This article originally appeared at the American Thinker.
One of the constitutional disputes triggered by the Affordable Care Act, Obamacare, is whether by substituting new material for the original House-passed bill (H.R. 3590), the Senate exceeded its constitutional power to amend the original measure. This, in turn, has provoked a debate over whether the Founders considered complete substitutes to be valid amendments.
A recently-republished piece of evidence suggests that they did.
The Constitution’s Origination Clause requires that “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.” Because the final version of Obamacare imposed a variety of taxes, it unquestionably was a “Bill for raising Revenue.”
Obamacare’s taxes, appropriations, and health-care regulations did not exist in the House-passed version of H.R. 3590. That incarnation of the bill was only a few pages long and was limited to making minor adjustments to the Internal Revenue Code irrelevant to health care. Under the guise of amendment, the Senate gutted the original language and substituted over 2000 pages of Obamacare.
Some writers argue that complete substitutions were not considered valid amendments during the Founding Era, while others contend that they were. Last year, I undertook a wide-ranging investigation into the subject that will be published within the next few weeks by the Harvard Journal of Law and Public Policy. The article is summarized at length here.
I found that complete substitutions may have been unknown in the British Parliament, one source of the Constitution’s House-origination rule. I also found, however, that they were occasionally used in several states between Independence and the time the Constitution was ratified, and that they were considered valid amendments in those states.
This year, the Wisconsin Historical Society issued two new volumes of the magisterial Documentary History of the Ratification of the Constitution. Those volumes cover the debate over the Constitution waged in Maryland from 1787 through the end of 1788.
The first of the volumes reprints a pamphlet written in favor of the Constitution by “Aristides,” the pen name of jurist Alexander Contee Hanson. Hanson was a respected figure in Maryland, and his pamphlet was read widely both in that state and in Virginia. At one point he addressed the question of whether the Constitutional Convention exceeded its authority on the (substantially false) assumption that the delegates’ commissions had been limited to proposing amendments to the Articles of Confederation. Hanson argued that proposing a substitute was a recognized form of “amendment:”
Amendment, in parliamentary language, means either addition, or diminution, or striking out the whole, and substituting something in its room.
Hanson’s assertion is particularly relevant to the Constitution’s original meaning because his own state legislature is not among those offering contemporaneous evidence of complete substitutions. Hanson was reflecting, in other words, an understanding that extended beyond his own state’s boundaries.
Unfortunately for advocates of Obamacare, the validity of complete substitutions as “Amendments” does not resolve the issue of constitutionality. During the Founding Era, even complete substitutes had to be connected to the subject matter of the original bill—or, in modern language, “germane” to the original. Otherwise, they were new bills, not valid amendments.
For reasons documented in my article, H.R. 3590 as passed by the House qualified constitutionally as a “bill for raising Revenue” (even though it was revenue-neutral) because it amended the tax code. Under Founding-Era rules all the Senate’s revenue changes were germane to the original, and therefore valid. However, the Senate-added appropriations and regulations were not germane to the subject of revenue. By including them, the Senate exceeded its authority to amend a “bill for raising Revenue. This means that by the Founders understanding of the Origination Clause, those additions were unconstitutional and void.
Are you a journalist or other citizen who needs a quick overview of the Constitution’s Article V “Convention for Proposing Amendments?” Get our issue paper, “Curing Federal Dysfunction by Constitutional Amendment: A Primer.”
It’s a vital resource for anyone who wants a quick and accurate overview of the process.
It explains what a Convention for Proposing Amendments is—and is not. (It is not, for example, a “constitutional convention.”)
The issue paper also explains why the procedure is in the Constitution, and how it works. And it corrects misconceptions prevailing even among scholars who have not researched the topic themselves.
Although the Constitution is not, strictly speaking, a common law document, it was written against the backdrop of common law.
The term “common law” has various meanings, but the meaning I’m using here is the system of case law we inherited from England, including the bodies of jurisprudence known as admiralty and equity.
That system follows certain identifiable principles—governing values. These principles largely disprove the modern legal academic cant that common law is merely a vehicle for public policy, privilege and power.
