Filed under: All Postings, ObamaCare, The Founding, supreme court
This article first appeared in The American Thinker.
A complete commentary on the same sex marriage case would take far more than a single short article. Accordingly, I offer only some discrete thoughts:
* A big expansion of federal power. Many libertarians believe the courts should use the Fourteenth Amendment to protect rights unenumerated in the Constitution, and some urged the Court to declare that civil marriage was among those rights. They need to be careful what they ask for. What they have just “won” is a major expansion of federal power.
The case removes limitations on Substantive Due Process, the principal way judges create “rights” unmentioned by the Constitution. Removal of those limits augments the authority of the federal courts. But it also widens the power of Congress. Whenever the courts create a new right under the Fourteenth Amendment, Section 5 of that amendment operates to give Congress “power to enforce [it], by appropriate legislation.” As a result of this case, Congress now enjoys substantial authority over civil marriage, a realm previously considered to be almost wholly reserved to the states.
* The Court’s principal flaw in logic. This is my summary of the essence of the holding:
We recognize marriage as a fundamental constitutional right because it is so important to personal fulfillment, so long-honored, and creates such good social results. Hence, we now require states to loosen the prerequisites for marriage.
The flaw in this assertion is assuming that the “marriage” that has been such as successful institution is the same thing as “marriage” under the Court’s re-definition. An institution whose essence is a relationship between people of the opposite sex is not the same thing as an institution without that characteristic. We do not know what the long-term results of the latter might be.
* The radical result. I could be persuaded to the contrary, but the case has me thinking it may be the most radical in Supreme Court history. An obvious reason is the result: The Court constitutionalized a pop-definition that didn’t exist 20 years ago. Speaking jurisprudentially (although not morally), this was a much greater departure than such widely-criticized Substantive Due Process cases as Dred Scott, Lochner v. New York, or Roe v. Wade.
* The radical methodology. (1) The Court did not, as is customary, rest its holding on the most narrow grounds supporting the result, but on the widest possible grounds—i.e., Substantive Due Process rather than Equal Protection or Full Faith and Credit. (2) The Court announced explicitly that even the prior flaccid limits on Substantive Due Process no longer applied. (3) The Court’s own precedents required that after a judge finds a right “legitimate” or “important” or (as here) “fundamental,” the judge next must consider the weight of the government’s justification for limiting the right. But the Court didn’t even purport to do the latter. In other words, the Court granted same sex marriage a status above enumerated fundamental rights (such as free speech) and other unenumerated rights (such as privacy or abortion).
* Yet, constitutionally speaking, civil marriage is not a “right” at all, much less a fundamental one. As Justice Thomas pointed out in dissent, civil marriage is what the Founders called a “privilege”—a government-created entitlement. Same sex couples have the right to cohabit without being molested by the state, to contract with each other, and to take religious vows. Neither they nor anyone else has the “right” to the government-created entitlement called civil marriage.
Civil marriage does not create the right to cohabit. It is principally a vehicle for distribution of certain special benefits. The first-named plaintiff could have married his long-term partner any time after Massachusetts recognized same-sex marriage in 2003, but he did so only after his partner was critically ill and inheritance became an issue. The Court’s description of the facts strongly suggests that as to that plaintiff at least, the case was as much about entitlement as about love.
* Are you religious? Be afraid. The Court’s opinion shows the justices know their holding has grave implications for the free exercise of religion, but the paragraph in the opinion that purports to reassure does not. Pointedly, it mentions only the freedom to dissent and debate on matters of religion and morality, not the freedom to act on one views. In the wake of this decision, family businesses, non-profits and perhaps even religious congregations will be sued under state and federal civil rights laws. This opinion implies the Court will do nothing to relieve them.
* Hypocrisy. Some of same voices that urged “restraint” in considering Obamacare because it was (just barely) adopted pursuant to the democratic process, urged the Court to sweep away scores of democratically-adopted laws that reflect long popular understanding. Consider the disparate approaches by editors of Time Magazine, for example—for restraint in the Obamacare case, but against restraint in this one.
* Constitutional corruption. As Justice Alito pointed out in dissent, this holding exemplifies how corrupted constitutional interpretation has become. Justice Alito did not mention, but probably would agree, that the nation’s law schools are largely to blame. Lawmakers and alumni: Take note next time universities with law schools ask for money.
