More Evidence From Last Term That It’s Not a “Conservative Supreme Court”

Rob at the Univ. of Montana

Rob at the Univ. of Montana

Note: This article was first published at cns news.

There is a common media myth that the current U.S. Supreme Court, or at least a majority of the current justices, is “conservative.”

But if a “conservative” justice is one who consistently interprets the Constitution in accordance with traditional methods of judging—as the Founders intended for it to be interpreted—then the Court is anything but conservative.

On social issues the Court has been pushing society to the Left. Otherwise, the best description of its jurisprudence is “status quo.” And in this instance, preserving the status quo renders the Court liberal, not conservative.

That is because the status quo the justices are preserving is a body of liberal jurisprudence created in the 20th century when the Court was usually controlled by “progressive” majorities.

The Court’s tendency to protect liberal jurisprudence appears even in cases where the specific outcomes are pleasing to conservatives. In fact, the “conservative” outcomes often are relatively marginal—minor victories—while the jurisprudence that underlies the result is a major triumph for liberals.

Three cases from the Supreme Court term illustrate the point.

The first is the famous Hobby Lobby case, in which the Court ruled that the Religious Freedom Restoration Act (RFRA) protects an employer’s right not to provide abortifacients. I have written elsewhere about a liberal victory in Hobby Lobby that received almost no publicity. But there was another, more important, liberal victory on a point of fundamental principle.

The Hobby Lobby dispute arose from federal regulations of employment and of health insurance purportedly authorized by Congress in the Affordable Care Act (Obamacare). Unlike the “tax” justification for Obamacare’s individual insurance mandate, the supposed constitutional basis for those regulations is Congress’s Commerce Power, contained in the Constitution’s Commerce Clause and Necessary and Proper Clause.

Everyone concedes, at least in theory, that Congress has only the authority the Constitution grants it—Congress’s “enumerated powers.” But properly construed, Congress’s enumerated power to regulate “Commerce” does not encompass employment relations or insurance, except in some peripheral situations. The Supreme Court recognized this consistently for the Constitution’s first 150 years. Indeed, during that time the Court held repeatedly, and unanimously, that most insurance is NOT “Commerce.” It was not until “progressive” justices took control in in the late 1930s and 1940s that the rules changed, and it was not until relatively recently that Congress began systematically to interfere in the insurance market.

A bench consisting of traditional (conservative) justices, therefore, would have held that the Obamacare regulations were outside the federal government’s enumerated powers, and thereby invalid for that reason. Such a court would not have reached the RFRA issue because there was no need to do so.

A second example from the Supreme Court term just past is the campaign finance decision in McCutcheon v. Federal Election Commission. This case invalidated a congressional effort to limit the total amount any person could donate to all candidates combined. The basis for the decision was the Free Speech Clause of the First Amendment. Media outlets have described this case also as a “conservative” triumph.

Yet a truly conservative court would never have reached the First Amendment issue because in presuming to regulate campaigns, Congress again exceeded its enumerated powers. The Constitution does confer on Congress authority to regulate the “Manner of holding [congressional] Elections.” But this constitutional grant does not extend to regulation of campaigns.

The scope of the constitutional grant is quite clear from the historical record, as I explained at length a 2010 article cited last year by Justice Thomas, the only member of the Court who consistently interprets the Constitution in the traditional (”conservative”) manner. Congress’s authority to regulate “the Manner of holding Elections” refers strictly to voting mechanics. For example, Congress may specify whether we vote by open or secret ballot and whether a candidate needs a majority to win or can win by a plurality. But the Constitution leaves regulation of campaigns to state laws governing defamation, corrupt practices, and so forth.

The Supreme Court did not hold that “Manner of Election” included campaigns until a “progressive” majority did so in 1941. The Court’s accompanying opinion was based on little or no inquiry into the real meaning of the constitutional language.

Yet in McCutcheon the justices (and the parties) accepted that suspect holding without question, and proceeded immediately to the First Amendment issue.

