Get the all NEW Edition of Rob’s popular book: THE ORIGINAL CONSTITUTION!!

December 26, 2014 by Rob Natelson · Comments Off
Filed under: All Postings, The Founding, supreme court 

Get the ALL NEW THIRD EDITION of the popular work, The Original Constitution: What It Actually Said and Meant. You can buy it in either hard copy or Kindle form here.

Birthright Citizenship Opponents Should Not Rely on 14th Amendment Congressional Debates

September 4, 2015 by Rob Natelson · Leave a Comment
Filed under: All Postings, supreme court 
Rob in the Colorado Rockies

Rob in the Colorado Rockies

An earlier version of this article first appeared in The American Thinker.

Opponents of birthright citizenship often cite fragments of the congressional debate over the Fourteen Amendment’s Citizenship Clause to argue that the amendment’s drafters intended to exclude the children of visiting foreigners.

However, reliance on these fragments is a mistake.

Opponents of birthright citizenship face a number of difficulties that have encouraged them to rely on those fragments. They are:

* Language in the earlier Civil Rights Bill clearly excluding foreigners was deleted from the amendment. This change was not, as sometimes claimed, necessary to exclude tribal Indians.

* Any interpretation that excluded foreigners would undercut the principal purpose of the Citizenship Clause. That purpose was to grant citizenship to the newly freed slaves and their children. For reasons explained below, most (perhaps all) of those slaves were legally foreigners.

* As I explained recently, in two cases the U.S. Supreme Court has decided that the Citizenship Clause’s term “subject to [U.S.] jurisdiction” means subject to the English common law doctrine of “allegiance.” In general, that doctrine recognizes most children born in a country as natural born citizens, including the children of visiting foreigners. And in the more crucial case, United States v. Wong Kim Ark, the allegiance rationale was central to the holding, not mere “dicta” as sometimes asserted.

The best way to counter these problems would be to uncover evidence that state legislatures ratifying the Fourteenth Amendment understood “subject to the jurisdiction thereof” to exclude foreign visitors and their children. It is the understanding of, or meaning to, the ratifiers—not the intent of the drafters—that carries most weight in constitutional questions. Fragments from the congressional debates are not only weak evidence of meaning, but relying on them may be counterproductive.

The two most cited congressional comments are those by Senator Jacob Howard of Michigan and Senator Lyman Trumbull of Illinois, both proponents of the amendment. Howard’s comments have been taken as excluding all resident foreigners from the phrase “subject to the jurisdiction.” Trumbull said that the phrase meant “Not owing allegiance to anyone else.”

But anyone who reads Senator Howard’s comment in context can see that it actually is ambiguous. He said the amendment’s phrase “subject to the jurisdiction thereof” would exclude:

persons born in the United States who are foreigners, aliens, who belong to the families of embassadors [sic] or foreign ministers accredited to the Government of the United States, but will include every other class of person.

This could mean that the exclusion covers “foreigners and aliens and those who belong to the families of ambassadors.” But also could mean “foreigners [or] aliens who belong to the families of ambassadors.” (Remember that the punctuation was not Howard’s, but the shorthand reporter’s.)

Even if Senator Howard did mean to exclude all foreigners, the congressional debates show that others disagreed with this interpretation. Senator John Conness of California, another supporter of the amendment, specifically claimed it would grant citizenship to children of resident Chinese—and no one contradicted him.

Moreover, participants in the congressional debates were focusing on tribal Indians, especially those in the territories, not foreigners. The amendment’s proponents argued that Indians were outside U.S. jurisdiction because they were subject to their own governments and therefore were not directly subject to the jurisdiction of U.S. courts. Senator Trumbull’s comment was made wholly in this context; there is no evidence that he was referring to foreigners. Here is some of what he said:

[Tribal Indians] are not subject to our jurisdiction, in the sense of owning allegiance solely to the United States . . . We have had in this country and have to-day a large region of country with the territorial limits of the United States, unorganized, over which we do not pretend to exercise any civil or criminal jurisdiction, where wild tribes of Indians roam at pleasure, subject to their own laws and regulations, and we do not pretend to interfere with them. They would not be embraced by this provision.