The traditional understanding of common law was that it was rooted in the customs of the people, and that the task of a judge was to discover the rules applicable to the case before him, and then apply those rules to the circumstances. During the 20th century, however, a new orthodoxy came to reign in legal academia (primarily law schools) to the effect that judges actually make up the rules of common law as they go along. In other words, judges are inevitably mini-legislators who, under cover of applying precedent, often create rules and results to promote their own opinions of the best “public policy.” You may recall that Justice Sotomayor indirectly expressed this view shortly before she was confirmed to the Supreme Court.
This orthodoxy (so-called “legal realism”) is advanced as a sort of self-fulfilling prophesy for those who promote judicial activism—i.e., those who want judges to be maxi-legislators.
A more extreme outgrowth of the 20th century orthodoxy was that common law decisions are arbitrary and that common law rules are so malleable they really don’t amount to true rules at all. The course of the common law was said to be “indeterminate” and based ultimately on mere power. This view proved convenient to Marxists and others who wished to discredit the judicial system.
In 1992, my treatise, Modern Law of Deeds to Real Property was published. The book was written during the year I served as a visiting law professor at the University of Utah.
The publisher was Little, Brown and Co.—then an old-school legal publishing firm that had produced a line of classic treatises extending back to the early 19th century. Joseph Story, the great Supreme Court justice and legal scholar, wrote for Little, Brown.
Anyway, the law of property deeds is mostly common law aided by statutes usually written to supplement (rather than wholly displace) common law. Accordingly, a large portion of Modern Law of Deeds consisted of the distillation of rules and principles from hundreds of cases.
Real property was only one of the common law legal fields I had studied intensively. I had also practiced, taught, and/or researched in the law of remedies, contracts, oil and gas, homeowners associations, torts, trusts, wills, agency, and fiduciary relationships. And I had taught and written in legal history. This is a far greater range of topics (particularly common law topics) than most law professors pursue. Let’s just say I did not spend much time going out for drinks.
Perhaps I could be charged with dillettantism, but for better or worse by the time I wrote my book I had read thousands of case decisions. At some point I became convinced that the modern orthodoxy about the common law was wrong.
I concluded that, as a practical matter, even most modern judges do not invent rules to promote public policies or to satisfy their power lust. The traditional view was the one closest to the truth: In the real world, judges, especially judges on trial courts and intermediate appellate courts, seek justice. They usually “discover” rules by deducing them from custom, practice, precedent, and a limited number of fixed principles. This occurs even in some cases in which they feel compelled to justify the result by reciting public policy.
So I devoted the last chapter of my book—Chapter 19—to explaining those principles.
I wish I could say the chapter was met with vigorous debate. I can’t. As has happened other times during my career, my conclusions were greeted with silence. And although in many other instances, the silence has ended in adoption (with or without attribution), in this instance it did not.
No doubt there were several reasons for this, but I think one was that very soon after my book came out, Little, Brown and Co. sold its legal division to Aspen Publishing. Aspen promptly pulled all the Little, Brown treatises off the market. Shortly after my book appeared it was out of print—among the last of a distinguished line. It paid me virtually no royalties and, what is more important, very few people read it.
But at least I have the copyright, and Chapter 19 of Modern Law of Deeds to Real Property has been buried long enough. This link provides Internet access to that chapter. The language is technical, and most readers will find it tough going. But I still believe it is a more accurate description of the principles of Anglo-American common law than the theories widely propagated in law schools today.
Filed under: All Postings, Article V, The Founding, supreme court
Some conservative groups have become known for uncompromising opposition to the Constitution’s convention method of proposing constitutional amendments.
They may think they are protecting the republic. But it turns out that they are mostly carrying water for the liberal establishment.
New research shows that nearly all the arguments of convention opponents merely repeat disinformation first propagated by the liberal establishment in the mid-20th century. The goal of this disinformation campaign was to disable an important check on federal overreach.
The Founders created the convention method of proposing amendments to enable the people, acting through their state legislatures, to offer corrective changes if the federal government ever became unresponsive, abusive or dysfunctional. When two thirds of the legislatures pass resolutions demanding it, Congress must convene a task force known as a “convention of the states“—or, in the language of the Constitution, a “Convention for proposing Amendments.” If that task force does propose amendments, they become law only if ratified by three fourths of the states.