* “Same ole same ole” won’t cure the problem. Justice Alito also noted the futility of past efforts to address this corruption. That’s one reason we need a convention to propose amendments under Article V of the Constitution. Those who have been arguing that traditional methods of response are sufficient have been thumpingly proven wrong.
Filed under: All Postings, The Founding, supreme court
This article was first published at CNSNews.
The Fifth Amendment provides that “private property” shall not “be taken for public use, without just compensation.” When I wrote my book, The Original Constitution, I had to address the question of whether the Fifth Amendment phrase “private property” referred only to real estate or whether it included movable goods and other personal property.
The answer is not clear from the text, because the historical record shows that in another part of the Constitution (Article IV, Section 3, Clause 2) the word “property” refers only to land.
Accordingly, I canvassed the history relevant to “takings.” I found an Anglo-American tradition of compensating for seizures of personal property that extended back to Magna Carta and continued to the time the Constitution was drafted. I concluded, therefore, that the Fifth Amendment protected a right to be compensated for all property taken.
This past week, the U.S. Supreme Court reviewed the same record and arrived at the same result. In Horne v. Department of Agriculture, the Court ruled that when the federal government required farmers to turn over a large share of their raisin crop to the government in exchange for the “privilege” of selling raisins, it had to compensate for the taking.
Interestingly enough, all nine justices appear to have agreed on that point. Their disagreements extended to other, technical points of takings law and procedure.
The Horne case provides us with at least two takeaways. First, the Court’s opinion offers an insight into federal actions that one might describe as downright tyrannical. The case arose because the Horne family of raisin farmers was fined for failing to comply with a federal regulation—the Raisin Marketing Order—issued under a New Deal-era statute.
The Raisin Marketing Order had absolutely nothing to do with public health or safety. Rather, it was part of a program designed to increase the price of raisins to consumers.
In one of the two years reviewed by the Court, the feds seized 47 percent of all the raisins grown in the United States. In the second year, they seized 30 percent. The feds disposed of the raisins as they pleased—selling some and using the proceeds to subsidize exporters; refunding some proceeds to farmers one year, but not the next; and keeping the rest for “administration.”
When the Horne family refused cooperate with this abomination, the government fined them nearly $700,000 and dragged them through the judicial system for over ten years! If more people were aware that the government was acting that way, we would have a very different government.
The second takeway is how the case highlights the enormous debt our constitutional system owes to Magna Carta—the venerable English Medieval charter whose 800th birthday is being celebrated this year. Chief Justice Roberts’ opinion explained how Magna Carta offered protection against uncompensated takings, thereby embedding the principle of compensation in Anglo-American jurisprudence. Justice Roberts did not mention another important fact: that Magna Carta granted this protection not only to the nobility, but to all free persons and, to some extent, even to serfs.
The kind of “pay to play” extortion inherent in the government’s Raisin Marketing Order was a major reason behind Magna Carta. Like the federal government, King John demanded money from innocent people before they could do things they had the right to do anyway. Magna Carta took a strong stand against that kind of extortion.
Maybe it’s time for modern Americans to take that stand as well.
This article first appeared at CNSNews.
The exhibition on Magna Carta at the British Library in London is certainly worth seeing. The document was sealed on June 15, 1215, which means that (allowing for intervening changes in the calendar) its 800th anniversary arrives on June 25th of this year.
The exhibition includes an array of artifacts, documents, and other items that exemplify Magna Carta’s background, its negotiation and sealing, and how later generations turned it into an international symbol of human freedom. In addition, the British Library website features a plethora of information and commentary on the document.
A lot of people did a lot of good work to make this happen.
There are a few shortcomings, however.
Some of these relatively minor. The organizers selected two American public figures to offer video insights, Supreme Court Justice Stephen Breyer and Bill Clinton. The selection of Justice Breyer was eminently appropriate, but for the other slot I suspect they could have found someone other than a disbarred ex-politician with no expertise on the subject. Moreover, the two are ideological comrades (Clinton, in fact, appointed Breyer to the Court), so the organizers left themselves is open to the charge of insufficient political balance.
In response to a request for feedback, I wrote to the British Library’s curator, contending that the exhibition’s most serious flaw was its failure to communicate Magna Carta’s relative universality and liberality. Of course, one should not confuse this Medieval charter with a modern statement of democratic freedoms. And to be fair, the exhibition made some effort to show that the document addressed more than a few feudal technicalities. Overall, however, I suspect the exhibition left the typical viewer with the impression that the Charter was almost entirely about helping out the barons, and that its subsequent influence was attributable to how later generations used it.
