Update on Article V and the Necessary and Proper Clause

January 16, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, Article V, The Founding, supreme court 

2009 RGNSome people have asked for further clarification on why the Constitution’s Necessary and Proper Clause does not grant Congress power to use its convention call to regulate a Convention for Proposing Amendments.

This is a technical area and can be difficult to grasp (or explain, for that matter). You have to understand the nature of the Necessary and Proper Clause, analyze its wording, and put together a variety of judicial rulings.

Accordingly, I’ve expanded my review of the subject. You can find it here.

Is Obama Violating the “Take Care” Clause?

January 11, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, ObamaCare, The Founding 

2013-0822 RGN
The Constitution requires the President to “take Care that the Laws be faithfully executed.” This “take Care” language came from 18th century commissions and formal instructions by which higher officials delineated what lower officials were to do. The premier examples were royal instructions to colonial governors, but the Continental and Confederation Congresses used the same language in instructing civil and military officials.

The Constitution’s language is both a grant of enumerated power to the President and a mandatory duty imposed on him.

The Obama administration’s partial refusal to enforce various laws has raised questions of whether the President is violating the Constitution’s command, and thus committing an impeachable offense.

The question can be a difficult one, because everyone recognizes that the President has some discretion in exercise of the executive power. For example, the cost of full enforcement might be far greater than the appropriated funds for enforcement, requiring the President to set priorties. Also, fully enforcing the law against some persons technically in violation can work great injustice.

So is Obama violating his constitutional duty or not? Legal scholar Zachary Price examines this question in a thoughtful, balanced article written for Vanderbilt Law Review.

He concludes that in its partial non-enforcement of marijuana laws, Obama is within the scope of his discretion, although somewhat close to the line. Obama crossed the line, however, in refusing to enforce mandates imposed by the Affordable Care Act (Obamacare) and in granting exemptions from the immigration laws to whole classes of people.

Professor Price finds that the George W. Bush administration also exceeded the scope of its discretion in underenforcing “New Source Review” environmental laws.

Resisting Federal Usurpation: Comments by Theophilus Parsons

January 4, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, The Founding 

220px-Theophilus_Parsons2
Several years ago, I wrote on this site about the contributions to the American Founding of Josiah Quincy.

Another little-known Founder who should be more widely celebrated today was Theophilus Parsons.

Parsons was from the same Massachusetts circle that produced Quincy. He was an an outstanding lawyer and an eloquent spokesman for republican government and for federalism.

Although Hamilton’s Federalist No. 28 and Madison’s Federalist No. 46 are justly famous for their expositions of how states and individuals should resist federal usurpation, Parsons also was making the same case about the same time.

Parsons was a leader of the pro-Constitution forces at the Massachusetts ratifying convention. On January 23, 1788—three weeks after the publication of Federalist No. 28 and six days before the Federalist No. 46—he rose in that gathering to point out certain checks and balances inherent in the document.

The oath the several legislative, executive, and judicial officers of the several states take to support the federal Constitution, is as effectual a security against the usurpation of the general government as it is against the encroachment of the state governments. For an increase of the powers by usurpation is as clearly a violation of the federal Constitution as a diminution of these powers by private encroachment; and that the oath obliges the officers of the several states as vigorously to oppose the one as the other. But there is another check, founded in the nature of the Union, superior to all the parchment checks that can be invented. If there should be a usurpation, it will not be on the farmer and merchant, employed and attentive only to their several occupations; it will be upon thirteen legislatures, completely organized, possessed of the confidence of the people, and having the means, as well as inclination, successfully to oppose it. Under these circumstances, none but madmen would attempt a usurpation.

But, sir, the people themselves have it in their power effectually to resist usurpation, without being driven to an appeal to arms. An act of usurpation is not obligatory; it is not law; and any man may be justified in his resistance. Let him be considered as a criminal by the general government, yet only his own fellow-citizens can convict him; they are his jury, and if they pronounce him innocent, not all the powers of Congress can hurt him; and innocent they certainty will pronounce him, if the supposed law he resisted was an act of usurpation.

