The Constitution’s Suspension Clause (Art. I, Section 9, cl. 2) limits when the writ of habeas corpus can be suspended. But the Constitution doesn’t seem to grant the federal government power to suspend the writ in the first place. Why not? And why limit a power never given?
In an Aug. 17 Wall Street Journal piece, constitutional law professor Nicholas Quinn Rosenkrantz infers that Congress has the sole suspension authority from the structure of the constitutional text. He writes:
“Since the Suspension Clause appears in Article I of the Constitution, which is predominately about the powers of Congress, there is a strong argument that only Congress can suspend the habeas writ.”
He concludes that when President Abraham Lincoln suspended the writ, he probably intruded on Congress’s prerogative, and thereby exceeded his constitutional authority. (Professor Rosenkrantz also gives Lincoln credit for trying to cure the constitutional defect.)
This is largely correct, but the organization of the text is not the sole reason. When read in legal and historical context, the language of the Constitution does give the federal government authority to suspend the writ.
Here’s why: At the time of the Founding, suspending habeas was a recognized incident of war powers—repeatedly resorted to both by Parliament and by the Continental Congress. When the Constitution granted Congress authority to declare war, this grant carried with it the incidental power to suspend the writ. (The Necessary and Proper Clause confirmed this.) For more on that, see my book The Original Constitution: What It Actually Said and Meant, pp. 106-07.
The President’s power to serve as commander-in-chief also carried with it incidental authority to suspend the writ. (The Necessary and Proper Clause doesn’t apply to the President, but for other reasons the doctrine of incidental powers does.) However, the President’s suspension authority was limited to the actual theater of war. See p. 134.
Thus, Professor Rosenkranz was correct to conclude that Lincoln exceeded this authority by suspending the writ over large areas outside the war theater.
Filed under: All Postings, Article V, The Founding
Although I favor adopting one or more amendments to restore the federal government to constitutional limits, I generally do not take positions on specific proposed amendments. My mission is to research our Constitution and educate others about it, including but not limited to the Article V amendment process.
Mr. Levin’s conclusion about the Article V convention process—that is a limited-purpose, state-driven procedure created by the Founders to prevent federal overreach—is, of course, correct. This is clear to anyone who has fully and impartially examined the historical record and the applicable law. I was gratified to see that Mr. Levin acknowledged my research, and that it helped him reach this conclusion.
More importantly, in announcing that conclusion, Mr. Levin has shown vision and courage. I’m sure he was aware that the angels of misinformation can be a difficult bunch. No doubt they are already harassing him. But he did what was right, and it is gratifying to see that he has encouraged other opinion-molders to do the right thing as well.
At first glance at the Constitution’s text, it would appear not. There is no general Equal Protection Clause in the Constitution applying to the federal government—although there are a lot of clauses requiring equal treatment in specific situations. The Equal Protection Clause in the Fourteenth Amendment is general in nature, but it applies explicitly only to state governments.
The Supreme Court nevertheless has held that the federal government must follow a general equal protection principle. In 1954, in Brown v. Board of Education, the Court ruled that maintaining segregated schools in the states violated the Equal Protection Clause of the Fourteenth Amendment. At the same time, in Bolling v. Sharpe, it further ruled that segregated schools in the District of Columbia violated the Fifth Amendment’s requirement that the federal government not deprive persons of “due process of law.”
In the Bolling case, the Court opined—with little explanation—that the Fifth Amendment Due Process Clause contained what some call a substantive “equal protection component.” The problem is that, as a matter of accurate legal history, the claim that the Fifth Amendment Due Process Clause contains a substantive “equal protection component” is jurisprudential nonsense.
Still, forcing students to attend racially segregated schools is grossly and obviously unjust—so much so that, despite the weakness of the Bolling “reasoning,” the Court has not seriously questioned the case for over 50 years now. In fact, “living constitution” advocates sometimes employ Bolling to attack those who believe in applying the Constitution’s original meaning. “If originalism would result in re-segregating D.C. schools,” they say, “then originalism just can’t be right.” (Interestingly enough, after decades of liberal policies, D.C. schools are still largely de facto segregated.)