That impression would be inaccurate. One reason later generations could employ the Charter as a symbol of liberty was that it was not just about helping out the barons.
Chapter 60 of the Charter was a truly extraordinary provision. It imposed an obligation on the barons to grant the same liberties to their own vassals they had just extracted from King John. Chapter 60 should have been front and center, but if it was mentioned at all, that mention was not very conspicuous.
Misleading translation of the instrument’s Latin text also created the impression that the document was less liberal than it was. Several provisions extended rights to every liber homo, which means “free person.” But in the British Library’s exhibit, the phrase is invariably translated “free man.” That, and some of the commentary, may create the impression in viewers that women were excluded from the benefits of those provisions.
The charter also recognized a variety of economic and other rights in women, foreigners, merchants, and even serfs (villani). Many of these provisions foreshadowed rights guaranteed or promoted by the U.S. Constitution, such as the Fifth Amendment’s protection against uncompensated property takings. These provisions received little play.
Moreover, some of the commentary on the British Library website suggests a “politically correct” slant. Here is an example:
Magna Carta contains three provisions for debtor relief. Two of these refer to loans made by Jews, then the ethnic group most identified with money lending. Commentary on the website assails those provisions as “reactionary,” tars the authors of Magna Carta with blame for a pogrom, and claims that through the Charter they attempted “to put an end to” Jewish money lending.
I’m Jewish myself, and I recognize that Medieval Europe could be a pretty miserable place for Jews. But the commentary’s characterization of Magna Carta is simply unfair. The provisions dealing with money lending were relatively moderate terms of debtor relief designed to protect debtors from abusive collection practices and widows and orphans from destitution. They may or may not have been wise, but they were not of the kind that would “put an end to” Jewish money lending. Further, Magna Carta explicitly provided that the same debtor-relief rules it applied to Jewish creditors applied to gentile creditors as well.* The commentary somehow failed to mention that.
It is true that much of the Great Charter’s influence resulted from how future generations employed it as a symbol of freedom. But the document’s authors included some men of vision and generosity. Future generations could make it a symbol of freedom precisely because of that relative generosity. Why Magna Carta was drafted so liberally is not fully understood, but seems to have been partly due to the influence of Stephen Langton, the outstanding biblical scholar then serving as Archbishop of Canterbury; partly due to the influence of liberal ideas then floating in church and intellectual circles; partly the product of enlightened self-interest; and partly the result of the unusually-broad coalition behind the document.
We should not claim for Magna Carta more than its due; but we should not claim for it less, either. With all its faults, it remains for many reasons “The Greatest Constitutional Document of All.”
* * * *
* Chapter 9 applied to debts owed to the king. Chapters 10 and 11 applied to debts owed to Jewish creditors. The sentence stating that the same rules apply to gentile creditors appears only in Chapter 11, but it actually applies to both 10 and 11. (We know this from Magna Carta’s capitalization system; that system, not the arrangement into chapters, is the organization scheme of the original document. The chapter divisions came much later, being attributed to the 18th century legal scholar, William Blackstone.)
Filed under: All Postings, Article V, The Founding, supreme court
In a recent post, I pointed out that, despite superficial appearances, the Constitution’s Necessary and Proper Clause—clarifying that Congress has authority to make laws “necessary and proper” to carrying out its other enumerated powers—actually grants Congress no power.
The Necessary and Proper Clause is representative of one of four related kinds of provisions found in 18th century grants of authority. Some of these provisions granted powers, but others merely clarified how their documents were to be interpreted. The Necessary and Proper Clause was one of the latter kind. For that reason it is what lawyers call a “rule of construction”—that is, a guideline for interpretation.
During the debates over the Constitution, advocates of the document repeatedly outlined to the ratifying public the purely explanatory role of the Necessary and Proper Clause. James Wilson, for example, probably the second-most influential framer after James Madison and the most influential Pennyslvania ratifier, made this point at his state’s ratifying convention. He stated that the Clause did not “in any degree, go beyond the Particular enumeration . . . . It is saying no more than that the powers we have already particularly given, shall be effectually carried into execution.” His ally at the convention, Thomas McKean, echoed this position.
At the North Carolina ratifying convention, another spokesman for the Constitution stated the same thing this way:
This clause specifies that they shall make laws to carry into execution all the powers vested by this Constitution; consequently, they can make no laws to execute any other power. This clause gives no new power, but declares that those already given are to be executed by proper laws.
