Filed under: All Postings, Article V, The Founding, supreme court
This article first appeared in the American Thinker.
Term limits are among the reforms being proposed by advocates of curbing federal government abuses through the Constitution’s Article V amendment process.
The idea of congressional term limits has been around for some time. But more recent discussion centers on term limits for the judiciary, especially for the Supreme Court.
In fact, one application for an amendments convention now making the rounds—the Convention of States Application sponsored by Citizens for Self-Governance—is broad enough to include judicial term limits. Although a fairly new offering, it already has been approved by the legislatures of four of the necessary 34 states.
Part of what is driving the talk of judicial term limits is the Supreme Court’s continued failure to honor important parts of the U.S. Constitution. Admittedly, the Court does a pretty good job interpreting some parts of the document. The Intellectual Property Clause is one example. Moreover, the current Court is certainly more conscientious in constitutional cases than the rogue justices who dominated the bench throughout much of the 20th century, and who re-wrote critical portions of the Constitution to suit themselves.
Nevertheless, the present justices are to blame for failing to correct the constitutional fictions of their 20th century predecessors—and for sometimes writing fiction of their own.
Another factor justifying term limits has little to do with specific case outcomes. This is the enormous increase in life expectancy since the Constitution was written. Extended life expectancy is generally a good thing. But when it is coupled with lifetime appointments, the effect is to skew the balance of powers the Founders created.
When the Constitution was ratified, a newly-appointed justice might expect to serve less than 12 years. In fact, the average tenure of the first ten justices was about 8-1/2 years. By contrast, the average tenure of the latest ten to retire was 21-1/2 years. An article by Adrienne LaFrance provides additional statistics.
The Constitution’s checks and balances were crafted with 18th century life expectancies in mind. Although the Founders understood that the Supreme Court would void laws it found unconstitutional, the Founders also expected much more turnover than we now have. When judicial tenure is shorter, the President can nominate, and Senate can approve, more replacements. During the Founding Era, if the Court issued an irresponsible or clearly wrong opinion, citizens could take comfort from the fact that a majority of the Court would be replaced in a few years. That is no longer the case.
The strongest argument in favor of lifetime appointment is that it protects judicial independence. Proposals for short terms with possibilities for reappointment or retention, such as that advanced recently by Sen. Ted Cruz (R.-Tex.) are defective because they do not protect judicial independence.
But we can increase turnover and preserve independence through a constitutional amendment instituting a single long term (e.g., 12 to 20 years) without possibility of reappointment. Such an amendment would have other advantages, too:
First, it would end the presidential game of appointing young and relatively inexperienced justices in the hope that they will continue to influence the Court decades after the appointing President is gone. Of course, in the real world, younger justices often do not have an adequate track record, and may be more readily corrupted by influences in the nation’s capital. If a nominee could serve only, say, 12 years, a President might feel freer to nominate a person in his 60s rather than one in his 40s or early 50s.
Additionally, a younger nominee would have to consider a future career as a private citizen, living under the decisions he made as a justice.
Finally, more rotation on the Court would re-boot the system toward the balance set by the Founders, rendering mistaken decisions more amenable to ultimate correction by the people themselves, acting through the political process.
Are those signs that say “no shirts/no service” now illegal?
Your August 14 editorial endorses a court ruling forcing a baker—at the cost of his livelihood!—to assist conduct his religious faith says is immoral.
“Commercial establishments can’t pick and choose among their customers,” the Post opines. “If you sell wedding cakes to one group of people, you’ve got to sell to all.”
Actually, that has never been the prevailing rule in our legal system. The prevailing rule always has been choice: People may serve, or not serve, whomever they choose.
There are two limited exceptions. First, a duty to serve (almost) everyone applies to monopolies, notably common carriers and utilities. But for enterprises in competition, such as bakeries, the rule has been freedom to choose one’s customers.
The other exception is the civil rights statutes. They originally targeted discrimination against very few groups, primarily ethnic minorities. Over time, civil rights laws have been expanded to include more groups—especially those with effective lobbyists. But the general rule has still been freedom of choice.
Freedom to choose your customers is vital. This is because—
* It protects other liberties, such as freedom of association and (as in the bakery case) freedom of religion.
* Focusing on particular customers helps improve services. In fact, in the real world, businesses limit the scope of their clientele all the time. A rule restricting this right makes it harder to meet individual needs. That hurts everyone. If you doubt this, compare the level of “progress” made by common carriers (such as buses) with progress in competitive enterprise (such as computers).