Senator Howard’s approach was similar:

. . . [T]he word ‘jurisdiction,’ as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department: that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now. Certainly, gentlemen cannot contend that an Indian belonging to a tribe, although born within the limits of a State, is subject to this full and complete jurisdiction. . . The United States courts have no power to punish an Indian who is connected with a tribe for a crime committed by him upon another member of the same tribe.

Insofar as one can divine a consistent understanding of “subject to the jurisdiction” from these debates, it appears to mean “subject to American judicial process and the law.” Tribal Indians and diplomats were not subject to either one, and therefore were outside U.S. jurisdiction in the sense that term was used in the amendment. But aliens within the borders of the U.S.—legally or illegally—are subject to both.

Reading the amendment to grant citizenship to the children or other descendants of resident foreigners may, in fact, have been necessary to accomplish its purpose. In 1868, when the amendment became effective, some former slaves had been illegally imported from Africa, and therefore were foreigners. They remained citizens of the tribe or nation into which they had been born.

Most of the other former slaves also were legally aliens: They were the descendants of foreigners; neither they nor their ancestors had ever been naturalized. Because they were slaves they could not take advantage of the common law rules of allegiance to claim natural-born status. In fact, under the rule issued by the Supreme Court in its notorious 1857 Dred Scott decision, all African-Americans living within the United States, whether or not enslaved, were legally foreigners. Arguably, then, the Citizenship Clause could not have accomplished its goals of overruling Dred Scott and affirming citizenship for African-Americans if it had excluded foreigners and their progeny.

This interpretative mess is one symptom of the generally poor way in which the Fourteenth Amendment was drafted. During the congressional debates, Senator Reverdy Johnson of Maryland begged his colleagues to be as precise as possible:

But I conclude by saying that when we are trying to settle this, among other questions, for all time, it is advisable—and if my friend will permit me to say so, our clear duty—to put every provisions which we adopted in such plain language as not to be capable of two interpretations, if we can.

His colleagues disregarded his advice. As a result, we have been arguing about the meaning of much of the Fourteenth Amendment ever since.

An Objective Guide to Birthright Citizenship

August 31, 2015 by Rob Natelson · 1 Comment
Filed under: All Postings, The Founding, supreme court 
Rob in the Colorado Rockies

Rob in the Colorado Rockies

An earlier version of this article appeared in The American Thinker.

This is a guide to the constitutional issue of whether a child is a citizen if born in the United States to alien parents here illegally. If you are simply looking for arguments to bolster your political views, look elsewhere. If you are genuinely interested in the merits of this issue, keep reading.

The Fourteenth Amendment became part of the Constitution in 1868. Its first clause states that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state in which they reside.”

Although some claim that merely being born in the U.S. makes one a citizen, neither the Constitution nor the Supreme Court support that view. The Fourteenth Amendment further specifies that one must be “subject to the jurisdiction” of the United States. The critical question is whether the child of a resident illegal alien meets that requirement.

Anyone who tells you this is an easy question is not telling you the truth. It is an extraordinarily difficult question.

What makes it difficult is not merely the politically and racially-charged atmosphere surrounding it. What makes it difficult are problems common to interpreting the Fourteenth Amendment. The rest of the Constitution has many clauses that may seem obscure initially, yet become clear in the light of contemporaneous law and history. But the Fourteenth Amendment is filled with endless fodder for dispute.

This is partly because we know less than we should about the Amendment’s ratification by the state legislatures. It is partly because Amendment’s congressional drafters were not very competent. They sometimes were ignorant of existing constitutional law. They invented terms without defining them. And they ascribed meanings to terms different from established legal meanings. The phrase “subject to the jurisdiction” is a good example. We have only a few clues as to its intended meaning.

