The Silver Lining in the Mistakes at the Assembly of State Legislatures

November 17, 2015 by Rob Natelson · Leave a Comment
Filed under: All Postings, Article V, The Founding 
Rob in the Colorado Rockies

Rob in the Colorado Rockies

Note: This article was first published in the American Thinker.

The Assembly of State Legislatures (ASL) has adjourned from its latest meeting, still without having produced a set of rules for an Article V amendments convention.

I have been an enthusiastic supporter of ASL. I have to acknowledge, however, that missteps have impeded its progress.

Fortunately, there is a very plush silver lining within the mistakes. For more on that, see below.

The latest missteps involved a set of rules proposed by the ASL executive committee. Some of these missteps involved procedure: Apparently there was insufficient consultation with professional drafters or with members of the ASL standing rules committee.

Not surprisingly, therefore, the product was marred by substantive deficiencies. Some of these were glaringly obvious to everyone except the drafters—specifically, a system of supermajority, weighted voting, and co-officer rules reminiscent of the political theories of John C. Calhoun. These devices directly violated the balance struck by the Constitution in Article V. They also would have rendered the convention unworkable by granting a veto at every stage to a minority unsympathetic with the convention’s goal.

The principal argument for this approach was that for an amendment to have a chance at ratification it had to enjoy supermajority support at the convention. But as I pointed out in two articles covering the subject (here and here), this argument is simply unsupported by actual convention experience.

I also predicted that the supermajority approach would promote extortion from the unsympathetic minority. As it turns out, my prediction was validated even earlier than I expected: During the ASL meeting itself, the supermajority/co-officer/weighted voting requirements encouraged minority lobbyists to demand, as the price of their support, that the convention agenda be expanded beyond the likely scope of its call. They demanded that the convention be designed to produce an amendment that very few states have applied for.

The general ASL membership attempted to address the glaring deficiencies by altering the executive committee draft. But in the pressure of time they largely overlooked something: That draft suffered from many other deficiencies as well.

These were not minor or merely typographical. They were of the type that would have impeded convention operations. A few days before the ASL meeting, another Article V scholar alerted me to the scope of the problem. The two of us, assisted by a third Article V specialist, soon identified at least 19 fundamental defects. They included:

* important omissions, such as failure to define the term “qualified majority,” the measure for electing co-presidents;

* oversights, such the one that rendered convention amendments to its rules unalterable;

* rules that flatly contradicted each other, such as two conflicting ways of electing the parliamentarian (or parliamentarians); and

* provisions that were legally void, such as an attempt to impose these rules as the initial pattern for future conventions.

Now the silver lining: These missteps happened only in planning sessions, not in the convention itself. To explain:

In the century before the Constitution was written, colonies and states met in convention at least 30 times—in other words, every 3-4 years. Not all of these gatherings was successful, but the failures of some laid the foundations for the success of others. The framers wrote Article V in the expectation, therefore, that state officials would be knowledgeable about, and comfortable with, the interstate convention process.

However, in the years since the Constitution was adopted, the states have met in convention only a handful of times. The last general convention was in 1861 and the last regional convention met in 1922. Hence, there is a lot of re-learning to be done.

Because it is so difficult to call an Article V convention, we have re-learn either through close study of the historical and legal record or through planning mistakes.

The ASL’s latest difficulties teach the following lessons:

* Don’t draft in secret or bypass normal processes;
* Don’t include provisions that impede the convention operations or contradict the balance struck by Article V;
* Obtain professional drafting assistance; and
* Remain non-partisan, but don’t try to forge an artificial bipartisanship with people who will oppose the goals of any convention likely in the near future.

On that last point: American history has included several events of significant constitutional reform. Some have been formal (the post-Civil War Amendments, the Progressive Era amendments). One has been informal (the New Deal).

The more important constitutional proposals did not result from compromise between parties with radically different visions. Significant reform came only after controversial proposals were presented for public consideration, and public consideration led to lopsided support.

But the proposals had to come first.

The Materials You Need for Researching the Original Constitution

November 12, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, The Founding 


Note: This article originally appeared at The American Thinker.

When lawyers and judges interpret legal documents, they usually try to ascertain the understanding of the parties to the document—or, more precisely, something they call the “intent” behind the document. The Founding Era phrase was “intent of the makers.” The “intent of the makers” is what originalist scholars try to uncover when they interpret the Constitution.

The “intent of the makers” is a technical term referring, in the case of the Constitution, to how the ratifiers (not the framers) understood it—or, if as to a particular clause there is not sufficient evidence of a unified understanding, how informed people would have understood it during the ratification era. Because this is the guide for how Founding Era courts would have interpreted the Constitution, I sometimes call this concept the “original legal force.”

Commentators presenting their views on the Constitution’s original legal force should avoid certain common mistakes. Two obvious ones are (1) not understanding the rules of original legal force and (2) cherry-picking evidence to support pre-determined conclusions. Other errors include:

* Reading the document as a 21st century American rather than an 18th century American;

* Using evidence that is not from the relevant time period—sometimes from a period too long before the Constitution’s adoption, but more commonly from a time after the ratification was over; and

* Gathering insufficient evidence.

Several years ago, I prepared a nine-page essay to help researchers avoid the last of those mistakes. This essay was called A Bibliography for Researching Original Understanding. It is available on this website here. It provides a list of materials originalists can use.

One last point: When citing 17th and 18th English law cases, it has become the custom recently to cite only the location of the case in English Reports (Full Reprint), a modern case collection. This custom has been encouraged by the widely-used citation guide known as the Harvard Bluebook.

Unfortunately, limiting citation to English Reports is not good practice. English Reports obtained its summaries of cases from the books compiled by individuals known as reporters. The quality of their reports vary greatly. A Founding Era lawyer consulting a case report by William Salkeld, for example, would give much more credit to it than to a case report by Joseph Keble. He also would give more credit to Salkeld’s first two volumes than to his third. Citing only to English Reports tells the reader nothing about the reliability of the material being cited. Also, it gives too much weight to case reports the Founders might have disregarded and too little to those they deemed authoritative.

The definitive guide to the relative merits of the English case reporters was written by an American, John William Wallace, whose book is referenced in my bibliographical essay.

A Woman as President? The Gender-Neutral Constitution.

November 2, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, The Founding 

Note: This article was originally published at the leading constitutional law website, The Volokh Conspiracy, which is affiliated with the Washington Post.

Consider these two quotations:

“Indeed, the argument is made that under originalism it would be unconstitutional to elect a woman as president or vice president because the Constitution refers to these officeholders as “he,” and the framers clearly intended that they be male.”

— Erwin Chemerinsky, Constitutional Law: Principles and Policies (3d ed. 2006) (citing Richard B. Saphire, Judicial Review in the Name of the Constitution, 8 U. Dayton L. Rev. 745, 796­97 (1983)

“Although I have not undertaken an independent analysis of this issue, it would be quite surprising to learn that the framers had a specific ‘intention’ that women would be qualified for the presidency.”
— Richard B. Saphire, op. cit.