Parsons played a key role at the convention in other ways. He helped negotiate the deal whereby Massachusetts would ratify while simultaneously proposing amendments—the very seed from which the Bill of Rights grew. He also had been an important figure before the convention, drafting the fine statement of republican principles known as the Essex Result (1778). That document contains a clear explanations of the concept of inalienable v. alienable rights, the basis of which the Founders rarely explained, because they took it for granted:

All men are born equally free. The rights they possess at their births are equal, and of the same kind. Some of those rights are alienable, and may be parted with for an equivalent. Others are unalienable and inherent, and of that importance, that no equivalent can be received in exchange. Sometimes we shall mention the surrendering of a power to controul our natural rights, which perhaps is speaking with more precision, than when we use the expression of parting with natural rights–but the same thing is intended. Those rights which are unalienable, and of that importance, are called the rights of conscience.

After the Constitution was adopted, Parsons continued to practice law and for several years served in the state legislature. Among the clerks educated in his law office was John Quincy Adams, the future president. From 1806 until his death in 1813, he was Chief Justice of the Massachusetts Supreme Judicial Court, where, among his other contributions, he helped shape modern American corporate law.

As if that weren’t enough, he was also a mathematician, classicist, and amateur astronomer.

Get the all NEW Edition of Rob’s popular book: THE ORIGINAL CONSTITUTION!!

December 26, 2014 by Rob Natelson · Comments Off
Filed under: All Postings, The Founding, supreme court 

Get the ALL NEW THIRD EDITION of the popular work, The Original Constitution: What It Actually Said and Meant. You can buy it in either hard copy or Kindle form here.
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The Constitution’s Grants To Persons and Entities Outside the U.S. Government

December 18, 2014 by Rob Natelson · Comments Off
Filed under: All Postings, Article V, The Founding, supreme court 

041410 Rob Natelson-2

A little known aspect of our Constitution is that it delegates power, not just to the U.S. Government and to its units, but also to persons and entities outside the U.S. Government. In each case, the power to act is derived ultimately from the Constitution. Even when those persons or entities are states or officeholders of states, their authority derives from the Constitution rather than from the pool of authority retained by the states under the Tenth Amendment.

The Constitution’s delegations of power to actors outside the U.S. Government are surprisingly plentiful. The first listed in the Constitution is Article I, Section 2, Clause 1 [“I-2-1”], which implicitly authorizes each state to define qualifications for the U.S. Representatives from that state. The Seventeenth Amendment extended this authority to include U.S. Senators.

I-2-4 empowers (and directs) state governors to “issue Writs of Election” to fill vacancies in the House of Representatives.

The original Constitution (I-3-1) also delegated authority to each state “Legislature” to elect U.S. Senators. The word “Legislature” was meant literally: The delegation was to the state representative assembly. It was not to the general state legislative authority, which the assembly might share with the governor (through the veto) or the people (through initiative and referendum). In other words, election of Senators was not subject to the governor’s approval, nor could it be handed off to the people. In addition, I-3-2 empowered each governor to temporarily fill senate vacancies during a legislative recesses. This situation continued until the Seventeenth Amendment moved Senate elections to the voters at large. That amendment also conferred on state legislatures power to authorize the governor to make temporary appointments.

The Supreme Court has held that another grant to each state “Legislature” (I-4-1) actually is a grant to the broader legislative authority rather than merely to the state’s representative assembly alone. The Times, Places and Manner clause allows each state to regulate the “Manner of holding Elections for Senators and Representatives.” Because the grant is to the general legislative authority rather than to elected assembly, the governor can veto such regulations, and the people can make them through the initiative process or approve or reject them through referendum, if the state constitution so provides.

The Constitution further bestowed on state legislatures a veto over congressional acquisitions under the Enclave Clause (I-8-17) and over proposed state divisions and combinations (IV-3-1).

Article II, Section 1 empowers “Each State” to choose the method of selecting presidential electors from that state. The same section, coupled with the Twelfth Amendment, authorizes the electors to choose the President. Again, both powers derive from the Constitution, not from those retained under the Tenth Amendment.

The Guarantee Clause (Article IV, Section 4) grants state legislatures the legal capacity to compel the federal government to protect them against “domestic Violence,” and it gives like capacity to state governors when the legislature cannot be convened.

