Many opponents of an Article V convention seem to think that it would be a nearly unique event, for which the “only precedent” would be the 1787 constitutional convention. Some even go so far as to oppose non-Article V gatherings among the states.
As regular readers know, the idea that a convention of states would be a nearly unique event is pure balderdash. Meetings among sovereign states (and before Independence, American colonies) on constitutional and other issues, have been a staple of American life for over 300 years. I’ve counted at least 35 of them since 1689—21 before Independence, ten in the first 11 years of Independence, and another four since the Constitution was ratified (1814, 1850, 1861, and 1922). Several of these conventions proposed constitutional changes.
In addition, the states have often commissioned problem-solving task forces that look a lot like conventions even if they don’t comply with all the technical criteria. Here’s a modern example:
The Delaware River Basin Advisory Committee was a task force consisting of commissioners from four states (Delaware, Pennsylvania, New York, and New Jersey) and two cities (New York and Philadelphia). In 1959 and 1960, it negotiated the Delaware River Basin Compact. The states arranged this compact largely to preempt federal efforts to control the waters of the Delaware River. Despite being upstaged, Congress ultimately approved the deal, as required by Article I, Section 10 of the Constitution.
One could argue that Delaware River Basin Advisory Committee fits all the criteria for “a convention of states.” Participation by the cities certainly didn’t disqualify it as such: Representatives from other governmental units participating in multi-state conventions, while unusual, was not unprecedented. But because of its informality and the length of its existence (handling several tasks over several years), I’d prefer to call the Delaware River Basin Advisory Committee a “quasi-convention.”
Yet it certainly represents yet another event in the long history of conventions and convention-style meetings among states.
In other words, for an Article V convention, we have precedents by the bushel. For the legal and practical implications of this, see this prior posting.
Filed under: All Postings, The Founding, supreme court
The Harvard Journal of Law and Public Policy has just published my article on the original meaning of the Recess Appointments Clause. It reports that the Constitution uses the term “the Recess” to refer only to formal breaks between sessions of the Senate, not to informal intra-session breaks. It also reports that a vacancy “happens” only when it is created during the Recess. It is not sufficient for the vacancy to be created when the Senate is in session and then continue into the recess.
These conclusions are based on detailed, impartial, study of Founding-Era legislative and other governmental practice—apparently the first article on this topic to report the results of such a study.
Filed under: All Postings, ObamaCare, The Founding, supreme court
Does a state have the right to nullify federal statutes the state considers unconstitutional? This depends largely on how you define “nullification.” It also depends on what you mean by “right” and what kind of document you understand the Constitution to be. In other words, it depends on your premises.
Unfortunately, people often discuss—and debate, and attack each other over—the merits or demerits of nullification without making their premises clear. The result is much quarreling among people who are fundamentally on the same side.
Historically, “nullification” was defined quite narrowly. It referred to a formal ordinance of a state legislature or state convention that declared a federal law void within the boundaries of the state. The state might or might not make the ordinance conditional, and it might or might not impose criminal or civil penalties on persons attempting to enforce the federal enactment. We can refer to this as the narrow, or historical, definition of nullification. It is traditionally credited to the Kentucky Resolutions of 1798, drafted by Thomas Jefferson.
Today the term often is used in a much broader sense by advocates, by opponents, and often by the press. So used, it refers as well to other mechanisms a state may deploy to assert its prerogatives against federal overreaching—that is, to other methods of what James Madison called “interposition.” The Tenth Amendment Center often uses “nullification” in this broad way.
Thus, “interposition” (by Madison’s definition) or “nullification” (by a broad definition) can refer to state actions such as:
* State legislative and executive expressions of opinion against a federal measure;
* State lobbying pressure to get the measure changed or repealed;
* State-sponsored lawsuits against federal actions deemed unconstitutional;
* Political coordination among states to promote change or repeal;
* Refusal of states to accept federal grants-in-aid attached to obnoxious conditions;
* Refusal of states to allow their officials to cooperate in the execution of federal programs;
* Refusal of states to render a particular activity that is a federal crime illegal under state law as well (e.g., the use of marijuana in Colorado and Washington); and
* The state application and convention process of Article V.