Even John Marshall, the Chief Justice often accused of taking an overly-expensive view of the Clause, concurred with this reading.
In a recent posting, an anonymous blogger with perhaps more enthusiasm than knowledge argued that this was incorrect. Among that person’s claims were that the Federalist Papers showed that the Clause was an affirmative grant rather than a rule of construction.
No one who reads the Federalist carefully could come to such a conclusion. Madison’s Federalist No. 33 is absolutely clear that the Necessary and Proper Clause grants no power, but is purely explanatory:
[I]t may be affirmed with perfect confidence that the constitutional operation of the intended government would be precisely the same, if [the Necessary and Proper and Supremacy] clauses were entirely obliterated, as if they were repeated in every article. They are only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government, and vesting it with certain specified powers. . . . The declaration itself, though it may be chargeable with tautology or redundancy, is at least perfectly harmless.
Similarly in Federalist No. 44 Madison explained what would have happened if the Clause had been omitted.
Had the Constitution been silent on this head, there can be no doubt that all the particular powers requisite as means of executing the general powers would have resulted to the government, by unavoidable implication. No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included.
In 2012, Chief Justice John Roberts agreed:
[T]he Clause is “merely a declaration, for the removal of all uncertainty,that the means of carrying into execution those [powers] otherwise granted are included in the grant.”
All the Founding-Era quotations for this posting are found in my article on the origins of the Necessary and Proper Clause, which is available here. Those who wish more detail can consult the book I co-authored on the Clause with three other scholars. The publisher forbids me to post that work free of charge. I receive no royalties from it, but the publisher needs to recover costs of production.
This column also appears at CNSNews.
The Constitution enumerates the powers of the federal government. But has anyone listed the exclusive powers of states—the realm the federal government may not invade without violating the Constitution?
When discussing state authority, the Founders usually pointed out only that the federal government’s powers were, as Madison said, “few and defined,” and that the states and people retained everything else. But that presents a problem for modern readers, who often aren’t familiar with 18th century language. For example, if a reader doesn’t know that the word “commerce” in 18th century constitutional discourse usually was defined as “mercantile trade and certain closely related activities,” he might think it means “business” as in the phrase “Chamber of Commerce.” The modern reader might therefore conclude that the Constitution’s Commerce Clause grants to Congress general authority to regulate business.
Fortunately, during the ratification debates some advocates of the Constitution did clarify the document by listing for the public certain designated activities that would remain outside the federal sphere. One reason the Constitution was ratified was that the general public relied on these representations.
In 2003, I collected many of them in an article entitled The Enumerated Powers of States.
As is typical in academia, few law journals were interested in publishing an article that explained the original meaning of the Constitution and how it limited federal authority. Nevertheless, the Nevada Law Journal, then a relatively new publication, did agree to publish it. This proved to be a very good move for the Nevada Law Journal: In the ensuing years, The Enumerated Powers of States has become one of my most cited scholarly articles.
The Enumerated Powers of States listed area after area that the Constitution’s advocates represented as outside of federal control:
* training the militia and appointing its officers;
* control over local government;
* regulating real estate;
* regulating personal property outside of commerce;
* the law of family and domestic affairs;
* most criminal law;
* civil justice between citizens of the same state;
* social services;
* agriculture; and
* control of most business enterprises.
Since 2003, I have found several sources confirming this list. One example is a enumeration that appeared in the Pennsylvania Gazette on Dec. 26, 1787, which is reprinted in Volume 2 of the Documentary History of the Ratification of the Constitution at p.650.
The very recent publication of the Maryland volumes in the Documentary History has turned up other examples. Thus, a 1787 article by a writer using the name “Aratus” represented that only state courts would adjudicate “Cases of property and right within the state, and between citizens thereof, and criminal cases, wherein the United States are not concerned.” (Vol. 11, p. 41). Another author—”Uncus”—wrote a few days later as follows:
“Congress will have no direction of religion or the clergy,—with the universities, academies, schools, or any part of education. They will have no direction with the state judicial courts, or assemblies—with their pleadings, or manner of proceeding. Beyond the ten miles square [ie., Washington, D.C.], few are the civil officers which they can appoint.” (Vol. 11, p.66.)
