Filed under: All Postings, Article V, The Founding, supreme court
Some conservative groups have become known for uncompromising opposition to the Constitution’s convention method of proposing constitutional amendments.
They may think they are protecting the republic. But it turns out that they are mostly carrying water for the liberal establishment.
New research shows that nearly all the arguments of convention opponents merely repeat disinformation first propagated by the liberal establishment in the mid-20th century. The goal of this disinformation campaign was to disable an important check on federal overreach.
The Founders created the convention method of proposing amendments to enable the people, acting through their state legislatures, to offer corrective changes if the federal government ever became unresponsive, abusive or dysfunctional. When two thirds of the legislatures pass resolutions demanding it, Congress must convene a task force known as a “convention of the states“—or, in the language of the Constitution, a “Convention for proposing Amendments.” If that task force does propose amendments, they become law only if ratified by three fourths of the states.
As the federal government grew larger and more abusive during the 20th century, conservatives and moderates repeatedly suggested constitutional amendments as a partial cure. They included proposals to reverse certain Supreme Court decisions, such as Roe v. Wade; to otherwise restrict judicial activism; and to impose term limits and require a balanced federal budget.
To blunt the these amendment drives, leading figures in the liberal establishment organized a disinformation campaign against the convention process. Participants in the campaign included liberal Senators such as Joseph Tydings (D.-Md.) and Robert F. Kennedy (D.-NY); several sitting and former Supreme Court justices; members of the Kennedy circle, such as Theodore Sorensen and Arthur Goldberg; and liberal academics perched at prestigious universities, such as a Harvard and Yale.
The apparent goal was to disable the convention process as a constitutional check on the power of the federal government.
In speeches and articles, the participants promoted several key talking points. Most of these talking points were contradicted by law or historical precedent. Some of them even contradicted each other.
But truth was not the goal. The goal was political. The principal talking points were:
• Little is known about how the process is supposed to operate;
• A convention for proposing amendments would be an uncontrollable “constitutional convention;”
• A convention for proposing amendments could be controlled or manipulated by Congress under the Constitution’s Necessary and Proper Clause; and
• A convention for proposing amendments could unilaterally impose radical constitutional changes on America.
If these claims sound familiar— well, they are. Some conservative organizations swallowed them, hook, line, and sinker and continue to tout them today, apparently unaware of how they were fabricated and why.
The 20th century liberal disinformation campaign was strikingly successful. It derailed all drives to curb the Supreme Court’s liberal activism. It blocked efforts to control federal debt or restrain federal spending. It left an increasingly dysfunctional Congress with an absolute monopoly of the amendment process. And it pitted—and continues to pit—conservatives against conservatives.
Filed under: All Postings, Article V, supreme court
This article originally appeared in the American Thinker.
Opponents of the Constitution’s Article V convention method of proposing amendments tout three letters written in the 1980s by former Chief Justice Warren Burger. In those letters, Burger took a very hard line against any convention of states that might bypass Congress and propose corrective constitutional amendments.
I’ve previously explained one reason Burger may have been so adamant: Although appointed to the court by President Nixon as a “strict constructionist,” Burger proved to be a fairly activist judge. He famously voted for Roe v. Wade, the abortion decision that up-ended laws in all 50 states.
Thus, when Burger wrote his anti-Article V letters, he was protecting Roe v. Wade and his Court. At the time, there was a great deal of talk about using Article V to overrule Roe and other ventures into judicial activism.
But now I’ve learned more.
It seems that Burger was a friend (that’s his word) of a man named William F. Swindler.
Swindler was a law professor at the College of William and Mary, which is located in Williamsburg, Virginia. Burger appointed Swindler to two official Supreme Court committees. Upon Swindler’s retirement, Burger wrote a glowing testimonial. Upon Swindler’s death, Burger eulogized him as “an analyst of history and a historian of the first rank.”
Swindler was a strong liberal, and he fiercely opposed the convention process of Article V—particularly when conservative amendments were proposed. During the 20th century, many academics wrote attacking Article V, but Swindler’s assault was the most over-the-top I’ve seen.