Additionally, none of the proposers discussed how the Amendment would impact the children of illegal aliens—even though (contrary to modern assertion) everyone knew that such children were in the country. They were the offspring of Africans illegally imported as slaves after the ban on the slave trade (1808) and before the end of slavery (1866).

As a result of such problems, a reasonably clear “originalist” answer to this issue is not possible. Accordingly, we turn to decisions of the Supreme Court.

The Supreme Court has addressed the Fourteenth Amendment’s “subject to the jurisdiction” language in three important cases. None of these cases definitively resolve our question. But they offer hints.

Elk v. Wilkins (1884) was decided before Congress extended citizenship to Indians who remained tribal members. In Elk, the Court ruled that an Indian born into a tribe was not a citizen unless naturalized under a statute or treaty. The Elk case is only weak evidence of the rule applied to foreigners. This is because because the Constitution’s text and history suggest that the citizenship standards for tribal Indians and foreigners are different. However, the Elk case does tell us that:

* “Subject to the jurisdiction” in the Fourteenth Amendment has a specialized meaning, different from the common meaning of “within a given territory and therefore subject to a court’s order,” as, for example, appears in the Thirteenth Amendment.*

* This meaning is connected to the concept of “allegiance,” a legal term traditionally used to determine whether a person is a natural born citizen.

* For deciding whether a child born in the U.S. receives citizenship under the Fourteenth Amendment, the relevant issue is the parents’ allegiance when the child was born. The parents’ or child’s later decisions are irrelevant, unless the United States accepts them by statute or naturalization ceremony.

Two justices dissented from the holding in Elk. They accepted the connection between “jurisdiction” and allegiance. But they argued that an Indian becomes a citizen if he changes his allegiance by abandoning his tribe and becoming a member of his state’s political community. Their version of allegiance thus depended partly on a person’s intent.

United States v. Wong Kim Ark (1898) ruled that the U.S.-born child of two legally-resident foreigners was a natural born citizen. Horace Gray, the same justice who wrote for the Court in Elk, also wrote for the Court in Wong. The result was different in Wong primarily because the Constitution implicitly made it easier for foreigners to get automatic citizenship than tribal Indians. But the underlying approach of Elk and Wong was similar in that citizenship by birth depended more on geography rather than subjective intent.

The most important lesson of Wong was this: The Constitution’s version of “allegiance” was the version we inherited from Great Britain in 1776—not versions prevailing in other countries or under international law. This agrees with the independent conclusion in my book, The Original Constitution: What It Actually Said and Meant.

As modified by Parliamentary statute, the British version of allegiance was as follows:

* Birth in a country (or on a country’s ships) normally creates a “natural allegiance” to that country.

* A child born abroad is in allegiance to a country, and is therefore natural born, only if his father is a citizen of that country and not engaged in treasonous or felonious activities. In Anglo-American law, a person’s status usually followed that of the mother, but for allegiance the rule was partus sequitur patrem.

* Foreign residents and visitors generally are in “local allegiance” to the host country, since they submit themselves to its laws and protection. Their children born in the host country are natural born citizens of that country.

* To this last rule, there are two exceptions: When the father is a foreign diplomat or a foreign invader, he has no allegiance to the host country, and his offspring are not citizens.

Two justices dissented in Wong. They argued that the British version of allegiance should not apply in America. They contended that parents in merely local allegiance should not bestow citizenship. For example, they stated that if a foreign power occupied U.S. territory, the natural allegiance of parents should pass U.S. citizenship to their children, even if those parents had a local duty to obey the conqueror.

In my view, the Wong majority was right to hold that the British version of allegiance applies to the original Constitution. But because of developments between 1789 and 1868, the dissent made a good argument that a newer, American version applied to the Fourteenth Amendment.

