Filed under: All Postings, The Founding, supreme court
Last week I reported on Justice Thomas’ citation of my work in his concurring opinion in Town of Greece v. Galloway, a widely-discussed decision on the Establishment Clause of the First Amendment. This week, I’ll put the decision in context.
The meaning of the Establishment Clause (”Congress shall make no law respecting an establishment of religion”) has long been debated. Here are some of the hypotheses advanced:
* The Founders created a “Christian nation” in which the federal government could promote Christianity. The Establishment Clause assured, however, that the federal government would not favor any denomination of Christians over any other. This was the view of the great 19th century Supreme Court Justice and law professor Joseph Story.
* The Establishment Clause was adopted principally to protect the states from federal interference with their own established churches. This is Justice Thomas’ view.
* The Establishment Clause was adopted to protect the states from federal interference with their own established churches, but also to require the federal government to treat all religions equally. The Clause did not, however, place atheism or agnosticism on a par with religion. This conclusion is called “non-preferentialism.”
* The Clause not only protected the states from federal interference with their own established churches, but also required the government to treat all religious opinions, including atheism and agnosticism, equally. This formulation is called “neutrality,” and former Justice David Souter was one of its exponents.
* The Clause required the government to lean over backwards to avoid any entanglement or appearance of favoritism for religion. This is called “strict separation.”
There have been various modifications and blending of the views listed above, including a rather incoherent version called “accommodation,” a doctrine followed late in the 20th century by some of the more conservative justices.
Beginning in the 1940s (although with roots earlier), the Supreme Court issued a series of “strict separation” cases and imposed them on the states as well as well as on the federal government. It soon became evident that strict separation was both impractical and contrary to the actual meaning of the Establishment Clause. Accordingly, in the 1970s the Court began a long journey from strict separation, wandering through “neutrality” and “accomodation,” and toward non-preferentialism.
The Town of Greece case seems to complete this journey. Justice Thomas’ concurrence aside, all the opinions—majority and dissent—are squarely non-preferentialist. All acknowledged that the Town could sponsor prayers before Town Board meetings. The writer of the dissent, Justice Kagan, even affirmed explicitly her support for civic prayer. The only real dispute was over whether the Town had treated all religions fairly when selecting clergy to perform the invocation. The majority thought the Town had been fair, at least on balance. The dissent thought it had unfairly favored Christianity over Judaism and other religions adhered to by citizens of the Town. But that was a dispute over the facts, not over legal doctrine.
Several years ago, I wrote an article for the William and Mary Bill of Rights Journal entitled The Original Meaning of the Establishment Clause. As some other scholars had concluded before me, I found that non-preferentialism was, in fact, the intent of those who adopted the Establishment Clause: both protection of state established churches and equal congressional treatment of all religions.
This conclusion seems to be a little different from that of Justice Thomas: I believe the Clause was, in addition to a protection for federalism, a positive guarantee to all religious believers. Perhaps this is why Justice Thomas cited my writings on the Necessary and Proper Clause rather than those on the Establishment Clause!
In any event, with the Town of Greece case the Court’s Establishment Clause jurisprudence returns to the original meaning. Whether that jurisprudence should be imposed on the states is another matter, and Justice Thomas may well be correct that it should not.
That last question involves considering (in my opinion) not the Establishment Clause, but the “incorporation doctrine”—the doctrine by which the Supreme Court imposes nearly all of the Bill of Rights on state governments as well as on the federal government. The incorporation doctrine is a topic for another time.
Filed under: All Postings, The Founding, supreme court
I’m pleased to report that this past week the brilliant Justice Clarence Thomas cited my work on the Necessary and Proper Clause in his concurring opinion in Town of Greece v. Galloway, an Establishment Clause case that received wide publicity. This was the thirteenth citation in the third Supreme Court case in the past 11 months.
The Establishment Clause is that part of the First Amendment that provides that, “Congress shall make no law respecting an establishment of religion. . . ” The question at issue in the case was whether the Town of Greece (one of many places in upstate New York with classical Roman or Greek names), had violated that clause when it sponsored overwhelmingly Christian prayers at town council meetings.
