For example, several have long asserted that the Constitution’s grant of power to Congress to regulate “Commerce” was designed to grant authority to regulate the entire economy—or even all social relations. This silly argument has been disposed of multiple times (see this article and its footnotes), but it keeps emerging in articles whose authors are ignorant, or disregardful, of prior rebuttals.
Similarly, statists have portrayed the Necessary and Proper Clause as an “elastic clause,” giving Congress “vast power.” This despite the fact that copious Founding Era evidence shows that the Necessary and Proper Clause was designed to be a rule of interpretation that actually granted no authority additional to that already conferred.
The most recent series of incidents involve writings by law professors trying to justify Congress in dictating campaign finance rules. These professors argue that the Constitution contains a generalized “anti-corruption principle,” and that we should interpret the First Amendment through that principle. The principal promoters of this argument have little background in originalist research.
Professor Seth Tillman (who has a great deal of background in originalist research) has written a new essay, supported by a detailed underlying article, devastating their assertions. Just to quote one example of Professor Tillman’s comments:
Let’s be clear. Lessig and Teachout are asking us to embrace corruption as the key concept espoused by the Framers of the Constitution (and of the Bill of Rights). But when the Framers had a chance (actually multiple chances) to give this concept prominence in the Constitution’s actual text, the Framers chose not to do so. It is not as if they forgot to use this term or, instead, used some close synonym; rather, they actively took this term out of the Constitution. So why should we today embrace the corruption concept as one having constitutional scope or dimension? And, more importantly, how can Lessig or Teachout ask us to do so as an exercise in originalism or in the name of the long-dead Framers? (emphasis added)
I’ve been chagrined to see my own writings cited in some articles promoting the “anti-corruption principle” claims—most often my 2004 article, The Constitution and the Public Trust. Its heavily-documented thesis was that the Founders believed that government should be conducted on fiduciary principles, and that the Constitution’s phrases should be read with that understanding. But I never suggested those principles should trump constitutional text.
Anyway, trust principles actually cut against congressional campaign finance regulation, not in favor of it. This is because it is a clear conflict of interest for a Congress of incumbents to regulate the campaigns of candidates running against them.
Moreover, the Founders were conscious of this conflict of interest, and explained how it should be handled. During the ratification debates advocates of the Constitution expressly represented that Congress’s power (Art. I, Sec. 4) to regulate the “Manner of holding Elections” should be interpreted in a very limited way. I document all this in a more recent article (cited by Justice Thomas last term). That article concludes that the Constitution’s “Manner of holding Elections” referred only to subjects such as the type of ballot and the votes necessary to win. It did not extend to regulation of campaigns, except for bribery in the actual conduct of the polling. Regulation of federal campaigns was consciously left to the states, including state laws against defamation and corruption.
It should not be necessary for serious scholars like Professor Tillman to have to spend time rebutting what historians contemptuously refer to as “law office legal history”—that is, special pleading in historical garb. But the propaganda power of the law professoriate is considerable. So, regretfully, it is necessary.
Thanks to Professor Tillman for his work.
Filed under: All Postings, ObamaCare, The Founding, supreme court
Just to show you that hypocrisy is alive and well in Washington, D.C. (as if you didn’t know), Title V of the Republican bill to “repeal and replace Obamacare” contains some of the same constitutional problems that led 27 states to challenge Obamacare. Under Title V, Congress would partially assume command of state jury trials and what evidence is introduced.
Not surprisingly, the bill’s purported “justification” is the much-abused Commerce Power. However, it likely runs afoul of those parts of Chief Justice Roberts’ decision in which he held that (1) Congress could not invade certain core state powers and (2) although the individual insurance mandate was valid as a tax, it exceeded the Commerce Power.
This week I wrote an essay on the bill’s constitutional problems, which I’ve reproduced below, and in PDF form here.
Supreme Court’s Obamacare Decision Renders Federal
“Tort-Reform” Bill Unconstitutional
Congressional schemes to federalize state health care lawsuits always have been constitutionally suspect. But Chief Justice John Roberts’ opinion in last year’s “Obamacare” case really knocks the props out from under them.
Under the proposed Title V of the American Health Reform Act, Congress would assume vast control over state judicial systems. Some of the bill’s provisions would be reasonable if adopted at the state level. But for Congress to start micro-managing state courts and state juries should frighten anyone who cares about our American constitutional system.
