A Question: Where Did the Story Get Started that Most of the Founders were Deists?

December 3, 2013 by Rob Natelson · Comments Off
Filed under: All Postings, The Founding 
Rob at Madison's Montpelier estate in Virginia

Rob at Madison's Montpelier estate in Virginia

It is a common claim that most of the Founders were deists. (A deist is a person who believes that there is a Creator but that He is not actively involved in the world—the “great watchmaker” hypothesis.)  As many authors have shown, the claim is false: Tom Paine aside, almost all the leading Founders professed some version of Christianity or, in a few cases, at least faith in a beneficent Providence that could and did intervene in the world.

So where did the “Founders were deists” story begin? Anyone know?

How a Conspiracy Cracked a Monopoly

December 1, 2013 by Rob Natelson · Comments Off
Filed under: All Postings, ObamaCare, supreme court 

2013-0822 RGN

Anyone interested in the constitutional debate over the “Affordable Care Act” should pick up a copy of the new book, A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case.

This “conspiracy” was not a political plot or an illegal combination. Rather, it is one of the nation’s two top constitutional law websites—a blog called the Volokh Conspiracy, founded by UCLA law professor Gene Volokh.

The book is about more than constitutional arguments over Obamacare. It is also about the cracking of a monopoly (or more precisely an oligopoly): the grip on constitutional discourse by a relatively small, and overwhelmingly liberal, cohort of professors who teach at certain elite law schools. These schools include the University of Michigan, Columbia, the University of Chicago —and most notably Harvard and Yale.

Faculty at elite law schools tend to dominate constitutional discourse for a number of reasons. Their prestige attracts a disproportionate amount of legal talent—bright students who later take influential positions as judges, advocates, and policymakers. (Disclosure: I was admitted to several of these institutions, but nevertheless elected to attend Cornell Law School, which is considered very good but not in the “top ten.”) The mainstream media seeks out these professors, largely to the exclusion of other legal experts.

The elite professors also dominate, indirectly, the highly influential law journals published by their own law schools. These journals are edited by law students, who lack the knowledge necessary to measure the quality of a submitted article. Hence, in deciding whether to publish a submission they often rely on the attitudes of their own faculty and/or where the article’s author teaches or attended law school.  My own publication career offers two (negative) illustrations of the monopoly’s methods: (1) As a student I resigned from from my own law review in disgust because the editorial board, in imitation of the elite journals, was running the review with a leftist agenda, and (2) as a law professor, I saw all my earlier constitutional articles—including those that ultimately proved most influential—uniformly rejected by the Harvard-Yale axis.

When the Obamacare law was first challenged in court, the Harvard-Yale axis pronounced it “obviously” constitutional. The six authors of this book dared to disagree, and most of the book consists of their postings. In addition to the Independence Institute’s own Dave Kopel, the authors include five full-time law professors, none of whom work at Harvard or Yale. They are Randy Barnett of Georgetown, Jonathan Adler of Case Western, David Bernstein and Ilya Somin of George Mason, and Orin Kerr of George Washington University. All lean libertarian except Kerr; his dissents add spice to the discussion.

Of course, these authors ultimately were vindicated. The Supreme Court’s decision to uphold the individual insurance mandate as a “tax” was a 5-4 squeaker. The Court also held that the mandate was outside the Commerce Clause and the Necessary and Proper Clause, and that the Obamacare Medicaid expansion was partly unconstitutional. As you make your way through the book, you can see how the winning arguments evolved. My favorite was the realization that the Supreme Court’s “substantial effects” test is a (mis-) application not of the Commerce Clause but of the Necessary and Proper Clause.

At the end of the volume is a section called “Postscript and Concluding Thoughts.” It encompasses six original essays in which the authors discuss the Obamacare case and its outcome. Probably the longest of these is Dave Kopel’s. I personally found it most interesting because it provides historical context and tells the story of the Independence Institute’s participation in the case.

A Conspiracy Against Obamacare is published by Palgrave MacMillan and edited by the Cato Institute’s Trever Burrus. Paul Clement, the former U.S. Solicitor General who argued the case against Obamacare in the Supreme Court, has written an engaging Foreward.

John F. Kennedy, RIP

November 24, 2013 by Rob Natelson · Comments Off
Filed under: All Postings 

2013-0414 RGN History tends to correct the errors of contemporaneous perceptions, and on the 50th anniversary of his assassination there were far fewer mentions than in prior years about President Kennedy’s “greatness.”

