Constitutional Interpretation – Page 15 – Marquette University Law School Faculty Blog

Legal Anomalies in Federal Indian Law, Part I—Equal Protection

Post author:Scott C. Idleman
Post published:September 24, 2012
Post category:Constitutional Interpretation Constitutional Law Federal Indian Law Public Race & Law

Federal Indian Law—the legal provisions and doctrines governing the respective statuses of, and relations among, the federal, state, and tribal governments—is replete with seeming anomalies when compared to the background of typical domestic law in the United States. Such anomalies or aberrations, though frequently noted, have seldom if ever been systematically delineated in cases or in legal scholarship. The purpose of this and succeeding blog posts is to identify and examine several of these anomalies, the hope being that readers will gain a better sense of the unique topography of Federal Indian Law and at least some of the reasons that have brought it about.

Examined in this first post will be one such apparent anomaly, namely, the permissibility of the government’s differential treatment of Indian tribes and their members despite the U.S. Constitution’s guarantee of equal protection. This issue goes to the heart of Federal Indian Law, which is largely embodied as statutes in Title 25 of the U.S. Code (denominated “Indians”) and implemented through rules and regulations in Title 25 of the Code of Federal Regulations (also denominated “Indians”). To the extent that the classification of “Indian” ordinarily if not always includes a component of race, ethnicity, ancestry, or perhaps national origin, its use in the federal Code and Regulations—including its derivative use in judicial opinions—would seem presumptively to run afoul of constitutional as well as statutory proscriptions against discrimination on the basis of race, ethnicity, ancestry, and the like. After all, were one to encounter a Title of the U.S. Code designated “African Americans” or “Latinos” or “Germans,” an eyebrow, if not two, would almost certainly be raised in response.

We Should Be Careful That We Know What We Are Sticking To, When We Stick To The Constitution

Post author:J. Gordon Hylton
Post published:September 19, 2012
Post category:Constitutional Interpretation Judges & Judicial Process Public U.S. Supreme Court

Like my colleague Ed Fallone, I spoke at the Marquette Constitution Day program on Monday, September 17, sponsored by the Marquette Political Science Department. We were joined on the program by Marquette Political Science professors John McAdams and Paul Nolette. The program was centered around the concept of “Sticking to the Constitution.”

For the sake of brevity, I will simply summarize my arguments.

1. The text of the United States Constitution is more important as a symbol of our commitment to democratic government and the rule of law than it is as a source of answers to contemporary problems.

2. The United States Constitution of 1787 has lasted as long as it has because it is extremely brief and extremely vague. These characteristics allow it to be adapted to just about any position on any question, and has thus allowed significant changes to occur in the governmental structure of the United States without the need to alter the text of the constitution. Had it been more specific and detailed, it would have been repealed or substantially amended long ago.

3. The idea that the words of the Constitution have a precise and fixed meaning that transcends time has, in my opinion, led to numerous problems, including the excessive use of the judicial power, which has at times threatened to undermine the democratic process. Positing a precise meaning to imprecise phrases has too often produced the illegitimate overruling of democratically sanctioned practices.

4. A thorough understanding of our constitutional traditions and constitutional history—and I mean “constitutional” in the broad structural and institutional sense—is a better source for constitutional decision-making than a supposedly correct textual interpretation of the words of the constitutional text.

5. Continuing to refer to the members of the convention that drafted the 1787 Constitution as “the Founding Fathers” is kind of juvenile. The 55 men who showed up in Philadelphia in the summer of 1787, were important figures in their own time, and James Madison does rank as one of the foremost political thinkers of the eighteenth century. However, the delegates were not sent to the convention from the heights of Mt. Olympus, and they each had their own political agendas.

6. Had the Constitution of 1787 been rejected by the American people in 1787 and 1788, as almost happened, the course of American constitutional history would probably have been pretty much the same. The original constitution, the Articles of Confederation, would have remained in effect, and it surely would have been amended or interpreted as the needs of the present warranted.

7. President Obama’s use of military drones to assassinate our ostensible enemies (and whatever innocent civilians that happen to be standing around) is not consistent with the division of the war-making powers imbedded in the structure of the 1787 Constitution, and it is inconsistent with our constitutional traditions. If you ask me, the practice is both immoral and unconstitutional.

Because of limitations of time, on Monday I actually skipped over point #6, but it is a good point, worth making here.

Sticking It To The Constitution

Post author:Edward A. Fallone
Post published:September 18, 2012
Post category:Constitutional Interpretation Judges & Judicial Process Public U.S. Supreme Court

Yesterday, I spoke on a panel on the occasion of Constitution Day here at Marquette University. What follows is a copy of my remarks:

Today’s panel asks, “What does it mean to stick to the Constitution?” This is another way of asking how we – you, me judges, lawmakers – should go about interpreting the meaning of the constitutional text.

Today, this interpretative question is often presented as a binary debate between either originalism or a “living Constitution.”

My argument today is that this clear dichotomy is nothing more than an illusion. There is not a choice between two stark extremes. This is because, in practice, most originalists and advocates of a living Constitution tend to meet in the middle.

So this debate between originalism and the living Constitution is often very loud and very energetic, but it tends to distract us from the real question. Both sides of the debate behave as if the original intent of the Framers of the Constitution is important. They argue very heatedly over how much weight to give to this original intent, in comparison to other factors such as changing circumstances or contrary precedent.