Institute Research Director Dave Kopel has long urged me to do a broadcast production on the Constitution in the Latin language, and now it’s here!
Produced by II web monkey Justin Longo, the program features an interview of me by my daughter Sarah on the American Founding and the nature of the Constitution. Sarah, 23, is a classics major at Willamette University in Salem, Oregon.
I raised all three of my daughters to be bilingual: While they were growing up, my wife spoke exclusively to them in English while I spoke to them exclusively in Latin.
For linguistic wimps, the telecast includes subtitles in English. You can see the program here.
For linguistic jocks: Not even the Romans navigated all of Latin’s grammatical mistakes perfectly. See if you can identify the specific grammatical errors I made in the course of this interview. (Hint: On reviewing the video, I counted four.)
Finally: The pronunciation Sarah and I use is that of “Late Latin.” This is pretty much the same as classical Latin, except that the letter “V” is pronounced as in Italian or English.
Recently when commenting on how Americans view the Founding, an associate of mine observed that in many people’s minds the Founders had become mythological rather than historical figures. That is, many people routinely ascribe ideas and actions—both good and bad, wise and stupid—to them that have little to do with historical reality or even human probability.
A common example: Some commentators who profess to revere the Founders and may even claim they were divinely inspired, nevertheless also insist that they grossly breached their faith in proposing a new Constitution rather than amendments to the Articles of Confederation.
My associate’s observation induced me to recall how ancient Greek and Roman writers portrayed their gods. They frequently portrayed the gods as just, majestic, imperturbable, gracious, and wise. But they also told stories that depicted the gods as wicked, petty, jealous, mean, and stupid. To cite one example: Jupiter (Zeus) was pater deumque hominumque—the father of gods and men, the defender of justice, the guardian of the world. Yet he was also a multiple rapist who turned himself into a bull so as to lure a young girl (Europa) in service of his lascivious plans.
Obviously, such portrayals have nothing to do with historical reality. But they are different only in degree from some portrayals of the Founders.
On the one hand, we need to remember that the Founders—framers, ratifiers, and opinion-molders—were not a passel of hicks who, in the dismissive words of Professor Louis Michael Seidman, “thought it was fine to own slaves.” On the other hand, we need to remember that they were not gods either. They were very wise, educated, and experienced men—and in some cases, such as that of Mercy Otis Warren, women. Nearly all were honorable and believed that slavery was a violation of natural law. Their knowledge of human nature and politics enabled them to erect our system of checks and balances. Their knowledge of history enabled them, to a very great extent, to transcend their own time and circumstances. Their drafting skill enabled them to produce a beautiful document, whose phrases have real meaning—even if, as in the case of the Necessary and Proper Clause, those meanings are often technical in nature.
Yet because they were men, they were fallible, and because they lived in a particular time and set of circumstances, they had to make compromises. One of those, and the one most often used to bash them, was their accommodation with slavery: They were faced with the difficult choice of indulging their belief that slavery was wrong or creating a new form of government that all states might ratify. They chose the latter. It was a nasty choice, but it also was one that helped ensure that America did not become, like Europe, a collection of small countries incessantly warring against each other.
In treating the Founders therefore, we should take them as they were. No hagiography and no demonology, either.
The Famous Case of Coleman v. Miller—and, No, It Doesn’t Give Congress Total Control Over the Amendment Process
Filed under: All Postings, Article V, supreme court
Not long ago, I was listening to a radio talk show and was assured by a caller that the Supreme Court, in the case of Coleman v. Miller, had delegated all important decisions over the amendment process to Congress. In other words, the caller said, Congress can make all decisions on every amendment issue: how states apply for a convention, how the convention conducts its business, whether amendments are ratified, etc., etc. Neither the states nor the courts would have anything to say about it.
Interesting assertion. Problem is, it’s not true.
The Supreme Court decided Coleman v. Miller in 1939. The case arose from a dispute over whether the Kansas legislature had properly ratified a proposed amendment to grant Congress authority over child labor. (All states banned child labor, but their laws were inconsistent.) The amendment had been pending for over 13 years, and the Kansas legislature earlier had rejected it.
