When last we left our hero, we had looked at two ideas from current philosophy of language and epistemology. "Knowledge," the central concern of epistemologists, constrains permissible assertion and supplies the goal of those in a position to speak to issues. Those who speak about the Constitution should stick to what they know, but also not neglect relevant sources of knowledge. Neglecting sources of information relevant to constitutionality is the level 1 too-passive error, while forging ahead with assertions about the Constitution amid ignorance of relevant details is the level 5 too-active error. Between these two errors lie different assessments of the stakes in judicial review, and so of the level of proof required for "knowledge" in that context, because knowledge (and thus permissible assertibility) are stakes-sensitive. This part of our activismometer is really a spectrum, but I assign the three conventional options for burdens of proof--beyond a reasonable doubt, clear and convincing evidence, and preponderance of evidence--to levels 2, 3, and 4, respectively. Here's the cheesy picture.
I should say again what I said briefly in part I: while I take these norms from contemporary philosophy, they are properly applied to judicial exercises of power only if (for the federal courts) they accurately reflect "judicial power" in Article III. Resolving that issue properly would require, for me, a careful canvass of early evidence to see if the Marburian "province and duty ... to say what the law is" is properly seen as the sort of assertion governed by the norms contemporary philosophers apply to assertions. Philosophers have ideas about how language works and how language ought to work, and other things being equal and in the absence of reason to think otherwise, we can assume that their ideas probably match how constitutional language works and ought to work, but historical investigation would be required to nail down the point fully. We can generally rely on philosophers to produce distinctions that are coherent, relatively free of conceptual confusion, and as clear as they can reasonbly be made. But whether those distinctions describe the actual Constitution and the methods proper to its enforcement are further issues.
That said, let's look at some examples. The easiest ones are in the middle: examples of beyond-a-reasonable-doubt, clear-and-convincing, and preponderance-of-the-evidence standards for judicial review. The level-2-activist strike-down-statutes-only-if-unconstitutional-beyond-a-reasonable-doubt standard is articulated in Bushrod Washington's separate opinion (one of several seriatim opinions, with Marshall in dissent for 3 justices on the basic issue) in Ogden v. Saunders (1827):
It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body by which any law is passed to presume in favor of its validity until its violation of the Constitution is proved beyond all reasonable doubt.
Washington claims that "[t]his has always been the language of this Court when that subject has called for its decision," but without citation, and a bit of investigation turns up no obvious earlier cases. [Update: David Upham points out Commonwealth ex rel. O'Hara v. Smith, 4 Binn. 117, 123 (Pa. 1811): "It must be remembered however, that for weighty reasons, it has been assumed as a principle in construing constitutions, by the Supreme Court of the United States, by this court, and every other court of reputation in the United States, that an act of the legislature is not to be declared void, unless the violation of the constitution is so manifest as to leave no room for reasonable doubt." As with Washington, the big talk isn't matched with citations, but it seems likely there are still-earlier cases the court has in mind, though they may be phrased differently. David also mentions this intriguing comment in Judge Haywood's separate opinion in Hartley v. United States, 4 Tenn. 45, 52 (1816): "It is as much the duty of a judge to cause his judgment to be carried into effect when he has no reasonable doubt pressing on his mind, as it is to suspend it when he has, and I can not say that my mind is affected with any reasonable doubt." The context seems to be the extent of the presumption of constitutionality, but that matter is not itself free from doubt.]
A level-3 clear-and-convincing standard for activism is exemplified by Marshall's opinion in Fletcher v. Peck (1810):
The question whether a law be void for its repugnancy to the Constitution is, at all times, a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubtful case. The court, when impelled by duty to render such a judgment, would be unworthy of its station could it be unmindful of the solemn obligations which that station imposes. But it is not on slight implication and vague conjecture that the Legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the Constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other.
I should add an interpretive point here: there is a difference between a judge saying that he will not speak in the name of the Constitution in a "doubtful case" (Marshall's language in Fletcher) and saying that the Constitution's conflict with a statute must be shown "beyond all reasonable doubt" (Washington's language in Ogden). The latter suggests a hypothetical inquiry--could a reasonable person disagree?--while the former suggests an inquiry into actual doubts by the judge at issue: "the judge" is the one who must "feel a clear and strong conviction of their incompatibility."