Of course, in this attack the “living constitution” people are being unfair. Every honest method of interpretation sometimes results in outcomes we don’t like. No honest method of interpretation yields fair results every single time. If we required every method of interpretation to always reach the result we preferred, we’d never be able to adopt any method at all.
And yet now it turns out that the result (although not the reasons) in Bolling v. Sharpe may be correct as a matter of original meaning!
A new article by Gary Lawson, Guy Seidman, and me is entitled The Fiduciary Foundations of Federal Equal Protection. Professor Lawson, Professor Seidman, and I were three of the four co-authors of a book on the Necessary and Proper Clause. We differ in politics, but we are united in our interest in the background and meaning of the Constitution.
Anyway, the article explores the question of whether an “equal protection” principle pervades the original Constitution. Here are the essentials:
* The Constitution was designed to be a fiduciary document, interpreted according to fiduciary principles, like an agency agreement or a trust instrument. (A fiduciary is one who manages affairs for others, and the law subjects him to very high standards of conduct.)
* In interpreting any fiduciary document, the Courts are supposed to apply certain background rules, unless the document says differently.
* Among the standard background rules—existing both at the Founding and today—is that fiduciaries (in this case, federal officials) have duty of impartiality. This means they have an obligation not to treat people differently without reasonable cause.
* In the area of education, mere skin color is not reasonable cause.
Speaking for myself, I’d like to add the following:
* The original Constitution implicitly acknowledged that race might be a “reasonable cause,” because it recognized the existence of slavery. But the Thirteenth through Fifteenth Amendments changed the Constitution’s basic orientation in that regard.
* Even if (without conceding) that there was “reasonable cause” for segregation laws when they were first widely enacted after the Civil War, the ensuing history wiped out that justification. That ensuing history showed that, in practice, segregation was merely part of a racial caste system used to insure that African Americans were oppressed and would remain oppressed. Segregation proved inherently inconsistent with federal officials’ obligation of impartiality.
I’m aware that there is a problem in applying fiduciary theory to the Constitution—just as there are problems in all methods of interpretation. The difficulty here is that imposing fiduciary duties on federal officials can invite judicial activism. But my primary goal in studying the Founding is to determine what the Constitution really is, not to pontificate on what it should be.
The Fifteenth Amendment, adopted five years after Civil War ended, was designed primarily to secure the right to vote for newly-freed slaves. Section 1 of the Amendment provides that “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”
Section 2 grants to Congress an additional enumerated power: “The Congress shall have power to enforce this article by appropriate legislation.” This provision, like the similar enumerated power granted by the Fourteenth Amendment, often has been compared to the Necessary and Proper Clause.
It is unclear why the enumerated powers in the Fourteenth and Fifteenth Amendments are compared to the Necessary and Proper Clause. The Necessary and Proper Clause is technically redundant—that is, it merely clarifies that what would be true in any event. But Section 2 of the Fifteenth Amendment, like Section 5 of the Fourteenth Amendment, actually does grant Congress entirely new authority.
The reason the provisions are compared may be because the powers in both the Fourteenth and Fifteenth Amendments are to pass “appropriate” legislation. And in the famous case of McCulloch v. Maryland, Chief Justice Marshall described the Necessary and Proper Clause as permitting “appropriate” laws. (Note, however, that the meaning of “appropriate” in Marshall’s time was narrower than it is today.)
Anyway, over the past few decades the Supreme Court has permitted Congress to adopt all sorts of laws pursuant to the Necessary and Proper Clause that are not really “appropriate” in either the original or modern sense of the word. The effect has been to almost destroy most of the original Constitution’s limits on congressional authority.
Apparently, the Court has decided that it will not make the same mistake when interpreting the enumerated powers in the Fourteenth and Fifteenth Amendments. Instead, the Court has tried to limit Congress to a narrower scope. In Fourteenth Amendment cases, for example, the Court states that “There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” In other words, the remedy must be connected to the problem, and can’t be exaggerated or greatly exceed the scope of the problem.