So one question was whether Kansas could ratify an amendment after its earlier rejection. Another was whether Kansas could ratify an amendment 13 years after it was proposed. Still another was whether the lieutenant governor should have been allowed to cast a vote in an evenly-divided state senate. And there also was an issue of whether the plaintiffs had standing.
The Kansas Supreme Court upheld the ratification, and all those issues went to the U.S. Supreme Court.
The U.S. Supreme Court’s opinion was written by Chief Justice Charles Evans Hughes, an old-line progressive with a sterling legal reputation. This is how he ruled:
* The plaintiffs had standing.
* Apparently because the Supreme Court justices were evenly divided (one justice may not have participated) on whether they could consider the lieutenant governor issue, the Kansas court’s judgment upholding the lieutenant governor’s vote was sustained.
* Historical practice had been to leave to Congress the decision of whether a state ratification was valid if the same state had earlier (or later) rejected it.
* There was no way the Court could judge how long a proposed amendment might last. That was a judgment for Congress to make—by, for example, inserting a time limit in its original proposal.
The case certainly does not hold that Congress has complete control of the amendment process. I’ll address below where that misconception came from.
Two holdings in Coleman v. Miller were particularly notable, but only one remains important today. The Court’s rulling that it couldn’t judge how long a proposed amendment lasted is no longer relevant. That’s because America agreed in 1992 that proposed amendments lasted forever, unless they were withdrawn. We so agreed when we ratified the Twenty-Seventh Amendment, which Congress had proposed in 1789, more than two centuries earlier.
The part of the Coleman case still important today is its holding that courts interpret Article V in light of history. It was history that told the Court that Congress could resolve the conflict between a state’s ratification and its rejection. In this respect, though, Coleman is not unique: Both before and since, many judicial decisions have followed history in interpreting Article V.
Coleman also seems to clarify (although not entirely) that when Congress imposes a time limit on ratifying an amendment it proposes, Congress can do so because the time limit is part of its proposal. In other words, Congress’s authority to impose time limits doesn’t come from its prerogative to choose between the state convention and state legislative “modes of ratification,” as an earlier case had decided. It comes from its authority to propose. The implication is this: Although Congress can time-limit its own proposed amendments, it cannot impose time limits on an amendment proposed by an amendments convention.
Two justices dissented from the Court’s holding. They argued that the Child Labor Amendment proposal had expired. Four others concurred in the result, arguing that the plaintiffs had no standing.
There was another concurring opinion, too—this one written by Justice Hugo Black for himself and three colleagues. He claimed Congress enjoyed complete control over the amendment process and the courts had no power to review any of Congress’s decisions on that process. That’s where the misunderstanding about Coleman started. The notion that everything should be left to Congress did not come from the Court’s holding, but from the views of a minority.
Of course, anyone who reads Article V knows that the Black position was nonsense. Not surprisingly, subsequent court cases have rejected it repeatedly.
So why did Black make such a claim?
In 1939, the Court was entering the time period in which it was probably more deferential to Congress and the President than at any other time in our history. (Just five years later, Black was to write the Court’s decision in Korematsu v. U.S., deferring to the decision of Congress and the President to herd tens of thousands of American citizens of Japanese descent into concentration camps.)
Everyone knew that FDR had been considering constitutional amendments, and that he had the support of strong majorities in Congress. Black, who until recently had been a U.S. Senator closely allied to FDR, was still more of a politician than a jurist. Allies of FDR—such as Black and two of the other justices who joined his opinion—may have wanted to emphasize congressional control over the amendment process.
Such notions of extreme judicial deference to Congress are long gone. I doubt that the Black opinion would garner the support of even one Supreme Court justice today.
Filed under: All Postings, Article V, The Founding
A few days ago I heard a presentation by a spokesman for a group that claims to defend the Constitution and revere the Founders. Yet the spokesman trashed the Constitution’s framers for allegedly exceeding their authority and claimed they added a provision that largely rendered another provision useless. In other words, the spokesman charged the framers with being both (1) dishonorable and (2) incompetent.
