Filed under: All Postings, Article V, The Founding, supreme court
This article first appeared in the American Thinker.
Term limits are among the reforms being proposed by advocates of curbing federal government abuses through the Constitution’s Article V amendment process.
The idea of congressional term limits has been around for some time. But more recent discussion centers on term limits for the judiciary, especially for the Supreme Court.
In fact, one application for an amendments convention now making the rounds—the Convention of States Application sponsored by Citizens for Self-Governance—is broad enough to include judicial term limits. Although a fairly new offering, it already has been approved by the legislatures of four of the necessary 34 states.
Part of what is driving the talk of judicial term limits is the Supreme Court’s continued failure to honor important parts of the U.S. Constitution. Admittedly, the Court does a pretty good job interpreting some parts of the document. The Intellectual Property Clause is one example. Moreover, the current Court is certainly more conscientious in constitutional cases than the rogue justices who dominated the bench throughout much of the 20th century, and who re-wrote critical portions of the Constitution to suit themselves.
Nevertheless, the present justices are to blame for failing to correct the constitutional fictions of their 20th century predecessors—and for sometimes writing fiction of their own.
Another factor justifying term limits has little to do with specific case outcomes. This is the enormous increase in life expectancy since the Constitution was written. Extended life expectancy is generally a good thing. But when it is coupled with lifetime appointments, the effect is to skew the balance of powers the Founders created.
When the Constitution was ratified, a newly-appointed justice might expect to serve less than 12 years. In fact, the average tenure of the first ten justices was about 8-1/2 years. By contrast, the average tenure of the latest ten to retire was 21-1/2 years. An article by Adrienne LaFrance provides additional statistics.
The Constitution’s checks and balances were crafted with 18th century life expectancies in mind. Although the Founders understood that the Supreme Court would void laws it found unconstitutional, the Founders also expected much more turnover than we now have. When judicial tenure is shorter, the President can nominate, and Senate can approve, more replacements. During the Founding Era, if the Court issued an irresponsible or clearly wrong opinion, citizens could take comfort from the fact that a majority of the Court would be replaced in a few years. That is no longer the case.
The strongest argument in favor of lifetime appointment is that it protects judicial independence. Proposals for short terms with possibilities for reappointment or retention, such as that advanced recently by Sen. Ted Cruz (R.-Tex.) are defective because they do not protect judicial independence.
But we can increase turnover and preserve independence through a constitutional amendment instituting a single long term (e.g., 12 to 20 years) without possibility of reappointment. Such an amendment would have other advantages, too:
First, it would end the presidential game of appointing young and relatively inexperienced justices in the hope that they will continue to influence the Court decades after the appointing President is gone. Of course, in the real world, younger justices often do not have an adequate track record, and may be more readily corrupted by influences in the nation’s capital. If a nominee could serve only, say, 12 years, a President might feel freer to nominate a person in his 60s rather than one in his 40s or early 50s.
Additionally, a younger nominee would have to consider a future career as a private citizen, living under the decisions he made as a justice.
Finally, more rotation on the Court would re-boot the system toward the balance set by the Founders, rendering mistaken decisions more amenable to ultimate correction by the people themselves, acting through the political process.
Seldom has a claim so weak been so often advanced than the claim that a convention for proposing amendments would be a “constitutional convention” that could “run away”—that is, disregard its limits and propose amendments outside its sphere of authority.
I have little patience with this sort of alarmism, partly because it is so patently based on ignorance of history and constitutional law and partly because it first widely publicized as part of a deliberate disinformation campaign to disable one of our Constitution’s key checks and balances.
Nevertheless, early in 2013 I took the time to pen a lengthy rebuttal to the runaway scenario, examining the question from almost every possible angle. I did, however, leave one thing out: Modern communications technology makes a “runaway” essentially impossible.
I have, therefore, added the following to my 2013 essay:
There is another aspect of this the “runaway” theorists overlook: modern communications. Even if the 1787 convention had run away, modern communications render the analogy an ill-fitting one. As Walter Phelps Hall and Robert Greenhalgh Albion pointed out in their History of England over 60 years ago, before modern communications diplomats were unable to consult home authorities quickly and sometimes had to make decisions that presented those authorities with a fait accompli. But today’s communications enable the authorities to control their diplomats to the point that the latter can be turned into “nothing but damned errand boys at the end of a wire.” At any convention for proposing amendments, the state commissioning authorities will be in constant contact with their commissioners.