This essay addresses four subjects. First, it outlines some of Title V’s objectionable features. Second, it explains how advocates of the measure try to justify it constitutionally. Third, it shows why the proposal far exceeds congressional powers under our Constitution when that document is read as the Founders intended. Finally, it explains why the bill is likely unconstitutional under modern Supreme Court law as well—and specifically under Chief Justice Roberts’ Obamacare decision.
What Title V Would Do.
The bill would rewrite personal injury law extensively—and not just in federal courts administering federal law. It would intrude on state courts applying state law. For example, the bill requires state judges and juries to adopt federal standards of proof, federal standards of guilt, federal damage rules, and federal deadlines. It imposes rules for attorneys’ fees that override both state law and private contracts. It even mandates that some useful information be withheld from juries.
Many members of Congress were elected after affirming their commitment to federalism—that is, to “states’ rights.” So Section 508 of the bill is entitled “State Flexibility and Protection of States’ Rights.” But the title is misleading.
The very first sentence of Section 508 is about federal supremacy, not state flexibility. It reads, “The provisions governing health care lawsuits set forth in this subtitle preempt, subject to subsections (b) and (c), State law to the extent that State law prevents the application of any provisions of law established by or under this subtitle.”
And what of subsections (b) and (c)? They provide that states may establish rigid damage caps, but may not leave damages to the jury—and that states may make it harder for plaintiffs to prevail, but not easier! In other words, a state may be “flexible” if it does what Congress likes, but not what Congress doesn’t like.
How Supporters of Title V Try to Justify It.
How can advocates justify constitutionally this massive intrusion into state and local governance? They really can’t. So they finesse the issue in precisely the same way the sponsors of Obamacare did: They invoke Constitution’s much-abused Commerce Power.
Their argument has two components. First, they claim that the Founders crafted the Commerce Power broadly enough to allow Congress to intervene. Secondly, they claim that even if the Constitution, properly understood, does not authorize Title V, the Supreme Court still will uphold it under its modern Commerce Power jurisprudence.
The first claim is misrepresentation so gross as to be ludicrous. The second claim would be more plausible—except that the discussion of the Commerce Power in Chief Justice Roberts’ Obamacare decision kicked away much of its support.
Why Title V Violates the Founders’ Design.
If there is one thing that can be asserted with absolute confidence about the American Founding, it is this: Federal control over state judges, state juries, and state tort law is emphatically NOT what the Founders intended. The Constitution created a federal government limited to enumerated (listed) powers, and the Founders did not design those powers to include federal control of state civil justice. The evidence on this point is overwhelming.
In 2011, I investigated the issue thoroughly, and reported my findings in a detailed paper entitled The Roots of American Judicial Federalism, available at http://constitution.i2i.org/files/2011/11/Roots_Am_Federalism.pdf. That paper showed that (1) a core reason the Founders fought the American Revolution was to assure local control of courts, (2) the Constitution was structured to achieve the same goal, and (3) leading Founders specifically represented—not merely once or twice, but again and again—that state civil justice systems and tort law would remain free of federal control. Despite a few half-hearted assertions to the contrary, the paper’s conclusions have never been seriously challenged.
The Importance of the Obamacare Case: Why Title V Likely Violates Modern Commerce Power Doctrine.
Technically, the Commerce Power stems from two separate constitutional provisions. One is the Commerce Clause (Article I, Section 8, Clause 3). It grants Congress authority “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” By “Commerce,” the Founders did not mean everything economic. They meant trade among merchants, transportation, commercial paper, and a few associated activities. Contrary to widespread belief, the Supreme Court has never really changed this definition, except when it ruled in a 1944 case that “Commerce” also included insurance.
The other component of the Commerce Power is the Constitution’s Necessary and Proper Clause (Article I, Section 8, Clause 18). This refers to Congress’s authority to make laws “necessary and proper” for carrying out its other powers. The Founders did not intend the Necessary and Proper Clause to actually give Congress additional authority. Its purpose—as we know from 18th century legal sources and from statements from Founders such as Hamilton, Madison, and James Wilson—was merely to inform the reader that the itemized powers should be read to include certain subsidiary or “incidental” authority.
The leading Supreme Court case on the Necessary and Proper Clause is McCulloch v. Maryland. In that case, Chief Justice John Marshall also explained that the Clause did not grant to Congress any “great substantive and independent powers.” Moreover, in Gibbons v. Ogden (the first great Commerce Power case) Marshall added that “health laws of every description” were outside the federal sphere and exclusively reserved to the states. In other words, under the view of the greatest chief justice in American history, both Title V and Obamacare are utterly unconstitutional.
