Filed under: All Postings, The Founding, supreme court
You can get it in either hard copy or Kindle form here.
The third edition includes updates on the meaning of
* The Recess Appointments Clause (Justice Scalia quoted Rob’s research 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. . .
Also: read the research conclusions that helped spark the “convention of states” movement.
Written for the non-specialist, this book provides an accurate, objective view of what the Constitution really means.
Filed under: All Postings, The Founding, supreme court
This article was first published at the American Thinker website.
Many commentators and politicians have attacked the Supreme Court’s 2010 case of Citizens United v. Federal Election Commission for holding that citizens do not surrender their First Amendment rights when they organize under state corporation law. The Vermont state legislature has even adopted an application for a federal convention to propose a constitutional amendment to “overturn the Citizens United decision.”
Almost no one seems to know that the Citizens United case contained another ruling in addition to the one on corporate issue campaigns. The other ruling should be just as controversial, for it upheld a broad congressional attack on the privacy of those exercising First Amendment rights. Yet the critics have been almost entirely silent about that part of the case.
In the second ruling, the Court sustained, over Justice Thomas’ sole dissent, a federal mandate that political issue committees publicly reveal the names of major donors. The Court did so although disclosure can lead to retaliation and personal harassment of individuals exercising First Amendment rights. In other cases, the Court has voided disclosure requirements that can result in free expression being unconstitutionally “chilled.” But the Court refused to do so in Citizens United.
The NYU Journal of Law and Liberty has just published an article in which I examine the question of whether forced disclosure of contributors to issue campaigns is consistent with the First Amendment, as the Founders understood it.
Here are my principal findings:
* Under the First Amendment, political advertising is best analyzed as a branch of “the freedom . . . of the press” rather than “freedom of speech.”
* During the Founding Era, the terms “liberty of the press” and “freedom of the press” were exact synonyms, with the former somewhat more common.
* Despite some peripheral uncertainties, the founding generation well understood the core meaning of “freedom of the press.” In other words, it was not a vague or indefinable term.
* During the Founding Era, the near-universal custom of those writing on political subjects of all kinds was to write either anonymously or under assumed names. Printers were expected to respect their contributors’ privacy by not revealing their true identity without explicit permission.
* There were important and completely legitimate reasons for author privacy, all of which continue to be valid today. In fact because of intervening changes in defamation law, those reasons may be stronger now than they were during the founding era.
* The historical record contains explicit statements that assert, or inescapably assume, that “freedom of the press” includes the right to conceal one’s identity. I found only one claim that forced disclosure was consistent with freedom of the press, but it referred to voluntary disclosure by a private printer, not government-forced disclosure.
* Under founding-era law, the right to privacy of identity ended in specific cases of “abuse.” When an author appeared to be guilty of one or more specific offenses, a prosecutor or other plaintiff could require the printer to disclose the name. These offenses included, but were not limited to, defamation, sedition, and treason. In the absence of such an offense, the author’s name was private and none of the government’s business.
A 1782 incident demonstrates the prevailing consensus:
An author had placed an article in a Philadelphia newspaper criticizing state government. Hearing that the editor had revealed the name of the critic to the governor (then William Moore), another writer accused the editor of “treachery.”
The editor felt compelled to respond. He explained that, although the governor had asked for the critic’s identity, the governor had asked for it only, “if you are at liberty to mention his name.”
In response to the governor’s request, the editor then asked the author whether the editor had permission to reveal his identity. The author responded, “You are at liberty to give my name to his excellency.” Only then did the editor disclose it.
This story shows how zealously author privacy was guarded during the Founding Era. Everyone assumed that freedom of the press incorporated a presumption of non-disclosure, even if the author had not asked to be kept anonymous. Editors and printers, as well as government officials, were subject to this norm.
Reading the historical record left me with the conviction that the Founders would have found mandatory disclosure of contributors to political advertising an outrageous violation of privacy — and certainly inconsistent with freedom of the press.
Filed under: All Postings, ObamaCare, The Founding, supreme court
Chief Justice John Marshall (in office 1801-1835) is often identified with an expansive “big government” interpretation of the Constitution. Fans of big government cite him as an ally; opponents as an enemy.
This view of Marshall is a caricature. It is true that Marshall was a Federalist—he occupied a place on the political spectrum of his day closer to Alexander Hamilton than to Thomas Jefferson. But to say that he subscribed wholly to Hamilton’s constitutional views would be untrue. It is even more inaccurate to claim him as a justice who would uphold the constitutionality of the modern federal regulatory welfare state. Marshall was far more moderate than that.