Carly Fiorina - One of Two Women Running for President

Carly Fiorina - One of Two Women Running for President

Although Professor Saphire’s use of this issue was principally a way of elucidating problems in constitutional interpretation, Professor Chemerinsky’s treatise cites his article as an illustration of what he calls “The Basic Arguments for Nonoriginalism.” At a time in which there are highly creditable female candidates for president in both major political parties, perhaps it is appropriate to address how the framers intended the Constitution to handle the issue.

(Note to non-lawyer readers: Prof. Chemerinsky is one of the nation’s most famous liberal constitutional law scholars, and the author of books commonly used in American law schools. The comment quoted here appears in a book directed largely at law students. The term “the framers” means not all the Founders, but specifically the Constitution’s drafters.)

At the outset, we should be clear that the Constitution’s use of “he” and its variants to refer to the president is of little evidentiary weight, since during the Founding Era, as in all modern history before the 1970s, those words served as standard pronouns of indefinite gender. Of much more weight is other evidence that Professor Saphire would find “quite surprising,” because it points firmly to the conclusion that the framers did indeed intend to allow women to be elected president.

In other words, just as the framers consciously omitted the religious tests for office­holding that appeared in all state constitutions and the racial tests that appeared in some, they also omitted the gender restrictions featured in nearly all.

Most of the state constitutions in force in 1787 did contemplate that officeholders would be male. By way of illustration, the Virginia constitution provided for the election to the state Senate of “the man who shall have the greatest number of votes in the whole district,” and the New York constitution described the state legislature as consisting of “two separate and distinct bodies of men.” Although it is true that contemporaneous usage encompassed a generic meaning of “man” to signify a human being, the context strongly suggests that these documents meant “man” in the narrower, male sense. The Virginia constitution’s repeated use of the word “man,” for example, seems to have been interpreted in practice to limit voting to men. Other constitutions expressly limited voting to “male inhabitants” (New York, Massachusetts) or “freemen” (New Hampshire, Pennsylvania).

Contrasting with this approach was the New Jersey constitution. In that instrument, the words “man” and “men” nowhere appeared. It explicitly granted both suffrage and the right to hold office to “all inhabitants” who met certain property requirements, and it uniformly referred to officeholders as “persons.” This was not empty form:In the real world, New Jersey women voted. In fact, they voted in sufficient numbers that New Jersey political operatives routinely included appeals for the female vote. See Judith Apter Klinghoffer & Lois Elks, “The Petticoat Electors”: Women’s Suffrage in New Jersey, 1776–1807, 12 J. Early Republic 159 (1992). The New Jersey constitution did resort to the pronoun “he” in describing officeholders, but the context shows the meaning to have been generic.

The framers of the federal Constitution sought to draft an instrument that would last for the ages. They certainly were aware of female voting in New Jersey, and they probably knew of sporadic female voting (in defiance of law) in states such as Massachusetts. Indeed, the trends of the time favored female political involvement generally — probably to a greater extent than half a century later. The historical records show women as active participants in the ratification debates on both sides of the issue. In addition to voting for convention delegates in New Jersey and perhaps elsewhere, women organized parties, parades and rallies, mostly for the federalist cause. Presumably both sides, but certainly federalists, made written appeals to women for political support. Mercy Otis Warren of Massachusetts, later a distinguished historian, contributed essays for the anti­federalist side.

For all the framers knew, the near future might bring female suffrage in states other than New Jersey. On such matters, the framers favored deferring to the states.

The records of the 1787 Constitutional Convention show that gender neutrality was the prevailing approach from the beginning, although its complete triumph did not come until the end.

William Paterson’s New Jersey Plan, offered early in the convention, followed his state’s gender­-neutral drafting practice:It referred to those participating in public affairs as “citizens,” “inhabitants” and “persons.” Only once did “man” or “men” appear, and then in the phrase “body of men” to describe a presumably armed band defying federal law. But gender neutrality was also characteristic of Edmund Randolph’s Virginia Plan, offered even earlier. From the beginning, moreover, the framers accepted that representation in lower house of the national legislature would be based on state population or wealth — not by the number of males, as in states such as New Hampshire and New York.

To be sure, the framers actively considered some gender qualifications. On July 26, 1787, the convention submitted its adopted resolutions to a Committee of Detail, which was tasked with preparing the Constitution’s first draft. Committee member James Wilson prepared an outline suggesting that electors be limited to “freemen,” as in his own state of Pennsylvania. His colleague Edmund Randolph’s initial outline listed “manhood” along with “citizenship” and “sanity of mind” as possible suffrage qualifications. But the committee deleted those qualifications from its final (Aug. 6) draft because they were “not justified by the [convention’s] resolutions.” Gender qualifications were left to the states, with the possibility of congressional override.

Nor did the Committee of Detail’s draft include explicit gender qualifications for federal officers. It did not use the singular word “man,” and the president was referred to as a “person.” It could, however, be considered ambiguous on the subject, for it followed the language of the New York constitution by describing the national legislature as consisting of “two separate and distinct Bodies of Men.” That draft also granted the president the title of “His Excellency,” with no provision for any “Her Excellency.”

Moreover, any inference that “he” and “men” were generic was weakened on Aug. 29, when Pierce Butler of South Carolina proposed, and the convention adopted, the first draft of the Fugitive Slave Clause. It stated that “If any Person bound to service or labor in any of the United States shall escape into another State, He or She shall not be discharged … but shall be delivered up … ” Of course, the phrase “He or She” might suggest that when the Constitution employed “he” and its variants without their female counterparts, the document was speaking only of males.

On Sept. 10, the Committee of Style began the final drafting process. As reported on Sept. 12, that committee’s version —

* Dropped the “Bodies of Men” description of the national legislature.
* Avoided all use of “man” and “men,” and employed only gender-­neutral terms such as “person,” “citizen,” “inhabitant,” and titles such as “officer” and “elector.”
* Omitted the power of Congress to override state laws on voter qualifications, thereby fully empowering states to enfranchise women for federal as well as state elections.

Around the same time — the evidence conflicts on whether by action of the Committee of Style or by the convention — the Fugitive Slave Clause was amended to delete the phrase “He or She.” As a result, the federal Constitution mirrored the approach of its New Jersey counterpart: Electors and officers were “persons,” “inhabitants,” or “citizens,” and the pronoun “he” and its variants were generic.

During the ratification debates, the Constitution’s gender neutrality, like its religious and racial neutrality, provoked some controversy. That controversy was more muted over gender and race than over religion (anti­federalists argued strenuously for a requirement that federal officeholders be Christians), but traces of it remain in the historical record. For example, “Cato,” an important anti­federalist essayist (probably New York governor George Clinton), criticized the Constitution’s allocation of Representatives by “inhabitants” rather than by male freemen:

… the mode of legislation in the infancy of free communities was by the collective body, and this consisted of free persons, or those whose age admitted them to the rights of mankind and citizenship — whose sex made them capable of protecting the state, and whose birth may be denominated Free Born … But, what aid can the community derive from the assistance of women, infants, and slaves, in their deliberation, or in their defence?

Perhaps due to fear of alienating half the population, most complaints about gender neutrality seem to have been kept out of print. But Hugh Henry Brackenridge, later a justice on the Pennsylvania Supreme Court, preserved some of their content in an essay satirizing anti­federalist arguments:

The first thing that strikes a diligent observer is the want of precaution with respect to the sex of the president. Is it provided that he shall be of the male gender? … Without [such an] exclusion what shall we think if in progress of time we should come to have an old woman at the head of our affairs[?]