The framers inserted the “Convention for proposing Amendments” in the Constitution to provide the states with a way of obtaining constitutional amendments without federal interference. Tench Coxe, a leading advocate for the Constitution during the ratification debates, pointed out that the convention device allows the states to obtain whatever amendments they choose “although the President, Senate and Federal House of Representatives, should be unanimously opposed to each and all of them.” (Italics in original.)
The spokesman, however, asserted that the Constitution allowed Congress, through the Necessary and Proper Clause, to dictate, either in the convention call or by previous legislation, how an amendments convention is structured and how commissioners (delegates) are selected and apportioned.
The claim that Congress can use the Necessary and Proper Clause to structure the convention was first advanced in the 1960s, and has been repeated numerous times since then. A Congressional Research Service report published earlier this year noted that some in Congress have taken the same line, although the report did not actually endorse it.
But pause to consider: Why would the framers place in the Constitution a method by which Congress could largely control a convention created to bypass Congress? Were that framers that stupid?
Of course not. Most of them were highly experienced and extremely deft legal drafters.
Behind the belief that the Necessary and Proper Clause empowers Congress to structure the convention are three distinct assumptions—all erroneous: They are (1) that the scope of Congress’s authority under the Necessary and Proper Clause is broader than it is, (2) that the Clause covers the amendment process, and (3) that ordinary legislation may govern the amendment process.
The Necessary and Proper Clause is the last item in the Article I, Section 8 list of congressional powers. It reads:
The Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
It happens that the most extensive treatment of the Necessary and Proper Clause is an academic book I co-authored with Professors Gary Lawson, Guy Seidman, and Geoff Miller: The Origins of the Necessary and Proper Clause (Cambridge University Press, 2010) (cited by Justice Thomas in a Supreme Court case earlier this year and apparently relied on by Chief Justice Roberts in 2012). This book reveals the Necessary and Proper Clause to be a masterpiece of legal draftsmanship.
The Clause was based on usage common in 18th-century legal documents. It is not a grant of authority, but a rule of interpretation. It tells us to construe certain enumerated powers as the ratifiers understood them rather than in an overly-narrow way. In legal terms, the Necessary and Proper Clause informs us that those enumerated powers include “incidental” authority.
Even if the Clause did apply to the amendment process, the authority “incidental” to Congress’s call would be quite narrow. An entity that calls an interstate convention always has been limited to specifying the time, place, and subject matter. It is the state legislatures who control selection of their own commissioners, thank you very much.
But in fact the Necessary and Proper Clause does not extend to the amendment process. To explain:
The Constitution includes numerous grants of power. These grants are made to Congress, to the President, to the courts, to the electoral college, and to state legislatures, state governors, and various conventions. An entity exercising a power under one of those grants is said to exercise a “federal function.”
The Necessary and Proper Clause is crafted to apply to most federal functions, but it also excludes a number of them. Specifically, it covers only the grants listed in Article I, Section 8, and those vested in the “Government of the United States” and in “Departments” and “Officers” of that government.
In other words, the Clause omits constitutional grants made to entities that are not part of the “Government of the United States,” even when those entities exercise “federal functions.” See, for example, Ray v. Blair, 343 U.S. 214 (holding that presidential electors, who ultimately derive their power from the Constitution, exercise a federal function but are not federal officers or agents). Among other the entities exercising federal functions but not acting as part of the U.S. government are (1) state legislatures regulating congressional election law, prescribing selection of presidential electors, ratifying constitutional amendments, providing for state ratifying conventions, applying under the Guarantee Clause, or (before the 17th amendment) choosing U.S. Senators, (2) state governors issuing writs of election to fill congressional vacancies or applying under the Guarantee Clause, (3) state ratifying conventions, and (4) the convention for proposing amendments.
Yes, but Congress calls the convention. Could Congress use the Necessary and Proper Clause to regulate itself as a calling agency on the ground that it (Congress) is a “Department” of the federal government?
Highly unlikely. Allowing Congress to insert binding regulations in the convention call would allow it to do indirectly what it is forbidden to do directly: regulate the convention. That flies in the face of established legal principles.
Moreover, Congress may never be a “Department” of government as the Necessary and Proper Clause uses the word: The term “department” appears three times in the original Constitution, and in both of the other two cases, it means only the executive departments. So to make the Necessary and Proper Clause apply, you would have to assume the word “department” in that Clause means something different from what it means in the rest of the Constitution.