When Swindler wrote, the Council of State Governments was promoting a convention to consider three amendments—one to streamline the amendment process itself, one to reverse a Supreme Court legislative reapportionment decision, and the third to establish an additional layer of judicial review in a very narrow class of cases. Swindler was apoplectic, and assailed those amendments and the convention idea in unbridled language. He essentially urged resistance to a convention by all means necessary.
Part of Swindler’s plan of resistance was that federal officials should act as if the state-application-and-convention process were not part of the Constitution. Asserting that “only a federal agency (Congress, as provided by the Constitution) is competent to propose” amendments, he claimed that the convention procedure should be disregarded as “no longer of any effect.”
Thus, Swindler suggested that if the requisite number of state applications was reached, Congress should simply ignore its duty to call a convention.
Alternatively, Swindler wrote, Congress could gerrymander the convention and/or prescribe rules that would render its operation impossible. For example, he suggested that Congress mandate a rule that convention delegates were not permitted to propose any amendment unless they did so unanimously. He also argued that the courts should determine which states had permission to participate in the process and which states did not.
Was the author of these lawless propositions the source of Burger’s vehement dislike of the convention procedure? He very likely was. Remember that William Swindler was Burger’s friend. Their relationship was professional, but it was also personal: Burger wrote of his “warm personal relationship with Bill” and his “visits and walks with him at Williamsburg.” Furthermore, I can find no evidence that Burger ever did any research on Article V himself: He seems never to have heard an Article V case or published anything on the subject.
It is at least probable, therefore, that the source for Burger’s anti-Article V views was a ideologically-driven liberal willing to gut the Constitution to achieve his policy goals.
Not much of a testimonial.
Suppose you are in a general partnership with Smith. Smith handles day-to-day management, subject to your approval. But recently, he’s been acting somewhat high-handedly.
Without consulting you, Smith is busy negotiating a contract with Macropus International Corp., a company notorious for unscrupulous practices. Smith has made it clear he plans to bind your firm whether you like it or not. You know that under the law of general partnerships, unless you speak up Smith will be able to lock you and your firm into a very bad deal. This is because, as a rule, any partner in a general partnership has authority to bind the other partners and their firm to agreements with third parties.
Even if you raise your concerns to Smith personally and tell him not to sign anything without consulting you first, you still could be bound to Macropus if Smith disregards your admonition. The legal doctrine of “apparent authority” provides that if one person (you) puts another (Smith) in a position that communicates to third parties (such as Macropus) that the second person (Smith) can bind the first (you), the third party (Macropus) is entitled to assume that he can.
In these circumstances, the only way you can protect yourself is to notify Macropus before the contract is signed that Smith does not have authority to enter into it.
That’s why the letter from 47 U.S. Senators to the leaders of Iran was absolutely necessary and appropriate. Indeed, all 100 Senators should have signed it.
Although the law of general partnerships is not applicable directly to international relations, it helps us understand the issues here. Under our Constitution, the President is the “managing partner” in the treaty process: He is charged with negotiating and formally “making” treaties. But the Founders made the carefully considered decision to require approval by two thirds of the Senate. This was a change from the British system, under which the king could make treaties unilaterally, and rendered the Senate a partner in the process. And if money must be appropriated to finance the pact, the entire Congress becomes a partner in the process as well.
Like Smith in negotiating with Macropus, President Obama signaled that he planned to bypass the Senate. From the Iranian point of view, this was not necessarily a problem, since, as Iranian Foreign Minister Mohammad Javad Zarif has pointed out, the U.S. sometimes acquiesces to executive agreements without Senate approval.
To be sure, as a matter of correct interpretation the President’s constitutional authority to bind the U.S. by executive agreement is quite limited, but the Iranians cannot be expected to understand the nuances of American constitutional and judicial history. This is illustrated by Zarif’s further suggestion that an agreement negotiated by Obama alone would represent a U.S. “obligation.” He is mistaken, of course; a country is not obligated by an agreement when the other party knew the putative agent who entered the agreement actually had no authority to do so.