Despite the language of the Establishment Clause (“Congress shall make no law. . .”), the Court has held for many years that the Clause applies to other branches of the federal government and to the states and all subdivisions of the states, including municipalities. Judicial application of parts of the Bill of Rights to the states is called the Incorporation Doctrine.
The Court ruled, 5-4 that the Town had not violated the Establishment Clause. The dispute between the majority opinion (written by Justice Kennedy) and the dissent (written by Justice Kagan) was more over the facts and the application of the facts than over basic doctrine. More on Establishment Clause jurisprudence next week.
Justice Thomas wrote separately to express his view that the Establishment Clause was designed primarily to protect official state religions (of which there were several at the Founding) from federal interference—in other words that the Establishment Clause was chiefly a protection for federalism, much like the Tenth Amendment. Since it was designed for the protection of the states, he argued, it was improper to apply it against the states. In other words, the Incorporation Doctrine should be used with some other parts of the Bill of Rights, but not with the Establishment Clause.
Justice Thomas cited one of my chapters in a book on the Necessary and Proper Clause which I wrote with Professors Gary Lawson, Geoffrey Miller, and Guy Seidman, and which was published by Cambridge University Press in 2010. The portion he cited discussed how opponents of the Constitution feared that the Necessary and Proper Clause would be abused by the federal government. Justice Thomas pointed out that the Establishment Clause, like the rest of the Bill of Rights, was adopted in part to block over-use of the Necessary and Proper Clause.
While I’m skeptical about the validity of the Incorporation Doctrine generally, I’m not sure that Justice Thomas is correct to read the Establishment Clause so narrowly. More on Establishment Clause doctrine and the significance of the Town of Greece case next week.
Filed under: All Postings, The Founding, supreme court
The Supreme Court’s latest campaign finance decision, McCutcheon v. FEC, has sent up the predictable howls. In McCutcheon, the Court struck down, as violating the First Amendment, certain incumbent-protection rules that Members of Congress had rigged for their own election campaigns.
But no one—including the Court—has yet convincingly addressed a question even more fundamental than the First Amendment issue: On what constitutional basis does Congress have power to regulate federal campaigns at all?
Remember: The Constitution grants the federal government only enumerated powers. If Congress has acted under one of those powers, then First Amendment implications can be important. But if Congress has acted outside its enumerated powers, then the rules of jurisprudence require the courts to void the action without reaching the First Amendment issue.
And, in fact, a careful review of the Constitution and its background demonstrates that regulation of campaigns for federal office is within the state, not the federal, sphere.
The only constitutional authority even remotely applicable to congressional regulation of federal campaigns is the clause the Supreme Court has relied on: Article I, Section 4, Clause 1, the “Times, Places and Manner” Clause—sometimes mislabeled the Elections Clause. It provides:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.
The first notable aspect about this provision is what it doesn’t say: It grants power to regulate the “Times, Places and Manner of holding Elections for Senators and Representatives,” but says nothing about presidential elections. And with good reason: the “Manner of holding” presidential elections is treated in Article II, where the “place and manner” rules are laid out in some detail and Congress is given some limited authority over the “time” of the election and the counting of electoral votes. All other power over the choice of presidential electors is explicitly left to the state legislatures (”Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . .”). This is simply not an area for Congress.
The second notable aspect of the Times, Places and Manner Clause is that addresses the “Manner of holding Elections,” but says nothing about campaigns. In the Founders’ understanding, they were different areas of law.
In a 2010 article for the University of Pennsylvania Journal of Constitutional Law, I surveyed what the Founders meant when they referred to regulation of the “manner” of election. (Justice Thomas cited this article in a case last term.) Such regulation did not cover campaigns at all, unless election-day bribery be considered a form of “campaigning.” Rather, regulating the “manner” of election meant determining the rules of the vote: Whether candidates were chosen by a plurality or majority, the rules of voter registration, whether the ballot was secret or vice voce, how votes were tabulated, and so forth—the same kind of detail set forth in Article II for presidential elections.