I was coming of age when President Kennedy was shot, and well remember the shock, first in my high school study hall and next in Spanish class. But by the time of the tragedy I already knew too much about his administration, and in subsequent decades other Americans and I were to learn much more that we really did not want to know.

A useful corrective to Kennedy hagiography is the section on his administration in Paul Johnson’s History of the American People.  (Caveat: Johnson sometimes makes factual errors as a historian, but not on this topic.) Johnson ranks Kennedy among the worst Presidents, somewhat below President Warren Harding in his revisionist view. But let Mr. Johnson speak for his eloquent self. I’ll review what I already knew at age 15 and also some of what we all have learned since.

Neither I nor anyone else except the admiring Washington press corps knew that this President was in some ways a modern-day Emperor Commodus—a handsome young man of promise who wasted enormous amounts of irreplaceable time on adulterous affairs rather than attending to his official responsibilities. Nor was he particularly discrete about whom he bedded: Years later, the nation was shocked to learn that he had been sharing a mistress with a Mafia don. All this was fun for him, of course, but one wonders what the nation gained—or rather lost—from it.

1966-04 SNBeing from a medical family, I already was aware that Kennedy was promoting enormous new federal involvement in the American health care system, and that he was far understating the actual cost. Sydney Natelson (1911-2007), my father, was a physician and a close observer of national politics. (He is pictured to the left at home in 1966.) He noted that Kennedy’s Medicare proposal was partly duplicative of existing state programs, but was structured in a way that would undermine the traditional doctor/patient relationship and turn independent physicians into bureaucrats. My father also predicted it would raise the deficit. No one, except maybe the Kennedy aides who knew the real numbers, understood that Medicare also would help render health care unaffordable for the middle class, and eventually threaten the nation with bankruptcy.

Kennedy is remembered for the “Kennedy round” of income tax cuts, a Keynesian exercise designed as “stimulus,” and later pointed to as a model by Republicans as well. Its flaws were that without spending reductions, the tax cuts added to the deficit and any stimulus effect soon expired, being replaced with inflation and/or renewed sluggishness. Kennedy’s Harvard boys (unlike Obama’s Harvard boys and girls) understood that lower tax rates encourage enterprise, but they thought government spending does also. Actually, government spending ultimately discourages enterprise by inefficient use of valuable resources, creating incentives not to be productive, and feeding the corps of regulators and dependents that weaken the private sector.

In foreign affairs, Kennedy cultivated an image of toughness, but the record was otherwise. During his 1960 campaign, he argued that the Eisenhower administration had allowed the U.S. to lag behind the USSR in missiles (the “missile gap”). This turned out to be fiction. While President, Kennedy authorized a coup d’etat against the elected president of South Vietnam, thereby eliminating the only leader with a hope of handling the Communist Viet Cong. The result was a much wider war and much deeper American involvement.

Then there was Cuba: In 1961, over the objections of advisors such as Commander of Naval Operations Arleigh Burke, Kennedy deserted at the Bay of Pigs an army of Cuban freedom fighters the U.S. had trained and delivered. The year  after the ensuing massacre, Kennedy’s administration repeatedly denied reliable reports that the Soviets were placing inter-continental ballistic missiles in Cuba. Kennedy changed his mind a few days before the mid-term congressional elections, a timing that helped contain Democrat losses. In a dramatic address (which I remember watching), Kennedy outlined a plan to force those missiles out. This confrontation took us to the edge of World War III, but the ultimate outcome was a fizzle. In exchange for unverified removal of the missiles, Kennedy made a series of unpublicized concessions to the Soviets. Among them: The U.S. was to remove missiles from NATO ally Turkey, and  Castro was to remain in power indefinitely. Castro thereby was left in place to promote international discord for another 40 years; and the Cuban people even now remain locked in the prison he constructed.

Then there were the widespread wiretapping and other civil liberties violations,  Kennedy’s relative inability to deal with Congress, and so forth.

In recent days, there has been some speculation about what might have happened if Kennedy had lived. These speculations take for granted that he would have won a second term. But this is an inadmissible assumption: Just before his death, Kennedy’s re-election was far from assured. It could have been forestalled completely by one or two more missteps of the kind he had already made.

A more interesting topic for speculation is what might have happened if the votes had been counted honestly in Kennedy’s first election—and if Vice-President Nixon had been as persistent in demanding a recount in 1960 as Vice-President Gore was to be in 2000. There have been widespread claims of theft in several closely-contested American presidential contests (1824, 1876, 2000).  The election of 1960, however, was the most likely to have been stolen. The vote counting in both Illinois and Texas was deeply compromised (this is no longer a matter of dispute), and the switch of both states’ electoral votes would have prevented Kennedy from becoming President.

