You really must read the Executive Summary. If you are interested in the whole article and want to know details that you can argue about click on the Title.
Stephen J. Markman
Justice of the Michigan Supreme Court
Distinguished Professor of Constitutional Law,
Hillsdale College
ALLAN P. KIRBY, JR.
CENTER FOR CONSTITUTIONAL STUDIES AND CITIZENSHIP
thekirbycenter.org
Executive Summary
The coming debate over the future of the American Constitution hinges upon one critical question: Who will decide questions of public policy—citizens acting through their elected and accountable representatives, or unelected and unaccountable judges? This paper argues that unless citizens, those to whom this paper is addressed, engage the constitutional debate, it will be settled—without their participation—by judges. To be decided, whether through debate or by judicial imposition, is whether “we the people” will live under the Constitution of James Madison, and Abraham Lincoln, or under what is called here the “twenty-first century constitution.” Under the twenty-first century constitution, the forms of the Founders’ Constitution would remain—a bicameral legislature, periodic elections, state governments—but important decisions, those determining the nature and direction of the American experiment, would increasingly be undertaken by federal courts. Rather than merely defining broad “rules of the game” for the three branches of government, the twenty-first century constitution would compel specific policy outcomes. In 1988, Justice Stephen J. Markman, then Assistant Attorney General in the administration of Ronald Reagan, prepared a report for Attorney General Edwin Meese titled “The Constitution in the Year 2000: Choices Ahead.” Identifying major areas of coming constitutional controversy, the report charted an understanding of the proper role of the judiciary. In 2009, The Constitution in 2020 was published. Featuring essays from a large group of progressive-minded legal academics, the book sought what it calls “redemptive constitutionalism”—a twenty-first century constitutionalism. Engaging the proponents of the twenty-first century constitution, this paper focuses on eight of the most salient issues in the debate: privileges or immunities, positive rights, state action, political questions, the Ninth Amendment, full faith and credit, transnationalism, and judicial restraint. The paper also outlines other important issues pertaining broadly to federalism, separation of powers, and limited government and rights. It concludes with a consideration of the federal judicial selection process, with special focus on how the United States Senate might attune its “advice and consent” role in the process to a careful consideration of the Constitution’s future. If successful, twenty-first century constitutionalism will entail the diminishment of deliberative and representative government. The twenty-first century constitutional debate has already been engaged; the only question is whether ordinary citizens, and their representatives, will be participants in this debate, or whether it will take place within the exclusive province of judges and lawyers.
Tuesday, May 25, 2010
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