Article V, which governs the amendment process, grants power to four kinds of assemblies: Congress, state legislatures, state conventions, and a federal convention to propose amendments. The courts tell us that in Article V matters, these assemblies act independently, and not as branches of any government.

Article VI empowers, and directs, state judges to apply the Constitution as the “Supreme Law of the Land.”

When an entity outside the government exercises authority conferred by the Constitution, the Supreme Court says it exercises a “federal function.” However, the Court also has made clear that exercising a federal function does not convert an independent entity into a part of the U.S. government.

One interesting implication of these grants, as I noted in an earlier posting, is that they fall outside the incidental federal legislative power defined in the Necessary and Proper Clause. This is because the Necessary and Proper Clause generally excludes laws not directed to the federal government or to “Departments” and “Officers” of that government.

Apparently in recognition of this, the framers provided for several compensating grants to the federal legislature (i.e., Congress-subject-to-presidential-veto). The Times, Places and Manner Clause permits Congress to regulate, to a certain extent, a governor’s writ of election and to overrule most state regulations of congressional elections. (I-4-1). Moreover, even though states are primarily responsible for selecting presidential electors, Congress may dictate “the time of chusing the Electors, and the Day on which they shall give their Votes.” (II-1-4). And in the amendment process, Congress calls the convention and chooses among two modes of ratification.

The Greatest Constitutional Document of All

December 15, 2014 by Rob Natelson · Comments Off
Filed under: All Postings, The Founding, supreme court 
Rob at the Univ. of Montana

Rob at the Univ. of Montana

This article was first published in The American Thinker.

It is said that no second heir to the British throne has been named John because of the reputation of the first.

King John (reigned: 1199-1216) could be charming and efficient, but he was ruthless and utterly untrustworthy, and several times he drove his subjects to the point of rebellion. Out of one of those rebellions emerged the most influential constitutional document in Anglo-American history—perhaps the most influential of all time.

On June 15, 1215 in the meadow of Runnymede on the banks of the River Thames, English barons forced John to seal the first version of Magna Carta. The Latin title reflects the document’s Medieval Latin text. It came to be called magna (great) to distinguish it from the lesser Charter of the Forest.

Thus the coming year of 2015 marks the 800th anniversary of the event at Runnymede.

John died in 1216, after having repudiated the Charter. However, his successors have repeatedly pledged their adherence to it. Portions remain law in England today.

In many respects, Magna Carta was similar to other medieval European royal charters granting liberties and privileges, and indeed it restated some terms from a charter issued by Henry I over a century earlier. What distinguished Magna Carta was the universality of its grants. It acknowledged rights and privileges not merely for the barons who extracted it, but also for women, for merchants, for the church, for all free persons, and in some cases even for unfree agricultural workers. A particularly striking provision (Chapter 60 of the 1215 version) provided that the barons would grant to their own vassals all the liberties the king was granting them.

This universality probably was due to the vision of Stephen Langton, Archbishop of Canterbury, a former professor at the University of Paris, and the inventor of our system of dividing biblical books into chapters. Langton played a major role in negotiating the settlement between John and the barons.

Subsequent English Kings repeatedly re-issued or re-affirmed Magna Carta, even if they did not always honor its terms. Copies were lodged in every county in England. Magna Carta became the first entry in the English Statutes at Large. It was read aloud to the populace on regular occasions in public places throughout the realm. During the reign of Edward III (1327-1377), Parliament enacted statutes elucidating the meaning of key provisions. By the close of the Middle Ages, Magna Carta was recognized as a document of constitutional proportions.

Parliamentary spokesmen relied on it during their pivotal struggles with the kings of the Stuart dynasty (1603-1689). The most famous of the Parliamentary spokesmen, Sir Edward Coke (1552-1634), penned a treatise on Magna Carta. This subsequently was included in his Institutes of the Lawes [sic] of England, the single most popular law treatise in Britain and in British America until supplanted by Blackstone in 1765. Coke was therefore a primary source from which the American Founders learned their law.