Supporters of Title V nevertheless point out that the modern Supreme Court has allowed Congress to go beyond those limits. That is true: In 20th century cases such as Wickard v. Filburn (1942), the Court re-wrote the Necessary and Proper Clause to allow Congress more “great substantive and independent powers.” The problem for Title V’s sponsors, however, is that Chief Justice Roberts has informed us that those days may be over.
The most famous part of his Obamacare opinion upheld the individual insurance mandate as a tax. But Roberts issued three other rulings as well:
(1) The mandate was outside Congress’s power under the Commerce Clause;
(2) The mandate was outside Congress’s power under the Necessary and Proper Clause; and
(3) Obamacare’s effort to force its Medicaid expansion on the states also violated the Necessary and Proper Clause.
Observers who understand that the Supreme Court has not greatly expanded the Founders’ definition of “commerce” were not surprised by the first ruling. A mandate that someone buy insurance is not “commerce” as the Constitution uses the term. Neither, for that matter, is a health care lawsuit.
But many found Roberts’ second holding more surprising: Roberts announced a reversion to the original understanding of the Necessary and Proper Clause. Here is a passage from his opinion (with some punctuation removed):
Although the Clause gives Congress authority to legislate on that vast mass of incidental powers which must be involved in the constitution, it does not license the exercise of any “great substantive and independent power[s]” beyond those specifically enumerated. . . . Instead, the Clause is merely a declaration, for the removal of all uncertainty, that the means of carrying into execution those [powers] otherwise granted are included in the grant. . . . [T]he individual mandate cannot be sustained under the Necessary and Proper Clause as an essential component of the insurance reforms. Each of our prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power. . . . This is in no way an authority that is “narrow in scope” or “incidental” to the exercise of the commerce power. . . .
In a Yale Law Journal article, Professor William Baude shows why this language is important: Roberts is saying that if the Constitution doesn’t specifically give Congress a “great substantive and independent power,” then the Necessary and Proper Clause doesn’t give it to Congress either.
Is control of the state court systems a “great substantive and independent power?” You bet it is. The Founders clearly considered the judiciary a very important aspect of government, and the Constitution addressed it in detail. But while prescribing the rules for the federal courts, the framers deliberately omitted any federal role in the state judiciary. Here are some examples:
* The Constitution provides for appointment of federal judges—but not state judges.
* It gives Congress authority to “constitute” (create and regulate) lower federal courts—but not state courts.
* It defines the jurisdiction of the federal courts—but not of the state courts.
* It requires, in many cases, trial by jury in federal court—but not in state court.
The Founders obviously deemed judicial organization and procedure to be a “great and independent” subject, worthy of much constitutional attention. Yet in all procedural and organizational particulars, they left state courts alone. They certainly granted Congress no power to micro-manage them. They left the “great substantive and independent power” of operating the state courts to the states themselves. Under Justice Roberts’ opinion, that’s where it stays.
The part of the opinion dealing with Medicaid buttresses this conclusion. For a 7-2 majority, the chief justice struck down Congress’s efforts to dragoon the states into the Medicaid expansion. His was the latest in a long series of rulings in which the Supreme Court has protected state governments (legislatures, executives, and courts) from what the Court calls “commandeering.”
As in previous cases, the Court held that “commandeering” infringes core state sovereignty. Infringing core state sovereignty violates the Necessary and Proper Clause because a federal law attacking core state sovereignty is not “proper.” A federal statute dictating to state legislatures, judges, and juries how they manage lawsuits arising under their own state law is of that kind.
* * * *
One reason for Congress’s abysmal public approval rating is the perception that most members of Congress are hypocritical power-seekers. Most of the sponsors of Title V assert that Obamacare is an unconstitutional intrusion on the rights of the states and the people. Yet by supporting Title V they are promoting a bill that may be even more constitutionally suspect than Obamacare.
For their own political survival—as well as for the Constitution and for constitutional principle—those sponsors need to back off.
Filed under: All Postings, Article V, The Founding
Some alarmists are comparing an Article V convention to the Republican and Democratic National Conventions. The argument is that an amendments convention can be manipulated or stampeded just as a national party convention can be.
The comparison is absurd—so much so that it shows mostly a lack of knowledge of the Article V process.