Shelby County v. Holder, the Court’s latest voting rights decision, actually was a very easy case. This is because the law in question was completely without “congruence” or “proportionality” to any real problem. In fact, the evidence suggested that there was no longer a significant problem at all.
At one time there was. Many states were involved in elaborate schemes to prevent African-Americans from voting. Accordingly, in 1965 Congress exercised its Fifteenth Amendment authority by adopting the Voting Rights Act. Section 2 of that law imposed certain mandates on all parts of the country. Section 5 imposed additional requirements on selected parts, and Section 4 provided the formula for determining which parts would receive the special treatment of Section 5. One result was that states with a history of discriminating against African-American voters were required to obtain federal approval before changing any election procedures.
Time passed, and discriminatory ways were abandoned, Yet Congress did not narrow Section 4’s formula to bring it up to date. On the contrary, Congress re-authorized the formula and even expanded it. By 2013, states with excellent records of minority voting were still being punished for misdeeds long in the past. Congress had chosen to visit the iniquity of the ancestors on future generations. In fact, Congress had chosen to punish many alive today who did not even have any culpable ancestors.
Thus, the Court voided Section 4 because it was no longer “appropriate legislation,” leaving Congress free to adopt a more appropriate substitute.
Justice Thomas concurred with the result, but wrote separately to say that he would also invalidate Section 5, the list of specified penalties to be imposed on states singled out by Section 4. Thomas is an African-American son of the segregated South. But he pointed out that the evils the law was designed to solve had long since been solved. There was no longer reason for federal meddling in matters the Constitution ordinarily reserves to the states.
In the wake of the Court’s decision, some cynical political operators have tried to provoke hysteria among the ignorant. To a certain extent they have succeeded: One citizen asked me recently about “that decision that took away our right to vote.”
Of course, the decision takes away no one’s right to vote. It merely makes it tougher for Congress to play racial politics. And as a matter of sound constitutional law, it seems to me that the justices really didn’t have much choice.
(This is the fourth of several short commentaries on recent Supreme Court decisions.)
U.S. v. Windsor—the case in which the Supreme Court struck down the Defense of Marriage Act (DOMA)—is a carcass from which constitutional flesh-pickers will feast for a very long time. It is one of those cases like Dred Scott v. Sandford or Roe v. Wade that is so uncandid and so laden with gibberish that not even those who like the result can defend the Court’s language with a straight face.
The problems begin with the fact that the case was a collusive one—that is, both Ms. Windsor and the federal government were on the same side. The primary defense of DOMA was not presented by a party at all, but by a majority of Congress acting as “Friends of the Court.” Of course, non-parties do not have the same sort of stake in a case that parties do, which is why the Constitution bars collusive suits from federal court.
The justices tried to put a good face on this, but they couldn’t disguise the fact that because the parties were not adverse to each other, the matter was not truly a “case or controversy” as required by Article III of the Constitution, and therefore should have been dismissed. But as Justice Scalia wrote in his dissent, the majority was “eager—hungry—to tell everyone its view. . . ” And therefore did so.
If the majority’s opinion had a core, it was that DOMA was invalid because the law was the product of “a bare congressional desire to harm a politically unpopular group”—meaning, in this case, homosexuals. But the Court never actually showed that this was the congressional purpose. (There were no homophobic tirades in Congress during the debates over DOMA.) The Court did note, accurately, that one motivation was moral concern. But moral concern is not the same thing as a bare desire to hurt the alleged transgressor. The truth is often quite the contrary, as every parent, teacher, and clergyman knows.
Anyway, the Constitution contains no specific “anti-bare-congressional desire to harm” clause applying to the federal government.* The Court repeatedly has acknowledged that absence by upholding laws that attack other politically unpopular groups such as racists, the oil and gas industry, and “the rich.” So one might reasonably ask what part of the Constitution the Court was relying on. The justices never quite told us.
It couldn’t be the Equal Protection Clause, because by its specific terms that provision applies only to the states, not to Congress. It might be the so-called “equal protection component of the Fifth Amendment Due Process Clause”— a formulation invented by the Court in 1954 to nail another politically-unpopular group (segregationists). But the Court didn’t explicitly rely on that, either.
