This column also appears at CNSNews.
The Constitution enumerates the powers of the federal government. But has anyone listed the exclusive powers of states—the realm the federal government may not invade without violating the Constitution?
When discussing state authority, the Founders usually pointed out only that the federal government’s powers were, as Madison said, “few and defined,” and that the states and people retained everything else. But that presents a problem for modern readers, who often aren’t familiar with 18th century language. For example, if a reader doesn’t know that the word “commerce” in 18th century constitutional discourse usually was defined as “mercantile trade and certain closely related activities,” he might think it means “business” as in the phrase “Chamber of Commerce.” The modern reader might therefore conclude that the Constitution’s Commerce Clause grants to Congress general authority to regulate business.
Fortunately, during the ratification debates some advocates of the Constitution did clarify the document by listing for the public certain designated activities that would remain outside the federal sphere. One reason the Constitution was ratified was that the general public relied on these representations.
In 2003, I collected many of them in an article entitled The Enumerated Powers of States.
As is typical in academia, few law journals were interested in publishing an article that explained the original meaning of the Constitution and how it limited federal authority. Nevertheless, the Nevada Law Journal, then a relatively new publication, did agree to publish it. This proved to be a very good move for the Nevada Law Journal: In the ensuing years, The Enumerated Powers of States has become one of my most cited scholarly articles.
The Enumerated Powers of States listed area after area that the Constitution’s advocates represented as outside of federal control:
* training the militia and appointing its officers;
* control over local government;
* regulating real estate;
* regulating personal property outside of commerce;
* the law of family and domestic affairs;
* most criminal law;
* civil justice between citizens of the same state;
* social services;
* agriculture; and
* control of most business enterprises.
Since 2003, I have found several sources confirming this list. One example is a enumeration that appeared in the Pennsylvania Gazette on Dec. 26, 1787, which is reprinted in Volume 2 of the Documentary History of the Ratification of the Constitution at p.650.
The very recent publication of the Maryland volumes in the Documentary History has turned up other examples. Thus, a 1787 article by a writer using the name “Aratus” represented that only state courts would adjudicate “Cases of property and right within the state, and between citizens thereof, and criminal cases, wherein the United States are not concerned.” (Vol. 11, p. 41). Another author—”Uncus”—wrote a few days later as follows:
“Congress will have no direction of religion or the clergy,—with the universities, academies, schools, or any part of education. They will have no direction with the state judicial courts, or assemblies—with their pleadings, or manner of proceeding. Beyond the ten miles square [ie., Washington, D.C.], few are the civil officers which they can appoint.” (Vol. 11, p.66.)
One of the two new Maryland volumes contains a draft speech by Charles Carroll of Carrollton to be delivered in 1788. Although the speech was not delivered, it is evidence of the educated understanding of the time—especially because Carroll had served as a delegate to the Constitutional Convention, and therefore helped write the document. The Carroll speech specifically affirmed that wills and property conveyances were within the jurisdiction only of state courts, not federal courts (vol. 12, p. 844).
The new Maryland volumes also reproduce another undelivered speech. This one may have had public impact, because it was published well before all the states had ratified. Although it was anonymous, it was almost certainly the finished version of Carroll’s address.
This speech emphasized that Congress would be powerless to regulate inheritances, alter the laws of wills, or establish a national church. (Vol. 12, p. 881). It went on to say that each state will have exclusive control over
“the whole regulations of property, the regulations of the penal law, the promotion of useful arts [i.e., technology], the internal government of its own people.”
Today, of course, the federal government has intruded into almost all the areas that the Founders represented as outside its sphere. In other words, the modern federal government is a creature very different from the one ordained by the Constitution that “We The People” ratified.
Two bills introduced in the U.S. House of Representatives show that whatever they may say on the campaign trail, many Republicans in Congress don’t have much more respect for federalism, states’ rights, or local control than Democrats do.
