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46 posts from October 2012


What Libertarians Think About the U.S. Constitution Part II: Strengthening the Federal Government
Mike Rappaport

In my last post, I discussed Jason Brennan’s views of constitutionalism.  Here, I want to address Jason’s claim that the U.S. Constitution was not intended to protect liberty but national power.  I am not sure exactly what the Philadelphia Convention “intended.”  But one obvious possibility here – in fact the one that the Federalists claimed they were pursuing – was that they were strengthening the federal government in order to promote liberty.  Strangely, Jason does not discuss this possibility.

One possible basis for Jason’s attitude – one that he does not embrace explicitly – is that any additional power given to the federal government takes away from the liberty of the people.  Many libertarians have adopted this view.  Murray Rothbard, for example, argued that the Articles of Confederation were better than the Constitution and had they continued we would have seen a further decentralization toward an even more libertarian society.

But such a necessary opposition between liberty and national power betrays something of a confusion.  While greater national power can sometimes result in less liberty – witness the New Deal – it can also result in greater liberty.  The Federalists made a strong case for this argument in the Federalist Papers that I think is worth remembering.

There are two significant ways that the stronger federal government of the Constitution promoted liberty.  First, such a union government made a war between the states much less likely.  The Federalists noted that the countries of Europe had fought repeated wars against one another.  By contrast, once England and Scotland merged, Britain was able to maintain peace on its island and could use its waters as a natural defense against invaders.  As a result, it did not need standing armies, which was an additional protection of liberty.  Had the Articles remained, there was a significant change the union would have broke up, and the different states might have fought wars with one another.  The union established by the Constitution made that much less likely, until the issue of slavery resulted in the Civil War.  The union also allowed the U.S. to better defend itself against potential foreign invaders.

Second, the ideal national government involves a situation where the constitution sets up a limited national government that prevents states from establishing trade restrictions and passing protectionist legislation.  It would also set up a system of competition between the states, so that people and capital could move to states with the most favorable laws.  The U.S. Constitution moved significantly toward a system of this type.

Having a stronger national government of this type is one of the ways in the real world that liberty has actually been protected.  While the U.S. Constitution was by no means perfect, it was a significant improvement over the Articles.

Next time, I want to address Jason’s discussion of Shays rebellion and add one additional way that a stronger national government can protect liberty.

Ilya Somin: The Individual Mandate and the Proper Meaning of "Proper"
Michael Ramsey

Ilya Somin (George Mason University School of Law) has posted The Individual Mandate and the Proper Meaning of "Proper" (The Health Care Case: The Supreme Courts Decision and its Implications, Gillian Metzger, Trevor Morrison, and Nathaniel Persily, eds., Oxford University Press, forthcoming) on SSRN.  Here is the abstract:

The Necessary and Proper Clause of the Constitution has often been at the center of debates over the limits of federal power. But in the first 220 years of its history, the Supreme Court never gave us anything approaching a comprehensive analysis of what it means for a law to be “proper.” The Court’s recent decision on the constitutionality of the Affordable Care Act individual health insurance mandate in NFIB v. Sebelius helps fill this gap. It moves constitutional jurisprudence closer to the proper meaning of proper.

In this article, I explain why Chief Justice John Roberts’ key swing-vote opinion was right to conclude that the individual health insurance mandate requiring most Americans to purchase government-approved health insurance is outside the scope of Congress’ power under the Necessary and Proper Clause, because it is not "proper."

Part I shows that the Necessary and Proper Clause compels laws authorized by the Clause to meet two separate requirements: necessity and propriety. Both the original meaning of the Clause and Supreme Court precedent support this interpretation. The Necessary and Proper Clause cannot be reduced to a mere “Necessary Clause” that renders the word “proper” meaningless.

