Is the Obamacare Mandate Unconstitutional Because It Originated in the Senate?

February 24, 2014 by Rob Natelson · Comments Off
Filed under: All Postings, ObamaCare, supreme court 
Rob at James Madison's home in Virginia

Rob at James Madison's home in Virginia

The Patient Protection and Affordable Care Act (PPACA or “Obamacare”) imposes a sliding-scale financial penalty on people who do not buy health insurance conforming to federal standards. In NFIB v. Sebelius, the Supreme Court upheld the penalty as a constitutional “tax.”

But that may not be the last word on its constitutionality.

A lawsuit brought by Matt Sissel, a self-employed artist, contends that the penalty is void under a provision in the Constitution called the Origination Clause: Article I, Section 7, Clause 1.  It reads as follows:

“All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.”

As a tax, Sissel argues, the financial penalty is “for raising Revenue.” He then notes how Obamacare was adopted: First, the House passed H.R. 3590, which created a first-time homebuyer tax credit for armed services personnel and “accelerated” certain estimated corporate income tax payments. Next, when H.R. 3590 came to the Senate, that body gutted it and inserted the PPACA instead, which the Senate then passed. Finally, the House passed the new H.R. 3590. So as a practical matter, Sissel says, the Obamacare tax originated in the Senate—not, as constitutionally required, in the House.

If Sissel is right, then the same defect may afflict other levies imposed by Obamacare, such as the one on medical devices.

The case turns on two overarching issues:

(1) Is the penalty for not buying insurance a measure “for raising Revenue?” and
(2) Did the Senate’s action in gutting the original bill and replacing it with Obamacare constitute an “Amendment?”

Only if the penalty was “for raising Revenue” did the Origination Clause apply. Only if the Senate’s changes exceeded the scope of permissible “Amendment” (and thereby constituted an entirely new bill) did Obamacare unconstitutionally arise in the Senate.

In defending the law, the government argues that the penalty, even if the Supreme Court calls it a “tax,” was imposed for independent regulatory reasons, not to raise money. The government also argues that “gut and replace” is a permissible amendment procedure.

In my investigations, I’ve found—at least thus far—that the answer to the first question is a lot easier than the answer to the second.

As to the first question: It is clear that the financial penalty in Obamacare was adopted primarily to regulate the economy pursuant to the Commerce Power (Commerce Clause + Necessary and Proper Clause). If the penalty were valid as a regulatory measure, it would not be “for raising Revenue,” either under the Constitution’s original meaning or under Supreme Court precedent.

The problem for the government, however, is that in NFIB v. Sebelius the Supreme Court held that the penalty was NOT valid as regulatory measure because it exceeded Congress’s Commerce Power. The penalty’s sole constitutional justification was the revenue it could raise—estimated at $4 billion per year by 2017. (Recent revelations about the number of people who are spurning Obamacare-approved health insurance suggests this number may be far too low.)

In other words, the Obamacare penalty for not buying insurance is valid only as a revenue-raising measure, and the NFIB v. Sebelius decision compels the courts to treat it as such.

The second issue is whether the Senate’s action in gutting the original bill and replacing it with something else constituted an “Amendment.” If it was not, then Obamacare’s levies really arose in the Senate, and are unconstitutional.

This is a much harder question to answer. It requires first addressing a number of others:

*    What was the understanding of those who ratified the Constitution as to the scope of an amendment?

*    If the ratifiers’ understanding on this subject is not clearly ascertainable, then what was the original public meaning of the term “Amendment?” Answering this question requires going beyond the public discussion during the ratification debates and into sources such as 18th century dictionaries and treatises, and the records of contemporaneous legislatures—specifically of the British Parliament, the American colonial assemblies, and the legislatures of the newly independent states.

Previous treatments of these “originalist” questions in law journal articles are distinctly mediocre. This is a common problem because, as I have pointed out elsewhere, most legal scholars are ill-equipped for historical work or too agenda-driven to accomplish it reliably.

Anyway, the questions continue:

*    If the scope of “Amendment” requires a subject-matter connection to the original bill, then how much connection is necessary? The original H.R. 3590 was not about health care or health insurance at all. Does that mean that the Senate changes exceeded the scope of “Amendment?”

*    But the original H.R. 3590 was connected to revenue! It would have amended the Internal Revenue Code to create a tax credit. Is this sufficient?

*    If not, consider that the original H.R. 3590 not only helped a popular group (armed services homebuyers), but it also “paid for” their benefit by sticking it to an unpopular group (larger corporations). Specifically, the measure “accelerated” estimated corporate income taxes. Instead of larger corporations having to pay 100.25% of their taxes in advance, the original H.R. 3590 would have required them to pay 100.75% in advance. Of course, the corporations would have gotten their excess back eventually. But, as everyone in government knows, estimated tax “acceleration” is really a forced loan that makes cash flow to the government faster so as to create bookkeeping entries that cover other shortfalls. It is a financial stunt to enable politicians to effectively increase taxes by giving the government earlier use of citizens’ money, while enabling those politicians to claim they really didn’t raise taxes. So if this part of H.R. 3590 raised money, is this a sufficient connection with the Obamacare taxes to render Obamacare a mere “Amendment?”

