Ohio Staw Law Journal
Rights and power in modern American constitutionalism are conceptually interdependent: "We have no way of thinking about constitutional rights independent of what powers it would be prudent or desirable for government to have." In an era where substantive boundaries on federal power seem ephemeral, this suggests that what we call rights may be primarily fair weather or illusory barriers to the exercise of power.From a majoritarian perspective, the shifting boundary between rights and powers, and the capacity of power to consume rights, may be unproblematic and even attractive. If the exercise of plenary power reflects majority will, then this exercise renders a balance between rights and powers that best reflects our current problems, ambitions, and fears. Indeed we might view the alternative of a more formalist structure, in which constitutional language imposes (at least until formally changed) solid and frustrating substantive boundaries on power, to be foolishly inflexible.But this majoritarian critique masks a core danger that is revealed when the issue is viewed from a minority perspective. From a minority perspective the view that conceptually unlimited federal power renders the balance between rights and power that best reflects our current needs is paradoxical at best. Critical race theorists have argued that America's unfailingly majoritarian doctrinal, political, and social framework presents a multitude of dangers and problems that are principal barriers to racial reform. From these critiques, we can understand that dissolving power boundaries might coincidentally produce results beneficial to minority interests (and in the case of 1960s civil rights laws [*1557] vitally important results) but will not predictably yield the balance of rights and powers that minorities would consider prudent, necessary, or attractive. The dilemma and danger for minorities is that plenary power tethered merely by majoritarian preferences and necessities leaves minorities simply to gamble on the direction of future swings in the mood of the majority.This this Article 1) constructs the position that the conceptual interdependence of rights and powers in a plenary power environment (a) renders rights illusory, and (b) tethers power to majoritarian preferences and necessities 2) tests the assertion of a rights-corroding plenary power constitutionalism, by examining three provisions of the Bill of Rights that in the modern era have been disparaged, ignored, and essentially cast out of the Constitution - the Second, Ninth, and Tenth Amendments, and 3) argues that the illusion of rights in plenary power constitutionalism can only be maintained convincingly where the right is grounded in values that are nominally independent of the principle of limited federal power. The perceived and relative absence of such independent values in the three outcast provisions, their more direct dependency on the principle of limited power and pervasive conflict with plenary power, explains their condition as outcasts. That condition, I contend, is evidence of a plenary power constitutionalism that can only feign to respect rights where it is possible to submerge their dependency on the principle of limited power.
Nicholas J. Johnson,
Plenary Power and Constitutional Outcasts: Federal Power, Critical Race Theory, and the Second, Ninth, and Tenth Amendments , 57 Ohio St. L.J. 1555
Available at: http://ir.lawnet.fordham.edu/faculty_scholarship/435