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.
Filed under: All Postings, ObamaCare, supreme court
The Hobby Lobby case is being hailed by freedom advocates as a great victory. On balance it certainly it is a victory for those who value personal freedom. But it also contains land mines that may one day prove destructive to freedom.
One of these land mines is how the justices treated the question of whether mandated abortifacient insurance promotes a “compelling government interest.”
In its principal opinion, the Court assumed for purposes of argument that the U.S. Department of Health and Human Services (HHS) contraceptive mandate serves a compelling government interest. However, five members of the Court – a majority – went farther: Justice Kennedy stated in concurring opinion that the decision’s “premise” was that the federal government had a “compelling interest in the health of female employees.” The four dissenters affirmatively claimed that the mandate furthered “compelling interests in public health and women’s well being.”
The mandate in question was issued under the Affordable Care Act (ObamaCare). In 2011, a federal district judge found that another Obamacare mandate also served a “compelling interest” (Mead v. Holder).
It is a very serious matter when the Supreme Court classifies a law or other government action as serving a “compelling interest.” In the Court’s jurisprudence, most laws promote only “legitimate” interests, and a few promote legitimate interests that are “important” as well. On rare occasions, a legitimate interest is held also to be “compelling.” If a law is deemed “necessary” to advance the compelling interest, the law may actually overrule portions of the Bill of Rights. It also may overrule basic liberties listed elsewhere in the Constitution or in the Religious Freedom Restoration Act.
Although the ObamaCare mandate in Hobby Lobby ultimately did not override the Religious Freedom Restoration Act, the ObamaCare mandate in Mead v. Holder did.
In our federal system, the states enjoy broad powers to regulate to promote health, safety, morals, and general welfare. In other words, states can employ the law for many legitimate purposes. The Court has found that some of these legitimate purposes are compelling. For example, a state vaccination law designed to prevent epidemics may overrule one’s right to refuse vaccination. Similarly, the Court holds that a state’s interest in stamping out racial discrimination is not only legitimate, but compelling.
Still, the number of compelling interests is fairly small. Even state health laws usually are not compelling enough to overrule fundamental rights.
Unlike the states, the federal government is limited to the enumerated powers granted in the Constitution. The Supreme Court has ruled that some of these enumerated powers also serve compelling interests, such as national defense and Congress’s 14th Amendment authority to remedy discrimination by state governments. But federal peacetime economic regulations, like state laws, are almost never “compelling.”
That brings us to ObamaCare. The Affordable Care Act has all sorts of social and health care implications, but (aside from its taxes and spending provisions) it is justified constitutionally as a set of commercial and economic regulations. For example, when arguing that the Supreme Court should uphold ObamaCare, the president characterized it as “a[n] economic issue … that I think most people would clearly consider commerce.” In her Hobby Lobby dissent, Justice Ginsburg likewise cited economic factors to justify the contraceptive mandate.
Thus, despite ObamaCare’s health implications, its constitutional purpose is economics or, more precisely, commerce. ObamaCare’s regulations on insurance companies and employers, such as the contraceptive mandate, specifically are said to rest on the Constitution’s Commerce Clause. This is because the Constitution grants the federal government no enumerated power over health care. The great Chief Justice John Marshall made this very point in his famous opinion in Gibbons v. Odgen, when he wrote that “health laws of every description” were reserved exclusively to the states.
But if, constitutionally, ObamaCare is but a collection of economic regulations – and if peacetime economic interests are virtually never “compelling” – then why is ObamaCare different? Is it just that the ObamaCare is popular among the class of people who serve as federal judges?
The answer is that in this sense, ObamaCare is not different. It is constitutionally similar to many hundreds of other economic regulations enacted by Congress and the states. It is just more comprehensive and much more intrusive.
Now consider the risk to freedom from allowing such a law to be lifted to “compelling” status. That risk extends far beyond the threat to religious liberty. If, for example, providing “free” contraceptives is a compelling interest, then Congress might pass a law forcing companies to produce them. Or if forcing people to buy insurance serves a compelling interest, then federal officials might well demand laws to jail people who try to dissuade others from signing up.
Remember the Supreme Court’s formula: a law necessary to promote a compelling interest can override the Bill of Rights. ObamaCare is barely constitutional – if it is constitutional at all. We must not allow the courts to sanctify it.
Post script: More than two years ago, I predicted that the Supreme Court would dismiss the anti-mandate First Amendment claims and that Mead v. Holder raised the possibility that some judges would treat Obamacare as “compelling.” You read it here first!