In the event, anti­federalists did not prevail, and our choice of credible presidential candidates happily includes some who are female. Contrary to claims of some critics, originalist interpretation does not question their legitimacy.

Answering Questions About the Voting Rules at a Convention for Proposing Amendments

November 2, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, Article V, The Founding, supreme court 
Rob in the Colorado Rockies

Rob in the Colorado Rockies

Note: This column appeared originally at the American Thinker.

In a recent post, I examined suggestions that a convention of the states for proposing amendments adopt a supermajority rule for proposing any amendment. Most commonly suggested is that the convention replace the traditional “majority of states decides” standard with a two thirds requirement.

I explained that this departure from history was politically unnecessary, would make it very difficult for the convention to propose anything, and likely would destroy the convention’s popular support.

This post answers other questions about the issue—including the possibility of a convention that fails to propose because it chokes on its own rules. No statesman will want to be part of such a convention.

In this Q&A I assume the supermajority is two thirds.

Q. Does the convention have the power to adopt a two thirds rule?

A. Yes. Contrary to ill-informed claims that Congress can write rules for the convention, in fact the convention controls its own rules. A simple majority of states present and voting have power to impose, or remove, a two thirds requirement. The issue here is not the power of the convention to require two thirds, but the advisability.

Q. Have earlier conventions altered the “majority of states decide” rule?

A. Many conventions have permitted a bare plurality to make committee assignments, but on substance they have stuck to the “majority of states decides” principle. My previous post lists four efforts to alter that principle, but all of them failed.

Q. The Constitution mentions a two thirds vote (of Congress to propose) and a three-fourths vote (of the states to ratify). Why shouldn’t the convention also be subject to a supermajority?

A. Except in specific cases where the Constitution provides for a supermajority, the constitutional rule for assembly decision-making is a simple majority of a quorum present and voting. This is based on the Founders’ understanding of parliamentary practice and court decisions such as Rhode Island v. Palmer and Dyer v. Blair.

The Constitution requires an amendment to clear many different hurdles. It balances that by requiring (unless there is a local rule to the contrary) only a majority to clear most of those hurdles. Thus: All stages of congressional proceedings except the final proposal vote require only a simple majority. If two thirds of the states apply for a convention, then Congress calls it by a simple majority. Congress chooses the “Mode of Ratification” by a simple majority. State legislatures voting on applications do so by a simple majority. State legislatures and conventions ratify or reject amendments by a simple majority. An interstate convention can propose by a simple majority. Clogging the process further with supermajority requirements in addition to those already specified would upset the constitutional balance.

Q. Are there other constitutional reasons for not subjecting the interstate convention to the two thirds rule?

A. Yes. The Founders told us that for proposing amendments, the Congress and the states were supposed to be in a roughly equal position. The Constitution requires Congress to muster two thirds on the final vote, but it does not require two thirds for Congress to consider the issue. On the other hand, the Constitution does not mandate that the states muster two thirds on the final vote, but it does require two thirds of them to agree before they are allowed to consider the issue in a proposing convention (the application process).

If we impose a two-thirds requirement on the states to at both stages—consideration and final vote—then that leaves them in an inferior position compared to Congress. This also undercuts the constitutional design.

Q. Isn’t it unlikely that a proposed amendment with only majority support will be ratified by three quarters of the states?

A. No one knows in advance. The proposal and ratification processes have very different dynamics. Proposal is centralized in a single body, occurs in a relatively short period of time, and tends to reflect public opinion at that time. Ratification is decentralized over many assemblies and the process takes a much longer time. It also requires long-term public agreement. You simply cannot use the same standard to predict the results of two such very different procedures.

For example, Congress repeatedly rejected the 17th amendment (direct election of Senators), but once it was proposed the states ratified it very quickly. On the other side, Congress proposed the Equal Rights Amendment by stunning majorities, but over time public opinion turned against it and the states rejected it.

Prior interstate conventions preparing proposals for the states have operated on a “majority decides” procedure. Sometimes the states have accepted their proposals, and sometimes not.

Intervening elections also influence ratification. A proposed amendment can become a campaign issue (as the 14th amendment did), and the ensuing elections can serve as an informal referendum on the subject.

Q. We don’t want a failed convention. If, say, only 29 states vote for a proposed amendment and it is not ratified, won’t that be seen as a failure?

A. You are right—we don’t want a failed convention. But as explained above, you cannot predict ratification by the vote at the proposal stage.

And if failure is a possibility, remember that some “failures” become historical successes while others earn only contempt.

Which would be a better precedent: (1) A convention that proposes an amendment that ultimately fails to win approval by 38 states, or (2) a convention that chokes on its own rules, deadlocks, and doesn’t propose anything at all?

I’d be much prouder to be part of the first kind of convention.

History offers some illustrations: The 1861 Washington Convention proposed an amendment that was never ratified, but its proceedings were dignified and they provided us with a “beginning-to-end” pattern for future use. On the other hand, the 1780 Philadelphia “Price Convention” deadlocked with no resolution. Its members haplessly adjourned to a future time, and when that time came, no one bothered to come.

In retrospect, the Washington Convention was a respectable effort and a useful precedent. The Philadelphia Price Convention invites contempt.

Contempt will be the fate, too, of a modern convention that accomplishes nothing because it has choked on its own rules.

The Constitution’s Financial Terms

October 28, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, Constitutional Nuggets, The Founding, supreme court 
Rob in the Colorado Rockies

Rob in the Colorado Rockies

Note: This was originally a four-part series published at the leading constitutional law website, “The Volokh Conspiracy,” which is affiliated with the Washington Post.

This succession of four parts discusses such questions as why the Supreme Court was wrong to characterize the Obamacare insurance penalty as a “tax,” why the apportionment requirement was adopted and why the notorious 3/5 rule was not really about racism.

The different parts are subtitled below.

* * * *

Part I: Taxes vs. Other Financial Exactions
The Constitution authorizes Congress to “lay and collect Taxes, Duties, Imposts and Excises” (Art. I, § 8, cl. 1), but requires that “direct Taxes” be apportioned among the states by population (Art. I, § 2, cl. 3 & Art. I, § 9, cl. 4).

The Supreme Court’s decision in NFIB v. Sebelius, the Court’s first Affordable Care Act case, was the latest in a long line of cases and commentary that have construed the constitutional term “Taxes” too broadly — and defined the constitutional phrase “direct Taxes” much too narrowly.

In this series of four posts, I discuss the original legal force of those and other financial terms in the Constitution. The “original legal force” is how Founding-Era courts would have applied the Constitution, under the interpretive rules of the time. The original legal force is closely related to, but not always the same, as the original public meaning. This series is based, for the most part, on my forthcoming article in Case Western Reserve Law Review: What the Constitution Means by “Duties, Imposts, and Excises” — and “Taxes” (Direct or Otherwise).

The founding generation often referred to government financial exactions collectively as “impositions.” The subject was a prominent feature of public discussion throughout the Founding Era (1763-1791).

