly what the Constitution means.

Nearly seven decades ago, Judge Learned Hand offered a different assessment of how he should behave if he wishes to honor the framers’ commitment to freedom. “The spirit of liberty,” said Hand, “is the spirit which is not too sure that it is right.”

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