Under the circumstances, Iran could assume that the President could bind the U.S. to an agreement unless the Senate, or at least a large number of Senators, spoke up. Otherwise, Iran could, with some justification, claim a breach of international law if the United States refused to be bound by the deal between Iran and the Obama administration. As a result of the Senators’ letter, however, Iran is on formal notice of the truth.
Filed under: All Postings, Article V, The Founding
For many years, opponents of a convention for proposing amendments argued that the law governing such a convention was unknowable because the only precedent for such a gathering was the Constitutional Convention of 1787.
This was always an ignorant claim, since even high schoolers learn that Annapolis, Maryland hosted a “convention of states” the previous year. Russell Caplan’s book, Constitutional Brinksmanship, published nearly three decades ago, documented several other interstate and inter-colonial conventions as well. It was clear that those claiming the “only precedent” was the 1787 gathering had not done their homework.
In 2010 I uncovered more multi-state conventions, and 2013 published an article that listed 32 such gatherings from 1689 through 1787. Twenty-four of these were regional—or, to use the Founding-Era word, “partial”—conventions. The other six were national, or as the Founders would say, “general.” In that article I also analyzed in detail the records of fourteen of these conclaves. All of them employed pretty much the same set of protocols.
In addition, on this website I’ve discussed several conventions of states occurring after the Constitution was adopted: regional conventions at Hartford (1814), Nashville (1850), and Santa Fe (1922), and a general convention in Washington, D.C. (1861). The last of these was convened to draft a constitutional amendment. Yet, believe or not, some people are still asserting that “We have only one Precedent, the Convention in Philadelphia in 1787!”
Now there’s more. I recently obtained the journal for still another convention of states. Some have claimed that the proceedings for that assembly were never recorded, or perhaps had been lost. But I found them within the first volume of the journals of the Congress of the Confederate States of America.
The convention in question was held in 1861 in Montgomery, Alabama. It included only those southern states that failed to attend the convention in Washington, D.C. And while the purpose of the Washington meeting was to head off the Civil War, the purpose of the Montgomery meeting was much less desirable: to write a new Confederate Constitution and to serve as a provisional government until elections were held under that Constitution.
However regrettable its purpose, though, there is no denying that the Montgomery Convention is useful precedent. It demonstrates yet again the consistent understanding throughout our history of the law and rules governing multi-state conventions. While unionist states were applying the standard protocols at their gathering in Washington, seceding states were applying almost exactly the same set of protocols in Montgomery.
Here are some other facts about the Montgomery Convention of 1861:
* It was called by South Carolina and by Alabama—South Carolina sent out the initial invitation and fixed the topic. Alabama fixed the time and place.
* The other states participating were Mississippi, Louisiana, Florida, Georgia, and (belatedly) Texas.
* The calls and acceptances agreed on the two basic missions: (1) write a constitution for the seceding states and (2) serve as a provisional government until elections were held under that constitution.
* The calls and acceptances did differ in minor ways. Possibly the most important was that some stated that the new Confederate constitution should be based on the U.S. Constitution, while others omitted that term. This discrepancy did not prevent the meeting, and seems to have caused no problems.
* The convention began on February 4, 1861, and eventually split its functions to fit its two missions. From February 28 to March 11, it acted as a constitutional convention and wrote a new basic charter. Throughout its entire timespan it served as a provisional government (much as the Second Continental Congress had done for the United States from 1775 to 1781).
* The call suggested (and it was only a suggestion) that the convention proceed by one state/one vote, but that each state delegation consist of as many commissioners as the state had Senators and Representatives in the Federal Congress. The other states generally agreed to this formula.
* The convention did, in fact, proceed under a one state/one vote rule, as has every other interstate convention for which the rule of suffrage is recorded. But the size and composition of each state committee (delegation) remained a prerogative for each state to determine.
* The group elected its own officers and adopted its own rules. Like other all other conventions, it elected its president from among its members: Howell Cobb of Georgia. Like nearly all other conventions, it chose a non-delegate as secretary—Johnson J. Hooper of Alabama.