Richard Nixon was then less jaded than he later became, and although young, was older than Kennedy and a good deal more diligent and experienced. His presidency could hardly have been worse than Kennedy’s, and might have been a good deal better. At least we might not today be at the edge of fiscal ruin.

Sources for Understanding the Constitution’s Original Force

November 13, 2013 by Rob Natelson · Comments Off
Filed under: The Founding 

42 Trevi Fountain RGNWould you like to examine some of the documents we use to better understand the original Constitution?

Several years ago, I wrote the first Internet essay on how to find the sources vital to interpreting the Constitution as the Founders intended it to be. I have just updated that essay. It is called A Bibliography for Researching Original Understanding, and you can read it here.

Can Treaties Override the Constitution? An Issue Posed By Bond v. United States

November 10, 2013 by Rob Natelson · Comments Off
Filed under: All Postings, The Founding, supreme court 

2013-0414 RGN One of the most common questions posed to me when I discuss the Constitution on talk radio is “Can a treaty override the Constitution?” The question has arisen particularly in view of the pending Supreme Court case of Bond v. United States. In that case, Congress is claiming a power under the Treaty Clause that is outside the list expressly granted to it by the Constitution.

Under the Constitution as originally understood, the short answer is: “No, a treaty can’t override the Constitution. The treaty has the force only of a statute, not of a super-constitution.”

But the full answer is more complicated. This is because the Founding-Era evidence does suggest that the Constitution enables the federal government to acquire significant—although not unlimited—additional power by entering into treaties.

First, let’s examine powers the federal government cannot obtain by treaty:

Treaties cannot override the first eight amendments in the Bill of Rights or the Constitution’s other specific exceptions to federal authority (such as the ban on taxing exports). Those provisions were adopted to deny the federal government authority it otherwise might have. A treaty cannot override those limits.

For example, the First Amendment denies Congress authority to ban socialist literature from the postal system. The First Amendment would trump any treaty requiring Congress to do so. Likewise, the Second Amendment denies the federal government power to confiscate hand guns from law-abiding citizens. A treaty cannot take this protection away.

A plurality of the justices in the 1957 case of Reid v. Covert, which enforced the Fifth and Sixth Amendments against a contradictory treaty, recognized such limits on the Treaty Power. As the plurality wrote of the Supremacy Clause, “There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution.”

On the other hand, the Founding-Era evidence strongly suggests that the Treaty Power DOES enable the federal government to regulate many matters over which it might not otherwise have jurisdiction. If the President and two thirds of the Senate adopt a treaty regulating such matters, Congress may use its incidental authority under the Necessary and Proper Clause to enact laws carrying out that treaty. In this way, Congress may regulate subjects otherwise outside its sphere.

By way of illustration, the authority to acquire and cede land is incidental to the Treaty Power—a fact discussed during the Virginia ratifying convention (although Edmund Randolph argued that there were some limits to cession authority). If the federal government enters into a treaty acquiring or ceding land, then surely Congress may adopt incidental laws to carry it out.

Practice under the Articles of Confederation offers several more illustrations. The Articles strictly limited congressional authority, and granted no express commerce power. But James Madison pointed out that the Confederation Congress could acquire some power over commerce if needed to execute a treaty.

In 1783, the Confederation Congress debated and approved a treaty with the Netherlands despite recognizing that the terms of the treaty might interfere somewhat with freedom of religion. Thus Congress impacted the exercise of religion, an area over which the Articles otherwise gave it no authority.

Similarly, both the Confederation Congress and the early Federal Congress sent Christian missionaries to Indian tribes pursuant to treaties with those tribes. Under the Constitution, authority to send missionaries derived from the Treaty Power, not from the Indian Commerce Power.

During the ratification debates, opponents of the Constitution pointed to several ways in which the Treaty Power would enable the federal government to affect America’s internal affairs. They particularly noted that unless there were an amendment specifically protecting religion, the federal government might employ the Treaty Power to erect a national church. Some modern writers have belittled this argument, but in fact there were precedents to support it. Among them was King Charles II’s secret Treaty of Dover, negotiated in the 17th century, but not revealed until the 1770s. It called for re-establishment of the Catholic Church in England. A more recent precedent was the 1783 Confederation Congress’s treaty with the Netherlands, which as noted above incidentally restricted religious exercise.