* Freedom of choice checks government power. The court’s holding that “you must serve whomever the state tells you” is symptomatic of America’s current mutation into an unhappy land where coercion is the norm.
The court’s decision should frighten you—even if you don’t care about cakes or bakers. A government that can tell a baker what kind of cake to prepare is a government that can completely run your life. And soon will.
If 34 state legislatures forced Congress to call a convention for proposing amendments, what would the rules look like?
The Convention of States movement (CoS) wanted an answer to this question. So its president asked me to take the lead in drafting sample rules. Then CoS would present them to state legislators for comment. This process might also provide the convention itself with a starting-point for preparing its own rules.
We presented the results at a conference last month in San Diego, California. The conference was sponsored by the American Legislative Exchange Council, one of the nation’s largest associations of state lawmakers.
The sample rules are available here. BEFORE READING THEM, PLEASE OBSERVE THE FOLLOWING:
* Important explanations appear in the footnotes.
* The final decision on convention rules is up to the convention itself. However, state legislators can recommend particular rules or instruct their commissioners (delegates) to vote only for particular rules. In calling the convention, Congress may recommend rules but may not prescribe them.
* These proposals were not invented out of thin air by me or by anyone else. For the most part, they are similar to rules actually adopted by previous conventions of states—notably the 1861 Washington Conference Convention, but also the 1787 Constitutional Convention and others.
* There have been updates to take into account modern conditions. Those updates are explained in the footnotes.
* Most of these rules can be adapted to any amendments convention, but the last two are designed especially for a convention called under the three-part application sponsored by the Convention of States movement. The three parts are (1) fiscal restraints on the federal government, (2) limits on the power and jurisdiction of the federal government, and (3) federal term limits. Those would be only subjects allowed, and the rules provide that other subjects are out of order. (Claims that the convention could consider other subjects are misinformed.)
CoS soon will offer a website that will allow public comment.
Seldom has a claim so weak been so often advanced than the claim that a convention for proposing amendments would be a “constitutional convention” that could “run away”—that is, disregard its limits and propose amendments outside its sphere of authority.
I have little patience with this sort of alarmism, partly because it is so patently based on ignorance of history and constitutional law and partly because it first widely publicized as part of a deliberate disinformation campaign to disable one of our Constitution’s key checks and balances.
Nevertheless, early in 2013 I took the time to pen a lengthy rebuttal to the runaway scenario, examining the question from almost every possible angle. I did, however, leave one thing out: Modern communications technology makes a “runaway” essentially impossible.
I have, therefore, added the following to my 2013 essay:
There is another aspect of this the “runaway” theorists overlook: modern communications. Even if the 1787 convention had run away, modern communications render the analogy an ill-fitting one. As Walter Phelps Hall and Robert Greenhalgh Albion pointed out in their History of England over 60 years ago, before modern communications diplomats were unable to consult home authorities quickly and sometimes had to make decisions that presented those authorities with a fait accompli. But today’s communications enable the authorities to control their diplomats to the point that the latter can be turned into “nothing but damned errand boys at the end of a wire.” At any convention for proposing amendments, the state commissioning authorities will be in constant contact with their commissioners.
Margaret Mitchell, the author of the hugely popular novel Gone With the Wind, was a newspaper reporter and the child of a family steeped in history. Her father, a prominent Georgia attorney, was one of the leading lights in the state historical society.
That her book has a plethora of references to historical events occurring during the 1860s is therefore not surprising.
In early 1861, after some of the Southern states had seceded, Virginia sought to head off further secession and civil war by calling a general (national) convention of the states. The goal was to propose a constitutional amendment that both sides would find acceptable.
All but a few states sent commissioners to the Convention, which met from February 4 through February 27. More information about the convention appears here.
On page five of Gone With the Wind, Scarlett O’Hara refers to it:
“You know there isn’t going to be any war,” said Scarlett, bored. “It’s all just talk. Why, Ashley Wilkes and his father told Pa just last week that our commissioners in Washington would come to—to—an—amicable agreement with Mr. Lincoln about the Confederacy.”
Scarlett was intelligent, but she was a spoiled young girl who had avoided studying her history or her Latin, and she was not much interested in current events, except insofar as they affected the availability of adoring “beaux.” On a number of occasions, Mrs. Mitchell demonstrates Scarlett’s ignorance, and this may be one of those occasions. At the time Scarlett was supposedly speaking, the Washington Convention already had adjourned. Moreover, her own state of Georgia seceded during the month before the convention and therefore had not sent “commissioners” to Washington.