But even if we assume that Congress is a “department” for most purposes, we still have to recognize that the rules for Article V are different.
The difference is that (according to the courts) when Congress and state legislatures act in the amendment process they do not act as the legislative branches of their respective governments. Instead, they act as ad hoc assemblies for registering the popular will. They can exercise only the power granted by Article V, and not powers granted by other parts of the U.S. Constitution or by state constitutions. Thus, in Idaho v. Freeman (1981), a federal court ruled that “Congress, outside the authority granted by Article V, has no power to act with regard to an amendment, i.e., it does not retain any of its traditional authority vested in it by Article I” [which is where the Necessary and Proper Clause is located]. (This case was later vacated as moot, but there were no problems with the merits of the ruling.) Or, as the Supreme Court of Missouri pointed out when addressing the state legislature’s Article V functions, “[The legislature] was not, strictly speaking, performing the functions of a legislative body for the state, but was acting as a representative of the people, pursuant to authority delegated to it by the federal Constitution. . . ” State ex rel. Tate v. Sevier (1933). (The U.S. Supreme Court denied certiorari, meaning it refused to consider reversing this decision.)
Again, legislatures act under Article V they do so as separate assemblies, not as the legislative branches of their governments. This is a very old principle, dating back to 1798, when the Supreme Court held that when Congress proposes amendments, it does does not need presidential signature, as it does when it acts as the federal legislature.. See also United States v. Sprague (1931).
Well, if Congress cannot insert language in the “call” structuring the convention, can it pass laws for the same purpose? Again, the answer is “no.” A long list of 20th century cases from courts at all levels holds that the amendment process is governed by the express and implied provisions of Article V, not by other sources of law, such as statutes or state constitutions. See, for example, Leser v. Garnett (1922) and Dyer v. Blair (1975).
Filed under: All Postings, The Founding, supreme court
This Article is a modified version of one appearing in the American Thinker.
If President after President failed to veto bills, would it surprise you if congressional power grew at the expense of the presidency? If the Senate never blocked the President’s appointments, would it surprise you if presidential power expanded at the expense of Congress? If the courts refused to enforce the Constitution’s ban on ex post facto laws, would it be strange if the states passed more ex post facto laws?
And if the states failed to use the Constitution’s “convention for proposing amendments” — a device inserted in the document to correct and check federal excesses and abuses — would it astonish you if there were federal excesses and abuses?
Of course not. Each of the Constitution’s checks is designed to ensure that the system operates in a balanced way while preserving liberty. Disabling any of these checks violates the Founders’ design.
Although Presidents often veto bills, senators sometimes block nominations, and the courts enforce the ban on state ex post facto laws, the Article V procedure by which a convention of states bypasses Congress and proposes corrective amendments has never been used to completion. The neglect helps explain the size and dysfunction of the modern federal government.
There are, of course, social, political, and economic explanations for expansion of federal power. There also are constitutional explanations. The three most common constitutional explanations are:
- The 16th Amendment (ending the apportionment rule for federal income taxes) granted the federal government a massive new revenue source.
- The 17th Amendment, by transferring senatorial elections from the state legislatures to the people, reduced the role of the states in the federal system.
- In the late 1930s and (especially) the 1940s, the Supreme Court abdicated its responsibility to police the boundaries of federal jurisdiction.
The 16th Amendment explanation falls short in a number of respects. Although the Amendment provided a new revenue source, it did not otherwise expand federal enumerated powers. Moreover, during the late 19th century (1865-95) and much of the early 20th century (1913-29) Congress enjoyed the de facto ability to impose non-apportioned income taxes. Yet federal spending shrank to (approximately) historic peacetime size after both the Civil War and after World War I.
The 17th Amendment reduced direct state legislative influence over the U.S. Senate, but it also provided some compensating advantages to the states. Some pro-small-government scholars believe the Amendment’s unbundling of state legislative and senatorial elections actually increased the relative power of the states. In other words, despite all the rhetoric on the subject, the net effect of the 17th Amendment on the federal state balance is still uncertain.
