Filed under: All Postings, The Founding, supreme court
You can get it in either hard copy or Kindle form here.
The third edition includes research updates on the original meaning of such issues as:
* The Recess Appointments Clause (Justice Scalia quoted my work on the subject in 2014 recess appointments case) . . .
* The First Amendment (find out whether the famous Citizens United case was rightly decided) . . .
* The Origination Clause—a hot topic for the constitutionality of Obamacare. . . .
Read also the research conclusions that helped spark the “convention of states” movement.
As always, this book is written for the non-specialist. It is designed to give American citizens an accurate view of what the Constitution really means.
As the likelihood of a Convention for Proposing Amendments increases, people are beginning to adjust to the idea.
A recent example is adoption of a new rule by the U.S. House of Representatives providing for the recording and public availability of state legislative applications for a convention. The rule change, sponsored by Rep. Steve Stivers (R.-OH), provides that the Chairman of the Judiciary Committee may transmit any such application to the House Clerk, and that “the Clerk shall make such . . . publicly available in electronic form, organized by State of origin and year of receipt.”
Although this is a modest change, it apparently is the first time either chamber of Congress has provided for an orderly way to handle and publicize Article V applications.
Another implication relates to the convention call. Under Article V, once Congress receives applications on a particular subject from two thirds of the state legislatures (34 of 50), it MUST call the convention. Nevertheless, for many years there has been concern that a ruthless congressional majority might stonewall by imposing unreasonable rules for counting applications or simply refuse to call or issue the call subject to unreasonable or unconstitutional terms. As the tone of Rep. Stivers’ news release announcing the change suggests, this rule change reduces those concerns.
This development also suggests what I am hearing elsewhere: A sizable contingent in Congress actually wants the state legislatures to get their act together and propose an amendment to fix a broken system.
Filed under: All Postings, The Founding, supreme court
Article I, Section 8, Clause 1 of the Constitution reads as follows:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the Common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.
The Constitution also requires that “direct taxes” be apportioned among states by population. The implication is that excises are not among those levies deemed “direct taxes”—so that excises must be uniform, but need not be apportioned.
At the time the Constitution was written, an excise was universally understood to be an “inland” (domestic) tax on the consumption of commodities, specifically on manufactured goods. To cite only a few of the many corroborating definitions:
* Thomas Sheridan’s 1789 English dictionary defined “excise” as “A tax levied upon commodities.”
* George Nicholas at the Virginia ratifying convention described excises as “a kind of tax on manufactures.”
* In Federalist No. 33, Alexander Hamilton wrote of “recourse . . . to excises, the proper objects of which are particular kinds of manufactures.”
Typically taxed by excises were alcoholic beverages, carriages, silks, and certain other items then considered luxuries, such as coffee, chocolate, and tea.
As an indirect tax, an excise was one kind of levy known generically as a “duty.”
By contrast, taxes on individuals (“capitations”), property, businesses, income, and the ordinary business of life were considered “direct.” The Constitution required them to be apportioned among the states.
In 1937, the Supreme Court decided Charles C. Steward Machine Co. v. Davis, in which the Court ruled that the Social Security tax on employers was an “excise,” and therefore did not have to be apportioned among the states. The Court cited three pre-constitutional tax statutes that were not imposed on commodities but, the Court claimed, were excises. All of the Court’s citations were bogus: None of the statutes were excises. Two were head taxes. The other was a non-excise duty.
The Steward Machine case illustrates the incompetent, and sometimes mendacious, methods the Supreme Court employed during the 1930s and 1940s—the very nadir of its history.*
In fact, the tax on employers was a classic direct tax and should have been apportioned among the states as Congress previously had apportioned other direct taxes.
Note: This column is based on research for my forthcoming article, tentatively entitled, What the Constitution Means by “Duties, Imposts, and Excises”—and Taxes (Direct or Otherwise)
* * * *
* Footnote: Some would argue that the Dred Scott case of 1857, a similarly mendacious decision, represented the Court’s nadir. But that was a single horrid case issued by an otherwise competent bench. At least on constitutional subjects, the Court during the 1930s and 1940s issued one poorly-crafted decision after another.