Most of the “prestige” law journals have shown no interest in publishing my articles, including those that later turned out to be influential. This is not surprising, since year after year those journals remain firmly in the hands of the legal Left. But the prestige journals have shown considerable interest in publishing articles that cite my work for their own purposes or, more often, attempt to rebut it.
A recent example is a student-written piece in Yale Law Journal, which argues that the Constitution granted the federal government very broad power over the Indian tribes. The piece is partially a response to my research on the the intended scope of the Indian Commerce Clause. My findings, later cited by Justice Clarence Thomas, were that although the Indian Commerce Clause is often relied on as a basis for broad congressional power over Native Americans, that provision is narrower than commonly believed.
In part, the Yale article merely confirms what I had acknowledged: The principal basis of federal and tribal interaction was not meant to be Congress’s Commerce Power but federal authority over foreign affairs (especially treaties). However, the author also purports to show that when “Commerce” pertained to the Indians that term was broader than when it pertained to foreign nations or the states, because commerce with the Indians was “understood through the lens of cross-cultural diplomacy.” One problem with this thesis, though, is that trade with foreign countries also was “understood through the lens of cross-cultural diplomacy.” Another problem is that interconnection did not necessarily result in federal power. In other words, the mere fact that Congress had authority over Activity X and that Activity X affected Activity Y normally did not give Congress power over Activity Y.
Still another difficulty with the author’s thesis is that varying the meaning of the same use of the same word in the same clause (“Commerce” in the Commerce Clause) violates founding-era rules of legal interpretation. When the framers meant to describe different things in the same clause, they generally used different words rather than repeat the same word (e.g., “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.”).
Perhaps the most problematic aspect of the Yale article is its attempt to find evidence of original meaning through the activities of the administration of George Washington. As I explain in detail in my book, The Original Constitution: What It Actually Said And Meant, for several reasons it is highly risky to deduce the understanding during the ratification process (1787-90) from events that occurred only later and therefore were unknown to the ratifiers themselves.
The movement for a “convention for proposing amendments” won some stunning successes in the 2014 state legislative sessions. There was more progress during the 2015 sessions—several applications were passed and none was repealed—but the rate of progress slowed.
So where are we now? Georgia lawyer and Article V expert David Guldenschuh has issued a detailed status report on the movement. Particularly engaging are his profiles of some its leading legislative opponents.
Article v advocates also will be interested in tactics he recommends for the immediate future.
As is true of any outside material, this report contains opinions that are not necessarily my own, or those of the Independence Institute or the Article V Information Center. But Guldenschuh has done a great deal of work on the subject, and his Article V analyses are always worth reading.
The American Lands Council is a Utah-based organization that argues that the federal government should transfer part of its massive land holdings to the states. In recent weeks, apologists for federal land ownership have been savaging the American Lands Council and its leader, Utah Rep. Ken Ivory, in the Utah press.
I don’t agree with every position the American Lands Council takes, but they have a reasonable legal case. I wrote the following in the Salt Lake Tribune to defend Rep. Ivory and the Council against certain politically-motivated charges:
The American Lands Council and its leader, Utah Rep. Ken Ivory, argue that the federal government is illegally retaining vast tracts of Western lands, some of which should be conveyed to the states.
This is not a new position, but it is making new progress in American state legislatures. It also is drawing the charge that it has “no legal foundation.”
The truth, however, is that Ivory’s position is grounded much more firmly than critics admit.
There are at least three legal bases for concluding that the federal government is obligated to dispose of surplus acreage:
• The original meaning of the Constitution—the meaning attached to it by the Founders—largely supports this view.
• Some of the congressional laws creating Western states (“organic acts”) strongly imply that the federal government has the duty to dispose of excess land.
• To the extent that some of those laws suggest otherwise, they may be constitutionally defective.
Critics point to court cases that assume the federal government may own any land it wants to. But critics should be cautious about relying on those cases. They were sparsely reasoned and therefore are subject to ready judicial re-examination. Moreover, they were decided before the Supreme Court’s renewed interest in the original meaning of the Constitution’s text.
Significantly, that text does not grant the federal government an open-ended, unconditional power to own land. It grants an unconditional power to dispose, but merely conditional and limited authority to retain or acquire.