Level 4 activism is advocated particularly clearly by Steven Calabresi:
Since judgments of constitutionality are made by all three branches of the federal government acting together, a law that arrives in court with the imprimatur of two of the three branches should be presumed constitutional. And, the courts should be restrained in striking the law down except where it appears by a preponderance of the evidence to conflict with the Constitution. I would not go as far as James Bradley Thayer and invalidate only laws that are clearly and beyond a reasonable doubt unconstitutional. But I do think the burden of proof lies on those who are challenging the constitutionality of a law or of an executive action.
What of levels 1 and 5, too-passive and too-active breaches of the knowledge norm of assertion? To ease the suspense, the level-1 example I have in mind is O'Gorman & Young v. Hartford Fire Insurance (1931), but the explanation will have to wait for a later installment.
Level-5 errors are confessions of ignorance on critical facts coupled with the use of judicial power to strike down statutes. Justice Jackson's famous 1952 Youngstown concurrence claimed that the original history of executive and legislative power was just too enigmatic to be helpful:
A judge, like an executive adviser, may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves. Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. A century and a half of partisan debate and scholarly speculation yields no net result, but only supplies more or less apt quotations from respected sources on each side of any question. They largely cancel each other.
Note that Jackson does not begin by rejecting the relevance of originalist evidence: he says that the original history would have genuine "authority" over his decision if it were clear enough. He then moves on to consider other rationales for his decision only because the historical materials (and later cases as well) were not clear enough. But insufficient clarity regardingly matters that would be authoritative if they were clear is simply ignorance of relevant considerations. And if knowledge is a genuine norm of assertion--that is, if level 5 is too high on our activismometer--ignorance of the relevant considerations should end the issue; Truman's actions should have been allowed, absent sufficient knowledge that the actual Constitution forbade them. The alternative, of course, is to dig into the Helvidius/Pacificus debates and other relevant material, but unless Jackson is willing to do that, he should either (a) explain why that material is irrelevant, i.e., why his initial inclination is wrong, or (b) refrain from making assertions about the Constitution contrary to Truman's.
[2/8 update: Matt Estrin writes to suggest an alternative Level-4 interpretation of Jackson's reasoning. If Jackson genuinely thinks that the historical materials are, not merely enigmatic, but genuinely in equipoise, then if he is searching for the preponderance of evidence, even the slightest bit of evidence from other sources would be enough to tip the balance. Given his complete lack of engagement with the history, Jackson certainly wouldn't be justified in claiming that the evidence is in equipoise, but he also doesn't even seem to be claiming that. Rather, he asserts that it is too hard for him to tell how much historical evidence there is on either side of the debate. Turning to other considerations because considerations initially thought to be authoritative are too difficult to assess seems closely akin to looking for dropped car keys under the lamp post instead of the place where the keys were dropped because that's where the light is best.]
I'm already a good bit over 1000 words, so I'll leave it at that for now. In future installments: a few more level-5 errors and my take on O'Gorman.
Michael Greve is not enthusiastic about the D.C. Circuit's recess appointments decision. Let me just make two quick responses here. Michael says
I’m not a great fan of hanging too much on definite or indefinite article (“the,” “a”), for statutory or even constitutional purposes. The court’s opinion looks a tad doctrinaire, and it upsets recess appointment arrangements that have been common for many, many decades (although not, Judge Sentelle trenchantly notes, the first several decades of constitutional practice).
First, while the court relied on "the recess of the Senate," my article did not place much, if any, reliance on that aspect of the language. The recess of the Senate in my view is somewhat ambiguous -- it could simply refer to the state of the Senate being in recess. But there are many additional strong reasons to reject the view that allows intrasession recess appointments. That said, I don't really see why one would ignore the definite article in interpretation generally. The framers of provisions used language and we can't just ignore the rules and practices of that language.
Second, it is true that the decision upsets arrangements that have been common for many decades, but so what? Are there any significant reliance interests at stake in this area? No. Lets repeat that -- NO. So why follow modern interpretations that are inconsistent with the senatorial check that the Constitution places on the President?