Could the Court be relying on what constitutional scholars call “substantive due process?” But substantive due process is said to invalidate only certain laws that violate long-held traditions and understandings. DOMA not only doesn’t violate long-held tradition, but explicitly supports long-held tradition.
Aside from never telling us just what provision of the Constitution DOMA violated, the Court also never acknowledged several important reasons behind DOMA that had nothing to do with either morality or “a bare desire to harm a politically unpopular group.” In other words, even if anti-homosexual animus played a role, the “desire” was not “bare.” Among the measure’s purposes:
* To protect the intended, understood scope of certain federal privileges and exemptions from being altered by changes in state law. The goal of protecting the federal treasury from expanded tax deductions, for example, is obvious.
* To provide what lawyers call a “choice of law” rule for couples who migrate among states with different marriage laws.
* To guard against unforeseen social consequences that might arise if states fundamentally altered a social institution of very long standing. (When DOMA was passed, there was talk of expanding the definition of marriage but no state had yet done so.)
The Court’s lack of candor is evident in its failure to acknowledge any of these entirely legitimate purposes.
Some have characterized the Windsor decision as based on federalism—the exclusive right of states to regulate domestic relations issues such as marriage. Would that this were true! But it isn’t.
First, keep in mind that the part of the law invalidated was the portion that defined “marriage” only for existing federal law, such as the meaning of “spouse” in federal estate tax laws. It did not alter state definitions at all.
Second, the Windsor opinion never acknowledged the states’ exclusive power over marriage. On the contrary, it asserted the purported constitutionality of the many federal statutes that meddle in the states’ reserved authority over domestic relations. In fact, Adoptive Parents v. Baby Girl, decided just two days before, implicitly acknowledged the constitutionality of a federal statute that interfered drastically with state domestic relations laws.
The Court mentioned the traditional state authority over domestic relations not to protect federalism, but only as “evidence” that DOMA was the product of a “bare desire to harm.”
The Court also cited as justification “DOMA’s sweep involving over 1,000 federal statutes and a myriad of federal regulations.” But that sweep reflects merely the Court’s own neglect of duty. Had the Court carried out its obligation to enforce the Constitution’s limits on federal power, DOMA might not have been adopted at all—and if adopted it would have had a far narrower “sweep.”
As in cases like Dred Scott and Roe, the Court covers its lack of reasoning and lack of candor with rhetorical bombast. Consider the following:
“The dynamics of state government in the federal system are to allow the formation of consensus respecting the way the members of a discrete community treat each other in their daily contact and constant interaction with each other.”
What does that mean?
“While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved.”
I might have hoped, at least, that the DOMA decision would have put to rest the absurd but common characterization of this Supreme Court as “conservative.” Incredibly, however, that claim persists even after Windsor.
* * * *
* An exception may be the requirement of Article I, Section 8, Clause 18 that laws adopted pursuant to incidental congressional powers be “proper,” but the Court does not apply that provision that way.
Conduct surrounding the George Zimmerman case provides additional cause for concern, including prejudicial comments by President Obama and rioting subsequent to acquittal.
Adherence to the rule of law is critical to survival of a free society. This, in turn, requires adherence to five basic standards:
* Clarity of the rules.
* Stability of the rules.
* Notice—the ability of the public to understand the rules in advance.
* Fairness, particularly in the procedures used in enforcing the rules.
* Judicial restraint.
Outside efforts to influence or upset a verdict run contrary to the stability, notice, and fairness standards.
The Supreme Court’s recent decision in Fisher v. University of Texas has made it tougher for state universities to run their ethnic spoils systems. But not tough enough.
First, the background:
The Fourteenth Amendment requires states to extend “equal protection of the laws” to their citizens. The primary goal of the Equal Protection Clause was to stop states from discriminating against racial and ethnic groups. But the actual wording of the Clause covers more than just racial and ethnic discrimination.
As the proponents of the Fourteenth Amendment acknowledged, however, not all discrimination is bad. For example, it is good policy for the state to treat criminals differently from law-abiding persons. In many situations it is good policy to take account of physical differences between men and women. A municipal theater putting on Shakespeare’s Othello might reasonably prefer a black man over a white woman (or over a white man) for the lead role.
