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46 posts from October 2012


Damon Root on Bork and Libertarian Constitutional Theory
Michael Ramsey

At Reason.com, Damon W. Root: How Robert Bork Changed American Politics (commenting on this essay by Adam White, noted here).


Eugene Volokh on the Twelfth Amendment and Framers' Error
Michael Ramsey

At Volokh Conspiracy, Eugene Volokh: And Sometimes the Framers Erred.  Core observation:

[W]hat happens if no-one gets a majority of the electoral vote, either because three candidates split the electoral vote, because enough electors refuse to vote for the candidate that they were expected to vote for, or because the electoral college splits evenly (today, 269-269)? ... [Under the Twelfth Amendment] the House, voting by states, elects the President, but the Senate, voting by Senators, elects the Vice-President. And, as ABC News notes, the majority of House delegations is Republican, and would thus presumably vote for Romney; this will likely stay this way following the election. But if the Senate majority remains Democratic, then the Senators will presumably vote for Biden. ...

What’s more, this is eminently predictable — by the time the Twelfth Amendment was enacted in 1804, American leaders were well aware that parties would be important, and that Presidential and Vice-Presidential candidates would run on tickets together. Yet the Twelfth Amendment provided for selection of the President and Vice-President by two different processes, which might well yield different results. ...

But it’s still important, I think, that in the event the President dies or becomes disabled, the agenda of the Administration continue without massive interruption — and a sudden, unplanned switch in the middle of a presidential Term from one party to another is likely to be such an interruption. (I’m no historian of the Civil War era, but as I understand it much of the problems that Andrew Johnson faced stemmed from his being of a different party from Abraham Lincoln; the two were elected on a wartime unity ticket.) So the Framers of the Constitution, and then the authors of the Twelfth Amendment, seem to have erred in this respect, though as to circumstances that, admittedly, are quite rare in American history.

That seems right (though I'm not sure how the Amendment would be drafted to produce a better result: perhaps its framers recognized the problem but saw no ready solution).

Professor Volokh's observation reinforces a more basic point: any meaningful theory of interpreting the Constitution must accord with the reality that the document has flaws.  If one's theory of constitutional interpretation doesn't produce at least some results in disputed cases that are distasteful from a policy perspective, then likely its not a theory of interpretation at all (a theory of moral philosophy or public policy perhaps, but not of interpretation, because it's not bound by the document in any meaningful way).

From this perspective, consider an opening point in Akhil Amar's recent book America's Unwritten Constitution.  Amar notes that 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, Amar continues, who presides over the Senate when the Vice President is impeached?  The Constitution doesn't say expressly, so does that mean the Vice President presides -- at his own trial?

Amar can't believe this is right, and so finds an unwritten principle that no one can be the judge of one's own case.  That's reflected expressly in the provision regarding trials of the President, but Amar thinks it holds as well (indeed, even more so) in trials of the Vice President.

Well, maybe ... but the idea of founding error provides a simpler solution.  Most likely, the drafters overlooked the situation.  That's what the text indicates.  True, the framers had a general idea that, as a matter of public policy, no one should be a judge in a case where they have an overriding personal interest.  To implement that view, the framers made a specific exception for trials of the President; the need for an exception for trials of the Vice President apparently didn't occur to them, or they would have made a similar exception.  And that's the flawed document we have, because the specific exception, not the general principle, is what's in the text.  A different "interpretation" isn't really an interpretation; it's an attempt at improvement (or, put another way, amendment) -- just as the Twelfth Amendment was itself an attempt at improvement over the even messier provisions of the original Constitution.

FURTHER NOTE:  For an additional Twelfth Amendment conundrum, see this post by Gerard Magliocca at Balkinization.  (My answer: no, as Vice President Joe Biden may not break a tie and vote for himself, for the textual reason stated in one of the comments).


Elizabeth Price Foley and David Rivkin on Federalism
Michael Ramsey

At Instapundit, Elizabeth Price Foley notes her op-ed with David Rivkin in the Wall Street Journal (here, subscription required).  As Professor Foley quotes the article,  

Voters are increasingly focused on the proper role of government in society: Witness the rise of the tea party and unease over the massive debt caused by entitlements and other government handouts. The continuing loud objection to ObamaCare’s takeover of health care shows that voters want to preserve the Constitution’s architecture of limited federal power.

She adds:  "Federalism isn’t about 'states’ rights.'  It’s about dividing power to better protect individual liberty."  Exactly right (again, see Justice Kennedy's opinion for the Court in Bond v. United States).

Richard Posner on Akhil Amar
Michael Ramsey

In The New Republic, Richard Posner: How Many Constitutions Can Liberals Have? (reviewing Akhil Amar, America's Unwritten Constitution: The Precedents and Principles We Live By).  A long and sharply critical review -- from the early part:

There is not just one unwritten constitution, in Amar’s reckoning; there are eleven of them. There is an “implicit” constitution, a “lived” constitution, a “Warrented” constitution (the reference is to Earl Warren), a “doctrinal” constitution, a “symbolic” constitution, a “feminist” constitution, a “Georgian” constitution (the reference is to George Washington), an “institutional” constitution, a “partisan” constitution (the reference is to political parties, which are not mentioned in the written Constitution), a “conscientious” constitution (which, for example, permits judges and jurors to ignore valid law), and an “unfinished” constitution that Amar is busy finishing. All these unwritten constitutions, in Amar’s view, are authoritative. And miraculously, when correctly interpreted, they all cohere, both with each other and with the written Constitution. The sum of the twelve constitutions is the Constitution.