The Supreme Court’s third case was Plyler v. Doe (1982). It ruled that a state’s treatment of illegal aliens’ children is controlled by the Fourteenth Amendment’s Equal Protection Clause. The “subject to the jurisdiction” phrase was not at issue. Nonetheless, the strongly-liberal majority inserted a footnote reading in part:

As one early commentator noted, given the historical emphasis on geographic territoriality, bounded only, if at all, by principles of sovereignty and allegiance, no plausible distinction with respect to Fourteenth Amendment “jurisdiction” can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.

In my opinion, this footnote has little or no persuasive power. It merely recited the views of a commentator and was irrelevant to the matter under decision.

So, where does that leave us?

Let’s assume the Court does not overrule the Elk and Wong cases. To rule against “birthright” citizenship, the Court would have to find a third exception to the precept that children born in the U.S. are U.S. citizens.

Those arguing in favor of citizenship will argue against another exception. They may point out that, unlike a diplomat or an invader, an alien who has violated immigration law still a duty to honor other U.S. laws. In other words, unlike the diplomat or invader, the alien owes local allegiance, and a father’s local allegiance should be enough to grant citizenship to his child.

Citizenship advocates also can point out that unlike in Elk, our country has largely accepted the children of illegal aliens. Our officials generally let them stay in the country and even provide government benefits, such as drivers’ licenses and public university tuition preferences.

Finally, advocates may argue that although the diplomatic and tribal Indian exceptions were mentioned during the Fourteenth Amendment debates, there was no mention of an exception for the children of Africans illegally imported. This implies that such an exception does not exist.

Opponents of citizenship may compare the illegal alien to the foreign invader whose mate produces a child in occupied territory. Both enter the country illegally, and neither should profit from his own wrong. This is different from the case of the captured slave, who is guilty of no wrong. Opponents can add that official acceptance of residence is not the same as acceptance of citizenship.

They may try to prove that illegal aliens often show no interest in abandoning their original citizenship. Opponents may then argue that the Wong dissent was correct to consider personal attitudes as well as mere geographic location.

These questions will be vigorously litigated, as they should be. My current bet is for the Court to rule in favor of citizenship.

* The Citizenship Clause’s limitation of territorial “jurisdiction” so as not to include all people within the territory appears to be unique in the Constitution. Compare the usages in IV-2-2, IV-3-1, and the Thirteenth and Eighteenth Amendments. It is even different from the use of “jurisdiction” elsewhere in the Fourteenth Amendment itself. Thus, in Plyler v. Doe (1982) the Supreme Court was unanimous in holding that the phrase “within its jurisdiction” in the Fourteenth Amendment’s Equal Protection Clause referred to anyone within the boundaries of a state. This discrepancy in meaning is another example of the Fourteenth Amendment’s poor drafting; the drafters should have used a phrase other than “subject to the jurisdiction thereof” if they wanted to exclude certain individuals within state or federal boundaries.

Term Limits for the Supreme Court?

August 23, 2015 by Rob Natelson · Leave a Comment
Filed under: All Postings, Article V, The Founding, supreme court 
Rob at Ullswater, England (2012)

Rob at Ullswater, England (2012)

This article first appeared in the American Thinker.

Term limits are among the reforms being proposed by advocates of curbing federal government abuses through the Constitution’s Article V amendment process.

The idea of congressional term limits has been around for some time. But more recent discussion centers on term limits for the judiciary, especially for the Supreme Court.

In fact, one application for an amendments convention now making the rounds—the Convention of States Application sponsored by Citizens for Self-Governance—is broad enough to include judicial term limits. Although a fairly new offering, it already has been approved by the legislatures of four of the necessary 34 states.

Part of what is driving the talk of judicial term limits is the Supreme Court’s continued failure to honor important parts of the U.S. Constitution. Admittedly, the Court does a pretty good job interpreting some parts of the document. The Intellectual Property Clause is one example. Moreover, the current Court is certainly more conscientious in constitutional cases than the rogue justices who dominated the bench throughout much of the 20th century, and who re-wrote critical portions of the Constitution to suit themselves.