The subject of impositions owed its prominence to several causes. First, before the American Revolution, the British Parliament and colonial legislatures levied impositions on their citizens. So also did the American states during time between Independence and the final ratification of the Constitution. Legislation of this kind was often resented and sparked heated public debate.

Second, impositions were central to the conflict with Great Britain. Although American colonists usually conceded the power of Parliament to levy impositions on America for the purpose of regulating commerce among units of the British Empire, the colonists strongly objected to parliamentary “taxes.” In a series of widely-popular pamphlets, colonial lawyers such as John Dickinson and Richard Bland defined the difference. “Taxes,” in their view, were exactions imposed, not to regulate, but for the sole purpose of raising a general revenue. Other impositions, even if they incidentally raised revenue, were not taxes. This was not necessarily the line drawn in British dictionaries, but it became the understanding in America.

Third, after the Revolution, impositions remained central to public debate because of controversy over Congress’s inability to levy them, and congressional efforts to obtain such a power. The congressional journals from those years are filled with material discussing the subject.

Finally, impositions were an important component of the debates over the drafting and ratification of the Constitution. By the Constitution’s Taxation Clause, the framers proposed that Congress be authorized “to lay and collect Taxes.” By other provisions, such as the Commerce Clause, they proposed that Congress receive powers understood to include regulatory impositions. Their continuing recognition of a line between revenue-raising and regulatory exactions was reflected in such constitutional phrases as “Regulation of Commerce or Revenue” (Art. I, § 9, cl. 6). It also was reflected in the compromise embodied in the Origination Clause (Art. I, § 7, cl. 1), which required initial passage in the lower house of Congress for “Bills for Raising Revenue” but stopped short of adopting the rule, prevailing in Great Britain and some American states, that regulatory impositions arise in the lower house as well.

All of these constitutional issues commanded significant public attention during the ratification process (1787-90).

The historical record thus offers a rich store of material elucidating the Founding-Era definitions of the Constitution’s financial terms. The quality of the record is enhanced by the fact that, with one significant exception and a few isolated deviations, it shows a consistent understanding of all those terms.

The one exception pertained to the definition of “taxes.” Pre-Revolutionary pamphleteers referred to them as impositions for the sole purpose of raising a general revenue. By the time the Constitution was adopted, however, taxes generally were defined as impositions for the principal purpose of raising a general revenue. People recognized that if a “tax” was adopted primarily for revenue-raising purposes, it remained a tax if it incidentally affected behavior. Thus, a revenue-raising tariff might have the incidental effect of favoring domestic farmers and manufacturers, but still qualify as a tax.

On the other hand, a levy adopted to fund a program of regulation or primarily to influence behavior (such as the Affordable Care Act’s penalty for not carrying individual health insurance) was not considered a tax and therefore was not authorized by the Constitution’s Taxation Clause. Such an imposition was outside Congress’s power to enact, unless some other enumerated power could be found to support it.

Part II: Duties, Imposts, Excises, and Tonnage
Several provisions in the Constitution contain terms referring to financial exactions. For example, Article I, § 8, cl. 1 authorizes Congress to “lay and collect Taxes, Duties, Imposts and Excises.” Article I, § 9, cl. 5 states that “No Tax or Duty shall be laid on Articles exported from any State.” Section 10, cl. 3 of the same Article refers to “any Duty of Tonnage.”

All of these terms appear widely in written materials published before or contemporaneously with the Constitution. They show that the American meaning of each had crystalized well before the document was ratified, although American usage was not always reflected in British dictionaries. Those materials also show that none of these terms was purely repetitive of any other, although all of them overlapped others.

Tonnage (originally “tunnage”) had begun as a medieval import fee on “tuns” (casks) of wine. By the time of the Founding, the term had broadened into a charge levied on the carrying capacity of ships. Tonnage could be imposed on ships either importing or exporting. In 1787, for example, Virginia imposed a tonnage fee of six shillings per ton on all vessels entering and clearing the harbors of that state. Tonnage could be imposed to raise revenue, in which case it was considered an indirect tax. Tonnage also could be imposed to regulate or facilitate commerce or to fund harbor maintenance or an inspection program, in which case it was not considered a tax.

An impost was an exaction on imports. Thus, a tonnage fee levied on ships entering harbor was a kind of impost, but a tonnage fee levied on ships leaving harbor was not. An impost designed to raise money was a form of indirect tax. For example, a ten-cent impost on each French dress imported was a tax, because such an impost would raise revenue. A one-thousand dollar impost on each French dress, however, would act as a prohibitory tariff and raise no revenue. It was, therefore, a regulation of commerce rather than a tax.

From an originalist point of view, Justice Cardozo’s opinion in Charles C. Steward Machine Co. v. Davis holding that the Social Security tax on employers was an “excise” is constitutional nonsense. To the founding generation (and in this respect American and British usage are in full accord) an excise was a domestic tax on the consumption of commodities, especially manufactured goods. Excises sometimes were referred to as “inland impositions,” because they were the domestic equivalent of imposts and other duties on goods entering and leaving the country.

An excise might be imposed on all goods of a particular character, or only on foreign goods of that character, such as foreign watches or clocks. What rendered the latter an excise rather than an impost was that it was not levied at the time of import, but upon consumption within the levying jurisdiction. If the product was re-exported rather than consumed within the jurisdiction, no excise was imposed.

Excises were most commonly laid at the point of sale, but this was not invariably true. Excises on certain large, luxury goods, such as carriages, typically were levied on an annual basis. In England, a cider excise was imposed before sale.

Although an excise might be enacted either to regulate commerce or to raise revenue, usually the primary motivation was to raise revenue. An excise adopted to raise money was an indirect tax. Often, however, the legislature had a subsidiary interest in discouraging consumption of the items excised.

Duties. American usage defined a “duty” as any financial exaction that did not qualify as a direct tax. In other words, the term included all regulatory impositions and all indirect taxes. The Constitution’s Taxation Clause authorized duties imposed principally to raise revenue. Other provisions, such as the Commerce and Post Office clauses authorized regulatory duties.

Full understanding of the “duty” concept must await Part III’s discussion of direct and indirect taxes. Suffice to say at this point that duties generally fell on consumption and on certain special transactions. Tonnage, imposts, and excises — whether revenue-raising indirect taxes or regulatory impositions — were all duties. The historical record contains copious examples of phrases like “impost duty” and “excise duty.” The Constitution itself employs the phrase “Duty of Tonnage.”

Some specialized levies that did not qualify as tonnage, imposts, or excises did qualify as duties. Examples were fees laid on items exported, fees imposed on goods brought into a military fort, fees on vessels for using public wharves, fees on auction sales, fees on legal proceedings, and charges on certain written documents. The notorious pre-Revolution Stamp Tax was a kind of duty. It was imposed on court orders, ship clearances, deeds, mortgages, licenses, pamphlets, newspapers, gambling supplies, and college diplomas.