One is tempted to say that this is preposterous, and leave it at that. But it is an attempt to respond to the felt need of professors of constitutional law, and of judges who rule on constitutional cases (particularly Supreme Court justices), to find, or at least to assert, an objective basis for constitutional decisions. On the eve of the Supreme Court’s decision on the constitutionality of the Affordable Care Act—a time of liberal panic—Amar was quoted as saying that if the Court invalidated the act “then yes, it’s disheartening to me, because my life was a fraud. Here I was, in my silly little office, thinking law mattered, and it really didn’t. What mattered was politics, money, party, and party loyalty.” But the constitutional “law” that matters to Amar is not what other lawyers understand law to be. It is a palimpsest of twelve constitutions, only one of which is real.

Among his specific criticisms:

I have yet to describe Amar’s most outlandish riff on the Nineteenth Amendment. Comparing its enactment to the prosecution of the Nazi leaders at Nuremberg, he argues that both proceedings dispensed justice retroactively in order to make amends for past enormities. The Nuremberg Tribunal punished the Nazi leaders for violating principles of international law that had not been widely recognized previously, and Amar argues that the Nineteenth Amendment authorized judges to invalidate interpretations of the written Constitution that might have been influenced by the exclusion of women from playing any role in the Constitution’s ratification. Hence the decision in which the Supreme Court invalidated provisions of the Violence Against Women Act as exceeding Congress’s authority to regulate interstate commerce was wrong, Amar argues, because the Nineteenth Amendment implicitly invalidates any interpretation of earlier constitutional provisions, such as the commerce clause of Article I, that harms women, because women had no opportunity to participate in the drafting or the ratification of those provisions. Similarly, Amar argues, the Supreme Court could have invalidated the laws against abortion as soon as the Nineteenth Amendment was ratified, holding that the laws would be valid “only if reenacted by a legislature elected by women voting equally alongside men.” By this logic, the Twenty-Sixth Amendment, ratified in 1971, which gave 18-year-olds the constitutional right to vote, invalidated all earlier interpretations of the Constitution adverse to 18- to 20-year-olds, such as conscription of minors.

And from the conclusion:

When you have twelve constitutions to play with, of which only one is a document, you can reach any result you want, and you can say that the result you want is in the Constitution(s), which like the Trinity is at once singular and plural. You put it in, you stir it in a pot called “the implicit meaning of the Constitution as a whole,” and then you pluck it out, congratulating yourself on your “sensitive understanding of America’s unwritten Constitution.”

Thanks to Michael Perry for the pointer.


The Original Meaning of Piracy
Michael Ramsey

At SCOTUSBlog, Lyle Denniston has a great post on a recent petition to the U.S. Supreme Court involving pirates.  (The cases are Dire v. United States and Said v. United States).  The core question is: for purposes of the federal statute criminalizing piracy, do we use the original meaning of piracy or the modern meaning?

Oversimplifying slightly, it comes up this way.  The 1790 Piracy Act criminalizes piracy "as defined by the law of nations."  The defendants in the current cases are Somalis who (foolishly) attacked U.S. naval ships off Somalia; they were captured, brought to the United States and prosecuted under the Piracy Act.  However, their acts were not piracy "as defined by the law of nations" in 1790, because they did not involve robbery, which was an element of piracy in eighteenth-century international law.  Not to worry, the government responds: the modern international law of piracy doesn't require robbery, just a hostile attack at sea (which is what occurred here).

So, put another way, does the 1790 Act criminalize piracy "as defined by the 1790 law of nations" or does it criminalize piracy "as defined by the law of nations at the time of the offense"?

Originalist theory is fairly unanimous in thinking that generally worded textual references to things that can change technologically refer to the technology as it changes, not to the technology at the time the text is adopted.  Thus the First Amendment's "speech" includes communication on the internet and the Second Amendment's "arms" isn't limited to muskets.  See Scalia & Garner, Reading Law, pp. 85-86  ("Yet the reader should not be deluded by the caricature of originalism as a doctrine that would make it impossible to apply a legal text to technologies that did not exist when the text was created.  ...  Drafters of every era know that technological advances will proceed apace and that the rules they create will one day apply to all sorts of circumstances that they could not possibly envision.").  On the other hand, at least the majority of originalists think that abstract concepts should be given the content they had at the time of drafting, not a modern one.  The Eighth Amendment forbids punishments that were thought "cruel and unusual" in 1791, not ones thought "cruel and unusual" today.  See Scalia & Garner, Reading Law, at 407 ("The open-ended provisions of our Constitution permit or forbid forever those extant phenomena that they were understood to permit or forbid when adopted.").