In the Founders’ understanding, the regulation of the “manner of election” and the governance of campaigns were distinct areas of law. The latter area included rules against corrupt practices and defamation, and the Constitution left those topics to the states to govern. There is no evidence—none—that the Times, Places and Manner Clause was designed to empower Congress to regulate its own campaigns.
Quite the contrary: As believers in the “public trust” theory of government, the Founders were keen to avoid the conflicts of interest that congressional regulation of federal campaigns would entail. In fact, even the very limited authority granted to Congress by the Times, Places and Manner Clause was controversial. Admirers as well as opponents of the Constitution criticized it.
In one respect, advocates of stricter regulation are correct: Because the Court has extended its First Amendment jurisprudence so tightly over state election laws and state defamation laws, the Court has impeded the states’ ability to experiment with different formulas so as to learn what works best. Perhaps the Court should lighten up in that area, while keeping Congress and the President out of the business of regulating federal campaigns.
One last note: A few advocates of greater congressional power over federal campaigns have cited my writings on public trust to argue that campaign finance laws promote fiduciary responsibility.
But a fundamental rule of fiduciary responsibility is avoiding conflict of interest. For members of Congress to pass laws restricting their opponents’ campaigns is a huge conflict of interest. That’s one reason the Constitution leaves governance of federal campaigns to the states.
Filed under: All Postings, The Founding, supreme court
The Bundy stand-off in Nevada has induced several people to ask me about the extent to which the federal government can own land, at least under the Constitution’s intended meaning. As it happens, in 2005 I studied the issue in depth, and published the following article: Federal Land Retention and the Constitution’s Property Clause: The Original Understanding, 76 U. Colo. L. Rev. 327 (2005).
In a nutshell, here’s what I found:
(1) Most commentators on the issue have staked out one of two polar positions. One position, which is current U.S. Supreme Court doctrine, is that the federal government may acquire and own any land it wishes for any governmental purpose, not just for its enumerated powers. The other polar position is that the federal government may own land only for the purposes enumerated in the Enclave Clause (the national capital and “Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings”) and that the “equal footing doctrine” requires that all other federal land within a prospective state be handed over the state government upon statehood.
(2) In fact, both polar positions are false—and very clearly so. This shines through when you study the Constitution’s text, meaning, and background. By “background,” I mean its drafting history, the ratification debates, 18th century law, and so forth. However the constitutional text alone should be sufficient to cast both polar claims into doubt. The text of the Constitution grants the federal government no plenary power to hold land, only to dispose. A general power to hold is just not in there. The second polar position is also contradicted by the text: The equal footing doctrine is not there either. (It was a feature of certain pre-constitutional documents, such as the Northwest Ordinance.)
(3) The Constitution grants the federal government authority to acquire real estate and other property to carry out any enumerated purpose, either in the exercise of a core power (such as “maintain a Navy”) or through the implied powers memorialized in the Necessary and Proper Clause. Thus, Congress may acquire land to build “post Roads” (limited access highways), house tax collectors, and build lighthouses under the Commerce Power.
(4) Further, the Constitution’s Treaty Power authorizes the federal government to acquire territory.
(5) However, land acquired—through, for example, the Treaty Power—may be held only for enumerated purposes. Land not needed for such purposes must be disposed of within a reasonable time. The federal government should have disposed of BLM grazing land long ago.
(6) In fact, for the federal government to own a large share of American real estate (currently about 28 percent) is directly contrary to certain values the Constitution was designed to further.
(7) “Disposal” does not require handing real estate over to state government. On the contrary, in many situations doing so would conflict with federal officials’ duties of trust. In each instance, disposal should be effectuated so as to further the general welfare. In the case of some parcels, it may mean transferring to state government. But it may also require selling to the highest bidder, or, in the case of environmentally sensitive lands, transferring to perpetual environmental trusts, as is commonly done in England.
(8) The Enclave Clause (Article I, Section 8, Clause 17) is really more about governmental jurisdiction than ownership. The federal government can have an enclave in which much of the territory is titled to private parties—as is true of Washington, D.C. It’s just that in an enclave, federal rather than state jurisdiction is supreme. Enclaves may be held only for enumerated purposes (as signaled by the use of the 18th century legal term “needful”). State consent to creation of an enclave is required, and consent can be conditional upon the federal government honoring particular terms.
