Filed under: All Postings, Article V, The Founding, supreme court
A little known aspect of our Constitution is that it delegates power, not just to the U.S. Government and to its units, but also to persons and entities outside the U.S. Government. In each case, the power to act is derived ultimately from the Constitution. Even when those persons or entities are states or officeholders of states, their authority derives from the Constitution rather than from the pool of authority retained by the states under the Tenth Amendment.
The Constitution’s delegations of power to actors outside the U.S. Government are surprisingly plentiful. The first listed in the Constitution is Article I, Section 2, Clause 1 [“I-2-1”], which implicitly authorizes each state to define qualifications for the U.S. Representatives from that state. The Seventeenth Amendment extended this authority to include U.S. Senators.
I-2-4 empowers (and directs) state governors to “issue Writs of Election” to fill vacancies in the House of Representatives.
The original Constitution (I-3-1) also delegated authority to each state “Legislature” to elect U.S. Senators. The word “Legislature” was meant literally: The delegation was to the state representative assembly. It was not to the general state legislative authority, which the assembly might share with the governor (through the veto) or the people (through initiative and referendum). In other words, election of Senators was not subject to the governor’s approval, nor could it be handed off to the people. In addition, I-3-2 empowered each governor to temporarily fill senate vacancies during a legislative recesses. This situation continued until the Seventeenth Amendment moved Senate elections to the voters at large. That amendment also conferred on state legislatures power to authorize the governor to make temporary appointments.
The Supreme Court has held that another grant to each state “Legislature” (I-4-1) actually is a grant to the broader legislative authority rather than merely to the state’s representative assembly alone. The Times, Places and Manner clause allows each state to regulate the “Manner of holding Elections for Senators and Representatives.” Because the grant is to the general legislative authority rather than to elected assembly, the governor can veto such regulations, and the people can make them through the initiative process or approve or reject them through referendum, if the state constitution so provides.
The Constitution further bestowed on state legislatures a veto over congressional acquisitions under the Enclave Clause (I-8-17) and over proposed state divisions and combinations (IV-3-1).
Article II, Section 1 empowers “Each State” to choose the method of selecting presidential electors from that state. The same section, coupled with the Twelfth Amendment, authorizes the electors to choose the President. Again, both powers derive from the Constitution, not from those retained under the Tenth Amendment.
The Guarantee Clause (Article IV, Section 4) grants state legislatures the legal capacity to compel the federal government to protect them against “domestic Violence,” and it gives like capacity to state governors when the legislature cannot be convened.
Article V, which governs the amendment process, grants power to four kinds of assemblies: Congress, state legislatures, state conventions, and a federal convention to propose amendments. The courts tell us that in Article V matters, these assemblies act independently, and not as branches of any government.
Article VI empowers, and directs, state judges to apply the Constitution as the “Supreme Law of the Land.”
When an entity outside the government exercises authority conferred by the Constitution, the Supreme Court says it exercises a “federal function.” However, the Court also has made clear that exercising a federal function does not convert an independent entity into a part of the U.S. government.
One interesting implication of these grants, as I noted in an earlier posting, is that they fall outside the incidental federal legislative power defined in the Necessary and Proper Clause. This is because the Necessary and Proper Clause generally excludes laws not directed to the federal government or to “Departments” and “Officers” of that government.
Apparently in recognition of this, the framers provided for several compensating grants to the federal legislature (i.e., Congress-subject-to-presidential-veto). The Times, Places and Manner Clause permits Congress to regulate, to a certain extent, a governor’s writ of election and to overrule most state regulations of congressional elections. (I-4-1). Moreover, even though states are primarily responsible for selecting presidential electors, Congress may dictate “the time of chusing the Electors, and the Day on which they shall give their Votes.” (II-1-4). And in the amendment process, Congress calls the convention and chooses among two modes of ratification.
Filed under: All Postings, The Founding, supreme court
This article was first published in The American Thinker.
King John (reigned: 1199-1216) could be charming and efficient, but he was ruthless and utterly untrustworthy, and several times he drove his subjects to the point of rebellion. Out of one of those rebellions emerged the most influential constitutional document in Anglo-American history—perhaps the most influential of all time.
On June 15, 1215 in the meadow of Runnymede on the banks of the River Thames, English barons forced John to seal the first version of Magna Carta. The Latin title reflects the document’s Medieval Latin text. It came to be called magna (great) to distinguish it from the lesser Charter of the Forest.
