Filed under: All Postings, Article V, The Founding, supreme court
Note: This article first appeared on the American Thinker website.
In the Anglo-American constitutional tradition, a “convention” can mean a contract, but the word is more often applied to an assembly, other than a legislature, convened to address ad hoc political problems. The “Convention for proposing Amendments” authorized by Article V of the Constitution is designed to be that kind of assembly.
The first political conventions were held in England in 1660 and 1688-89. These gatherings looked something like parliaments, but they were entitled “conventions” because only the Crown could call a parliament, and they were not called by the Crown. Moreover, they were convened to address specific constitutional issues, not to legislate.
The 1660 convention led to the restoration of the Stuart line of kings after the failed English experiment with republicanism under Oliver and Richard Cromwell. The 1688-89 convention dealt with the political crisis arising when the second James Stuart (i.e., James II) was forced to flee the kingdom by popular outrage over his arbitrary and unconstitutional misrule and by the invading army of William of Orange.
The American Founders were much influenced by the English convention experience, which they grouped with the gathering of the barons that forced King John to agree to Magna Carta (1215). Between 1689 and 1787, Americans themselves frequently used the convention device, either to address problems within particular polities (conventions of the people) or to address issues of regional or continental importance (conventions of colonies or states).
Particularly important to the American Founders were the proceedings of the 1688-89 convention because it led to parliamentary supremacy over the Crown and adoption of the English Bill of Rights—or, as that document was entitled after adoption, the “Declaration of Right.” Both our own Declaration of Independence and our Bill of Rights owe a great deal to the English Declaration of Right.
After James II’s flight had left the throne vacant, the two houses of the previous parliament instructed William of Orange to call a “Convention of the Estates of the Realm.” The estates of the realm were the lords and the commons, and they met separately. Each elected its own officers and decided on its own procedures. In essence, each estate had one vote, and the concurrence of each was necessary for the convention to approve any measure.
Thomas Babington Macaulay, the great 19th century English literary figure, described in Chapter 10 of his History of England the general philosophy under which the 1688-89 convention operated:
The business of an extraordinary convention of the Estates of the Realm was not to do the ordinary work of Parliaments . . . but to put right the great machine of government. . . .
On these grounds the Commons wisely determined to postpone all reforms till the ancient constitution of the kingdom should have been restored in all its parts, and forthwith to fill the throne without imposing on William and Mary any other obligation than that of governing according to the existing laws of England. In order that the questions which had been in dispute between the Stuarts and the nation might never again be stirred, it was determined that the instrument by which the Prince and Princess of Orange were called to the throne, and by which the order of succession was settled, should set forth, in the most distinct and solemn manner, the fundamental principles of the constitution. This instrument [was] known by the name of the Declaration of Right . . .
After describing the contents of the Declaration, Macaulay added:
But, though a new constitution was not needed, it was plain that changes were required. The misgovernment of the Stuarts, and the troubles which that misgovernment had produced, sufficiently proved that there was somewhere a defect in our polity; and that defect it was the duty of the Convention to discover and to supply.
Thus the Convention had two great duties to perform. The first was to clear the fundamental laws of the realm from ambiguity. The second was to eradicate from the minds, both of the governors and of the governed, the false and pernicious notion that the royal prerogative was something more sublime and holy than those fundamental laws. The former object was attained by the solemn recital and claim with which the Declaration of Right commences; the latter by the resolution which pronounced the throne vacant, and invited William and Mary to fill it.
Today, the role of the Convention for Proposing Amendments should be seen, and usually is seen, in much the same light: not to alter the fundamentals of the Constitution, but to
* clarify the Constitution’s true meaning by sweeping away false interpretations that have accrued over the years and
* adopt changes that require the federal government to comply with the vision of the Founders in modern conditions.
The first goal can be met by amendments overruling rogue Supreme Court decisions, just as amendments previously have been used for that purpose. The second can be met by, for example, requiring a balanced budget, more firmly limiting federal authority, and reorganizing the judiciary so that it more fairly applies the constitutional system of checks and balances.