(Cross posted at the Liberty Law Blog)
Some Justices like to assert, or pretend, that the Constitution has a single meaning, and that each case thus has only one correct resolution. This view is especially pronounced among conservatives, who, in recent years, have claimed that they can identify the original intent of the framers and use their eighteenth-century wisdom to resolve any modern controversy.
Perhaps some dumbing down is needed for readers of The New Yorker but surely it isn't hard to describe originalism accurately. Originalism's proponents on the Court (and in the academy) don't seek to "identify the original intent of the framers" because (a) their focus is on original public meaning not intent and (b) the framers' views/intent are not decisive in determining that meaning. Moreover, it takes a remarkable obtuseness to conclude that originalists believe eighteenth-century meaning can "resolve any modern controversy." Just the opposite: originalists often say that the Constitution is entirely silent on an issue presented--abortion, say--and resolution of it must therefore be left to the political process.
(An aside: I agree with Professor Mazzone regarding Toobin's description of originalism, but it's a minor point in what seemed an otherwise reasonable column about the role of political movements in shaping Supreme Court doctrines and outcomes.)
UPDATE: Brad DeLong has a brief comment: The fact that "originalists" are now embarrassed by the phrase "original intent" doesn't mean the rest of us have to pretend. Pejman Yousefzadeh replies at length to DeLong: The fact that Brad DeLong doesn't understand conservative jurisprudence doesn't mean that the rest of us have to pretend.
There will no doubt be charges that the D.C. Circuit’s Noel Canning decision holding that President Obama’s recess appointments to the NLRB is unconstitutional was a partisan decision. But the charge is baseless.
It is true that the D.C. Circuit panel of judges were all appointed by Republican Presidents. And, of course, the Recess Appointments were by Democrat Barack Obama to promote liberal policies on the NLRB.
But that is a short-sighted way to view the decision. First, the decision, if it stands, will operate to constrain the powers of Presidents of both parties. Second, the decision is a constraint on Presidents, which is a position that liberals have adopted in the last 50 years more than conservatives.
And, of course, the proof is in the pudding. Prior to Judge Sentelle’s decision, the only judicial opinion to adopt the same position was written by liberal 11th Circuit Judge Rosemary Barkett, following a brief filed for Ted Kennedy by liberal Marty Lederman.
(Cross Posted at the Liberty Law Blog)
As a new feature this year, this blog will begin tracking newly published issues of major law reviews for scholarship of potential originalism interest. Until now, we have relied principally on SSRN postings to identify new scholarship, and we'll continue to do so, but SSRN has its limitations: not all scholarship is posted there in advance of law review publication, and even for posted articles it does not always reflect the ultimate place of publication or the final as-published version. In a welcome trend, major law reviews are increasingly making their new issues available on-line contemporaneously or roughly contemporaneously with their print versions. As these become available, we'll highlight articles that may be of interest to originalist (or anti-originalist) scholars. To begin --
Darrell A.H. Miller (University of Cincinnati College of Law), Text, History, and Tradition: What the Seventh Amendment Can Teach Us About the Second, 122 Yale L.J. 852 (2013). Abstract:
In District of Columbia v. Heller and McDonald v. City of Chicago, the Supreme Court made seemingly irreconcilable demands on lower courts: evaluate Second Amendment claims through history, avoid balancing, and retain as much regulation as possible. To date, lower courts have been unable to devise a test that satisfies all three of these conditions. Worse, the emerging default candidate, intermediate scrutiny, is a test that many jurists and scholars consider exceedingly manipulable.
This Article argues that courts could look to the Supreme Court’s Seventh Amendment jurisprudence, and in particular the Seventh Amendment’s “historical test,” to help them devise a test for the Second. The historical test relies primarily on analogical reasoning from text, history, and tradition to determine the constitutionality of any given practice or regulation. Yet the historical test is supple enough to respond to the demands of a twenty-first-century judicial system. As such, it provides valuable insights, but also its own set of problems, for those judges and scholars struggling to implement the right to keep and bear arms.