Thus the coming year of 2015 marks the 800th anniversary of the event at Runnymede.
John died in 1216, after having repudiated the Charter. However, his successors have repeatedly pledged their adherence to it. Portions remain law in England today.
In many respects, Magna Carta was similar to other medieval European royal charters granting liberties and privileges, and indeed it restated some terms from a charter issued by Henry I over a century earlier. What distinguished Magna Carta was the universality of its grants. It acknowledged rights and privileges not merely for the barons who extracted it, but also for women, for merchants, for the church, for all free persons, and in some cases even for unfree agricultural workers. A particularly striking provision (Chapter 60 of the 1215 version) provided that the barons would grant to their own vassals all the liberties the king was granting them.
This universality probably was due to the vision of Stephen Langton, Archbishop of Canterbury, a former professor at the University of Paris, and the inventor of our system of dividing biblical books into chapters. Langton played a major role in negotiating the settlement between John and the barons.
Subsequent English Kings repeatedly re-issued or re-affirmed Magna Carta, even if they did not always honor its terms. Copies were lodged in every county in England. Magna Carta became the first entry in the English Statutes at Large. It was read aloud to the populace on regular occasions in public places throughout the realm. During the reign of Edward III (1327-1377), Parliament enacted statutes elucidating the meaning of key provisions. By the close of the Middle Ages, Magna Carta was recognized as a document of constitutional proportions.
Parliamentary spokesmen relied on it during their pivotal struggles with the kings of the Stuart dynasty (1603-1689). The most famous of the Parliamentary spokesmen, Sir Edward Coke (1552-1634), penned a treatise on Magna Carta. This subsequently was included in his Institutes of the Lawes [sic] of England, the single most popular law treatise in Britain and in British America until supplanted by Blackstone in 1765. Coke was therefore a primary source from which the American Founders learned their law.
Magna Carta, particularly as interpreted by Coke, formed a basis for terms in key American governmental documents. Echoes or paraphrases appeared in each colony’s charter, in the Massachusetts Body of Liberties, in Pennsylvania’s Frame of Government, and in similar instruments. During the decade of tension with Britain that preceded the American Revolution, spokesmen for the American cause relied partly on Magna Carta to support their case. After independence, Americans inserted provisions derived from Magna Carta into their new state constitutions, into the Articles of Confederation, and into the federal Constitution of 1787.
The Due Process Clauses of the Fifth and Fourteenth Amendments are the successors of Magna Carta’s famous Chapter 39, which provided that the king would not penalize any subject other than according to the judgment of the subject’s peers or the law of the land. The Fifth Amendment Due Process Clause included an implicit ban on many civil ex post facto laws, which served the goal of its drafter, James Madison, of compensating for the narrow ratification-era understanding of the Ex Post Facto Clauses (Art. I, sec. 9, cl. 3 & sec. 10, cl. 1).
The Constitution’s Privileges and Immunities Clause (Art. IV, sec. 2) stems from Magna Carta’s guarantees of free entry and exit from the kingdom for merchants and other travelers (Chapters 41 and 42). The proportionality rule of the Eighth Amendment derives, in part, from Magna Carta’s bans on excessive amercements and on seizure of the tools people used to earn a living.
Magna Carta contains predecessors of the Sixth Amendment guarantees of a local (Chapter 18) and speedy (Chapter 40) trial, and to confront witnesses (Chapter 38). The Thirteenth Amendment proscription against involuntary servitude is prefigured in Chapter 23; aspects of the Commerce Clause (Art. I, sec. 8, cl. 3) by Chapter 33, and the Weights and Measures Clause (Art. I, sec. 8, cl. 5) by Chapter 35. The Fifth Amendment Takings Clause is anticipated by Chapters 19 and 21 of the 1225 version.
No wonder Justices of the Supreme Court have cited Magna Carta in over 175 cases. It a foundation for American liberties—as it has been a foundation of the liberties widely enjoyed throughout the modern Anglosphere.
This article originally appeared at The American Thinker.
The Article V Handbook, which I authored for the American Legislative Exchange Council, emphasizes that citizens pressing for constitutional amendments should avoid fringe or unpopular proposals. The Handbook distills four guiding principles for selecting amendments worthy of support:
(1) An amendment should move America back toward Founding principles.