First, consider the national party mob scenes. The 2012 Democratic convention had 5554 delegates; the GOP conclave 2286. To forestall any stampede, each was tightly time-limited and controlled from the front. Most of the delegates were not particularly distinguished: They were selected for party loyalty and because they had agreed to support a particular candidate. They had little or no effective input.
Now contrast this with the practice of multi-state conventions.
America’s last general convention of states (Washington, D.C., 1861) had 132 commissioners. All were selected as their respective state legislatures determined. In practice, most were chosen either by the legislatures themselves or by governors with the consent of one or both chambers. The commissioners were certainly not at the intellectual level of our Founding Fathers, but they were a distinguished and sophisticated group. They successfully crafted a compromise amendment that, if ratified, might well have prevented the Civil War.
Of course, there are more states now than there were in 1861, so we can expect a bigger convention. But because each state has one vote, there is little incentive to send huge delegations.
How large is a modern multi-state conclave likely to be? History gives us a clue.
I have been able to identify 14 official multi-state conventions since 1776. (By “official” I mean that participation was authorized by the state legislature or, in the recess of the legislature, the executive.) The average size of each state committee has been about five. The median has been between three and four.
Thus, a reasonable estimate is that a convention for proposing amendments might contain about 250 commissioners—less than 5% the size of the Democratic National Convention. It could be even smaller if the states agreed beforehand to limit the size of their committees.
Because these commissioners will be selected by and responsible to their respective state legislatures, they, too, will be a seasoned group. They certainly will not be readily manipulated or stampeded.
Article V opponents need to stop fabricating objections and work to ensure that if a convention happens, it does so successfully.
Filed under: All Postings, Article V, The Founding, supreme court
In 1988, Oxford University Press published Russell Caplan’s book Constitutional Brinksmanship. It revealed some of the extensive history behind the Convention for Proposing Amendments in Article V of the Constitution.
More recently, we have learned much more about that history. We now know that there were over 30 multi-colony and multi-state conventions before the Constitution was adopted, and that the Convention for Proposing Amendments was based on them. We know what their rules were and how they used the terms that the Framers used in Article V. We also have uncovered a rich history of multi-state conventions and Article V activity after the Constitution was adopted.
Anti-convention alarmists were generally unaware of this history and have been embarrassed by these findings. Some of them, therefore, are now making the astounding claim that all of this prior practice is simply irrelevant!
But the U.S. Supreme Court says they are wrong. So do many other courts. In fact, for over two centuries now, the judiciary has used historical practice to interpret the words in Article V. The courts know that they must consult the Founders’ experience to understand how they used terms like “legislature,” “application,” “call,” “ratify, and “convention.” When that evidence isn’t decisive, the courts turn to later practice for guidance. This is settled constitutional law.
And as any constitutional lawyer can tell you, in recent years the Supreme Court has become even more attuned to history in answering constitutional questions.
Since the courts may have to resolve future Article V issues, their precedents provide far more insight than the unsupported speculations of alarmists.
Listed below are a few of the cases that have used history to interpret Article V. A “U.S.” citation means the case was decided by the U.S. Supreme Court. Most of the others are federal court cases; two were issued by state courts.
* Hollingsworth v. Virginia, 3 U.S. 381 (1798) (following the practice used in proposing the first ten amendments to uphold the 11th).
* Hawke v. Smith, 253 U.S. 221 (1920) (citing Founding-Era evidence to define what the Framers meant by the Article V word “legislature”)
* Barlotti v. Lyons, 182 Cal. 575, 189 P. 282 (1920) (also citing Founding-Era evidence to define what the Framers meant by the Article V word “legislature”).
* Leser v. Garnett, 258 U.S. 130 (1922) (relying on history to affirm the procedure that ratified the 19th amendment).
* Opinion of the Justices, 132 Me. 491, 167 A. 176, 179 (1933) (consulting history to determine how delegates are chosen to a state ratifying convention).
* United States v. Gugel, 119 F.Supp. 897 (E.D. Ky. 1954) (citing the history of judicial reliance on the 14th amendment as evidence that it had been validly adopted)
* Dyer v. Blair, 390 F.Supp. 1291 (N.D. Ill. 1975) (Justice Stevens) (relying extensively on history to determine whether Illinois had validly ratified a proposed amendment)
* Idaho v. Freeman, 529 F.Supp. 1107 (D. Idaho 1981) (also relying on history in discussing a range of questions)
Filed under: All Postings, The Founding, supreme court
Many have attacked the Supreme Court’s 2010 case of Citizens United v. Federal Election Commission for holding that the First Amendment protects the rights of citizens organized as corporations to spend money independently to support or oppose candidates.