Part II argues that the individual health insurance mandate is improper because upholding it under the Clause would have given Congress virtually unlimited power to impose other mandates, and also render large parts of the rest of Article I redundant. This is consistent with a relatively minimalistic reading of the word “proper.” I consider and reject various attempts to prove that the health insurance mandate is a special case different from other mandates. I also briefly discuss a broader interpretation of the Clause: that the power to impose mandates on the general population is not a power “incidental” to Congress’ other enumerated powers, but rather a major independent power of its own. Both the minimalistic and broad interpretations of “proper” lead to the same conclusion in the mandate case.

Finally, Part III briefly discusses the possible future implications of Roberts’ interpretation of propriety. Here, much depends on the future composition of the Supreme Court and other contingent factors. There is also an ongoing debate over whether the Chief Justice’s Necessary and Proper reasoning is mere dictum that does not bind lower courts. But it is possible that the ruling will have a noteworthy impact in curtailing future federal mandates. Future courts might also build on the NFIB’s interpretation of “proper” as a tool for incrementally strengthening limits on federal power.


A Follow-up on Clapper v. Amnesty International
Michael Ramsey

Rochelle Bobroff at the Constitutional Accountability Center has this post on Clapper v. Amnesty International, the standing case argued to the Supreme Court yesterday: Clapper and the Constitutional Role of the Federal Judiciary.  In part:

The parties’ briefing in Clapper v. Amnesty International USA appropriately focuses on whether the complex facts of this case meet the Supreme Court’s equally complex doctrinal criteria for according individuals "standing" to bring suit. But two amicus curiae briefs – one filed by the Constitutional Accountability Center (CAC) supporting the plaintiffs seeking standing, and the other filed by the Washington Legal Foundation (WLF) on behalf of six former Attorneys General opposing standing – highlight competing visions of the constitutional role of the federal judiciary, the big issue at the heart of the case, lurking behind the surface technicalities.


WLF’s brief contends that Article III of the Constitution, which establishes judicial review, has a "gatekeeping role" and "protects against judicial overreach and unwarranted litigation" – i.e., Article III is primarily aimed at keeping people and valid constitutional claims out of court, rather than letting these claims be decided in court.. Yet, as CAC’s brief demonstrates, WLF’s interpretation of Article III has very little basis in the text or history of the Constitution. The words of Article III express no worry about the courts trampling on the executive and legislative branches. To the contrary, Article III creates an extensive role for the judiciary in reviewing the constitutionality of federal laws passed by Congress and signed by the President.

The Washington Legal Foundation brief is here.

The Constitutional Accountability Center brief is here.

(Thanks to Doug Pennington at CAC for the pointer).

On the other hand, Orin Kerr says the standing issue in Clapper may be a red herring.

Eugene Kontorovich on the Piracy Cases
Michael Ramsey

Eugene Kontorovich (Northwestern University Law School) --  without exaggeration the nation's leading academic expert on piracy law -- sends these additional thoughts on the Somali pirates cases:

1.  The piracy statute has been revised numerous times since 1790, most substantively in 1820, but also up through 1907 (the latter revisions dealing solely with penalties).

2.  I agree the law of nations in the statute tracks the external law of nations, but this raises common law crimes concerns. Indeed, this is why Congress was giving the job of "defining" piracies and offenses, because international law is too vague. This was explicit at the Convention. Now that the definition of piracy has expanded far past sea robbery, one might have to revisit Story's holding of US v Smith that everyone knows what piracy is and thus it is self-defining.

3.  For the particular question in the case – do attempts fall within the definition – this entire inquiry is unnecessary, as attempts have always been included, though this is obviously easier to show by reference to the plain terms of UNCLOS than ancient cases and practice.

Point #3 seems like an additional reason the Supreme Court likely won't hear the cases, unfortunately.


Does the Constitution Require That the Vice President Preside at His Own Impeachment Trial?
Mike Rappaport

Mike Ramsey has a post discussing the question of who presides at the impeachment trial of the Vice President.  The Constitution “expressly provides that the Chief Justice, not the Vice President, presides over the Senate's trial of an impeached President (even though ordinarily the Vice President presides over the Senate).  Obviously this exception is made because the Vice President has a personal interest in the question whether the President is removed from office, as the Vice President would then become President.”