The third example from the term just ended is NLRB v. Noel Canning, which unanimously invalidated some of President Obama’s “recess appointments.” The Constitution’s Recess Appointments Clause is an enumerated power of the President that grants him the prerogative, without Senate consent, “to fill up all Vacancies that may happen during the Recess of the Senate.” The Court needed to decide (1) whether the “Recess” meant only the intersession recess or encompassed other breaks as well, and (2) whether for a vacancy to “happen” it had to arise during the recess or could merely continue into a recess.

The Founding-Era record is crystal clear on both questions: A “Recess” means only an intersession break and the vacancy must arise then. A traditional (“conservative”) bench would have so found. And, in fact, four justices did so find—relying on an article I wrote earlier this year that documented the Founders’ understanding at length.

But the majority did not follow the Recess Appointments Clause as the Founders understood it. Rather, it applied a sort of balancing test of the “living constitution” variety. President Obama lost only because he had violated even that flaccid and malleable standard.

The result was a small conservative victory, but at great cost: That cost was a complete revision and a serious weakening of an important constitutional check-and-balance—yet another example of the fundamentally liberal jurisprudence of a Court that many in the national media insist on calling “conservative.”

The Supreme Court’s Same-Sex Marriage Non-Decision: Cowardly and Irresponsible

October 13, 2014 by Rob Natelson · Leave a Comment
Filed under: All Postings, supreme court 
Rob at the Univ. of Montana

Rob at the Univ. of Montana

This article was first posted at cnsnews.com.

The Supreme Court’s decision to reject all requests for review of lower-court homosexual marriage cases was cowardly and irresponsible. Certainly it is absurd to call this non-decision, as liberal commentator Cass Sunstein did, a manifestation of “the passive virtues.”

There are two possible reasons for the Court’s avoidance. The less likely is that the justices are waiting for further issue development in the tribunals below. The Court frequently defers considering an issue until that issue has “gestated” throughout the judicial system. In this instance, however, the effect of inaction is to require most states to license same-sex marriages. Tens of thousands of couples will be entering into such unions. If the Court later decides that state provisions banning such marriages have been valid all along, those couples will be left in legal limbo. In that respect, the Court’s non-decision is irresponsible to the point of cruelty.

This is particularly so because it was the justices’ pretentious pontificating in United States v. Windsor that helped create this mess.

There is a more likely reason for the Court’s dodge: It was designed to legalize same-sex unions nationwide, while avoiding a hearing or a formal legal opinion. If this is the correct explanation, it was a cowardly and contemptuous way of treating the “separate and independent sovereigns,” as Chief Justice Roberts has described the states. It also is an extraordinary manner of altering a fundamental, ancient, and revered institution.

Since the 1960s, the Court has emitted a burst of decrees imposing a code of liberal/secular social and sexual mores on Americans, despite previous popular rejection. (Advocates of traditional marriage won 32 of the 34 state constitutional referenda on the subject, mostly in landslide victories, and all within the last 16 years.) All of these decrees, except the latest, have been accompanied by written opinions whose common characteristic has been weak and specious analysis—well below the standards the Court applies in other kinds of cases. Decisions like Griswold v. Connecticut, Eisenstadt v. Baird, Roe v. Wade, Romer v. Evans, Lawrence v. Texas, U.S. v. Windsor, and the plurality opinion in Casey v. Planned Parenthood have relied on doctored history, factual omissions, and obvious constitutional mistakes. In the Windsor case, the holding was not based clearly on any specific constitutional provision at all. In each of these opinions, the Court stuffed the holes with pious sermonizing or rhetorical bombast.

Now, it appears, the Court has simply given up. No need to justify your decisions if you can govern by mere decree.

Make no mistake: This is a development of major importance. That it will have wide social consequences is generally understood. What is not generally understood is that the Court’s high-handed maneuver will trigger set off enormous political consequences as well.

* * * *

Just to clarify: This is a constitutional discussion; the Independence Institute does not take a position on the substantive merits of same-sex marriage.

Montana Supreme Court’s War Against the Rule of Law Finally Getting The Attention It Deserves

October 10, 2014 by Rob Natelson · Leave a Comment
Filed under: All Postings, supreme court 
Rob at the Univ. of Montana

Rob at the Univ. of Montana

Respect for the rule of law is fundamental to a free society. It also is necessary for economic well being.