Filed under: All Postings, Article V, The Founding
The article was published in 1992 and is entitled A New Constitutional Convention? Critical Look at Questions Answered, and Not Answered, by Article Five of the United States Constitution. It was authored by John Eidsmoe.
The article contains many of the inaccuracies about the amendments convention process that were common in 1992—such as the claim that the 1787 gathering was called by Congress, that it was called only to amend the Articles of Confederation, that the delegates exceeded their power, and that an Article V convention is a “ConCon.” All of those inaccuracies have been corrected in the ensuing years.
Unfortunately, the article includes other slips that should not have occurred even in 1992. One of these is the unusual assertion that when the Constitutional Convention added the amendment convention procedure, the delegates simply made a hasty mistake!
The article acknowledged that the delegates added the procedure on Sept. 15, 1787 “to guard against an unresponsive congress.” But it stated that “in contrast to the meticulous care the Framers exercised in deliberating on various other provisions of the Constitution, the Concon provision of Article V was added rather hastily, at a time when the delegates were preparing to close their deliberations; and this provision did not receive the careful attention given to most other provisions of the Constitution.”
In fact, however, the amendments convention procedure was not a new idea, but had been under consideration for weeks. It was based on provisions in several state constitutions and the delegates in Philadelphia had been discussing it well before anyone proposed the congressional method!
Thus the Constitution’s first draft, presented by the Committee of Detail on August 6, contemplated a convention of states as the sole mechanism for amendments:
“On the application of the Legislatures of two thirds of the States in the Union, for an amendment of this Constitution, the Legislature of the United States shall call a Convention for that purpose.”
Several delegates supported granting Congress direct power to propose as well, so the wording became:
The Legislature of the United States, whenever two thirds of both Houses shall deem necessary, or on the application of two thirds of the Legislatures of the several States, shall propose amendments to this Constitution . . . .
But this version had the unwitting effect of giving Congress sole power to propose. That went too far, and that is why George Mason successfully recommended re-inserting the convention of states as a proposal mechanism to bypass Congress.
The author speculated that the delegates’ supposed haste was why “there are many unanswered questions about the nature and effect of an Article V convention.” But the actual reason for the supposedly “unanswered questions” is simply because there was no need to go into detail: Americans had previously held many conventions among states and colonies, and were fully familiar with the procedures.
Now, it would be unfair to charge the author with findings about convention history that were made after 1992. However, the author should have known that the amendments convention procedure was vetted and discussed repeatedly during a ratification process that lasted nearly three years. Indeed, the procedure seems to have had an important role in securing public agreement to the Constitution.
For the history of publications about Article V, see Part I of my legal treatise, State Initiation of Constitutional Amendments: A Guide for Lawyers and Legislative Drafters.
* * * *
* Some constitutional scholars give the title “Whac-A-Mole” to convention opponents’ tactics of inventing new arguments after earlier arguments have been discredited. The later arguments are sometimes inconsistent with the former.
Filed under: All Postings, Article V, The Founding, supreme court
Some people have asked for further clarification on why the Constitution’s Necessary and Proper Clause does not grant Congress power to use its convention call to regulate a Convention for Proposing Amendments.
This is a technical area and can be difficult to grasp (or explain, for that matter). You have to understand the nature of the Necessary and Proper Clause, analyze its wording, and put together a variety of judicial rulings.
Accordingly, I’ve expanded my review of the subject. You can find it here.
Filed under: All Postings, ObamaCare, The Founding
The Constitution requires the President to “take Care that the Laws be faithfully executed.” This “take Care” language came from 18th century commissions and formal instructions by which higher officials delineated what lower officials were to do. The premier examples were royal instructions to colonial governors, but the Continental and Confederation Congresses used the same language in instructing civil and military officials.
The Constitution’s language is both a grant of enumerated power to the President and a mandatory duty imposed on him.
The Obama administration’s partial refusal to enforce various laws has raised questions of whether the President is violating the Constitution’s command, and thus committing an impeachable offense.
The question can be a difficult one, because everyone recognizes that the President has some discretion in exercise of the executive power. For example, the cost of full enforcement might be far greater than the appropriated funds for enforcement, requiring the President to set priorties. Also, fully enforcing the law against some persons technically in violation can work great injustice.