But does the Vice President preside at his own impeachment trial, as the constitutional text seems to indicate?  Ramsey disagrees with Akhil Amar, who concludes based on an unwritten principle, that the Vice President doesn't get to decide.  Ramsey argues that we should acknowledge that the Framers made errors and we are stuck with them (as an interpretive matter at least).

I don’t agree with Ramsey here.  My own theory of constitutional interpretation, named original methods originalism, holds that to determine the original meaning of the Constitution we should employ the interpretive rules that the Framers’ generation would have employed.  And one of the widely accepted rules at the time was the absurdity rule, which held that one can depart from the text to avoid an absurdity.  Having the Vice President preside at his own trial would be an absurdity.

What is an absurdity for the Constitution?  Chief Justice Marshall provided what I regard as the best statement in Sturges v. Crowninshield, 17U.S.122, 202  (1819):

Although the spirit of an instrument, especially of a constitution, is to be respected no less than its letter, yet the spirit is to be collected chiefly from its words.  It would be dangerous in the extreme, to infer from extrinsic circumstances, that a case for which the words of an instrument expressly provide, shall be exempted from its operation.  Where words conflict with each other, where the different clauses of an instrument bear upon each other, and would be inconsistent, unless the natural and common import of words be varied, construction becomes necessary, and a departure from the obvious meaning of words, is justifiable.  But if, in any case, the plain meaning of a provision, not contradicted by any other provision in the same instrument, is to be disregarded, because we believe the framers of that instrument could not intend what they say, it must be one in which the absurdity and injustice of applying the provision to the case, would be so monstrous, that all mankind would, without hesitation, unite in rejecting the application.

Marshall, I think, is being a bit colorful here, but the point is clear: to infer that the Framers did not intend what they said, one would have to conclude that nearly everyone would agree that the Vice President should not be able to preside at his own impeachment trial.  (The question is not whether everyone would agree that the plain language should be departed from; rather, that they should agree that it would not make sense to have the Vice President preside at his own trial.)

The requirement that “all mankind, without hesitation, unite in rejecting the application” serves an important function.  If one is going to depart from the plain meaning, then one should have tremendous confidence that the enactors would not have desired that plain meaning.  This high degree of support for not following the plain meaning provides that confidence.  Put differently, the high degree of support prevents judges from departing from the plain meaning to support their own policy preferences when other people in the society would disagree with them.

Given this definition of absurdity, I believe that people at the time would have nearly universally opposed having the Vice President preside at his own impeachment trial.  Not only does it seem obviously inappropriate, but there was also in the law a common maxim that no man should be a judge in his own case.

One doesn't have to believe in an unwritten Constitution to conclude that the Vice President should not preside at his own trial.  Nor does one have to believe that the Framers made no mistakes in the Constitution.  But when one of the textual mistakes is an absurdity, one can depart.

What Libertarians Think About the U.S. Constitution Part I: Some Reflections
Mike Rappaport

Over at the Bleeding Hearts Libertarian Blog, Jason Brennan has a post on “What Libertarians Think about the U.S. Constitution” based on his new book Libertarianism: What Everyone Needs to Know.  Of course, Jason does not speak for all libertarians on this issue, and certainly not for this moderate libertarian.  I plan a couple of posts on Jason’s argument.

I should begin by pointing out that Jason’s criticisms of written constitutions and the U.S. Constitution bring to mind one problem that I have with less moderate libertarians.  They often disparage the good that can be achieved in favor of the ideal that cannot.  Written constitutions, including the U.S. Constitution, have been in the main an important force for liberty, even though they have not been perfect.  Failing to recognize that undervalues what can be secured in the real world and what has been responsible for our liberty.  This turn of thinking brings to mind the abolitionists’s zealous criticism of Abraham Lincoln for not being radical enough.

That said, I agree with some of what Jason says.  Here let me consider a couple of Jason’s points.  First, he argues that while the U.S. Constitution establishes a constitutional democracy, the constitution part is more important than the democracy part.  For a libertarian, there are certain things that even a majority should not be allowed to do.  Well, I certainly agree with that latter claim.  Majority rule has it virtues and vices, and an ideal constitution would limit majority rule to its proper limited sphere.