As the federal government grew larger and more abusive during the 20th century, conservatives and moderates repeatedly suggested constitutional amendments as a partial cure. They included proposals to reverse certain Supreme Court decisions, such as Roe v. Wade; to otherwise restrict judicial activism; and to impose term limits and require a balanced federal budget.
To blunt the these amendment drives, leading figures in the liberal establishment organized a disinformation campaign against the convention process. Participants in the campaign included liberal Senators such as Joseph Tydings (D.-Md.) and Robert F. Kennedy (D.-NY); several sitting and former Supreme Court justices; members of the Kennedy circle, such as Theodore Sorensen and Arthur Goldberg; and liberal academics perched at prestigious universities, such as a Harvard and Yale.
The apparent goal was to disable the convention process as a constitutional check on the power of the federal government.
In speeches and articles, the participants promoted several key talking points. Most of these talking points were contradicted by law or historical precedent. Some of them even contradicted each other.
But truth was not the goal. The goal was political. The principal talking points were:
• Little is known about how the process is supposed to operate;
• A convention for proposing amendments would be an uncontrollable “constitutional convention;”
• A convention for proposing amendments could be controlled or manipulated by Congress under the Constitution’s Necessary and Proper Clause; and
• A convention for proposing amendments could unilaterally impose radical constitutional changes on America.
If these claims sound familiar— well, they are. Some conservative organizations swallowed them, hook, line, and sinker and continue to tout them today, apparently unaware of how they were fabricated and why.
The 20th century liberal disinformation campaign was strikingly successful. It derailed all drives to curb the Supreme Court’s liberal activism. It blocked efforts to control federal debt or restrain federal spending. It left an increasingly dysfunctional Congress with an absolute monopoly of the amendment process. And it pitted—and continues to pit—conservatives against conservatives.
Suppose you are in a general partnership with Smith. Smith handles day-to-day management, subject to your approval. But recently, he’s been acting somewhat high-handedly.
Without consulting you, Smith is busy negotiating a contract with Macropus International Corp., a company notorious for unscrupulous practices. Smith has made it clear he plans to bind your firm whether you like it or not. You know that under the law of general partnerships, unless you speak up Smith will be able to lock you and your firm into a very bad deal. This is because, as a rule, any partner in a general partnership has authority to bind the other partners and their firm to agreements with third parties.
Even if you raise your concerns to Smith personally and tell him not to sign anything without consulting you first, you still could be bound to Macropus if Smith disregards your admonition. The legal doctrine of “apparent authority” provides that if one person (you) puts another (Smith) in a position that communicates to third parties (such as Macropus) that the second person (Smith) can bind the first (you), the third party (Macropus) is entitled to assume that he can.
In these circumstances, the only way you can protect yourself is to notify Macropus before the contract is signed that Smith does not have authority to enter into it.
That’s why the letter from 47 U.S. Senators to the leaders of Iran was absolutely necessary and appropriate. Indeed, all 100 Senators should have signed it.
Although the law of general partnerships is not applicable directly to international relations, it helps us understand the issues here. Under our Constitution, the President is the “managing partner” in the treaty process: He is charged with negotiating and formally “making” treaties. But the Founders made the carefully considered decision to require approval by two thirds of the Senate. This was a change from the British system, under which the king could make treaties unilaterally, and rendered the Senate a partner in the process. And if money must be appropriated to finance the pact, the entire Congress becomes a partner in the process as well.
Like Smith in negotiating with Macropus, President Obama signaled that he planned to bypass the Senate. From the Iranian point of view, this was not necessarily a problem, since, as Iranian Foreign Minister Mohammad Javad Zarif has pointed out, the U.S. sometimes acquiesces to executive agreements without Senate approval.
To be sure, as a matter of correct interpretation the President’s constitutional authority to bind the U.S. by executive agreement is quite limited, but the Iranians cannot be expected to understand the nuances of American constitutional and judicial history. This is illustrated by Zarif’s further suggestion that an agreement negotiated by Obama alone would represent a U.S. “obligation.” He is mistaken, of course; a country is not obligated by an agreement when the other party knew the putative agent who entered the agreement actually had no authority to do so.