(2) The amendment should enact substantial, rather than merely symbolic or marginal, reform.
(3) The amendment should enjoy supermajority support among the public. There must be room for slippage once opponents begin to attack the proposal.
(4) It should address a subject that state lawmakers of both political parties can understand and appreciate.
“As of this writing,” the Handbook adds, “a balanced budget amendment probably meets all four criteria; an amendment to abolish the income tax probably does not.”
Measured by subsequent success, those four principles have been vindicated. Since the Handbook was published in 2011, seven states have adopted BBA applications—far more than on any other topic. No legislature has adopted an amendment to repeal the income tax.
By my count, there are now 21 valid, aggregable BBA applications outstanding. The 2014 elections created a favorable political environment in the states, so the number may approach the required 34 by the end of next year. However, as BBA activists have long understood, drafting a politically and practically viable balanced budget amendment presents a considerable challenge. One reason lies in the nature of the amendment: establishing rules for budgeting is complicated. But there are other difficulties as well.
The amendment has to have teeth without threatening effective government. The balanced budget rule must take effect without unnecessary delay, but not so fast as to be overly disruptive. It should permit deficit spending in emergencies, but the emergency clause must not be easily manipulable. It must be enforceable without ceding the budget process to the courts. The amendment must be comprehensive enough to do the job, but not overly detailed.
Fortunately, history offers us some valuable drafting lessons. The relevant history includes experience both with state fiscal restraints and with prior U.S. constitutional amendments. Very instructive is the history of the 14th amendment, a critical and necessary measure that almost failed of ratification because of poor authorship.
Here are some drafting suggestions. This list is not exhaustive:
* Keep it short. Americans treasure their Constitution’s brevity, and will be suspicious of an amendment that looks like an economics treatise. Also, the longer a proposal, the more there is for opponents to pick apart. Tax and expenditure limitations in some state constitutions are far too long to suit the U.S. Constitution. At about 425 words, the 14th amendment proved too detailed, and offered opponents much fodder for attack.
* Make the substance fit. An amendment’s substance should blend with the “spirit” of the rest of the Constitution. For example, the federal government is wholly representative in nature, so requiring national popular referenda would be a major, and probably unacceptable, departure.
* Make the language fit. The amendment’s language should be consistent with the rest of the Constitution. If the draft employs words appearing elsewhere in the document, make sure the usages are consistent. Endless disputes have arisen over the 14th amendment’s phrases “privileges or immunities” and “due process of law,” because it is unclear whether the critical words in those phrases mean the same as in other parts of the Constitution.
* As a corollary: Avoid modern technical phrases such as “gross domestic product” or “discretionary spending.” Technical terms engender popular suspicion because everyone knows they can be manipulated. Moreover, as time passes the meaning of technical terms can be forgotten. For several years now, I’ve made a living explaining the Constitution’s many technical phrases to Americans who had forgotten what they were supposed to communicate. That should not have been necessary.
* Don’t overreach. Drafting an overly-strict amendment is one kind of overreach. Another kind of overreach is adding bells and whistles to win the support of particular groups. To be politically acceptable, a BBA should be “clean.” It should feature neither exemptions for entitlements (favored by liberals) nor anti-tax add-ons (favored by conservatives). Bells and whistles create the perception of favoritism and probably will not convince BBA skeptics anyway.
* Avoid numbers and formulae. They create public suspicion and people find them hard to understand. (Most people find the formula in Section 2 of the 14th amendment, for example, to be inscrutable.) Formulae and numbers also are manipulable: Experience with state tax and expenditure limitations shows that a 5% annual “ceiling” often becomes a 5% annual floor.
* Don’t concede the constitutionality of the welfare state. Proposals that assume the validity of existing programs may prejudice future litigation over the validity of those programs. Current spending practices also are inconsistent with the founding-era principle of limited government. Any such a concession will provoke opposition among the fiscally-conservative activists necessary to ensure ratification.
* Favor procedure over substance. Some of the Constitution’s most effective provisions create checks and balances rather than merely mandating “thou shalt” or “thou shalt not.” Instead of defining the “emergency” that justifies a deficit, the amendment should include a special procedure for authorizing it.