So is Obama violating his constitutional duty or not? Legal scholar Zachary Price examines this question in a thoughtful, balanced article written for Vanderbilt Law Review.
He concludes that in its partial non-enforcement of marijuana laws, Obama is within the scope of his discretion, although somewhat close to the line. Obama crossed the line, however, in refusing to enforce mandates imposed by the Affordable Care Act (Obamacare) and in granting exemptions from the immigration laws to whole classes of people.
Professor Price finds that the George W. Bush administration also exceeded the scope of its discretion in underenforcing “New Source Review” environmental laws.
Several years ago, I wrote on this site about the contributions to the American Founding of Josiah Quincy.
Another little-known Founder who should be more widely celebrated today was Theophilus Parsons.
Parsons was from the same Massachusetts circle that produced Quincy. He was an an outstanding lawyer and an eloquent spokesman for republican government and for federalism.
Although Hamilton’s Federalist No. 28 and Madison’s Federalist No. 46 are justly famous for their expositions of how states and individuals should resist federal usurpation, Parsons also was making the same case about the same time.
Parsons was a leader of the pro-Constitution forces at the Massachusetts ratifying convention. On January 23, 1788—three weeks after the publication of Federalist No. 28 and six days before the Federalist No. 46—he rose in that gathering to point out certain checks and balances inherent in the document.
The oath the several legislative, executive, and judicial officers of the several states take to support the federal Constitution, is as effectual a security against the usurpation of the general government as it is against the encroachment of the state governments. For an increase of the powers by usurpation is as clearly a violation of the federal Constitution as a diminution of these powers by private encroachment; and that the oath obliges the officers of the several states as vigorously to oppose the one as the other. But there is another check, founded in the nature of the Union, superior to all the parchment checks that can be invented. If there should be a usurpation, it will not be on the farmer and merchant, employed and attentive only to their several occupations; it will be upon thirteen legislatures, completely organized, possessed of the confidence of the people, and having the means, as well as inclination, successfully to oppose it. Under these circumstances, none but madmen would attempt a usurpation.
But, sir, the people themselves have it in their power effectually to resist usurpation, without being driven to an appeal to arms. An act of usurpation is not obligatory; it is not law; and any man may be justified in his resistance. Let him be considered as a criminal by the general government, yet only his own fellow-citizens can convict him; they are his jury, and if they pronounce him innocent, not all the powers of Congress can hurt him; and innocent they certainty will pronounce him, if the supposed law he resisted was an act of usurpation.
Parsons played a key role at the convention in other ways. He helped negotiate the deal whereby Massachusetts would ratify while simultaneously proposing amendments—the very seed from which the Bill of Rights grew. He also had been an important figure before the convention, drafting the fine statement of republican principles known as the Essex Result (1778). That document contains a clear explanations of the concept of inalienable v. alienable rights, the basis of which the Founders rarely explained, because they took it for granted:
All men are born equally free. The rights they possess at their births are equal, and of the same kind. Some of those rights are alienable, and may be parted with for an equivalent. Others are unalienable and inherent, and of that importance, that no equivalent can be received in exchange. Sometimes we shall mention the surrendering of a power to controul our natural rights, which perhaps is speaking with more precision, than when we use the expression of parting with natural rights–but the same thing is intended. Those rights which are unalienable, and of that importance, are called the rights of conscience.
After the Constitution was adopted, Parsons continued to practice law and for several years served in the state legislature. Among the clerks educated in his law office was John Quincy Adams, the future president. From 1806 until his death in 1813, he was Chief Justice of the Massachusetts Supreme Judicial Court, where, among his other contributions, he helped shape modern American corporate law.
As if that weren’t enough, he was also a mathematician, classicist, and amateur astronomer.
Filed under: All Postings, Article V, The Founding, supreme court
A little known aspect of our Constitution is that it delegates power, not just to the U.S. Government and to its units, but also to persons and entities outside the U.S. Government. In each case, the power to act is derived ultimately from the Constitution. Even when those persons or entities are states or officeholders of states, their authority derives from the Constitution rather than from the pool of authority retained by the states under the Tenth Amendment.