I don’t know. But the investigation continues. Stay tuned.

A New Triumph for the Right to Keep and Bear Arms (and for II’s Dave Kopel)

February 14, 2014 by Rob Natelson · Comments Off
Filed under: All Postings 
Rob at James Madison's home in Virginia

Rob at James Madison's home in Virginia

A federal court of appeals has just vindicated the Second Amendment right to keep and bear arms in a big way. And II’s own Dave Kopel was largely responsible.

California denied citizens the right to carry firearms outside their homes, unless they obtained a concealed weapons permit. But to get such a permit, citizens had to demonstrate “good cause”—and fear for one’s personal safety was not sufficient to show “good cause.” The effect of the statute was to allow the local sheriff to deny the right to bear arms to all but a favored few.

On February 13, the U.S. Court of Appeals for the Ninth Circuit (the largest of the nation’s federal court of appeals districts) issued Peruta v. County of San Diego. It held that the California statute violated the Second Amendment. In doing so, the court cited one of Dave Kopel’s articles. But that citation went nowhere near showing the extent of his influence.

To clarify the historical understanding of the term “bear arms,” the Court spent much of its opinion citing and discussing obscure 19th century cases and commentaries on the right to keep and bear arms. It was Dave Kopel who first re-introduced these materials to public notice.

In 1998, Dave wrote an article called The Second Amendment in the Nineteenth Century, 1998 B.Y.U. L. Rev 1359. This was a massive compendium of cases, commentaries, and other materials. (By “massive,” I mean 188 pages, roughly three times the size of the typical law journal article.)

This article placed into the legal databases for the first time the full story of how the public viewed the Second Amendment during the century after the Constitution was ratified. By collecting and publishing this material, Dave made the collection readily accessible to later commentators, who built on his work. He also thereby made this material available to the courts.

The Court of Appeals cited Dave’s article in Peruta, but didn’t fully explain how that contribution made possible much of the later work that the court also cited. Pioneers don’t always get the credit they deserve.

This incident is only the latest example of how II, although a Colorado think tank, also advances freedom nationally and internationally.

Rob’s Harvard Article on “Recess Appointments” Is Published—and Goes to the Supreme Court

February 8, 2014 by Rob Natelson · Comments Off
Filed under: All Postings, The Founding, supreme court 

2013-0822 RGN

Last May, I reported that litigation over President Obama’s “recess appointments” was going to the Supreme Court. In fact, oral argument was held a few weeks ago.

The Harvard Journal of Law and Public Policy has just published my article on the original meaning of the Recess Appointments Clause. It reports that the Constitution uses the term “the Recess” to refer only to formal breaks between sessions of the Senate, not to informal intra-session breaks. It also reports that a vacancy “happens” only when it is created during the Recess. It is not sufficient for the vacancy to be created when the Senate is in session and then continue into the recess.

These conclusions are based on detailed, impartial, study of Founding-Era legislative and other governmental practice—apparently the first article on this topic to report the results of such a study.

This article was cited to the Supreme Court both in the Independence Institute’s amicus brief on the case, and by at least one of the parties. You can find it here.

Struggling With Nullification

February 3, 2014 by Rob Natelson · Comments Off
Filed under: All Postings, ObamaCare, The Founding, supreme court 
Rob at James Madison's home in Virginia

Rob at James Madison's home in Virginia

Does a state have the right to nullify federal statutes the state considers unconstitutional? This depends largely on how you define “nullification.” It also depends on what you mean by “right” and what kind of document you understand the Constitution to be. In other words, it depends on your premises.

Unfortunately, people often discuss—and debate, and attack each other over—the merits or demerits of nullification without making their premises clear. The result is much quarreling among people who are fundamentally on the same side.

Historically, “nullification” was defined quite narrowly. It referred to a formal ordinance of a state legislature or state convention that declared a federal law void within the boundaries of the state. The state might or might not make the ordinance conditional, and it might or might not impose criminal or civil penalties on persons attempting to enforce the federal enactment. We can refer to this as the narrow, or historical, definition of nullification. It is traditionally credited to the Kentucky Resolutions of 1798, drafted by Thomas Jefferson.

Today the term often is used in a much broader sense by advocates, by opponents, and often by the press.  So used, it refers as well to other mechanisms a state may deploy to assert its prerogatives against federal overreaching—that is, to other methods of what James Madison called “interposition.” The Tenth Amendment Center often uses “nullification” in this broad way.

