The Evidence Continues to Pile Up on “Recess Appointments”

April 18, 2014 by Rob Natelson · Leave a Comment
Filed under: All Postings, The Founding 

2013-0822 RGN Earlier this year, the Harvard Journal of Law and Public Policy published my article showing that the Constitution’s Recess Appointments Clause limits presidential vacancy appointments far more than President Obama (and most prior Presidents) have claimed. I posted earlier on the same subject here.

The issue is before the Supreme Court right now.

The Recess Appointments Clause states in part that, “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate. . . ” In preparing the article I examined a wide range of Founding-Era documents, including early state constitutions and legislative records, to determine when a vacancy “happens” and what the Founders meant by “the Recess” of a legislative body. I learned that a vacancy “happens” only when it is created. Thus, for the President to fill a vacancy, it must have been created during the Recess, not merely continue into it.

I also learned that, while the simple noun “recess” could refer to any legislative break, the phrase “the Recess” referred only to the period between formal legislative sessions.

Another project has kept me in early American legislative documents, and new discoveries continue to confirm that “the Recess” meant only the break between sessions.

For example, I was able to obtain a copy of the hard-to-get 1784 journal of the Massachusetts House of Representatives. It contains a message from Governor John Hancock specifically referring to the time between the sessions as “the recess.” Early Maryland legislative records similarly contain repeated references to a prior or approaching period between sessions as “the recess.”

The same story recurs in New Jersey. A September 10, 1776 legislative committee report from that state clearly distinguished between the “Session” and “the Recess.”  A  May 19, 1786 report of the Governor, issued two days after the session began, provided the legislature with correspondence the governor had received during “the Recess of the House.” And a Nov. 30, 1789 resolution authorized the city mayor to take control of legislative property “during the recess of the Legislature”—that is, not during short breaks but when lawmakers went home at the end of their session.

A Legal Treatise on the Law of Amendment Conventions—For Free!

April 6, 2014 by Rob Natelson · Leave a Comment
Filed under: All Postings, Article V, The Founding 
Atop St. Paul's Cathedral, London

Atop St. Paul's Cathedral, London

A spate of new applications from state legislatures for a “convention for proposing amendments” make it more likely that we will have an amendments convention in the near future. In order to get ready for this historic event, lawyers, legislators, and others involved in the process need a reliable guide to the law governing amendment conventions.

Citizens for Self Governance has just published my legal treatise on the subject as part of their Convention of States project. It is called A Compendium for Lawyers and Legislative Drafters. In addition to over 80 pages of original material, it includes important and reliable scholarly articles on the subject. You can download it for free here.

How Do We Know an Article V Amendments Convention is a “Convention of the States?” Because Both the Founders and the Supreme Court Said So

March 28, 2014 by Rob Natelson · Comments Off
Filed under: All Postings, The Founding, supreme court 
Rob at James Madison's home in Virginia

Rob at James Madison's home in Virginia

Article V of the Constitution authorizes a “Convention for proposing Amendments.” However, it does did not specify how the convention is to be composed. People unfamiliar with constitutional history sometimes claim the makeup of an amendments convention is either a complete mystery or subject to the determination of Congress.

Nonsense. For one thing, the Supreme Court already has spoken on the matter. In 1831, the Court decided Smith v. Union Bank, in which it specifically characterized (on page 528) an amendments convention as a “convention of the states”—that is, a gathering of representatives of state legislatures.

The Court’s characterization was, in fact, the dominant one in America until misunderstandings on the subject arose in the mid-to-later 20th century. It was also the Founders’ view of an amendments convention.

The history of the 30+ conventions held among colonies and states before and during the Founding Era shows that they always were gatherings of state “committees” (delegations) of “commissioners” (delegates) appointed by the several states. Furthermore, participants in the ratification debates repeatedly referred to this process as one in which the states were the drivers.

But beyond that, there is a series of Founding-Era official documents specifically identifying a convention for proposing amendments as a “convention of the states.” For example:

*    The very first Article V application was adopted by the Virginia legislature on November 14, 1788. It recited that “happily . . . the Constitution hath presented an alternative, by admitting the submission [of an amendment] to the convention of the states.”