The Constitution’s delegations of power to actors outside the U.S. Government are surprisingly plentiful. The first listed in the Constitution is Article I, Section 2, Clause 1 [“I-2-1”], which implicitly authorizes each state to define qualifications for the U.S. Representatives from that state. The Seventeenth Amendment extended this authority to include U.S. Senators.
I-2-4 empowers (and directs) state governors to “issue Writs of Election” to fill vacancies in the House of Representatives.
The original Constitution (I-3-1) also delegated authority to each state “Legislature” to elect U.S. Senators. The word “Legislature” was meant literally: The delegation was to the state representative assembly. It was not to the general state legislative authority, which the assembly might share with the governor (through the veto) or the people (through initiative and referendum). In other words, election of Senators was not subject to the governor’s approval, nor could it be handed off to the people. In addition, I-3-2 empowered each governor to temporarily fill senate vacancies during a legislative recesses. This situation continued until the Seventeenth Amendment moved Senate elections to the voters at large. That amendment also conferred on state legislatures power to authorize the governor to make temporary appointments.
The Supreme Court has held that another grant to each state “Legislature” (I-4-1) actually is a grant to the broader legislative authority rather than merely to the state’s representative assembly alone. The Times, Places and Manner clause allows each state to regulate the “Manner of holding Elections for Senators and Representatives.” Because the grant is to the general legislative authority rather than to elected assembly, the governor can veto such regulations, and the people can make them through the initiative process or approve or reject them through referendum, if the state constitution so provides.
The Constitution further bestowed on state legislatures a veto over congressional acquisitions under the Enclave Clause (I-8-17) and over proposed state divisions and combinations (IV-3-1).
Article II, Section 1 empowers “Each State” to choose the method of selecting presidential electors from that state. The same section, coupled with the Twelfth Amendment, authorizes the electors to choose the President. Again, both powers derive from the Constitution, not from those retained under the Tenth Amendment.
The Guarantee Clause (Article IV, Section 4) grants state legislatures the legal capacity to compel the federal government to protect them against “domestic Violence,” and it gives like capacity to state governors when the legislature cannot be convened.
Article V, which governs the amendment process, grants power to four kinds of assemblies: Congress, state legislatures, state conventions, and a federal convention to propose amendments. The courts tell us that in Article V matters, these assemblies act independently, and not as branches of any government.
Article VI empowers, and directs, state judges to apply the Constitution as the “Supreme Law of the Land.”
When an entity outside the government exercises authority conferred by the Constitution, the Supreme Court says it exercises a “federal function.” However, the Court also has made clear that exercising a federal function does not convert an independent entity into a part of the U.S. government.
One interesting implication of these grants, as I noted in an earlier posting, is that they fall outside the incidental federal legislative power defined in the Necessary and Proper Clause. This is because the Necessary and Proper Clause generally excludes laws not directed to the federal government or to “Departments” and “Officers” of that government.
Apparently in recognition of this, the framers provided for several compensating grants to the federal legislature (i.e., Congress-subject-to-presidential-veto). The Times, Places and Manner Clause permits Congress to regulate, to a certain extent, a governor’s writ of election and to overrule most state regulations of congressional elections. (I-4-1). Moreover, even though states are primarily responsible for selecting presidential electors, Congress may dictate “the time of chusing the Electors, and the Day on which they shall give their Votes.” (II-1-4). And in the amendment process, Congress calls the convention and chooses among two modes of ratification.
Filed under: All Postings, The Founding, supreme court
This article was first published in The American Thinker.
King John (reigned: 1199-1216) could be charming and efficient, but he was ruthless and utterly untrustworthy, and several times he drove his subjects to the point of rebellion. Out of one of those rebellions emerged the most influential constitutional document in Anglo-American history—perhaps the most influential of all time.
On June 15, 1215 in the meadow of Runnymede on the banks of the River Thames, English barons forced John to seal the first version of Magna Carta. The Latin title reflects the document’s Medieval Latin text. It came to be called magna (great) to distinguish it from the lesser Charter of the Forest.