But they have been largely silent about another part of the Citizen’s United decision: the part upholding, over Justice Thomas’ sole dissent, federal requirements that contributors publicly reveal their names.
Last year, I wrote that, despite all the carping, Citizens United’s first holding is almost certainly correct. It is correct both under most modern Supreme Court jurisprudence and under the Constitution’s original meaning. The result is correct under the Constitution’s original meaning because the Constitution, as the Founders understood it, does not give Congress power to regulate political campaigns: the scope of the Elections Clause (I-4) is too narrow for that. (Regulation of campaigns was left to the states.) It is correct under most modern jurisprudence, because that jurisprudence has long recognized that people may exercise First Amendment rights under the corporate form.
I did have some questions about mandatory disclosure, however. So several months ago I begin a historical and legal investigation to determine whether the First Amendment, properly understood, permits federal laws requiring that campaign advertisers disclose the names of financial contributors. Current Supreme Court jurisprudence does concede that in some cases forced disclosure may result in free expression being unconstitutionally “chilled.” But the Court does not protect anonymity per se—as the holding in Citizens United demonstrates.
The results of my investigation are contained in a new draft paper, tentatively entitled, Does “The Freedom of the Press” Include a Right to Anonymity? The Original Understanding. As always, I did my best to keep my investigation objective and balanced. But the evidence turned out to be pretty one-sided. Here is what I found:
* Under the First Amendment, political advertising is best analyzed as a branch of “the freedom . . . of the press” rather than as “freedom of speech.”
* During the Founding Era, the term “liberty of the press” and “freedom of the press” were exact synonyms, with the former used somewhat more frequently.
* Although there were some uncertainties, the general meaning of the phrase “freedom of the press” was fairly well understood. In other words, it was not a vague or indefinable term.
* During the Founding Era, the near-universal custom of those writing for the press on political subjects—including, but not limited to the Constitution—was to conceal one’s name. Authors preserved their privacy by writing either anonymously or under assumed names.
* There were important and completely legitimate reasons for privacy, all of which continue to be valid today. (In fact because of intervening changes in defamation law, those reasons may be stronger now than they were then.)
* In addition to universal custom, the historical records contain a fair number of explicit statements that assert, or inescapably assume, that “freedom of the press” includes the right to conceal one’s identity. I also looked for statements claiming that forced disclosure (by government or by printers) was consistent with freedom of the press, but found only one—and it applied merely to disclosure by printers, not by government.
* Under the prevailing law, the right to privacy of identity ended in specific cases of “abuse.” When an author appeared to be guilty of one or more specific offenses, a prosecutor or other plaintiff could require the printer to disclose the name. These offenses included, but were not limited to, defamation, sedition, and treason. In the absence of such an offense, the author’s name was private and none of the government’s business.
A 1782 incident demonstrates the prevailing consensus:
An author had placed an article in a Philadelphia newspaper criticizing state government. Hearing that the editor had revealed the name of the critic to the governor (then William Moore), another writer accused the editor of “treachery.” The strength of the attack showed how strongly the expectation of privacy was. So did the editor’s response.
The editor first explained that the governor had indeed asked the editor for the critic’s identity. But the governor had asked for it only, “if you are at liberty to mention his name.” Thus, both the governor and the writer assumed that, in absence of explicit permission, non-disclosure was the rule.
In response to the governor’s request, the editor then asked the author whether the editor had permission to reveal his name. The author responded, “You are at liberty to give my name to his excellency.” Only then did the editor reveal it.
Reading the historical record left me with the conviction that the Founders would have found mandatory disclosure of contributors to political advertising an outrageous violation of privacy. And certainly inconsistent with freedom of the press.
Of course, it’s really not a shutdown, just a slowdown—more on that below. And in our constitutional system the states, not the feds, are the primary line of government. The states will still be around to help us through.
Neither Denver Post story comes to grips with a central truth: There are things worse than a federal government slowdown. One of those is Obamacare—potentially a far greater, and much longer lasting, disaster.
One of the two stories is “House Pushes Closer to Federal Shutdown.” The e-version is “Budget Fight: GOP Refuses to Drop Assault on Health Law.” It originated at the Washington Post. As both titles suggest, it is written to blame everything on House Republicans. No mention of President Obama’s unprecedented refusal to negotiate. Prior Congresses and Presidents have always been willing to give a little to come to a deal. The Obama position has been “My way or the highway.”