*    The Pennsylvania legislature did not favor Virginia’s application, and said so in a resolution adopted on March 5, 1789. The resolution recited that “it must ever be [pain]ful to the House, when obliged to dissent from the opinion of that [Virginia] Assembly upon any point of common concern to the two states, as members of the union; and particularly, on a measure of such importance as the one proposed, the calling of a convention of the states for amending the constitution . . . ” Minutes, Pa. Gen. Assembly, 124-25 (March 5, 1789)

*    On the other hand, New York’s governor, George Clinton, favored such a convention. A letter from the Virginia legislature to Governor Clinton reproduced in the New York legislative journals successfully urged New York to adopt its  own Article V application: “The propriety of immediately calling a Convention of the States, to take into consideration the defects of the Constitution, was admitted, and, in consequence thereof, an application agreed to, to be presented to the Congress, so soon as it shall be convened, for the accomplishment of that important end.”  Letter from John Jones & Thomas Mathews to Gov. George Clinton, Nov. 20, 1788, reproduced in N.Y. Assem. J., p. 25 (Dec. 27, 1788).

*    The Rhode Island legislature generally looked favorably on the idea, and responded as follows:

“Whereas, His Excellency George Clinton, president of the convention of New York, hath transmitted to the legislature of this state a proposal, that a general convention of the states should take place, in order that such necessary amendments may be made in the constitution proposed for a federal government, as will secure to the people at large their rights and liberties, and to remove the exceptionable parts of the said proposed constitution:
It is therefore voted and resolved, that the secretary forthwith cause to be printed a sufficient number of copies of Governor Clinton’s letter, with the amendments proposed by the convention of the state of New York, and transmit one as soon as possible to each town clerk in the state; who is hereby directed, upon receipt thereof, to issue his warrant to call the freemen of such town to convene in town meeting, to take the same into consideration, and thereupon to give their deputies instructions whether they will have delegates appointed to meet in convention with the state of New York, and such other states as shall appoint the same; or such other instructions as they may deem conducive to the public good; that this General Assembly may know their determination at the session to be holden by adjournment on the last Monday in December next. . . . ”
Records of the State of Rhode Island, vol. 10, pp. 309-10 (Oct. 27, 1788).

By contrast, a convention held within a state was thought of as a convention of the people.

All of these documents were issued while discussion over ratification of the Constitution was continuing. Eleven states had ratified, but in North Carolina and Rhode Island the outcome was still very much in doubt. Moreover, these are all official documents, not the product of individual eccentrics. As such, they are powerful evidence that a “Convention for proposing Amendments” was understood to be a gathering of the states. The Framers of Article V didn’t need to spell it out, precisely because everyone knew it.

The American Founders: Latin Lovers

March 20, 2014 by Rob Natelson · Comments Off
Filed under: All Postings, The Founding 
Rob and daughter Sarah atop the Leaning Tower, Pisa, Italy

Rob and daughter Sarah atop the Leaning Tower, Pisa, Italy

Take out a dollar bill and look on the back. There you will see the two sides of the Great Seal of the United States. Look at the left hand side—the circle with the pyramid.

Above the pyramid is a representation of the Eye of Providence—of God. Above the eye is the phrase, Annuit coeptis. Below the pyramid is Novus ordo seclorum.

The words are in Latin, of course. Most people know that Latin was the official language of the western half of the Roman Empire and the basis for most western European tongues: Spanish, French, Portuguese, Italian, Catalan, Provincal, Romanian, and Swiss Romansh. It also is the source for at least half the words in English (although the foundation of English is German.)

What fewer people know is that Latin remained the language of learning for centuries after the Western Empire “fell” in 476 C.E., and after the collapse of the Eastern Empire in 1453. During the Founding Era, every boy (and some girls) in the English-speaking world with any hope of a decent education began Latin studies around the age of eight. Before entering college, the student could read, and often write, the language with ease. In other words, Latin literature was a mainstay of the education of our Founders. It also held a prominent place in Anglo-American law.

As Forrest McDonald, arguably our greatest living constitutional historian, wrote in the book he entitled, Novus Ordo Seclorum:

“[In understanding the 18th century English in which our Constitution is written] a rudimentary knowledge of Latin is highly useful; after all, every educated Englishman and American knew Latin, English words were generally closer in meaning to their Latin originals than they are today, and sometimes, as with the use of the subjunctive, it is apparent that an author is accustomed to formulating his thoughts in Latin.”

Yet few of those who pontificate on the Constitution today, and this includes law professors in particular, have even the “rudimentary knowledge” of Latin that McDonald thinks is so important. And as I point out in my book, The Original Constitution, they sometimes they make mistakes that reveal their ignorance.

One of the two or three greatest classical Roman poets (perhaps the greatest)—and probably the one most read by the Founders—was Publius Vergilius Maro (“Virgil”).  Both inscriptions on the Great Seal are echos from Virgil’s work. Annuit coeptis means “He [i.e., God] has approved [literally “nodded at”] our undertakings.” In Virgil’s epic poem, the Aeneid, the hero’s son prays to the king of the gods, “Iuppiter omnipotens, audacibus adnue coeptis.” (Book 9, Line 625). That is, “All-powerful Jupiter approve [give the nod to] our bold undertakings.” By their inscription in the Great Seal, our Founders were announcing that God had, indeed, approved the creation of the United States of America.

