Wisdom From A Framer on Federalism, Guns, and the Amendment Process

2009 RGN

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!

July 12, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, Article V, TABOR, The Founding, supreme court 

041410 Rob Natelson-2

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.

Supreme Court’s Order Great for TABOR

July 4, 2015 by Rob Natelson · 1 Comment
Filed under: All Postings, TABOR, The Founding, supreme court 
Rob in Roxborough State Park Colorado

Rob in Roxborough State Park Colorado

For a video in which Rob and Justin Longo talk about the Arizona Legislature case and why it is good for TABOR, click here.

A slightly abbreviated form of this article first appeared in the Denver Post.

The U.S. Supreme Court’s recent order in the case against Colorado’s Taxpayer Bill of Rights (TABOR) is a devastating blow to those seeking to overturn that part of the state constitution. The Supreme Court’s order amounts to a polite directive to the lower court to dismiss the suit.

Colorado voters approved TABOR in 1992. It offers several protections for Colorado’s financial health. It allows voter review when legislative bodies pass increases in taxes or debt, or adopt unusually high increases in spending. Under TABOR the state legislature and local councils continue to initiate all financial measures, but the people are allowed to review some of them.

Four years ago, 34 plaintiffs, including a handful of state lawmakers, sued in federal court to have TABOR declared void. They argued that allowing the people to check the legislature’s financial powers violated the Guarantee Clause of the U.S. Constitution. That’s the section that says that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government.”

The plaintiffs’ claims are not entirely consistent with each other. But their essence is that because TABOR reduced the financial power of the state legislature, it rendered Colorado a “direct democracy” without a “Republican Form of Government.”

From its inception, the plaintiffs’ case has teetered on the edge of probability. Its legal problems are many.

For example, the plaintiffs allege that they have standing to sue, but they don’t identify any specific public vote that caused them personal damage. They claim their case is resolvable by the courts (justiciable), but long-standing Supreme Court precedent says the contrary. They argue that popular voting on financial measures violates the “republican form.” But those who wrote and approved the Constitution acknowledged that many republics allowed popular voting on all laws. The plaintiffs also fail to explain why TABOR is less constitutional than fiscal restraints in many other state constitutions, or why, at this late date, the courts should hear a challenge that could have been filed nearly two decades ago.

Thus far, however, the plaintiffs have defied the odds. Their case has survived motions to dismiss from the state attorney general (who is defending TABOR) in both the trial court and the appeals court.

But now the plaintiffs’ luck seems to have run out.

On Monday the Supreme Court sent the anti-TABOR case back to the Court of Appeals “for further consideration in light of Arizona State Legislature v. Arizona Independent Redistricting Comm’n”—a case the Court had just decided. The Arizona case addressed a part of the Constitution different from the Guarantee Clause. But the justices’ opinions—both the majority and the dissents—leave little doubt how they would rule on TABOR.

The Court granted standing to the Arizona legislature because it was suing as an institution. But the Court carefully distinguished the Arizona situation from cases (such as the one challenging TABOR) in which only a few individual lawmakers were plaintiffs. (See p. 11 of the opinion.) The Court further observed that, although some Guarantee Clause suits may be justiciable, those that challenge the right of people to vote directly on laws are not (p. 5). The Court quoted favorably one of many statements by the American Founders (in this instance, Charles Pinckney) acknowledging that direct citizen lawmaking is “republican” (p. 24). The Court expressed concern that voiding a contested voter initiative would cast a shadow over many similar provisions in other states (pp. 33-34).

Most tellingly, the Court praised direct democracy and held that it was “in full harmony with the Constitution’s conception of the people as the font of governmental power.” (p. 30).

For the TABOR plaintiffs, the dissents held more bad news. Chief Justice Roberts, writing for all four dissenters, would have struck down the Arizona initiative because it completely “supplant[ed]” the legislature. But he made it clear that merely granting voters a veto was fine. Justice Scalia, writing for himself and Justice Thomas, would have denied standing entirely in cases like this. Thomas, writing for himself and Scalia, scolded his colleagues for not being sufficiently deferential to direct democracy in other cases.

The Justices’ sentiment, in other words, is clear: TABOR stays. Let’s hope the Court of Appeals takes the hint. Colorado needs to be free of a meritless lawsuit that has already lasted far too long.

The Most Radical Decision Ever?

June 29, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, ObamaCare, The Founding, supreme court 

041410 Rob Natelson-2

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.

The Supreme Court Uses Magna Carta to Curb Federal Property Grabs

June 24, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, The Founding, supreme court 

041410 Rob Natelson-2

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.

The Underselling of Magna Carta

June 12, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, The Founding, supreme court 
Atop St. Paul's Cathedral, London: 10 years later

Atop St. Paul's Cathedral, London: 10 years later

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.)

The Necessary and Proper Clause Grants Congress No Power

June 1, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, Article V, The Founding, supreme court 
Rob at James Madison's home in Virginia

Rob at James Madison's home in Virginia

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.

Evidence on the Powers the Constitution Leaves Exclusively to the States

May 18, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, The Founding 

061712  RGN Thirlmere

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;
* religion;
* education;
* 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.

More Evidence That Warren Burger Was Defending Roe v. Wade When He Opposed A Convention of States

May 6, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, Article V, The Founding, supreme court 
Rob as Candidate for Governor of Montana in 2000

Rob as Candidate for Governor of Montana in 2000

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?

Obamacare’s Constitutionality and the Origination Clause: New Evidence

April 27, 2015 by Rob Natelson · 1 Comment
Filed under: All Postings, ObamaCare, The Founding 
Rob at James Madison's home in Virginia

Rob at James Madison's home in Virginia

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.

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