The caricature of our greatest Chief Justice was created in his own time by his political opponents. In the modern era it has been nurtured by “progressives” who claim Marshall for their version of the Constitution. Among the latter group are Supreme Court justices who quote his words out of context, book authors who omit critical passages from his opinions, and law professors unfamiliar with other things Marshall wrote and with the law and language of his time.
In 2011, I authored an article correcting the record. I also co-authored another with the Independence Institute’s own Dave Kopel, explaining why Marshall would have held Obamacare to be unconstitutional.
Now Dr. Thomas K. Lindsay of the Texas Public Policy Foundation has joined in. A new contribution by Dr. Lindsay relies mostly on my research, but he introduces it to a new and much larger audience. You can read Dr. Lindsay’s essay here.
Trying to Abolish the Convention’s One-State/One-Vote Rule Not Only Would Be Unconstitutional—It Wouldn’t Be Worth Trying
One of the far-fetched arguments used to persuade conservatives to oppose an amendments convention is that if 34 states apply, a left-wing Congress might try to dictate that commissioners (delegates) be allocated by population rather than by one state/one vote.
For reasons explained in earlier posts, such a move would be unconstitutional: A “convention for proposing amendments” is a meeting of equal semi-sovereigns, not a popular assembly (although the 38-state ratification requirement assures that any proposal has majority popular support before it is ratified). Because a central purpose of the convention is to bypass Congress, it is highly unlikely that either the courts or the states would acquiesce in such a maneuver.
Moreover, a successful effort along those lines is highly improbable politically: It would require a major change in the political composition of both houses of Congress. Indeed, it would require much more than that—because even when Congress was firmly Democratic, it repeatedly refused to pass legislation along those lines.
And it wouldn’t even be worthwhile to try, because converting the convention to a population basis wouldn’t make much political difference anyway. In the real world, over-representation from large “blue” states like California, New York, and Illinois would be offset by over-representation from large “red” states like Texas, Florida, and Georgia.
David Guldenschuh, a Georgia lawyer active in Article V issues, ran the numbers, and here is what he found:
* There are currently 30 states in which Republicans control both legislative chambers. There are 11 in which Democrats control both houses, eight are divided, and one (Nebraska) is non-partisan. So on a one-state, one vote basis, the “red” states would be comfortably in control of a convention. Divided chambers are likely to produce divided committees (delegations). By traditional rules, if a committee is evenly divided on an issue, it effectively abstains.
* The most liberal of the rejected congressional proposals was for a convention of 435 commissioners, one from each U.S. House district. (Another proposal, for allocation based on the electoral college, was slightly more conservative.)
* Consider the most liberal proposal: Based on the make-up of the current House, it still leaves “red states” (i.e., Republicans) comfortably in control: 246 to 188, with one vacancy.
* Or assume that the 435 are allocated according to the composition of each state legislature. The result then is 252 Republicans, 116 Democrats and 67 from split states—yet another a clear margin of “red state” control.
So how you allocate the commissioners does not really make that much political difference. That fact sharply reduces the motivation to try to reverse the “one state/one vote” rule.
Of course, future elections will result in voting shifts one way or the other. Although it is unlikely in the next few years, Democrats eventually will re-capture both Houses of Congress. But such changes do not happen in a vacuum—they are likely to be paralleled by corresponding changes in the state legislatures as well.
Let me be clear: It would not be constitutionally acceptable to depart from the historic rule. On the contrary, the courts tell us that the historic rules are effectively part of the Constitution’s Article V.
What these numbers do tell us is that neither party will have much motivation to try to change convention voting rules, even if they could.
Article I, Section 10, Clause 3 (I-10-3) of the Constitution forbids states from imposing any “Duty of Tonnage” without the consent of Congress.
During the Founding Era, tonnage was a levy imposed on the cargo capacity of ships entering or leaving harbors. As the Constitution’s words indicate, it was a species in a larger class of financial exactions known as duties.
If tonnage was imposed to raise money for government, it was (by usage prevalent in America) an indirect tax. If imposed only to, say, pay for harbor upkeep or inspection fees, it was a regulation of commerce but not a tax.
Several states, including Virginia and Massachusetts, imposed tonnage duties during the Confederation Era. They lost that right when the Constitution was adopted. Instead, tonnage was levied by the federal government pursuant to its power under I-8-1 to “lay and collect Taxes, Duties, Imposts and Excises.” Because, however, Congress was forbidden to tax exports (I-9-5), it could lay tonnage on ships engaged in international trade only if those ships were entering (not leaving) an American harbor.
Pursuant also to I-9-6, tonnage duties had to be uniform throughout the United States. Congress could not discriminate among harbors by imposing heavier rates in some places than others.
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.