Novus ordo seclorum means “new order of the ages,” and to the Founders, the evocative force of this phrase would have been very powerful. The phrase is based on the fourth poem in Virgil’s ten-poem book, “The Eclogues,” written about 37 BCE.  In that poem Virgil tells of a newborn child whose birth announces a new golden age: magnus ab integro saeclorum nascitur ordo. “A great order of the ages is born anew.” The poem, written about a three decades before Christ was born, induced many medieval and early modern  Christians to believe Virgil had been divinely inspired. (The Italian poet Dante made Virgil his guide through the Inferno and the Purgatorio.)

These are only two examples of how the Latin language opens windows on how the Founders thought. There are many, many others.

The Lamp of Experience: Constitutional Amendments Work

March 9, 2014 by Rob Natelson · Comments Off
Filed under: All Postings, Article V, The Founding, supreme court 

RGNStPauls(This article originally appeared in the American Thinker.)

Opponents of a Convention of States long argued that there was an unacceptable risk a convention might do too much.  It now appears they were mistaken. So they increasingly argue that amendments cannot do enough.

The “too much” contention was first promulgated in modern times by apologists for the liberal, ultra-activist Earl Warren/Warren Burger Supreme Court.  Specifically, these apologists feared a convention might propose amendments to reverse their favorite judicial decisions.  Their tactic was to claim that an amendments convention, even if legally limited, could turn into a “con-con” that disregarded its limits, repealed the Bill of Rights, and restored slavery.  (Yes, some of them really said that.)

The liberals who promoted this scenario must have been amused when some deeply conservative groups fell into the trap and began using the same argument to kill conservative amendments.

The “too much” line, however, has been losing its persuasiveness.   New research shows it to be legally and historically weak, and Americans increasingly are pondering the very real dangers of not resorting to the convention process the Founders bequeathed to us.

Hence the shift to the “too little” argument.  Its gist is that amendments would accomplish nothing because federal officials would violate amendments as readily as they violate the original Constitution.

Opponents will soon find their new position even less defensible than the old.  This is because the contention that amendments are useless flatly contradicts over two centuries of American experience — experience that demonstrates that amendments work. In fact, amendments have had a major impact on American political life, mostly for good.

* * * *

The Framers inserted an amendment process into the Constitution to render the underlying system less fragile and more durable.  They saw the amendment mechanism as a way to:

*    correct drafting errors;
*    resolve constitutional disputes, such as by reversing bad Supreme Court decisions;
*    respond to changed conditions, and
*    correct and forestall governmental abuse.

The Framers turned out to be correct, because in the intervening years we have adopted amendments for all four of those reasons.  Today, nearly all of these amendments are accepted by the overwhelming majority of Americans, and all but very few remain in full effect.  Possibly because ratification of a constitutional amendment is a powerful expression of popular political will, amendments have proved more durable than some parts of the original Constitution.

Following are some examples:

Correcting drafting errors

Although the Framers were very great people, they still were human, and they occasionally erred.  Thus, they inserted in the Constitution qualifications for Senators, Representatives, and the President, but omitted any for Vice President.  They also adopted a presidential/vice presidential election procedure that, while initially plausible, proved unacceptable in practice.

The founding generation proposed and ratified the Twelfth Amendment to correct those mistakes.  The Twenty-Fifth Amendment addressed some other deficiencies in Article II, which deals with the presidency.  (My reference to a particular amendment does not mean I agree with every provision in it.)

Both the Twelfth and Twenty-Fifth Amendments are in full effect today.

Resolving constitutional disputes and overruling the Supreme Court

The Framers wrote most of the Constitution in clear language, but they knew that, as with any legal document, there would be differences of interpretation.  The amendment process was a way of resolving interpretative disputes.

The founding generation employed it for this purpose just seven years after the Constitution came into effect.  In Chisholm v.  Georgia, the Supreme Court misinterpreted the wording of Article III that defines the jurisdiction of the federal courts.  The Eleventh Amendment reversed that decision.

In 1857, the Court issued  Dred Scott v.  Sandford, in which it erroneously interpreted the Constitution to deny citizenship to African Americans.  The Citizenship Clause of the Fourteenth Amendment reversed that case.

In the 1970, the Court decided Oregon v.  Mitchell, whose misinterpretation of the Constitution created a national election law mess.  A year later, Americans cleaned up the mess by ratifying the Twenty-Sixth Amendment.