Most of the “prestige” law journals have shown no interest in publishing my articles, including those that later turned out to be influential. This is not surprising, since year after year those journals remain firmly in the hands of the legal Left. But the prestige journals have shown considerable interest in publishing articles that cite my work for their own purposes or, more often, attempt to rebut it.
A recent example is a student-written piece in Yale Law Journal, which argues that the Constitution granted the federal government very broad power over the Indian tribes. The piece is partially a response to my research on the the intended scope of the Indian Commerce Clause. My findings, later cited by Justice Clarence Thomas, were that although the Indian Commerce Clause is often relied on as a basis for broad congressional power over Native Americans, that provision is narrower than commonly believed.
In part, the Yale article merely confirms what I had acknowledged: The principal basis of federal and tribal interaction was not meant to be Congress’s Commerce Power but federal authority over foreign affairs (especially treaties). However, the author also purports to show that when “Commerce” pertained to the Indians that term was broader than when it pertained to foreign nations or the states, because commerce with the Indians was “understood through the lens of cross-cultural diplomacy.” One problem with this thesis, though, is that trade with foreign countries also was “understood through the lens of cross-cultural diplomacy.” Another problem is that interconnection did not necessarily result in federal power. In other words, the mere fact that Congress had authority over Activity X and that Activity X affected Activity Y normally did not give Congress power over Activity Y.
Still another difficulty with the author’s thesis is that varying the meaning of the same use of the same word in the same clause (“Commerce” in the Commerce Clause) violates founding-era rules of legal interpretation. When the framers meant to describe different things in the same clause, they generally used different words rather than repeat the same word (e.g., “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.”).
Perhaps the most problematic aspect of the Yale article is its attempt to find evidence of original meaning through the activities of the administration of George Washington. As I explain in detail in my book, The Original Constitution: What It Actually Said And Meant, for several reasons it is highly risky to deduce the understanding during the ratification process (1787-90) from events that occurred only later and therefore were unknown to the ratifiers themselves.
The American Lands Council is a Utah-based organization that argues that the federal government should transfer part of its massive land holdings to the states. In recent weeks, apologists for federal land ownership have been savaging the American Lands Council and its leader, Utah Rep. Ken Ivory, in the Utah press.
I don’t agree with every position the American Lands Council takes, but they have a reasonable legal case. I wrote the following in the Salt Lake Tribune to defend Rep. Ivory and the Council against certain politically-motivated charges:
The American Lands Council and its leader, Utah Rep. Ken Ivory, argue that the federal government is illegally retaining vast tracts of Western lands, some of which should be conveyed to the states.
This is not a new position, but it is making new progress in American state legislatures. It also is drawing the charge that it has “no legal foundation.”
The truth, however, is that Ivory’s position is grounded much more firmly than critics admit.
There are at least three legal bases for concluding that the federal government is obligated to dispose of surplus acreage:
• The original meaning of the Constitution—the meaning attached to it by the Founders—largely supports this view.
• Some of the congressional laws creating Western states (“organic acts”) strongly imply that the federal government has the duty to dispose of excess land.
• To the extent that some of those laws suggest otherwise, they may be constitutionally defective.
Critics point to court cases that assume the federal government may own any land it wants to. But critics should be cautious about relying on those cases. They were sparsely reasoned and therefore are subject to ready judicial re-examination. Moreover, they were decided before the Supreme Court’s renewed interest in the original meaning of the Constitution’s text.
Significantly, that text does not grant the federal government an open-ended, unconditional power to own land. It grants an unconditional power to dispose, but merely conditional and limited authority to retain or acquire.
I first examined the meaning behind this text in a 2005 study published by the University of Colorado Law Review. I learned that the Founders intended the federal government to enjoy more power to own real estate than some right-wing activists admit. But I also learned that the Constitution conveyed to the federal government a good deal less power than Ivory’s critics claim. Essentially, the Constitution, as originally understood, grants the federal government authority to own land for purposes enumerated in the document, but requires the government to dispose of the remainder.
The Supreme Court should have the opportunity to analyze the original meaning of these provisions in the same way it has analyzed provisions applying to federal elections, habeas corpus, guns, and other issues. Perhaps Ken Ivory will give the Court that opportunity.
Another legal basis for Ivory’s position arises from the organic acts of states containing large federal holdings. Those laws support his view when read in light of prevailing rules of judicial interpretation and historical and legal context.
To illustrate: Each organic act grants the state a share of proceeds from federal land sales. From share-of-proceeds terms, courts commonly infer an obligation to maximize proceeds—in this case, a duty to maximize sales. Similarly, each organic act provides that the state disclaims title to federal lands. Although critics claim those disclaimers allow the federal government to retain lands, the disclaimers’ actual purpose was to clear title for sale. The states can legitimately contend that if the federal government sabotages the agreed purpose of the disclaimers, then the states may withdraw them.