More discussion of the law of Article V Conventions, appears in my legal treatise on the subject.
Filed under: All Postings, The Founding, supreme court
This is a corrected version of an article originally appearing at the American Thinker website. It is the third of a three-part series.
For children to be American citizens by virtue of the Fourteenth Amendment, they must be born within American territory and they (or rather their parents) must be “subject to the jurisdiction” of the United States. Those opposing birthright citizenship hurt their own case by basing it principally on the claim that visiting foreigners never qualify as “subject to the jurisdiction.”
The problems with that claim are:
* The congressional debates cited to support it represent only weak evidence of meaning and are ambiguous on the subject, at best.
* Before adoption of the Fourteenth Amendment, many (probably most, perhaps all) African-Americans were legally foreigners, so the Amendment had to include foreigners to achieve its purpose of extending citizenship to them.
* The U.S. Supreme Court has decided twice that the meaning of “subject to the jurisdiction” is governed by the English common law doctrine of allegiance. The doctrine of allegiance grants local citizenship to the children of most visiting foreigners.
I do not have a dog in this hunt. But if I were legal counsel for opponents of birthright citizenship, I would take their legal argument in an entirely different direction. I would develop my case on at least two fronts.
First: I would investigate how state legislators who ratified the Fourteenth Amendment may have understood the phrase “subject to the jurisdiction.” This is potentially far more probative of meaning that what members of Congress may have thought.
When we interpret a murky congressional statute we don’t focus on the intent of those who wrote it, but on the understanding of the members of Congress who enacted it. Similarly, in constitutional interpretation, the understanding of the ratifiers is more important than the views of the drafters.
Unfortunately, there has never been an authoritative and comprehensive study of how the ratifying legislatures understood the Fourteenth Amendment. The closest thing is James E. Bond’s book, No Easy Walk to Freedom, but that work is limited to proceedings in the Southern states.
One reason for the lack of an authoritative compendium on the procedures of the ratifying legislatures is the traditional difficulty of accessing old legislative records and newspaper coverage from 37 states. But the growth of digital archives has made the task much easier. I would put researchers to work exploring the ratifiers’ understanding, if any, of the phrase “subject to the jurisdiction.”
Second: I would take advantage of Supreme Court precedents instead of trying to fight them. The two principal precedents are Elk v. Wilkins and U.S. v. Wong Kim Ark. Elk held that the Fourteenth Amendment did not turn tribal Indians into citizens. Wong held that the Fourteenth Amendment did grant citizenship to the U.S.-born son of foreigners legally living here. Elk and Wong further tell us that (1) the Fourteenth Amendment phrase “subject to the jurisdiction” means that, for a child to be a birth citizen, the parents (or more precisely the father) must be in allegiance to the United States at the time of birth, and (2) allegiance is determined according to the rules of English common law.
According to the rules of English common law, allegiance is either natural or local. Natural allegiance is what you owe to your own country. Local allegiance is what you owe any foreign country you are currently visiting. Either form of allegiance qualifies as “subject to the jurisdiction.”
The word “allegiance” ultimately comes from a Latin word meaning “to tie.” The English common law tells us that allegiance does not exist in isolation. It is part of a legal commitment by which sovereign and citizen are tied together. The citizen (or subject) expressly or impliedly promises obedience. The sovereign grants protection, and must be physically able to do so. As the Supreme Court wrote in the Wong case:
Such allegiance and protection [are] mutual,—as expressed in the maxim, “Protectio trahit subjectionem, et subjectio protectionem.” [Protection draws with it the status of the subject, and the status of the subject draws with it protection.]