(9) The Enclave Clause was sold to the ratifying public on the basis that enclaves would be relatively small. Holding massive tracts of undeveloped land (such as in Yosemite National Park, nearly 750,000 acres) as enclaves is not what the Founders had in mind.
(10) This is signaled by the Constitution’s use of the word “Building.” In the 18th century, the term did not have to mean an enclosed space, but it did have to refer to a fabricated construction of some kind, since as a dockyard or (in modern terms) an airport runway.
(11) But not every parcel of federal land need be an enclave: In fact, most are not and should not be. Non-enclave land owned by the federal government is held under the Property Clause (Article IV, Section 3, Clause 2), and should be held only for enumerated purposes. Grazing, for example, is not an enumerated purpose.
(12) Non-enclave federal property within states is subject to state law. Contrary to current Supreme Court doctrine, when the federal government owns non-enclave land, the federal government usually should be treated like any other landowner, so long as the state respects the discharge of legitimate federal functions.
Earlier this year, the Harvard Journal of Law and Public Policy published my article showing that the Constitution’s Recess Appointments Clause limits presidential vacancy appointments far more than President Obama (and most prior Presidents) have claimed. I posted earlier on the same subject here.
The issue is before the Supreme Court right now.
The Recess Appointments Clause states in part that, “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate. . . ” In preparing the article I examined a wide range of Founding-Era documents, including early state constitutions and legislative records, to determine when a vacancy “happens” and what the Founders meant by “the Recess” of a legislative body. I learned that a vacancy “happens” only when it is created. Thus, for the President to fill a vacancy, it must have been created during the Recess, not merely continue into it.
I also learned that, while the simple noun “recess” could refer to any legislative break, the phrase “the Recess” referred only to the period between formal legislative sessions.
Another project has kept me in early American legislative documents, and new discoveries continue to confirm that “the Recess” meant only the break between sessions.
For example, I was able to obtain a copy of the hard-to-get 1784 journal of the Massachusetts House of Representatives. It contains a message from Governor John Hancock specifically referring to the time between the sessions as “the recess.” Early Maryland legislative records similarly contain repeated references to a prior or approaching period between sessions as “the recess.”
The same story recurs in New Jersey. A September 10, 1776 legislative committee report from that state clearly distinguished between the “Session” and “the Recess.” A May 19, 1786 report of the Governor, issued two days after the session began, provided the legislature with correspondence the governor had received during “the Recess of the House.” And a Nov. 30, 1789 resolution authorized the city mayor to take control of legislative property “during the recess of the Legislature”—that is, not during short breaks but when lawmakers went home at the end of their session.
Finally, page 147 of another hard-to-get source (the 1776 journals of the South Carolina lower house) reproduces a legislative resolution ordering that a report “be referred to the Committee on the state of the Treasury to consider and report to the House proper ways and means of supplying the Treasury in the recess of the House with such monies as may be immediately wanted for public service…” Obviously, there would be no need to do this if “the recess” referred to anything but the lengthy intersession break, because during shorter breaks lawmakers were in the capital city and available to appropriate funds if necessary.
Filed under: All Postings, Article V, The Founding
A spate of new applications from state legislatures for a “convention for proposing amendments” make it more likely that we will have an amendments convention in the near future. In order to get ready for this historic event, lawyers, legislators, and others involved in the process need a reliable guide to the law governing amendment conventions.
Citizens for Self Governance has just published my legal treatise on the subject as part of their Convention of States project. It is called A Compendium for Lawyers and Legislative Drafters. In addition to over 80 pages of original material, it includes important and reliable scholarly articles on the subject. You can download it for free here.
How Do We Know an Article V Amendments Convention is a “Convention of the States?” Because Both the Founders and the Supreme Court Said So
Filed under: All Postings, The Founding, supreme court
Article V of the Constitution authorizes a “Convention for proposing Amendments.” However, it does did not specify how the convention is to be composed. People unfamiliar with constitutional history sometimes claim the makeup of an amendments convention is either a complete mystery or subject to the determination of Congress.