Some state organic acts do have terms suggesting the federal government may retain land permanently, but for several reasons those terms may be constitutionally defective.
For example: The Supreme Court voids federal laws (including organic acts) that interfere too much with a state’s core sovereignty. Control over land within state boundaries always has been part of core state sovereignty.
Admittedly, the mere fact that the federal government owns some property within a state does not necessarily violate that state’s core sovereignty. But how far does this rule go?
Washington, D.C. does not claim merely title to the land it owns, but vast sovereign-style authority over it as well. Presumably, therefore, it would be unconstitutional for the feds to own and exercise that kind of authority over all of a state’s territory. But what if they own and control half the state’s land, as in Idaho? Two-thirds, as in Utah? Over 80 percent, as in Nevada?
These are serious and legitimate questions, and Rep. Ivory is performing a public service by raising them.
Filed under: All Postings, Article V, The Founding, supreme court
This article was first published on CNS News.
A newly published speech by one of our Framers offers important clues to the constitutional role of the states, of the right to keep and bear arms, and of the amendment process.
Charles Carroll of Carrollton represented Maryland at the Constitutional Convention. After the convention was over, he advocated the Constitution’s ratification.
Recently-isssued Maryland volumes of the Documentary History of the Ratification of the Constitution of the United States include a number of important documents, productions by Carroll among them. As I explained in a recent post:
One of the two new Maryland volumes contains a draft speech by Charles Carroll of Carrollton to be delivered in 1788. Although the speech was not delivered, it is evidence of the educated understanding of the time—especially because Carroll had served as a delegate to the Constitutional Convention, and therefore helped write the document. The Carroll speech specifically affirmed that wills and property conveyances were within the jurisdiction only of state courts, not federal courts (vol. 12, p. 844).
The new Maryland volumes also reproduce another undelivered speech. This one may have had public impact, because it was published well before all the states had ratified. Although it was anonymous, it was almost certainly the finished version of Carroll’s address.
As I also explained, the oration reinforced other founding-era representations about the limits of federal power:
This speech emphasized that Congress would be powerless to regulate inheritances, alter the laws of wills, or establish a national church. (Vol. 12, p. 881). It went on to say that each state will have exclusive control over “the whole regulations of property, the regulations of the penal law, the promotion of useful arts [i.e., technology], the internal government of its own people.”
I did not mention in that post, however, that Carroll further elucidated the roles of different parts of the system in protecting freedom:
The three distinct powers of the federal Govt. Are skillfully combined so as to balance each other . . . Sir, this is not all; the federal Govt. Is not only well balanced by the judicious distribution of the powers, which compose it, but the several State-governments will always keep it within its own & proper sphere of action: thus while it restrains the State-Governments with their orbits, it is by them retained within its own. . . The executive & judicial of the State goverts. Will keep a fixed & stedfast eye on those departments of the federal Govt., whose duty it will be not to overlook any encroachments on their respective Jurisdictions.
In addition, Carroll touched on the importance of the right to keep and bear arms:
The vast extent of our territory, the exertions fo thirteen governments, the diffusion of knowledge spirit of liberty amongst the citizens . . . all of whom know the use of fire-arms, would soon prove the folly and madness of the undertaking [of a hostile federal army]. In such a case, the president and congress might, in vain, call upon the militia. In such a case the force of the militia would be exerted against the base traitors to their country.
Carroll further emphasized the utility of the method of proposing amendments by a convention of states, and the independence of the convention from federal control:
When we shall have made a fair trial [of the Constitution], and found the whole, or any part of it, pernicious; the very same authority, which made, can, at any time undo, or improve it. If ever, after the adoption, a convention shall be proposed to amend it, in the way, pointed out by itself, I have the most perfect confidence, that the appointment will take place, and that neither the president, nor the congress, nor any other department will dare to oppose it . . . The very attempt to restrain, would operate most powerfully to promote it.
Finally, the speech contained a passage (too long to be reproduced here) that focused on the division between the federal and state judiciaries and the limited nature of the federal judicial power.
Although Chief Justice Roberts’ Dissent in the Arizona Legislature Case Cited My Research, I Actually Agree With the Majority!