The lengthy opinions in Elk and Wong offer still more guidance. For example, in Wong, the Court quoted the great judge and legal scholar Joseph Story:
“Allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is; and allegiance by birth is that which arises from being born within the dominions and under the protection of a particular sovereign. Two things usually concur to create citizenship: First, birth locally within the dominions of the sovereign; and, secondly, birth within the protection and obedience, or, in other words, within the ligeance [sic], of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also at his birth derive protection from, and consequently owe obedience or allegiance to, the sovereign, as such, de facto. There are some exceptions which are founded upon peculiar reasons, and which, indeed, illustrate and confirm the general doctrine. Thus, a person who is born on the ocean is a subject of the prince to whom his parents then owe allegiance; for he is still deemed under the protection of his sovereign, and born in a place where he has dominion in common with all other sovereigns. So the children of an ambassador are held to be subjects of the prince whom he represents, although born under the actual protection and in the dominions of a foreign prince.” “The children of enemies, born in a place within the dominions of another sovereign, then occupied by them by conquest, are still aliens.” “Nothing is better settled at the common law than the doctrine that the children, even of aliens, born in a country, while the parents are resident there under the protection of the government, and owing a temporary allegiance thereto, are subjects by birth.”
Let’s look at the exceptions that “illustrate and confirm the general doctrine.” Foreign diplomats are not in allegiance to their host country because they carry with them the extraterritorial jurisdiction of their homeland; they never submit themselves to the law of the host country. Minions of an occupying power are not in allegiance to the host country because the territory they occupy is no longer under the effective protection of the host government. In accordance with same underlying principles, the congressional drafters and the Supreme Court acknowledged a third exception: Individual tribal Indians were not in allegiance to the U.S. because at the time they were not governed directly or effectively by the Congress or the federal courts. Like the foreign diplomat and the minions of an occupying power, they were governed directly and effectively only by their own governments.
The Elk decision, which addressed the status of tribal Indians, contains more helpful language:
The alien and dependent condition of the members of the Indian tribes could not be put off at their own will without the action or assent of the United States [and] . . . no one can become a citizen of a nation without its consent.
In other words, the sovereign must consent both to the ties of allegiance/protection and to citizenship.
Consider this famous historical example: In the 18th century, James Somerset, a native of Africa, was captured and forced into slavery in Virginia. But when his master took him to England as part of a longer voyage, Somerset escaped and sought the protection of English law. On behalf of the Crown, the court accepted his petition and ruled that he thereby became an English subject—that is, in allegiance to the Crown. This allowed Somerset to obtain a writ of habeas corpus, which led to the judicial declaration that slavery was abolished in England.
Allegiance, then, derives from one seeking protection from a sovereign able to provide it and the sovereign’s consent to provide that protection. In the real world, the request for protection and the consent usually are implied rather than express. One seeks protection by entering the country (by travel or by birth) and the sovereign consents by allowing that person to remain within territorial boundaries.
So this leads us to the question of whether parents illegally in the country are in allegiance to that country. This case is different those recited by the precedents, but it is governed by precisely the same principles, as Justice Story doubtless would point out.
The United States has the ability to provide the protection of its law to foreigners who promise to honor it. But the person who enters in defiance of the sovereign’s law demonstrates a refusal to honor that law. The person may be seeking the protection of some of the sovereign’s laws (e.g., those securing a certain freedom or granting a benefit of some kind), but he is reserving the right to choose what laws he will obey. This is not the honest submission to the law, express or implied, required of one in allegiance.
In addition, the Elk case teaches that a sovereign cannot be forced to provide protection, and thereby accept allegiance, without its express or implied consent. Adopting a law governing entry into the country is the sovereign’s refusal to consent to those who disobey it.
Thus, the parent who enters a country illegally is not really in allegiance to that country. It follows that under the Elk and Wong cases, the parent is not “subject to [U.S.] jurisdiction” in the specialized sense that term conveys in the Fourteenth Amendment. It also follows that the parent’s child has the same sort of status held by the child of the foreign diplomat: A citizen of his own homeland, but not of the United States.
An earlier version of this article appeared in The American Thinker.
This is a guide to the constitutional issue of whether a child is a citizen if born in the United States to alien parents here illegally. If you are simply looking for arguments to bolster your political views, look elsewhere. If you are genuinely interested in the merits of this issue, keep reading.