Magna Carta, particularly as interpreted by Coke, formed a basis for terms in key American governmental documents. Echoes or paraphrases appeared in each colony’s charter, in the Massachusetts Body of Liberties, in Pennsylvania’s Frame of Government, and in similar instruments. During the decade of tension with Britain that preceded the American Revolution, spokesmen for the American cause relied partly on Magna Carta to support their case. After independence, Americans inserted provisions derived from Magna Carta into their new state constitutions, into the Articles of Confederation, and into the federal Constitution of 1787.

The Due Process Clauses of the Fifth and Fourteenth Amendments are the successors of Magna Carta’s famous Chapter 39, which provided that the king would not penalize any subject other than according to the judgment of the subject’s peers or the law of the land. The Fifth Amendment Due Process Clause included an implicit ban on many civil ex post facto laws, which served the goal of its drafter, James Madison, of compensating for the narrow ratification-era understanding of the Ex Post Facto Clauses (Art. I, sec. 9, cl. 3 & sec. 10, cl. 1).

The Constitution’s Privileges and Immunities Clause (Art. IV, sec. 2) stems from Magna Carta’s guarantees of free entry and exit from the kingdom for merchants and other travelers (Chapters 41 and 42). The proportionality rule of the Eighth Amendment derives, in part, from Magna Carta’s bans on excessive amercements and on seizure of the tools people used to earn a living.

Magna Carta contains predecessors of the Sixth Amendment guarantees of a local (Chapter 18) and speedy (Chapter 40) trial, and to confront witnesses (Chapter 38). The Thirteenth Amendment proscription against involuntary servitude is prefigured in Chapter 23; aspects of the Commerce Clause (Art. I, sec. 8, cl. 3) by Chapter 33, and the Weights and Measures Clause (Art. I, sec. 8, cl. 5) by Chapter 35. The Fifth Amendment Takings Clause is anticipated by Chapters 19 and 21 of the 1225 version.

No wonder Justices of the Supreme Court have cited Magna Carta in over 175 cases. It a foundation for American liberties—as it has been a foundation of the liberties widely enjoyed throughout the modern Anglosphere.

New II Backgrounder Explains the “Convention of States” Constitutional Amendment Process

December 4, 2014 by Rob Natelson · Comments Off
Filed under: All Postings, Article V 
Rob at the Trevi Fountain in Rome

Rob at the Trevi Fountain in Rome

A new II Backgrounder contains a brief and clear explanation of how the people, through their state legislatures, can address federal dysfunction while bypassing Congress.

The Backgrounder is the first publication of II’s new “Article V Information Center.”

You can read it here.

Principles for Drafting A Balanced Budget Amendment

December 1, 2014 by Rob Natelson · Comments Off
Filed under: All Postings, Article V, The Founding 
Rob at the Univ. of Montana

Rob at the Univ. of Montana

This article originally appeared at The American Thinker.

The Article V Handbook, which I authored for the American Legislative Exchange Council, emphasizes that citizens pressing for constitutional amendments should avoid fringe or unpopular proposals. The Handbook distills four guiding principles for selecting amendments worthy of support:

(1) An amendment should move America back toward Founding principles.

(2) The amendment should enact substantial, rather than merely symbolic or marginal, reform.

(3) The amendment should enjoy supermajority support among the public. There must be room for slippage once opponents begin to attack the proposal.

(4) It should address a subject that state lawmakers of both political parties can understand and appreciate.

“As of this writing,” the Handbook adds, “a balanced budget amendment probably meets all four criteria; an amendment to abolish the income tax probably does not.”

Measured by subsequent success, those four principles have been vindicated. Since the Handbook was published in 2011, seven states have adopted BBA applications—far more than on any other topic. No legislature has adopted an amendment to repeal the income tax.

By my count, there are now 21 valid, aggregable BBA applications outstanding. The 2014 elections created a favorable political environment in the states, so the number may approach the required 34 by the end of next year. However, as BBA activists have long understood, drafting a politically and practically viable balanced budget amendment presents a considerable challenge. One reason lies in the nature of the amendment: establishing rules for budgeting is complicated. But there are other difficulties as well.

The amendment has to have teeth without threatening effective government. The balanced budget rule must take effect without unnecessary delay, but not so fast as to be overly disruptive. It should permit deficit spending in emergencies, but the emergency clause must not be easily manipulable. It must be enforceable without ceding the budget process to the courts. The amendment must be comprehensive enough to do the job, but not overly detailed.

