Georgetown law professor talks Constitution at annual lecture

Each year since the passage of a 2004 federal amendment, Constitution Day is celebrated on September 17, commemorating the day 230 years ago when delegates from the original 13 states ratified the Constitution, giving life and law to our republic. But some questions still remain about the Founding Fathers’ original intentions — and Victoria Nourse thinks she has some answers.

Pitt Law invited Nourse, the Ralph V. Whitworth Professor of Law at Georgetown University, to serve as its speaker for the annual Constitution Day lecture. Nourse spoke Tuesday in the Barco Law Building about modern debates surrounding interpretations of the Constitution, including oligarchies, presidential power, teaching law and other topics.

Nourse called attention to the backsliding of American democracy, noting the country is not an oligarchy — a government ruled by the few — yet. But she did ask the audience to consider how a country gets to be one and how the United States could as well.

“One does not need to get rid of elections,” Nourse said. “One need only control the electoral machinery and make people believe that rule by the few is in their interest and legitimate.”

Joshua Cossin, a first-year law student who attended the lecture, said this moment in Nourse’s lecture stood out to him.

“I thought it was interesting, the [recognition] that we’re moving towards an oligarchy but we’re not there yet,” Cossin said.

Nourse is not the first to worry about America being on a path towards becoming an oligarchy. Concerns about the impacts of far-reaching executive power have existed in the United States since the Constitution was written — George Washington worried about politicians who only cared for themselves and a government that did not fight for its people. Relating it to the present day, Nourse talked about President Donald Trump and his relationship with executive power.

She said Trump’s lawyers embrace the idea of the “unitary executive,” a political theory in which the president has “all executive power.” Nourse called this idea, first presented by the late U.S. Supreme Court Justice Antonin Scalia, “desperately wrong.”

“The Constitution doesn’t say all executive power … [Justice Scalia] is adding that,” Nourse said. “It’s a small set of words, ‘all executive power,’ but it packs a punch … when you take that word out of an opinion … [and] send it down Pennsylvania Avenue to the lawyers at the White House.”

Nourse listed off many unconventional political moves Trump has made that push the boundaries of executive power — expressing the desire to intervene in the Federal Reserve’s interest rate policies, pushing for a citizenship question on the census and refusing to cooperate with Congress.

Specifically in interactions with Congress, proponents of the unitary executive theory say the legislative branch doesn’t have the power to subpoena the president — a power they argue can only be utilized by the executive branch. Separation of powers was last challenged in a major way in 1952, when the Supreme Court ruled against President Harry Truman in Youngstown Sheet & Tube Co. v. Sawyer.

Nourse believes the current legal battle over subpoenas issued by the House Democratic majority will go all the way to the Supreme Court and become a landmark case.

“There’s 100 years of law that says Congress has a legitimate purpose and that includes the purpose of inquiry,”  Nourse said. “[This case] will go to the Supreme Court and we will have the biggest clash on the separation of powers since 1952.”

Beyond interpreting the Constitution, Nourse said it’s important for everyday citizens to have a basic understanding of elections and civics.

“Constitution days are occasions to reflect on the fundamentals … mostly, what people teach in Constitutional law is … our Supreme Court and the fancy phrases they use,” Nourse said. “But that’s not our entire Constitution. And it’s certainly not what the Constitution does, its action.”

Nourse focused on the text of the Constitution, particularly on the structure and separation of powers.

“There is no more important time than now to remember a few things about our Constitutional structure,” Nourse said. “[Our Constitution] represents a powerful idea … that people have fought and died for.”

Hannah Christ, a third-year law student, said Nourse’s structural approach to interpreting the Constitution made her speech more poignant.

“I think it’s one of those topics that, in the news today, is pretty contentious,” Christ said. “Having a speaker that’s able to speak from a structural standpoint and not a partisan standpoint is a pretty important thing to have.”

During the Q&A portion of the lecture, a woman in the crowd asked Nourse about the Electoral College, which some consider a vestige of the original Constitution. Nourse acknowledged the reasons why many are against the Electoral College, noting the “deeply undemocratic feeling” of a candidate winning the popular vote while losing the election. But she also provided a positive example of maintaining the Electoral College.

“The only virtue of the Electoral College is that presidents must pay attention to small states,” Nourse said. “The problem that some people see is that you’ll get the coasts, which have the most population, and they will always win.”

Ultimately, Nourse said, it’s up to the people to decide what the Constitution means for life today.

“The words may be fixed as originalists say,” Nourse said. “But the people who vote are not.”