The Supreme Court recognized the power of treaties to expand federal jurisdiction in the 1920 case of Missouri v. Holland. There was a time when I vehemently disagreed with this case, but the Founding-Era evidence has forced me to acknowledge that it was correct. (I do not suppress research findings, even when I don’t like them.)

What about the Ninth and Tenth Amendments? Aren’t they limits comparable to the First and Second Amendments? The answer is “no.” The Ninth and Tenth Amendments are clarifying, not substantive rules. If the Constitution grants the federal government a power through the Treaty Clause, the Ninth and Tenth Amendments do not apply.

The ability of treaties to expand the domestic jurisdiction of the federal government may have been a reason the Constitution required that treaties be approved by both the President and two-thirds of the Senate—rather than, as some Framers had proposed, just one or the other. The double requirement would make it likely that the President would protect the national interest while the Senate (then chosen by state legislatures) protected state interests.

There are, however, some limits on Congress’s power to execute treaties under the Necessary and Proper Clause. As Chief Justice Roberts acknowledged last term, that Clause embodies the Founding-Era doctrine of incidental powers. Incidental powers are restricted to those that are both (1) subordinate to powers listed expressly and (2) connected to them by custom or reasonable necessity. A treaty dealing with chemical weapons, for example, may empower Congress to adopt some criminal laws enforcing it, but it does not enable Congress to entirely refashion state criminal law.

Some argue that the federal government’s treaty power is more sharply limited. I disagree with those folks, but I list some of their arguments in my book, The Original Constitution: What It Actually Said and Meant.

What About that Warren Burger Letter Against An Article V Convention?

November 2, 2013 by Rob Natelson · Comments Off
Filed under: All Postings, Article V, supreme court 

42 Trevi Fountain RGNGroups opposed to calling an Article V convention often cite an old letter written by the late Chief Justice Warren Burger opposing such a convention. It is strange that those groups should be quoting Berger, because they also purport to oppose the liberal activism—notably the abortion decision of Roe v. Wade—practiced by the Court when Burger was Chief Justice. (Burger voted with the majority in Roe.) Naturally, those groups never acknowledge that Justice Antonin Scalia, a far more principled and talented justice than Burger, has strongly advocated for an amendments convention.

In any event, Roe v. Wade does offer a hint as to why Burger would write a letter opposing a convention for proposing amendments.

First, consider that Burger seems to have known very little about Article V. He wrote his letter well before the publication of modern research on the subject. Unlike Justices Rehnquist and Stevens, he appears never to have heard an Article V case. Supreme Court justices sometimes publish articles on issues they have researched, but the legal databases reveal nothing on Article V ever published by Burger. Indeed, his ignorance of the subject appears in the letter itself, which erroneously labels the gathering a “constitutional convention” and repeats the old myth the 1787 convention exceeded its authority.

So, why would he write so firmly about a procedure of which he apparently knew little? Again, Roe v. Wade offers a clue.

In the 1960s (before Burger was Chief Justice) the Supreme Court embarked on a course of extreme liberal activism. The Court’s decisions triggered repeated calls for constitutional amendments to overrule them. For example, Senator Everett Dirksen (R.-Ill.) led a very successful application campaign (33 states signed on) for a convention to partially reverse some of the Court’s edicts on legislative apportionment. In response, liberal defenders of the Court widely popularized the claim—repeated by Burger in his letter—that an Article V convention would be uncontrollable.

Contrary to some expectations, the Court continued to be nearly as activist after Burger became Chief Justice. Roe v. Wade is a premier example. That case, and some others, provoked more calls for constitutional amendments to curb what many believed was very arrogant bench.

Burger’s letter was the last of three featured by convention opponents. The first two were written while he was still serving as Chief Justice. One of them reveals concern with the fact that President Reagan was then advocating a convention to amend the Constitution—a procedure that eventually could lead to reversal of his own court’s ultra-activist decisions, including but not limited to, Roe v. Wade.

In other words, Burger was protecting his court from popular efforts to control it through the amendment procedure of Article V.

This was a natural impulse on Burger’s part. But it is hardly the kind of evidence that should persuade anyone on the merits of holding an Article V convention. Particularly anyone who purports to oppose judicial activism of the kind represented by Roe v. Wade.

Rebutting the Claim that an “Anti-Corruption” Principle Should Re-Write the First Amendment

October 27, 2013 by Rob Natelson · Comments Off
Filed under: All Postings, The Founding 

2013-0414 RGN Law professors are overwhelmingly left-of-center, and they spend an undue amount of time trying to justify nearly unlimited federal power. Sometimes they torture constitutional history to do so.