* Be very careful with legislative supermajority requirements. Because of how group dynamics work, an excessive supermajority requirement in an assembly the size of the House of Representatives may actually increase deficits. Drafters should consult existing social science research on this topic, or rely on other mechanisms instead.
Readers with additional suggestions should email them to me at firstname.lastname@example.org.
Earlier this year, I documented one of the reasons we know an Article V convention is a “convention of the states” rather than a mass popular gathering: Founding Era documents tell us so. I listed several such documents. (Subsequent to the Founding, in the case of Smith v. Union Bank, the Supreme Court also referred to an Article V convention as a “convention of the states.”)
Here is another piece of evidence:
In 1788, New York ratified the Constitution, but the state ratifying convention called for extensive amendment. In a circular letter to the other states, it urged that an amendments convention be called. On February 4, 1789, therefore, the New York state assembly, the lower house of the legislature, debated whether to submit an application to Congress for an Article V convention. Only four assemblymen spoke to the issue, but two of them characterized the gathering as a “convention of the states.”
Both of those two were highly significant figures. Samuel Jones had been a key member of the ratifying convention. So also had John Lansing, Jr., a respected judge. Lansing, furthermore, had been a delegate to the Constitutional Convention itself.
No one called the amendments convention anything else, although the eventual application used the term “Convention of Deputies from the several States.” The term “Deputy” was a synonym for “agent”—in this case, the agent of one’s state.
You can read the legislative proceedings in volume 23 of the Documentary History of the Ratification of the United States Constitution.
I have updated the earlier posting accordingly.
Republican Congressman Mike Coffman and his Democratic opponent Andrew Romanoff held a public debate yesterday—all in Spanish. It was billed as the first non-English candidate debate in Colorado state history.
Well, maybe not. Hispanics settled Colorado long before Anglos did. When I was practicing law in Denver in the 1970s and 1980s (before embarking on my academic career), I had Hispanic clients who traced their family’s Colorado residence back to the 1700s. So I suspect there were Spanish-language political debates within Colorado well before there were English-language ones.
People concerned about large non-English speaking populations in the United States needn’t worry. We have had them before, all through our history. Much of the debate over the U.S. Constitution in Pennsylvania in 1787 and 1788 was held in German: Speakers of that language made up perhaps 40% of the state population. Dutch was still widely spoken in New York.
During the 20th century, politicians such as New York City Mayor Fiorello LaGuardia campaigned in Italian and Yiddish as well as English because large parts of the city’s population used Italian and Yiddish in daily life. Yet today most of the descendants of those Italian speakers know little, if any, of their ancestral tongue. The descendants of the Yiddish speakers know words like “shlemiel” and maybe a few vulgarities, but that’s about it. I’m shocked at how many second generation Mexican-Americans can speak hardly any Spanish and how many second generation Chinese- and Japanese-Americans know hardly any of their parents’ language.
Don’t get me wrong. In my view, it is imperative that Americans know English, and I think competency in English should be a requirement for citizenship. But I also think it is a mistake for immigrants not to pass on their native tongues to their children. Spanish speakers should teach their kids Spanish; speakers of Indian tribal languages should pass their own languages on to the rising generation. I have long regretted that my father, who although a native of this country was raised in a Yiddish-speaking household, did not teach me that language when I was at an age when I could have easily absorbed it. He could done this by speaking to me exclusively in Yiddish. I could have learned English quite well from my Nova Scotia-born mother and from the larger culture.
Knowing a second language not only enriches one’s knowledge base; it is also a window into another way of seeing the world, into a different way of thinking. The more a foreign language diverges from English, the more different its perspective. The bilingual person enjoys the kind of additional depth provided by seeing through two eyes instead of one, or in color rather than in black and white.
Moreover, there is good evidence that when one studies foreign languages in addition to English, it improves one’s knowledge of English beyond any advantage from devoting those extra hours solely to English. This is particularly true of Latin.
In my view, any American with any pretensions to a college-level education should be fluent in English, but also (1) know the rudiments of Latin (both for its linguistic and cultural benefits) and (2) be conversant in at least one modern language.
I walked the walk when raising my own daughters: I taught all three basic spoken Latin from childhood. The youngest, Sarah, and the eldest, Rebecca, went on to study Latin literature in school. Sarah is reasonably conversant in Spanish, and now has branched out into Hebrew and Greek. Rebecca, now a Latin teacher, also speaks Japanese, as does her husband (although he is not of Asian ancestry). Deborah, my “central” daughter, not only imbibed Latin in childhood, but has studied German and a smattering of Italian and Russian.