Part III: Direct and Indirect Taxes
A succession of courts and commentators, culminating in Chief Justice Roberts’ opinion in NFIB v. Sebelius, has expressed confusion about the scope of the constitutional term “direct Tax.” Courts and commentators usually end up defining it narrowly to include only capitations and property taxes, and sometimes only real property taxes. The Sebelius opinion, for example, stated:

Even when the Direct Tax Clause was written it was unclear what else, other than a capitation . . . might be a direct tax . . . A tax on going without health insurance does not fall within any recognized category of direct tax. It is not a capitation. Capitations are taxes paid by every person, “without [as Justice Samuel Chase once suggested] regard to property, profession, or any other circumstance.” . . . The payment is also plainly not a tax on the ownership of land or personal property. The shared responsibility payment is thus not a direct tax that must be apportioned among the several States.

Yet the future Chief Justice John Marshall, speaking at the Virginia ratification convention, did not consider the term “direct tax” at all unclear. He told his audience, apparently without losing credibility, that “The objects of direct taxes are well understood.”

Who was right?

John Marshall was right. The historical record leaves little doubt as to the objects of direct taxation.

The Constitution’s text designates capitations (head or poll taxes) as “direct.” But Justice Samuel Chase erred when he suggested in Hylton v. United States that capitations were paid “without regard to property, profession, or any other circumstance.” To be sure, capitations often were fixed initially at sum of money per head, and they therefore could be more regressive than other levies. But legislatures commonly graded or lifted capitations for all sorts of reasons.

For example, legislatures frequently reduced and eliminated the poll tax due from the poor. They also granted complete or partial exemptions to persons who lived in particular places, who had reached (or not reached) a stated age, who were married, or who pursued particular occupations. The Massachusetts legislature, for example, exempted soldiers and the staff of Harvard College and “settled Ministers of the Gospel [and] Grammar School-Masters.” The Connecticut legislature exempted the president of Yale University.

In fact, when such practices are taken into account, the Affordable Care Act’s insurance penalty, if it be considered a tax at all, is best classified as a capitation. The income and other criteria for determining its size and scope are fully consistent with categorizing it as such.

I am uncertain where the notion arose that, in addition to capitations, only land or property taxes were “direct.” One possible explanation is that the British Parliament and some American state legislatures referred to their respective direct tax statutes as “the land tax.” But that title was a misnomer. Those statutes were not limited to land. They were omnibus laws that imposed specified rates on a wide range of items.

For example, the British Parliament’s “land tax” imposed rates, not only on real property and associated hereditments, but on (1) debts due to the taxpayer, (2) business and personal chattels, and (3) earnings, pensions, and annuities sourced from public funds. Similarly, Pennsylvania’s “land tax” levied not only on land, but on livestock, slaves, and indentured servants.

In fact, most American direct tax statutes imposed their rates on all sorts of items. For example, a 1779 Connecticut direct tax law levied on polls and real estate, but also on:

* all individual net wealth exceeding £50;
* several kinds of livestock;
* instrumentalities of transportation, including ships and other vessels, and coaches and other vehicles;
* clocks and watches;
* silver plate;
* income from interest received on loans;
* traders’ and shopkeepers’ inventory;
* the profits of ironworks and other enterprises; and
* the businesses of attorneys at law and speculators.

Admittedly, the line between direct and indirect taxes was not always crystalline. One might argue that a particular Massachusetts “excise” levied on cider mill production was really a direct tax rather than an excise. As in Hylton v. United States, one might quarrel over whether an annually-imposed levy on consumer-owned carriages was direct or indirect. Nevertheless, contemporaneous tax statutes, public discussion, newspapers, treatises, and governmental publications render rather clear the fundamental difference between the categories: A tax was direct if laid on one’s status or on one’s living or livelihood — that is, if it was levied on heads, on the ordinary effects of daily life, or on production. Taxes on wealth, property, businesses, and income were all direct. Taxes were indirect (and was therefore duties) if imposed on the consumption or on certain specific transactions, such as importing, exporting, and issuing legal documents.

As I explain in my article, the distinction between direct and indirect levies was primarily political and moral rather than economic.

Part IV: The Apportionment Rule
The apportionment rule appears twice in the Constitution. Article I, § 1, cl. 3 originally provided that

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three-fifths of all other Persons [i.e., slaves].

Article I, § 9, cl. 4 stated that “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.”

The Constitution’s apportionment rule has spawned commentary suggesting that the rule was an endorsement of slavery. My investigation did not find that to be the case.

Behind the apportionment requirement was this unifying principle: At least in the lower legislative chamber, taxation should be coupled with representation. This principle had been a justification for the Revolution and no one active in the debates over the Constitution seems to have overtly disagreed with it. The framers saw the practical application of this principle in an apportionment rule that tailored each state’s tax burden to its congressional representation.

In addition to the taxation/representation principle, there were at least two other considerations behind the decision to apportion direct taxes. First, apportionment was the prevailing custom: England apportioned direct taxes by counties and other localities, and most, if not all, states similarly allocated them among local units. The Articles of Confederation allocated requisitions among states according to their respective land values.

Second, the Founders generally subscribed to the view that government was a public trust and should be conducted on fiduciary principles. They particularly emphasized the duty of impartiality—that is, in equal circumstances, equal treatment of those served. The apportionment rule is one of several constitutional provisions designed to assure impartial federal treatment of the several states. Without the apportionment rule, a congressional majority from one group of states might vote to extract a disproportionate share of revenue from the rest.

Yet apportionment could be administratively clumsy. It also might work injustice among similarly-situated individuals who happened to reside in different states. So there was an argument for limiting its scope. The manner in which the framers did so was to apply the apportionment rule to direct taxes only. For indirect taxes, the framers substituted a ban on federal taxation of exports and a requirement that indirect taxes and “Regulations of Commerce or Revenue” be uniform throughout the nation.

There were at least three reasons for limiting apportionment to direct taxes:

* The apportionment rule was problematic when applied to import and export duties because accidents of geography resulted in much higher import and export activity in some states than in others.

* The protection offered by apportionment was more crucial for direct than for indirect levies, since more direct than indirect taxes were imposed on status rather than on transactions, which could render it difficult for a citizen to raise the funds to pay the tax collector.

* Limiting apportionment to direct taxes likely would restrict it to taxes rarely imposed. The framers expected the new federal government to rely, at least in times of peace, almost exclusively on indirect levies. One reason was that direct taxes were profoundly unpopular in every part of the country (and not just in the South).

What of the specific apportionment formula? Was the decision to count five slaves for every three free persons an expression of racism and an endorsement of slavery? Not really.

The framers needed to find a new way to apportion direct taxes because the Confederation system of allocating requisitions by state land values had proved impractical. Apportionment by actual taxes paid likewise seemed unworkable.

In arriving at the apportionment formula, the starting point was collective agreement that each state’s contribution in federal taxes should be a function of (1) the state’s population (2) and its wealth. Experience strongly suggested that, for the most part, wealth followed population. In other words, population usually was a good proxy for wealth.

What was usually true, however, was not true always. Slavery created a valuation problem. The conundrum was this:

* Slaves contributed to a state’s wealth, so if one of two similar states with the same free population also contained slaves, then the state containing slaves would produce more tax revenue, but

* although slaves produced wealth, they did not produce as much wealth as an equal number of free people. This was because slaves could not sell their labor or talents in the free market, where incentives for production were strongest and labor and talents fully valued. Thus, given two similar and equally-populous states, one entirely free and the other slaveholding, the state entirely free would produce more tax revenue.