Nevertheless, the present justices are to blame for failing to correct the constitutional fictions of their 20th century predecessors—and for sometimes writing fiction of their own.

Another factor justifying term limits has little to do with specific case outcomes. This is the enormous increase in life expectancy since the Constitution was written. Extended life expectancy is generally a good thing. But when it is coupled with lifetime appointments, the effect is to skew the balance of powers the Founders created.

When the Constitution was ratified, a newly-appointed justice might expect to serve less than 12 years. In fact, the average tenure of the first ten justices was about 8-1/2 years. By contrast, the average tenure of the latest ten to retire was 21-1/2 years. An article by Adrienne LaFrance provides additional statistics.

The Constitution’s checks and balances were crafted with 18th century life expectancies in mind. Although the Founders understood that the Supreme Court would void laws it found unconstitutional, the Founders also expected much more turnover than we now have. When judicial tenure is shorter, the President can nominate, and Senate can approve, more replacements. During the Founding Era, if the Court issued an irresponsible or clearly wrong opinion, citizens could take comfort from the fact that a majority of the Court would be replaced in a few years. That is no longer the case.

The strongest argument in favor of lifetime appointment is that it protects judicial independence. Proposals for short terms with possibilities for reappointment or retention, such as that advanced recently by Sen. Ted Cruz (R.-Tex.) are defective because they do not protect judicial independence.

But we can increase turnover and preserve independence through a constitutional amendment instituting a single long term (e.g., 12 to 20 years) without possibility of reappointment. Such an amendment would have other advantages, too:

First, it would end the presidential game of appointing young and relatively inexperienced justices in the hope that they will continue to influence the Court decades after the appointing President is gone. Of course, in the real world, younger justices often do not have an adequate track record, and may be more readily corrupted by influences in the nation’s capital. If a nominee could serve only, say, 12 years, a President might feel freer to nominate a person in his 60s rather than one in his 40s or early 50s.

Additionally, a younger nominee would have to consider a future career as a private citizen, living under the decisions he made as a justice.

Finally, more rotation on the Court would re-boot the system toward the balance set by the Founders, rendering mistaken decisions more amenable to ultimate correction by the people themselves, acting through the political process.

Rob Responds to Editorial Praising Order Forcing Baker to Make Same-Sex Wedding Cake

August 23, 2015 by Rob Natelson · Leave a Comment
Filed under: All Postings 
Rob in Roxborough State Park Colorado

Rob in Roxborough State Park Colorado

The following response to a Denver Post editorial first appeared in the Aug. 23, 2015 Denver Post.

Are those signs that say “no shirts/no service” now illegal?

Your August 14 editorial endorses a court ruling forcing a baker—at the cost of his livelihood!—to assist conduct his religious faith says is immoral.

“Commercial establishments can’t pick and choose among their customers,” the Post opines. “If you sell wedding cakes to one group of people, you’ve got to sell to all.”

Actually, that has never been the prevailing rule in our legal system. The prevailing rule always has been choice: People may serve, or not serve, whomever they choose.

There are two limited exceptions. First, a duty to serve (almost) everyone applies to monopolies, notably common carriers and utilities. But for enterprises in competition, such as bakeries, the rule has been freedom to choose one’s customers.

The other exception is the civil rights statutes. They originally targeted discrimination against very few groups, primarily ethnic minorities. Over time, civil rights laws have been expanded to include more groups—especially those with effective lobbyists. But the general rule has still been freedom of choice.

Freedom to choose your customers is vital. This is because—

* It protects other liberties, such as freedom of association and (as in the bakery case) freedom of religion.

* Focusing on particular customers helps improve services. In fact, in the real world, businesses limit the scope of their clientele all the time. A rule restricting this right makes it harder to meet individual needs. That hurts everyone. If you doubt this, compare the level of “progress” made by common carriers (such as buses) with progress in competitive enterprise (such as computers).