Constitutional wonks will recall that Madison anticipated most of these in Federalist No. 46, and included the others in later writings.
All of the interposition methods listed above are perfectly legal and constitutional. For example, there is certainly no requirement that a state duplicate federal crimes in its own statute books, and the Supreme Court has said repeatedly (and held expressly in the NFIB v. Sebelius, the Obamacare case) that the federal government may not “commandeer” state officials in service of federal policy.
Clearly, calling these modes of interposition “nullification” does not render them unconstitutional or wrong.
On the other hand, there are methods of interposition that the Constitution does not authorize. In other words, they are extra-constitutional. Nevertheless, the Founders believed that natural law reserves them to the people in some circumstances.
The most dramatic illustration of an extra-constitutional remedy reserved by natural law is the right of armed revolution, which Madison also discussed in Federalist No. 46. He later stressed that the people should resort to extra-constitutional methods only when the constitutional compact has been irretrievably broken.
Both historically and today, the most serious nullification disputes center on whether states enjoy the constitutional prerogative of adopting formal nullification ordinances. In other words: Does a state have the constitutional power to void what it perceives to be an unconstitutional federal law?
Let’s try to isolate some of the issues:
First: It is clear that in the extreme conditions justifying revolution, resistance need not be conducted solely by private individuals or groups. States may participate officially, as the colonies/states did during the years 1775-83. This is the scenario Madison presented in Federalist No. 46. Obviously, in these circumstances a state may declare federal law void within its boundaries. But this power flows from natural law, not from the Constitution (which in revolutionary circumstances, you recall, would have been irretrievably broken).
Second: What of our current situation—that is,when there is no revolution, the union continues, federal laws are still widely obeyed, and the Constitution is still largely in operation? In those circumstances, may a state declare void a judicially-sustained federal law that the state deems unconstitutional? The answer to this question turns largely on your conclusion as to the fundamental nature of the Constitution.
Third: What is that fundamental nature?
The Constitution has been characterized as:
* A compact (i.e., contract) to which only the states are parties, by which the states granted power to federal officials. This is the pure interstate compact theory, expressed in Jefferson’s 1798 Kentucky Resolutions.
* A “compound” compact, created by the people but to which the states are parties. This was apparently Madison’s post-ratification view (see, for example, the equivocal wording about the nature of the Constitution in his Notes on Nullification), and may have underlain his 1798 Virginia Resolution.
* A popular grant: that is, a grant of power from the people—mostly to federal legislators and officials, but in some cases to state legislative authorities (as in the Time, Places, and Manner Clause) or to state legislators (as in Article V). This view was expressed by some of the seven state legislatures that formally repudiated the Kentucky and Virginia Resolutions. It also was Chief Justice John Marshall’s conclusion in the famous case of McCulloch v. Maryland (1819).
You can make the best case for narrow-definition nullification as a constitutional prerogative if you adopt the first of the three alternatives. The basic idea is that if other states have broken the compact by letting their agent (the federal government) run amok, then aggrieved states (compacting parties) have the right to protect themselves.
On the other hand, if you adopt the popular grant theory it is much more difficult to justify nullification. This is because the people, not the states, are the parties. By this analysis, the states may, as agents of the people, protest, sue, and protect their own governmental operations, but they may not void federal actions unilaterally, except by their legislators using their delegated power to amend under Article V.
And if you subscribe to Madison’s mixed theory, then, as Madison pointed out in 1830 and again in 1834, there also are conceptual problems with considering nullification as a constitutional right rather than just a natural law remedy.
Fourth: So, again, we must ask, “Which of the three theories of the Constitution is correct?”—state compact, compound compact, or popular grant?
The answer to this question depends on the dominant understanding of (or meaning to) the people who ratified the Constitution between 1787 and 1790.
The answer does not depend on what Thomas Jefferson or James Madison wrote in the Resolutions of 1798, or on what other states proclaimed when they rejected those Resolutions. Even more clearly, the answer does not depend on what Chief Justice Marshall concluded in 1819, or what Madison, John C. Calhoun, or anyone else said in the 1830s.
Anyone who has made an honest study of the ratification has to offer conclusions on this particular subject with humility. The ratification record can be confusing and the prevailing meaning at the time can be hard to reconstruct. For example, it is not sufficient to note that the Founders referred to the Constitution as a “compact.” This is because they used that word to refer both to governments established by states (confederations) and to governments established among the people alone.