Thus, “interposition” (by Madison’s definition) or “nullification” (by a broad definition) can refer to state actions such as:

*    State legislative and executive expressions of opinion against a federal measure;

*    State lobbying pressure to get the measure changed or repealed;

*    State-sponsored lawsuits against federal actions deemed unconstitutional;

*    Political coordination among states to promote change or repeal;

*    Refusal of states to accept federal grants-in-aid attached to obnoxious conditions;

*    Refusal of states to allow their officials to cooperate in the execution of federal programs;

*    Refusal of states to render a particular activity that is a federal crime illegal under state law as well (e.g., the use of marijuana in Colorado and Washington); and

*    The state application and convention process of Article V.

Constitutional wonks will recall that Madison anticipated most of these in Federalist No. 46, and included the others in later writings.

All of the interposition methods listed above are perfectly legal and constitutional. For example, there is certainly no requirement that a state duplicate federal crimes in its own statute books, and the Supreme Court has said repeatedly (and held expressly in the NFIB v. Sebelius, the Obamacare case) that the federal government may not “commandeer” state officials in service of federal policy.

Clearly, calling these modes of interposition “nullification” does not render them unconstitutional or wrong.

On the other hand, there are methods of interposition that the Constitution does not authorize. In other words, they are extra-constitutional. Nevertheless, the Founders believed that natural law reserves them to the people in some circumstances.

The most dramatic illustration of an extra-constitutional remedy reserved by natural law is the right of armed revolution, which Madison also discussed in Federalist No. 46. He later stressed that the people should resort to extra-constitutional methods only when the constitutional compact has been irretrievably broken.

Both historically and today, the most serious nullification disputes center on whether states enjoy the constitutional prerogative of adopting formal nullification ordinances. In other words: Does a state have the constitutional power to void what it perceives to be an unconstitutional federal law?

Let’s try to isolate some of the issues:

First: It is clear that in the extreme conditions justifying revolution, resistance need not be conducted solely by private individuals or groups. States may participate officially, as the colonies/states did during the years 1775-83. This is the scenario Madison presented in Federalist No. 46. Obviously, in these circumstances a state may declare federal law void within its boundaries. But this power flows from natural law, not from the Constitution (which in revolutionary circumstances, you recall, would have been irretrievably broken).

Second: What of our current situation—that is,when  there is no revolution, the union continues, federal laws are still widely obeyed, and the Constitution is still largely in operation? In those circumstances, may a state declare void a judicially-sustained federal law that the state deems unconstitutional? The answer to this question turns largely on your conclusion as to the fundamental nature of the Constitution.

Third: What is that fundamental nature?

The Constitution has been characterized as:

*    A compact (i.e., contract) to which only the states are parties, by which the states granted power to federal officials. This is the pure interstate compact theory, expressed in Jefferson’s 1798 Kentucky Resolutions.

*    A “compound” compact, created by the people but to which the states are parties. This was apparently Madison’s post-ratification view (see, for example, the equivocal wording about the nature of the Constitution in his Notes on Nullification), and may have underlain his 1798 Virginia Resolution.

*    A popular grant: that is, a grant of power from the people—mostly to federal legislators and officials, but in some cases to state legislative authorities (as in the Time, Places, and Manner Clause) or to state legislators (as in Article V). This view was expressed by some of the seven state legislatures that formally repudiated the Kentucky and Virginia Resolutions. It also was Chief Justice John Marshall’s conclusion in the famous case of McCulloch v. Maryland (1819).

You can make the best case for narrow-definition nullification as a constitutional prerogative if you adopt the first of the three alternatives. The basic idea is that if other states have broken the compact by letting their agent (the federal government) run amok, then aggrieved states (compacting parties) have the right to protect themselves.

On the other hand, if you adopt the popular grant theory it is much more difficult to justify nullification. This is because the people, not the states, are the parties. By this analysis, the states may, as agents of the people, protest, sue, and protect their own governmental operations, but they may not void federal actions unilaterally, except by their legislators using their delegated power to amend under Article V.

And if you subscribe to Madison’s mixed theory, then, as Madison pointed out in 1830 and again in 1834, there also are conceptual problems with considering nullification as a constitutional right rather than just a natural law remedy.

Fourth: So, again, we must ask, “Which of the three theories of the Constitution is correct?”—state compact, compound compact, or popular grant?

The answer to this question depends on the dominant understanding of (or meaning to) the people who ratified the Constitution between 1787 and 1790.

The answer does not depend on what Thomas Jefferson or James Madison wrote in the Resolutions of 1798, or on what other states proclaimed when they rejected those Resolutions. Even more clearly, the answer does not depend on what Chief Justice Marshall concluded in 1819, or what Madison, John C. Calhoun, or anyone else said in the 1830s.

Rather, determining the fundamental nature of the Constitution requires reconstructing the sense of the document to those who ratified it.

Anyone who has made an honest study of the ratification has to offer conclusions on this particular subject with humility. The ratification record can be confusing and the prevailing meaning at the time can be hard to reconstruct. For example, it is not sufficient to note that the Founders referred to the Constitution as a “compact.” This is because they used that word to refer both to governments established by states (confederations) and to governments established among the people alone.