* Freedom of choice checks government power. The court’s holding that “you must serve whomever the state tells you” is symptomatic of America’s current mutation into an unhappy land where coercion is the norm.

The court’s decision should frighten you—even if you don’t care about cakes or bakers. A government that can tell a baker what kind of cake to prepare is a government that can completely run your life. And soon will.

Proposed Rules for An Article V Convention!

August 14, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, Article V 

2009 RGN

If 34 state legislatures forced Congress to call a convention for proposing amendments, what would the rules look like?

The Convention of States movement (CoS) wanted an answer to this question. So its president asked me to take the lead in drafting sample rules. Then CoS would present them to state legislators for comment. This process might also provide the convention itself with a starting-point for preparing its own rules.

We presented the results at a conference last month in San Diego, California. The conference was sponsored by the American Legislative Exchange Council, one of the nation’s largest associations of state lawmakers.

The sample rules are available here. BEFORE READING THEM, PLEASE OBSERVE THE FOLLOWING:

* Important explanations appear in the footnotes.

* The final decision on convention rules is up to the convention itself. However, state legislators can recommend particular rules or instruct their commissioners (delegates) to vote only for particular rules. In calling the convention, Congress may recommend rules but may not prescribe them.

* These proposals were not invented out of thin air by me or by anyone else. For the most part, they are similar to rules actually adopted by previous conventions of states—notably the 1861 Washington Conference Convention, but also the 1787 Constitutional Convention and others.

* There have been updates to take into account modern conditions. Those updates are explained in the footnotes.

* Most of these rules can be adapted to any amendments convention, but the last two are designed especially for a convention called under the three-part application sponsored by the Convention of States movement. The three parts are (1) fiscal restraints on the federal government, (2) limits on the power and jurisdiction of the federal government, and (3) federal term limits. Those would be only subjects allowed, and the rules provide that other subjects are out of order. (Claims that the convention could consider other subjects are misinformed.)

CoS soon will offer a website that will allow public comment.

“Runaway Convention” Nonsense—One More Time

August 12, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, Article V, The Founding 

041410 Rob Natelson-2

Seldom has a claim so weak been so often advanced than the claim that a convention for proposing amendments would be a “constitutional convention” that could “run away”—that is, disregard its limits and propose amendments outside its sphere of authority.

I have little patience with this sort of alarmism, partly because it is so patently based on ignorance of history and constitutional law and partly because it first widely publicized as part of a deliberate disinformation campaign to disable one of our Constitution’s key checks and balances.

Nevertheless, early in 2013 I took the time to pen a lengthy rebuttal to the runaway scenario, examining the question from almost every possible angle. I did, however, leave one thing out: Modern communications technology makes a “runaway” essentially impossible.

I have, therefore, added the following to my 2013 essay:

There is another aspect of this the “runaway” theorists overlook: modern communications. Even if the 1787 convention had run away, modern communications render the analogy an ill-fitting one. As Walter Phelps Hall and Robert Greenhalgh Albion pointed out in their History of England over 60 years ago, before modern communications diplomats were unable to consult home authorities quickly and sometimes had to make decisions that presented those authorities with a fait accompli. But today’s communications enable the authorities to control their diplomats to the point that the latter can be turned into “nothing but damned errand boys at the end of a wire.” At any convention for proposing amendments, the state commissioning authorities will be in constant contact with their commissioners.

A Convention of States in “Gone With the Wind”

August 9, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, Article V 
Rob at James Madison's home in Virginia

Rob at James Madison's home in Virginia

Margaret Mitchell, the author of the hugely popular novel Gone With the Wind, was a newspaper reporter and the child of a family steeped in history. Her father, a prominent Georgia attorney, was one of the leading lights in the state historical society.

That her book has a plethora of references to historical events occurring during the 1860s is therefore not surprising.

In early 1861, after some of the Southern states had seceded, Virginia sought to head off further secession and civil war by calling a general (national) convention of the states. The goal was to propose a constitutional amendment that both sides would find acceptable.