Nor is it sufficient, as do some writers popular among constitutionalists, to focus only the ratification debates within selected states. You have to view the wider picture. Similarly, it is insufficient to rely merely on a few key Founders, such as Madison, Hamilton, or Jefferson. There were 1648 ratifying delegates—not just two or three—and many had important things to say. So did the orators, newspaper writers, and pamphleteers who influenced them. Jefferson was a great man, but his opinions on the meaning of the Constitution have little value, since as our ambassador to France, he did not participate in the framing or ratification.
Nor can you rely only on the express language of the ratification debate. You have to get into the heads of the ratifiers by reading what they read, and understanding their jurisprudence and their customs.
This is not the place to get into the details (this posting is already too compendious). Suffice to say that long study of the ratification record convinced me that most of the ratifiers probably thought of the Constitution as a grant from the American people rather than as a compact among states, pure or compound (as I once thought). I set forth several of my reasons in The Original Constitution: What It Actually Said and Meant.
At this point, I’ll explain just one reason. (But for for another see here.) It has to do with how 18th century English speakers drafted and read legal documents.
The Constitution famously begins with the phrase “We the People.” States are not mentioned. Now, the script and the placement of that phrase was no accident. It followed the custom by which legal documents granting power listed the grantor first. Thus, in royal charters granting rights and privileges to citizens, the king—that is, the grantor—always appeared first in large and ornate script. (A wholly typical example is the royal charter of Dartmouth College.) Although the Articles of Confederation had given that placement to the states, the Constitution afforded it to the people alone.
How do we know the delegates to the ratifying conventions caught the implications of this? Because some of them said so. For example, William Findley, an Anti-Federalist spokesman at the Pennsylvania ratifying convention, observed:
“In the Preamble, it is said, ‘We the People,” and not ‘We the States,’ which therefore is a compact between individuals entering into society, and not between separate states enjoying independent power and delegating a portion of that power for their common benefit.”
And Findley’s leading adversary at the convention, James Wilson, agreed with him on this point.
Anti-Federalists not only understood, they objected vehemently. Patrick Henry, chief Anti-Federalist at the Virginia ratifying convention, demanded to know: “Who authorized [the Framers]to speak the language of, We, the people, instead of, We, the states?”
As events turned out, the delegates elected to represent the people of Pennsylvania and Virginia decided to accept that language. The Virginia delegates even recited in their ratification instrument that “the powers granted under the Constitution [are] derived from the People of the United States.” The delegates in every other state also accepted the “We the People” formulation. Incidentally, among the delegates most responsible for Henry’s defeat on his home ground were two young men named James Madison and John Marshall.
Finally: Once the pure state compact theory falls, it is very hard to justify nullification (narrowly defined) as a constitutional remedy. It remains instead a remedy reserved by natural law for when the Constitution has wholly failed—in other words, in situations justifying revolution.
Filed under: All Postings, The Founding, supreme court
“Progressives” often attack as indefensible proposals by some conservatives that states nullify federal laws those states deem unconstitutional. But “progressive” politicians now are engaged in a nullification campaign far more audacious and lawless than anything suggested by conservatives.
The latest example is the decision by Virginia’s new attorney general, Mark Herring, to join the attack on the constitutionality of his state’s legal definition of marriage. Of course, the traditional duty of a state attorney general is to defend state laws against attack, not to join the assault. This obligation prevails even if the A-G personally believes the law under question is unconstitutional or unwise. He is a lawyer. His client is the state. His client is not some disaffected interest group. He has a professional role to perform. If he’s not willing to perform it, he should get his butt out.
More serious are the decisions of the President to refuse to enforce federal laws he doesn’t like. For example, federal marijuana statutes, whatever their advisability, are currently on the books, and the Supreme Court upheld them a scant nine years ago. The Constitution imposes on the President the duty is to “take Care that the Laws be faithfully executed.” This is a constitutional commandment, not a serving suggestion. But the Obama administration has pursued an on-again-off-again, state by state, approach to enforcement. The effect is to selectively nullify statutes that were democratically enacted and judicially-vetted.