Nor is it sufficient, as do some writers popular among constitutionalists, to focus only the ratification debates within selected states. You have to view the wider picture. Similarly, it is insufficient to rely merely on a few key Founders, such as Madison, Hamilton, or Jefferson. There were 1648 ratifying delegates—not just two or three—and many had important things to say. So did the orators, newspaper writers, and pamphleteers who influenced them. Jefferson was a great man, but his opinions on the meaning of the Constitution have little value, since as our ambassador to France, he did not participate in the framing or ratification.

Nor can you rely only on the express language of the ratification debate. You have to get into the heads of the ratifiers by reading what they read, and understanding their jurisprudence and their customs.

This is not the place to get into the details (this posting is already too compendious). Suffice to say that long study of the ratification record convinced me that most of the ratifiers probably thought of the Constitution as a grant from the American people rather than as a compact among states, pure or compound (as I once thought). I set forth several of my reasons in The Original Constitution: What It Actually Said and Meant.

At this point, I’ll explain just one reason. (But for for another see here.) It has to do with how 18th century English speakers drafted and read legal documents.

The Constitution famously begins with the phrase “We the People.” States are not mentioned. Now, the script and the placement of that phrase was no accident. It followed the custom by which legal documents granting power listed the grantor first. Thus, in royal charters granting rights and privileges to citizens, the king—that is, the grantor—always appeared first in large and ornate script. (A wholly typical example is the royal charter of Dartmouth College.) Although the Articles of Confederation had given that placement to the states, the Constitution afforded it to the people alone.

How do we know the delegates to the ratifying conventions caught the implications of this? Because some of them said so. For example, William Findley, an Anti-Federalist spokesman at the Pennsylvania ratifying convention, observed:

“In the Preamble, it is said, ‘We the People,” and not ‘We the States,’ which therefore is a compact between individuals entering into society, and not between separate states enjoying independent power and delegating a portion of that power for their common benefit.”

And Findley’s leading adversary at the convention, James Wilson, agreed with him on this point.

Anti-Federalists not only understood, they objected vehemently. Patrick Henry, chief Anti-Federalist at the Virginia ratifying convention, demanded to know:  “Who authorized [the Framers]to speak the language of, We, the people, instead of, We, the states?”

As events turned out, the delegates elected to represent the people of Pennsylvania and Virginia decided to accept that language. The Virginia delegates even recited in their ratification instrument that “the powers granted under the Constitution [are] derived from the People of the United States.” The delegates in every other state also accepted the “We the People” formulation. Incidentally, among the delegates most responsible for Henry’s defeat on his home ground were two young men named James Madison and John Marshall.

Finally: Once the pure state compact theory falls, it is very hard to justify nullification (narrowly defined) as a constitutional remedy. It remains instead a remedy reserved by natural law for when the Constitution has wholly failed—in other words, in situations justifying revolution.

Obaminable Nullification & Division Among Constitutionalists

January 24, 2014 by Rob Natelson · Comments Off
Filed under: All Postings, The Founding, supreme court 
Rob at James Madison's home in Virginia

Rob at James Madison's home in Virginia

“Progressives” often attack as indefensible proposals by some conservatives that states nullify federal laws those states deem unconstitutional. But “progressive” politicians now are engaged in a nullification campaign far more audacious and lawless than anything suggested by conservatives.

The latest example is the decision by Virginia’s new attorney general, Mark Herring, to join the attack on the constitutionality of his state’s legal definition of marriage. Of course, the traditional duty of a state attorney general is to defend state laws against attack, not to join the assault. This obligation prevails even if the A-G personally believes the law under question is unconstitutional or unwise. He is a lawyer. His client is the state. His client is not some disaffected interest group. He has a professional role to perform. If he’s not willing to perform it, he should get his butt out.

More serious are the decisions of the President to refuse to enforce federal laws he doesn’t like. For example, federal marijuana statutes, whatever their advisability, are currently on the books, and the Supreme Court upheld them a scant nine years ago. The Constitution imposes on the President the duty is to “take Care that the Laws be faithfully executed.” This is a constitutional commandment, not a serving suggestion. But the Obama administration has pursued an on-again-off-again, state by state, approach to enforcement. The effect is to selectively nullify statutes that were democratically enacted and judicially-vetted.

The Obama-Herring approach to “governing” goes well beyond the kind of nullification some constitutional conservatives advocate. Unlike the President, they seek to nullify only laws that they deem unconstitutional, not merely laws they think unwise. And unlike both the President and Herring, they suggest nullification through duly-adopted state legislation, not by the unilateral decision of an executive officer. (Needless to say, the Obama-Herring practice also goes well beyond President George W. Bush’s practice of issuing interpretive “signing statements,” which liberals then hypocritically assailed as improper.)