Matthew C. Stephenson (Harvard Law School), Can the President Appoint Principal Executive Officers Without a Senate Confirmation Vote?, 122 Yale L.J. 940 (2013). Abstract:
It is generally assumed that the Constitution requires the Senate to vote to confirm the President’s nominees to principal federal offices. This Essay argues, to the contrary, that when the President nominates an individual to a principal executive branch position, the Senate’s failure to act on the nomination within a reasonable period of time can and should be construed as providing the Senate’s tacit or implied advice and consent to the appointment. On this understanding, although the Senate can always withhold its constitutionally required consent by voting against a nominee, the Senate cannot withhold its consent indefinitely through the expedient of failing to vote on the nominee one way or the other. Although this proposal seems radical, and certainly would upset longstanding assumptions, the Essay argues that this reading of the Appointments Clause would not contravene the constitutional text, structure, or history. The Essay further argues that, at least under some circumstances, reading the Constitution to construe Senate inaction as implied consent to an appointment would have desirable consequences in light of deteriorating norms of Senate collegiality and of prompt action on presidential nominations
Andrew Hyman comments regarding my 27A post:
For my part, I'm not sure that's the right reading of Howard's introduction of the 14A to the Senate, but Andrew helpfully reminds me of another way to read famous page 2765 of the Congressional Globe. I'm also not sure why the Establishment Clause rights of taxpayers should be greater than their 27A rights. Many regard the lack of distinction between the Establishment Clause and other rights as a reductio of Flast, of course.
In a recent blog post titled “27A Incorporation”, Chris Green asked: “If ‘privileges or immunities of citizens of the United States’ in the 14A just means ‘privileges given in the Constitution' … would a state pay increase given to legislators without an intervening election violate the Privileges or Immunities Clause?” I say no, for at least two reasons.
First, historically speaking, a right was not originally considered a “privilege” belonging to citizens unless citizens could vindicate that right (e.g. see page 1188 of this law review article by Rob Natelson). Citizens normally have no standing to sue as taxpayers, except regarding certain Establishment Clause issues (see Flast v. Cohen, 392 U.S. 83 (1968)). No vindication right, so no privilege.
I’m not saying that no one on Earth could sue regarding a pay increase without intervening election, but rather am saying only that Joe taxpayer very probably could not. A member of Congress would have a much stronger case for standing, and in fact the current Speaker of the House, John Boehner, is a case in point. When he sued, then-Judge Ruth Bader Ginsburg agreed with Boehner that he was injured even though he was protesting a pay increase rather than a pay decrease. The increase made Boehner look bad in the eyes of his constituents, said Boehner and Ginsburg (see Boehner v. Anderson, 30 F.3d 156 (1994)).
My second reason for answering "no" to Chris's question is that constitutionally-protected privileges and immunities (under both Article IV and Amendment 14) have always been limited to those which are “fundamental guarantees”, as Senator Jacob Howard put it when he introduced the Fourteenth Amendment in Congress. The U.S. Supreme Court has said the same thing about Article IV. I doubt whether the 27thAmendment confers a right that is any more fundamental than, say, the Seventh Amendment, which has never been considered fundamental by the U.S. Supreme Court. And note that Senator Howard was among those who believed that “privileges or immunities of citizens of the United States” in the 14A just means “privileges given in the Constitution”. Indeed, every single privilege that he described was one that he suspected was already a constitutional restraint upon the federal government, though he acknowledged that SCOTUS had not yet confirmed his suspicion.
Anyhow, each of these two reasons standing alone should be sufficient to answer Chris's interesting question. There may be other reasons that have not popped into my head.
It was quite gratifying to see the D.C. Circuit’s Recess Appointment decision on Friday, which held President Obama’s recent recess appointments to the NLRB to be unconstitutional.
Back in 2003-2004 when I first started researching the Recess Appointments Clause, I thought I would write a piece defending the interpretation of the Clause that I had learned at the Office of Legal Counsel. Under that view, the President had significant – and I would now say largely unconstrained – power to recess appointment individuals when the Senate was not in session.
But as I read the Clause and looked into the history, I quickly became convinced that the OLC interpretation was seriously mistaken. I started writing an article that argued that the modern interpretation of the Clause was wrong in two significant respects. First, I argued that recess appointments could be made only when the vacancy arose during the recess when the President was making the recess appointment. Significantly, if the vacancy existed when the Senate was in session – as virtually all vacancies for which the President now makes recess appointments do – the President could not make the recess appointment.