For example, several have long asserted that the Constitution’s grant of power to Congress to regulate “Commerce” was designed to grant  authority to regulate the entire economy—or even all social relations. This silly argument has been disposed of multiple times (see this article and its footnotes), but it keeps emerging in articles whose authors are ignorant, or disregardful, of prior rebuttals.

Similarly, statists have portrayed the Necessary and Proper Clause as an “elastic clause,” giving Congress “vast power.” This despite the fact that copious Founding Era evidence shows that the Necessary and Proper Clause was designed to be a rule of interpretation that actually granted no authority additional to that already conferred.

The most recent series of incidents involve writings by law professors trying to justify Congress in dictating campaign finance rules. These professors argue that the Constitution contains a generalized “anti-corruption principle,” and that we should interpret the First Amendment through that principle. The principal promoters of this argument have little background in originalist research.

Professor Seth Tillman (who has a great deal of background in originalist research) has written a new essay, supported by a detailed underlying article, devastating their assertions. Just to quote one example of Professor Tillman’s comments:

Let’s be clear. Lessig and Teachout are asking us to embrace corruption as the key concept espoused by the Framers of the Constitution (and of the Bill of Rights). But when the Framers had a chance (actually multiple chances) to give this concept prominence in the Constitution’s actual text, the Framers chose not to do so. It is not as if they forgot to use this term or, instead, used some close synonym; rather, they actively took this term out of the Constitution. So why should we today embrace the corruption concept as one having constitutional scope or dimension? And, more importantly, how can Lessig or Teachout ask us to do so as an exercise in originalism or in the name of the long-dead Framers? (emphasis added)

I’ve been chagrined to see my own writings cited in some articles promoting the “anti-corruption principle” claims—most often my 2004 article, The Constitution and the Public Trust. Its heavily-documented thesis was that the Founders believed that government should be conducted on fiduciary principles, and that the Constitution’s phrases should be read with that understanding. But I never suggested those principles should trump constitutional text.

Anyway, trust principles actually cut against congressional campaign finance regulation, not in favor of it. This is because it is a clear conflict of interest for a Congress of incumbents to regulate the campaigns of candidates running against them.

Moreover, the Founders were conscious of this conflict of interest, and explained how it should be handled. During the ratification debates advocates of the Constitution expressly represented that Congress’s power (Art. I, Sec. 4) to regulate the “Manner of holding Elections” should be interpreted in a very limited way. I document all this in a more recent article (cited by Justice Thomas last term). That article concludes that the Constitution’s “Manner of holding Elections” referred only to subjects such as the type of ballot and the votes necessary to win. It did not extend to regulation of campaigns, except for bribery in the actual conduct of the polling. Regulation of federal campaigns was consciously left to the states, including state laws against defamation and corruption.

It should not be necessary for serious scholars like Professor Tillman to have to spend time rebutting what historians contemptuously refer to as “law office legal history”—that is, special pleading in historical garb. But the propaganda power of the law professoriate is considerable. So, regretfully, it is necessary.

Thanks to Professor Tillman for his work.

Supreme Court’s Obamacare Decision Renders Federal “Tort-Reform” Bill Unconstitutional

October 18, 2013 by Rob Natelson · Comments Off
Filed under: All Postings, ObamaCare, The Founding, supreme court 

RGNStPaulsJust to show you that hypocrisy is alive and well in Washington, D.C. (as if you didn’t know), Title V of the Republican bill to “repeal and replace Obamacare” contains some of the same constitutional problems that led 27 states to challenge Obamacare. Under Title V, Congress would partially assume command of  state jury trials and what evidence is introduced.

Not surprisingly, the bill’s purported “justification” is the much-abused Commerce Power. However, it likely runs afoul of those parts of Chief Justice Roberts’ decision in which he held that (1) Congress could not invade certain core state powers and (2) although the individual insurance mandate was valid as a tax, it exceeded the Commerce Power.

This week I wrote an essay on the bill’s constitutional problems, which I’ve reproduced below, and in PDF form here.

Supreme Court’s Obamacare Decision Renders Federal

“Tort-Reform” Bill Unconstitutional


Robert G. Natelson

Congressional schemes to federalize state health care lawsuits always have been constitutionally suspect. But Chief Justice John Roberts’ opinion in last year’s “Obamacare” case really knocks the props out from under them.

Under the proposed Title V of the American Health Reform Act, Congress would assume vast control over state judicial systems. Some of the bill’s provisions would be reasonable if adopted at the state level. But for Congress to start micro-managing state courts and state juries should frighten anyone who cares about our American constitutional system.