As for the Supreme Court’s abdication of its duty to police federal limits in the late 1930s and 1940s: This was a crucial development, but it fails to explain the previous actions of Congress and the President. Beginning around 1930 (despite unfavorable Supreme Court precedent), federal politicians were able to leverage a financial crisis to seize far more power than federal politicians ever had before. During World War II, they were able to hold and expand that power.
The failure of state legislatures to trigger the Article V process in the midst of depression and war is understandable. Less justifiable was state inaction during the decades after World War II, when the federal government refused to retreat to traditional peacetime levels — especially since that sort of intransigence was precisely the kind of crisis for which the convention device was created.
To be sure, there were some efforts to trigger the convention procedure. The first was the state-based movement for presidential term limits, which became unnecessary when Congress proposed the the 22nd amendment.
The other two were the campaign for a balanced budget amendment and for reversal of Supreme Court apportionment decisions. Both were defeated when apologists for the status quo filled gullible activists with “runaway convention” hysteria.
Neglect of the Article V convention procedure has caused incalculable damage to the constitutional system. The recent surge in “convention of states” activity — at least 15 new state applications since 2011 — may signal that the cure has begun.
Filed under: All Postings, The Founding, supreme court
While hosting a Montana radio talk show in the late 1990s, I interviewed a prominent left-wing environmental activist. He was promoting an anti-mining ballot measure. During the interview, he read from a 16th-century book that (he said) had shown that mining had all sorts of evil effects.
But something about the quote did not ring true. So I obtained a copy of the book myself.
When I read the passage the activist had read over the air, I found that my suspicions had been justified. He had taken the language completely out of context. The author was not against mining at all. He was listing exaggerated claims by mining opponents as a preliminary to rebutting them. The author was a professional mining engineer, and a big fan of mining.
Someone had lied to me, and to my radio audience. The guilty party was either the activist or the person who had, directly or indirectly, provided him with the quotation. I’ll never know the answer. When I contacted the activist to offer him an opportunity to explain, he failed to respond.
That’s when I learned that left-wing environmental activists sometimes abuse the truth. Subsequently, I learned that they abuse it quite a lot.
Consider how they depict the legal doctrine of “public trust.” The following gem comes from an outfit called the “Center for Progressive Reform:”
Across cultures and continents, communities have always imbued certain natural resources with a sense of permanent public ownership. . . . These resources belong to the public, and no private entity can ever acquire the right to monopolize or deprive the public of the right to use and enjoy them. In legal terms, this concept became known as the public trust doctrine, imported into the United States as common law from ancient Roman, Spanish, and English law.
Okay, then, the public trust doctrine is supposedly designed to restrict the freedom of “private entities.”
But re-read that passage carefully. Doesn’t it make you just a little suspicious? It states, “Communities have always imbued certain natural resources with a sense of permanent public ownership.” How would the Center for Progressive Reform know that? Do they know the history of how all communities have “always” worked? Are they gods? Surely to support a generalization like that it is not enough to cite the law of Rome, Spain, and England. What of the rest of the world? What of other eras?
That’s the sort of smell that makes me hold my nose and dig a little further. It doesn’t take much digging to find out that someone at the Center for Progressive Reform is a fiction writer. For example:
* Their version of the public trust doctrine does not, in fact, come from “ancient Roman . . . law.” It’s just not there. Some writers do cite passages from Justinian’s Institutes or Digest. But like my 1990s radio guest, they tear the language out of context. Those passages do not address people’s rights over their own property. They refer only to the status of resources BEFORE those resources are reduced to private ownership.
* Nor does their version of “public trust” come from the English common law. Although some point to Magna Carta, that document does not empower government against private citizens. On the contrary, it protects private citizens against the Crown.
* Environmentalists are fond of claiming that the Supreme Court adopted their version of public trust in Illinois Central Railroad Co. v. Illinois (1892). But if you read that case, you find that it is really not about restricting private rights. The case held that a state government could not disregard its trust duties through a corrupt land sale.*
Is there a real public trust doctrine? Yes, there is.
But it is not about restricting private rights. It is about controlling government.
