Earlier this year, the Harvard Journal of Law and Public Policy published my article showing that the Constitution’s Recess Appointments Clause limits presidential vacancy appointments far more than President Obama (and most prior Presidents) have claimed. I posted earlier on the same subject here.
The issue is before the Supreme Court right now.
The Recess Appointments Clause states in part that, “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate. . . ” In preparing the article I examined a wide range of Founding-Era documents, including early state constitutions and legislative records, to determine when a vacancy “happens” and what the Founders meant by “the Recess” of a legislative body. I learned that a vacancy “happens” only when it is created. Thus, for the President to fill a vacancy, it must have been created during the Recess, not merely continue into it.
I also learned that, while the simple noun “recess” could refer to any legislative break, the phrase “the Recess” referred only to the period between formal legislative sessions.
Another project has kept me in early American legislative documents, and new discoveries continue to confirm that “the Recess” meant only the break between sessions.
For example, I was able to obtain a copy of the hard-to-get 1784 journal of the Massachusetts House of Representatives. It contains a message from Governor John Hancock specifically referring to the time between the sessions as “the recess.” Early Maryland legislative records similarly contain repeated references to a prior or approaching period between sessions as “the recess.”
The same story recurs in New Jersey. A September 10, 1776 legislative committee report from that state clearly distinguished between the “Session” and “the Recess.” A May 19, 1786 report of the Governor, issued two days after the session began, provided the legislature with correspondence the governor had received during “the Recess of the House.” And a Nov. 30, 1789 resolution authorized the city mayor to take control of legislative property “during the recess of the Legislature”—that is, not during short breaks but when lawmakers went home at the end of their session.
A spate of new applications from state legislatures for a “convention for proposing amendments” make it more likely that we will have an amendments convention in the near future. In order to get ready for this historic event, lawyers, legislators, and others involved in the process need a reliable guide to the law governing amendment conventions.
Citizens for Self Governance has just published my legal treatise on the subject as part of their Convention of States project. It is called A Compendium for Lawyers and Legislative Drafters. In addition to over 80 pages of original material, it includes important and reliable scholarly articles on the subject. You can download it for free here.
How Do We Know an Article V Amendments Convention is a “Convention of the States?” Because Both the Founders and the Supreme Court Said So
Article V of the Constitution authorizes a “Convention for proposing Amendments.” However, it does did not specify how the convention is to be composed. People unfamiliar with constitutional history sometimes claim the makeup of an amendments convention is either a complete mystery or subject to the determination of Congress.
Nonsense. For one thing, the Supreme Court already has spoken on the matter. In 1831, the Court decided Smith v. Union Bank, in which it specifically characterized (on page 528) an amendments convention as a “convention of the states”—that is, a gathering of representatives of state legislatures.
The Court’s characterization was, in fact, the dominant one in America until misunderstandings on the subject arose in the mid-to-later 20th century. It was also the Founders’ view of an amendments convention.
The history of the 30+ conventions held among colonies and states before and during the Founding Era shows that they always were gatherings of state “committees” (delegations) of “commissioners” (delegates) appointed by the several states. Furthermore, participants in the ratification debates repeatedly referred to this process as one in which the states were the drivers.
But beyond that, there is a series of Founding-Era official documents specifically identifying a convention for proposing amendments as a “convention of the states.” For example:
* The very first Article V application was adopted by the Virginia legislature on November 14, 1788. It recited that “happily . . . the Constitution hath presented an alternative, by admitting the submission [of an amendment] to the convention of the states.”
* The Pennsylvania legislature did not favor Virginia’s application, and said so in a resolution adopted on March 5, 1789. The resolution recited that “it must ever be [pain]ful to the House, when obliged to dissent from the opinion of that [Virginia] Assembly upon any point of common concern to the two states, as members of the union; and particularly, on a measure of such importance as the one proposed, the calling of a convention of the states for amending the constitution . . . ” Minutes, Pa. Gen. Assembly, 124-25 (March 5, 1789)
* On the other hand, New York’s governor, George Clinton, favored such a convention. A letter from the Virginia legislature to Governor Clinton reproduced in the New York legislative journals successfully urged New York to adopt its own Article V application: “The propriety of immediately calling a Convention of the States, to take into consideration the defects of the Constitution, was admitted, and, in consequence thereof, an application agreed to, to be presented to the Congress, so soon as it shall be convened, for the accomplishment of that important end.” Letter from John Jones & Thomas Mathews to Gov. George Clinton, Nov. 20, 1788, reproduced in N.Y. Assem. J., p. 25 (Dec. 27, 1788).