All these Amendments are in full effect today, and fully respected by the courts.  Some argue, in fact, that the Supreme Court actually over-enforces the Eleventh Amendment — a contention with which I do not agree.

Responding to Changed Conditions

The Twentieth Amendment is the most obvious example of a response to changed conditions.  Reflecting improvements in transportation since the Founding, it moved the inauguration of Congress and President from March to the January following election.

Other amendments as well were wholly or partially triggered by changed conditions.  The Seventeenth Amendment, which transferred elections for Senators from the state legislatures to the people, is still controversial in some quarters.  But it was adopted only after social changes had caused widespread breakdown in the prior election system. (That is why the state legislatures themselves sought the change.) With the partial exception of Mark Levin, few if any of its critics address the very real problems the Seventeenth Amendment was designed to solve.

Similarly, the Nineteenth Amendment, which assured women the vote in states not already granting it, was passed for reasons beyond simple fairness.   When the Constitution was written, overwhelming domestic duties and very short female life expectancies effectively disqualified most women from politics.  During the 1800s, medical and technological advances made possible by a vigorous market economy improved the position of women immeasurably and rendered their political participation far more feasible.  Without these changes, I doubt the Nineteenth Amendment would have been adopted.

Needless to say, the Seventeenth, Nineteenth, and Twentieth Amendments all are in full effect many years after they were ratified.

Correcting and forestalling government abuse

Avoiding and correcting government abuse was a principal reason the Constitutional Convention unanimously inserted the state-driven convention procedure into Article V.  Our failure to use that procedure helps explain why the earlier constitutional barriers against federal overreaching seem a little ragged.  Before looking at the problems, however, let’s look at some successes:

*    We adopted the Thirteenth, Fourteenth, Fifteenth, and Twenty-Fourth Amendments to correct state abuses of power.  All of these are in substantially full effect.

*    In 1992, we ratified the Twenty-Seventh Amendment, 203 years after James Madison first proposed it.  It limits congressional pay raises, although some would say not enough.

*    In 1951, we adopted the Twenty-Second Amendment, limiting the President to two terms.  Eleven Presidents later, it remains in full force, and few would contend it has not made a difference.

Now the problems: Because we have not used the convention process, the first ten amendments (the Bill of Rights) remain almost the only amendments significantly limiting congressional overreaching.  I suppose that if the Founders had listened to the “amendments won’t make any difference” crowd, they would not have adopted the Bill of Rights either.  But I don’t know anyone today who seriously claims the Bill of Rights has made no difference.

In fact, the Bill of Rights continues to have a huge impact more than two centuries after adoption.  The courts enforce, to at least some extent, all of the original ten except, arguably, the Ninth.  Some, such as the First Amendment, have been “super enforced.” Others, such as the Second and Fourth are under relentless pressure, but remain far better than nothing at all.

What about the Ninth and Tenth? They are certainly under-enforced today, but we must remember that they enjoyed full effect for nearly 150 years.  No reasonable person would classify 150 years of effect as anything but a stellar political success.   Even today, the Tenth retains some of its power, as Congress learned when the Supreme Court upended its effort to corral all the states into the Obamacare Medicaid expansion.

“I have but one lamp by which my feet are guided; and that is the lamp of experience,” Patrick Henry said.  “I know of no way of judging of the future but by the past.”

In this case, the lamp of experience sheds light unmistakably bright and clear: Constitutional amendments work.

A Modern Quasi-Convention of States

March 1, 2014 by Rob Natelson · Comments Off
Filed under: All Postings, Article V, The Founding 

2013-0822 RGNMany opponents of an Article V convention seem to think that it would be a nearly unique event, for which the “only precedent” would be the 1787 constitutional convention.   Some even go so far as to oppose non-Article V gatherings among the states.

As regular readers know, the idea that a convention of states would be a nearly unique event is pure balderdash. Meetings among sovereign states (and before Independence, American colonies) on constitutional and other issues, have been a staple of American life for over 300 years. I’ve counted at least 35 of them since 1689—21 before Independence, ten in the first 11 years of Independence, and another four since the Constitution was ratified (1814, 1850, 1861, and 1922). Several of these conventions proposed constitutional changes.

In addition, the states have often commissioned problem-solving task forces that look a lot like conventions even if they don’t comply with all the technical criteria. Here’s a modern example:

The Delaware River Basin Advisory Committee was a task force consisting of commissioners from four states (Delaware, Pennsylvania, New York, and New Jersey) and two cities (New York and Philadelphia). In 1959 and 1960, it negotiated the Delaware River Basin Compact. The states arranged this compact largely to preempt federal efforts to control the waters of the Delaware River. Despite being upstaged, Congress ultimately approved the deal, as required by Article I, Section 10 of the Constitution.