These two bills also demonstrate, if further demonstration be needed, that Congress has broken almost all constitutional restraint, and that a convention of states is the only real hope left, short of massive civil disobedience, of repairing the situation.
The first bill is H.R. 36, which passed the House on May 13 with nearly unanimous GOP support. It would outlaw most abortions of fetuses more than five weeks old.
I’m pro-life, so I think curtailing abortion would be a good thing. But the Constitution specifically limits Congress to certain enumerated powers, and regulating abortion is not one of them. H.R. 36 offers no clue as to what its constitutional basis is supposed to be. It’s basically a criminal law of the kind the Constitution clearly leaves to the exclusive jurisdiction of the states.
When I worked for pro-life groups, one of our key arguments was that the Supreme Court’s abortion decision in Roe v. Wade violated the Constitution because it improperly federalized an issue that is constitutionally a state responsibility. Even many pro-choice Americans agree with that principle.
But the unprincipled GOP House majority just threw that argument into the trash bin. Republican members of Congress can no longer credibly use it.
The other bill is H.R. 2300, a massive (242 page) measure to re-jigger the health care system yet again. Although the bill has some good parts (e.g., repealing Obamacare), it also imposes mandates on state courts considering health care claims.
The Constitution grants no power to Congress to impose rules on state courts about how they resolve health care cases, other than the power to enforce the 14th amendment rule that those courts respect due process and equal protection of the law. In fact, during the debates over whether to ratify the Constitution, the document’s proponents sold it to the public in part by affirming that subjects such as tort law, most criminal law, civil justice among citizens of the same state, and health care all would remain immune from congressional meddling.
Yet H.R. 2300 would empower unelected bureaucrats in the Department of Health and Human Services to override state law in an area the Constitution clearly reserves to the states. H.R. 2300 recites no constitutional basis for this provision.
Widespread support for H.R. 36 and H.R. 2300 from House Republicans—generally elected on promises to respect our system of federalism—provides yet more evidence that Congress will never cure Congress. It’s up to the states, acting through the amendment process of Article V, to do the job.
Filed under: All Postings, Article V, The Founding, supreme court
More evidence has turned up that the late Chief Justice Warren Burger was defending his Court’s decision in Roe v. Wade when he wrote three letters opposing the Article V convention process.
Burger’s letters frequently are cited as authority by opponents of a “convention of states.” However, in an earlier posting I noted that the letters show little knowledge of the subject, and that Burger apparently had never heard an Article V case or published anything on the topic. I explained that the likely source of Berger’s views was his friend William Swindler, a liberal law professor who passionately attacked the convention process because he feared the states might use it to propose one or more conservative amendments.
It now it turns out that Burger had further reason to oppose a convention of states. In 1973, he was one of seven justices who signed onto Roe v Wade, which legalized abortion-on-demand nationwide and upended long-standing laws in all 50 states.
There was widespread public outrage against the decision. Even many pro-choice citizens believed that abortion should be a state rather than a federal issue, and legal scholars (including many who agreed with the result) decried the reasoning of the case as sloppy. As a result, people began to cast around for a remedy.
Many fixed on the constitutional amendment process as such a remedy. Both the 11th and 14th amendments had been passed wholly or partly to reverse overreaching Supreme Court decisions, and in 1971, it had happened again, with the 26th amendment’s reversal of the Court’s confused decision in Oregon v. Mitchell (1970).
Not surprisingly, therefore, in 1974 the Indiana legislature passed an Article V application for a convention to propose an amendment to overrule Roe. Missouri joined the following year, and Louisiana in 1976. The campaign picked up steam, and by the time Burger wrote the first of his three letters, 19 of the necessary 34 states had adopted applications to overrule Roe in various ways. So you can understand why the Chief Justice was nervous.
But here’s the ultimate irony: During the 1990s, the leadership of a few deeply conservative groups launched a campaign to rescind all Article V applications. They exhorted their grassroots members to lobby state legislatures, and in some cases they did win rescission.