The Obama-Herring approach to “governing” goes well beyond the kind of nullification some constitutional conservatives advocate. Unlike the President, they seek to nullify only laws that they deem unconstitutional, not merely laws they think unwise. And unlike both the President and Herring, they suggest nullification through duly-adopted state legislation, not by the unilateral decision of an executive officer. (Needless to say, the Obama-Herring practice also goes well beyond President George W. Bush’s practice of issuing interpretive “signing statements,” which liberals then hypocritically assailed as improper.)
As I have noted elsewhere, the United States is suffering a break-down in official adherence to the rule of law. Arbitrary executive nullification is only one example. But executive nullification is a graphic reminder of how serious is the threat to our liberties.
It also should be a reminder to the defenders of liberty to stop fighting among ourselves.
To be sure, arguments among the Constitution’s defenders are almost all about strategy, not about goals. In many cases, however, those arguments have become filled with invective. I am not of a conspiratorial turn of mind, but I do suspect that left-wing sources help foster them. Divide et impera.
Most of the controversies turn on abstruse points of constitutional law. Those points, in turn, depend on such questions as whether the Constitution is a grant from the people or a glorified interstate compact; whether this or that nullification theory is or isn’t constitutionally justifiable under the Madison theory, the Jefferson theory, the Calhoun theory, or whatever; and what this or that Founder believed at one or another time of life. I don’t think it’s unfair to suggest that most of the combatants do not have the background or training to reach authoritative conclusions on such points. But that doesn’t deter them from fighting.
As often happens in such disputes, the participants talk past each other, and never fully understand what their opponents have to say. Much of the argument over nullification, for example, derives largely from inconsistent use of terms.
Saving the republic will require that, whatever our strategic differences, defenders of the Constitution respect each other as allies. As my friends at the Tenth Amendment Center say, “Concordia res parvae crescunt”—through harmony, small things grow.
Next week’s post will seek to clarify the nullification argument in the hope that a common terminology will reduce the field of dispute.
For over 300 years, American states (and before Independence, American colonies) have cooperated with each other as equal sovereigns to address common problems.
One device for doing so is the formal, diplomatic meeting of state delegations (called “committees”) consisting of delegates (called “commissioners”). Meetings of state commissioners may be bilateral—as when two states form a boundary commission to resolve a boundary dispute. Such gatherings also may be multilateral—that is, with three or more state committees participating. The usual label for a multi-state meeting is convention.
Most commentators on the Constitution have shown no familiarity with any multi-state conventions other than the 1787 Constitutional Convention and (sometimes) the Annapolis Convention held the previous year. Some opponents of the Article V “convention for proposing amendments” have even argued that the 1787 gathering is our only historical precedent.
The truth is dramatically different. Far from the 1787 Philadelphia convention being unique, at the time it was more like business as usual. Over the previous century, there had been more 30 conventions among colonies and states. The Constitutional Convention was the 11th held since Independence had been declared in 1776. Others had been held in Providence (twice), York Town, PA (1777), Springfield (1777), Hartford (twice), New Haven (1778), Philadelphia (1780), Boston (1780), and Annapolis (1786).
After the Constitution was adopted the states met less frequently, but they did continue to meet. The New England states convened in Hartford, Connecticut in 1814. The Southern states gathered in Nashville, Tennessee in 1850. And the states held a general convention—one to which every state was invited—in Washington, D.C. in 1861. The Washington Conference Convention, as it was labeled, was called to propose to Congress a constitutional amendment to ward off Civil War. It did produce such an amendment, but Congress failed to act on it.
There was at least one more recent gathering as well. In 1922, seven southwestern states sent commissioners to negotiate the Colorado River Compact. Although the assembly was called the Colorado River Commission, it was in all respects a convention of states, and it may be called the “Santa Fe Convention,” after the city where its most important sessions were held.
The group convened 27 times over the course of a single year. The first seven sessions occurred in Washington, D.C., the eighth in Phoenix, the ninth in Denver, and the remaining 18 in Santa Fe.