As I have noted elsewhere, the United States is suffering a break-down in official adherence to the rule of law. Arbitrary executive nullification is only one example. But executive nullification is a graphic reminder of how serious is the threat to our liberties.

It also should be a reminder to the defenders of liberty to stop fighting among ourselves.

To be sure, arguments among the Constitution’s defenders are almost all about strategy, not about goals. In many cases, however, those arguments have become filled with invective. I am not of a conspiratorial turn of mind, but I do suspect that left-wing sources help foster them. Divide et impera.

Most of the controversies turn on abstruse points of constitutional law. Those points, in turn, depend on such questions as whether the Constitution is a grant from the people or a glorified interstate compact; whether this or that nullification theory is or isn’t constitutionally justifiable under the Madison theory, the Jefferson theory, the Calhoun theory, or whatever;  and what this or that Founder believed at one or another time of life. I don’t think it’s unfair to suggest that most of the combatants do not have the background or training to reach authoritative conclusions on such points. But that doesn’t deter them from fighting.

As often happens in such disputes, the participants talk past each other, and never fully understand what their opponents have to say. Much of the argument over nullification, for example, derives largely from inconsistent use of terms.

Saving the republic will require that, whatever our strategic differences, defenders of the Constitution respect each other as allies. As my friends at the Tenth Amendment Center say, “Concordia res parvae crescunt”—through harmony, small things grow.

Next week’s post will seek to clarify the nullification argument in the hope that a common terminology will reduce the field of dispute.

The Santa Fe Convention: A 20th Century Convention of States

January 17, 2014 by Rob Natelson · Comments Off
Filed under: All Postings, Article V, The Founding 
Rob at the Trevi Fountain in Rome

Rob at the Trevi Fountain in Rome

For over 300 years, American states (and before Independence, American colonies) have cooperated with each other as equal sovereigns to address common problems.

One device for doing so is the formal, diplomatic meeting of state delegations (called “committees”) consisting of delegates (called “commissioners”). Meetings of state commissioners may be bilateral—as when two states form a boundary commission to resolve a boundary dispute.  Such gatherings also may be multilateral—that is, with three or more state committees participating. The usual label for a multi-state meeting is convention.

Most commentators on the Constitution have shown no familiarity with any multi-state conventions other than the 1787 Constitutional Convention and (sometimes) the Annapolis Convention held the previous year. Some opponents of the Article V “convention for proposing amendments” have even argued that the 1787 gathering is our only historical precedent.

The truth is dramatically different. Far from the 1787 Philadelphia convention being unique, at the time it was more like business as usual. Over the previous century, there had been more 30 conventions among colonies and states. The Constitutional Convention was the 11th held since Independence had been declared in 1776. Others had been held in Providence (twice), York Town, PA (1777), Springfield (1777), Hartford (twice), New Haven (1778), Philadelphia (1780), Boston (1780), and Annapolis (1786).

After the Constitution was adopted the states met less frequently, but they did continue to meet. The New England states convened in Hartford, Connecticut in 1814. The Southern states gathered in Nashville, Tennessee in 1850. And the states held a general convention—one to which every state was invited—in Washington, D.C. in 1861. The Washington Conference Convention, as it was labeled, was called to propose to Congress a constitutional amendment to ward off Civil War. It did produce such an amendment, but Congress failed to act on it.

There was at least one more recent gathering as well. In 1922, seven southwestern states sent commissioners to negotiate the Colorado River Compact. Although the assembly was called the Colorado River Commission, it was in all respects a convention of states, and it may be called the “Santa Fe Convention,” after the city where its most important sessions were held.

The group convened 27 times over the course of a single year. The first seven sessions occurred in Washington, D.C., the eighth in Phoenix, the ninth in Denver, and the remaining 18 in Santa Fe.

The convention consisted of seven commissioners, one from each participating state. This made it one of the smaller interstate conventions, but by no means the smallest. The group decided to include a federal representative, Secretary of Commerce Herbert Hoover—then perhaps the best known and most highly-regarded engineer in the world. Including a federal representative was advisable because, unlike proposed constitutional amendments, interstate compacts must be approved by Congress.

However, inclusion of a representative of another sovereignty in a multi-state convention was well-precedented: several inter-colonial conventions had included commissioners from the British Crown or from sovereign Indian tribes.

The Colorado River Commission followed all the principal rules for a convention of states:

*    Each state had one vote;

*    The convention decided on its own procedures;

*    The convention elected its own officers—a chairman who was a commissioner and a secretary who was not;

*    After the initial call, the convention controlled the time and place of meeting;

*    The commissioners stayed within their prescribed agenda; and

*    They produced a recommendation ultimately ratified by the participating states.

There also were three more unusual aspects. First, because of the special needs of interstate compacting, the group adopted a unanimous voting rule. By unanimous vote, they later changed this temporarily, allowing approval of resolutions by a majority of states. Second, the convention adjourned for weeks at a time to allow the technical staff to do its work. This was not unprecedented: The Nashville Convention first met in June, 1850 and then adjourned to November. Finally, the convention decided to rotate its meetings among several different cities.