Early this year in The American Thinker and in this column I discussed state marijuana legalization and federalism. I cautioned against advocates of freedom and federalism forming alliances with the “progressive” left on those issues in which the left claimed to favor free choice. I pointed out that that for that bunch”free choice” is nearly always a mere waystation to more coercion.
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.
A new CBS story from Berkeley, CA demonstrates the point. Marijuana legalization was supposed to be about freedom. But the City of Berkeley, archetype of “progressivism,” has now decided to impose a marijuana mandate, forcing businesses to give away free pot.
The next step doubtlessly will be forcing the rest of us to subsidize pot, and finally forcing people to use it.
The hard fact is that these thugs see no limit to their use of government as a tool for pushing other people around.
After some truly painful reading experiences, I’ve become skeptical of history books written by celebrities.
Lynn Cheney is the wife of former Vice President Dick Cheney and thus our former Second Lady. She certainly counts as a celebrity. I was, therefore, skeptical of her new biography, James Madison: A Life Reconsidered.
But she won me over. She has done a fine job.
I’ve learned in life that people of talent are rarely one-dimensional. This is true of Mrs. Cheney. She was not only Second Lady. She is also is a serious scholar (a Ph.D. from the University of Wisconsin and a fellow at the American Enterprise Institute) and a fine writer: She is a former editor of Washingtonian Magazine, and this is at least her 9th book.
This Madison biography was, moreover, no slapdash job. It took nearly seven years to research and write.
Do I have some quibbles? Yes, a few. But the theme and strengths first.
The traditional rap against James Madison is that although he was a good theoretician and committee worker, he was a weak and shy man and at best a mediocre President. In the latter capacity, it is said, Madison was wobbly (for example, signing a national bank bill after opposing it earlier), and he was an unassertive and incompetent leader during the War of 1812. Mrs. Cheney set out to see if, despite his genius, Madison really was such a bad President and concluded that he was not—that actually he was a rather good one. Her book is thus partly a book of rehabilitation.
Mrs. Cheney was right to doubt the received wisdom. It seems highly unlikely
that anyone who was physically weak and personally diffident could rise to become President of the United States. Mrs. Cheney well demonstrates that Madison was neither. (To be fair, she is not the first to question the popular wisdom.)
Mrs. Cheney avoids slipping into canards so common among people writing on Madison. For example, she recognizes that the Constitutional Convention was called by states in response to the Annapolis Convention rather than by Congress. She implies (although she might have said explicitly) and that nearly all the convention commissioners had authority to propose a new constitution. She also recognizes that Madison did not, as some claim, approve of state nullification as a constitutional remedy; in fact, he thoroughly opposed it.
As for the quality of the writing: It is smooth and well executed and sometimes fun. I found it a very easy read.
Now a few quibbles.
First: Occasionally, although rarely, Mrs. Chaney slips into exaggeration. It would be hard to justify her statement that Jefferson and Madison were “the two greatest minds of the 18th century,” when that century encompassed all or part of the productive lives of men like Isaac Newton, Gottfried Wilhelm von Leibniz, Moses Mendelssohn, Immanuel Kant, and Edmund Burke. At the least, her claim cries out for support.
Second: I found her treatment of Madison’s presidency to be disappointingly brief. Additional treatment would have enabled her to better sustain her thesis. Consider, for example, the claim that Madison vacillated by opposing the first national bank on constitutional grounds (in 1791), and then signing the bill creating the second national bank 25 years later. It would have taken only a few additional sentences to explain that the constitutionality of the bank always had been a very close question and that Madison always had recognized that “liquidation” (clarification) by practice was a perfectly legitimate way of resolving close constitutional questions.
Another example: The book contains considerable evidence that Madison’s Secretary of War, John Armstrong, was indolent, and perhaps incompetent and politically disloyal. It demonstrates that certain military reverses were attributable to Armstrong. But a President is responsible for the repeated failure of his chief subordinates. Assuming Madison’s initial appointment of Armstrong was justified, why did Madison retain Armstrong as long as he did?
But these are, as indicated, but quibbles. I recommend the book to anyone interested in the Constitution and the early Republic. Mrs. Cheney deserves to sell a ton of copies. I hope she does.
Filed under: All Postings, The Founding, supreme court
I applaud the result of the recess appointments case and I am happy to have been cited again in a Supreme Court opinion (this time by Justice Scalia). But in several respects the case exemplifies what is wrong with constitutional jurisprudence today.
