Thank you so much for inviting me to Notre Dame. As a Catholic, I appreciate what this university stands for--a mission of training people, to educate students to help others of all faiths and backgrounds. As a Judge, I appreciate what this esteemed law school has done to train students in the law, to teach them both the fundamentals and the big picture, to teach them what to know and how to think. In the pantheon of great American law schools, this school stands as one of the finest.
I am so grateful to Dean Newton for welcoming me here. I thank Stephanie Maloney and the Law Review for their hard work, wonderful organization, and gracious hospitality. I thank my great friend Professor Bill Kelley for helping to arrange my trip. Bill and I worked together at three different times--first in the Solicitor General's office when he was an Assistant and I was what is now called a Bristow Fellow, second in Judge Starr's independent counsel office in those unpleasant duties, and finally in the White House when I was Staff Secretary and Bill was Deputy White House Counsel. There is no finer public servant and no finer man. I am grateful to Bill for mentoring me and for his loyal friendship over the years.
The topics we have been discussing today with leading thinkers of the legal academy are fascinating and important. What explains constitutional change in the Supreme Court? How do we explain and understand past changes? How do we predict and know when there is to be future change?
When one comes to Notre Dame, whether for a law review symposium or for a football game or for both, your mind is drawn to fundamentals and history. This is a place that oozes history, and in that vein, I want to take a step back and focus on the text of our Constitution. I want to focus on that text in two dimensions. First, I want to explain how the text of the Constitution creates a structure--a separation of powers--that protects liberty. And in particular, I want to emphasize how that structure tilts toward liberty, how it creates legislative and executive branches with finely specified powers so as to protect individual liberty against oppressive legislation. Second, I want to focus on the role of the Supreme Court in that constitutional structure--and how the Court itself looks to the precise words of the constitutional text both to preserve the separation of powers established by the Constitution and to protect individual liberty. My overriding message will be that one factor matters above all in constitutional interpretation and in understanding the grand sweep of constitutional jurisprudence--and that one factor is the precise wording of the constitutional text. It's not the only factor, but it's the anchor, the magnet, the most important factor that directs and explains much of constitutional law, particularly in the realm of separation of powers.
I. A SEPARATE LEGISLATURE AND EXECUTIVE: A STRUCTURE THAT TILTS TOWARD LIBERTY
Let's begin with the structure established by the text. The Framers of the Constitution met in Philadelphia in the summer of 1787 because of dissatisfaction with the weak national government established under the Articles of Confederation. (1) Several problems had become apparent. The national government was too weak to defend the territory and security of the United States. (2) The national government had little ability to raise revenue by way of taxes so as to support the necessary defense efforts. (3) And the splintered nature of the country at that time hindered commerce and trade, including foreign trade, and thus hindered prosperity. (4)
A main goal, therefore, was to establish a strong central government able to protect security and promote prosperity. (5) At the same time, the Framers were keenly aware that the people within this new country consisted of many factions--those with property and those without, creditors and debtors, landed interests and manufacturing interests, and moneyed interests and many lesser interests. …