To attune state representation to projected tax contributions, therefore, the framers needed to calculate the tax productivity of each slave as some fraction of the tax productivity of each free person. As it happened, the Confederation Congress already had estimated this fraction as three-fifths.

Madison’s summary of the 1783 congressional debates that produced the formula show that the considerations leading to it were purely economic. They included the respective imports and exports from states relying, or not relying, on slavery; the effect of climatic differences on productivity; the levels of consumption of free and unfree persons; and, most importantly, the fact that slaves did not have the same positive incentives to produce that motivated free people. During the deliberations, moreover, the term “free white inhabitants” was altered to drop the word “white,” thereby including with full parity the 60,000 free African Americans then living in the United States. Also included at full parity were Indians who paid taxes — i.e., those subject to direct state rather than tribal authority.

American slavery was the product of racism (among other causes), but the apportionment formula was not. It was an acknowledgment that people — of any race — produce more wealth, and therefore more tax revenue, when they operate in free markets rather than under conditions of command and control.

The framers adopted the apportionment rule unanimously and the three-fifths formula with equal votes from the North and South.

Trying to Alter the Traditional Amendments Convention Voting Rule Is a Mistake

October 27, 2015 by Rob Natelson · 1 Comment
Filed under: All Postings, Article V, The Founding 
Rob in the Colorado Rockies

Rob in the Colorado Rockies

Note: This article first appeared in The American Thinker.

Advocates of a federal balanced budget amendment are closing in on the 34 states necessary to require Congress to call a convention for proposing amendments. Other groups, such as the Convention of States project, are working assiduously toward the same goal. If they succeed, it will a constitutional milestone, and a tribute to the dedication of millions of Americans who recognize that the federal government is sorely in need of reform.

Because a convention seems increasingly likely, some state lawmakers have been engaged in advance planning, which is very wise.

Less well considered are suggestions to modify traditional voting rules with an unprecedented system that would make it very difficult for the convention to actually propose any amendments.

Since the late 17th century, American states (and before them, colonies) have met in convention at least 36 times. Meetings of this type are essentially negotiating sessions among sovereigns, and therefore among equals. At those meetings, the voting rule for approving proposals has been a simple majority of states present and voting.

Some convention planners have suggested rejecting this tradition in favor of a rule by which no amendment could be proposed unless a super-majority of states (perhaps two thirds) approve it, or unless the approving states are entitled to a certain number of presidential electors. However, altering the traditional voting rule would be impractical and politically unnecessary, and could be politically disastrous.

Why changing the rule is impractical. The history of prior conventions shows such a change to be impractical. Because there is no widely-acceptable alternative to decision by a majority of states, prior efforts to adopt a different formula have always failed.

Here’s an early example: In the 1754 Albany convention, there was apparently talk about giving some colonies more voting clout than others. The official journal shows the convention rejected the idea “to avoid all disputes about the precedency of the Colonies.” The commissioners recognized that departing from the traditional system would bog them down in endless debate.

Another example: In 1783, Massachusetts called for a regional convention where decisions would be made by “a majority of delegates” rather than a majority of states. The attempt came to naught when two of the five states refused to participate.

Still another: In 1850, the Nashville Convention was the scene of competing motions by more populous states for weighted voting. After a day wasted in fruitless debate, the convention returned to the traditional rule of decision by a majority of states.

Yet another: In 1922, a seven-state convention met in several locations (but mostly in Santa Fe, New Mexico) to hammer out an interstate compact. The convention experimented with unanimous voting. The reason behind this was that any compact would have to be approved by all states anyway. In practice, however, the system worked poorly, and eventually broke down. The convention returned to decision making by a majority of states.

All of those gatherings were much smaller than a modern convention for proposing amendments. If negotiating a rule change among a handful of states proved impractical, it almost certainly would prove impractical in a 50-state convention. Moreover, even if the assembly approved such a change, states that applied for the convention on the assumption that traditional protocols would be honored, likely would walk out.

Why changing the rule is politically unnecessary. Altering the traditional rule is sometimes is justified this way: “Because a bare majority of thinly populated states could propose an amendment opposed by a majority of the U.S. population, we need a super-majority to assure this doesn’t happen.”


Suppose a bare majority of states, all with low populations, voted to propose an unpopular amendment. So what? The proposal would be merely a proposal. There is no harm in letting a popular minority offer proposals; after all, a minority in Congress may co-sponsor a bill. But just as it takes a majority of each house of Congress to actually pass a bill, it requires three fourths of the states to ratify an amendment. Put another way, if only only 13 (out of 99) legislative chambers say “no,” the proposal is dead. And that will be the fate of any proposal that lacks broad popular support.

Nor, in the real world, will an unpopular measure even be proposed. As the representatives of their respective state legislatures, most commissioners will be seasoned politicians unlikely to waste their time and political reputations promoting obvious losers.

Also, in the real world, the chance of a convention majority consisting only of small states is virtually nil. The current political configuration of America is such that any majority will consist of both large and small states. Sparsely-populated red state Wyoming will vote with big red states like Texas and Florida, not with little blue states like Vermont. Vermont will vote with big blues like New York and California.

So any majority will include a hefty number of large-population states. You can learn more about the fruitlessness of manipulating suffrage rules from an analysis by Article V expert David Guldenschuh.

Why changing the rule could be politically disastrous. If a convention is called, the principal reason will be the dedication of innumerable state lawmakers and grass-roots activists. Almost without exception, these citizens have acted in the belief that the convention will follow traditional protocols. If insiders try to change those protocols after the fact, the convention’s popular support will vanish in an instant.

I spent many years in politics, and I learned the hard way that it pays to learn from experience. Of course, convention rules have to be modified to meet modern technological conditions, but in the essentials planners must respect the lessons of the past.

The traditional voting system has worked for 300 years. It can work for us as well.

Still More Evidence That An Amendments Convention is a “Convention of States”

October 15, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, Article V, The Founding, supreme court 

2009 RGN

The term “convention of states” (or “convention of the states”) dates at least from the year 1780. By 1788 it was being applied specifically to a convention for proposing amendments under the new Constitution.

Throughout the 19th century, the phrase “convention of states” was probably the most common way to denominate an Article V convention—even more common than the formal name, “convention for proposing amendments.” In 1831, the U.S. Supreme Court itself referred to an amendments convention as a convention of the states. As far as I can find, before the 20th century no one confused it with a constitutional convention.

An earlier post listed official founding-era legislative documents and resolutions that specifically designated an amendments convention as a “convention of states.” The post you are reading, on the other hand, provides evidence from the debates over the Constitution’s ratification. Unlike the official documents, this material does not use the specific phrase “convention of states,” but it does show that participants in the ratification debates acknowledged that the convention would be state-controlled.

The ratification-debate quotations arose in the following context: The Constitution’s opponents argued that if the document proved defective in practice, it would be very difficult to amend. They therefore argued that a new convention should be called to rewrite or replace the document before the necessary nine states had ratified it.

On the other hand, the Constitution’s supporters asserted that it was better to ratify the document first, and then use Article V to remedy any shortcomings. The proponents contended that if amendments become necessary and Congress refused to propose them, then a convention could do so. Comments by both sides reflect the universal assumption that the proposing convention would be an agent of the state legislatures. They also reflect a universal assumption that the states could, through their applications, designate and limit the subject of the amendments.