Most importantly, the Santa Fe gathering provides us with yet another, relatively recent, instance of sovereign American states meeting in convention.

For those interested, I have posted the minutes of the Colorado River Commission here.

NB: Thanks to Nick Dranias of the Goldwater Institute for his insights into interstate-compact negotiation process. They were helpful in preparing this post. Also, thanks to Peg Brady for her research.

The Framers’ Bloopers

January 12, 2014 by Rob Natelson · Comments Off
Filed under: All Postings, The Founding, supreme court 

convention upsidedown The Constitution’s Framers were very great men, but they were not gods. They made mistakes.

By “mistakes,” I’m not talking about matters of political judgment, such as how much to accommodate slavery. I mean drafting errors of the forehead-slapping kind.

Consider first a matter of style: The Constitution in its final form was drafted by a committee chaired by Gouverneur Morris. By all accounts they did a fine job. But not a flawless one.

The committee decided to follow the practice of capitalizing all nouns—a custom already going out of fashion, and abandoned just two years later when the Bill of Rights was written (that is, 1789; the Bill was ratified in 1791). One could defend that decision; but after having made it, they forgot to capitalize several nouns. The omissions include the word “defence” in the Preamble; “credit” in Article I, Section 8, Clause 2 (the congressional borrowing power); “duty” in Article I, Section 9, Clause 1; and “present” in Article I, Section 9, Clause 8.

Much more serious were a handful of substantive mistakes. Article I, Section 7, Clause 3 provides that all congressional resolutions requiring concurrence of the House and Senate must be presented to the President for his signature or veto. The Clause contains no exception for constitutional amendments under Article V—even though the evidence suggests that the Founders intended such an exception. So beginning with the 1798 Supreme Court case of Hollingsworth v. Virginia, the courts have followed the Founders’ intent rather than the literal wording.

Article II is certainly the worst-drafted of the instrument’s seven articles. The very first sentence of Article II (the so-called Executive Vesting Clause) is unclear enough to have led to long-standing disputes over the scope of presidential power—although my own view is that the disputes are due as much to ignorance of 18th century drafting practice as to the quality of the drafting.

Article II specified that the runner-up in the presidential election would be Vice President. I put that in the “misjudgment” rather than the “blooper” category because, as I explain in my book, The Original Constitution: What It Actually Said and Meant, there were some good reasons for the initial rule. It was only in practice that we learned that that approach didn’t work. It was corrected in 1804 by the adoption of the Twelfth Amendment.

But another defect in Article II falls squarely in the “blooper” category. The Framers inserted qualifications in Article I for Senators and Representatives, and when they wrote Article II they prescribed qualifications for the President. But they omitted qualifications for the Vice President. Apparently they just forgot. The Twelfth Amendment cured that omission also.

A less obvious boner appears in Article II, Section 2. One if its phrases implies that, with Senate advice and consent, the President appoints federal officers. But a later phrase in the same section (“may by Law vest the Appointment . . . in the President alone”) implies that the Senate co-appoints. Important consequences depend on which phrase controls, but it takes some serious constitutional interpretation to figure out that the former prevails over the latter. This also is explained in The Original Constitution: What It Actually Said and Meant.

The Bill of Rights—drafted by the First Congress—isn’t free of composition mistakes either. The Fifth Amendment excepts members of the U.S. Armed Forces from the requirement of grand jury indictment, but it fails to except enemy combatants accused of war crimes. If you read it literally, therefore, the Fifth Amendment seems to extend more protection to enemy combatants than to our own soldiers. It takes some interpretative work to figure out that this is not actually so. This point is also discussed in The Original Constitution: What It Actually Said and Meant.

Don’t get me wrong: In its entirety, the Constitution is a beautiful piece of legal craftsmanship. Indeed, most of those who charge the Framers with mistakes are mistaken themselves, either because they are ignorant of 18th century language, history, law, and conditions, or because they merely disagree with the Founders’ ideas of government.

For example, some writers claim that the Framers were too sketchy in describing the Convention for Proposing Amendments in Article V. But this claim is based on ignorance of established 18th-century convention procedure.

For discussions of other unfair raps against the Founders, see posts here, here, and here for short essays correcting such claims.

All that having been said, we still must acknowledge that the Framers made an occasional drafting mistake. Their document is the supreme law of the land, and one of the greatest political achievements in human history. But it is not Holy Writ, unchangeable or never to be questioned: The Framers were humble enough to recognize that themselves. That’s one reason they included the Article V amendment procedure.

Lessons For Federalism from Colorado’s Pot “Legalization”

January 4, 2014 by Rob Natelson · Comments Off
Filed under: All Postings, ObamaCare, supreme court 

RGN 2012 (An earlier version of this post appeared on the website of The American Thinker.)