This essay addresses four subjects. First, it outlines some of Title V’s objectionable features. Second, it explains how advocates of the measure try to justify it constitutionally. Third, it shows why the proposal far exceeds congressional powers under our Constitution when that document is read as the Founders intended. Finally, it explains why the bill is likely unconstitutional under modern Supreme Court law as well—and specifically under Chief Justice Roberts’ Obamacare decision.

What Title V Would Do.

The bill would rewrite personal injury law extensively—and not just in federal courts administering federal law. It would intrude on state courts applying state law. For example, the bill requires state judges and juries to adopt federal standards of proof, federal standards of guilt, federal damage rules, and federal deadlines. It imposes rules for attorneys’ fees that override both state law and private contracts. It even mandates that some useful information be withheld from juries.

Many members of Congress were elected after affirming their commitment to federalism—that is, to “states’ rights.” So Section 508 of the bill is entitled “State Flexibility and Protection of States’ Rights.” But the title is misleading.

The very first sentence of Section 508 is about federal supremacy, not state flexibility. It reads, “The provisions governing health care lawsuits set forth in this subtitle preempt, subject to subsections (b) and (c), State law to the extent that State law prevents the application of any provisions of law established by or under this subtitle.”

And what of subsections (b) and (c)? They provide that states may establish rigid damage caps, but may not leave damages to the jury—and that states may make it harder for plaintiffs to prevail, but not easier! In other words, a state may be “flexible” if it does what Congress likes, but not what Congress doesn’t like.

How Supporters of Title V Try to Justify It.

How can advocates justify constitutionally this massive intrusion into state and local governance? They really can’t. So they finesse the issue in precisely the same way the sponsors of Obamacare did: They invoke Constitution’s much-abused Commerce Power.

Their argument has two components. First, they claim that the Founders crafted the Commerce Power broadly enough to allow Congress to intervene. Secondly, they claim that even if the Constitution, properly understood, does not authorize Title V, the Supreme Court still will uphold it under its modern Commerce Power jurisprudence.

The first claim is misrepresentation so gross as to be ludicrous. The second claim would be more plausible—except that the discussion of the Commerce Power in Chief Justice Roberts’ Obamacare decision kicked away much of its support.

Why Title V Violates the Founders’ Design.

If there is one thing that can be asserted with absolute confidence about the American Founding, it is this: Federal control over state judges, state juries, and state tort law is emphatically NOT what the Founders intended. The Constitution created a federal government limited to enumerated (listed) powers, and the Founders did not design those powers to include federal control of state civil justice. The evidence on this point is overwhelming.

In 2011, I investigated the issue thoroughly, and reported my findings in a detailed paper entitled The Roots of American Judicial Federalism, available at http://constitution.i2i.org/files/2011/11/Roots_Am_Federalism.pdf. That paper showed that (1) a core reason the Founders fought the American Revolution was to assure local control of courts, (2) the Constitution was structured to achieve the same goal, and (3) leading Founders specifically represented—not merely once or twice, but again and again—that state civil justice systems and tort law would remain free of federal control. Despite a few half-hearted assertions to the contrary, the paper’s conclusions have never been seriously challenged.

The Importance of the Obamacare Case: Why Title V Likely Violates Modern Commerce Power Doctrine.

Technically, the Commerce Power stems from two separate constitutional provisions. One is the Commerce Clause (Article I, Section 8, Clause 3). It grants Congress authority “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” By “Commerce,” the Founders did not mean everything economic. They meant trade among merchants, transportation, commercial paper, and a few associated activities. Contrary to widespread belief, the Supreme Court has never really changed this definition, except when it ruled in a 1944 case that “Commerce” also included insurance.

The other component of the Commerce Power is the Constitution’s Necessary and Proper Clause (Article I, Section 8, Clause 18). This refers to Congress’s authority to make laws “necessary and proper” for carrying out its other powers. The Founders did not intend the Necessary and Proper Clause to actually give Congress additional authority. Its purpose—as we know from 18th century legal sources and from statements from Founders such as Hamilton, Madison, and James Wilson—was merely to inform the reader that the itemized powers should be read to include certain subsidiary or “incidental” authority.

The leading Supreme Court case on the Necessary and Proper Clause is McCulloch v. Maryland. In that case, Chief Justice John Marshall also explained that the Clause did not grant to Congress any “great substantive and independent powers.” Moreover, in Gibbons v. Ogden (the first great Commerce Power case) Marshall added that “health laws of every description” were outside the federal sphere and exclusively reserved to the states. In other words, under the view of the greatest chief justice in American history, both Title V and Obamacare are utterly unconstitutional.