The Fourteenth Amendment became part of the Constitution in 1868. Its first clause states that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state in which they reside.”
Although some claim that merely being born in the U.S. makes one a citizen, neither the Constitution nor the Supreme Court support that view. The Fourteenth Amendment further specifies that one must be “subject to the jurisdiction” of the United States. The critical question is whether the child of a resident illegal alien meets that requirement.
Anyone who tells you this is an easy question is not telling you the truth. It is an extraordinarily difficult question.
What makes it difficult is not merely the politically and racially-charged atmosphere surrounding it. What makes it difficult are problems common to interpreting the Fourteenth Amendment. The rest of the Constitution has many clauses that may seem obscure initially, yet become clear in the light of contemporaneous law and history. But the Fourteenth Amendment is filled with endless fodder for dispute.
This is partly because we know less than we should about the Amendment’s ratification by the state legislatures. It is partly because Amendment’s congressional drafters were not very competent. They sometimes were ignorant of existing constitutional law. They invented terms without defining them. And they ascribed meanings to terms different from established legal meanings. The phrase “subject to the jurisdiction” is a good example. We have only a few clues as to its intended meaning.
Additionally, none of the proposers discussed how the Amendment would impact the children of illegal aliens—even though (contrary to modern assertion) everyone knew that such children were in the country. They were the offspring of Africans illegally imported as slaves after the ban on the slave trade (1808) and before the end of slavery (1866).
As a result of such problems, a reasonably clear “originalist” answer to this issue is not possible. Accordingly, we turn to decisions of the Supreme Court.
The Supreme Court has addressed the Fourteenth Amendment’s “subject to the jurisdiction” language in three important cases. None of these cases definitively resolve our question. But they offer hints.
Elk v. Wilkins (1884) was decided before Congress extended citizenship to Indians who remained tribal members. In Elk, the Court ruled that an Indian born into a tribe was not a citizen unless naturalized under a statute or treaty. The Elk case is only weak evidence of the rule applied to foreigners. This is because because the Constitution’s text and history suggest that the citizenship standards for tribal Indians and foreigners are different. However, the Elk case does tell us that:
* “Subject to the jurisdiction” in the Fourteenth Amendment has a specialized meaning, different from the common meaning of “within a given territory and therefore subject to a court’s order,” as, for example, appears in the Thirteenth Amendment.*
* This meaning is connected to the concept of “allegiance,” a legal term traditionally used to determine whether a person is a natural born citizen.
* For deciding whether a child born in the U.S. receives citizenship under the Fourteenth Amendment, the relevant issue is the parents’ allegiance when the child was born. The parents’ or child’s later decisions are irrelevant, unless the United States accepts them by statute or naturalization ceremony.
Two justices dissented from the holding in Elk. They accepted the connection between “jurisdiction” and allegiance. But they argued that an Indian becomes a citizen if he changes his allegiance by abandoning his tribe and becoming a member of his state’s political community. Their version of allegiance thus depended partly on a person’s intent.
United States v. Wong Kim Ark (1898) ruled that the U.S.-born child of two legally-resident foreigners was a natural born citizen. Horace Gray, the same justice who wrote for the Court in Elk, also wrote for the Court in Wong. The result was different in Wong primarily because the Constitution implicitly made it easier for foreigners to get automatic citizenship than tribal Indians. But the underlying approach of Elk and Wong was similar in that citizenship by birth depended more on geography rather than subjective intent.
The most important lesson of Wong was this: The Constitution’s version of “allegiance” was the version we inherited from Great Britain in 1776—not versions prevailing in other countries or under international law. This agrees with the independent conclusion in my book, The Original Constitution: What It Actually Said and Meant.
As modified by Parliamentary statute, the British version of allegiance was as follows:
* Birth in a country (or on a country’s ships) normally creates a “natural allegiance” to that country.