I should add that my brother has given his own children the same sort of advantage. He is fluent in Italian, and speaks to his son and daughter only in that language. His son recently entered college, where he is majoring in business, but supplementing it with Italian.
I’m not suggesting that everyone should have that level of linguistic interest. I am arguing only that in addition to insisting that Americans all know English, we should embrace the variety and the insights offered by many other languages.
Filed under: All Postings, Article V, The Founding, supreme court
The past week saw yet another assault on those reformers who seek to cure federal dysfunction by promoting a “Convention for proposing Amendments.”
The latest attack took the form of an opinion column that in content offered nothing new. It featured many of the usual errors of commission and omission: The author confused a “Convention for proposing Amendments” with a constitutional convention. He alleged that convention protocols are unknown, and that “anything goes” with “no rules, guideposts, or procedures.” He asserted that the courts won’t provide any guidelines and that the convention would threaten “the freedoms we take for granted under the Bill of Rights.” He demonstrated no awareness whatsoever of the history behind the amendment process nor of the long line of judicial decisions, from the Supreme Court and other tribunals, prescribing ground rules for that process.
But this alarmist column was distinctive in two respects. It was not penned by one of the conspiracy types with whom we usually associate such stuff. It was written by Robert Greenstein, a Washington, D.C. insider who served in the Carter and Clinton administrations and on the Obama transition team. Moreover, the medium of publication was the liberal establishment’s iconic newspaper, the Washington Post.
So why are pillars of the liberal establishment picking up the flag from rightwing conspiratorialists?
The answer to this question has three parts:
* They are resorting to a playbook that was, in fact, scripted not by conservatives but by the Left;
* the Left has a great deal to lose if the convention movement goes forward; and
* at least some establishment Leftists have become concerned about reformers’ recent successes.
First, as to the playbook:
For many years after the Founding, no one seems to have confused an amendments convention with a constitutional convention. For decades, everyone seems to have recognized that an amendments convention was a convention of states that—like all previous interstate gatherings—was nothing more than a diplomatic task force of state government representatives (”commissioners”) operating under a prescribed agenda.
At the turn of the last century, however, when state legislatures were applying for a convention to propose direct election of U.S. Senators, a few opponents began to contend that any such gathering would be a “constitutional convention.” During the 1960s and 1970s, the liberal establishment elaborated this contention into the “runaway convention” scenario often advanced today.
Several perceived threats precipitated the Left’s invention of the runaway scenario. The first was an effort by Senator Everett Dirksen (R.-Ill.) for a convention to propose an amendment overruling the Supreme Court’s legislative reapportionment decisions. The second was a movement to adopt a federal balanced budget amendment. The third was talk of a convention to propose an amendment reversing the Supreme Court’s abortion decision in Roe v. Wade.
Russell Caplan’s book Constitutional Brinksmanship (Oxford University Press, 1988) chronicles some of the methods the Left used to respond to those perceive threats. Senators Robert Kennedy (D.-N.Y.) and Joe Tydings (D.-Md.) led opposition in the Senate, and several Kennedy associates, such as Theodore Sorensen and Arthur Goldberg, led a public disinformation campaign. Various liberal academics also participated.
Perhaps the most heated anti-convention rhetoric came from the New Yorker’s Richard Rovere, a Kennedy sycophant. Rovere charged that a convention could “reinstate segregation and even slavery; throw out much or all of the Bill of Rights . . eliminate the Fourteenth Amendment’s due-process clause . . . and perhaps, for good measure, eliminate the Supreme Court itself.” In the 1980s, Chief Justice Warren Burger, apparently concerned for the power of his court, adopted a less heated version of the same line.
From the participants’ viewpoint, the disinformation campaign was an unqualified success: It frightened enough people effectively to disable one of the Constitution’ most important checks and balances. Unfortunately, it was a disaster for the country, because it removed a crucial constitutional curb on federal overreaching.
During next 20 years, figures on the political Left found it unnecessary to do their own heavy lifting because many naive conservatives did it for them by alarming enough people to defeat all efforts to impose restraint, fiscal or otherwise, on Washington, D.C.