Supporters of Title V nevertheless point out that the modern Supreme Court has allowed Congress to go beyond those limits. That is true: In 20th century cases such as Wickard v. Filburn (1942), the Court re-wrote the Necessary and Proper Clause to allow Congress more “great substantive and independent powers.” The problem for Title V’s sponsors, however, is that Chief Justice Roberts has informed us that those days may be over.

The most famous part of his Obamacare opinion upheld the individual insurance mandate as a tax. But Roberts issued three other rulings as well:

(1) The mandate was outside Congress’s power under the Commerce Clause;

(2) The mandate was outside Congress’s power under the Necessary and Proper Clause; and

(3) Obamacare’s effort to force its Medicaid expansion on the states also violated the Necessary and Proper Clause.

Observers who understand that the Supreme Court has not greatly expanded the Founders’ definition of “commerce” were not surprised by the first ruling. A mandate that someone buy insurance is not “commerce” as the Constitution uses the term. Neither, for that matter, is a health care lawsuit.

But many found Roberts’ second holding more surprising: Roberts announced a reversion to the original understanding of the Necessary and Proper Clause. Here is a passage from his opinion (with some punctuation removed):

Although the Clause gives Congress authority to legislate on that vast mass of incidental powers which must be involved in the constitution, it does not license the exercise of any “great substantive and independent power[s]” beyond those specifically enumerated. . . . Instead, the Clause is merely a declaration, for the removal of all uncertainty, that the means of carrying into execution those [powers] otherwise granted are included in the grant. . . . [T]he individual mandate cannot be sustained under the Necessary and Proper Clause as an essential component of the insurance reforms. Each of our prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power. . . . This is in no way an authority that is “narrow in scope” or “incidental” to the exercise of the commerce power. . . .

In a Yale Law Journal article, Professor William Baude shows why this language is important: Roberts is saying that if the Constitution doesn’t specifically give Congress a “great substantive and independent power,” then the Necessary and Proper Clause doesn’t give it to Congress either.

Is control of the state court systems a “great substantive and independent power?” You bet it is. The Founders clearly considered the judiciary a very important aspect of government, and the Constitution addressed it in detail. But while prescribing the rules for the federal courts, the framers deliberately omitted any federal role in the state judiciary. Here are some examples:

* The Constitution provides for appointment of federal judges—but not state judges.

* It gives Congress authority to “constitute” (create and regulate) lower federal courts—but not state courts.

* It defines the jurisdiction of the federal courts—but not of the state courts.

* It requires, in many cases, trial by jury in federal court—but not in state court.

The Founders obviously deemed judicial organization and procedure to be a “great and independent” subject, worthy of much constitutional attention. Yet in all procedural and organizational particulars, they left state courts alone. They certainly granted Congress no power to micro-manage them. They left the “great substantive and independent power” of operating the state courts to the states themselves. Under Justice Roberts’ opinion, that’s where it stays.

The part of the opinion dealing with Medicaid buttresses this conclusion. For a 7-2 majority, the chief justice struck down Congress’s efforts to dragoon the states into the Medicaid expansion. His was the latest in a long series of rulings in which the Supreme Court has protected state governments (legislatures, executives, and courts) from what the Court calls “commandeering.”

As in previous cases, the Court held that “commandeering” infringes core state sovereignty. Infringing core state sovereignty violates the Necessary and Proper Clause because a federal law attacking core state sovereignty is not “proper.” A federal statute dictating to state legislatures, judges, and juries how they manage lawsuits arising under their own state law is of that kind.

* * * *

One reason for Congress’s abysmal public approval rating is the perception that most members of Congress are hypocritical power-seekers. Most of the sponsors of Title V assert that Obamacare is an unconstitutional intrusion on the rights of the states and the people. Yet by supporting Title V they are promoting a bill that may be even more constitutionally suspect than Obamacare.

For their own political survival—as well as for the Constitution and for constitutional principle—those sponsors need to back off.


Comparing an Article V Convention to a National Party Convention is Absurd

October 12, 2013 by Rob Natelson · Comments Off
Filed under: All Postings, Article V, The Founding 

42 Trevi Fountain RGN Some alarmists are comparing an Article V convention to the Republican and Democratic National Conventions. The argument is that an amendments convention can be manipulated or stampeded just as a national party convention can be.

The comparison is absurd—so much so that it shows mostly a lack of knowledge of the Article V process.