Nonsense. For one thing, the Supreme Court already has spoken on the matter. In 1831, the Court decided Smith v. Union Bank, in which it specifically characterized (on page 528) an amendments convention as a “convention of the states”—that is, a gathering of representatives of state legislatures.
The Court’s characterization was, in fact, the dominant one in America until misunderstandings on the subject arose in the mid-to-later 20th century. It was also the Founders’ view of an amendments convention.
The history of the 30+ conventions held among colonies and states before and during the Founding Era shows that they always were gatherings of state “committees” (delegations) of “commissioners” (delegates) appointed by the several states. Furthermore, participants in the ratification debates repeatedly referred to this process as one in which the states were the drivers.
But beyond that, there is a series of Founding-Era official documents specifically identifying a convention for proposing amendments as a “convention of the states.” For example:
* The very first Article V application was adopted by the Virginia legislature on November 14, 1788. It recited that “happily . . . the Constitution hath presented an alternative, by admitting the submission [of an amendment] to the convention of the states.”
* The Pennsylvania legislature did not favor Virginia’s application, and said so in a resolution adopted on March 5, 1789. The resolution recited that “it must ever be [pain]ful to the House, when obliged to dissent from the opinion of that [Virginia] Assembly upon any point of common concern to the two states, as members of the union; and particularly, on a measure of such importance as the one proposed, the calling of a convention of the states for amending the constitution . . . ” Minutes, Pa. Gen. Assembly, 124-25 (March 5, 1789)
* On the other hand, New York’s governor, George Clinton, favored such a convention. A letter from the Virginia legislature to Governor Clinton reproduced in the New York legislative journals successfully urged New York to adopt its own Article V application: “The propriety of immediately calling a Convention of the States, to take into consideration the defects of the Constitution, was admitted, and, in consequence thereof, an application agreed to, to be presented to the Congress, so soon as it shall be convened, for the accomplishment of that important end.” Letter from John Jones & Thomas Mathews to Gov. George Clinton, Nov. 20, 1788, reproduced in N.Y. Assem. J., p. 25 (Dec. 27, 1788).
* The Rhode Island legislature generally looked favorably on the idea, and responded as follows:
“Whereas, His Excellency George Clinton, president of the convention of New York, hath transmitted to the legislature of this state a proposal, that a general convention of the states should take place, in order that such necessary amendments may be made in the constitution proposed for a federal government, as will secure to the people at large their rights and liberties, and to remove the exceptionable parts of the said proposed constitution:
It is therefore voted and resolved, that the secretary forthwith cause to be printed a sufficient number of copies of Governor Clinton’s letter, with the amendments proposed by the convention of the state of New York, and transmit one as soon as possible to each town clerk in the state; who is hereby directed, upon receipt thereof, to issue his warrant to call the freemen of such town to convene in town meeting, to take the same into consideration, and thereupon to give their deputies instructions whether they will have delegates appointed to meet in convention with the state of New York, and such other states as shall appoint the same; or such other instructions as they may deem conducive to the public good; that this General Assembly may know their determination at the session to be holden by adjournment on the last Monday in December next. . . . ”
Records of the State of Rhode Island, vol. 10, pp. 309-10 (Oct. 27, 1788).
By contrast, a convention held within a state was thought of as a convention of the people.
All of these documents were issued while discussion over ratification of the Constitution was continuing. Eleven states had ratified, but in North Carolina and Rhode Island the outcome was still very much in doubt. Moreover, these are all official documents, not the product of individual eccentrics. As such, they are powerful evidence that a “Convention for proposing Amendments” was understood to be a gathering of the states. The Framers of Article V didn’t need to spell it out, precisely because everyone knew it.
Take out a dollar bill and look on the back. There you will see the two sides of the Great Seal of the United States. Look at the left hand side—the circle with the pyramid.
Above the pyramid is a representation of the Eye of Providence—of God. Above the eye is the phrase, Annuit coeptis. Below the pyramid is Novus ordo seclorum.
The words are in Latin, of course. Most people know that Latin was the official language of the western half of the Roman Empire and the basis for most western European tongues: Spanish, French, Portuguese, Italian, Catalan, Provincal, Romanian, and Swiss Romansh. It also is the source for at least half the words in English (although the foundation of English is German.)