A few years ago, however, the tide began to change. Several scholars, I among them, undertook previously-neglected legal and historical research into the amendment procedure. We restored for all to read the rules as the Founders understood them and as the courts apply them. Then Mark Levin publicized these findings in his best-selling book, The Liberty Amendments.
Empowered by this new information, state lawmakers began to resume their constitutional responsibilities in the amendment process. Most state legislatures now participate in the Assembly of State Legislatures, an organization planning for a possible amendments convention. Since 2011, at least 11 states have adopted at least 15 formal applications for a convention. Most of those applications are targeted at federal fiscal excess.
Obviously, reinvigorating of a procedure by which the people, acting through their state legislatures, can check federal overreaching, is not something that people like Mr. Greenstein and other Washington, D.C. power brokers want to see. It poses to them the threat of authority seeping out of Washington and back to the state capitals and to the people at large. Hence their wish to bury the movement as quickly as they can. If scaremongering from the Right won’t do the job, then they’ll try scaremongering from the Left.
Several years ago, I advised reformers that they would know they were winning when the liberal establishment stopped using misguided conservatives as cannon fodder, and entered the fray directly. That has now happened.
I further advised that the power of the Left would pose a far greater challenge than the arguments of conservatives. Reformers have largely overcome the lesser challenge. America’s future depends heavily on whether they can overcome the greater.
Filed under: All Postings, TABOR, The Founding, supreme court
Three years ago, a group of primarily government plaintiffs sued in federal district court to void Colorado’s Taxpayers Bill of Rights (TABOR). TABOR allows the people, not just the legislature, to vote on most tax increases, most debt increases, and some spending hikes.
The plaintiffs argued that the 20-year old state constitutional provision violated the U.S. Constitution’s Guarantee Clause by putting Colorado out of compliance with its requirement that each state have a “republican form of government.”
In addition to its (very) late filing, the lawsuit faced a number of obstacles: It was doubtful whether, under U.S. Supreme Court case law, the plaintiffs had standing to sue. It was doubtful whether, under Supreme Court case law, any claim under the Guarantee Clause was justiciable. Previously, the Court had ruled that Guarantee Clause questions should be presented to Congress, not to the judiciary. In addition, for a case to be justiciable there have to be legal standards for deciding it, and the Plaintiffs’ legal papers were massively unclear about what the correct standards were.
Finally, the case had big problems on the merits: The evidence is crystal clear that the term “republican” as the Constitution uses the term, allows for direct public votes on policy matters. Nearly all states permit such voting to some extent, particularly on taxes, spending and debt.
That such an open-and-shut case was not dismissed immediately is a grave commentary on the efficiency of the federal judicial system. Three years later, the courts still have not reached the merits. Both the district judge and the U.S. Court of Appeals have allowed the case to proceed even though it still is unclear what legal standard of “republicanism” the plaintiffs propose to apply. Dissenting judges on the Court of Appeals argued, correctly, that enough is enough: Taxpayers should not be forced to endure additional time-wasting on a meritless case.
The Colorado Attorney General agrees with the dissent, and has filed a petition for certiorari with the Supreme Court. The term certiorari is Latin for “to make more certain,” and it is the traditional introductory wording for a court order (writ) demanding that a case be sent to it for review.
The Supreme Court, rightly, is sparing in how often it grants certiorari. This case, however, is a classic case not just for certioriari, but for summary reversal of the kind the Supreme Court ordered in 2012 in response to a baseless Montana state decision.
You can read the Attorney General’s petition for certiorari here. Most of this long document consists merely of appended documents. The argument itself is quickly read.
Filed under: All Postings, ObamaCare, The Founding, supreme court
But if a “conservative” justice is one who consistently interprets the Constitution in accordance with traditional methods of judging—as the Founders intended for it to be interpreted—then the Court is anything but conservative.
On social issues the Court has been pushing society to the Left. Otherwise, the best description of its jurisprudence is “status quo.” And in this instance, preserving the status quo renders the Court liberal, not conservative.
That is because the status quo the justices are preserving is a body of liberal jurisprudence created in the 20th century when the Court was usually controlled by “progressive” majorities.
The Court’s tendency to protect liberal jurisprudence appears even in cases where the specific outcomes are pleasing to conservatives. In fact, the “conservative” outcomes often are relatively marginal—minor victories—while the jurisprudence that underlies the result is a major triumph for liberals.