The convention consisted of seven commissioners, one from each participating state. This made it one of the smaller interstate conventions, but by no means the smallest. The group decided to include a federal representative, Secretary of Commerce Herbert Hoover—then perhaps the best known and most highly-regarded engineer in the world. Including a federal representative was advisable because, unlike proposed constitutional amendments, interstate compacts must be approved by Congress.
However, inclusion of a representative of another sovereignty in a multi-state convention was well-precedented: several inter-colonial conventions had included commissioners from the British Crown or from sovereign Indian tribes.
The Colorado River Commission followed all the principal rules for a convention of states:
* Each state had one vote;
* The convention decided on its own procedures;
* The convention elected its own officers—a chairman who was a commissioner and a secretary who was not;
* After the initial call, the convention controlled the time and place of meeting;
* The commissioners stayed within their prescribed agenda; and
* They produced a recommendation ultimately ratified by the participating states.
There also were three more unusual aspects. First, because of the special needs of interstate compacting, the group adopted a unanimous voting rule. By unanimous vote, they later changed this temporarily, allowing approval of resolutions by a majority of states. Second, the convention adjourned for weeks at a time to allow the technical staff to do its work. This was not unprecedented: The Nashville Convention first met in June, 1850 and then adjourned to November. Finally, the convention decided to rotate its meetings among several different cities.
Most importantly, the Santa Fe gathering provides us with yet another, relatively recent, instance of sovereign American states meeting in convention.
NB: Thanks to Nick Dranias of the Goldwater Institute for his insights into interstate-compact negotiation process. They were helpful in preparing this post. Also, thanks to Peg Brady for her research.
Filed under: All Postings, The Founding, supreme court
By “mistakes,” I’m not talking about matters of political judgment, such as how much to accommodate slavery. I mean drafting errors of the forehead-slapping kind.
Consider first a matter of style: The Constitution in its final form was drafted by a committee chaired by Gouverneur Morris. By all accounts they did a fine job. But not a flawless one.
The committee decided to follow the practice of capitalizing all nouns—a custom already going out of fashion, and abandoned just two years later when the Bill of Rights was written (that is, 1789; the Bill was ratified in 1791). One could defend that decision; but after having made it, they forgot to capitalize several nouns. The omissions include the word “defence” in the Preamble; “credit” in Article I, Section 8, Clause 2 (the congressional borrowing power); “duty” in Article I, Section 9, Clause 1; and “present” in Article I, Section 9, Clause 8.
Much more serious were a handful of substantive mistakes. Article I, Section 7, Clause 3 provides that all congressional resolutions requiring concurrence of the House and Senate must be presented to the President for his signature or veto. The Clause contains no exception for constitutional amendments under Article V—even though the evidence suggests that the Founders intended such an exception. So beginning with the 1798 Supreme Court case of Hollingsworth v. Virginia, the courts have followed the Founders’ intent rather than the literal wording.
Article II is certainly the worst-drafted of the instrument’s seven articles. The very first sentence of Article II (the so-called Executive Vesting Clause) is unclear enough to have led to long-standing disputes over the scope of presidential power—although my own view is that the disputes are due as much to ignorance of 18th century drafting practice as to the quality of the drafting.
Article II specified that the runner-up in the presidential election would be Vice President. I put that in the “misjudgment” rather than the “blooper” category because, as I explain in my book, The Original Constitution: What It Actually Said and Meant, there were some good reasons for the initial rule. It was only in practice that we learned that that approach didn’t work. It was corrected in 1804 by the adoption of the Twelfth Amendment.
But another defect in Article II falls squarely in the “blooper” category. The Framers inserted qualifications in Article I for Senators and Representatives, and when they wrote Article II they prescribed qualifications for the President. But they omitted qualifications for the Vice President. Apparently they just forgot. The Twelfth Amendment cured that omission also.
A less obvious boner appears in Article II, Section 2. One if its phrases implies that, with Senate advice and consent, the President appoints federal officers. But a later phrase in the same section (“may by Law vest the Appointment . . . in the President alone”) implies that the Senate co-appoints. Important consequences depend on which phrase controls, but it takes some serious constitutional interpretation to figure out that the former prevails over the latter. This also is explained in The Original Constitution: What It Actually Said and Meant.