But because the central purpose of the Equal Protection Clause was to limit state discrimination based on race and ethnicity, the Supreme Court tells us that it is particularly skeptical of that kind of discrimination. And usually it is.
The Court says that when a state law or regulation discriminates based on race, the law or regulation is void unless it passes “strict scrutiny.” This means that to be valid, a law or regulation must satisfy both of two criteria: (1) The purpose can’t be merely a garden-variety government purpose like, say, fiscal restraint. Rather, the justices must think it is “compelling” purpose, like national defense or preventing official corruption. (2) The state must prove that the law or regulation is “narrowly tailored” (or “necessary”) to accomplish the purpose. In other words, the state must prove that discrimination is the only way to accomplish the compelling goal.
In the landmark 1954 case of Brown v. Board of Education, the Court applied the Equal Protection Clause to ban state-run segregated schools. The Court held that segregated systems were inherently discriminatory. It rejected the argument that, given then-prevailing social conditions, segregation was necessary to assist the education of both whites and blacks.
But history tends to rhyme. Just as it was once fashionable to discriminate against blacks, a few decades later, it became fashionable among political liberals to discriminate in favor of blacks—and in favor of certain other key voting groups in the coalition of the National Democratic Party. So “progressive” university administrators began favoring those groups when hiring faculty and admitting students. For example, the University of Michigan law school granted preferences to applicants who were Hispanics, American Indians, or African Americans. If you were someone like, say, a Japanese-American, or a white Jew, or an Irish Catholic (all groups historically suffering from discrimination) then it was harder to get in.
People who play the modern preference game don’t admit to discriminating, of course. They employ euphemisms like “diversity” and “affirmative action.” They also argue that ethnically-diverse classrooms help education. They elide past the respectable studies—including one by the liberal Brookings Institution and those cited by Justice Thomas—suggesting that student heterogeneity actually can make education harder. They also fail to explain why the demographic groups given favorable treatment all tend to lean in their voting toward the left side of the political spectrum—a fact that would seem to reduce diversity of thought in our liberal universities.
In Grutter v. Bollinger (2003) the University of Michigan’s “diversity” program was challenged as violating the Equal Protection Clause. Given the history and jurisprudence of the Clause, the program’s unconstitutionality would seem to be a slam-dunk. But Supreme Court justices are human. They are part of the legal elite, and they live in Washington, D.C. Most tend to be sympathetic to fashionable social attitudes.
So although the Court struck down the “diversity” program in a companion case, in Grutter the Court upheld the Michigan law school scheme. The Court purported to apply strict scrutiny. It held that the educational benefits of a diverse classroom in a state law school were not just desirable goals but “compelling” ones. Thus, the purported benefits to state law schools were ranked up there with national defense. (A pretty silly conclusion given that some states do not think it necessary to even have a state law school.)
Nor did the Grutter court require the university administrators to prove that discrimination was necessary to achieve the purported benefits. Rather, the justices granted significant power to university officials to discriminate at discretion. Thus, the Court watered down the strict scrutiny test.
Since the 1960s, the Supreme Court has a pattern of reaching liberal decisions on social issues. Even when those decisions prove unwise in practice, the Court seldom, if ever, overrules them. The most the Court does is chip away at them.
That’s what happened in Fisher:
The University of Texas was discriminating on racial and ethnic grounds in its student admissions. Fisher was an white, female applicant who had been excluded from admission. She did not attack the Grutter ruling that the “educational benefits from diversity” constituted a compelling purpose. But she did urge the Court to tighten the second prong so the test looked more like genuine strict scrutiny. In other words, she asked the court to narrow the amount of discretion granted to administrators. Fisher argued that state university officials, like other state officials, should be required to prove that racial and ethnic discrimination was the only way to obtain a diverse student body.
In a 7-1 decision, the Court agreed.
Two justices—Scalia and Thomas—said they favored ditching the notion that “diversity” is a compelling governmental purpose. In a particularly brilliant opinion, Justice Thomas demonstrated, by example after example, that the diversifiers’ “better education” argument was just a warmed over version of the “better education” argument once used to justify segregation.
