Document Type
Article
Publication Date
2012
Publication Information
2011 Cato Sup. Ct. Rev. 307 (2012).
Abstract
From the Introduction
Our Constitution, which is both an act and artifact of "We the People of the United States," "vest[s]" certain "powers" - some, but not all - in the national government. Those powers are enumerated, and also separated, checked, and constrained. As Chief Justice John Roberts put it last June, this government "possesses only limited powers; the States and the people retain the remainder." It is designed and structured in such a way as to make it workable, capable, and effective, but also to - by virtue of its design and structure, and not only through explicit prohibitions and guarantees - "ensure protection of our fundamental liberties" and "reduce the risk of tyranny and abuse." It is a familiar, but foundational, point: "The genius of the American Constitution lies in its use of structural devices to preserve individual liberty."
These "structural" devices and features of the Constitution - the mechanisms by which and the ways in which power is assigned, regulated, limited, and retained - were front and center in the two most anticipated decisions of the Supreme Court's recent term, Arizona v. United States and NFIB v. Sebelius. They were also examined closely and defended forcefully in a relatively unnoticed ruling from the previous term, Bond v. United States, in which the justices recalled that the "diffusion" of power, no less than the listing of rights, "protects the liberty of the individual." And, we propose, they are at the heart of the Court's most significant church-state decision in decades, Hosanna-Tabor v. EEOC.
Recommended Citation
Richard W. Garnett & John M. Robinson,
Hosanna-Tabor, Religious Freedom, and the Constitutional Structure,
2011 Cato Sup. Ct. Rev. 307 (2012)..
Available at:
https://scholarship.law.nd.edu/law_faculty_scholarship/1904