Montana is among the nation’s poorest states. I was a law professor there for over 23 years and I also serve as Senior Fellow in Constitutional Jurisprudence at the Montana Policy Institute. In a 2012 study I explained a crucial reason for Montana poverty: The state’s highest court has one of the nation’s worst records in following the rule of law.

The court’s defects are an open secret among Montana lawyers, but the problem has remained uncorrected for many years. Now a heated election campaign suggests “the times they are achangin’.”

For several decades, the Montana court has been notorious for overruling its own opinions, issuing incoherent decisions, and exhibiting political bias. My 2012 study documented all of this in detail: The Montana Supreme Court vs. The Rule of Law.

If the Montana Supreme Court is not following the rule of law, can’t the U.S. Supreme Court (SCOTUS) step in? Usually not. Most of the Montana tribunal’s opinions deal with issues of state law, and on that topic the state supreme court is usually final. Even when a federal issue is involved, the wronged party may not apply for SCOTUS review. For example, he may not have the funds to pursue the case (Remember: It’s a poor state). Or his lawyer may be reluctant to challenge the same judges who control his license.

Sometimes, however, justice is done. Shortly after my study, the U.S. Supreme Court promptly reversed two of the Montana court’s more outrageous rulings.

Montana judges are elected, but for several reasons the state’s judicial election system has been stacked heavily against reform. This year, however, all that could change: The state’s former solicitor general, Harvard Law grad Lawrence Van Dyke, is running for the court, and he’s not pulling any punches. Not surprisingly, members of the good ole boy network that has dominated the bench are desperately unhappy about that. In fact, some of their charges have been, well, rather unjudicial.

It is, moreover, hilarious to hear former justices who were elected with special interest money complain about special interest money. Or to cite screeds from “non partisan” organizations without revealing that those organizations have explicitly leftist agendas.

The good ole boy network’s real gripe seems to be that SCOTUS has struck down the state laws that protected their campaign finance monopoly. This has opened the system to groups formerly locked out, and has increased the possibility that Montana voters might learn the truth. I understand how this would terrify some people.

Eric Holder & Other Overreaching Prosecutors vs. the Independence Institute

September 26, 2014 by Rob Natelson · Comments Off
Filed under: All Postings, supreme court 
Rob at the Univ. of Montana

Rob at the Univ. of Montana

An important citizen protection against government is the rule that in criminal prosecutions, criminal statutes are interpreted strictly. In other words, if the government wants to punish someone for violating a statute, it has to show that the wording of the statute unambiguously rendered the defendant’s conduct illegal. Citizens are not held criminally responsible for guessing “wrong” about the meaning of an ambiguous law. This is also called the rule of lenity, and it has been embedded in Anglo-American jurisprudence for centuries.

A recent case seems to violate that rule. In United States v. Esquenazi, two defendants were sentenced to substantial prison terms for allegedly violating a statute that was unclear and never had been authoritatively interpreted by a court. The Independence Institute has joined with the Washington Legal Foundation in a “friend of the court” brief asking for Supreme Court review.

* * * *

Speaking of inappropriate behavior by prosecutors: When announcing his resignation, Attorney General Eric Holder told the press, “as a young boy, I watched Robert Kennedy prove during the Civil Rights Movement how the department can — and must — always be a force for that which is right.”

Two aspects of this statement help to explain Holder’s record at the Justice Department. The first is his reliance on Robert Kennedy as a model. Kennedy was one of our most political attorneys general—notorious for turning his position of trust into an instrument of hard-knuckle, partisan politics.

The other is Holder’s statement that the department must “always be a force for that which is right.” But that is not the A-G’s job. The A-G’s job is to enforce the law as written and to advise the government on what the law means. He has no right to expand or contract the law based on his personal political views.

In our democratic republic, it is the prerogative of the elected members of Congress decide what is right—not the prerogative of an unelected attorney general.

On the breakdown of the rule of law in America during the last few years, see my posting here. Another post, discussing U.S. v. Windsor, is also relevant.

Obama’s Ebola Order: Is it Constitutional to Send Troops to Hand out “Home Health Kits” in Africa?