Do the Feds Belong in Indian Adoption Law? (Together with another Natelson citation in the Supreme Court and an acknowledgment of Lisa Morris)
Filed under: All Postings, The Founding, supreme court
(Note: This is the second of several short commentaries on recent Supreme Court decisions.)
There is little more heart-rending than the sorrow of a child.
The sorrow of a child—and of her adoptive parents—created one of the Supreme Court’s more compelling cases this term. I was happy to be cited extensively in one of the opinions. And, much more importantly, happy that the Court acted to minimize the sorrow of the child and of her adoptive parents.
In 1978, Congress passed the Indian Child Welfare Act (ICWA). By this measure, Congress invaded yet another area traditionally governed by the several states: adoption and relinquishment of parental rights.
The ICWA had a worthy purpose: to prevent tribes from being decimated by the wholesale adoption of Indian children by non-Indian families. However, the ICWA has at least two serious flaws. First, it can lead to sorrow and injustice. Second, outside the regulation of military personnel, the Constitution gives Congress no authority to meddle in adoptions or parental rights—even those involving Native Americans.
According to the statement of facts by the Court, the unusually-named case of Adoptive Parents v. Baby Girl involved a father who (a) had disclaimed his parental rights, (b) showed no interest in supporting his child, and (c) facilitated an adoption. But after the child already had spent two years with, as the Court averred, “the only parents she had ever known,” he decided he wanted her back.
The case arose in South Carolina and that state’s law did not allow him to break up the adoptive family this way. So he relied on the ICWA on the grounds that, through his parentage, his child was part Cherokee. Precisely 3/256, or 1.2% Cherokee.
The Cherokee tribe apparently grants membership to people with tiny amounts of Cherokee lineage. This, the biological father argued, granted him a special preference under the ICWA.
The lower courts agreed with him, and took the child from her adopted parents. But the Supreme Court reversed.
In a decision written by Justice Alito, the Court examined the language of the ICWA closely. For technical reasons, it ruled that the statute did not, in fact, entitle the biological father to the preference he claimed.
But there also was a more fundamental constitutional issue at stake: What enumerated power gives Congress authority to pass the ICWA in the first place?
Justice Thomas wrote separately to explain that he was construing the statute narrowly because otherwise the Court might have to rule the ICWA unconstitutional. (Courts generally try to resolve cases so as to avoid constitutional issues.) Justice Thomas cited extensively from my own 2007 study of federal power over Indian tribes.
Federal power over Indians has several constitutional sources. The two of greatest importance are the Treaty Clause and the Indian Commerce Clause. Under the Treaty Clause (Article II, Section 2, Clause 2), the federal government may enter a treaty with a tribe that deals with adoption law governing that tribe. But no treaty was involved in the Baby Girl case. In fact, the federal government stopped making treaties with tribes 150 years ago.
The Indian Commerce Clause (part of the larger Commerce Clause, Article I, Section 8, Clause 3) states that “Congress shall have Power . . . to regulate Commerce . . . with the Indian tribes.” Some commentators, and indeed the Supreme Court itself, have claimed that this sparse language gives Congress “plenary” (total) power over Indians.
My own investigation found this claim to be baseless. The Indian Commerce Clause was designed give Congress little more than authority to regulate commercial trade between U.S. citizens and tribes.
In fact, the historical evidence is overwhelming: Adoptions are certainly outside the scope of the Indian Commerce Clause. That’s what my article on the Indian Commerce Clause documented, and Justice Thomas cited my findings at some length.
* * * *
An Acknowledgment: My investigation into the Indian Commerce Clause was objective. However, my initial interest stemmed partly from friendship with Lisa Morris, who like me was involved in Montana civic life for many years. Lisa is the widow of a full-blooded tribal member. She has devoted much of her life to correcting injustices and other harm inflicted by dysfunctional federal Indian policy.
She is an exceptional, and exceptionally courageous, individual.