* The convention stayed within its two missions, as defined by its call.
* Upon completion of those missions, the gathering adjourned sine die (permanently).
Filed under: All Postings, ObamaCare, supreme court
When I first heard about King v. Burwell, the latest Obamacare controversy before the U.S. Supreme Court, I assumed it was the kind of case in which the legislative intent was clear, but for one reason or another the wording of the statute did not match the legislative intent.
That would have been an interesting case, because it would have given the Court a chance to struggle with age-old “intent vs. text” questions.
It turns out, though, that the legislative intent is unclear—if there was any unified intent at all. And the statute is at least as messy as the evidence of intent.
First as the intent: Whether Congress intended for tax credits to go to citizens of states that had not adopted state insurance exchanges depends on whom you ask. The government now says “yes,” but Obamacare architect Jonathan Gruber was captured in two separate YouTube videos saying “no.” In those videos, he claims that tax credits were to be limited to states that set up their own exchanges as a way of inducing states to cooperate (no exchange, no tax credits). Some in the media assert that a decision for the plaintiffs (limiting credits to insurance purchased on state-created exchanges) would create “chaos”—but if Gruber is right, then that was exactly what Congress wanted.
Now for the text: Reading the record in this case give you some idea of how poorly drafted the Obamacare law is. Section 1311(b)(1) of the statute requires the states to establish exchanges. A provision just a few sections later (1321(b)) tells states they may elect to establish exchanges, and another (1321(c)) provides for federally-created substitutes.
Still another section says that tax credits are available for insurance purchased on “exchanges.” In at least two provisions, the statute inserts cross references that make it crystal clear it means state-created exchanges—not the federally-created substitutes.
But still other provisions seem to assume that state-created exchanges, and therefore the tax credits, will exist in all states. But for this to be so, then the statute’s drafters had to assume that the first section (mentioned above) ordering the states to set up such exchanges was valid. Problem is, that section is clearly unconstitutional: The Supreme Court has ruled several times that the federal government may not simply order a state to adopt a law or perform a task. Whoever wrote that section had never studied elementary constitutional law, or perhaps didn’t care.
There’s another wrinkle: The way the case got to the Supreme Court is that the plaintiffs challenged an IRS interpretation of the statute. Specifically, the IRS read the law as requiring tax credits in all states. Now, as a rule of thumb (under the Court’s Chevron holding), the Court defers to any reasonable executive-branch interpretation of an ambiguous statute. But the traditional legislative grace canon holds that the Chevron rule doesn’t apply in tax-credit cases, because taxation is so central to the legislative (as opposed to the executive) power.
One argument for tax credits in all states, possibly originated by Justice Kennedy, acknowledges that the law’s mandate on states to create exchanges is unconstitutional. It also assumes that interpreting the statute to provide for credits only in states that establish their own exchanges would be unconstitutional as excessive federal “coercion.” This argument therefore concludes that the statute must be construed to provide for tax credits in all states.
There are two problems with this argument. First, if severe financial consequences for state non-cooperation constitute “coercion,” then certain other federal welfare programs, particularly Medicaid, are unconstitutional. It is unlikely that anyone who would advance this argument would really support that result. Second, by universalizing the tax credits, this argument rewards an overreaching federal government by authorizing it to spend even more money and thereby control even more lives than otherwise. It is an elementary legal principle that no one should be rewarded for his own wrong.
When faced with incurable problems in a statute, judges’ time-honored solution is to kick the issue back to the political branches for a solution. (The courts often follow a similar approach in the common law—that is, ruling in a way that forces the parties to negotiate their way out of the problem.)
Deciding the case for the plaintiffs (denying tax credits in states that do not adopt exchanges) will create either (1) a mess intended by Congress or (2) a mess not intended by Congress. Either way, the public anger generated by loss of tax credits will force Congress and the President to work together to clear matters up.
That’s exactly what the Supreme Court should do.
Betty Natelson, my wife, has just published a new book—for readers 9 years and up—about the biblical heroine Deborah.