Under the circumstances, Iran could assume that the President could bind the U.S. to an agreement unless the Senate, or at least a large number of Senators, spoke up. Otherwise, Iran could, with some justification, claim a breach of international law if the United States refused to be bound by the deal between Iran and the Obama administration. As a result of the Senators’ letter, however, Iran is on formal notice of the truth.
For many years, opponents of a convention for proposing amendments argued that the law governing such a convention was unknowable because the only precedent for such a gathering was the Constitutional Convention of 1787.
This was always an ignorant claim, since even high schoolers learn that Annapolis, Maryland hosted a “convention of states” the previous year. Russell Caplan’s book, Constitutional Brinksmanship, published nearly three decades ago, documented several other interstate and inter-colonial conventions as well. It was clear that those claiming the “only precedent” was the 1787 gathering had not done their homework.
In 2010 I uncovered more multi-state conventions, and 2013 published an article that listed 32 such gatherings from 1689 through 1787. Twenty-four of these were regional—or, to use the Founding-Era word, “partial”—conventions. The other six were national, or as the Founders would say, “general.” In that article I also analyzed in detail the records of fourteen of these conclaves. All of them employed pretty much the same set of protocols.
In addition, on this website I’ve discussed several conventions of states occurring after the Constitution was adopted: regional conventions at Hartford (1814), Nashville (1850), and Santa Fe (1922), and a general convention in Washington, D.C. (1861). The last of these was convened to draft a constitutional amendment. Yet, believe or not, some people are still asserting that “We have only one Precedent, the Convention in Philadelphia in 1787!”
Now there’s more. I recently obtained the journal for still another convention of states. Some have claimed that the proceedings for that assembly were never recorded, or perhaps had been lost. But I found them within the first volume of the journals of the Congress of the Confederate States of America.
The convention in question was held in 1861 in Montgomery, Alabama. It included only those southern states that failed to attend the convention in Washington, D.C. And while the purpose of the Washington meeting was to head off the Civil War, the purpose of the Montgomery meeting was much less desirable: to write a new Confederate Constitution and to serve as a provisional government until elections were held under that Constitution.
However regrettable its purpose, though, there is no denying that the Montgomery Convention is useful precedent. It demonstrates yet again the consistent understanding throughout our history of the law and rules governing multi-state conventions. While unionist states were applying the standard protocols at their gathering in Washington, seceding states were applying almost exactly the same set of protocols in Montgomery.
Here are some other facts about the Montgomery Convention of 1861:
* It was called by South Carolina and by Alabama—South Carolina sent out the initial invitation and fixed the topic. Alabama fixed the time and place.
* The other states participating were Mississippi, Louisiana, Florida, Georgia, and (belatedly) Texas.
* The calls and acceptances agreed on the two basic missions: (1) write a constitution for the seceding states and (2) serve as a provisional government until elections were held under that constitution.
* The calls and acceptances did differ in minor ways. Possibly the most important was that some stated that the new Confederate constitution should be based on the U.S. Constitution, while others omitted that term. This discrepancy did not prevent the meeting, and seems to have caused no problems.
* The convention began on February 4, 1861, and eventually split its functions to fit its two missions. From February 28 to March 11, it acted as a constitutional convention and wrote a new basic charter. Throughout its entire timespan it served as a provisional government (much as the Second Continental Congress had done for the United States from 1775 to 1781).
* The call suggested (and it was only a suggestion) that the convention proceed by one state/one vote, but that each state delegation consist of as many commissioners as the state had Senators and Representatives in the Federal Congress. The other states generally agreed to this formula.
* The convention did, in fact, proceed under a one state/one vote rule, as has every other interstate convention for which the rule of suffrage is recorded. But the size and composition of each state committee (delegation) remained a prerogative for each state to determine.
* The group elected its own officers and adopted its own rules. Like other all other conventions, it elected its president from among its members: Howell Cobb of Georgia. Like nearly all other conventions, it chose a non-delegate as secretary—Johnson J. Hooper of Alabama.
* The convention stayed within its two missions, as defined by its call.
* Upon completion of those missions, the gathering adjourned sine die (permanently).
This article was first published at the American Thinker website.