All but a few states sent commissioners to the Convention, which met from February 4 through February 27. More information about the convention appears here.

On page five of Gone With the Wind, Scarlett O’Hara refers to it:

“You know there isn’t going to be any war,” said Scarlett, bored. “It’s all just talk. Why, Ashley Wilkes and his father told Pa just last week that our commissioners in Washington would come to—to—an—amicable agreement with Mr. Lincoln about the Confederacy.”

Scarlett was intelligent, but she was a spoiled young girl who had avoided studying her history or her Latin, and she was not much interested in current events, except insofar as they affected the availability of adoring “beaux.” On a number of occasions, Mrs. Mitchell demonstrates Scarlett’s ignorance, and this may be one of those occasions. At the time Scarlett was supposedly speaking, the Washington Convention already had adjourned. Moreover, her own state of Georgia seceded during the month before the convention and therefore had not sent “commissioners” to Washington.

A “Prestige Journal” Effort to Rebut Rob

August 3, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, The Founding, supreme court 
Rob in Roxborough State Park Colorado

Rob in Roxborough State Park Colorado

Most of the “prestige” law journals have shown no interest in publishing my articles, including those that later turned out to be influential. This is not surprising, since year after year those journals remain firmly in the hands of the legal Left. But the prestige journals have shown considerable interest in publishing articles that cite my work for their own purposes or, more often, attempt to rebut it.

A recent example is a student-written piece in Yale Law Journal, which argues that the Constitution granted the federal government very broad power over the Indian tribes. The piece is partially a response to my research on the the intended scope of the Indian Commerce Clause. My findings, later cited by Justice Clarence Thomas, were that although the Indian Commerce Clause is often relied on as a basis for broad congressional power over Native Americans, that provision is narrower than commonly believed.

In part, the Yale article merely confirms what I had acknowledged: The principal basis of federal and tribal interaction was not meant to be Congress’s Commerce Power but federal authority over foreign affairs (especially treaties). However, the author also purports to show that when “Commerce” pertained to the Indians that term was broader than when it pertained to foreign nations or the states, because commerce with the Indians was “understood through the lens of cross-cultural diplomacy.” One problem with this thesis, though, is that trade with foreign countries also was “understood through the lens of cross-cultural diplomacy.” Another problem is that interconnection did not necessarily result in federal power. In other words, the mere fact that Congress had authority over Activity X and that Activity X affected Activity Y normally did not give Congress power over Activity Y.

Still another difficulty with the author’s thesis is that varying the meaning of the same use of the same word in the same clause (“Commerce” in the Commerce Clause) violates founding-era rules of legal interpretation. When the framers meant to describe different things in the same clause, they generally used different words rather than repeat the same word (e.g., “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.”).

Perhaps the most problematic aspect of the Yale article is its attempt to find evidence of original meaning through the activities of the administration of George Washington. As I explain in detail in my book, The Original Constitution: What It Actually Said And Meant, for several reasons it is highly risky to deduce the understanding during the ratification process (1787-90) from events that occurred only later and therefore were unknown to the ratifiers themselves.

Whither the Article V Convention Movement? David Guldenschuh Reports

August 2, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, Article V 
David Guldenschuh

David Guldenschuh

The movement for a “convention for proposing amendments” won some stunning successes in the 2014 state legislative sessions. There was more progress during the 2015 sessions—several applications were passed and none was repealed—but the rate of progress slowed.

So where are we now? Georgia lawyer and Article V expert David Guldenschuh has issued a detailed status report on the movement. Particularly engaging are his profiles of some its leading legislative opponents.

Article v advocates also will be interested in tactics he recommends for the immediate future.

A copy of the report is available here.

As is true of any outside material, this report contains opinions that are not necessarily my own, or those of the Independence Institute or the Article V Information Center. But Guldenschuh has done a great deal of work on the subject, and his Article V analyses are always worth reading.