The historical (as opposed to fictional) public trust doctrine says that government’s agents are trustees or fiduciaries and are bound by the same duties that apply to private sector managers such as bankers, trustees, and guardians. Those duties include obligations of good faith (honesty), reasonableness, loyalty (including avoidance of conflict of interest), and impartiality (serving your beneficiaries fairly).
You can find the true public trust doctrine in the writings of Aristotle and Cicero and in essays by medieval scholars, British Presbyterian theorists, and early modern writers such as John Locke. From such sources many of the American Founders adopted the view that government actions in violation of fiduciary duties were void. That was basically the same approach the Supreme Court applied in the Illinois Central Railroad case.
The public trust doctrine was designed to control government, not to empower it. Claiming it as an instrument to allow government to control innocent citizens is not just a lie—it also turns the concept of “public trust” on its head.
* * * *
* By the way, the Illinois Central Railroad case is pretty shaky as constitutional law. It was decided by a four-justice court minority, with three justices dissenting and two recusing themselves. The case held that the state had exceeded its “police power” through a land sale, but cited nothing in the U.S. Constitution supporting its decision. One might argue that the state violated the 14th Amendment, but the Court never said so.
Filed under: All Postings, The Founding, supreme court
The Constitution was adopted amid a belief that government is a public trust.*
Does the Constitution require federal and state governments to adhere to formal duties of public trust—that is, to fiduciary duties?
In some places, at least, it clearly does: The Equal Protection Clause of the Fourteenth Amendment imposes on the states what is essentially the fiduciary duty of impartiality—that is, the requirement that states not treat people differently without good reason. The requirement in the Necessary and Proper Clause that incidental laws be “proper” may impose a similar rule on the federal government when that government legislates under the Necessary and Proper Clause rather than under its core enumerated powers.
But what if no specific clause governs the issue? Last year I reported that Gary Lawson, Guy Seidman, and I—three constitutional scholars of contrasting political views—had written an article exploring that question.
We pointed out that in interpreting any fiduciary document (like the Constitution), the Courts are supposed to apply certain background rules, unless the document says differently.We noted that one of the standard background rules—existing both at the Founding and today—is that fiduciaries have an obligation not to treat people differently without reasonable cause: the duty of impartiality. We concluded, therefore, that the 1954 Supreme Court case invalidating segregation by race in District of Columbia schools was correctly decided, because in the area of education mere skin color is not reasonable cause.
The article has now been formally published by Boston University Law Review, one of the nation’s more prestigious law journals. You can read it here.
* Note: Our Founders understood the term “public trust” in the way used by John Locke and others: as the obligation of the government to comply with fiduciary standards. Left-wing environmentists have hijacked the term to restrict the freedom of private citizens. The problem began when someone misunderstood and distorted an 1892 Supreme Court case on public trust. More on that soon.
Filed under: All Postings, ObamaCare, The Founding, supreme court
Two years ago, the Supreme Court declared Obamacare’s penalty for failure to purchase conforming insurance to be a “tax.” Several plaintiffs subsequently sued in federal court arguing that the penalty is invalid for violating the Constitution’s Origination Clause. The Origination Clause says that “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.”
The argument of the plaintiffs is that the Affordable Care Act and its taxes originated in the Senate, and that the tax/penalty is therefore void. (A 1990 Supreme Court case does strongly suggest that taxes originating in the Senate are void.) Thus far, those lawsuits have been unsuccessful, but they have provoked much commentary.
H.R. 3590 initially was a 6-page bill addressing (1) a federal income credit and (2) acceleration of certain estimated corporate income tax payments. The bill probably would have had little revenue effect, and may even have cost money. After H.R. 3590 passed the House, the Senate gutted it entirely and inserted 2,076 pages of Obamacare. The Senate voted for H.R. 3590 in that form, and transmitted it to the House, which likewise approved it.
As readers of this site know, I have my own political views, but I do my best to conduct objective research. And I insist on reporting my results whether I personally like them or not. In January, I began an independent research project to determine if the Origination Clause lawsuits have merit. The answer turns out to be both “yes” and “no.”
There are several key issues involved:
* The Constitution’s Origination Clause applies only to “Bills for raising Revenue.” What does that phase mean?
* Was the original H.R. 3590 a “Bill for raising Revenue?”