What fewer people know is that Latin remained the language of learning for centuries after the Western Empire “fell” in 476 C.E., and after the collapse of the Eastern Empire in 1453. During the Founding Era, every boy (and some girls) in the English-speaking world with any hope of a decent education began Latin studies around the age of eight. Before entering college, the student could read, and often write, the language with ease. In other words, Latin literature was a mainstay of the education of our Founders. It also held a prominent place in Anglo-American law.
As Forrest McDonald, arguably our greatest living constitutional historian, wrote in the book he entitled, Novus Ordo Seclorum:
“[In understanding the 18th century English in which our Constitution is written] a rudimentary knowledge of Latin is highly useful; after all, every educated Englishman and American knew Latin, English words were generally closer in meaning to their Latin originals than they are today, and sometimes, as with the use of the subjunctive, it is apparent that an author is accustomed to formulating his thoughts in Latin.”
Yet few of those who pontificate on the Constitution today, and this includes law professors in particular, have even the “rudimentary knowledge” of Latin that McDonald thinks is so important. And as I point out in my book, The Original Constitution, they sometimes they make mistakes that reveal their ignorance.
One of the two or three greatest classical Roman poets (perhaps the greatest)—and probably the one most read by the Founders—was Publius Vergilius Maro (“Virgil”). Both inscriptions on the Great Seal are echos from Virgil’s work. Annuit coeptis means “He [i.e., God] has approved [literally “nodded at”] our undertakings.” In Virgil’s epic poem, the Aeneid, the hero’s son prays to the king of the gods, “Iuppiter omnipotens, audacibus adnue coeptis.” (Book 9, Line 625). That is, “All-powerful Jupiter approve [give the nod to] our bold undertakings.” The invocation to Virgil’s agrarian poem, the Georgics, similarly asks, “audacibus adnue coeptis” (Book 1, line 40). By their inscription in the Great Seal, our Founders were announcing that God had, indeed, approved the creation of the United States of America.
Novus ordo seclorum means “new order of the ages,” and to the Founders, the evocative force of this phrase would have been very powerful. The phrase is based on the fourth poem in Virgil’s ten-poem book, “The Eclogues,” written about 37 BCE. In that poem Virgil tells of a newborn child whose birth announces a new golden age: magnus ab integro saeclorum nascitur ordo. “A great order of the ages is born anew.” The poem, written about a three decades before Christ was born, induced many medieval and early modern Christians to believe Virgil had been divinely inspired. (The Italian poet Dante made Virgil his guide through the Inferno and the Purgatorio.)
These are only two examples of how the Latin language opens windows on how the Founders thought. There are many, many others.
The U. S. Court of Appeals for the Tenth Circuit recently refused to dismiss the suit by various public sector interests to invalidate Colorado’s Taxpayer Bill of Rights (TABOR). The plaintiffs claim that TABOR violates Article IV, Section 4 of the U.S. Constitution. That provision is called the Guarantee Clause because it guarantees that the states will have republican forms of government.
The Guarantee Clause was designed to prevent states from becoming monarchies, dictatorships, or anarchies. It is totally inapplicable to TABOR, which simply requires that certain conditions—such as popular votes or legislative supermajorities—be met before the legislature can make designated increases in taxes, spending and debt. Although it is common in Colorado to claim TABOR is “unique,” in fact, it is only one of the stronger fiscal-restraint provisions that appear in the constitutions of 49 states. (The exception is Vermont.)
Restraints of this kind are called “TELs”—tax and expenditure limitations. Even the U.S. Constitution imposes such restraints on Congress. For example, it requires direct taxes, other than the income tax, to be apportioned among states by population, and it imposes a flat ban against taxes on exports.
The Independence Institute filed amicus briefs (Friend of the Court briefs) at the trial and appeals levels. Our briefs did not focus on the standing or justiciability issues—only the question of whether the Guarantee Clause invalidated TABOR. We focused on the Guarantee Clause because at the trial court (district court) level, the attorney general, while defending TABOR, did so almost exclusively on standing and justiciability grounds, and did not address the merits—i.e., whether TABOR violates the U.S. Constitution.