Significantly, the U.S. Constitution adopted one version of this view.  The democracy part at the federal level was limited through a variety of mechanisms, such as the state selection of Senators, as well as the separation of powers and federalism.  Especially once the Bill of Rights was added, the original Constitution was a mixture of liberty protections and democracy.

Second, Jason bemoans that written constitutions are not self enforcing, pointing to the Soviet Constitution’s inclusion of all kinds of rights but its failure to protect any of them.  This is true and important, but one of the excellences of the U.S. Constitution is that the Framers recognized this problem of “feeble parchment barriers” and took numerous actions to guard against provisions being ignored.  The separation of powers, checks and balances, federalism, a Bill of Rights, judicial review – these were part of the genius of the Constitution, especially for its time.

It is true that over time certain of the U.S. Constitution’s limitations have become less effective.  Federalism was overrun by the New Deal.  On the other hand, other departures from the original meaning by the Supreme Court have actually promoted rights that libertarians would favor.

Probably the worst failure to enforce the Constitution involved the 14th and 15th Amendments.  For many generations these amendments were not given full effect, led to the oppression of blacks who were forced to live under Jim Crow.  Happily, though, these amendment eventually recovered much of their original meaning, which has protected the liberty of minorities and of citizens generally.

Overall, then, I believe that the U.S. Constitution has been of great value, even though it has not been perfect.  Next time, I will turn to Jason’s claim that the U.S. Constitution was not intended to protect liberty but national power.

Clapper v. Amnesty International and the Original Understanding of Standing
Michael Ramsey

Last week Cass Sunstein had a post at Bloomberg accusing Justices Scalia and Thomas of adopting a "moral reading of the Constitution" in a range of areas where they (Sunstein said) have shown a "conspicuous lack of historical curiosity."  (Noted here).  His examples were affirmative action, regulatory takings and commercial speech under the First Amendment.

I've had my say on originalism and affirmative action, so I won't say more.  Professor Sunstein's other two examples seem to me to miss the mark, however.  I would call them instead examples of the originalist Justices following non-originalist precedent. 

In the case of regulatory takings, the idea of a constitutional limit upon regulation under the takings clause dates at least to Justice Holmes' 1922 decision in Pennsylvania Coal Co. v. Mahon: "[W]hen it [a regulation's diminution of property rights] reaches a certain magnitude, in most if not in all cases there must be an exercise of eminent domain and compensation to sustain the act."  The Court reaffirmed that principle in Penn Central Transportation Co. v. New York City in 1978 (it decided against the property owner after applying a balancing test, but it didn't deny the central point from Mahon that a regulation that went too far would be a taking).  While it's true that the originalist Justices have applied that rule without asking whether Mahon was rightly decided, it's hard to see that they've extended it.  The main case is Lucas v. South Carolina Coastal Commission, in which Justice Scalia wrote for the Court to invalidate a regulatory taking.  But he did not go beyond Mahon -- the taking in that case deprived the property owner of all material economic use of the property, which surely exceeded the "certain magnitude" the Court in Mahon thought would trigger a taking.

Similarly, the modern application of the First Amendment to commercial speech dates at least to Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council in 1976 and gained its current doctrinal shape in  Central Hudson Gas v. Public Service Commission of New York in 1980.  While it's true that Justices Scalia and Thomas have taken a fairly aggressive view of those precedents (e.g., in 44 Liquormart Inc. v. Rhode Island in 1996), this field (like regulatory takings) seems better described as originalists applying non-originalist precedent rather than originalists creating new non-originalist rules.  To be sure, Professor Sunstein is right that originalists should have "historical curiosity" about these doctrines, but that hardly makes Scalia and Thomas hypocrites for following them.