In National Labor Relations Board v. Noel Canning, the Court was unanimous in holding that certain presidential appointments to the National Labor Relations Board did not qualify as proper recess appointments. But it otherwise split 5-4, with Justice Breyer writing the majority opinion and Justice Scalia the concurrence.
The majority opinion addressed three issues: (1) whether the constitutional phrase “the Recess” could apply to short breaks in the middle of a session, (2) whether to “happen” during a recess the vacancy had to arise during the recess or whether it could be a carry-over vacancy from earlier, and (3) whether the Senate was in session or recess for constitutional purposes when it carried out nominal “pro forma” sessions.
To decide the case as the majority needed to, it was necessary only to conclude as the majority ultimately did: the rules of the Senate control its own sessions. In the normal course of legislative proceeding, if the Senate says it is in session, then the Senate is in session. So there could be no recess appointment.
Yet the majority first dealt unnecessarily with the other two issues. Courts are not supposed to pontificate on legal issues unnecessarily.
That was the first problem. The second problem was that the Court relied almost exclusively on post-ratification evidence to determine the meaning of “the Recess” and “happen.” That is reading history backwards. Post-Founding events are rarely reliable guides to Founding-Era meaning because post-Founding events hadn’t happened yet. Duh. Yet the Court, like many legal writers, repeatedly resorts to events that could not have been part of the ratification-era understanding because they were years, even decades, in the future.
To be sure, you can justify considering later practice when the Founding-Era meaning is truly ambiguous. (This is sometimes called “liquidation,” which means “clarification.”) But in this instance, the Founding-Era meaning certainly is not ambiguous.
The third problem was that the majority simply ignored the tidal-force of the evidence on the meaning of “the Recess” and “happen.” Beyond reasonable doubt, “the Recess” as the Constitution uses the term means only the intersession recess. Beyond reasonable doubt, “happen” means “occur,” “arise.” It does not mean “continue.” By the way, Justice Breyer downplayed some of this evidence by claiming that the Founders didn’t know of intra-session breaks (other than the formal “the Recess”), but this is inaccurate.
The fourth problem is that the majority adopted what it called a “functional” balancing-type test to determine what intra-session breaks did and did not qualify as “the Recess.” Justice Breyer distinguished this from what he disparagingly called a “formalistic” approach. Thus, he told us that three days was too short to be “the Recess,” that there was a “presumption” that less than 10 days was too short, etc. He left the details to be balanced over and over again, perhaps interminably, in future litigation.
Justice Breyer is a very bright man (a former Harvard law professor), and in his constitutional opinions he resorts a great deal to such “functional” and “balancing” tests. At some point, though, he should understand that constitutions and laws are written mostly for people not smart enough to teach at Harvard. We need bright lines. We need formalism. All indications are that in the Recess Appointments Clause, as in most other constitutional provisions, formalism is what the Founders intended we should have. It is what the American people adopted. That means in interpreting a phrase like “the Recess of the Senate” as it applies to a legislative body, we should construe it consistently with contemporaneous legislative practice.
(Interestingly enough, in deciding that pro forma sessions were sufficient to break up recesses, Justice Breyer did return to formalism.)
Also, a quibble with the concurrence: Justice Scalia’s opinion understated the force of the argument on the meaning of “happen.” I provided numerous examples in the second part of the article he cited earlier in his opinion, but for some reason Scalia’s concurrence didn’t pick up on them. Instead, he got bogged down reading history backwards — reciting mostly occurrences from after the Founding.
Since the Court’s misinterpretation of “the Recess” and “happen” were unnecessary to the result, they should be treated as pure dicta, and therefore not binding on future Courts. A panel of future justices, less clever but wiser, can then more readily correct the error.
Although I’ve often criticized the constitutional tone-deafness of “progressives,” conservatives can sometimes exhibit such tendencies as well. Over at The Seventh Amendment Advocate, Andy Cochran points out why trial by jury in civil cases—as guaranteed by the Seventh Amendment—is important, and how some conservatives disregard it.
The problem arises because when constituency politics often trumps principle. Just as liberal Democrats like to attack the oil and gas industry because it is perceived to support Republicans, so also conservative Republicans like to attack trial lawyers, who disproportionately support Democrats. Hence, many Republicans sign onto proposals to have Congress impose mandates on state court systems in the name of “tort reform.” Those Republicans tend to forget that trial by jury isn’t about protecting lawyers (no matter what their political party). Trial by jury is about protecting individual rights.
Andy Cochran’s article is thoughtful and worth reading. My own take on the same subject is here.