The attorney general did address the merits at the appeals level, but the court held that this was too late. The “republican form of government” question, therefore, will have to be dealt with in further proceedings.
It is unfortunate that this case has gone so far, because the claim that TABOR violates the Guarantee Clause is truly absurd. There is simply no conflict between the “republican form” and fiscal restraints or popular votes. As noted above, nearly all republican constitutions in the U.S. impose fiscal restraints on their legislatures. And popular votes on laws have been a major feature of republican government for thousands of years.
Although our brief did not address the justiciability issue, it seems to me that there is at least one glaring weakness in the appeals court’s decision on that subject.
The Supreme Court says that for a case to be justiciable in federal court, there must be “judicially discoverable and manageable standards” for resolving the issues. Not only have the plaintiffs failed to enunciate any such standards, but their papers seem to shift positions without really settling on any of them. At different points, their papers imply that they think that (1) all voter initiatives violate the Guarantee Clause, or (2) only fiscal voter initiatives do so, or (3) the Guarantee Clause bans only voter initiatives that go too far (wherever that point may be), or (4) it bans only voter-approval requirements for new taxes, or (5) it bans only voter approval requirements for taxes and spending, or (6) it prohibits any voter approval requirements for taxes, spending, or debt.
No one really knows what they mean (including, I suspect, the plaintiffs) because their papers are largely incoherent on the subject. But there certainly are no manageable standards to apply to a case when not even the plaintiffs can enunciate any.
Filed under: All Postings, Article V, The Founding, supreme court
(This article originally appeared in the American Thinker.)
Opponents of a Convention of States long argued that there was an unacceptable risk a convention might do too much. It now appears they were mistaken. So they increasingly argue that amendments cannot do enough.
The “too much” contention was first promulgated in modern times by apologists for the liberal, ultra-activist Earl Warren/Warren Burger Supreme Court. Specifically, these apologists feared a convention might propose amendments to reverse their favorite judicial decisions. Their tactic was to claim that an amendments convention, even if legally limited, could turn into a “con-con” that disregarded its limits, repealed the Bill of Rights, and restored slavery. (Yes, some of them really said that.)
The liberals who promoted this scenario must have been amused when some deeply conservative groups fell into the trap and began using the same argument to kill conservative amendments.
The “too much” line, however, has been losing its persuasiveness. New research shows it to be legally and historically weak, and Americans increasingly are pondering the very real dangers of not resorting to the convention process the Founders bequeathed to us.
Hence the shift to the “too little” argument. Its gist is that amendments would accomplish nothing because federal officials would violate amendments as readily as they violate the original Constitution.
Opponents will soon find their new position even less defensible than the old. This is because the contention that amendments are useless flatly contradicts over two centuries of American experience — experience that demonstrates that amendments work. In fact, amendments have had a major impact on American political life, mostly for good.
* * * *
The Framers inserted an amendment process into the Constitution to render the underlying system less fragile and more durable. They saw the amendment mechanism as a way to:
* correct drafting errors;
* resolve constitutional disputes, such as by reversing bad Supreme Court decisions;
* respond to changed conditions, and
* correct and forestall governmental abuse.
The Framers turned out to be correct, because in the intervening years we have adopted amendments for all four of those reasons. Today, nearly all of these amendments are accepted by the overwhelming majority of Americans, and all but very few remain in full effect. Possibly because ratification of a constitutional amendment is a powerful expression of popular political will, amendments have proved more durable than some parts of the original Constitution.
Following are some examples:
Correcting drafting errors
Although the Framers were very great people, they still were human, and they occasionally erred. Thus, they inserted in the Constitution qualifications for Senators, Representatives, and the President, but omitted any for Vice President. They also adopted a presidential/vice presidential election procedure that, while initially plausible, proved unacceptable in practice.
The founding generation proposed and ratified the Twelfth Amendment to correct those mistakes. The Twenty-Fifth Amendment addressed some other deficiencies in Article II, which deals with the presidency. (My reference to a particular amendment does not mean I agree with every provision in it.)