Actually, the House Republicans have been quite moderate about this whole affair. They have repeatedly passed appropriation bills. They have asked only to de-fund one program and have not asked for any other significant budget cuts. (With a $17 trillion deficit, you have to ask “Why not?”) Very moderate, in the overall scheme of things.
A second story, originating at the Los Angeles Times, is entitled “Federal Shutdown Would be Monumental.” Its on-line version is “Federal Officials Warn of Shutdown’s Effects.“Again, both headlines reveal the co-authors’ goal was to panic people—just as they tried to scare us about the sequester.
Would a federal slowdown really be so bad? Social security and other entitlements will continue to flow. Truly vital services will continue. The military and other federal workers will get their back pay. (Anyway, House Republicans stand willing to pass a military appropriations bill at any time.)
Yes, some unconstitutional federal programs will pause. There might be a delay, for example, in grants to promote political correctness or to study the mating habits of apes. But that’s a good thing. Yes, The national parks will close, but for most of them the season’s pretty much over anyway.
Is anyone really horrified at the prospect of, say, not being about to reach an IRS bureaucrat on the telephone?
Will the slowdown hurt the economy? I’m not so sure. If the slowdown reduces the deficit or keeps money in the private economy, it might help. If it forces federal regulators to take a holiday, on balance that might help, too. After all, we’ll still have state regulators available to deal with egregious situations.
For this constitutionalist and fiscal conservative, the stakes are “Obamacare or temporary slowdown?” Given that choice, I’ll take the slowdown any day.
Colorado’s Amendment 66—the billion dollar tax hike—is a constitutional monstrosity.
Amendment 66 is, technically, not entirely a constitutional amendment. It is an unusual hybrid of constitutional amendment and change in the state tax law. The secretary of state refers to it as Initiative 22, and it is on the ballot this fall.
The constitutional change would lock in a hugely-disproportionate share of state spending for a single program at the expense of every other Colorado service, public or private. The statutory change would impose a big hike in the state income tax.
As explained below, the costs across a wide range of areas—including public health and safety—could be immense.
But before we get to that, just think of how unfair this measure is:
Under its rules, everything else would take a back seat to the demands of the school bureaucracy. Law enforcement would suffer. So would disaster relief, parks, the environment, services for the elderly, health care, our universities, not to mention economic investment and the taxpayers’ own needs.
Why? Because Amendment 66/Initiative 22 says that (with a sinister refinement explained below) the state school bureaucracy “shall, at a minimum, receive forty-three percent of sales, excise, and income tax revenue collected in the general fund.” In other words, it requires that we spend nearly half our state general fund for a single service before funding anything else!
And that 43% is only a floor. Amendment 66 demands even more. Here’s why:
* The 43% is in addition to what we pay in property taxes.
* The statutory part adds a steep income tax hike on top of that and gives all he revenue to the school bureaucracy.
* The 43% is calculated on what the older, lower tax rates would have brought in. But an income tax of, say, 20% yields less than 20% more revenue, because of disincentives and tax avoidance. So the 43% is calculated on the older, richer system, not on the newer, poorer one.
Now consider some of the other consequences:
* Because of the 43% strait jacket, the legislature couldn’t freely reallocate existing revenue to new needs. For example, the Denver Post has reported that due in part to funding limitations for supervision, inmates released on parole often commit new crimes, including murder. Yet Amendment 66 would make re-allocating funds to parole supervisions that much harder, thereby endangering the lives and safety of Colorado citizens.
* That means a primary way of allocating revenue would become more tax increases.
* We would be crippled in adjusting school costs to reflect changes in technology or to promote educational accountability. Even if schools don’t do the job or are using money wastefully, they still get their guaranteed cut. This violates a basic principle of Anglo-American constitutionalism: agencies are responsible to the legislature for what they do with appropriated funds.
* State income taxes would jump for everyone—by over 27% for everyone with a taxable income of more than $75,000, and 8% for everyone else.
* And the cost of living would rise for every family in the state—including and especially the poor. This is because tax increases–even they seem to hit only the “rich”—have a way of seeping through an economy like venom. Almost everyone pays in the form of higher prices, lower incomes, and fewer jobs. A tax hike, like water, runs downhill.
* Higher taxes also weaken the entire economy. Don’t be misled on this score: The studies show that the additional spending mandated by Amendment 66 is likely to harm much more than it helps.