Fortunately, history offers us some valuable drafting lessons. The relevant history includes experience both with state fiscal restraints and with prior U.S. constitutional amendments. Very instructive is the history of the 14th amendment, a critical and necessary measure that almost failed of ratification because of poor authorship.

Here are some drafting suggestions. This list is not exhaustive:

* Keep it short. Americans treasure their Constitution’s brevity, and will be suspicious of an amendment that looks like an economics treatise. Also, the longer a proposal, the more there is for opponents to pick apart. Tax and expenditure limitations in some state constitutions are far too long to suit the U.S. Constitution. At about 425 words, the 14th amendment proved too detailed, and offered opponents much fodder for attack.

* Make the substance fit. An amendment’s substance should blend with the “spirit” of the rest of the Constitution. For example, the federal government is wholly representative in nature, so requiring national popular referenda would be a major, and probably unacceptable, departure.

* Make the language fit. The amendment’s language should be consistent with the rest of the Constitution. If the draft employs words appearing elsewhere in the document, make sure the usages are consistent. Endless disputes have arisen over the 14th amendment’s phrases “privileges or immunities” and “due process of law,” because it is unclear whether the critical words in those phrases mean the same as in other parts of the Constitution.

* As a corollary: Avoid modern technical phrases such as “gross domestic product” or “discretionary spending.” Technical terms engender popular suspicion because everyone knows they can be manipulated. Moreover, as time passes the meaning of technical terms can be forgotten. For several years now, I’ve made a living explaining the Constitution’s many technical phrases to Americans who had forgotten what they were supposed to communicate. That should not have been necessary.

* Don’t overreach. Drafting an overly-strict amendment is one kind of overreach. Another kind of overreach is adding bells and whistles to win the support of particular groups. To be politically acceptable, a BBA should be “clean.” It should feature neither exemptions for entitlements (favored by liberals) nor anti-tax add-ons (favored by conservatives). Bells and whistles create the perception of favoritism and probably will not convince BBA skeptics anyway.

* Avoid numbers and formulae. They create public suspicion and people find them hard to understand. (Most people find the formula in Section 2 of the 14th amendment, for example, to be inscrutable.) Formulae and numbers also are manipulable: Experience with state tax and expenditure limitations shows that a 5% annual “ceiling” often becomes a 5% annual floor.

* Don’t concede the constitutionality of the welfare state. Proposals that assume the validity of existing programs may prejudice future litigation over the validity of those programs. Current spending practices also are inconsistent with the founding-era principle of limited government. Any such a concession will provoke opposition among the fiscally-conservative activists necessary to ensure ratification.

* Favor procedure over substance. Some of the Constitution’s most effective provisions create checks and balances rather than merely mandating “thou shalt” or “thou shalt not.” Instead of defining the “emergency” that justifies a deficit, the amendment should include a special procedure for authorizing it.

* Be very careful with legislative supermajority requirements. Because of how group dynamics work, an excessive supermajority requirement in an assembly the size of the House of Representatives may actually increase deficits. Drafters should consult existing social science research on this topic, or rely on other mechanisms instead.

Readers with additional suggestions should email them to me at rob@i2i.org.

More Evidence An Article V Convention is a “Convention of the States”

November 20, 2014 by Rob Natelson · Comments Off
Filed under: All Postings, Article V, The Founding 
Rob at the Univ. of Montana

Rob at the Univ. of Montana

Earlier this year, I documented one of the reasons we know an Article V convention is a “convention of the states” rather than a mass popular gathering: Founding Era documents tell us so. I listed several such documents. (Subsequent to the Founding, in the case of Smith v. Union Bank, the Supreme Court also referred to an Article V convention as a “convention of the states.”)

Here is another piece of evidence:

In 1788, New York ratified the Constitution, but the state ratifying convention called for extensive amendment. In a circular letter to the other states, it urged that an amendments convention be called. On February 4, 1789, therefore, the New York state assembly, the lower house of the legislature, debated whether to submit an application to Congress for an Article V convention. Only four assemblymen spoke to the issue, but two of them characterized the gathering as a “convention of the states.”

