« The Moment of Truth for Liberal Judicial Restraint
Michael Ramsey
| Main | Alan Meese on Targeted Killing
Michael Ramsey
»

06/05/2012

Mark Tushnet's Erroneous Critique of Chapman & McConnell
Kurt Lash

[Note:  for this post we welcome guest blogger Kurt Lash, Alumni Distinguished Professor of Law and Director of the Program on Constitutional Theory, History and Law at the University of Illinois Law School.  --Mike Ramsey]

In a recent post at Balkinization, Mark Tushnet took aim at a recent essay in the Yale Law Journal by Michael McConnell and Nathan Chapman entitled “Due Process as Separation of Powers” (discussed here on this blog not too long ago).  Mark’s criticism is serious enough that I believe it deserves an extended response (and not simply because it obliquely involves my own work!).

In their essay, McConnell and Chapman discuss Justice Chase’s apparent reference to natural rights in Calder v. Bull: “To maintain that our Federal, or State, Legislature possesses such powers, if they had not been expressly restrained; would, in my opinion, be a political heresy, altogether inadmissible in our free republican governments.”

According to McConnell and Chapman:

Chase's dictum has often been cited as evidence of his willingness to go beyond the strictures of the written Constitution, and apply unwritten general principles of reason or natural law to state enactments, contrary to the Tenth Amendment, in the name of the United States Constitution. Some of his language certainly points in that direction. The key sentence is this: “To maintain that our Federal, or State, Legislature possesses such powers, if they had not been expressly restrained; would, in my opinion, be a political heresy, altogether inadmissible in our free republican governments.” [citing Calder] Modern interpreters read this to say that these constitutional limitations would exist even if there were no express restraints such as the Ex Post Facto, Due Process, or Contracts Clauses. [citing Currie] Actually, in light of Blackstonian equitable interpretive vocabulary, his point was different: that the legislature should not be “presumed” to act contrary to these principles. [citing Kurt T. Lash, The Lost Original Meaning of the Ninth Amendment, 83 Tex. L. Rev. 331,403-06 (2004) (rejecting the common claim that Calder is properly viewed as allowing judicial invalidation of state laws abridging natural rights).]

In his review of the essay, Mark accuses McConnell and Chapman of unjustifiably pairing different parts of Chase's opinion:

The Essay has a discussion of Justice Samuel Chase's opinion in Calder v. Bull. It quotes what the authors call the "key sentence": "To maintain that our Federal, or State, Legislatures possesses such powers ... would, in my opinion, be a political heresy, altogether inadmissible in our free republican governments." The authors continue, "Modern interpreters read this to say that these constitutional limitations would exist even if there were no express restraints. ..." But, they say, this is mistaken because another sentence in the opinion indicates that Chase's "point was different: that the legislature should not be 'presumed' to act contrary to these principles."

I apologize for the detail, but it's necessary to make a point about law review citation practices. I had thought that "sub-citing" meant not merely checking to see that the words quoted were actually on the pages cited, but meant "substantive" checking -- that is, checking to see that the words quoted actually supported the proposition asserted in the text. Here, though, the "presumed" citation refers to something five pages after the "key sentence," and the material is not naturally read as the authors suggest, to refer back to that sentence. Now, I'm not a prude about how one can use cases and the words in them, but I would have thought that a decent sub-citer would have asked the authors to lay out the reasoning connecting the citation to page 394 to the key sentence on pages 388-89. (My guess is that we're dealing here with authorial power and perhaps sunk costs: "Publish this as is, or I'll withdraw it.")

Presented in what Mark may think is a light-hearted manner, the accusation is fairly sharp.  He accuses the authors  (who readers will know or easily discover from the quotes) of wresting a quote out of context and pairing it with material five pages away without alerting the reader and justifying the juxtaposition. This is a surprising accusation from a scholar of Mark’s caliber.  Surprising because it is so clearly erroneous.

McConnell and Chapman do not rely on Chase’s discussion of judicial presumptions—a discussion that does, in fact, come five pages later.  McConnell and Chapman expressly rely on my work in support of their claim that Chase was applying a presumptive rule of interpretation, not invoking a principle of natural law.  If Mark had investigated the actual cite (which a student editor would have done), he would have discovered that the evidence discussed at the pinpoint cite to my article expressly supports McConnell and Chapman’s claim.