You have to wonder, though: Did the leadership of those groups ever tell their members that by campaigning to rescind applications, they were campaigning to preserve Roe v. Wade? Or that they were thereby destroying any real hope of Roe being overturned?
What would their members have said if they’d known?
The Harvard Journal of Law and Public Policy has now published my article on the Origination Clause. That’s the article documenting the research that found—contrary to all expectations—that the taxes in Obamacare were validly adopted.
But it also found that the regulations and appropriations in Obamacare were invalidly adopted.
You can find the article itself here.
This article originally appeared at the American Thinker.
One of the constitutional disputes triggered by the Affordable Care Act, Obamacare, is whether by substituting new material for the original House-passed bill (H.R. 3590), the Senate exceeded its constitutional power to amend the original measure. This, in turn, has provoked a debate over whether the Founders considered complete substitutes to be valid amendments.
A recently-republished piece of evidence suggests that they did.
The Constitution’s Origination Clause requires that “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.” Because the final version of Obamacare imposed a variety of taxes, it unquestionably was a “Bill for raising Revenue.”
Obamacare’s taxes, appropriations, and health-care regulations did not exist in the House-passed version of H.R. 3590. That incarnation of the bill was only a few pages long and was limited to making minor adjustments to the Internal Revenue Code irrelevant to health care. Under the guise of amendment, the Senate gutted the original language and substituted over 2000 pages of Obamacare.
Some writers argue that complete substitutions were not considered valid amendments during the Founding Era, while others contend that they were. Last year, I undertook a wide-ranging investigation into the subject that will be published within the next few weeks by the Harvard Journal of Law and Public Policy. The article is summarized at length here.
I found that complete substitutions may have been unknown in the British Parliament, one source of the Constitution’s House-origination rule. I also found, however, that they were occasionally used in several states between Independence and the time the Constitution was ratified, and that they were considered valid amendments in those states.
This year, the Wisconsin Historical Society issued two new volumes of the magisterial Documentary History of the Ratification of the Constitution. Those volumes cover the debate over the Constitution waged in Maryland from 1787 through the end of 1788.
The first of the volumes reprints a pamphlet written in favor of the Constitution by “Aristides,” the pen name of jurist Alexander Contee Hanson. Hanson was a respected figure in Maryland, and his pamphlet was read widely both in that state and in Virginia. At one point he addressed the question of whether the Constitutional Convention exceeded its authority on the (substantially false) assumption that the delegates’ commissions had been limited to proposing amendments to the Articles of Confederation. Hanson argued that proposing a substitute was a recognized form of “amendment:”
Amendment, in parliamentary language, means either addition, or diminution, or striking out the whole, and substituting something in its room.
Hanson’s assertion is particularly relevant to the Constitution’s original meaning because his own state legislature is not among those offering contemporaneous evidence of complete substitutions. Hanson was reflecting, in other words, an understanding that extended beyond his own state’s boundaries.
Unfortunately for advocates of Obamacare, the validity of complete substitutions as “Amendments” does not resolve the issue of constitutionality. During the Founding Era, even complete substitutes had to be connected to the subject matter of the original bill—or, in modern language, “germane” to the original. Otherwise, they were new bills, not valid amendments.
For reasons documented in my article, H.R. 3590 as passed by the House qualified constitutionally as a “bill for raising Revenue” (even though it was revenue-neutral) because it amended the tax code. Under Founding-Era rules all the Senate’s revenue changes were germane to the original, and therefore valid. However, the Senate-added appropriations and regulations were not germane to the subject of revenue. By including them, the Senate exceeded its authority to amend a “bill for raising Revenue. This means that by the Founders understanding of the Origination Clause, those additions were unconstitutional and void.
This article originally appeared at CNS News.
When two of the largest corporations in the world—Walmart and Apple Computer—pressured Indiana and Arkansas politicians not to adopt laws protecting religious freedom, did you hear any howls against “corporate lobbying” or “corporate money” or corporate meddling in politics?