* The state income tax hike could wound Colorado’s economic competitiveness and kill Colorado jobs—a serious concern right now. Remember that we are in economic competition with other states and other countries, and most of our neighbors either don’t have an income tax or are slashing, reducing, phasing out, or cutting the income taxes they have.
* Colorado’s current tax may look like a flat rate, but because of the base on which it is calculated it is actually somewhat punitive as to income. Amendment 66 would make it much more so. Tax hikes like that have been shown to be particularly damaging to prosperity.
* Because the 43% guarantee is based on revenue from former, lower tax rates, the Amendment 66 insulates the school bureaucracy from the economic damage imposed by the tax hike.
A good constitution protects individual rights and structures government to serve the interests of all. But Amendment 66 mutilates our state constitution to privilege the greedy few. It transfers more money to the bureaucracy to do things that will hurt the general welfare, including the welfare of our children.
This violates every principle of good constitution-writing.
* * * *
P.S.: Here’s the ultimate irony: For years advocates of this money-grab have attacked Colorado’s Taxpayer Bill of Rights (TABOR), claiming it unduly restricts the legislature. Yet now they want to constrict the legislature far more than TABOR does. Hypocrisy, anyone?
Filed under: All Postings, Article V, The Founding
A new book, edited by Professor Neil H. Cogan, has just been issued in which well-known constitutional scholars from across the political spectrum explore issues of state interposition, nullification, and secession.
I am among the contributors: I wrote the second chapter, which is entitled James Madison and the Constitution’s Convention for Proposing Amendments.
My chapter explains the background of the convention for proposing amendments, and the evolution of James Madison’s thoughts on the subject. Some have used a carefully isolated quotation to claim that Madison was opposed to the amendments convention concept, but in fact the quotation reflected his opposition only to a 1789 convention call that he deemed too broad and pre-mature. Moreover, Madison grew more friendly to the concept as he progressed in life, and eventually promoted it as a far better alternative than nullification.
My chapter includes extensive citations to Madison’s letters, as well as to a variety of Founding-Era sources.
May state legislative applications limit an Article V convention? Subject, yes; specific language, probably not (Part II of 2)
Filed under: All Postings, Article V, The Founding
As noted in my last post, some excellent constitutional scholars believe state applications for a convention for proposing amendments may limit the convention to voting “yes” or “no” on a specifically-worded amendment. A prescribed-wording application, they say, reduces the fear of a “runaway” convention and places the state legislatures in the equal position with Congress that Article V of the Constitution was designed to give them.
I agree with those scholars that state applications may limit the convention to one or more subjects. But I think the risks of trying to limit the convention to an up-or-down vote on a specifically-worded amendment are just too great. The risks are legal, political, and practical.
The Legal Problems.
I believe there is a good chance courts reviewing prescribed-wording applications would invalidate them as not qualifying as proper “applications” at all. Here’s why:
* The text of the Constitution grants the convention, not the applying state legislatures, the power to “propos[e] Amendments.” The Framers could have drafted language permitting the states to propose amendments directly (some modern commentators have suggested such an approach), but they did not. One possible reason is the belief that a convention of all the states is more likely to produce a well-thought-out, widely-acceptable proposal than two-thirds of states, meeting apart before the convention has even opened.
* While it is true that a purpose of Article V is to give state legislatures a role co-equal to Congress as a promoter of amendments, that purpose is served by the make-up of the convention: a gathering of state delegations, chosen and instructed by the state legislatures.
* A long line of court cases holds (almost without dissent) that assemblies empowered by Article V must enjoy a certain amount of deliberative freedom (although this does not mean infinite deliberate freedom). See, e.g., Miller v. Moore, 169 F.3d (8th Cir. 1999); Bramberg v. Jones, 20 Cal. 4th 1045, 978 P.2d 1240 (1999); Dyer v. Blair, 390 F.Supp. 1291 (N.D. Ill. 1975) (opinion by Justice Stevens). Thus, the courts have voided measures, such as ballot language and referenda, that try to dictate to Article V legislatures or conventions how they are to conduct their business. Although prescribed-wording applications still would allow the “convention for proposing amendments” to vote a measure up or down, the courts might well rule that Article V requires that a proposal convention (as opposed to a ratification convention) be given more deliberative freedom than that. The reasons follow.