September 19, 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

The Constitution says that the president “shall be Commander in Chief of the Army . . . of the United States.”

Does that give him authority to utilize our armed forces for a purely non-military purpose like addressing the Ebola outbreak in Africa?

The Denver Post thinks so, editorializing that Obama’s decision is “fully justified.” But the Post doesn’t tackle the constitutional issues.

The Ebola mission, according to the Associated Press, is “to supply medical and logistical support to overwhelmed local health care systems and to boost the number of beds needed to isolate and treat victims of the epidemic.” Our troops will be doing things like handing out home health kits to Africans and building health clinics.

Note that this is different from the armed forces carrying on humanitarian actions as an incident to military operations. When you are fighting an enemy abroad, it makes sense to build hospitals to retain local good will or to care for those injured a result of war.

But we are not engaged in military operations in Africa.

So what does the Constitution have to say?

The Constitution contains no clause specifically prohibiting the president from using the armed forces this way. You might think that such a limit would be inherent in the Constitution’s use of the word “Army.” That is, you might think the word “Army” would be limited to an exclusively military organization. But founding-era dictionaries do not impose that restriction on the term “Army.” As those dictionaries define the word, an “Army” is merely a large number of armed men subject to central leadership. (This, by the way, is one reason the U.S. Air Force is constitutional, even though the Constitution doesn’t refer to it. The Air Force fits within the constitutional meaning of “Army.” Indeed, it was originally the Army Air Service and later the Army Air Corps.)

The operations in Africa sound noble. But the old legal saying is: Hard cases make bad law. In other words, yielding to an innocent-sounding usurpation may create a dangerous precedent. So ask yourself: Does the Constitution allow the president to use the “Army” for any non-military purpose he pleases?

Or maybe you prefer to focus on some narrower examples:

* If the president decides that Argentina does not have sufficient health facilities, may he constitutionally send in the army to open and staff clinics there? (He could take the needed funds from Department of Defense appropriations.)

* Could he make the same decision for Pennsylvania?

* Could he send the army to register voters when there is no accompanying military threat?

* If your answer to the last question is “yes,” then could he focus the army’s registration campaign in states that lean toward his own party? If not, how does this differ constitutionally from the previous example?

* Could he send the military to build a highway in Ohio, if he concluded the highway was necessary for the economy there? Suppose his decision was related to Ohio’s vote in the next election?*

If those examples make you nervous, then your gut is telling you something. The army is not the president’s personal plaything. It is not a generalized work crew the president can order to do whatever he wants done. It is a military instrument, and it is dangerous to allow the president to use it for other purposes.

My guess is that the Constitution does not contain a clause banning the president from using the army for non-military ends only because the framers never imagined that any American president would do so.

Yet it has happened, and it demonstrates a flaw in our political system. For all its strengths, our Constitution contains inadequate protection against a president determined to ignore conventional limits. We have seen this before.

For example, it occurred in World War II, when the president shot at least one American citizen within the continental U.S. without a civilian trial and without habeas corpus, and when he imprisoned tens of thousands of others. (The U.S. Supreme Court failed to stop either action.) We now recognize that these were impermissible constitutional violations, but our repentance didn’t come in time to save the victims.

Once again we are witnessing the exercise of arbitrary executive power—and this time, the president does not even have the excuse of a war. But without a constitutional amendment, we are probably powerless to stop it.

* * * *

* The possibility of political abuse is not far-fetched. This administration’s history of misusing government agencies for political purposes raises the question of whether this operation was triggered in part by a perceived need to rally the heavily-Democratic African-American vote in the coming election. Certainly that is how some pro-Democrat activists are using it. Compare JFK’s pre-election timing of the Cuban missile crisis.

The Constitution on Latin TV (And by “Latin,” we don’t mean Latin American)

September 12, 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

Institute Research Director Dave Kopel has long urged me to do a broadcast production on the Constitution in the Latin language, and now it’s here!

Produced by II web monkey Justin Longo, the program features an interview of me by my daughter Sarah on the American Founding and the nature of the Constitution. Sarah, 23, is a classics major at Willamette University in Salem, Oregon.