Three cases from the Supreme Court term illustrate the point.
The first is the famous Hobby Lobby case, in which the Court ruled that the Religious Freedom Restoration Act (RFRA) protects an employer’s right not to provide abortifacients. I have written elsewhere about a liberal victory in Hobby Lobby that received almost no publicity. But there was another, more important, liberal victory on a point of fundamental principle.
The Hobby Lobby dispute arose from federal regulations of employment and of health insurance purportedly authorized by Congress in the Affordable Care Act (Obamacare). Unlike the “tax” justification for Obamacare’s individual insurance mandate, the supposed constitutional basis for those regulations is Congress’s Commerce Power, contained in the Constitution’s Commerce Clause and Necessary and Proper Clause.
Everyone concedes, at least in theory, that Congress has only the authority the Constitution grants it—Congress’s “enumerated powers.” But properly construed, Congress’s enumerated power to regulate “Commerce” does not encompass employment relations or insurance, except in some peripheral situations. The Supreme Court recognized this consistently for the Constitution’s first 150 years. Indeed, during that time the Court held repeatedly, and unanimously, that most insurance is NOT “Commerce.” It was not until “progressive” justices took control in in the late 1930s and 1940s that the rules changed, and it was not until relatively recently that Congress began systematically to interfere in the insurance market.
A bench consisting of traditional (conservative) justices, therefore, would have held that the Obamacare regulations were outside the federal government’s enumerated powers, and thereby invalid for that reason. Such a court would not have reached the RFRA issue because there was no need to do so.
A second example from the Supreme Court term just past is the campaign finance decision in McCutcheon v. Federal Election Commission. This case invalidated a congressional effort to limit the total amount any person could donate to all candidates combined. The basis for the decision was the Free Speech Clause of the First Amendment. Media outlets have described this case also as a “conservative” triumph.
Yet a truly conservative court would never have reached the First Amendment issue because in presuming to regulate campaigns, Congress again exceeded its enumerated powers. The Constitution does confer on Congress authority to regulate the “Manner of holding [congressional] Elections.” But this constitutional grant does not extend to regulation of campaigns.
The scope of the constitutional grant is quite clear from the historical record, as I explained at length a 2010 article cited last year by Justice Thomas, the only member of the Court who consistently interprets the Constitution in the traditional (”conservative”) manner. Congress’s authority to regulate “the Manner of holding Elections” refers strictly to voting mechanics. For example, Congress may specify whether we vote by open or secret ballot and whether a candidate needs a majority to win or can win by a plurality. But the Constitution leaves regulation of campaigns to state laws governing defamation, corrupt practices, and so forth.
The Supreme Court did not hold that “Manner of Election” included campaigns until a “progressive” majority did so in 1941. The Court’s accompanying opinion was based on little or no inquiry into the real meaning of the constitutional language.
Yet in McCutcheon the justices (and the parties) accepted that suspect holding without question, and proceeded immediately to the First Amendment issue.
The third example from the term just ended is NLRB v. Noel Canning, which unanimously invalidated some of President Obama’s “recess appointments.” The Constitution’s Recess Appointments Clause is an enumerated power of the President that grants him the prerogative, without Senate consent, “to fill up all Vacancies that may happen during the Recess of the Senate.” The Court needed to decide (1) whether the “Recess” meant only the intersession recess or encompassed other breaks as well, and (2) whether for a vacancy to “happen” it had to arise during the recess or could merely continue into a recess.
The Founding-Era record is crystal clear on both questions: A “Recess” means only an intersession break and the vacancy must arise then. A traditional (“conservative”) bench would have so found. And, in fact, four justices did so find—relying on an article I wrote earlier this year that documented the Founders’ understanding at length.
But the majority did not follow the Recess Appointments Clause as the Founders understood it. Rather, it applied a sort of balancing test of the “living constitution” variety. President Obama lost only because he had violated even that flaccid and malleable standard.
The result was a small conservative victory, but at great cost: That cost was a complete revision and a serious weakening of an important constitutional check-and-balance—yet another example of the fundamentally liberal jurisprudence of a Court that many in the national media insist on calling “conservative.”
Filed under: All Postings, The Founding, supreme court
Does that give him authority to utilize our armed forces for a purely non-military purpose like addressing the Ebola outbreak in Africa?