One of the two new Maryland volumes contains a draft speech by Charles Carroll of Carrollton to be delivered in 1788. Although the speech was not delivered, it is evidence of the educated understanding of the time—especially because Carroll had served as a delegate to the Constitutional Convention, and therefore helped write the document. The Carroll speech specifically affirmed that wills and property conveyances were within the jurisdiction only of state courts, not federal courts (vol. 12, p. 844).
The new Maryland volumes also reproduce another undelivered speech. This one may have had public impact, because it was published well before all the states had ratified. Although it was anonymous, it was almost certainly the finished version of Carroll’s address.
This speech emphasized that Congress would be powerless to regulate inheritances, alter the laws of wills, or establish a national church. (Vol. 12, p. 881). It went on to say that each state will have exclusive control over
“the whole regulations of property, the regulations of the penal law, the promotion of useful arts [i.e., technology], the internal government of its own people.”
Today, of course, the federal government has intruded into almost all the areas that the Founders represented as outside its sphere. In other words, the modern federal government is a creature very different from the one ordained by the Constitution that “We The People” ratified.
Filed under: All Postings, Article V, The Founding, supreme court
More evidence has turned up that the late Chief Justice Warren Burger was defending his Court’s decision in Roe v. Wade when he wrote three letters opposing the Article V convention process.
Burger’s letters frequently are cited as authority by opponents of a “convention of states.” However, in an earlier posting I noted that the letters show little knowledge of the subject, and that Burger apparently had never heard an Article V case or published anything on the topic. I explained that the likely source of Berger’s views was his friend William Swindler, a liberal law professor who passionately attacked the convention process because he feared the states might use it to propose one or more conservative amendments.
It now it turns out that Burger had further reason to oppose a convention of states. In 1973, he was one of seven justices who signed onto Roe v Wade, which legalized abortion-on-demand nationwide and upended long-standing laws in all 50 states.
There was widespread public outrage against the decision. Even many pro-choice citizens believed that abortion should be a state rather than a federal issue, and legal scholars (including many who agreed with the result) decried the reasoning of the case as sloppy. As a result, people began to cast around for a remedy.
Many fixed on the constitutional amendment process as such a remedy. Both the 11th and 14th amendments had been passed wholly or partly to reverse overreaching Supreme Court decisions, and in 1971, it had happened again, with the 26th amendment’s reversal of the Court’s confused decision in Oregon v. Mitchell (1970).
Not surprisingly, therefore, in 1974 the Indiana legislature passed an Article V application for a convention to propose an amendment to overrule Roe. Missouri joined the following year, and Louisiana in 1976. The campaign picked up steam, and by the time Burger wrote the first of his three letters, 19 of the necessary 34 states had adopted applications to overrule Roe in various ways. So you can understand why the Chief Justice was nervous.
But here’s the ultimate irony: During the 1990s, the leadership of a few deeply conservative groups launched a campaign to rescind all Article V applications. They exhorted their grassroots members to lobby state legislatures, and in some cases they did win rescission.
You have to wonder, though: Did the leadership of those groups ever tell their members that by campaigning to rescind applications, they were campaigning to preserve Roe v. Wade? Or that they were thereby destroying any real hope of Roe being overturned?
What would their members have said if they’d known?
This article originally appeared at the American Thinker.
One of the constitutional disputes triggered by the Affordable Care Act, Obamacare, is whether by substituting new material for the original House-passed bill (H.R. 3590), the Senate exceeded its constitutional power to amend the original measure. This, in turn, has provoked a debate over whether the Founders considered complete substitutes to be valid amendments.
A recently-republished piece of evidence suggests that they did.
The Constitution’s Origination Clause requires that “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.” Because the final version of Obamacare imposed a variety of taxes, it unquestionably was a “Bill for raising Revenue.”
Obamacare’s taxes, appropriations, and health-care regulations did not exist in the House-passed version of H.R. 3590. That incarnation of the bill was only a few pages long and was limited to making minor adjustments to the Internal Revenue Code irrelevant to health care. Under the guise of amendment, the Senate gutted the original language and substituted over 2000 pages of Obamacare.
Some writers argue that complete substitutions were not considered valid amendments during the Founding Era, while others contend that they were. Last year, I undertook a wide-ranging investigation into the subject that will be published within the next few weeks by the Harvard Journal of Law and Public Policy. The article is summarized at length here.
I found that complete substitutions may have been unknown in the British Parliament, one source of the Constitution’s House-origination rule. I also found, however, that they were occasionally used in several states between Independence and the time the Constitution was ratified, and that they were considered valid amendments in those states.