I raised all three of my daughters to be bilingual: While they were growing up, my wife spoke exclusively to them in English while I spoke to them exclusively in Latin.

For linguistic wimps, the telecast includes subtitles in English. You can see the program here.

For linguistic jocks: Not even the Romans navigated all of Latin’s grammatical mistakes perfectly. See if you can identify the specific grammatical errors I made in the course of this interview. (Hint: On reviewing the video, I counted four.)

Finally: The pronunciation Sarah and I use is that of “Late Latin.” This is pretty much the same as classical Latin, except that the letter “V” is pronounced as in Italian or English.

The Founders as Mythology

September 7, 2014 by Rob Natelson · Comments Off
Filed under: All Postings, The Founding 
Rob in Roxborough State Park Colorado

Rob in Roxborough State Park Colorado

Recently when commenting on how Americans view the Founding, an associate of mine observed that in many people’s minds the Founders had become mythological rather than historical figures. That is, many people routinely ascribe ideas and actions—both good and bad, wise and stupid—to them that have little to do with historical reality or even human probability.

A common example: Some commentators who profess to revere the Founders and may even claim they were divinely inspired, nevertheless also insist that they grossly breached their faith in proposing a new Constitution rather than amendments to the Articles of Confederation.

My associate’s observation induced me to recall how ancient Greek and Roman writers portrayed their gods. They frequently portrayed the gods as just, majestic, imperturbable, gracious, and wise. But they also told stories that depicted the gods as wicked, petty, jealous, mean, and stupid. To cite one example: Jupiter (Zeus) was pater deumque hominumque—the father of gods and men, the defender of justice, the guardian of the world. Yet he was also a multiple rapist who turned himself into a bull so as to lure a young girl (Europa) in service of his lascivious plans.

Obviously, such portrayals have nothing to do with historical reality. But they are different only in degree from some portrayals of the Founders.

On the one hand, we need to remember that the Founders—framers, ratifiers, and opinion-molders—were not a passel of hicks who, in the dismissive words of Professor Louis Michael Seidman, “thought it was fine to own slaves.” On the other hand, we need to remember that they were not gods either. They were very wise, educated, and experienced men—and in some cases, such as that of Mercy Otis Warren, women. Nearly all were honorable and believed that slavery was a violation of natural law. Their knowledge of human nature and politics enabled them to erect our system of checks and balances. Their knowledge of history enabled them, to a very great extent, to transcend their own time and circumstances. Their drafting skill enabled them to produce a beautiful document, whose phrases have real meaning—even if, as in the case of the Necessary and Proper Clause, those meanings are often technical in nature.

Yet because they were men, they were fallible, and because they lived in a particular time and set of circumstances, they had to make compromises. One of those, and the one most often used to bash them, was their accommodation with slavery: They were faced with the difficult choice of indulging their belief that slavery was wrong or creating a new form of government that all states might ratify. They chose the latter. It was a nasty choice, but it also was one that helped ensure that America did not become, like Europe, a collection of small countries incessantly warring against each other.

In treating the Founders therefore, we should take them as they were. No hagiography and no demonology, either.

The Famous Case of Coleman v. Miller—and, No, It Doesn’t Give Congress Total Control Over the Amendment Process

September 1, 2014 by Rob Natelson · Comments Off
Filed under: All Postings, Article V, supreme court 
Rob at the Univ. of Montana

Rob at the Univ. of Montana

Not long ago, I was listening to a radio talk show and was assured by a caller that the Supreme Court, in the case of Coleman v. Miller, had delegated all important decisions over the amendment process to Congress. In other words, the caller said, Congress can make all decisions on every amendment issue: how states apply for a convention, how the convention conducts its business, whether amendments are ratified, etc., etc. Neither the states nor the courts would have anything to say about it.

Interesting assertion. Problem is, it’s not true.

The Supreme Court decided Coleman v. Miller in 1939. The case arose from a dispute over whether the Kansas legislature had properly ratified a proposed amendment to grant Congress authority over child labor. (All states banned child labor, but their laws were inconsistent.) The amendment had been pending for over 13 years, and the Kansas legislature earlier had rejected it.