Many commentators and politicians have attacked the Supreme Court’s 2010 case of Citizens United v. Federal Election Commission for holding that citizens do not surrender their First Amendment rights when they organize under state corporation law. The Vermont state legislature has even adopted an application for a federal convention to propose a constitutional amendment to “overturn the Citizens United decision.”
Almost no one seems to know that the Citizens United case contained another ruling in addition to the one on corporate issue campaigns. The other ruling should be just as controversial, for it upheld a broad congressional attack on the privacy of those exercising First Amendment rights. Yet the critics have been almost entirely silent about that part of the case.
In the second ruling, the Court sustained, over Justice Thomas’ sole dissent, a federal mandate that political issue committees publicly reveal the names of major donors. The Court did so although disclosure can lead to retaliation and personal harassment of individuals exercising First Amendment rights. In other cases, the Court has voided disclosure requirements that can result in free expression being unconstitutionally “chilled.” But the Court refused to do so in Citizens United.
The NYU Journal of Law and Liberty has just published an article in which I examine the question of whether forced disclosure of contributors to issue campaigns is consistent with the First Amendment, as the Founders understood it.
Here are my principal findings:
* Under the First Amendment, political advertising is best analyzed as a branch of “the freedom . . . of the press” rather than “freedom of speech.”
* During the Founding Era, the terms “liberty of the press” and “freedom of the press” were exact synonyms, with the former somewhat more common.
* Despite some peripheral uncertainties, the founding generation well understood the core meaning of “freedom of the press.” In other words, it was not a vague or indefinable term.
* During the Founding Era, the near-universal custom of those writing on political subjects of all kinds was to write either anonymously or under assumed names. Printers were expected to respect their contributors’ privacy by not revealing their true identity without explicit permission.
* There were important and completely legitimate reasons for author privacy, all of which continue to be valid today. In fact because of intervening changes in defamation law, those reasons may be stronger now than they were during the founding era.
* The historical record contains explicit statements that assert, or inescapably assume, that “freedom of the press” includes the right to conceal one’s identity. I found only one claim that forced disclosure was consistent with freedom of the press, but it referred to voluntary disclosure by a private printer, not government-forced disclosure.
* Under founding-era law, the right to privacy of identity ended in specific cases of “abuse.” When an author appeared to be guilty of one or more specific offenses, a prosecutor or other plaintiff could require the printer to disclose the name. These offenses included, but were not limited to, defamation, sedition, and treason. In the absence of such an offense, the author’s name was private and none of the government’s business.
A 1782 incident demonstrates the prevailing consensus:
An author had placed an article in a Philadelphia newspaper criticizing state government. Hearing that the editor had revealed the name of the critic to the governor (then William Moore), another writer accused the editor of “treachery.”
The editor felt compelled to respond. He explained that, although the governor had asked for the critic’s identity, the governor had asked for it only, “if you are at liberty to mention his name.”
In response to the governor’s request, the editor then asked the author whether the editor had permission to reveal his identity. The author responded, “You are at liberty to give my name to his excellency.” Only then did the editor disclose it.
This story shows how zealously author privacy was guarded during the Founding Era. Everyone assumed that freedom of the press incorporated a presumption of non-disclosure, even if the author had not asked to be kept anonymous. Editors and printers, as well as government officials, were subject to this norm.
Reading the historical record left me with the conviction that the Founders would have found mandatory disclosure of contributors to political advertising an outrageous violation of privacy — and certainly inconsistent with freedom of the press.
Filed under: All Postings, ObamaCare, The Founding, supreme court
Chief Justice John Marshall (in office 1801-1835) is often identified with an expansive “big government” interpretation of the Constitution. Fans of big government cite him as an ally; opponents as an enemy.
This view of Marshall is a caricature. It is true that Marshall was a Federalist—he occupied a place on the political spectrum of his day closer to Alexander Hamilton than to Thomas Jefferson. But to say that he subscribed wholly to Hamilton’s constitutional views would be untrue. It is even more inaccurate to claim him as a justice who would uphold the constitutionality of the modern federal regulatory welfare state. Marshall was far more moderate than that.