At the time, there were 13 states. So nine states were necessary to ratify the Constitution, nine states were needed to force an amendments convention after ratification, and ten were required to ratify proposed amendments.

Here are some relevant comments:

* The anti-Constitution writer who signed his name “A Farmer” was probably John Mercer of Maryland, who had represented his state at the Constitutional Convention. In dismissing the amendments convention idea, he wrote, “I despair of proper state amendments.” (Italics added.) Instead he recommended a new convention before the Constitution was ratified. (12 Documentary History of the Ratification of the Constitution, p. 538).

* Samuel Chase (later to serve on the U.S. Supreme Court) agreed. He pointed out that “it is now [i.e., before the Constitution was ratified] in the power of five states to obtain amendments—afterwards there must be nine.” Id. at 640.

* Samuel Jones, a New York supporter of the Constitution, was a state lawmaker who served as a delegate to his state’s ratifying convention. He stated:

The reason why there are two modes of obtaining amendments prescribed by the constitution I suppose to be this—it could not be known to the framers of the constitution, whether there was too much power given by it or too little; they therefore prescribed a mode by which Congress might procure more, if in the operation of the government it was found necessary; and they prescribed for the states a mode of restraining the powers of the government, if upon trial it should be found they had given too much. (Italics added.) 23 id., pp. 2523-24

* Tench Coxe was among the most widely-read Federalist essayist. He took head-on the argument of the Constitution’s opponents that, once ratified, the document would be impossible to amend:

It has been asserted, that the new constitution, when ratified, would be fixed and permanent, and that no alterations or amendments, should those proposed appear on consideration ever so salutary, could afterwards be obtained. A candid consideration of the constitution will show this to be a groundless remark. It is provided, in the clearest words, that Congress shall be obliged to call a convention on the application of two thirds of the legislatures; and all amendments proposed by such convention, are to be valid when approved by the conventions or legislatures of three fourths of the states. It must therefore be evident to every candid man, that two thirds of the states can always procure a general convention for the purpose of amending the constitution, and that three fourths of them can introduce those amendments into the constitution, although the President, Senate and Federal House of Representatives, should be unanimously opposed to each and all of them. Congress therefore cannot hold any power, which three fourths of the states shall not approve, on experience. (Italics in original.) 18 id., pp. 283-84.

* James Madison, who had been primarily responsible for the wording of Article V, stated the same thing more mildly. He noted that the Constitution “equally enables the General, and the State Governments, to originate the amendment of errors, as they may be pointed out by the experience on one side or on the other.” The Federalist No. 43.

Since Congress could propose amendments itself, Madison’s statement would have been inaccurate unless the states were able to propose by controlling the proposing convention.

* George Washington also understood that applying states would control the convention, since in April, 1788, he wrote to John Armstrong that “a constitutional door is open for such amendments as shall be thought necessary by nine States.” (Letter dated Apr. 25, 1788.)

* Alexander Hamilton showed the same understanding:

But every amendment to the Constitution, if once established, would be a single proposition, and might be brought forward singly. . . . And consequently, whenever nine, or rather ten States, were united in the desire of a particular amendment, that amendment must infallibly take place.” Federalist No. 85.

Thus, those who addressed the issue during the ratification debates fully understood the state-based nature of the convention for proposing amendments—i.e., that such a gathering, like all of its predecessors, would be a “convention of states.” Their comments confirm past practice, the formal resolutions and other documents from contemporaneous state legislatures, and the U.S. Supreme Court. I have found no comments from the founding era that contradict this view.

What Did The Founders Mean by “Due Process of Law?” Hint: SCOTUS to the contrary, it had nothing to do with same-sex marriage

October 9, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, The Founding, supreme court 
Rob in the Colorado Rockies

Rob in the Colorado Rockies

Note: This article originally appeared in The American Thinker.

The Fifth and Fourteenth amendments to the Constitution each has a Due Process Clause. The Fifth Amendment Due Process Clause prohibited the federal government from depriving any person of “life, liberty, or property without due process of law.” The Fourteenth Amendment extended that prohibition to the states.

The Supreme Court has held that the Due Process Clauses ban government procedures the justices deem unfair. Thus the Court has said that the Due Process Clause of the Fourteenth Amendment requires states to allow an accused person to have a defense attorney, to allow an accused person to respond to accusations, and so forth. Legal scholars say that such cases are examples of “procedural due process.”

There is also a doctrine that goes by the oxymoronic name “substantive due process.” The Court uses this doctrine to justify voiding any state or federal law the justices think has no possible “rational basis.” When the law infringes an interest the Court deems particularly important, it strikes down the law more readily. Understandably, the Court deems most of the rights protected by the Bill of Rights to be particularly important. The justices go further, however, and also void laws that “unduly” infringe interests not listed in the Constitution, such as abortion and sexual behavior.

In United States v. Windsor, for example, the Court relied (apparently—the decision isn’t entirely clear) on the Fifth Amendment Due Process Clause to invalidate a federal law that provided that for federal (not state) purposes, “marriage” was limited to one man and one woman. In Obergefell v. Hodges, it held that the Fourteenth Amendment Due Process Clause invalidated similar state laws.

Is this what the Founders had in mind when they included “due process” in the Fifth Amendment in 1791?

No. Insofar as I am aware, there is not a shred of evidence that the Founders considered rights such as freedom of speech, legal counsel, etc. to be covered by the term “due process.” If they had, then they would not have listed them separately in the Bill of Rights. Nor, despite some claims to the contrary, did the Founders think “due process” included unenumerated rights. It is true that a few 18th century judges argued that laws that violated certain unenumerated rights were void, but those judges based their position on natural law, not on due process.

So what did the Founders’ Due Process Clause mean? It meant that in prosecuting a person criminally or civilly, the government must honor existing law. Government may not prejudice a defendant by changing the law retroactively. Government may not prejudice a defendant by making up the rules as it goes along.

The evidence for this conclusion is, in my view, simply overwhelming.

The phrase “due process of law” was a synonym for the phrase “law of the land,” which appeared in Chapter 39 of the 1215 version of Magna Carta, and was included in later versions as well. Chapter 39 read as follows:

No free person shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land. (My translation).

If you read Chapter 39 carefully, you can see that it prohibited the king from punishing a person unless punishment was authorized by either (1) a judgment of that person’s equals (peers) or (2) a provision in existing law (”the law of the land”) that authorized the punishment. The latter of the two alternatives came to be called “due process of law.” Notice the disjunctive “or”—a judgment by one’s peers was an alternative to due process, not (as the modern Court seems to think) part of it.* The drafters of Magna Carta inserted this language to rectify King John’s practice of manipulating or making up legal rules to hurt people he wished to attack.

The Founders knew this history well. It was discussed at some length in legal books of the time, including two by Matthew Hale, a highly-regarded legal commentator.

The word “process” originally referred to the writ sent out by a court initiating a lawsuit (from the Latin procedere, to move foreword). We still use “process” in that way to refer to a legal summons, as in the phrase “process server.” Hale wrote that “no man shall be put to answer without presentment before justices or matter of record, or by due process and writ original according to the old law of the land.” Note the connection of “due process” with “writ original.” Note also that presentment, like the judgment of one’s peers, is an alternative to due process, not (as the modern Court seems to think) part of it.