In my article, I simply let Chase himself explain that his considerations of natural law go only to the application of a presumptive rule of statutory construction. So, here is the full passage from Calder v. Bull:

Whether the Legislature of any of the States can revise and correct by law, a decision of any of its Courts of Justice, although not prohibited by the Constitution of the State, is a question of very great importance, and not necessary NOW to be determined; because the resolution or law in question does not go so far. I cannot subscribe to the omnipotence of a State Legislature, or that it is absolute and without control; although its authority should not be expressly restrained by the Constitution, or fundamental law, of the State. The people of the United States erected their Constitutions, or forms of government, to establish justice, to promote the general welfare, to secure the blessings of liberty; and to protect their persons and property from violence. The purposes for which men enter into society will determine the nature and terms of the social compact; and as they are the foundation of the legislative power, they will decide what are the proper objects of it: The nature, and ends of legislative power will limit the exercise of it. This fundamental principle flows from the very nature of our free Republican governments, that no man should be compelled to do what the laws do not require; nor to refrain from acts which the laws permit. There are acts which the Federal, or State, Legislature cannot do, without exceeding their authority. There are certain vital principles in our free Republican governments, which will determine and over-rule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty, or private property, for the protection whereof of the government was established. An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority. The obligation of a law in governments established on express compact, and on republican principles, must be determined by the nature of the power, on which it is founded. A few instances will suffice to explain what I mean. A law that punished a citizen for an innocent action, or, in other words, for an act, which, when done, was in violation of no existing law; a law that destroys, or impairs, the lawful private contracts of citizens; a law that makes a man a Judge in his own cause; or a law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it. The genius, the nature, and the spirit, of our State Governments, amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them. The Legislature may enjoin, permit, forbid, and punish; they may declare new crimes; and establish rules of conduct for all its citizens in future cases; they may command what is right, and prohibit what is wrong; but they cannot change innocence into guilt; or punish innocence as a crime; or violate the right of an antecedent lawful private contract; or the right of private property. To maintain that our Federal, or State, Legislature possesses such powers, if they had not been expressly restrained; would,  in my opinion, be a political heresy, altogether inadmissible in our free republican governments.

As bolded above, Chase himself couches his thoughts about natural law in a presumptive rule of statutory construction--and does so in the same paragraph.  Chase's approach leaves state legislatures fully free to commit “political heresy." Chase simply will not presume they have done so.  In fact, Chase expressly leaves all matters not expressly delegated to federal authority to the exclusive control of the states.  In the passage that opens the opinion (which scholars generally ignore), Chase declares: 

It appears to me a self-evident proposition, that the several State Legislatures retain all the powers of legislation, delegated to them by the State Constitutions; which are not expressly taken away by the Constitution of the United States. The establishing courts of justice, the appointment of Judges, and the making regulations for the administration of justice, within each State, according to its laws, on all subjects not entrusted to the Federal Government, appears to me to be the peculiar and exclusive province, and duty of the State Legislatures: All the powers delegated by the people of the United States to the Federal Government are defined, and no constructive powers can be exercised by it, and all the powers that remain in the State Governments are indefinite; except only in the Constitution of Massachusetts.

It is possible that Mark Tushnet views the “political heresy” sentence of Calder as supporting judicial power to invoke principles of natural law against offending state legislation, and so demands strong proof that this is not the case.  This is a common view of that particular sentence in Calder, but it stands in obvious tension with the rest of the paragraph and with the full opinion. Regardless of Mark’s actual views of Calder, he has accused McConnell and Chapman of unjustifiably pairing material five pages apart, and he suggests that student editors were either negligent or were pressured into letting a flawed effort go to print.  He’s wrong on both points. 

MIKE RAMSEY ADDS:  Professor Lash objects to the second point in Professor Tushnet's post titled The Practices of Law Reviews.  If you've had the pleasure of submitting articles to law reviews, it's also worth reading Professor Tushnet's first point, which has nothing to do with originalism but is amusing nonetheless.

CORRECTION:  This post has been corrected to reflect that Professor McConnell's co-author is Nathan Chapman, not Stephen Chapman.  Apologies.