The Bill of Rights—drafted by the First Congress—isn’t free of composition mistakes either. The Fifth Amendment excepts members of the U.S. Armed Forces from the requirement of grand jury indictment, but it fails to except enemy combatants accused of war crimes. If you read it literally, therefore, the Fifth Amendment seems to extend more protection to enemy combatants than to our own soldiers. It takes some interpretative work to figure out that this is not actually so. This point is also discussed in The Original Constitution: What It Actually Said and Meant.
Don’t get me wrong: In its entirety, the Constitution is a beautiful piece of legal craftsmanship. Indeed, most of those who charge the Framers with mistakes are mistaken themselves, either because they are ignorant of 18th century language, history, law, and conditions, or because they merely disagree with the Founders’ ideas of government.
For example, some writers claim that the Framers were too sketchy in describing the Convention for Proposing Amendments in Article V. But this claim is based on ignorance of established 18th-century convention procedure.
All that having been said, we still must acknowledge that the Framers made an occasional drafting mistake. Their document is the supreme law of the land, and one of the greatest political achievements in human history. But it is not Holy Writ, unchangeable or never to be questioned: The Framers were humble enough to recognize that themselves. That’s one reason they included the Article V amendment procedure.
Filed under: All Postings, The Founding, supreme court
When politicians start talking about “bi-partisan cooperation,” smart citizens get nervous. It usually means another transfer of freedom and taxes to the federal government at the expense of individuals, families, localities, and states.
Case in point: a Denver Post op-ed by two U.S. Senators (or their staffs) on their latest “bipartisan” deal. The Senators are Michael Bennett (D.-Colo.) and Richard Burr (R.-N.C.). The op-ed is pure political blather, a haze of almost incomprehensible feel-good rhetoric. But the upshot is this: The two distinguished solons are very proud of themselves for managing yet another transfer of authority from the states to the federal government.
You can read the op-ed here. As you can see, it is filled with mind-deadening phrases refined by pollsters and focus group research: “we have worked with,” “bipartisan,” “ensure the safety,” “stakeholders,” “pragmatism and hard work,” etc., etc.
As for the law itself, it has the kind of title we have come to expect from Congress in recent years: The Drug Quality and Security Act. (Doesn’t that title make you feel good?) Of course, many of these labels have about as much correspondence to the real world as the “Patient Protection and Affordable Care Act.”
The text of the measure is almost impossible for anyone without legal training to understand. (You can see for yourself here.) Essentially, however, it transfers to the federal government areas of drug compounding and distribution traditionally controlled by the states. It imposes new obligations, licenses, and/or paperwork on manufacturers, repackagers, wholesalers, and your local pharmacy. It takes major steps toward federal control of our state pharmacy boards, and restricts state regulatory choices in the areas it covers.
The bill is also about revenue: It authorizes the federal government to collect various new “fees.” (I put the word in quotation marks because those “fees” are really taxes.)
Like the op-ed, the text of the law is filled with mind-numbing, and sometimes deceptive, language. Consider this provision:
Nothing in this section shall be construed to preempt State requirements related to the distribution of prescription drugs if such requirements are not related to product tracing as described in subsection (a) or wholesale distributor and third-party logistics provider licensure as described in subsection (b) applicable under section 503(e) (as amended by the Drug Supply Chain Security Act) or this subchapter (or regulations issued thereunder).
At first, you might think the bill leaves state regulations in effect. But look closer: The provision really is about where federal law does preempt: “requirements . . . related to product tracing . . .. [and] wholesale distributor and third-party logistics provider licensure.” Another passage makes it clear that much state flexibility is gone:
Beginning on the date of enactment of the Drug Supply Chain Security Act, no State or political subdivision of a State may establish or continue any standards, requirements, or regulations with respect to wholesale prescription drug distributor or third-party logistics provider licensure that are inconsistent with, less stringent than, directly related to, or covered by the standards and requirements applicable under section 503(e).
The measure does not set forth its constitutional justification. In other words, it does not cite any of Congress’s enumerated powers as the basis for the authority it claims. Occasional mentions of “commerce” suggest that it relies on the Constitution’s much-abused grant of power to “regulate Commerce . . . among the several States.” In fact, however, the bill sweeps deeply into in-state commerce and into activities that really are not “commerce” at all.
