Enumerated Powers, the Tenth Amendment, and Limited Government 11-18-10

The first Showcase Panel at the the Federalist Society's 2010 National Lawyers Convention was on "Enumerated Powers, the Tenth Amendment, and Limited Government" and was held on Thursday, November 18, 2010. Panelists included Prof. Randy E. Barnett of the Georgetown University Law Center; Hon. R. Edward "Ted" Cruz of Morgan, Lewis & Bockius LLP; Prof. Michael J. Gerhardt Director of the Center for Law and Government at the University of North Carolina School of Law; Prof. Michael Stokes Paulsen of the University of Saint Thomas School of Law; Prof. Mark V. Tushnet of Harvard University Law School; and Judge J. Harvie Wilkinson, III, of the United States Court of Appeals for the Fourth Circuit.

The Federal government's power has vastly increased over the history of the Republic. To what degree do enumerated powers and the Tenth Amendment still limit the power of Congress? Could each chamber of Congress create a Committee on the Tenth Amendment that would have to approve bills for constitutionality before they could be considered on the floor? Are there constitutional amendments that are needed to rein in federal power? A Balanced Budget Amendment, for example, or an amendment requiring super-majorities to pass spending or tax bills? How about a constitutional amendment requiring that the budget of the United States be prepared every two years and that it be subject to popular approval at presidential or midterm elections?


THURSDAY, NOVEMBER 18

Showcase Panel I: Enumerated Powers, the Tenth Amendment, and Limited Government
9:15 a.m. -- 11:00 a.m.

--Prof. Randy E. Barnett, Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center
--Hon. R. Edward "Ted" Cruz, Partner, Morgan, Lewis & Bockius LLP
--Prof. Michael J. Gerhardt, Samuel Ashe Distinguished Professor in Constitutional Law, Director, Center for Law and Government, University of North Carolina School of Law
--Prof. Michael Stokes Paulsen, Distinguished University Chair and Professor, University of Saint Thomas School of Law
--Prof. Mark V. Tushnet, William Nelson Cromwell Professor of Law, Harvard University Law School
--Moderator: Hon. J. Harvie Wilkinson, III, United States Court of Appeals, Fourth Circuit

The Mayflower Hotel
Washington, DC

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[HarvardLaw81]

@Lacroix and sklanger. Dudes, I know the judicial canons well and have written on them extensively. The judicial canons were never intended to sanction active participation in political advocacy groups. Doing so presents the appearance of impropriety and suggests that judges have prejudged the issues which may come before them. Any judge with any sense steers very clear of this sort of thing. And I learned that in real life, not at Harvard Law School.

[sklanger]

@HarvardLaw81 Since Canon 4(A)(3) started permitting judges to "participate in and serve as a member, officer, director, trustee, or nonlegal advisor of a nonprofit organization devoted to the law, the legal system, or the administration of justice."

When did HLS start encouraging students to cite stuff they haven't actually read?

[DukeLacroix]

By the way, I disagree with Judge Wilkinson's analysis at 59 minutes into the presentation.

[DukeLacroix]

When did the judicial canons ever prevent it?  Do Justices Breyer, Ginsburg, Sotomayor, and Kagan know? Should we tell them?

[HarvardLaw81]

With respect to Judge Wilkinson, when did the judicial canons start permitting sitting judges to be active participants in public activities sponsored by ideological/advocacy groups?

[sklanger]

Lose some weight Ted. You'll want to be fit as a fiddle for 2016.