* If it was, then the Senate had power only to “propose or concur with Amendments as on other Bills.” What is an “Amendment” as the Constitution uses the word? Was the complete replacement of the text of H.R. 3590 an “Amendment?”
The most commonly-used sources for recovering original constitutional meaning are the records of the 1787 Philadelphia Convention, the debates in the state ratifying conventions, and orations and publications (such as The Federalist) issued in advance of ratification. I found, as some other scholars have, that this material was insufficient to explain the scope and meaning of the Origination Clause.
I often have to venture well beyond the sources customarily used, and that was the case here. The origination rule came from the British Parliament, so I examined 50 years of parliamentary debates, as well as historical works on Parliament. I read 18th century treatises on the topic. I examined the legislative records of American colonies. I also examined the legislative records of the Continental, Confederation, and first Federal Congresses. Finally, I studied the origination rules in the newly-independent American states (14 of them, counting Vermont). This required perusing early state constitutions and legislative records. I disregarded materials generated too late to have influenced the founders.
I embodied my conclusions in a new, and rather lengthy, article. Here they are:
* The constitutional phrase “Bill for raising Revenue” means a “tax” or a change in the tax code justifiable only under the Constitution’s Taxation Clause. (An exaction for regulating commerce is not a “Bill for raising Revenue.”)
* H.R. 3590 in its initial form was a “Bill for raising Revenue” as the Constitution uses that term. It does not matter that H.R. 3590 in that form was revenue-neutral or revenue-negative. All changes to the tax code are within the origination rule.
* H.R. 3590 properly arose in the House of Representatives.
* The Senate had power to propose “amendments” of H.R. 3590. An amendment could take the form of a compete substitution. In fact, I found a fair number of examples of founding-era legislatures amending measures by complete substitution.
* However, the constitutional word “Amendment” is limited to the subject matter of the original bill. The claim made by some writers that an “Amendment” could include an unrelated substitute turned out to be erroneous.
* In other words, the power of an amending chamber over a revenue bill is less than the power of an originating chamber.
* For constitutional purposes, all “Revenue” is the same subject matter, so it is irrelevant that the Senate’s revisions completely altered the nature of the taxes in H.R. 3590. Thus, because the Supreme Court has held the penalty to be a tax, the penalty was within the power of the Senate to add. Also valid are Obamacare’s other levies, such as the medical equipment tax.
* On the other hand, because the underlying H.R. 3590 was limited to the subject of revenue and any “Amendment” must address the same subject as the underlying bill, the Senate’s addition of regulations and appropriations was not within its power.
I concluded that the Origination Clause lawsuits are attacking the wrong part of the law. The invalid portions of Obamacare under the Origination Clause are not its taxes, but its multitude of appropriations and its regulations on health care providers, employers, insurance companies, and others.
One final observation: In dismissing one of the origination suits late last month, the U.S. Court of Appeals for the D.C. Circuit held that the Obamacare tax was not a “Bill for raising Revenue” because it was passed for regulatory purposes. But the anterior constitutional test is whether the initial H.R. 3590 was a revenue bill—and it certainly was, according to the constitutional definition.
If the Court of Appeals were correct that the penalty is regulatory, then the penalty would be invalid as outside the Senate’s amendment power.
More importantly, however, the Supreme Court specifically held that congressional regulatory purposes were outside the scope of Congress’s other enumerated powers. Only the Taxation Clause supports the penalty, and it can be preserved only as a tax.
How Much Authority Does Congress Have Under the Treaty Power? The Question the Supreme Court Dodged in Bond v. U.S.
Filed under: All Postings, The Founding, supreme court
In its recent decision in Bond v. United States, the Supreme Court avoided deciding whether Congress, in executing a treaty, could exceed the enumerated powers to which the Constitution otherwise restricts it. For example, if a treaty requires a signatories to make it a crime to use a particular chemical, may Congress pass a law criminalizing the chemical’s use even though the Constitution gives Congress no general criminal jurisdiction?
The majority in Bond avoided the question by ruling, rather implausibly I think, that the plain words of the statute didn’t apply, so there was no need to decide whether Congress had authority to enact it. But the question will soon return.