The op-ed touts the bill’s “strong [meaning "intrusive"], uniform” [meaning "centralized"] standards. But the Constitution limited congressional powers precisely to protect us from too many centralized standards. The federalism created by our Constitution is about local control, responsiveness to local preferences, better government, diversity, and the ability of each state to learn from the experience of others. Moreover, as the Supreme Court has pointed out repeatedly, federalism is also about fracturing power to preserve freedom.
Our Founders and generations of Americans have concluded that human freedom and the other benefits of federalism are worth the occasional inconvenience arising from lack of uniformity. This should be particularly true today, when technology has reduced both the benefits of uniformity and the costs of diversity.
“The Drug Quality and Security Act,” however, appears to have been the product of one of those classic deals among politicians and lobbyists. The two Senators assure us that all the “stakeholders” (i.e., groups with lobbyists) were consulted.
But were you?
How the Contracts Clause Was Gutted—and How the Supreme Court’s Early Efforts to Correct The Situation Have Been Ignored
Filed under: All Postings, The Founding, supreme court
The Constitution lists several things states may not do. Article I, Section 10 provides that “No State shall . . . pass any . . . law impairing the Obligation of Contracts.” This clause was inserted to curb state “debtor relief” laws that the Framers believed were immoral and rendered bad economic conditions worse.
Founding-Era debtor relief laws included, but were not limited to, measures permitting debtors to enjoy complete moratoria on payment (“stay laws”) or to repay in installments amounts actually due in full (“installment laws.”) To be sure, the constitutional ban extended beyond stay and installment laws, but they were the ban’s clearest targets.
The Contracts Clause did not prevent judges from relieving debtors from fraud or other creditor overreaching. Nor did it prevent courts from applying the particular remedy fairest to all concerned. And debtors could still declare bankruptcy if they chose. The Clause was designed only to prevent demagogic politicians from meddling, ad hoc, with honest bargains.
The Framers believed that stay and installment laws were immoral, because they allowed favored people to receive money or value from disfavored people on a promise of payment—and then break their promises. The Framers also believed such measures were bad for the economy. This was because they created uncertainty in the credit markets, which in turn led to higher interest rates and more arduous loan conditions. They also prevented debtors (and creditors) from proceeding to an orderly bankruptcy or loan restructuring so all parties could cut their losses and make a new start.
Were the Founders right about the bad economic effects of such laws? Recent evidence suggests they were. Our own recovery from the Great Recession has been painfully slow, and one reason seems to be constant federal interference with mortgage loans and other obligations. (The Contracts Clause does not apply to the federal government.)
For most of our constitutional history, the Supreme Court enforced the Contracts Clause. During the Depression of the 1930s, however, states once again began to adopt stay and installment laws as a way to “help” debtors.
A Minnesota stay law came before the Supreme Court in 1934 in the case of Home Building and Loan Assn. v. Blaisdell. Once the Court failed to take advantage of an easy way to avoid the avoid the constitutional issue,* the case should have been an easy one: The Minnesota statute was precisely the kind of measure the Contracts Clause was adopted to prohibit. Yet the Court upheld it by a 5-4 margin. The five justices in the majority included the Court’s four progressives, and its centrist, Justice Owen Roberts. (The claim, based on the invalidation of a few New Deal measures, that the 1930s Supreme Court had a conservative majority is inaccurate.)
The Blaisdell opinion, a long and confused production by Chief Justice Charles Evans Hughes, did what “progressive” justices have so often done: It replaced clear constitutional language with judge-made and judge-administered “balancing tests.” In the Blaisdell case, the “test” boiled down to whether or not the justices themselves (not the Founders!) thought the law was sufficiently targeted at what the justices themselves (not the Founders!) thought was an emergency.
Most of the foregoing is widely understood among constitutional writers. What is much less known is that the Court seemed to have second thoughts almost immediately. Later the same year, in W.B. Worthen Co. v. Thomas, the Court tossed out an Arkansas law essentially barring creditors from seizing life insurance proceeds. The Court’s excuse for not following Blaisdell was that the law was not targeted at the economic emergency—although it clearly was adopted in response to the Depression.