As for the word “due:” I used to believe it was a flexible term meaning “reasonable.” However, the evidence has changed my mind. Contemporaneous dictionaries tell us the word “due” in this context meant “correct,” “right,” “proper,” or “appropriate.” In other words, due process was process “according to the old law of the land”—that is, legally correct process.

On the other hand, the scope of due process, while constricted, was not quite as constricted as the foregoing might suggest. According to Giles Jacob’s legal dictionary (the favorite work of its kind among the founding generation), by the eighteenth century the word “process” could apply to judicial procedures generally. It was no longer limited to the initial court writ. The effect of this change was that the due process guarantee protected citizens at all stages of a suit, not just at the beginning.

In addition, the due process guarantee protected against executive as well as judicial misconduct. Recall that the guarantee arose as a check upon the executive actions of King John. Hale stated: “Regularly it is not lawful for any man to take away the life of another, though a great malefactor, without evident necessity, (whereof before) or without due process of law, for the deliberate, uncompelled extrajudicial killing of a person . . . is murder.” Obviously, if due process protected against extrajudicial killings, then it was not limited to court proceedings.

In England there was a theoretical reason for not applying due process protection against the legislature, for Parliament was considered all-powerful. But there was no such reason in the United States. In fact, as I point out in my book, The Original Constitution, the Fifth Amendment Due Process Clause may have been added to the Bill of Rights specifically to protect against Congress: John Lansing of New York and James Madison of Virginia probably sought its inclusion to guard against some federal retroactive legislation not banned by the Constitution’s guarantee against ex post facto laws.

In sum, the Fifth Amendment Due Process Clause was designed only to protect against prejudicial manipulation of legal rules against citizens prosecuted by the federal government. It was an important component of the Bill of Rights, but it was only a component. It was not a balloon that judges could blow to any size they wished.

What of the Fourteenth Amendment’s Due Process Clause—the one that constricts state rather than federal power? The issue here is more difficult. Some researchers who concede that the Fifth Amendment Due Process Clause was narrow nevertheless maintain that by 1868 Americans had a broader understanding of “due process” than did the Founders. They would give the term different meanings according to where it appears in the Constitution.This is not as strange as it may seem: In a few other instances a term appearing in different parts of the document can have different meanings.

My initial review of the cases cited to show an expansion of due process between 1791 and 1868 found that all or nearly all fit within the earlier definition—they were mostly responses to unfair retroactivity. However, I have not studied the question thoroughly, and therefore cannot offer an authoritative opinion on whether Fourteenth Amendment Due Process really is broader than Fifth Amendment Due Process.


* Some translations render the “or” as “and.” That is a mistranslation of the Latin conjunction vel.

How A Famous English Convention Clarifies the Role of a Convention of States

September 26, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, Article V, The Founding, supreme court 
Atop St. Paul's Cathedral, London

Atop St. Paul's Cathedral, London

Note: This article first appeared on the American Thinker website.

In the Anglo-American constitutional tradition, a “convention” can mean a contract, but the word is more often applied to an assembly, other than a legislature, convened to address ad hoc political problems. The “Convention for proposing Amendments” authorized by Article V of the Constitution is designed to be that kind of assembly.

The first political conventions were held in England in 1660 and 1688-89. These gatherings looked something like parliaments, but they were entitled “conventions” because only the Crown could call a parliament, and they were not called by the Crown. Moreover, they were convened to address specific constitutional issues, not to legislate.

The 1660 convention led to the restoration of the Stuart line of kings after the failed English experiment with republicanism under Oliver and Richard Cromwell. The 1688-89 convention dealt with the political crisis arising when the second James Stuart (i.e., James II) was forced to flee the kingdom by popular outrage over his arbitrary and unconstitutional misrule and by the invading army of William of Orange.

The American Founders were much influenced by the English convention experience, which they grouped with the gathering of the barons that forced King John to agree to Magna Carta (1215). Between 1689 and 1787, Americans themselves frequently used the convention device, either to address problems within particular polities (conventions of the people) or to address issues of regional or continental importance (conventions of colonies or states).

Particularly important to the American Founders were the proceedings of the 1688-89 convention because it led to parliamentary supremacy over the Crown and adoption of the English Bill of Rights—or, as that document was entitled after adoption, the “Declaration of Right.” Both our own Declaration of Independence and our Bill of Rights owe a great deal to the English Declaration of Right.

After James II’s flight had left the throne vacant, the two houses of the previous parliament instructed William of Orange to call a “Convention of the Estates of the Realm.” The estates of the realm were the lords and the commons, and they met separately. Each elected its own officers and decided on its own procedures. In essence, each estate had one vote, and the concurrence of each was necessary for the convention to approve any measure.

Thomas Babington Macaulay, the great 19th century English literary figure, described in Chapter 10 of his History of England the general philosophy under which the 1688-89 convention operated:

The business of an extraordinary convention of the Estates of the Realm was not to do the ordinary work of Parliaments . . . but to put right the great machine of government. . . .

On these grounds the Commons wisely determined to postpone all reforms till the ancient constitution of the kingdom should have been restored in all its parts, and forthwith to fill the throne without imposing on William and Mary any other obligation than that of governing according to the existing laws of England. In order that the questions which had been in dispute between the Stuarts and the nation might never again be stirred, it was determined that the instrument by which the Prince and Princess of Orange were called to the throne, and by which the order of succession was settled, should set forth, in the most distinct and solemn manner, the fundamental principles of the constitution. This instrument [was] known by the name of the Declaration of Right . . .

After describing the contents of the Declaration, Macaulay added:

But, though a new constitution was not needed, it was plain that changes were required. The misgovernment of the Stuarts, and the troubles which that misgovernment had produced, sufficiently proved that there was somewhere a defect in our polity; and that defect it was the duty of the Convention to discover and to supply.


Thus the Convention had two great duties to perform. The first was to clear the fundamental laws of the realm from ambiguity. The second was to eradicate from the minds, both of the governors and of the governed, the false and pernicious notion that the royal prerogative was something more sublime and holy than those fundamental laws. The former object was attained by the solemn recital and claim with which the Declaration of Right commences; the latter by the resolution which pronounced the throne vacant, and invited William and Mary to fill it.

Today, the role of the Convention for Proposing Amendments should be seen, and usually is seen, in much the same light: not to alter the fundamentals of the Constitution, but to

* clarify the Constitution’s true meaning by sweeping away false interpretations that have accrued over the years and

* adopt changes that require the federal government to comply with the vision of the Founders in modern conditions.

The first goal can be met by amendments overruling rogue Supreme Court decisions, just as amendments previously have been used for that purpose. The second can be met by, for example, requiring a balanced budget, more firmly limiting federal authority, and reorganizing the judiciary so that it more fairly applies the constitutional system of checks and balances.

More discussion of the law of Article V Conventions, appears in my legal treatise on the subject.

Rob Natelson on TV: Explaining the Constitutional Issues in “Birthright Citizenship”

September 12, 2015 by Rob Natelson · Comments Off
Filed under: The Founding, supreme court 

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