Chances are you didn’t. Because Walmart and Apple were intervening on the “progressive” side of the dispute.
In more ways than that, the recent controversy over bills in Indiana and Arkansas to protect religious freedom has been a veritable case book illustration of political hypocrisy.
The Indiana and Arkansas measures provide that (1) if a generally-applicable law substantially burdens a person’s religious practice, then (2) that law cannot be applied to the person unless (3) it is necessary to serve a compelling government interest. The measures protect individuals and both incorporated and unincorporated associations.
Now, ask yourself: Who invented these rules? The answer: Progressives did!
The malleable phrase “compelling government interest” and close counterparts were created by the Supreme Court in the in the mid-20th century, when that Court was firmly controlled by left-of-center justices. Those terms were applied by the Court all through that period. Similarly, throughout that period the Supreme Court consistently acknowledged that incorporated and unincorporated associations were entitled to First Amendment rights.
The specific formula embodied in the Arkansas and Indiana laws was invented by “progressive” justices in cases such as Sherbert v. Verner (1963). In fact, the Court’s opinion in Sherbert was written by liberal icon William Brennan.
By 1990, however, the Supreme Court had moved more to the center. That year, it issued Employment Division v. Smith, which concluded that the Sherbert v. Verner test was impractical for most purposes. The majority opinion was written by Justice Scalia. The Court’s three most liberal justices dissented.
“Progressives” were outraged at the Smith decision. They demanded a return to their own formulation. In response the federal government adopted the Religious Freedom Restoration Act (RFRA) by large bipartisan majorities, and the measure was signed by President Clinton. RFRA reinstated the Sherbert v. Verner test for all government actions substantially burdening religious practice. RFRA purported to govern state and local measures as well as federal acts.
When the Supreme Court correctly ruled that Congress could not constitutionally dictate the RFRA standard to state and local governments, state legislatures began to adopt their own RFRAs. In keeping with the Supreme Court’s position that corporations and other associations could assert First Amendment rights, some of those laws protected associations as well as individuals. The Indiana and Arkansas bills are fairly typical of the genre.
In sum, these laws essentially reinstate the progressives’ own rules. Why would they gripe about that?
The answer is that they invented those rules to protect their own constituencies, and they don’t want those rules to protect anyone else. Not believing in the rule of law, they willingly manipulate the rules to benefit those they favor and to hurt those they don’t.
In the mid-20th century cases upholding corporate assertions of First Amendment rights, the plaintiffs were predominantly liberal entities, such as the NAACP and the New York Times. Today, however, the plaintiffs are often conservative entities.
The same hypocrisy applies to the rules protecting religious belief specifically. “Progressives” were outraged at the Smith holding because the losing plaintiff was an adherent of a Native American religion fired for using an illegal narcotic as part of a religious ceremony. If the plaintiff had been a conservative Christian defending his right to abstain from what he believed were sinful practices, perhaps “progressives” would have applauded the result.
Also, “progressives” favor anyone who wants to distribute wealth from those who earned it to those who did not. They loved Sherbert v. Verner and similar cases because the plaintiffs in those cases were demanding government benefits—specifically unemployment insurance. But today’s plaintiffs are not seeking favors for anyone, but only personal freedom. That’s anathema to “progressives.”
The religious freedom controversy thus illustrates the workings of constituency politics. More chillingly, however, it demonstrates how many members of our society hold only contempt for freedom and for the rule of law.
Are you a journalist or other citizen who needs a quick overview of the Constitution’s Article V “Convention for Proposing Amendments?” Get our issue paper, “Curing Federal Dysfunction by Constitutional Amendment: A Primer.”
It’s a vital resource for anyone who wants a quick and accurate overview of the process.
It explains what a Convention for Proposing Amendments is—and is not. (It is not, for example, a “constitutional convention.”)
The issue paper also explains why the procedure is in the Constitution, and how it works. And it corrects misconceptions prevailing even among scholars who have not researched the topic themselves.