It’s ironic that one of the few “states’ rights” battles won in recent times was Colorado’s decision to legalize marijuana in the teeth of federal laws to the contrary.

Pot really isn’t legal in Colorado, of course. The federal government still bans the stuff. And in Gonzales v. Raich (2005), the Supreme Court held that the federal ban is valid and the supreme law of the land. Last I looked, Colorado was still part of “the land.”

But as is its constitutional prerogative, Colorado has removed its own (i.e., state), criminal penalties from the sale of marijuana to adults over 21, so long as certain regulations are followed and participants pony up specified kickbacks to the state in the form of taxes and fees. President Obama’s practice of disregarding laws he doesn’t like has left Colorado with at least a temporary victory.

Now here’s the irony: Since 1940, authorities in Washington, D.C. have done many dreadful things while acting in excess of their constitutional powers. They have locked up American citizens without trial. They have executed American citizens without habeas corpus. They have quashed the career hopes of millions. They have sent soldiers to fight and die in undeclared wars. They have established surveillance systems to monitor the personal lives of innocent citizens. They have adopted social policies that largely destroyed inner-city families. They have inflicted severe damage on our health care system and our monetary system, and have burdened our country with unimaginable debt.

Yet none of these has provoked push-back so successfully as Washington’s ban on a totally unnecessary recreational drug. And—even more ironically—a drug that, unlike the targets of so many other regulations, really can be harmful. Perhaps the only comparable success against federal encroachment was repeal of federal Prohibition, another ban on a potentially harmful recreational drug. Both these instances are reminiscent of an even earlier American reaction when faced with government restrictions on yet another of life’s unnecessary pleasures: tea.

From Colorado’s marijuana “legalization” some federalism advocates draw a conclusion that is both (1) obvious and (2) wrong. The conclusion is that the only way to restore constitutional limits is for constitutionalists to form alliances with hard core “progressives” in areas of common concern. After all, wasn’t it a right-and-left-wing coalition that successfully repealed Colorado’s marijuana ban?

There are, however, at least two problems with this approach. First, the few areas of common concern are mostly very small and of limited importance. “Progressives” very rarely take a genuine pro-federalism position, and when they do, the issue is usually narrow. By any objective measure, marijuana legalization is small POT-atoes compared to massive programs like Obamacare.

Secondly—and more importantly—victories won by coalitions so disparate are not stable. Today’s “progressive” movement is not controlled by the reasonable liberals of your granddaddy’s generation. Today’s “progressivism” is increasingly a totalitarian movement. In other words, a critical mass of its adherents genuinely believe that there are no limits to what they can make government do to the rest of us.* As is true of other totalitarians, they see any victory won for freedom as merely opening the door for more coercion.

There are many examples:

*    “Progressives” campaigned for a “woman’s right to choose” contraception or abortion, but no sooner did this become government policy, than they began promote laws forcing conscientious religious objectors to pay for conception and abortion.

*    “Progressives” campaigned against Guantanamo during the Bush administration, but, with a few noble exceptions, after Obama was elected, conticuere omnes.

*    Most “progressives” favored legalizing homosexual behavior (and I agree) under the banner of freedom. But no sooner had they won freedom for this form of behavior than they began to use government to promote it—by adopting policies that grant insurance and other civil privileges to homosexual behavior at others’ expense and by deploying “anti-discrimination” laws to intimidate, silence, and punish dissenters.

*    During the campaigns to legalize previously illegal sexual behavior, one of the Left’s key arguments was that government does not belong in such personal decisions. But they sang quite a different song when the opportunity arose to pen all of us up in Obamacare.

Only a fool would think the hard Left will be satisfied with freedom or use, or not use, marijuana. Within a short time, “progressives” will begin to agitate for direct or indirect public subsidies for use, and for government crackdowns on anyone who objects to it. (Possible first steps: Making it illegal to refuse to hire or serve users and further subsidizing health care for pot abusers.)

I believe the battle for federalism can still be won—and that, indeed, that it will be won. But it has to be won with a coalition that will preserve the victory. History teaches that coalitions between democrats and totalitarians do not last long: If the totalitarians remain in the coalition, they will quickly take over (cf. Czechoslovakia, 1948). Conservatives and libertarians should, therefore, seek their allies from the broad center—the Main Street political moderates—by convincing them of the need to return to constitutional restrictions on federal authority.

In the short term, that may be a tougher victory. But once won, it will be a far broader and more ensuring one.

* * * *

* In 2009, I ran an experiment: During a controversy over the University of Montana’s use of state resources to publish soft pornography, I challenged the “progressives” frequenting a well-traveled web site (1) whether they would agree that promoting porn should not be a government function and (2) if they could identify any sphere of life whatsoever that they thought was outside government’s proper scope. I received many responses to my questions—quite a few of them vulgar—but not a single affirmative one.