* A child born abroad is in allegiance to a country, and is therefore natural born, only if his father is a citizen of that country and not engaged in treasonous or felonious activities. In Anglo-American law, a person’s status usually followed that of the mother, but for allegiance the rule was partus sequitur patrem.
* Foreign residents and visitors generally are in “local allegiance” to the host country, since they submit themselves to its laws and protection. Their children born in the host country are natural born citizens of that country.
* To this last rule, there are two exceptions: When the father is a foreign diplomat or a foreign invader, he has no allegiance to the host country, and his offspring are not citizens.
Two justices dissented in Wong. They argued that the British version of allegiance should not apply in America. They contended that parents in merely local allegiance should not bestow citizenship. For example, they stated that if a foreign power occupied U.S. territory, the natural allegiance of parents should pass U.S. citizenship to their children, even if those parents had a local duty to obey the conqueror.
In my view, the Wong majority was right to hold that the British version of allegiance applies to the original Constitution. But because of developments between 1789 and 1868, the dissent made a good argument that a newer, American version applied to the Fourteenth Amendment.
The Supreme Court’s third case was Plyler v. Doe (1982). It ruled that a state’s treatment of illegal aliens’ children is controlled by the Fourteenth Amendment’s Equal Protection Clause. The “subject to the jurisdiction” phrase was not at issue. Nonetheless, the strongly-liberal majority inserted a footnote reading in part:
As one early commentator noted, given the historical emphasis on geographic territoriality, bounded only, if at all, by principles of sovereignty and allegiance, no plausible distinction with respect to Fourteenth Amendment “jurisdiction” can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.
In my opinion, this footnote has little or no persuasive power. It merely recited the views of a commentator and was irrelevant to the matter under decision.
So, where does that leave us?
Let’s assume the Court does not overrule the Elk and Wong cases. To rule against “birthright” citizenship, the Court would have to find a third exception to the precept that children born in the U.S. are U.S. citizens.
Those arguing in favor of citizenship will argue against another exception. They may point out that, unlike a diplomat or an invader, an alien who has violated immigration law still a duty to honor other U.S. laws. In other words, unlike the diplomat or invader, the alien owes local allegiance, and a father’s local allegiance should be enough to grant citizenship to his child.
Citizenship advocates also can point out that unlike in Elk, our country has largely accepted the children of illegal aliens. Our officials generally let them stay in the country and even provide government benefits, such as drivers’ licenses and public university tuition preferences.
Finally, advocates may argue that although the diplomatic and tribal Indian exceptions were mentioned during the Fourteenth Amendment debates, there was no mention of an exception for the children of Africans illegally imported. This implies that such an exception does not exist.
Opponents of citizenship may compare the illegal alien to the foreign invader whose mate produces a child in occupied territory. Both enter the country illegally, and neither should profit from his own wrong. This is different from the case of the captured slave, who is guilty of no wrong. Opponents can add that official acceptance of residence is not the same as acceptance of citizenship.
They may try to prove that illegal aliens often show no interest in abandoning their original citizenship. Opponents may then argue that the Wong dissent was correct to consider personal attitudes as well as mere geographic location.
These questions will be vigorously litigated, as they should be. My current bet is for the Court to rule in favor of citizenship.
* The Citizenship Clause’s limitation of territorial “jurisdiction” so as not to include all people within the territory appears to be unique in the Constitution. Compare the usages in IV-2-2, IV-3-1, and the Thirteenth and Eighteenth Amendments. It is even different from the use of “jurisdiction” elsewhere in the Fourteenth Amendment itself. Thus, in Plyler v. Doe (1982) the Supreme Court was unanimous in holding that the phrase “within its jurisdiction” in the Fourteenth Amendment’s Equal Protection Clause referred to anyone within the boundaries of a state. This discrepancy in meaning is another example of the Fourteenth Amendment’s poor drafting; the drafters should have used a phrase other than “subject to the jurisdiction thereof” if they wanted to exclude certain individuals within state or federal boundaries.
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.
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.
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 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.