To know more about socialized medicine—and our future under Obamacare—check out the Department of Veterans’ Affairs health care scandals. The scandals encompass service failure, egregious cost overruns and delays, and basic failures (such as blood test mixups) that would be comical if not so dangerous.
Obviously, the U.S. Government and the American public owe a debt to our military veterans, but socialized medicine is a poor way to discharge it. Vets are entitled to the best we can offer, not to Soviet-style incompetence.
And the underlying situation is probably far worse than the scandals we know about. Among the bad things I became familiar with when working in socialized institutions (in my case, state universities) were the inefficiencies—not exactly corrupt, but stupid and expensive for the taxpayers—that persist year after year without any outsiders taking notice. In private companies, most of those inefficiencies would dissolve before the demands of market competition. In socialized institutions, they go on and on . . . and on.
The idea that the government has to own facilities in order to provide services is a discredited relic of the past. Other government health services—including Medicare and Medicaid—allow patients to visit private facilities and use private physicians. Great Britain began its government health care system with the socialized delivery model, but has largely abandoned it.
Unfortunately, under Obamacare we are likely to see more socialism rather than less. The problems with the government-run “exchanges” represent only the beginning.
Under pressure of the VA scandals, the Obama administration is permitting vets to opt for free market providers, but the question remains, “Why is it necessary for the government to directly own health care facilities at all?
Although the Constitution is not, strictly speaking, a common law document, it was written against the backdrop of common law.
The term “common law” has various meanings, but the meaning I’m using here is the system of case law we inherited from England, including the bodies of jurisprudence known as admiralty and equity.
That system follows certain identifiable principles—governing values. These principles largely disprove the modern legal academic cant that common law is merely a vehicle for public policy, privilege and power.
The traditional understanding of common law was that it was rooted in the customs of the people, and that the task of a judge was to discover the rules applicable to the case before him, and then apply those rules to the circumstances. During the 20th century, however, a new orthodoxy came to reign in legal academia (primarily law schools) to the effect that judges actually make up the rules of common law as they go along. In other words, judges are inevitably mini-legislators who, under cover of applying precedent, often create rules and results to promote their own opinions of the best “public policy.” You may recall that Justice Sotomayor indirectly expressed this view shortly before she was confirmed to the Supreme Court.
This orthodoxy (so-called “legal realism”) is advanced as a sort of self-fulfilling prophesy for those who promote judicial activism—i.e., those who want judges to be maxi-legislators.
A more extreme outgrowth of the 20th century orthodoxy was that common law decisions are arbitrary and that common law rules are so malleable they really don’t amount to true rules at all. The course of the common law was said to be “indeterminate” and based ultimately on mere power. This view proved convenient to Marxists and others who wished to discredit the judicial system.
In 1992, my treatise, Modern Law of Deeds to Real Property was published. The book was written during the year I served as a visiting law professor at the University of Utah.
The publisher was Little, Brown and Co.—then an old-school legal publishing firm that had produced a line of classic treatises extending back to the early 19th century. Joseph Story, the great Supreme Court justice and legal scholar, wrote for Little, Brown.
Anyway, the law of property deeds is mostly common law aided by statutes usually written to supplement (rather than wholly displace) common law. Accordingly, a large portion of Modern Law of Deeds consisted of the distillation of rules and principles from hundreds of cases.
Real property was only one of the common law legal fields I had studied intensively. I had also practiced, taught, and/or researched in the law of remedies, contracts, oil and gas, homeowners associations, torts, trusts, wills, agency, and fiduciary relationships. And I had taught and written in legal history. This is a far greater range of topics (particularly common law topics) than most law professors pursue. Let’s just say I did not spend much time going out for drinks.
Perhaps I could be charged with dillettantism, but for better or worse by the time I wrote my book I had read thousands of case decisions. At some point I became convinced that the modern orthodoxy about the common law was wrong.