Bennett-Burr “Bipartisanship” = Yet Another Federal Power Grab

December 29, 2013 by Rob Natelson · Comments Off
Filed under: All Postings, The Founding, supreme court 

42 Trevi Fountain RGN When politicians start talking about “bi-partisan cooperation,” smart citizens get nervous. It usually means another transfer of freedom and taxes to the federal government at the expense of individuals, families, localities, and states.

Case in point: a Denver Post op-ed by two U.S. Senators (or their staffs) on their latest “bipartisan” deal. The Senators are Michael Bennett (D.-Colo.) and Richard Burr (R.-N.C.). The op-ed is pure political blather, a haze of almost incomprehensible feel-good rhetoric. But the upshot is this: The two distinguished solons are very proud of themselves for managing yet another transfer of authority from the states to the federal government.

You can read the op-ed here. As you can see, it is filled with mind-deadening phrases refined by pollsters and focus group research: “we have worked with,” “bipartisan,” “ensure the safety,” “stakeholders,” “pragmatism and hard work,”  etc., etc.

As for the law itself, it has the kind of title we have come to expect from Congress in recent years: The Drug Quality and Security Act. (Doesn’t that title make you feel good?) Of course, many of these labels have about as much correspondence to the real world as the “Patient Protection and Affordable Care Act.”

The text of the measure is almost impossible for anyone without legal training to understand. (You can see for yourself here.)  Essentially, however, it transfers to the federal government areas of drug compounding and distribution traditionally controlled by the states. It imposes new obligations, licenses, and/or paperwork on manufacturers, repackagers, wholesalers, and your local pharmacy. It takes major steps toward federal control of our state pharmacy boards, and restricts state regulatory choices in the areas it covers.

The bill is also about revenue: It authorizes the federal government to collect various new “fees.” (I put the word in quotation marks because those “fees” are really taxes.)

Like the op-ed, the text of the law is filled with mind-numbing, and sometimes deceptive, language. Consider this provision:

Nothing in this section shall be construed to preempt State requirements related to the distribution of prescription drugs if such requirements are not related to product tracing as described in subsection (a) or wholesale distributor and third-party logistics provider licensure as described in subsection (b) applicable under section 503(e) (as amended by the Drug Supply Chain Security Act) or this subchapter (or regulations issued thereunder).

At first, you might think the bill leaves state regulations in effect. But look closer: The provision really is about where federal law does preempt: “requirements . . . related to product tracing . . .. [and] wholesale distributor and third-party logistics provider licensure.” Another passage makes it clear that much state flexibility is gone:

Beginning on the date of enactment of the Drug Supply Chain Security Act, no State or political subdivision of a State may establish or continue any standards, requirements, or regulations with respect to wholesale prescription drug distributor or third-party logistics provider licensure that are inconsistent with, less stringent than, directly related to, or covered by the standards and requirements applicable under section 503(e).

The measure does not set forth its constitutional justification. In other words, it does not cite any of Congress’s enumerated powers as the basis for the authority it claims. Occasional mentions of “commerce” suggest that it relies on the Constitution’s much-abused grant of power to “regulate Commerce . . . among the several States.” In fact, however, the bill sweeps deeply into in-state commerce and into activities that really are not “commerce” at all.

The op-ed touts the bill’s “strong [meaning "intrusive"], uniform” [meaning "centralized"] standards. But the Constitution limited congressional powers precisely to protect us from too many centralized standards. The federalism created by our Constitution  is about local control, responsiveness to local preferences, better government, diversity, and the ability of each state to learn from the experience of others. Moreover, as the Supreme Court has pointed out repeatedly, federalism is also about fracturing power to preserve freedom.

Our Founders and generations of Americans have concluded that human freedom and the other benefits of federalism are worth the occasional inconvenience arising from lack of uniformity. This should be particularly true today, when technology has reduced both the benefits of uniformity and the costs of diversity.

“The Drug Quality and Security Act,” however, appears to have been the product of one of those classic deals among politicians and lobbyists. The two Senators assure us that all the “stakeholders” (i.e., groups with lobbyists) were consulted.

But were you?

A Summary of How States Push Back Against Washington

December 28, 2013 by Rob Natelson · Comments Off
Filed under: All Postings, Article V 

42 Trevi Fountain RGNThe Cato Institute has published a new paper by Professor John Dinan that summarizes all the credible ways in which  the states can and do push back against Washington, D.C. The only omission to this excellent summary is the states’ amendment powers under the Constitution’s Article V. (Although the states have never forced Congress to call an amendments convention, they often have used their Article V powers, successfully or unsuccessfully, to force changes in federal policy.)

Professor Dinan’s paper summarizes such techniques as state lawsuits against federal officials, refusal to participate in federal programs, refusal to cooperate with federal criminal law, and others. It is a good resource for citizens and state officials who wish to restore the Constitution’s balance of power between the states and the central government.

You can access the paper here.

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