Second, I argued that recess appointments could only be made during an intersession recess – the recess between the sessions of Congress. They could not be made during an intrasession recess – a so-called recess during a session of Congress – which is actually not what the Constitution calls a recess, but instead an adjournment.
Eventually, the article was published as the Original Meaning of the Recess Appointments Clause. I have defended this position in various blog posts, including here and here.
Back when I was writing the article, almost no one adopted either of these interpretations. Two circuits (the 2nd and Ninth) had rejected challenges to recess appointments and OLC assumed its position stated the original meaning. Soon thereafter, however, things began to change. While the 11th Circuit again rejected a challenge to recess appointments, one judge – Rosemary Barkett, following the brief filed by Marty Lederman for Ted Kennedy – adopted the original meaning of the Clause (on both grounds I discussed above) in dissent. Still, no courts were on board and virtually no scholars in print.
But things have changed. On Friday, the D.C. Circuit unanimously held unconstitutional President Obama’s recent appointments that were based under the modern interpretation of the Clause. All three members of the Court embraced both of the interpretations I mentioned above (although the third judge did not believe that both interpretations needed to be reached).
(Cross posted at the Liberty Law Blog)
There are lots of great points in the post, but I was especially struck by this one:
If your view of our constitutional structure is that Congress and the President acting together lack the authority to abolish the death penalty at the state level, but that the Senate and President can do so as long as they find another country willing to agree to it by treaty, I want to suggest that there is something wrong with your view.
I think that is my view, so let me say briefly why I think there's nothing wrong with it. (A longer explanation is here).
First, that's exactly what the Constitution's text indicates. Per Article I, Section 1, Congress' lawmaking power is textually limited to the "legislative powers herein granted" (mainly those listed in Article I, Section 8). In contrast, there is no textual subject-matter limitation on the President's power "to ... make treaties, provided two thirds of the Senators present concur." (I accept that to be a true "treaty" the agreement must be on a matter of international concern, and not a mere pretext; but the death penalty today is -- rightly or wrongly -- a matter of international concern). People who want to find a subject matter limitation on the treaty power have to invoke a structural imperative, not constitutional text, because there is no text.
Second, there also is no structural imperative. Federalism does not require a subject-matter limitation on the treatymaking power. It's perfectly plausible to design a structure in which two-thirds of the Senate can do something a majority of both Houses cannot. Even today, there is a world of difference between getting a bare majority to agree to something and getting two-thirds to agree. (Just ask the proponents of the Convention on the Rights of Persons with Disabilities). Under the original design, in matters of federalism the difference was much greater. By Article I, Section 3, of the original Constitution, Senators were appointed by the States. Thus, in effect, a treaty required approval of two-thirds of the representatives of the States (as it did, roughly, under the Articles of Confederation). Under that structure, threats to federalism from the treatymaking power were much less than threats to federalism from the lawmaking power.
As a result, the need to protect federalism does not require us to read into the Constitution a subject-matter limitation on the treatymaking power that does not exist in the text. The original Constitution's limit on the treatymaking power was not based on subject-matter; instead, it was based on the role and composition of the Senate. (And, as an aside, that may well be a better limit -- because the effectiveness of a subject-matter limitation depends on the willingness of the Supreme Court to enforce it).
Of course, the structural protection on which I'm relying was drastically altered by the Seventeenth Amendment, which made Senators directly elected rather than appointed by the States. But that at most raises a policy-based objection to the Seventeenth Amendment; it doesn't raise questions about the original meaning of the treatymaking clause, which the Seventeenth Amendment didn't change. And even after the Seventeenth Amendment, it still tends to be harder to get two-thirds approval of one House than to get a bare majority in both.
This, then, is my answer to the conundrum Professor Bradley poses. It makes sense to think to think that the President plus two-thirds of the Senate can be more intrusive on the states (for example, regarding the death penalty) than the President plus a majority of both houses. It makes even more sense to think that the framers thought so, for their Senate was in effect selected by the States. The contrary view arises from thinking too much in terms of judicial protections of federalism and not enough in terms of structural and institutional protections.