Similarly, in 1935 in W.B. Worthen Co. v. Commissioners, the Court voided another Depression-era Arkansas law that re-wrote a contract between a municipal improvement district and its bondholders. Again, the Court held that the law was not sufficiently targeted, disregarding that it clearly was a response to hard times. Yet again, in 1936, the Court in Treigle v. Acme Homestead Assn voided a 1932 Louisiana statute designed to shore up threatened savings and loans associations.
Several things are striking about the three post-Blaisell cases.
1. They all involved enactments that, as in Blaisdell, were adopted to address the emergency created by the Great Depression.
2. The Court had to strain to show how they were different from Blaisdell—so much, in fact, that one could argue that they either overruled or severely limited Blaisdell.
3. All three subsequent cases were unanimous. The Treigle opinion was written by Justice Roberts, a centrist. The Thomas and Commissioners opinions were written by Chief Justice Hughes and Benjamin Cardozo, both progressives.
Was the Court really having second thoughts? In her recent best-seller, The Forgotten Man, Amity Shlaes argues that much New Deal-era legislation actually prolonged the Great Depression by creating an arbitrary, unpredictable business environment. Perhaps the justices on the U.S. Supreme Court were coming to the same conclusion—at least as to state-based “debtor relief” legislation.
Whatever the reason for the Court’s pull-back, you’d think that academic writers would realize that the authority of Blaisdell had been badly impaired. Yet academic writers are overwhelmingly left-of-center. Their treatises, therefore, tend to emphasize Blaisdell and omit or minimize the later decisions. The Supreme Court, which eventually did get a “progressive” majority, conformed to this pattern of emphasis and omission. It has cited Blaisdell nearly 70 times, while only rarely citing the cases that limited or overruled it.
* Arguably the Minnesota law only wrote into statute tools for avoiding injustices that judges could use in mortgage foreclosure cases from before the Founding Era. If this was so (and Chief Justice Hughes strongly suggested it was), then the statute was valid under the Contracts Clause as originally understood. In other words, the Court could have upheld the statute without disregarding the Founders’ understanding and without creating a jurisprudential mess.
Filed under: All Postings, ObamaCare, The Founding, supreme court
Are you interested in the true meaning of, and limits on, the Constitution’s much-abused Commerce Power? In a speech at the University of Utah in Salt Lake City on November 19, 2013, I outlined the intended scope of the power, how I reached my conclusions, and how the Supreme Court has stretched the Commerce Power far beyond its intended scope.
The Framers drafted the Constitution to grant Congress some powers to construct infrastructure. For example, the Commerce Clause, as originally understood, grants authority to construct facilities for navigation such as dockyards and ports—including, presumably, airports. Authority to maintain the military enables Congress to fund military facilities. Article I, Section 1, Clause 8 empowers Congress to “establish Post Offices and post Roads.”
As explained in my book, The Original Constitution, the power to establish post roads is often misunderstood. The word “establish” is not limited to designating existing roads, as some have claimed; it does include construction as well. On the other hand, the phrase “post Roads” does not include all roads, nor does it refer to roads over which the mail is carried.
In 18th century discourse a “post road” was a trunk highway marked by stages or “posts” featuring facilities for travelers—lodging, transportation, and food for man and beast. The modern equivalent is the interstate highway. In other words, Congress had authority to build the interstate highway system. But the construction of other roads and of ground transportation facilities was reserved to the states. The debates over the Constitution’s ratification amply confirm these conclusions.
In this area as in so many others, Congress has disregarded constitutional limits—and in this area, as in so many others, with lousy results.
In an article appearing in the Dec. 8, 2013 Denver Post, Independence Institute Senior Fellow Dennis Polhill reveals some of the fearsome waste in unconstitutional infrastructure spending.
When the feds finished the interstate highway system around 1982, he explains, Congress broke an earlier promise to end the gas tax that funded the system. It kept the tax in place, but diverted the revenue to a mass of pork barrel projects. Congress continues to do this today. These oinkers often have little real value, but they fill the political-campaign troughs for members of Congress.
Washington, D.C. hogs much of the revenue from gasoline taxes: States get back less than 70% of the gas tax money their citizens pay to Washington, D.C., and that less-than-70% they do give back is laced with pig feed—waste that local folks would have more sense than to fund.
There are additional interesting facts reported in the Polhill article. You can read here.