The Denver Post thinks so, editorializing that Obama’s decision is “fully justified.” But the Post doesn’t tackle the constitutional issues.
The Ebola mission, according to the Associated Press, is “to supply medical and logistical support to overwhelmed local health care systems and to boost the number of beds needed to isolate and treat victims of the epidemic.” Our troops will be doing things like handing out home health kits to Africans and building health clinics.
Note that this is different from the armed forces carrying on humanitarian actions as an incident to military operations. When you are fighting an enemy abroad, it makes sense to build hospitals to retain local good will or to care for those injured a result of war.
But we are not engaged in military operations in Africa.
So what does the Constitution have to say?
The Constitution contains no clause specifically prohibiting the president from using the armed forces this way. You might think that such a limit would be inherent in the Constitution’s use of the word “Army.” That is, you might think the word “Army” would be limited to an exclusively military organization. But founding-era dictionaries do not impose that restriction on the term “Army.” As those dictionaries define the word, an “Army” is merely a large number of armed men subject to central leadership. (This, by the way, is one reason the U.S. Air Force is constitutional, even though the Constitution doesn’t refer to it. The Air Force fits within the constitutional meaning of “Army.” Indeed, it was originally the Army Air Service and later the Army Air Corps.)
The operations in Africa sound noble. But the old legal saying is: Hard cases make bad law. In other words, yielding to an innocent-sounding usurpation may create a dangerous precedent. So ask yourself: Does the Constitution allow the president to use the “Army” for any non-military purpose he pleases?
Or maybe you prefer to focus on some narrower examples:
* If the president decides that Argentina does not have sufficient health facilities, may he constitutionally send in the army to open and staff clinics there? (He could take the needed funds from Department of Defense appropriations.)
* Could he make the same decision for Pennsylvania?
* Could he send the army to register voters when there is no accompanying military threat?
* If your answer to the last question is “yes,” then could he focus the army’s registration campaign in states that lean toward his own party? If not, how does this differ constitutionally from the previous example?
* Could he send the military to build a highway in Ohio, if he concluded the highway was necessary for the economy there? Suppose his decision was related to Ohio’s vote in the next election?*
If those examples make you nervous, then your gut is telling you something. The army is not the president’s personal plaything. It is not a generalized work crew the president can order to do whatever he wants done. It is a military instrument, and it is dangerous to allow the president to use it for other purposes.
My guess is that the Constitution does not contain a clause banning the president from using the army for non-military ends only because the framers never imagined that any American president would do so.
Yet it has happened, and it demonstrates a flaw in our political system. For all its strengths, our Constitution contains inadequate protection against a president determined to ignore conventional limits. We have seen this before.
For example, it occurred in World War II, when the president shot at least one American citizen within the continental U.S. without a civilian trial and without habeas corpus, and when he imprisoned tens of thousands of others. (The U.S. Supreme Court failed to stop either action.) We now recognize that these were impermissible constitutional violations, but our repentance didn’t come in time to save the victims.
Once again we are witnessing the exercise of arbitrary executive power—and this time, the president does not even have the excuse of a war. But without a constitutional amendment, we are probably powerless to stop it.
* * * *
* The possibility of political abuse is not far-fetched. This administration’s history of misusing government agencies for political purposes raises the question of whether this operation was triggered in part by a perceived need to rally the heavily-Democratic African-American vote in the coming election. Certainly that is how some pro-Democrat activists are using it. Compare JFK’s pre-election timing of the Cuban missile crisis.
Institute Research Director Dave Kopel has long urged me to do a broadcast production on the Constitution in the Latin language, and now it’s here!
Produced by II web monkey Justin Longo, the program features an interview of me by my daughter Sarah on the American Founding and the nature of the Constitution. Sarah, 23, is a classics major at Willamette University in Salem, Oregon.
I raised all three of my daughters to be bilingual: While they were growing up, my wife spoke exclusively to them in English while I spoke to them exclusively in Latin.
For linguistic wimps, the telecast includes subtitles in English. You can see the program here.
For linguistic jocks: Not even the Romans navigated all of Latin’s grammatical mistakes perfectly. See if you can identify the specific grammatical errors I made in the course of this interview. (Hint: On reviewing the video, I counted four.)
Finally: The pronunciation Sarah and I use is that of “Late Latin.” This is pretty much the same as classical Latin, except that the letter “V” is pronounced as in Italian or English.