Justice Thomas, Quoting Rob Natelson, Had the Constitution Correct In the Arizona Citizenship-for-Voting Case
Filed under: All Postings, The Founding, supreme court
The Supreme Court recently ruled that Arizona’s law requiring proof of citizenship for voting violates federal statutes. In his dissent, Justice Thomas relied heavily on my own research.
The Independence Institute did not participate in that case. So how did it happen that I was cited? In 2010 the University of Pennsylvania Journal of Constitutional Law published my article on the original meaning of a constitutional provision relevant to the decision. The provision is Article I, Section 4—which the Court called the “Elections Clause,” but is more accurately entitled the “Times, Places and Manner Clause.” The Clause provides that the states may regulate the “Times, Places and Manner of holding Elections for Senators and Representatives,” but that Congress may override most of these regulations.
In the article, I discuss exactly what the Founders meant by the phrase “Times, Places and Manner of holding Elections,” and how Congress’s power over its own elections should be interpreted.
The recent case involved whether Arizona’s requirement that voters show proof of citizenship when registering to vote violated federal law. The Court had to decide how widely to read a federal statute and how widely to read Congress’s authority under the Times, Places and Manner Clause.
My research into the subject was prompted by questions about campaign finance laws, not by non-citizens voting in elections—but my findings proved relevant here as well.
In his dissent, Justice Thomas:
* Cited my work in explaining the precise meaning of “Manner of holding Elections,” and
* Adopted my conclusion that in cases of doubt Congress’s authority under the Times, Places and Manner Clause should be interpreted narrowly.
Needless to say, I believe Justice Thomas’s dissent was correct.
The basic problem here is that if you read expansively Congress’s power to regulate its own elections, this could enable Congress to manipulate the rules to protect itself. During the debates over the Constitution, many of our Founders saw the potential danger. Not only opponents of the Constitution but even many of its advocates expressed serious doubts about the Times, Places and Manner Clause. The Constitution was ratified only when its staunchest proponents represented to the ratifiers that the courts would interpret the Clause narrowly—presumably because of the risks.
So, from the point of view of the Founders, the Court in this case was wrong and Justice Thomas—as usual—was right.
Without The Constitution You Might Be Someone’s Slave Today—And Other Crucial Facts About The Founding
On June 14, I keynoted a conference on the American Founding. The conference was sponsored by the Intercollegiate Studies Institute, an educational and publishing non-profit that focuses on civic education for college students.
The keynote included six crucial facts about the framing and ratification of our Constitution:
First: The Constitution was the product of careful application of the wisdom of thousands of years. The Framers took lessons from the Judeo-Christian tradition, classical Greece and Rome, the experiences of early modern Europe, and the centuries-long process by which Englishmen resisted authoritarian government and memorialized their victories in written documents.
Second: Nearly all the Framers had been given full authority by the states they represented to propose a new system to replace the Articles of Confederation.
Third: By historical standards, the ratification of the Constitution was an extraordinarily democratic process. While certainly not as inclusive as 21st century elections, it was much more democratic than commonly realized. Participants included not just the well-to-do, but also people of very limited means. In some states, participants included women and free African Americans.
Fourth: The Constitution is a superbly-crafted legal document. While the Framers made a few drafting errors (mostly since corrected by amendments), the majority of modern criticisms of the Constitution’s wording are based on ignorance. For example, provisions that some modern writers claim are vague or meaningless were standard phrases of 18th century law with understood content.
Fifth: Contrary to the thinly-researched assertions of some writers, the Founders believed the Constitution should be interpreted according to the understanding of the ratifiers. If the ratifiers’ understanding of a particular clause was unclear, then the Founders would have us interpret the instrument according to its original public meaning.
Sixth: All of this matters. The Constitution provided the balance of freedom and order necessary to enable America to take the lead in creating the modern world. The critical period extended from the Founding until just before World War II—the time frame in which the Constitution’s restrictions on federal power were generally honored. Most subsequent progress rests on advances made during that creative period. This was also the era when slavery finally ended and women were emancipated.
Without the Constitution, we might still be living short lives . . . in dark and drafty houses. . . . traveling on horseback. . . milking cows by hand. . . and reckoning our accounts with quill pens by candlelight.
And some of us might still be slaves.