Filed under: All Postings, Article V, TABOR, The Founding, supreme court
In my last post, I discussed the effect on Colorado’s Taxpayer’s Bill of Rights (TABOR) of the Supreme Court’s ruling in Arizona State Legislature v. Arizona Independent Redistricting Comm’n. In this post, I explain why the Arizona case was decided correctly.
Some people may be surprised that I think the holding was correct. I’m politically conservative and the case was brought by a Republican state legislature. The decision was 5-4, with the more liberal justices on the winning side and the more conservative justices dissenting. In his own dissent, Chief Justice Roberts was kind enough to cite one of my own works (although on a point only distantly related to the result). And conservative complaints about the case have been strenuous.
But in this column I try to tell it as it is, and in this instance I think the liberal justices clearly had it right.
The basic issue was the meaning of “Legislature” in the clause of the Constitution that provides that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof . . . . ” (Article I, Section 4, Clause 4; abbreviated I-4-1) That provision is sometimes called the Election Clause. A better name for it is the Times, Places and Manner Clause. We’ll use the latter term here.
Now, it is well established—based on case law and on the Constitution’s original legal force—that part of prescribing the “Places. . . of Elections for . . . Representatives” is drawing the congressional districts within a state.
For many years, the Arizona state legislature drew Arizona congressional districts, and many people claimed those districts often were gerrymandered. The state’s voters, therefore, opted to transfer the job to an independent redistricting commission, a decision made by voters in several other states as well.
Arizona state lawmakers sued, claiming that the term “Legislature” in the Constitution always means the specific representative assembly of a state. They claimed, in other words, that the people had acted unconstitutionally, and that they could not move congressional district-drawing from the state legislature to a commission.
The Arizona Independent Redistricting Commission responded by arguing that sometimes the Constitution uses the word “Legislature” to mean the general legislative power of the state. In this case, the commission argued, the people, through the initiative and referendum process, had acted as the “Legislature.” Just as the people could deputize one assembly to do the job, the people could deputize another (the commission).
The Supreme Court held that in this case the term “Legislature” meant the general legislative power of the state: Arizona voters, as the supreme state legislative power, had acted constitutionally.
The Court had case precedent on its side. Earlier cases had ruled that, although in some parts of the Constitution (e.g., Article V), the term “Legislature” means only the representative assembly, in the Times, Places and Manner Clause it meant the general legislative power, however the people of a state wish to exercise it.
Of course, the Supreme Court’s precedents do not always reflect the true, original meaning of the Constitution. In this instance, though, they do. Here’s why:
* Although there is a presumption that the same word in different parts of the Constitution means the same thing, there are important exceptions. For example, in my book, The Original Constitution, I show how the word “property” in Article IV means “real estate” while same word in the Fifth Amendment means both real estate and personal property.
* Similarly, the Constitution uses the term “Congress” in a dual sense. Sometimes it means only a specific assembly. (Examples include I-1; I-4-2; and Article V.) But on other occasions the Constitution employs the word “Congress” to mean the general legislative power. (See, for instance, I-8 and III-3-2). When “Congress” acts as a specific assembly rather than as the legislature per se, it acts by an ad hoc resolution, not by a law, and without any need for presidential signature. When Congress acts as the federal legislature, it enacts laws, which generally have to be signed by the President.
The fact that the Constitution employs this double usage for the federal legislature implies the same double usage for state legislatures.
* Founding era legislative practice also supports this view. The Constitution provides that presidential electors for each state are appointed “in such Manner as the Legislature thereof may direct.” When the legislature of South Carolina, for instance, first provided for selection of presidential electors, it did not do so by an ad hoc resolution. It did so by formal legislation.
* in fact, Founding Era election rules universally were established by acts of ordinary legislation, not by ad hoc resolution. The Times, Places and Manner Clause was written against a long background of formal election legislation, both in America and in Britain.
* How the people choose to allocate the legislative power of the state is entirely up to them, as James Madison and other Founders recognized. Indeed, at the time the Constitution was adopted, several states provided for slices of the legislative power to be exercised by entities other than legislature—by the governor, by executive councils, and by the people themselves.
Finally, here’s a political point: As this case illustrates, in Arizona and some other states, pro-freedom citizens sometimes attack the initiative and referendum process and demand curbs on it. This is a mistake.
It is politically foolish (you don’t please the voters by attacking them), but it is also wrong as a matter of principle.
In our country, the people are the rightful source of all political power. A “republic,” as the Constitution uses the term, is a government based on the people’s will. Instead of attacking the people’s right to decide, our time is best spent persuading them to make the best decisions possible.
Filed under: All Postings, TABOR, The Founding, supreme court
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.
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.
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.”
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* 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.)