One could argue that Delaware River Basin Advisory Committee fits all the criteria for “a convention of states.” Participation by the cities certainly didn’t  disqualify it as such: Representatives from other governmental units participating in multi-state conventions, while unusual, was not unprecedented. But because of its informality and the length of its existence (handling several tasks over several years), I’d prefer to call the Delaware River Basin Advisory Committee a “quasi-convention.”

Yet it certainly represents yet another event in the long history of conventions and convention-style meetings among states.

In other words, for an Article V convention, we have precedents by the bushel. For the legal and practical implications of this, see this prior posting.

Is the Obamacare Mandate Unconstitutional Because It Originated in the Senate?

February 24, 2014 by Rob Natelson · Comments Off
Filed under: All Postings, ObamaCare, supreme court 
Rob at James Madison's home in Virginia

Rob at James Madison's home in Virginia

The Patient Protection and Affordable Care Act (PPACA or “Obamacare”) imposes a sliding-scale financial penalty on people who do not buy health insurance conforming to federal standards. In NFIB v. Sebelius, the Supreme Court upheld the penalty as a constitutional “tax.”

But that may not be the last word on its constitutionality.

A lawsuit brought by Matt Sissel, a self-employed artist, contends that the penalty is void under a provision in the Constitution called the Origination Clause: Article I, Section 7, Clause 1.  It reads as follows:

“All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.”

As a tax, Sissel argues, the financial penalty is “for raising Revenue.” He then notes how Obamacare was adopted: First, the House passed H.R. 3590, which created a first-time homebuyer tax credit for armed services personnel and “accelerated” certain estimated corporate income tax payments. Next, when H.R. 3590 came to the Senate, that body gutted it and inserted the PPACA instead, which the Senate then passed. Finally, the House passed the new H.R. 3590. So as a practical matter, Sissel says, the Obamacare tax originated in the Senate—not, as constitutionally required, in the House.

If Sissel is right, then the same defect may afflict other levies imposed by Obamacare, such as the one on medical devices.

The case turns on two overarching issues:

(1) Is the penalty for not buying insurance a measure “for raising Revenue?” and
(2) Did the Senate’s action in gutting the original bill and replacing it with Obamacare constitute an “Amendment?”

Only if the penalty was “for raising Revenue” did the Origination Clause apply. Only if the Senate’s changes exceeded the scope of permissible “Amendment” (and thereby constituted an entirely new bill) did Obamacare unconstitutionally arise in the Senate.

In defending the law, the government argues that the penalty, even if the Supreme Court calls it a “tax,” was imposed for independent regulatory reasons, not to raise money. The government also argues that “gut and replace” is a permissible amendment procedure.

In my investigations, I’ve found—at least thus far—that the answer to the first question is a lot easier than the answer to the second.

As to the first question: It is clear that the financial penalty in Obamacare was adopted primarily to regulate the economy pursuant to the Commerce Power (Commerce Clause + Necessary and Proper Clause). If the penalty were valid as a regulatory measure, it would not be “for raising Revenue,” either under the Constitution’s original meaning or under Supreme Court precedent.

The problem for the government, however, is that in NFIB v. Sebelius the Supreme Court held that the penalty was NOT valid as regulatory measure because it exceeded Congress’s Commerce Power. The penalty’s sole constitutional justification was the revenue it could raise—estimated at $4 billion per year by 2017. (Recent revelations about the number of people who are spurning Obamacare-approved health insurance suggests this number may be far too low.)

In other words, the Obamacare penalty for not buying insurance is valid only as a revenue-raising measure, and the NFIB v. Sebelius decision compels the courts to treat it as such.

The second issue is whether the Senate’s action in gutting the original bill and replacing it with something else constituted an “Amendment.” If it was not, then Obamacare’s levies really arose in the Senate, and are unconstitutional.

This is a much harder question to answer. It requires first addressing a number of others:

*    What was the understanding of those who ratified the Constitution as to the scope of an amendment?

*    If the ratifiers’ understanding on this subject is not clearly ascertainable, then what was the original public meaning of the term “Amendment?” Answering this question requires going beyond the public discussion during the ratification debates and into sources such as 18th century dictionaries and treatises, and the records of contemporaneous legislatures—specifically of the British Parliament, the American colonial assemblies, and the legislatures of the newly independent states.