Both the Twelfth and Twenty-Fifth Amendments are in full effect today.
Resolving constitutional disputes and overruling the Supreme Court
The Framers wrote most of the Constitution in clear language, but they knew that, as with any legal document, there would be differences of interpretation. The amendment process was a way of resolving interpretative disputes.
The founding generation employed it for this purpose just seven years after the Constitution came into effect. In Chisholm v. Georgia, the Supreme Court misinterpreted the wording of Article III that defines the jurisdiction of the federal courts. The Eleventh Amendment reversed that decision.
In 1857, the Court issued Dred Scott v. Sandford, in which it erroneously interpreted the Constitution to deny citizenship to African Americans. The Citizenship Clause of the Fourteenth Amendment reversed that case.
In the 1970, the Court decided Oregon v. Mitchell, whose misinterpretation of the Constitution created a national election law mess. A year later, Americans cleaned up the mess by ratifying the Twenty-Sixth Amendment.
All these Amendments are in full effect today, and fully respected by the courts. Some argue, in fact, that the Supreme Court actually over-enforces the Eleventh Amendment — a contention with which I do not agree.
Responding to Changed Conditions
The Twentieth Amendment is the most obvious example of a response to changed conditions. Reflecting improvements in transportation since the Founding, it moved the inauguration of Congress and President from March to the January following election.
Other amendments as well were wholly or partially triggered by changed conditions. The Seventeenth Amendment, which transferred elections for Senators from the state legislatures to the people, is still controversial in some quarters. But it was adopted only after social changes had caused widespread breakdown in the prior election system. (That is why the state legislatures themselves sought the change.) With the partial exception of Mark Levin, few if any of its critics address the very real problems the Seventeenth Amendment was designed to solve.
Similarly, the Nineteenth Amendment, which assured women the vote in states not already granting it, was passed for reasons beyond simple fairness. When the Constitution was written, overwhelming domestic duties and very short female life expectancies effectively disqualified most women from politics. During the 1800s, medical and technological advances made possible by a vigorous market economy improved the position of women immeasurably and rendered their political participation far more feasible. Without these changes, I doubt the Nineteenth Amendment would have been adopted.
Needless to say, the Seventeenth, Nineteenth, and Twentieth Amendments all are in full effect many years after they were ratified.
Correcting and forestalling government abuse
Avoiding and correcting government abuse was a principal reason the Constitutional Convention unanimously inserted the state-driven convention procedure into Article V. Our failure to use that procedure helps explain why the earlier constitutional barriers against federal overreaching seem a little ragged. Before looking at the problems, however, let’s look at some successes:
* In 1992, we ratified the Twenty-Seventh Amendment, 203 years after James Madison first proposed it. It limits congressional pay raises, although some would say not enough.
* In 1951, we adopted the Twenty-Second Amendment, limiting the President to two terms. Eleven Presidents later, it remains in full force, and few would contend it has not made a difference.
Now the problems: Because we have not used the convention process, the first ten amendments (the Bill of Rights) remain almost the only amendments significantly limiting congressional overreaching. I suppose that if the Founders had listened to the “amendments won’t make any difference” crowd, they would not have adopted the Bill of Rights either. But I don’t know anyone today who seriously claims the Bill of Rights has made no difference.
In fact, the Bill of Rights continues to have a huge impact more than two centuries after adoption. The courts enforce, to at least some extent, all of the original ten except, arguably, the Ninth. Some, such as the First Amendment, have been “super enforced.” Others, such as the Second and Fourth are under relentless pressure, but remain far better than nothing at all.
What about the Ninth and Tenth? They are certainly under-enforced today, but we must remember that they enjoyed full effect for nearly 150 years. No reasonable person would classify 150 years of effect as anything but a stellar political success. Even today, the Tenth retains some of its power, as Congress learned when the Supreme Court upended its effort to corral all the states into the Obamacare Medicaid expansion.
“I have but one lamp by which my feet are guided; and that is the lamp of experience,” Patrick Henry said. “I know of no way of judging of the future but by the past.”
In this case, the lamp of experience sheds light unmistakably bright and clear: Constitutional amendments work.