I concluded that, as a practical matter, even most modern judges do not invent rules to promote public policies or to satisfy their power lust. The traditional view was the one closest to the truth: In the real world, judges, especially judges on trial courts and intermediate appellate courts, seek justice. They usually “discover” rules by deducing them from custom, practice, precedent, and a limited number of fixed principles. This occurs even in some cases in which they feel compelled to justify the result by reciting public policy.
So I devoted the last chapter of my book—Chapter 19—to explaining those principles.
I wish I could say the chapter was met with vigorous debate. I can’t. As has happened other times during my career, my conclusions were greeted with silence. And although in many other instances, the silence has ended in adoption (with or without attribution), in this instance it did not.
No doubt there were several reasons for this, but I think one was that very soon after my book came out, Little, Brown and Co. sold its legal division to Aspen Publishing. Aspen promptly pulled all the Little, Brown treatises off the market. Shortly after my book appeared it was out of print—among the last of a distinguished line. It paid me virtually no royalties and, what is more important, very few people read it.
But at least I have the copyright, and Chapter 19 of Modern Law of Deeds to Real Property has been buried long enough. This link provides Internet access to that chapter. The language is technical, and most readers will find it tough going. But I still believe it is a more accurate description of the principles of Anglo-American common law than the theories widely propagated in law schools today.
Filed under: All Postings, Article V, The Founding, supreme court
Some conservative groups have become known for uncompromising opposition to the Constitution’s convention method of proposing constitutional amendments.
They may think they are protecting the republic. But it turns out that they are mostly carrying water for the liberal establishment.
New research shows that nearly all the arguments of convention opponents merely repeat disinformation first propagated by the liberal establishment in the mid-20th century. The goal of this disinformation campaign was to disable an important check on federal overreach.
The Founders created the convention method of proposing amendments to enable the people, acting through their state legislatures, to offer corrective changes if the federal government ever became unresponsive, abusive or dysfunctional. When two thirds of the legislatures pass resolutions demanding it, Congress must convene a task force known as a “convention of the states“—or, in the language of the Constitution, a “Convention for proposing Amendments.” If that task force does propose amendments, they become law only if ratified by three fourths of the states.
As the federal government grew larger and more abusive during the 20th century, conservatives and moderates repeatedly suggested constitutional amendments as a partial cure. They included proposals to reverse certain Supreme Court decisions, such as Roe v. Wade; to otherwise restrict judicial activism; and to impose term limits and require a balanced federal budget.
To blunt the these amendment drives, leading figures in the liberal establishment organized a disinformation campaign against the convention process. Participants in the campaign included liberal Senators such as Joseph Tydings (D.-Md.) and Robert F. Kennedy (D.-NY); several sitting and former Supreme Court justices; members of the Kennedy circle, such as Theodore Sorensen and Arthur Goldberg; and liberal academics perched at prestigious universities, such as a Harvard and Yale.
The apparent goal was to disable the convention process as a constitutional check on the power of the federal government.
In speeches and articles, the participants promoted several key talking points. Most of these talking points were contradicted by law or historical precedent. Some of them even contradicted each other.
But truth was not the goal. The goal was political. The principal talking points were:
• Little is known about how the process is supposed to operate;
• A convention for proposing amendments would be an uncontrollable “constitutional convention;”
• A convention for proposing amendments could be controlled or manipulated by Congress under the Constitution’s Necessary and Proper Clause; and
• A convention for proposing amendments could unilaterally impose radical constitutional changes on America.
If these claims sound familiar— well, they are. Some conservative organizations swallowed them, hook, line, and sinker and continue to tout them today, apparently unaware of how they were fabricated and why.
The 20th century liberal disinformation campaign was strikingly successful. It derailed all drives to curb the Supreme Court’s liberal activism. It blocked efforts to control federal debt or restrain federal spending. It left an increasingly dysfunctional Congress with an absolute monopoly of the amendment process. And it pitted—and continues to pit—conservatives against conservatives.