Previous treatments of these “originalist” questions in law journal articles are distinctly mediocre. This is a common problem because, as I have pointed out elsewhere, most legal scholars are ill-equipped for historical work or too agenda-driven to accomplish it reliably.

Anyway, the questions continue:

*    If the scope of “Amendment” requires a subject-matter connection to the original bill, then how much connection is necessary? The original H.R. 3590 was not about health care or health insurance at all. Does that mean that the Senate changes exceeded the scope of “Amendment?”

*    But the original H.R. 3590 was connected to revenue! It would have amended the Internal Revenue Code to create a tax credit. Is this sufficient?

*    If not, consider that the original H.R. 3590 not only helped a popular group (armed services homebuyers), but it also “paid for” their benefit by sticking it to an unpopular group (larger corporations). Specifically, the measure “accelerated” estimated corporate income taxes. Instead of larger corporations having to pay 100.25% of their taxes in advance, the original H.R. 3590 would have required them to pay 100.75% in advance. Of course, the corporations would have gotten their excess back eventually. But, as everyone in government knows, estimated tax “acceleration” is really a forced loan that makes cash flow to the government faster so as to create bookkeeping entries that cover other shortfalls. It is a financial stunt to enable politicians to effectively increase taxes by giving the government earlier use of citizens’ money, while enabling those politicians to claim they really didn’t raise taxes. So if this part of H.R. 3590 raised money, is this a sufficient connection with the Obamacare taxes to render Obamacare a mere “Amendment?”

I don’t know. But the investigation continues. Stay tuned.

A New Triumph for the Right to Keep and Bear Arms (and for II’s Dave Kopel)

February 14, 2014 by Rob Natelson · Comments Off
Filed under: All Postings 
Rob at James Madison's home in Virginia

Rob at James Madison's home in Virginia

A federal court of appeals has just vindicated the Second Amendment right to keep and bear arms in a big way. And II’s own Dave Kopel was largely responsible.

California denied citizens the right to carry firearms outside their homes, unless they obtained a concealed weapons permit. But to get such a permit, citizens had to demonstrate “good cause”—and fear for one’s personal safety was not sufficient to show “good cause.” The effect of the statute was to allow the local sheriff to deny the right to bear arms to all but a favored few.

On February 13, the U.S. Court of Appeals for the Ninth Circuit (the largest of the nation’s federal court of appeals districts) issued Peruta v. County of San Diego. It held that the California statute violated the Second Amendment. In doing so, the court cited one of Dave Kopel’s articles. But that citation went nowhere near showing the extent of his influence.

To clarify the historical understanding of the term “bear arms,” the Court spent much of its opinion citing and discussing obscure 19th century cases and commentaries on the right to keep and bear arms. It was Dave Kopel who first re-introduced these materials to public notice.

In 1998, Dave wrote an article called The Second Amendment in the Nineteenth Century, 1998 B.Y.U. L. Rev 1359. This was a massive compendium of cases, commentaries, and other materials. (By “massive,” I mean 188 pages, roughly three times the size of the typical law journal article.)

This article placed into the legal databases for the first time the full story of how the public viewed the Second Amendment during the century after the Constitution was ratified. By collecting and publishing this material, Dave made the collection readily accessible to later commentators, who built on his work. He also thereby made this material available to the courts.

The Court of Appeals cited Dave’s article in Peruta, but didn’t fully explain how that contribution made possible much of the later work that the court also cited. Pioneers don’t always get the credit they deserve.

This incident is only the latest example of how II, although a Colorado think tank, also advances freedom nationally and internationally.

Rob’s Harvard Article on “Recess Appointments” Is Published—and Goes to the Supreme Court

February 8, 2014 by Rob Natelson · Comments Off
Filed under: All Postings, The Founding, supreme court 

2013-0822 RGN

Last May, I reported that litigation over President Obama’s “recess appointments” was going to the Supreme Court. In fact, oral argument was held a few weeks ago.

The Harvard Journal of Law and Public Policy has just published my article on the original meaning of the Recess Appointments Clause. It reports that the Constitution uses the term “the Recess” to refer only to formal breaks between sessions of the Senate, not to informal intra-session breaks. It also reports that a vacancy “happens” only when it is created during the Recess. It is not sufficient for the vacancy to be created when the Senate is in session and then continue into the recess.

These conclusions are based on detailed, impartial, study of Founding-Era legislative and other governmental practice—apparently the first article on this topic to report the results of such a study.

This article was cited to the Supreme Court both in the Independence Institute’s amicus brief on the case, and by at least one of the parties. You can find it here.