Here’s what the Court has decided thus far:
* Because the Constitution gives Congress authority to pass laws “necessary and proper” to assist the President and Senate in making treaties, Congress can enact some measures pursuant to treaties that it could not pass otherwise. This was the rule laid down in Missouri v. Holland (1920). The Holland case said the Tenth Amendment does not prevent this, because the Tenth Amendment denies only unenumerated powers and the power to make necessary and proper laws to execute the treaty power is enumerated.
* Although the Congress may thereby exercise authority not otherwise on its list, Congress still may not violate specific rules imposed by the Constitution. Thus, Congress may not execute a treaty by passing an ex post facto law or a law violating the specific guarantees in the Bill of Rights. This was decided in Reid v. Covert (1956).
In recent years, several conservative and libertarian commentators have argued that when adopting laws enforcing treaties, Congress is limited to the powers explicitly enumerated. In other words, they argue that Missouri v. Holland was wrongly decided. In addition to citing federalism concerns, they point out that the Necessary and Proper Clause, when read with the Treaty Clause, gives power only to assist in the “making” of treaties, not carrying them out. So Congress may fund a negotiating team, but may not pass a law to enforce of the terms of treaty unless the law is otherwise authorized in the Constitution’s enumeration.
As a free market conservative, I find this argument appealing. Unfortunately, it is not convincing.
First, it seems to be an overly-restrictive reading of the Constitution’s language: surely the power to “make” a treaty on a particular topic implies an enforceable promise to carry it out. For example, the ability to acquire and cede territory has always been incident to the power to make treaties. Yet the power to acquire and cede territory is not otherwise enumerated in the Constitution. Does that mean that when we acquired Hawaii by treaty Congress could adopt no law to carry out the annexation? Some people point out that Thomas Jefferson thought a constitutional amendment necessary for acquiring territory. But he was clearly wrong about this: Jefferson was a very great man, but for reasons I discuss in my book, The Original Constitution: What It Actually Said and Meant, he was not a particularly reliable source of constitutional meaning (partly because was in France during the ratification debates).
Second, besides granting power to assisting the President to “make” treaties, the Constitution also grants Congress power to execute them. Specifically, the Constitution grants Congress authority “To make all Laws which shall be necessary and proper for carrying into Execution . . . all other Powers vested by this Constitution in the Government . . . or in any Department or Officer thereof.” Among those “other Powers” is the authority of the President to “take Care that the Laws be faithfully executed.” The Constitution adds that treaties, like the Constitution and statutes, are the “supreme Law of the Land.” So the text rather clearly authorizes Congress to pass statutes to enforce treaties. And it does not limit enforcement to enumerated powers. In fact, treaty enforcement is an enumerated power.
Finally, there is considerable evidence that the Founders themselves understood the treaty power to be a potential source of authority for Congress in addition to the items otherwise enumerated. They got this understanding from history, international law, and events they had witnessed themselves.
To cite only two illustrations of the evidence: (1) The Virginia ratifying convention featured extensive discussion of the power to acquire and cede territory incident to treaties, a power not otherwise enumerated, and (2) the Confederation Congress had ratified a treaty which potentially restricted religious freedom. (The First Amendment was passed in part to prevent this from happening again.) And those are only two illustrations. For more, see The Original Constitution: What It Actually Said and Meant.
There are limits, however: In acting under the Necessary and Proper Clause, Congress is executing only incidental powers—in other words, powers subordinate to those granted in the Constitution and tied to them by custom or necessity. So Congress’s authority to execute treaties would not extend to altering the entire federal system. Congress could not, pursuant to a treaty with Luxembourg, transfer the entire criminal law from the states to the federal government.
The U.S. is now a party to thousands of existing treaties. Just what Congress can and can’t do under them involves some very difficult questions. The Court dodged those questions in U.S. v. Bond, but will have to address them in the near future. Alternatively, we can adopt a constitutional amendment—such as the amendment suggested many years ago by Senator John W. Bricker of Ohio—clarifying the limits of Congress’s authority.
Since Congress is unlikely to propose an amendment limiting its own power (except for the repeal of Prohibition it has not done so since 1789), a convention of states would be necessary to propose such an amendment for the states to ratify.