* Although some parts of Article V are too clear to require interpretation, see, e.g., United States v. Sprague, 282 U.S. 716 (1931), the precise meanings of other parts are less obvious. In those instances, the courts use the historical and legal background to interpret the meaning of words and phrases in Article V. See, e.g., Opinion of the Justices, 167 A. 176 (Me. 1933) (using historical materials to construe the meaning of a state ratifying convention); Dyer v. Blair, 390 F.Supp. 1291 (N.D. Ill. 1975) (opinion by Justice Stevens) (using Founding-Era materials to interpret “ratify” and “ratification”); Opinion of the Justices to the Senate, 373 Mass. 877, 366 N.E. 2d 1226 (1977) (using Founding-Era materials to interpret “application”); Berlotti v. Lyons, 182 Cal. 575, 189 P. 282 (1920) (referencing Founding Era and other materials to interpret “Legislatures”). Thus, Founding-Era history and, to a certain extent subsequent history, is of great importance in interpreting Article V.
* The name “convention for proposing amendments” tells us that this is a proposing convention. The Founders would have distinguished it both from a plenipotentiary convention (with very broad powers) and from a ratifying convention (limited to an up-or-down vote). These distinctions were well understood.
* The invariable practice for multi-state (and, before Independence, multi-colony) proposing conventions was for the entity applying for or calling the meeting to provide it with specific problems to work on, but also to grant the commissioners (delegates) the deliberative freedom to do so—something like the modern business or government problem-solving task force. This was true from the late 17th century through the Founding Era.
* The Founding-Era evidence is buttressed by subsequent practice. Nineteenth century proposing conventions, such as the Washington Conference Convention of 1861, worked within the same pattern. As far as I can tell, limiting an interstate proposal convention—in fact, limiting any interstate convention—to an up-or-down vote would be unprecedented.
* Limiting the convention to the role of “Answer the question: Yes or no? Which is it?” is inconsistent with the status of the interstate convention as an assembly of respectable and equal sovereigns. It certainly is inconsistent with the international law usages upon which the American multi-state convention was based. And that is no doubt one reason it would be unprecedented.
* When a court examined the pre-1787 history for understood meanings of “application” and “call,” the court would find that no application or call for a multi-colony or multi-state convention (and there were over 30 such gatherings) ever tried to limit the scope to an up-or-down vote on prescribed language.
* The court also might consider that until the late 20th century, it was unprecedented for an applying state to even try to limit an Article V amendments convention to prescribed wording.
Political and Practical Problems.
* The Framers inserted a convention into the amendment process presumably because the convention setting encourages collective deliberation, compromise, and conciliation among all the states, not merely among those that apply. Deliberation requires the ability to weigh alternatives.
* A proposal deriving from a convention of all states is more likely to be acceptable to the country than one imposed by two-thirds of the states. Two-thirds of the states might even represent less than half the population of the country; this is impossible at an amendments convention and almost impossible among the three-quarters of states necessary to ratify.
* Even if the courts uphold prescribed-wording applications, the language of the amendment is likely to be torn apart by opponents, and any substantial vulnerability will kill the entire enterprise. If the convention is ever called, it would have no power to amend the proposal to meet legitimate objections.
* State lawmakers enjoy being creative, and that means that in the world of real politics, legislative applications always vary. When the applications address a broad subject (such as “congressional term limits” or “federal balanced budget amendment”), this situation is manageable. But when applications must specify the precisely-identical wording, then variations probably can’t be counted together to reach the two-thirds threshold necessary for a convention.
For such reasons, I recommend that applications specify their general subject(s), but not try to limit the convention to voting “aye” or “nay” on indelible language.
Filed under: All Postings, Article V, The Founding
In my last post, I described the procedure by which we have recovered the meaning of the Constitution’s “convention for proposing amendments.”
But agreement on the principal facts does not imply complete agreement on the details. A prime example: We know that the state legislatures may limit the agenda of the convention to a single topic. But does that mean a generic topic (such as “federal term limits”) only? Or may the legislatures limit the convention to an up-or-down vote on a specifically-worked amendment?
For a number of reasons, I think the courts would insist that the convention be given drafting discretion—that is, more discretion than allowed in an up-or-down vote on pre-set wording. I’ll discuss my reasons another time.
Some excellent scholars disagree with me. Michael Stern is the former Senior Legal Counsel for the U.S. House of Representatives, and the author of the “Point of Order” blog. He believes that the convention can be limited to considering specific wording. He bases his argument in part on the work of Prof. Michael Rappaport, one of the nation’s leading constitutional scholars. Professor Rappaport’s study of the original meaning of Amendment V concluded that that meaning at least permits the state legislatures to so limit the convention’s agenda.