First, consider the national party mob scenes. The 2012 Democratic convention had 5554 delegates; the GOP conclave 2286. To forestall any stampede, each was tightly time-limited and controlled from the front. Most of the delegates were not particularly distinguished: They were selected for party loyalty and because they had agreed to support a particular candidate. They had little or no effective input.

Now contrast this with the practice of multi-state conventions.

America’s last general convention of states (Washington, D.C., 1861) had 132 commissioners. All were selected as their respective state legislatures determined. In practice, most were chosen either by the legislatures themselves or by governors with the consent of one or both chambers. The commissioners were certainly not at the intellectual level of our Founding Fathers, but they were a distinguished and sophisticated group. They successfully crafted a compromise amendment that, if ratified, might well have prevented the Civil War.

Of course, there are more states now than there were in 1861, so we can expect a bigger  convention. But because each state has one vote, there is little incentive to send huge delegations.

How large  is a modern multi-state conclave likely to be? History gives us a clue.

I have been able to identify 14 official multi-state conventions since 1776. (By “official” I mean that participation was authorized by the state legislature or, in the recess of the legislature, the executive.)  The average size of each state committee has been about five. The median has been between three and four.

Thus, a reasonable estimate is that a convention for proposing amendments might contain about 250 commissioners—less than 5% the size of the Democratic National Convention. It could be even smaller if the states agreed beforehand to limit the size of their committees.

Because these commissioners will be selected by and responsible to their respective state legislatures, they, too, will be a seasoned group. They certainly will not be readily manipulated or stampeded.

Article V opponents need to stop fabricating objections and work to ensure that if a convention happens, it does so successfully.

Who Says History is Relevant to Article V? Well, the U.S. Supreme Court, For One!

October 10, 2013 by Rob Natelson · Comments Off
Filed under: All Postings, Article V, The Founding, supreme court 

42 Trevi Fountain RGN In 1988, Oxford University Press published Russell Caplan’s book Constitutional Brinksmanship. It revealed some of the extensive history behind the Convention for Proposing Amendments in Article V of the Constitution.

More recently, we have learned much more about that history. We now know that there were over 30 multi-colony and multi-state conventions before the Constitution was adopted, and that the Convention for Proposing Amendments was based on them. We know what their rules were and how they used the terms that the Framers used in Article V. We also have uncovered a rich history of multi-state conventions and Article V activity after the Constitution was adopted.

Anti-convention alarmists were generally unaware of this history and have been  embarrassed by these findings. Some of them, therefore, are now making the astounding claim that all of this prior practice is simply irrelevant!

But the U.S. Supreme Court says they are wrong. So do many other courts. In fact, for over two centuries now, the judiciary has used historical practice to interpret the words in Article V. The courts know that they must consult the Founders’ experience to understand how they used terms like “legislature,” “application,” “call,” “ratify, and “convention.” When that evidence isn’t decisive, the courts turn to later practice for guidance. This is settled constitutional law.

And as any constitutional lawyer can tell you, in recent years the Supreme Court has become even more attuned to history in answering constitutional questions.

Since the courts may have to resolve future Article V issues, their precedents provide far more insight than the unsupported speculations of alarmists.

Listed below are a few of the cases that have used history to interpret Article V.  A “U.S.” citation means the case was decided by the U.S. Supreme Court. Most of the others are federal court cases; two were issued by state courts.

*    Hollingsworth v. Virginia, 3 U.S. 381 (1798) (following the practice used in proposing the first ten amendments to uphold the 11th).

*    Hawke v. Smith, 253 U.S. 221 (1920) (citing Founding-Era evidence to define what the Framers meant by the Article V word “legislature”)

*    Barlotti v. Lyons, 182 Cal. 575, 189 P. 282 (1920) (also citing Founding-Era evidence to define what the Framers meant by the Article V word “legislature”).

*    Leser v. Garnett, 258 U.S. 130 (1922) (relying on history to affirm the procedure that ratified the 19th amendment).

*    Opinion of the Justices, 132 Me. 491, 167 A. 176, 179 (1933) (consulting history to determine how delegates are chosen to a state ratifying convention).

*    United States v. Gugel, 119 F.Supp. 897 (E.D. Ky. 1954) (citing the history of judicial reliance on the 14th amendment as evidence that it had been validly adopted)

*    Dyer v. Blair, 390 F.Supp. 1291 (N.D. Ill. 1975) (Justice Stevens) (relying extensively on history to determine whether Illinois had validly ratified a proposed amendment)

*    Idaho v. Freeman, 529 F.Supp. 1107 (D. Idaho 1981) (also relying on history in discussing a range of questions)

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