Deborah was the Hebrew judge who, along with her military commander Barak, liberated Israel from Canaanite terrorism—a topic that seems particularly appropriate today.
The book is entitled Battlesong: The Biblical Story of Deborah.
Battlesong generally follows the original in the Book of Judges, but in simple and inspiring English. Battlesong is published by Apis Books. You can pick up a copy for $6.99 in paperback here.
Filed under: All Postings, Article V, supreme court
Article V scholar and former House of Representatives legal counsel Mike Stern has just written a response to the irresponsible claim that Congress could control a Convention for Proposing Amendments, either by specifying how commissioners are allocated or in other ways.
His response is worth wide publicity. Here it is:
RESPONSE TO FEBRUARY 24, 2015 PAPER ENTITLED “UNITED STATES CONGRESS V. CONVENTION OF STATES PROJECT”
I am writing to respond to the argument, circulated by opponents of HJR 1018, that Congress could by law attempt to exercise control over an Article V convention. Specifically, a piece circulated in the House on February 24, 2015 claims that “the U.S. Constitution gives Congress the authority to determine the voting delegate count and the Supreme Court of the United States has already affirmed this.”
This claim is wrong as a matter of law. Moreover, as described below, there is no chance that Congress would attempt to regulate the Article V convention as suggested even if it had a colorable legal basis for doing so.
The argument for Congress’s supposed legal authority is premised entirely on a series of bills that were introduced in Congress from the late 1960s until 1992. These bills derived from legislation originally proposed by Senator Sam Ervin of North Carolina to support a specific constitutional amendment designed to overturn the Supreme Court’s “one man one vote” decision in Reynolds v. Sims. It is important to note that no such legislation was ever enacted and it has been more than 20 years since it has even been introduced for consideration.
Senator Ervin explained the background for his legislation in a 1968 law review article:
Article V of the Constitution of the United States provides that constitutional amendments may be proposed in either of two ways—by two-thirds of both houses of the Congress or by a convention called for by the Congress in response to the applications of two-thirds of the state legislatures. Although the framers of the Constitution evidently contemplated that the two methods of initiating amendments would operate as parallel procedures, neither superior to the other, this has not been the case historically. Each of the twenty-five amendments ratified to date was proposed by the Congress under the first alternative. As a result, although the mechanics and limitations of congressional power under the first alternative, very little exists in the way of precedent or learning relating to the unused alternative method in article V. This became distressingly clear recently, following the disclosure that thirty-two state legislatures had, in one form or another, petitioned the Congress to call a convention to propose a constitutional amendment permitting states to apportion their legislatures on the basis of some other standard that the Supreme Court’s “one man-one vote” requirement. The scant information and considerable misinformation and even outright ignorance displayed on the subject of constitutional amendment, both within the Congress and outside of it—and particularly the dangerous precedents threatened by some of the constitutional misconceptions put forth—prompted me to introduce in the Senate a legislative proposal designed to implement the convention amendment provision in article V.
As the above passage makes clear, Senator Ervin’s legislation was designed to assist the states in calling for an amendments convention. Indeed, although Ervin’s legislation wrongly assumes that Congress has the power to legislate with regard to convention procedures, he also says that it would be “a flagrant disavowal of the clear language and intended function of article V” for the Congress to use this power in a manner that would thwart the states in their efforts to call a convention.
Ervin was primarily concerned with what he describes as the “considerable misinformation” and “constitutional misconceptions” being circulated by the opponents of an Article V convention. Of these the most important, which Ervin spends considerable time in refuting, is the idea that the convention cannot be limited. Ervin explains that this interpretation was “supported neither by logic nor constitutional history” and argues that “[t]his construction would effectively destroy the power of the states to originate the amendment of errors pointed out by experience, as Madison expected them to do.” It should be noted that opponents of the Article V convention still rely primarily on the constitutional misconception of the runaway convention, while cherry picking Ervin’s legislation for “precedent” they find more to their liking.