Struggling With Nullification

February 3, 2014 by Rob Natelson · Comments Off
Filed under: All Postings, ObamaCare, The Founding, supreme court 
Rob at James Madison's home in Virginia

Rob at James Madison's home in Virginia

Does a state have the right to nullify federal statutes the state considers unconstitutional? This depends largely on how you define “nullification.” It also depends on what you mean by “right” and what kind of document you understand the Constitution to be. In other words, it depends on your premises.

Unfortunately, people often discuss—and debate, and attack each other over—the merits or demerits of nullification without making their premises clear. The result is much quarreling among people who are fundamentally on the same side.

Historically, “nullification” was defined quite narrowly. It referred to a formal ordinance of a state legislature or state convention that declared a federal law void within the boundaries of the state. The state might or might not make the ordinance conditional, and it might or might not impose criminal or civil penalties on persons attempting to enforce the federal enactment. We can refer to this as the narrow, or historical, definition of nullification. It is traditionally credited to the Kentucky Resolutions of 1798, drafted by Thomas Jefferson.

Today the term often is used in a much broader sense by advocates, by opponents, and often by the press.  So used, it refers as well to other mechanisms a state may deploy to assert its prerogatives against federal overreaching—that is, to other methods of what James Madison called “interposition.” The Tenth Amendment Center often uses “nullification” in this broad way.

Thus, “interposition” (by Madison’s definition) or “nullification” (by a broad definition) can refer to state actions such as:

*    State legislative and executive expressions of opinion against a federal measure;

*    State lobbying pressure to get the measure changed or repealed;

*    State-sponsored lawsuits against federal actions deemed unconstitutional;

*    Political coordination among states to promote change or repeal;

*    Refusal of states to accept federal grants-in-aid attached to obnoxious conditions;

*    Refusal of states to allow their officials to cooperate in the execution of federal programs;

*    Refusal of states to render a particular activity that is a federal crime illegal under state law as well (e.g., the use of marijuana in Colorado and Washington); and

*    The state application and convention process of Article V.

Constitutional wonks will recall that Madison anticipated most of these in Federalist No. 46, and included the others in later writings.

All of the interposition methods listed above are perfectly legal and constitutional. For example, there is certainly no requirement that a state duplicate federal crimes in its own statute books, and the Supreme Court has said repeatedly (and held expressly in the NFIB v. Sebelius, the Obamacare case) that the federal government may not “commandeer” state officials in service of federal policy.

Clearly, calling these modes of interposition “nullification” does not render them unconstitutional or wrong.

On the other hand, there are methods of interposition that the Constitution does not authorize. In other words, they are extra-constitutional. Nevertheless, the Founders believed that natural law reserves them to the people in some circumstances.

The most dramatic illustration of an extra-constitutional remedy reserved by natural law is the right of armed revolution, which Madison also discussed in Federalist No. 46. He later stressed that the people should resort to extra-constitutional methods only when the constitutional compact has been irretrievably broken.

Both historically and today, the most serious nullification disputes center on whether states enjoy the constitutional prerogative of adopting formal nullification ordinances. In other words: Does a state have the constitutional power to void what it perceives to be an unconstitutional federal law?

Let’s try to isolate some of the issues:

First: It is clear that in the extreme conditions justifying revolution, resistance need not be conducted solely by private individuals or groups. States may participate officially, as the colonies/states did during the years 1775-83. This is the scenario Madison presented in Federalist No. 46. Obviously, in these circumstances a state may declare federal law void within its boundaries. But this power flows from natural law, not from the Constitution (which in revolutionary circumstances, you recall, would have been irretrievably broken).

Second: What of our current situation—that is,when  there is no revolution, the union continues, federal laws are still widely obeyed, and the Constitution is still largely in operation? In those circumstances, may a state declare void a judicially-sustained federal law that the state deems unconstitutional? The answer to this question turns largely on your conclusion as to the fundamental nature of the Constitution.

Third: What is that fundamental nature?

The Constitution has been characterized as:

*    A compact (i.e., contract) to which only the states are parties, by which the states granted power to federal officials. This is the pure interstate compact theory, expressed in Jefferson’s 1798 Kentucky Resolutions.

*    A “compound” compact, created by the people but to which the states are parties. This was apparently Madison’s post-ratification view (see, for example, the equivocal wording about the nature of the Constitution in his Notes on Nullification), and may have underlain his 1798 Virginia Resolution.

*    A popular grant: that is, a grant of power from the people—mostly to federal legislators and officials, but in some cases to state legislative authorities (as in the Time, Places, and Manner Clause) or to state legislators (as in Article V). This view was expressed by some of the seven state legislatures that formally repudiated the Kentucky and Virginia Resolutions. It also was Chief Justice John Marshall’s conclusion in the famous case of McCulloch v. Maryland (1819).