* The Rhode Island legislature generally looked favorably on the idea, and responded as follows:
“Whereas, His Excellency George Clinton, president of the convention of New York, hath transmitted to the legislature of this state a proposal, that a general convention of the states should take place, in order that such necessary amendments may be made in the constitution proposed for a federal government, as will secure to the people at large their rights and liberties, and to remove the exceptionable parts of the said proposed constitution:
It is therefore voted and resolved, that the secretary forthwith cause to be printed a sufficient number of copies of Governor Clinton’s letter, with the amendments proposed by the convention of the state of New York, and transmit one as soon as possible to each town clerk in the state; who is hereby directed, upon receipt thereof, to issue his warrant to call the freemen of such town to convene in town meeting, to take the same into consideration, and thereupon to give their deputies instructions whether they will have delegates appointed to meet in convention with the state of New York, and such other states as shall appoint the same; or such other instructions as they may deem conducive to the public good; that this General Assembly may know their determination at the session to be holden by adjournment on the last Monday in December next. . . . ”
Records of the State of Rhode Island, vol. 10, pp. 309-10 (Oct. 27, 1788).
By contrast, a convention held within a state was thought of as a convention of the people.
All of these documents were issued while discussion over ratification of the Constitution was continuing. Eleven states had ratified, but in North Carolina and Rhode Island the outcome was still very much in doubt. Moreover, these are all official documents, not the product of individual eccentrics. As such, they are powerful evidence that a “Convention for proposing Amendments” was understood to be a gathering of the states. The Framers of Article V didn’t need to spell it out, precisely because everyone knew it.
Take out a dollar bill and look on the back. There you will see the two sides of the Great Seal of the United States. Look at the left hand side—the circle with the pyramid.
Above the pyramid is a representation of the Eye of Providence—of God. Above the eye is the phrase, Annuit coeptis. Below the pyramid is Novus ordo seclorum.
The words are in Latin, of course. Most people know that Latin was the official language of the western half of the Roman Empire and the basis for most western European tongues: Spanish, French, Portuguese, Italian, Catalan, Provincal, Romanian, and Swiss Romansh. It also is the source for at least half the words in English (although the foundation of English is German.)
What fewer people know is that Latin remained the language of learning for centuries after the Western Empire “fell” in 476 C.E., and after the collapse of the Eastern Empire in 1453. During the Founding Era, every boy (and some girls) in the English-speaking world with any hope of a decent education began Latin studies around the age of eight. Before entering college, the student could read, and often write, the language with ease. In other words, Latin literature was a mainstay of the education of our Founders. It also held a prominent place in Anglo-American law.
As Forrest McDonald, arguably our greatest living constitutional historian, wrote in the book he entitled, Novus Ordo Seclorum:
“[In understanding the 18th century English in which our Constitution is written] a rudimentary knowledge of Latin is highly useful; after all, every educated Englishman and American knew Latin, English words were generally closer in meaning to their Latin originals than they are today, and sometimes, as with the use of the subjunctive, it is apparent that an author is accustomed to formulating his thoughts in Latin.”
Yet few of those who pontificate on the Constitution today, and this includes law professors in particular, have even the “rudimentary knowledge” of Latin that McDonald thinks is so important. And as I point out in my book, The Original Constitution, they sometimes they make mistakes that reveal their ignorance.
One of the two or three greatest classical Roman poets (perhaps the greatest)—and probably the one most read by the Founders—was Publius Vergilius Maro (“Virgil”). Both inscriptions on the Great Seal are echos from Virgil’s work. Annuit coeptis means “He [i.e., God] has approved [literally “nodded at”] our undertakings.” In Virgil’s epic poem, the Aeneid, the hero’s son prays to the king of the gods, “Iuppiter omnipotens, audacibus adnue coeptis.” (Book 9, Line 625). That is, “All-powerful Jupiter approve [give the nod to] our bold undertakings.” By their inscription in the Great Seal, our Founders were announcing that God had, indeed, approved the creation of the United States of America.
Novus ordo seclorum means “new order of the ages,” and to the Founders, the evocative force of this phrase would have been very powerful. The phrase is based on the fourth poem in Virgil’s ten-poem book, “The Eclogues,” written about 37 BCE. In that poem Virgil tells of a newborn child whose birth announces a new golden age: magnus ab integro saeclorum nascitur ordo. “A great order of the ages is born anew.” The poem, written about a three decades before Christ was born, induced many medieval and early modern Christians to believe Virgil had been divinely inspired. (The Italian poet Dante made Virgil his guide through the Inferno and the Purgatorio.)
These are only two examples of how the Latin language opens windows on how the Founders thought. There are many, many others.
The U. S. Court of Appeals for the Tenth Circuit recently refused to dismiss the suit by various public sector interests to invalidate Colorado’s Taxpayer Bill of Rights (TABOR). The plaintiffs claim that TABOR violates Article IV, Section 4 of the U.S. Constitution. That provision is called the Guarantee Clause because it guarantees that the states will have republican forms of government.