The caricature of our greatest Chief Justice was created in his own time by his political opponents. In the modern era it has been nurtured by “progressives” who claim Marshall for their version of the Constitution. Among the latter group are Supreme Court justices who quote his words out of context, book authors who omit critical passages from his opinions, and law professors unfamiliar with other things Marshall wrote and with the law and language of his time.
In 2011, I authored an article correcting the record. I also co-authored another with the Independence Institute’s own Dave Kopel, explaining why Marshall would have held Obamacare to be unconstitutional.
Now Dr. Thomas K. Lindsay of the Texas Public Policy Foundation has joined in. A new contribution by Dr. Lindsay relies mostly on my research, but he introduces it to a new and much larger audience. You can read Dr. Lindsay’s essay here.
Article I, Section 10, Clause 3 (I-10-3) of the Constitution forbids states from imposing any “Duty of Tonnage” without the consent of Congress.
During the Founding Era, tonnage was a levy imposed on the cargo capacity of ships entering or leaving harbors. As the Constitution’s words indicate, it was a species in a larger class of financial exactions known as duties.
If tonnage was imposed to raise money for government, it was (by usage prevalent in America) an indirect tax. If imposed only to, say, pay for harbor upkeep or inspection fees, it was a regulation of commerce but not a tax.
Several states, including Virginia and Massachusetts, imposed tonnage duties during the Confederation Era. They lost that right when the Constitution was adopted. Instead, tonnage was levied by the federal government pursuant to its power under I-8-1 to “lay and collect Taxes, Duties, Imposts and Excises.” Because, however, Congress was forbidden to tax exports (I-9-5), it could lay tonnage on ships engaged in international trade only if those ships were entering (not leaving) an American harbor.
Pursuant also to I-9-6, tonnage duties had to be uniform throughout the United States. Congress could not discriminate among harbors by imposing heavier rates in some places than others.
Filed under: All Postings, The Founding, supreme court
Article I, Section 8, Clause 1 of the Constitution reads as follows:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the Common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.
The Constitution also requires that “direct taxes” be apportioned among states by population. The implication is that excises are not among those levies deemed “direct taxes”—so that excises must be uniform, but need not be apportioned.
At the time the Constitution was written, an excise was universally understood to be an “inland” (domestic) tax on the consumption of commodities, specifically on manufactured goods. To cite only a few of the many corroborating definitions:
* Thomas Sheridan’s 1789 English dictionary defined “excise” as “A tax levied upon commodities.”
* George Nicholas at the Virginia ratifying convention described excises as “a kind of tax on manufactures.”
* In Federalist No. 33, Alexander Hamilton wrote of “recourse . . . to excises, the proper objects of which are particular kinds of manufactures.”
Typically taxed by excises were alcoholic beverages, carriages, silks, and certain other items then considered luxuries, such as coffee, chocolate, and tea.
As an indirect tax, an excise was one kind of levy known generically as a “duty.”
By contrast, taxes on individuals (“capitations”), property, businesses, income, and the ordinary business of life were considered “direct.” The Constitution required them to be apportioned among the states.
In 1937, the Supreme Court decided Charles C. Steward Machine Co. v. Davis, in which the Court ruled that the Social Security tax on employers was an “excise,” and therefore did not have to be apportioned among the states. The Court cited three pre-constitutional tax statutes that were not imposed on commodities but, the Court claimed, were excises. All of the Court’s citations were bogus: None of the statutes were excises. Two were head taxes. The other was a non-excise duty.
The Steward Machine case illustrates the incompetent, and sometimes mendacious, methods the Supreme Court employed during the 1930s and 1940s—the very nadir of its history.*
In fact, the tax on employers was a classic direct tax and should have been apportioned among the states as Congress previously had apportioned other direct taxes.
Note: This column is based on research for my forthcoming article, tentatively entitled, What the Constitution Means by “Duties, Imposts, and Excises”—and Taxes (Direct or Otherwise)
* * * *
* Footnote: Some would argue that the Dred Scott case of 1857, a similarly mendacious decision, represented the Court’s nadir. But that was a single horrid case issued by an otherwise competent bench. At least on constitutional subjects, the Court during the 1930s and 1940s issued one poorly-crafted decision after another.