So one question was whether Kansas could ratify an amendment after its earlier rejection. Another was whether Kansas could ratify an amendment 13 years after it was proposed. Still another was whether the lieutenant governor should have been allowed to cast a vote in an evenly-divided state senate. And there also was an issue of whether the plaintiffs had standing.

The Kansas Supreme Court upheld the ratification, and all those issues went to the U.S. Supreme Court.

The U.S. Supreme Court’s opinion was written by Chief Justice Charles Evans Hughes, an old-line progressive with a sterling legal reputation. This is how he ruled:

* The plaintiffs had standing.

* Apparently because the Supreme Court justices were evenly divided (one justice may not have participated) on whether they could consider the lieutenant governor issue, the Kansas court’s judgment upholding the lieutenant governor’s vote was sustained.

* Historical practice had been to leave to Congress the decision of whether a state ratification was valid if the same state had earlier (or later) rejected it.

* There was no way the Court could judge how long a proposed amendment might last. That was a judgment for Congress to make—by, for example, inserting a time limit in its original proposal.

The case certainly does not hold that Congress has complete control of the amendment process. I’ll address below where that misconception came from.

Two holdings in Coleman v. Miller were particularly notable, but only one remains important today. The Court’s rulling that it couldn’t judge how long a proposed amendment lasted is no longer relevant. That’s because America agreed in 1992 that proposed amendments lasted forever, unless they were withdrawn. We so agreed when we ratified the Twenty-Seventh Amendment, which Congress had proposed in 1789, more than two centuries earlier.

The part of the Coleman case still important today is its holding that courts interpret Article V in light of history. It was history that told the Court that Congress could resolve the conflict between a state’s ratification and its rejection. In this respect, though, Coleman is not unique: Both before and since, many judicial decisions have followed history in interpreting Article V.

Coleman also seems to clarify (although not entirely) that when Congress imposes a time limit on ratifying an amendment it proposes, Congress can do so because the time limit is part of its proposal. In other words, Congress’s authority to impose time limits doesn’t come from its prerogative to choose between the state convention and state legislative “modes of ratification,” as an earlier case had decided. It comes from its authority to propose. The implication is this: Although Congress can time-limit its own proposed amendments, it cannot impose time limits on an amendment proposed by an amendments convention.

Two justices dissented from the Court’s holding. They argued that the Child Labor Amendment proposal had expired. Four others concurred in the result, arguing that the plaintiffs had no standing.

There was another concurring opinion, too—this one written by Justice Hugo Black for himself and three colleagues. He claimed Congress enjoyed complete control over the amendment process and the courts had no power to review any of Congress’s decisions on that process. That’s where the misunderstanding about Coleman started. The notion that everything should be left to Congress did not come from the Court’s holding, but from the views of a minority.

Of course, anyone who reads Article V knows that the Black position was nonsense. Not surprisingly, subsequent court cases have rejected it repeatedly.

So why did Black make such a claim?

In 1939, the Court was entering the time period in which it was probably more deferential to Congress and the President than at any other time in our history. (Just five years later, Black was to write the Court’s decision in Korematsu v. U.S., deferring to the decision of Congress and the President to herd tens of thousands of American citizens of Japanese dissent into concentration camps.)

Everyone knew that FDR had been considering constitutional amendments, and that he had the support of strong majorities in Congress. Black, who until recently had been a U.S. Senator closely allied to FDR, was still more of a politician than a jurist. Allies of FDR—such as Black and two of the other justices who joined his opinion—may have wanted to emphasize congressional control over the amendment process.

Such notions of extreme judicial deference to Congress are long gone. I doubt that the Black opinion would garner the support of even one Supreme Court justice today.

No, the Necessary and Proper Clause Does NOT Empower Congress to Control an Amendments Convention

August 23, 2014 by Rob Natelson · Comments Off
Filed under: All Postings, Article V, The Founding 
Rob at the Univ. of Montana

Rob at the Univ. of Montana

A few days ago I heard a presentation by a spokesman for a group that claims to defend the Constitution and revere the Founders. Yet the spokesman trashed the Constitution’s framers for allegedly exceeding their authority and claimed they added a provision that largely rendered another provision useless. In other words, the spokesman charged the framers with being both (1) dishonorable and (2) incompetent.