Unfortunately, Senator Ervin gave comparatively little attention to the question of Congress’s power to regulate the Article V convention. He merely observed that someone would need to provide for the membership and procedures of the convention and contended it would be impossible for all fifty state legislatures to do so. The original version of the legislation provided for one vote per state, but Ervin amended it to provide for proportional representation, apparently in the hope of reducing opposition from liberal senators who were opposed to any attempt to reverse Reynolds v. Sims.
In assessing whether Congress has the power to regulate voting at an Article V convention, two questions need to be asked: (1) does the Constitution provide for a default voting rule for the convention and (2) does Congress have the power to establish a voting rule or alter the default rule? Ervin seemed to assume, without analysis, that no default voting rule existed (hence his contention that Congress or all fifty states would have to act to establish such a rule). But this assumption is obviously wrong. If the Constitution provided no default rule, calling a convention would be impossible until Congress or the state legislatures established what rule would apply. Yet Article V clearly provides that once two-thirds of the state legislatures apply for a convention, Congress “shall” call the convention. As Hamilton wrote in Federalist No. 85, the words of Article V are “preemptory” and “[n]othing in this particular is left to discretion.” Thus, there can be no requirement of other action, particularly by Congress, before a convention is called.
Once it is recognized that the Constitution provides a default voting rule, it is apparent that this rule must be one vote per state. This is true for the following reasons: (1) there are a number of different possible proportional representation methods (population, congressional representation, seats in the House, etc.) and nothing in Article V or the Constitution provides a basis for choosing among them; (2) one vote per state was the voting rule used in the Philadelphia convention and all interstate conventions prior to that time; (3) in respect to both applying for a convention and ratifying an amendment, Article V provides an equal vote to each state; (4) statements made during the debate over ratification, such as Hamilton’s observation that “whenever nine or rather ten states, were united in the desire of a particular amendment, that amendment must infallibly take place,” confirm an understanding of one vote per state; and (5) post-ratification history, including the procedure used during the Washington Convention of 1861, demonstrates that voting at Article V conventions was to be one vote per state.
As Ervin acknowledged in the passage quoted earlier, there was a paucity of “learning” regarding the Article V convention at the time he crafted his legislation. However, subsequent work by noted scholars such as Professor Rob Natelson and Michael Rappaport provides a much more detailed understanding of the Framers’ original intent with respect to the Article V convention. Professor Natelson’s research, for example, demonstrates that at the time of the framing there were well understood procedures for holding such a convention, including a one vote per state rule. Thus, although the resolutions of the states and the Confederation Congress calling for the Philadelphia Convention were silent (as is Article V) as to the voting rule to be used, the Philadelphia Convention employed a one vote per state rule without objection or controversy.
It is also apparent that Congress cannot, consistent with the purpose of the Article V convention, be permitted to establish or alter the voting rule for the convention, nor otherwise to exercise any authority that would infringe upon the independence of the states and the convention. The entire purpose of the Article V convention was to empower the states to obtain constitutional amendments without congressional authorization or assistance. Allowing Congress to control the convention through adoption of voting rules or other procedural requirements would fly in the face of this fundamental purpose of the convention.
The February 24, 2015 document circulated by opponents of HJR 1018 claims that Congress has the power under the Necessary and Proper Clause to prescribe rules for the convention. But for the reasons already discussed it would be neither necessary (because the Constitution provides a default voting rule) nor proper (because the convention must be completely independent of Congress) for Congress to regulate the convention. Moreover, the Necessary and Proper Clause applies to powers vested by the Constitution in “the Government of the United States, or in any Department or Officer thereof,” which description does not include the Article V convention.
It is also suggested that the Supreme Court has somehow upheld Congress’s authority to regulate an Article V convention. This claim is obviously false since Congress has never passed such legislation and the Court has therefore never had occasion to consider it. The case cited for that proposition, Dillon v. Gloss, involved Congress’s authority to include a time limit for ratification in a congressionally proposed constitutional amendment. It had nothing to do with an Article V convention at all.