Of course, this raises the question of whether and how originalists should apply non-originalist precedent.  Consider this interesting post by Josh Blackman: How should Libertarian Originalists view "departures from the original meaning ... [that] promoted rights Libertarians would favor"?.  While purists might deny that incorrect precedent should ever be followed, most originalists -- including Justice Scalia and, perhaps to a lesser extent, Justice Thomas -- accept precedent as a modifying principle upon originalism.  Professor Sunstein's critique is too simplistic because it does not take into account the Justices' fidelity to non-originalist precedent.

That still doesn't entirely shield Scalia and Thomas from Sunstein's charge, however.  There are areas where Scalia and Thomas have aggressively tried to reverse non-originalist precedent, and others (including, I would say, regulatory takings and commercial speech) where they have been happy to apply the non-originalist precedent they find.  How is this choice made?  A cynic might say that the Justices attack the non-originalist precedent that they dislike on policy grounds (such as Roe v. Wade) and tolerate the non-originalist precedent they agree with (or don't strongly disagree with) on policy grounds.

If that charge is true, it seems a problem.  Especially if one's principal justification of originalism is the rule of law (as Scalia's seems to be), it is troublesome if a Justice's policy-driven agreement or disagreement is a main element in deciding when to give prior cases precedential effect.  There should be a policy-neutral theory of precedent.  Or, to answer Josh Blackman's question, one might say that a libertarian originalist (or any other kind of originalist) should view non-originalist decisions promoting rights that person favors in the same way as he views non-originalist decisions that don't promote favored rights (or promote disfavored rights).  The rule of law demands a policy-neutral theory of precedent.

That, though, may be unrealistic.  My guess is that many, perhaps most, peoples' views of precedent are heavily influenced by their view of the policy merits or de-merits of the prior opinion.  For example, I expect that most people think Plessy v. Ferguson, the 1896 separate-but-equal case, was properly overruled in Brown v. Board of Education precisely because Plessy was such an appalling case on policy grounds.  But if that's true, then Justices Scalia and Thomas may be less easily criticized for following non-originalist precedents they like and attacking those they don't (if, in fact, that's what they are doing).

All of this is a round-about approach to today's oral argument at the Supreme Court in Clapper v. Amnesty International USA (SCOTUSBlog analysis here).  The question there is whether the plaintiffs have standing to challenge a U.S. government surveillance program when they are not able to prove that they have been or are likely to be targeted.  The law of standing, I think, is another example of the phenomenon Sunstein highlights: originalist Justices applying a doctrine without discussing its originalist roots.  For example, modern standing law has its conventional doctrinal statement in the 1992 decision Lujan v. Defenders of Wildlife (written by Justice Scalia).  But Lujan doesn't say anything about the historical/originalist foundations of standing.  And arguably, it not only applies prior standing doctrine but extends it (or at least rationalizes it) in a way that further limits access to courts in certain types of cases.

True, the Constitution's text (Article III, Section 2) requires a "Case[]" or "Controvers[y]" to invoke a federal court's jurisdiction.  Advisory opinions are not allowed.  But one would need to go a ways beyond the text to see why the Clapper case isn't a case or controversy.  (There's no doubt, for example, that the parties are adverse and the plaintiffs have a strong commitment to their claim).  Clapper thus raises interesting questions about the original understanding of standing -- and difficult ones, I expect, because my guess is that claims like this simply weren't made in the eighteenth century, so it's hard to know how the Constitution should regard them.  Based on past standing cases, though, it seems likely the Justices won't explore the history -- which in turn raises again the question of when and whether it is appropriate for an originalist Justice to apply a doctrine without considering the adequacy of its original foundation.


Miguel Schor: Contextualizing the Debate between Originalism and the Living Constitution
Michael Ramsey

Miguel Schor (Drake University Law School) has posted "Foreword: Contextualizing the Debate between Originalism and the Living Constitution" (Drake Law Review, Vol. 59, pp. 961-72 (2011)) on SSRN. Here is the abstract: 

One of the most important contemporary constitutional debates is whether the meaning of the Constitution may evolve in light of current circumstances, or whether the Constitution should be interpreted in accordance with how the text was understood by the public that ratified it. The 2011 Drake Constitutional Law Center Symposium addressed this debate by examining Professor David Strauss’s The Living Constitution, which argues the Constitution should be interpreted as a living document using the techniques of the common law. The participants included Keith Whittington, the William Nelson Cromwell Professor of Politics, Princeton University; Rebecca Brown, the Newton Professor of Constitutional Law, University of Southern California; and Will Waluchow, the Senator William McMaster Chair in Constitutional Studies, McMaster University.