I first examined the meaning behind this text in a 2005 study published by the University of Colorado Law Review. I learned that the Founders intended the federal government to enjoy more power to own real estate than some right-wing activists admit. But I also learned that the Constitution conveyed to the federal government a good deal less power than Ivory’s critics claim. Essentially, the Constitution, as originally understood, grants the federal government authority to own land for purposes enumerated in the document, but requires the government to dispose of the remainder.
The Supreme Court should have the opportunity to analyze the original meaning of these provisions in the same way it has analyzed provisions applying to federal elections, habeas corpus, guns, and other issues. Perhaps Ken Ivory will give the Court that opportunity.
Another legal basis for Ivory’s position arises from the organic acts of states containing large federal holdings. Those laws support his view when read in light of prevailing rules of judicial interpretation and historical and legal context.
To illustrate: Each organic act grants the state a share of proceeds from federal land sales. From share-of-proceeds terms, courts commonly infer an obligation to maximize proceeds—in this case, a duty to maximize sales. Similarly, each organic act provides that the state disclaims title to federal lands. Although critics claim those disclaimers allow the federal government to retain lands, the disclaimers’ actual purpose was to clear title for sale. The states can legitimately contend that if the federal government sabotages the agreed purpose of the disclaimers, then the states may withdraw them.
Some state organic acts do have terms suggesting the federal government may retain land permanently, but for several reasons those terms may be constitutionally defective.
For example: The Supreme Court voids federal laws (including organic acts) that interfere too much with a state’s core sovereignty. Control over land within state boundaries always has been part of core state sovereignty.
Admittedly, the mere fact that the federal government owns some property within a state does not necessarily violate that state’s core sovereignty. But how far does this rule go?
Washington, D.C. does not claim merely title to the land it owns, but vast sovereign-style authority over it as well. Presumably, therefore, it would be unconstitutional for the feds to own and exercise that kind of authority over all of a state’s territory. But what if they own and control half the state’s land, as in Idaho? Two-thirds, as in Utah? Over 80 percent, as in Nevada?
These are serious and legitimate questions, and Rep. Ivory is performing a public service by raising them.
Filed under: All Postings, Article V, The Founding, supreme court
This article was first published on CNS News.
A newly published speech by one of our Framers offers important clues to the constitutional role of the states, of the right to keep and bear arms, and of the amendment process.
Charles Carroll of Carrollton represented Maryland at the Constitutional Convention. After the convention was over, he advocated the Constitution’s ratification.
Recently-isssued Maryland volumes of the Documentary History of the Ratification of the Constitution of the United States include a number of important documents, productions by Carroll among them. As I explained in a recent post:
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.
As I also explained, the oration reinforced other founding-era representations about the limits of federal power:
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.”
I did not mention in that post, however, that Carroll further elucidated the roles of different parts of the system in protecting freedom:
The three distinct powers of the federal Govt. Are skillfully combined so as to balance each other . . . Sir, this is not all; the federal Govt. Is not only well balanced by the judicious distribution of the powers, which compose it, but the several State-governments will always keep it within its own & proper sphere of action: thus while it restrains the State-Governments with their orbits, it is by them retained within its own. . . The executive & judicial of the State goverts. Will keep a fixed & stedfast eye on those departments of the federal Govt., whose duty it will be not to overlook any encroachments on their respective Jurisdictions.
In addition, Carroll touched on the importance of the right to keep and bear arms:
The vast extent of our territory, the exertions fo thirteen governments, the diffusion of knowledge spirit of liberty amongst the citizens . . . all of whom know the use of fire-arms, would soon prove the folly and madness of the undertaking [of a hostile federal army]. In such a case, the president and congress might, in vain, call upon the militia. In such a case the force of the militia would be exerted against the base traitors to their country.
Carroll further emphasized the utility of the method of proposing amendments by a convention of states, and the independence of the convention from federal control:
When we shall have made a fair trial [of the Constitution], and found the whole, or any part of it, pernicious; the very same authority, which made, can, at any time undo, or improve it. If ever, after the adoption, a convention shall be proposed to amend it, in the way, pointed out by itself, I have the most perfect confidence, that the appointment will take place, and that neither the president, nor the congress, nor any other department will dare to oppose it . . . The very attempt to restrain, would operate most powerfully to promote it.
Finally, the speech contained a passage (too long to be reproduced here) that focused on the division between the federal and state judiciaries and the limited nature of the federal judicial power.
Although Chief Justice Roberts’ Dissent in the Arizona Legislature Case Cited My Research, I Actually Agree With the Majority!