Both of those two were highly significant figures. Samuel Jones had been a key member of the ratifying convention. So also had John Lansing, Jr., a respected judge. Lansing, furthermore, had been a delegate to the Constitutional Convention itself.

No one called the amendments convention anything else, although the eventual application used the term “Convention of Deputies from the several States.” The term “Deputy” was a synonym for “agent”—in this case, the agent of one’s state.

You can read the legislative proceedings in volume 23 of the Documentary History of the Ratification of the United States Constitution.

I have updated the earlier posting accordingly.

One Reason Government Keeps Expanding and Freedom Keeps Shrinking

November 16, 2014 by Rob Natelson · Comments Off
Filed under: All Postings 
Rob in the Colorado Rockies

Rob in the Colorado Rockies

Find out how much federal land ownership the Constitution really authorizes! Get Rob’s book, The Original Constitution: What It Actually Said and Meant.

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Mary Taylor Young’s work, Rocky Mountain National Park: The First 100 Years (2014) contains this profile (p.151) of George B. Hartzog, Jr., the Assistant Superintendent of the park from 1955 to 1957:

“He went on to become National Park Service director from 1964 to 1972. . . He oversaw the acquisition of seventy-two new sites for parks, seashores, and historical monuments . . . Under his leadership, the National Park System more than doubled in size . . . Park Service historian Robert M. Utley described Hartzog as ‘the greatest director in the history of the service.’”

Keep in mind that whatever may have been the benefits from expanding the National Park System, Hartzog’s legacy was one of bigger government and less human freedom. Less freedom because when land becomes part of a national park, citizens may no longer buy, sell, occupy, own, or lease that land. Citizens may not use the land for anything but a narrow range of activities. Classification as a national park also impairs state government’s jurisdiction over territory within its borders.

Ms. Young did not mention that Hartzog is famous (or infamous) for another reason: He pioneered the notorious “Washington Monument Syndrome”—the bureaucratic strategy of blackmailing politicians and the public by diverting available funds to unpopular uses and away from popular ones. The July 5, 2008 Washington Post summarized it this way: “In 1969, when his budget was cut by [President] Nixon, Mr. Hartzog made a daring countermove: He closed all the national parks, including the Washington Monument and Grand Canyon, two days a week.”

Of course, Nixon should have fired Hartzog—who was, in any event, a Democratic holdover hostile to the conservative message the voters had sent in the 1968 election. But it took the unprincipled Nixon three years to dump him. According to the Post, “In 1972, Mr. Hartzog revoked a permit to use a private dock in Biscayne National Park in Florida. The permit was used by Bebe Rebozo, a close friend of Nixon’s. The president promptly fired Mr. Hartzog.”

Here’s more about what the Post wrote about this consummate bureaucrat:

“In almost nine years as director, Mr. Hartzog used personal charisma, political savvy and deep-rooted knowledge of the nation’s park system to increase the scope of Park Service programs and to raise their popularity. He ran the agency like a benevolent dictator . . . .

“He added more than 70 new areas to the Park Service, totaling 2.7 million acres, and doubled attendance at the nation’s parks and historic sites. He was also the only Park Service director to be profiled in the New Yorker magazine . . .

“‘He was an empire builder,’ said Robert M. Utley, who was the Park Service’s chief historian under Mr. Hartzog. ‘His vision fit right into Lyndon Johnson’s Great Society ideas.’

“In 1966, Mr. Hartzog was a key proponent of the National Historic Preservation Act, which increased the range of historically significant properties and created the National Register of Historic Places. The register is administered by the Park Service. . . .

Clemson University memorializes this empire-building bureaucrat with a lecture series in his honor. The Park Service recognizes outstanding volunteers with “Hartzog Awards.”

Now, here’s a question for you: How often have you seen that kind of respect and recognition awarded to a public servant (other than perhaps Ronald Reagan) who actually expanded freedom or trimmed government?

Government will continue to grow and freedom diminish as long as we celebrate people like Hartzog and disregard those anonymous public servants (and believe me, they exist) who trim the size of government and give the public top value for taxes paid.

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