The framers inserted the “Convention for proposing Amendments” in the Constitution to provide the states with a way of obtaining constitutional amendments without federal interference. Tench Coxe, a leading advocate for the Constitution during the ratification debates, pointed out that the convention device allows the states to obtain whatever amendments they choose “although the President, Senate and Federal House of Representatives, should be unanimously opposed to each and all of them.” (Italics in original.)

The spokesman, however, asserted that the Constitution allowed Congress, through the Necessary and Proper Clause, to dictate, either in the convention call or by previous legislation, how an amendments convention is structured and how commissioners (delegates) are selected and apportioned.

The claim that Congress can use the Necessary and Proper Clause to structure the convention was first advanced in the 1960s, and has been repeated numerous times since then. A Congressional Research Service report published earlier this year noted that some in Congress have taken the same line, although the report did not actually endorse it.

But pause to consider: Why would the framers place in the Constitution a method by which Congress could largely control a convention created to bypass Congress? Were that framers that stupid?

Of course not. Most of them were highly experienced and extremely deft legal drafters.

Behind the belief that the Necessary and Proper Clause empowers Congress to structure the convention are three distinct assumptions—all erroneous: They are (1) that the scope of Congress’s authority under the Necessary and Proper Clause is broader than it is, (2) that the Clause covers the amendment process, and (3) that ordinary legislation may govern the amendment process.

The Necessary and Proper Clause is the last item in the Article I, Section 8 list of congressional powers. It reads:

The Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

It happens that the most extensive treatment of the Necessary and Proper Clause is an academic book I co-authored with Professors Gary Lawson, Guy Seidman, and Geoff Miller: The Origins of the Necessary and Proper Clause (Cambridge University Press, 2010) (cited by Justice Thomas in a Supreme Court case earlier this year and apparently relied on by Chief Justice Roberts in 2012). This book reveals the Necessary and Proper Clause to be a masterpiece of legal draftsmanship.

The Clause was based on usage common in 18th-century legal documents. It is not a grant of authority, but a rule of interpretation. It tells us to construe certain enumerated powers as the ratifiers understood them rather than in an overly-narrow way. In legal terms, the Necessary and Proper Clause informs us that those enumerated powers include “incidental” authority.

Even if the Clause did apply to the amendment process, the authority “incidental” to Congress’s call would be quite narrow. An entity that calls an interstate convention always has been limited to specifying the time, place, and subject matter. It is the state legislatures who control selection of their own commissioners, thank you very much.

But in fact the Necessary and Proper Clause does not extend to the amendment process. To explain:

The Constitution includes numerous grants of power. These grants are made to Congress, to the President, to the courts, and to state legislatures and various conventions. The Clause is crafted to apply to most of those grants, but it also excludes a number of them. Specifically, it covers only the powers listed in Article I, Section 8, and those vested in the “Government of the United States” and in “Departments” and “Officers” of that government.

In other words, the Clause omits constitutional grants made to entities that are not part of the “Government of the United States.” For example, the Clause does not apply to state legislatures regulating congressional election law, prescribing selection of presidential electors, or (before the 17th amendment) choosing U.S. Senators. Nor does it apply to the conventions and legislatures operating in the amendment process.

But is Congress a “Department” of government as the Necessary and Proper Clause uses that word? When Congress acts in its normal legislative capacity, you can argue this either way. But when Congress acts under the amendment process, the answer is clearly “no.”

This is because when Congress and state legislatures act in the amendment process, they do so not as branches of government, but as ad hoc assemblies. We know this (1) from the Founding Era record, (2) from subsequent history and, perhaps most importantly, (3) from decisions of the United States Supreme Court. See, for example, United States v. Sprague (1931).

Well, if Congress cannot insert language in the “call” structuring the convention, can it pass laws for the same purpose? Again, the answer is “no.” A long list of 20th century cases from courts at all levels holds that ordinary legislation does not bind the amendment process. See, for example, Leser v. Garnett (1922).

Rob Discusses How He Researches the Constitution

August 18, 2014 by Rob Natelson · Comments Off
Filed under: All Postings, The Founding, supreme court 

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