Filed under: All Postings, Article V, TABOR, The Founding, supreme court
In my last post, I discussed the effect on Colorado’s Taxpayer’s Bill of Rights (TABOR) of the Supreme Court’s ruling in Arizona State Legislature v. Arizona Independent Redistricting Comm’n. In this post, I explain why the Arizona case was decided correctly.
Some people may be surprised that I think the holding was correct. I’m politically conservative and the case was brought by a Republican state legislature. The decision was 5-4, with the more liberal justices on the winning side and the more conservative justices dissenting. In his own dissent, Chief Justice Roberts was kind enough to cite one of my own works (although on a point only distantly related to the result). And conservative complaints about the case have been strenuous.
But in this column I try to tell it as it is, and in this instance I think the liberal justices clearly had it right.
The basic issue was the meaning of “Legislature” in the clause of the Constitution that provides that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof . . . . ” (Article I, Section 4, Clause 4; abbreviated I-4-1) That provision is sometimes called the Election Clause. A better name for it is the Times, Places and Manner Clause. We’ll use the latter term here.
Now, it is well established—based on case law and on the Constitution’s original legal force—that part of prescribing the “Places. . . of Elections for . . . Representatives” is drawing the congressional districts within a state.
For many years, the Arizona state legislature drew Arizona congressional districts, and many people claimed those districts often were gerrymandered. The state’s voters, therefore, opted to transfer the job to an independent redistricting commission, a decision made by voters in several other states as well.
Arizona state lawmakers sued, claiming that the term “Legislature” in the Constitution always means the specific representative assembly of a state. They claimed, in other words, that the people had acted unconstitutionally, and that they could not move congressional district-drawing from the state legislature to a commission.
The Arizona Independent Redistricting Commission responded by arguing that sometimes the Constitution uses the word “Legislature” to mean the general legislative power of the state. In this case, the commission argued, the people, through the initiative and referendum process, had acted as the “Legislature.” Just as the people could deputize one assembly to do the job, the people could deputize another (the commission).
The Supreme Court held that in this case the term “Legislature” meant the general legislative power of the state: Arizona voters, as the supreme state legislative power, had acted constitutionally.
The Court had case precedent on its side. Earlier cases had ruled that, although in some parts of the Constitution (e.g., Article V), the term “Legislature” means only the representative assembly, in the Times, Places and Manner Clause it meant the general legislative power, however the people of a state wish to exercise it.
Of course, the Supreme Court’s precedents do not always reflect the true, original meaning of the Constitution. In this instance, though, they do. Here’s why:
* Although there is a presumption that the same word in different parts of the Constitution means the same thing, there are important exceptions. For example, in my book, The Original Constitution, I show how the word “property” in Article IV means “real estate” while same word in the Fifth Amendment means both real estate and personal property.
* Similarly, the Constitution uses the term “Congress” in a dual sense. Sometimes it means only a specific assembly. (Examples include I-1; I-4-2; and Article V.) But on other occasions the Constitution employs the word “Congress” to mean the general legislative power. (See, for instance, I-8 and III-3-2). When “Congress” acts as a specific assembly rather than as the legislature per se, it acts by an ad hoc resolution, not by a law, and without any need for presidential signature. When Congress acts as the federal legislature, it enacts laws, which generally have to be signed by the President.
The fact that the Constitution employs this double usage for the federal legislature implies the same double usage for state legislatures.
* Founding era legislative practice also supports this view. The Constitution provides that presidential electors for each state are appointed “in such Manner as the Legislature thereof may direct.” When the legislature of South Carolina, for instance, first provided for selection of presidential electors, it did not do so by an ad hoc resolution. It did so by formal legislation.
* in fact, Founding Era election rules universally were established by acts of ordinary legislation, not by ad hoc resolution. The Times, Places and Manner Clause was written against a long background of formal election legislation, both in America and in Britain.
* How the people choose to allocate the legislative power of the state is entirely up to them, as James Madison and other Founders recognized. Indeed, at the time the Constitution was adopted, several states provided for slices of the legislative power to be exercised by entities other than legislature—by the governor, by executive councils, and by the people themselves.
Finally, here’s a political point: As this case illustrates, in Arizona and some other states, pro-freedom citizens sometimes attack the initiative and referendum process and demand curbs on it. This is a mistake.
It is politically foolish (you don’t please the voters by attacking them), but it is also wrong as a matter of principle.
In our country, the people are the rightful source of all political power. A “republic,” as the Constitution uses the term, is a government based on the people’s will. Instead of attacking the people’s right to decide, our time is best spent persuading them to make the best decisions possible.