Thus the coming year of 2015 marks the 800th anniversary of the event at Runnymede.
John died in 1216, after having repudiated the Charter. However, his successors have repeatedly pledged their adherence to it. Portions remain law in England today.
In many respects, Magna Carta was similar to other medieval European royal charters granting liberties and privileges, and indeed it restated some terms from a charter issued by Henry I over a century earlier. What distinguished Magna Carta was the universality of its grants. It acknowledged rights and privileges not merely for the barons who extracted it, but also for women, for merchants, for the church, for all free persons, and in some cases even for unfree agricultural workers. A particularly striking provision (Chapter 60 of the 1215 version) provided that the barons would grant to their own vassals all the liberties the king was granting them.
This universality probably was due to the vision of Stephen Langton, Archbishop of Canterbury, a former professor at the University of Paris, and the inventor of our system of dividing biblical books into chapters. Langton played a major role in negotiating the settlement between John and the barons.
Subsequent English Kings repeatedly re-issued or re-affirmed Magna Carta, even if they did not always honor its terms. Copies were lodged in every county in England. Magna Carta became the first entry in the English Statutes at Large. It was read aloud to the populace on regular occasions in public places throughout the realm. During the reign of Edward III (1327-1377), Parliament enacted statutes elucidating the meaning of key provisions. By the close of the Middle Ages, Magna Carta was recognized as a document of constitutional proportions.
Parliamentary spokesmen relied on it during their pivotal struggles with the kings of the Stuart dynasty (1603-1689). The most famous of the Parliamentary spokesmen, Sir Edward Coke (1552-1634), penned a treatise on Magna Carta. This subsequently was included in his Institutes of the Lawes [sic] of England, the single most popular law treatise in Britain and in British America until supplanted by Blackstone in 1765. Coke was therefore a primary source from which the American Founders learned their law.
Magna Carta, particularly as interpreted by Coke, formed a basis for terms in key American governmental documents. Echoes or paraphrases appeared in each colony’s charter, in the Massachusetts Body of Liberties, in Pennsylvania’s Frame of Government, and in similar instruments. During the decade of tension with Britain that preceded the American Revolution, spokesmen for the American cause relied partly on Magna Carta to support their case. After independence, Americans inserted provisions derived from Magna Carta into their new state constitutions, into the Articles of Confederation, and into the federal Constitution of 1787.
The Due Process Clauses of the Fifth and Fourteenth Amendments are the successors of Magna Carta’s famous Chapter 39, which provided that the king would not penalize any subject other than according to the judgment of the subject’s peers or the law of the land. The Fifth Amendment Due Process Clause included an implicit ban on many civil ex post facto laws, which served the goal of its drafter, James Madison, of compensating for the narrow ratification-era understanding of the Ex Post Facto Clauses (Art. I, sec. 9, cl. 3 & sec. 10, cl. 1).
The Constitution’s Privileges and Immunities Clause (Art. IV, sec. 2) stems from Magna Carta’s guarantees of free entry and exit from the kingdom for merchants and other travelers (Chapters 41 and 42). The proportionality rule of the Eighth Amendment derives, in part, from Magna Carta’s bans on excessive amercements and on seizure of the tools people used to earn a living.
Magna Carta contains predecessors of the Sixth Amendment guarantees of a local (Chapter 18) and speedy (Chapter 40) trial, and to confront witnesses (Chapter 38). The Thirteenth Amendment proscription against involuntary servitude is prefigured in Chapter 23; aspects of the Commerce Clause (Art. I, sec. 8, cl. 3) by Chapter 33, and the Weights and Measures Clause (Art. I, sec. 8, cl. 5) by Chapter 35. The Fifth Amendment Takings Clause is anticipated by Chapters 19 and 21 of the 1225 version.
No wonder Justices of the Supreme Court have cited Magna Carta in over 175 cases. It a foundation for American liberties—as it has been a foundation of the liberties widely enjoyed throughout the modern Anglosphere.
A new II Backgrounder contains a brief and clear explanation of how the people, through their state legislatures, can address federal dysfunction while bypassing Congress.
The Backgrounder is the first publication of II’s new “Article V Information Center.”
You can read it here.