The Guarantee Clause was designed to prevent states from becoming monarchies, dictatorships, or anarchies. It is totally inapplicable to TABOR, which simply requires that certain conditions—such as popular votes or legislative supermajorities—be met before the legislature can make designated increases in taxes, spending and debt. Although it is common in Colorado to claim TABOR is “unique,” in fact, it is only one of the stronger fiscal-restraint provisions that appear in the constitutions of 49 states. (The exception is Vermont.)
Restraints of this kind are called “TELs”—tax and expenditure limitations. Even the U.S. Constitution imposes such restraints on Congress. For example, it requires direct taxes, other than the income tax, to be apportioned among states by population, and it imposes a flat ban against taxes on exports.
The Independence Institute filed amicus briefs (Friend of the Court briefs) at the trial and appeals levels. Our briefs did not focus on the standing or justiciability issues—only the question of whether the Guarantee Clause invalidated TABOR. We focused on the Guarantee Clause because at the trial court (district court) level, the attorney general, while defending TABOR, did so almost exclusively on standing and justiciability grounds, and did not address the merits—i.e., whether TABOR violates the U.S. Constitution.
The attorney general did address the merits at the appeals level, but the court held that this was too late. The “republican form of government” question, therefore, will have to be dealt with in further proceedings.
It is unfortunate that this case has gone so far, because the claim that TABOR violates the Guarantee Clause is truly absurd. There is simply no conflict between the “republican form” and fiscal restraints or popular votes. As noted above, nearly all republican constitutions in the U.S. impose fiscal restraints on their legislatures. And popular votes on laws have been a major feature of republican government for thousands of years.
Although our brief did not address the justiciability issue, it seems to me that there is at least one glaring weakness in the appeals court’s decision on that subject.
The Supreme Court says that for a case to be justiciable in federal court, there must be “judicially discoverable and manageable standards” for resolving the issues. Not only have the plaintiffs failed to enunciate any such standards, but their papers seem to shift positions without really settling on any of them. At different points, their papers imply that they think that (1) all voter initiatives violate the Guarantee Clause, or (2) only fiscal voter initiatives do so, or (3) the Guarantee Clause bans only voter initiatives that go too far (wherever that point may be), or (4) it bans only voter-approval requirements for new taxes, or (5) it bans only voter approval requirements for taxes and spending, or (6) it prohibits any voter approval requirements for taxes, spending, or debt.
No one really knows what they mean (including, I suspect, the plaintiffs) because their papers are largely incoherent on the subject. But there certainly are no manageable standards to apply to a case when not even the plaintiffs can enunciate any.
Filed under: All Postings, Article V, The Founding, supreme court
(This article originally appeared in the American Thinker.)
Opponents of a Convention of States long argued that there was an unacceptable risk a convention might do too much. It now appears they were mistaken. So they increasingly argue that amendments cannot do enough.
The “too much” contention was first promulgated in modern times by apologists for the liberal, ultra-activist Earl Warren/Warren Burger Supreme Court. Specifically, these apologists feared a convention might propose amendments to reverse their favorite judicial decisions. Their tactic was to claim that an amendments convention, even if legally limited, could turn into a “con-con” that disregarded its limits, repealed the Bill of Rights, and restored slavery. (Yes, some of them really said that.)
The liberals who promoted this scenario must have been amused when some deeply conservative groups fell into the trap and began using the same argument to kill conservative amendments.
The “too much” line, however, has been losing its persuasiveness. New research shows it to be legally and historically weak, and Americans increasingly are pondering the very real dangers of not resorting to the convention process the Founders bequeathed to us.
Hence the shift to the “too little” argument. Its gist is that amendments would accomplish nothing because federal officials would violate amendments as readily as they violate the original Constitution.
Opponents will soon find their new position even less defensible than the old. This is because the contention that amendments are useless flatly contradicts over two centuries of American experience — experience that demonstrates that amendments work. In fact, amendments have had a major impact on American political life, mostly for good.
* * * *
The Framers inserted an amendment process into the Constitution to render the underlying system less fragile and more durable. They saw the amendment mechanism as a way to:
* correct drafting errors;
* resolve constitutional disputes, such as by reversing bad Supreme Court decisions;
* respond to changed conditions, and
* correct and forestall governmental abuse.
The Framers turned out to be correct, because in the intervening years we have adopted amendments for all four of those reasons. Today, nearly all of these amendments are accepted by the overwhelming majority of Americans, and all but very few remain in full effect. Possibly because ratification of a constitutional amendment is a powerful expression of popular political will, amendments have proved more durable than some parts of the original Constitution.