The Legal Case for Federal Land Disposal is Much Stronger than Critics Think

July 31, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, The Founding, supreme court 

2009 RGN

The American Lands Council is a Utah-based organization that argues that the federal government should transfer part of its massive land holdings to the states. In recent weeks, apologists for federal land ownership have been savaging the American Lands Council and its leader, Utah Rep. Ken Ivory, in the Utah press.

I don’t agree with every position the American Lands Council takes, but they have a reasonable legal case. I wrote the following in the Salt Lake Tribune to defend Rep. Ivory and the Council against certain politically-motivated charges:
The American Lands Council and its leader, Utah Rep. Ken Ivory, argue that the federal government is illegally retaining vast tracts of Western lands, some of which should be conveyed to the states.

This is not a new position, but it is making new progress in American state legislatures. It also is drawing the charge that it has “no legal foundation.”

The truth, however, is that Ivory’s position is grounded much more firmly than critics admit.

There are at least three legal bases for concluding that the federal government is obligated to dispose of surplus acreage:

• The original meaning of the Constitution—the meaning attached to it by the Founders—largely supports this view.
• Some of the congressional laws creating Western states (“organic acts”) strongly imply that the federal government has the duty to dispose of excess land.
• To the extent that some of those laws suggest otherwise, they may be constitutionally defective.

Critics point to court cases that assume the federal government may own any land it wants to. But critics should be cautious about relying on those cases. They were sparsely reasoned and therefore are subject to ready judicial re-examination. Moreover, they were decided before the Supreme Court’s renewed interest in the original meaning of the Constitution’s text.

Significantly, that text does not grant the federal government an open-ended, unconditional power to own land. It grants an unconditional power to dispose, but merely conditional and limited authority to retain or acquire.

I first examined the meaning behind this text in a 2005 study published by the University of Colorado Law Review. I learned that the Founders intended the federal government to enjoy more power to own real estate than some right-wing activists admit. But I also learned that the Constitution conveyed to the federal government a good deal less power than Ivory’s critics claim. Essentially, the Constitution, as originally understood, grants the federal government authority to own land for purposes enumerated in the document, but requires the government to dispose of the remainder.

The Supreme Court should have the opportunity to analyze the original meaning of these provisions in the same way it has analyzed provisions applying to federal elections, habeas corpus, guns, and other issues. Perhaps Ken Ivory will give the Court that opportunity.

Another legal basis for Ivory’s position arises from the organic acts of states containing large federal holdings. Those laws support his view when read in light of prevailing rules of judicial interpretation and historical and legal context.

To illustrate: Each organic act grants the state a share of proceeds from federal land sales. From share-of-proceeds terms, courts commonly infer an obligation to maximize proceeds—in this case, a duty to maximize sales. Similarly, each organic act provides that the state disclaims title to federal lands. Although critics claim those disclaimers allow the federal government to retain lands, the disclaimers’ actual purpose was to clear title for sale. The states can legitimately contend that if the federal government sabotages the agreed purpose of the disclaimers, then the states may withdraw them.

Some state organic acts do have terms suggesting the federal government may retain land permanently, but for several reasons those terms may be constitutionally defective.

For example: The Supreme Court voids federal laws (including organic acts) that interfere too much with a state’s core sovereignty. Control over land within state boundaries always has been part of core state sovereignty.

Admittedly, the mere fact that the federal government owns some property within a state does not necessarily violate that state’s core sovereignty. But how far does this rule go?

Washington, D.C. does not claim merely title to the land it owns, but vast sovereign-style authority over it as well. Presumably, therefore, it would be unconstitutional for the feds to own and exercise that kind of authority over all of a state’s territory. But what if they own and control half the state’s land, as in Idaho? Two-thirds, as in Utah? Over 80 percent, as in Nevada?

These are serious and legitimate questions, and Rep. Ivory is performing a public service by raising them.

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