The Feb. 24 document cites a Congressional Research Service report for the proposition that the Ervin legislation and later proposals modeled on it establish Congress’s claim to “broad responsibilities” in connection with a convention. But the very same CRS report also acknowledges a strong argument for a “minimalist” role for Congress and notes there is “justification for this course of action from the pens of the founders themselves.” The original intent of the Framers is much more powerful legal support than the terms of comparatively recent legislation that never passed Congress.
In any event, there is no practical possibility that Congress would today be willing or able to enact legislation regulating an Article V convention. The fact that the Ervin legislation failed to pass Congress for more than 20 years should amply demonstrate that today’s Congress, more divided and dysfunctional than ever before, is never going to pass such legislation. In the extraordinarily unlikely event that such legislation were introduced, much less seriously considered, the states would have plenty of time to defeat the legislation or, if all else failed, to rescind their applications.
As a final red herring, the Feb. 24 document suggests that Congress could insulate delegates from control by their state legislatures by citing to a provision of the Ervin legislation that would provide delegates with a privilege against arrest. This provision would have simply provided delegates with standard legislative immunity that appears in the U.S. Constitution and most state constitutions. The arrest privilege is extraordinarily narrow (applying only to arrest in civil cases, which makes it essentially meaningless) and was neither intended to nor would have the effect of interfering with state legislative control over their delegations.
Filed under: All Postings, The Founding, supreme court
This article was first published at the American Thinker website.
Many commentators and politicians have attacked the Supreme Court’s 2010 case of Citizens United v. Federal Election Commission for holding that citizens do not surrender their First Amendment rights when they organize under state corporation law. The Vermont state legislature has even adopted an application for a federal convention to propose a constitutional amendment to “overturn the Citizens United decision.”
Almost no one seems to know that the Citizens United case contained another ruling in addition to the one on corporate issue campaigns. The other ruling should be just as controversial, for it upheld a broad congressional attack on the privacy of those exercising First Amendment rights. Yet the critics have been almost entirely silent about that part of the case.
In the second ruling, the Court sustained, over Justice Thomas’ sole dissent, a federal mandate that political issue committees publicly reveal the names of major donors. The Court did so although disclosure can lead to retaliation and personal harassment of individuals exercising First Amendment rights. In other cases, the Court has voided disclosure requirements that can result in free expression being unconstitutionally “chilled.” But the Court refused to do so in Citizens United.
The NYU Journal of Law and Liberty has just published an article in which I examine the question of whether forced disclosure of contributors to issue campaigns is consistent with the First Amendment, as the Founders understood it.
Here are my principal findings:
* Under the First Amendment, political advertising is best analyzed as a branch of “the freedom . . . of the press” rather than “freedom of speech.”
* During the Founding Era, the terms “liberty of the press” and “freedom of the press” were exact synonyms, with the former somewhat more common.
* Despite some peripheral uncertainties, the founding generation well understood the core meaning of “freedom of the press.” In other words, it was not a vague or indefinable term.
* During the Founding Era, the near-universal custom of those writing on political subjects of all kinds was to write either anonymously or under assumed names. Printers were expected to respect their contributors’ privacy by not revealing their true identity without explicit permission.
* There were important and completely legitimate reasons for author 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 during the founding era.
* The historical record contains explicit statements that assert, or inescapably assume, that “freedom of the press” includes the right to conceal one’s identity. I found only one claim that forced disclosure was consistent with freedom of the press, but it referred to voluntary disclosure by a private printer, not government-forced disclosure.
* Under founding-era 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 editor felt compelled to respond. He explained that, although the governor had asked for the critic’s identity, the governor had asked for it only, “if you are at liberty to mention his name.”
In response to the governor’s request, the editor then asked the author whether the editor had permission to reveal his identity. The author responded, “You are at liberty to give my name to his excellency.” Only then did the editor disclose it.
This story shows how zealously author privacy was guarded during the Founding Era. Everyone assumed that freedom of the press incorporated a presumption of non-disclosure, even if the author had not asked to be kept anonymous. Editors and printers, as well as government officials, were subject to this norm.
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.
Filed under: All Postings, ObamaCare, The Founding, supreme court
Chief Justice John Marshall (in office 1801-1835) is often identified with an expansive “big government” interpretation of the Constitution. Fans of big government cite him as an ally; opponents as an enemy.