Following are some examples:
Correcting drafting errors
Although the Framers were very great people, they still were human, and they occasionally erred. Thus, they inserted in the Constitution qualifications for Senators, Representatives, and the President, but omitted any for Vice President. They also adopted a presidential/vice presidential election procedure that, while initially plausible, proved unacceptable in practice.
The founding generation proposed and ratified the Twelfth Amendment to correct those mistakes. The Twenty-Fifth Amendment addressed some other deficiencies in Article II, which deals with the presidency. (My reference to a particular amendment does not mean I agree with every provision in it.)
Both the Twelfth and Twenty-Fifth Amendments are in full effect today.
Resolving constitutional disputes and overruling the Supreme Court
The Framers wrote most of the Constitution in clear language, but they knew that, as with any legal document, there would be differences of interpretation. The amendment process was a way of resolving interpretative disputes.
The founding generation employed it for this purpose just seven years after the Constitution came into effect. In Chisholm v. Georgia, the Supreme Court misinterpreted the wording of Article III that defines the jurisdiction of the federal courts. The Eleventh Amendment reversed that decision.
In 1857, the Court issued Dred Scott v. Sandford, in which it erroneously interpreted the Constitution to deny citizenship to African Americans. The Citizenship Clause of the Fourteenth Amendment reversed that case.
In the 1970, the Court decided Oregon v. Mitchell, whose misinterpretation of the Constitution created a national election law mess. A year later, Americans cleaned up the mess by ratifying the Twenty-Sixth Amendment.
All these Amendments are in full effect today, and fully respected by the courts. Some argue, in fact, that the Supreme Court actually over-enforces the Eleventh Amendment — a contention with which I do not agree.
Responding to Changed Conditions
The Twentieth Amendment is the most obvious example of a response to changed conditions. Reflecting improvements in transportation since the Founding, it moved the inauguration of Congress and President from March to the January following election.
Other amendments as well were wholly or partially triggered by changed conditions. The Seventeenth Amendment, which transferred elections for Senators from the state legislatures to the people, is still controversial in some quarters. But it was adopted only after social changes had caused widespread breakdown in the prior election system. (That is why the state legislatures themselves sought the change.) With the partial exception of Mark Levin, few if any of its critics address the very real problems the Seventeenth Amendment was designed to solve.
Similarly, the Nineteenth Amendment, which assured women the vote in states not already granting it, was passed for reasons beyond simple fairness. When the Constitution was written, overwhelming domestic duties and very short female life expectancies effectively disqualified most women from politics. During the 1800s, medical and technological advances made possible by a vigorous market economy improved the position of women immeasurably and rendered their political participation far more feasible. Without these changes, I doubt the Nineteenth Amendment would have been adopted.
Needless to say, the Seventeenth, Nineteenth, and Twentieth Amendments all are in full effect many years after they were ratified.
Correcting and forestalling government abuse
Avoiding and correcting government abuse was a principal reason the Constitutional Convention unanimously inserted the state-driven convention procedure into Article V. Our failure to use that procedure helps explain why the earlier constitutional barriers against federal overreaching seem a little ragged. Before looking at the problems, however, let’s look at some successes:
* In 1992, we ratified the Twenty-Seventh Amendment, 203 years after James Madison first proposed it. It limits congressional pay raises, although some would say not enough.
* In 1951, we adopted the Twenty-Second Amendment, limiting the President to two terms. Eleven Presidents later, it remains in full force, and few would contend it has not made a difference.
Now the problems: Because we have not used the convention process, the first ten amendments (the Bill of Rights) remain almost the only amendments significantly limiting congressional overreaching. I suppose that if the Founders had listened to the “amendments won’t make any difference” crowd, they would not have adopted the Bill of Rights either. But I don’t know anyone today who seriously claims the Bill of Rights has made no difference.
In fact, the Bill of Rights continues to have a huge impact more than two centuries after adoption. The courts enforce, to at least some extent, all of the original ten except, arguably, the Ninth. Some, such as the First Amendment, have been “super enforced.” Others, such as the Second and Fourth are under relentless pressure, but remain far better than nothing at all.
What about the Ninth and Tenth? They are certainly under-enforced today, but we must remember that they enjoyed full effect for nearly 150 years. No reasonable person would classify 150 years of effect as anything but a stellar political success. Even today, the Tenth retains some of its power, as Congress learned when the Supreme Court upended its effort to corral all the states into the Obamacare Medicaid expansion.
“I have but one lamp by which my feet are guided; and that is the lamp of experience,” Patrick Henry said. “I know of no way of judging of the future but by the past.”
In this case, the lamp of experience sheds light unmistakably bright and clear: Constitutional amendments work.
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.