You can make the best case for narrow-definition nullification as a constitutional prerogative if you adopt the first of the three alternatives. The basic idea is that if other states have broken the compact by letting their agent (the federal government) run amok, then aggrieved states (compacting parties) have the right to protect themselves.

On the other hand, if you adopt the popular grant theory it is much more difficult to justify nullification. This is because the people, not the states, are the parties. By this analysis, the states may, as agents of the people, protest, sue, and protect their own governmental operations, but they may not void federal actions unilaterally, except by their legislators using their delegated power to amend under Article V.

And if you subscribe to Madison’s mixed theory, then, as Madison pointed out in 1830 and again in 1834, there also are conceptual problems with considering nullification as a constitutional right rather than just a natural law remedy.

Fourth: So, again, we must ask, “Which of the three theories of the Constitution is correct?”—state compact, compound compact, or popular grant?

The answer to this question depends on the dominant understanding of (or meaning to) the people who ratified the Constitution between 1787 and 1790.

The answer does not depend on what Thomas Jefferson or James Madison wrote in the Resolutions of 1798, or on what other states proclaimed when they rejected those Resolutions. Even more clearly, the answer does not depend on what Chief Justice Marshall concluded in 1819, or what Madison, John C. Calhoun, or anyone else said in the 1830s.

Rather, determining the fundamental nature of the Constitution requires reconstructing the sense of the document to those who ratified it.

Anyone who has made an honest study of the ratification has to offer conclusions on this particular subject with humility. The ratification record can be confusing and the prevailing meaning at the time can be hard to reconstruct. For example, it is not sufficient to note that the Founders referred to the Constitution as a “compact.” This is because they used that word to refer both to governments established by states (confederations) and to governments established among the people alone.

Nor is it sufficient, as do some writers popular among constitutionalists, to focus only the ratification debates within selected states. You have to view the wider picture. Similarly, it is insufficient to rely merely on a few key Founders, such as Madison, Hamilton, or Jefferson. There were 1648 ratifying delegates—not just two or three—and many had important things to say. So did the orators, newspaper writers, and pamphleteers who influenced them. Jefferson was a great man, but his opinions on the meaning of the Constitution have little value, since as our ambassador to France, he did not participate in the framing or ratification.

Nor can you rely only on the express language of the ratification debate. You have to get into the heads of the ratifiers by reading what they read, and understanding their jurisprudence and their customs.

This is not the place to get into the details (this posting is already too compendious). Suffice to say that long study of the ratification record convinced me that most of the ratifiers probably thought of the Constitution as a grant from the American people rather than as a compact among states, pure or compound (as I once thought). I set forth several of my reasons in The Original Constitution: What It Actually Said and Meant.

At this point, I’ll explain just one reason. (But for for another see here.) It has to do with how 18th century English speakers drafted and read legal documents.

The Constitution famously begins with the phrase “We the People.” States are not mentioned. Now, the script and the placement of that phrase was no accident. It followed the custom by which legal documents granting power listed the grantor first. Thus, in royal charters granting rights and privileges to citizens, the king—that is, the grantor—always appeared first in large and ornate script. (A wholly typical example is the royal charter of Dartmouth College.) Although the Articles of Confederation had given that placement to the states, the Constitution afforded it to the people alone.

How do we know the delegates to the ratifying conventions caught the implications of this? Because some of them said so. For example, William Findley, an Anti-Federalist spokesman at the Pennsylvania ratifying convention, observed:

“In the Preamble, it is said, ‘We the People,” and not ‘We the States,’ which therefore is a compact between individuals entering into society, and not between separate states enjoying independent power and delegating a portion of that power for their common benefit.”

And Findley’s leading adversary at the convention, James Wilson, agreed with him on this point.

Anti-Federalists not only understood, they objected vehemently. Patrick Henry, chief Anti-Federalist at the Virginia ratifying convention, demanded to know:  “Who authorized [the Framers]to speak the language of, We, the people, instead of, We, the states?”

As events turned out, the delegates elected to represent the people of Pennsylvania and Virginia decided to accept that language. The Virginia delegates even recited in their ratification instrument that “the powers granted under the Constitution [are] derived from the People of the United States.” The delegates in every other state also accepted the “We the People” formulation. Incidentally, among the delegates most responsible for Henry’s defeat on his home ground were two young men named James Madison and John Marshall.

Finally: Once the pure state compact theory falls, it is very hard to justify nullification (narrowly defined) as a constitutional remedy. It remains instead a remedy reserved by natural law for when the Constitution has wholly failed—in other words, in situations justifying revolution.

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