This year, the Wisconsin Historical Society issued two new volumes of the magisterial Documentary History of the Ratification of the Constitution. Those volumes cover the debate over the Constitution waged in Maryland from 1787 through the end of 1788.
The first of the volumes reprints a pamphlet written in favor of the Constitution by “Aristides,” the pen name of jurist Alexander Contee Hanson. Hanson was a respected figure in Maryland, and his pamphlet was read widely both in that state and in Virginia. At one point he addressed the question of whether the Constitutional Convention exceeded its authority on the (substantially false) assumption that the delegates’ commissions had been limited to proposing amendments to the Articles of Confederation. Hanson argued that proposing a substitute was a recognized form of “amendment:”
Amendment, in parliamentary language, means either addition, or diminution, or striking out the whole, and substituting something in its room.
Hanson’s assertion is particularly relevant to the Constitution’s original meaning because his own state legislature is not among those offering contemporaneous evidence of complete substitutions. Hanson was reflecting, in other words, an understanding that extended beyond his own state’s boundaries.
Unfortunately for advocates of Obamacare, the validity of complete substitutions as “Amendments” does not resolve the issue of constitutionality. During the Founding Era, even complete substitutes had to be connected to the subject matter of the original bill—or, in modern language, “germane” to the original. Otherwise, they were new bills, not valid amendments.
For reasons documented in my article, H.R. 3590 as passed by the House qualified constitutionally as a “bill for raising Revenue” (even though it was revenue-neutral) because it amended the tax code. Under Founding-Era rules all the Senate’s revenue changes were germane to the original, and therefore valid. However, the Senate-added appropriations and regulations were not germane to the subject of revenue. By including them, the Senate exceeded its authority to amend a “bill for raising Revenue. This means that by the Founders understanding of the Origination Clause, those additions were unconstitutional and void.
Are you a journalist or other citizen who needs a quick overview of the Constitution’s Article V “Convention for Proposing Amendments?” Get our issue paper, “Curing Federal Dysfunction by Constitutional Amendment: A Primer.”
It’s a vital resource for anyone who wants a quick and accurate overview of the process.
It explains what a Convention for Proposing Amendments is—and is not. (It is not, for example, a “constitutional convention.”)
The issue paper also explains why the procedure is in the Constitution, and how it works. And it corrects misconceptions prevailing even among scholars who have not researched the topic themselves.
Although the Constitution is not, strictly speaking, a common law document, it was written against the backdrop of common law.
The term “common law” has various meanings, but the meaning I’m using here is the system of case law we inherited from England, including the bodies of jurisprudence known as admiralty and equity.
That system follows certain identifiable principles—governing values. These principles largely disprove the modern legal academic cant that common law is merely a vehicle for public policy, privilege and power.
The traditional understanding of common law was that it was rooted in the customs of the people, and that the task of a judge was to discover the rules applicable to the case before him, and then apply those rules to the circumstances. During the 20th century, however, a new orthodoxy came to reign in legal academia (primarily law schools) to the effect that judges actually make up the rules of common law as they go along. In other words, judges are inevitably mini-legislators who, under cover of applying precedent, often create rules and results to promote their own opinions of the best “public policy.” You may recall that Justice Sotomayor indirectly expressed this view shortly before she was confirmed to the Supreme Court.
This orthodoxy (so-called “legal realism”) is advanced as a sort of self-fulfilling prophesy for those who promote judicial activism—i.e., those who want judges to be maxi-legislators.
A more extreme outgrowth of the 20th century orthodoxy was that common law decisions are arbitrary and that common law rules are so malleable they really don’t amount to true rules at all. The course of the common law was said to be “indeterminate” and based ultimately on mere power. This view proved convenient to Marxists and others who wished to discredit the judicial system.
In 1992, my treatise, Modern Law of Deeds to Real Property was published. The book was written during the year I served as a visiting law professor at the University of Utah.
The publisher was Little, Brown and Co.—then an old-school legal publishing firm that had produced a line of classic treatises extending back to the early 19th century. Joseph Story, the great Supreme Court justice and legal scholar, wrote for Little, Brown.
Anyway, the law of property deeds is mostly common law aided by statutes usually written to supplement (rather than wholly displace) common law. Accordingly, a large portion of Modern Law of Deeds consisted of the distillation of rules and principles from hundreds of cases.