This view of Marshall is a caricature. It is true that Marshall was a Federalist—he occupied a place on the political spectrum of his day closer to Alexander Hamilton than to Thomas Jefferson. But to say that he subscribed wholly to Hamilton’s constitutional views would be untrue. It is even more inaccurate to claim him as a justice who would uphold the constitutionality of the modern federal regulatory welfare state. Marshall was far more moderate than that.
The caricature of our greatest Chief Justice was created in his own time by his political opponents. In the modern era it has been nurtured by “progressives” who claim Marshall for their version of the Constitution. Among the latter group are Supreme Court justices who quote his words out of context, book authors who omit critical passages from his opinions, and law professors unfamiliar with other things Marshall wrote and with the law and language of his time.
In 2011, I authored an article correcting the record. I also co-authored another with the Independence Institute’s own Dave Kopel, explaining why Marshall would have held Obamacare to be unconstitutional.
Now Dr. Thomas K. Lindsay of the Texas Public Policy Foundation has joined in. A new contribution by Dr. Lindsay relies mostly on my research, but he introduces it to a new and much larger audience. You can read Dr. Lindsay’s essay here.
Trying to Abolish the Convention’s One-State/One-Vote Rule Not Only Would Be Unconstitutional—It Wouldn’t Be Worth Trying
One of the far-fetched arguments used to persuade conservatives to oppose an amendments convention is that if 34 states apply, a left-wing Congress might try to dictate that commissioners (delegates) be allocated by population rather than by one state/one vote.
For reasons explained in earlier posts, such a move would be unconstitutional: A “convention for proposing amendments” is a meeting of equal semi-sovereigns, not a popular assembly (although the 38-state ratification requirement assures that any proposal has majority popular support before it is ratified). Because a central purpose of the convention is to bypass Congress, it is highly unlikely that either the courts or the states would acquiesce in such a maneuver.
Moreover, a successful effort along those lines is highly improbable politically: It would require a major change in the political composition of both houses of Congress. Indeed, it would require much more than that—because even when Congress was firmly Democratic, it repeatedly refused to pass legislation along those lines.
And it wouldn’t even be worthwhile to try, because converting the convention to a population basis wouldn’t make much political difference anyway. In the real world, over-representation from large “blue” states like California, New York, and Illinois would be offset by over-representation from large “red” states like Texas, Florida, and Georgia.
David Guldenschuh, a Georgia lawyer active in Article V issues, ran the numbers, and here is what he found:
* There are currently 30 states in which Republicans control both legislative chambers. There are 11 in which Democrats control both houses, eight are divided, and one (Nebraska) is non-partisan. So on a one-state, one vote basis, the “red” states would be comfortably in control of a convention. Divided chambers are likely to produce divided committees (delegations). By traditional rules, if a committee is evenly divided on an issue, it effectively abstains.
* The most liberal of the rejected congressional proposals was for a convention of 435 commissioners, one from each U.S. House district. (Another proposal, for allocation based on the electoral college, was slightly more conservative.)
* Consider the most liberal proposal: Based on the make-up of the current House, it still leaves “red states” (i.e., Republicans) comfortably in control: 246 to 188, with one vacancy.
* Or assume that the 435 are allocated according to the composition of each state legislature. The result then is 252 Republicans, 116 Democrats and 67 from split states—yet another a clear margin of “red state” control.
So how you allocate the commissioners does not really make that much political difference. That fact sharply reduces the motivation to try to reverse the “one state/one vote” rule.
Of course, future elections will result in voting shifts one way or the other. Although it is unlikely in the next few years, Democrats eventually will re-capture both Houses of Congress. But such changes do not happen in a vacuum—they are likely to be paralleled by corresponding changes in the state legislatures as well.
Let me be clear: It would not be constitutionally acceptable to depart from the historic rule. On the contrary, the courts tell us that the historic rules are effectively part of the Constitution’s Article V.
What these numbers do tell us is that neither party will have much motivation to try to change convention voting rules, even if they could.