This foreword is divided into two parts. Part II briefly contextualizes the debate temporally and spatially. Oddly, scholars have largely ignored the societal and historical context of the debate as well as whether Americans might learn from how constitutional courts abroad deal with analogous interpretive problems. Intellectual debates do not occur in a vacuum, however, but are shaped by wider social and political struggles. Part III summarizes the superb papers presented at the symposium.


Timothy J. Tracey: The Demise of Equal Access and a Return to the Early-American Understanding of Student Rights
Michael Ramsey

Timothy J. Tracey (Ave Maria School of Law) has posted The Demise of Equal Access and a Return to the Early-American Understanding of Student Rights (University of Memphis Law Review, forthcoming) on SSRN. Here is the abstract: 

The U.S. Supreme Court killed off equal access in Christian Legal Society v. Martinez. A religious student group, said Justice Ginsburg, “enjoys no constitutional right to state subvention.” Religious groups may form on university campuses, but they have no right to the “benefits of official recognition” — classrooms, corkboards, and money. No longer can they wield the First Amendment to second-guess the educational decisions of university administrators. University “decisions about the character of [their] student-group program are due decent respect.”

The Martinez decision marks a return to an early-American understanding of student rights. From the enactment of the Bill of Rights in 1791 until the Fifth Circuit’s decision in Dixon v. Alabama State Board of Education in 1961, courts deferred to universities by the doctrine of in loco parentis. Universities stood in the place of students’ parents. Just as courts acceded to parental authority, they acceded to university authority.

The equal access cases renounced this 170-year history of deference to university administrators. Equal access enabled religious groups to override university decisions about what student groups best further the school’s educational mission. This equal access paradigm prevailed at the Supreme Court for over 30 years. Religious groups consistently won the Court’s approval to use the First Amendment to compel university support. But Martinez abandoned equal access with its embrace of a subsidy model for university-student group relations. It freed universities to pick and choose the groups they want to support — even if it means picking secular groups over religious groups. Despite critics’ claims to the contrary, this more deferential posture toward universities is consistent with the original understanding of student rights. Early-Americans had no concept of equal access. In loco parentis controlled. No twisting of history can change that.


Mary Sarah Bilder: How Bad Were the Official Records of the Federal Convention?
Michael Ramsey

Mary Sarah Bilder (Boston College - Law School) has posted How Bad Were the Official Records of the Federal Convention? (George Washington Law Review, Vol. 80, No. 6, 2012) on SSRN.  Here is the abstract:

The official records of the Constitutional Convention of 1787 have been neglected and dismissed by scholars for the last century, largely to due to Max Farrand’s criticisms of both the records and the man responsible for keeping them - Secretary of the Convention William Jackson. This Article disagrees with Farrand’s conclusion that the Convention records were bad, and aims to resurrect the records and Jackson’s reputation. The Article suggests that the endurance of Farrand’s critique arises in part from misinterpretations of certain procedural components of the Convention and failure to appreciate the significance of others, understandable considering the inaccessibility of the official records. The Article also describes the story of the records after the Convention but before they were published, including the physical limbo of the records in the aftermath of the Convention and the eventual deposit of the records in March 1796 amidst the rapid development of disagreements over constitutional interpretation. Finally, the Article offers a few cautionary reflections about the lessons to be drawn from the official records. Particularly, it recommends using caution with Max Farrand’s records, paying increased attention to the procedural context of the Convention, and recognizing that Constitutional interpretation postdated the Constitution.

Via Larry Solum at Legal Theory Blog, who says: "Highly recommended. Download it while it’s hot!"