Real property was only one of the common law legal fields I had studied intensively. I had also practiced, taught, and/or researched in the law of remedies, contracts, oil and gas, homeowners associations, torts, trusts, wills, agency, and fiduciary relationships. And I had taught and written in legal history. This is a far greater range of topics (particularly common law topics) than most law professors pursue. Let’s just say I did not spend much time going out for drinks.
Perhaps I could be charged with dillettantism, but for better or worse by the time I wrote my book I had read thousands of case decisions. At some point I became convinced that the modern orthodoxy about the common law was wrong.
I concluded that, as a practical matter, even most modern judges do not invent rules to promote public policies or to satisfy their power lust. The traditional view was the one closest to the truth: In the real world, judges, especially judges on trial courts and intermediate appellate courts, seek justice. They usually “discover” rules by deducing them from custom, practice, precedent, and a limited number of fixed principles. This occurs even in some cases in which they feel compelled to justify the result by reciting public policy.
So I devoted the last chapter of my book—Chapter 19—to explaining those principles.
I wish I could say the chapter was met with vigorous debate. I can’t. As has happened other times during my career, my conclusions were greeted with silence. And although in many other instances, the silence has ended in adoption (with or without attribution), in this instance it did not.
No doubt there were several reasons for this, but I think one was that very soon after my book came out, Little, Brown and Co. sold its legal division to Aspen Publishing. Aspen promptly pulled all the Little, Brown treatises off the market. Shortly after my book appeared it was out of print—among the last of a distinguished line. It paid me virtually no royalties and, what is more important, very few people read it.
But at least I have the copyright, and Chapter 19 of Modern Law of Deeds to Real Property has been buried long enough. This link provides Internet access to that chapter. The language is technical, and most readers will find it tough going. But I still believe it is a more accurate description of the principles of Anglo-American common law than the theories widely propagated in law schools today.
Filed under: All Postings, Article V, The Founding, supreme court
Some conservative groups have become known for uncompromising opposition to the Constitution’s convention method of proposing constitutional amendments.
They may think they are protecting the republic. But it turns out that they are mostly carrying water for the liberal establishment.
New research shows that nearly all the arguments of convention opponents merely repeat disinformation first propagated by the liberal establishment in the mid-20th century. The goal of this disinformation campaign was to disable an important check on federal overreach.
The Founders created the convention method of proposing amendments to enable the people, acting through their state legislatures, to offer corrective changes if the federal government ever became unresponsive, abusive or dysfunctional. When two thirds of the legislatures pass resolutions demanding it, Congress must convene a task force known as a “convention of the states“—or, in the language of the Constitution, a “Convention for proposing Amendments.” If that task force does propose amendments, they become law only if ratified by three fourths of the states.
As the federal government grew larger and more abusive during the 20th century, conservatives and moderates repeatedly suggested constitutional amendments as a partial cure. They included proposals to reverse certain Supreme Court decisions, such as Roe v. Wade; to otherwise restrict judicial activism; and to impose term limits and require a balanced federal budget.
To blunt the these amendment drives, leading figures in the liberal establishment organized a disinformation campaign against the convention process. Participants in the campaign included liberal Senators such as Joseph Tydings (D.-Md.) and Robert F. Kennedy (D.-NY); several sitting and former Supreme Court justices; members of the Kennedy circle, such as Theodore Sorensen and Arthur Goldberg; and liberal academics perched at prestigious universities, such as a Harvard and Yale.
The apparent goal was to disable the convention process as a constitutional check on the power of the federal government.
In speeches and articles, the participants promoted several key talking points. Most of these talking points were contradicted by law or historical precedent. Some of them even contradicted each other.
But truth was not the goal. The goal was political. The principal talking points were:
• Little is known about how the process is supposed to operate;
• A convention for proposing amendments would be an uncontrollable “constitutional convention;”
• A convention for proposing amendments could be controlled or manipulated by Congress under the Constitution’s Necessary and Proper Clause; and
• A convention for proposing amendments could unilaterally impose radical constitutional changes on America.
If these claims sound familiar— well, they are. Some conservative organizations swallowed them, hook, line, and sinker and continue to tout them today, apparently unaware of how they were fabricated and why.
The 20th century liberal disinformation campaign was strikingly successful. It derailed all drives to curb the Supreme Court’s liberal activism. It blocked efforts to control federal debt or restrain federal spending. It left an increasingly dysfunctional Congress with an absolute monopoly of the amendment process. And it pitted—and continues to pit—conservatives against conservatives.