So is piracy "as defined by the law of nations" more like "arms" in the Second Amendment or like "cruel and unusual" in the Eighth Amendment?  That appears to be the issue in Dire and Said.

For what it's worth, I think the answer is obviously the former.  Like technologies, definitions under the law of nations (international law) change over time, because the law of nations is composed in part of the practices of nations, and the practices of nations change.  Thus, as Scalia and Garner say of technologies, drafters who incorporate international law definitions know that changes in international law "will proceed apace and that the rules they create will one day apply to all sorts of circumstances that they could not possibly envision."  Indeed, that's the point of incorporating by reference (instead of giving a fixed definition).  The United States wants to keep its law co-extensive with international law on piracy, as international law changes, so that it can punish as many pirate-ish acts as it can without going beyond international law and putting the United States in violation of limits on its jurisdiction.

But Justice Scalia may have a different view.  In Sosa v. Alvarez-Machain (2004), the Supreme Court faced a similar question about the 1789 Alien Tort Statute, which gives jurisdiction over civil suits brought for a "violation of the law of nations."  Does that mean a "violation of the law of nations as defined in 1789" or a "violation of the law of nations as defined at the time of the offense"?  The Supreme Court said the latter (and I agree), but Scalia, concurring, said the former; in his view the statute only encompassed violations of then-existing (1789) law-of-nations rules.

Regardless of who's right, it's a great question because it occupies a disputed ground between places where originalists think a text encompasses change and places where they don't.  Sadly, since the Fourth Circuit decided against the defendants (consistently with Sosa) and there's no conflict in lower court authority, it's unlikely that the Court will hear the case.


Daniel Smyth on the Origination Clause
Michael Ramsey

At American Thinker, Daniel Smyth, The Origination Clause: Die Harder, ObamaCare!


Jeffrey Kaplan: Unfaithful to Textualism
Michael Ramsey

Jeffrey P. Kaplan (San Diego State University -- Linguistics) has posted Unfaithful to Textualism on SSRN. Here is the abstract:  

Linguistic analysis is applied to the Second Amendment to the U.S. Constitution. This one-sentence amendment has a syntactic structure comprising an “absolute” (a non-tensed propositional modifier of a main clause) which conditions the speech act embodied in the main clause. Because the absolute’s proposition (“A well-regulated militia is necessary to the security of a free state”) is false, the main clause speech act (prohibition of infringement of the right to keep and bear arms) is unsupported, giving rise to a hard problem: what the Amendment says it does, it doesn’t do, but being law, it does. The linguistic analysis in the majority opinion in D.C. v. Heller (554 U.S. 570 (2008)), authored by Justice Scalia, is analyzed. The analysis shows that Scalia covertly abandoned his own prominently and energetically advocated textualist program. A faithful application of textualism would have resulted in a different outcome in the case.


Cass Sunstein: Does the Constitution Echo Republican Views?
Michael Ramsey

Cass R. Sunstein (Harvard Law School) has posted Does the Constitution Echo Republican Views? on Bloomberg.com's Opinion site.  On affirmative action:

Last week, the Supreme Court heard oral arguments involving the constitutionality of an affirmative-action policy at the University of Texas. Here is the great paradox: None of the conservative justices asked a single question about whether affirmative-action programs are consistent with the original meaning of any provision of the Constitution.


How can we explain this conspicuous lack of historical curiosity? A tempting answer would point to the Constitution’s text, which bans states from denying any person the “equal protection of the laws.” Perhaps any effort to consider race is, by definition, inconsistent with this requirement. Yet that argument is hopelessly unconvincing. As the historical debates reveal, whether colorblindness is required by a commitment to “equal protection” is the question, and the words themselves don’t provide that answer.

Professor Sunstein goes on to identify two other areas in which (he says) originalists have "made no serious inquiry into the original understanding": regulatory takings under the Fifth Amendment and restrictions on commercial advertising under the First Amendment.  He concludes:

In short, the constitutional judgments of many influential conservatives show an uncomfortably close overlap, not with the original understanding of those who ratified the Constitution, but with the political understandings of the Republican Party in 2012. Who, then, believes in the living Constitution?


Josh Blackman: Five Lessons from the Health Care Cases
Michael Ramsey

Josh Blackman (South Texas College of Law) has posted "Five Lessons from the Health Care Cases" (Chapman Law Review, Vol. 16, 2013) on SSRN. Here is the abstract:

In the blink of the jurisprudential eye, the Affordable Care Act went to the brink of unconstitutionality and back. Along that rapid journey, lawyers and scholars from across the philosophical spectrum, who were so focused on developing, refining, and advancing constitutional arguments at breakneck speeds, were often unable to pause, and appreciate the monumental importance of what was happening. This essay, as part of a symposium issue for the Chapman Law Review on libertarian legal thought, takes a step back, and draws five important lessons from The Health Cases.

First and second, we witnessed how conservatives and liberals reversed roles with respect to the propriety of judicial review. Conservatives rallied around the mantle of striking down a massively important, and very technical, democratically enacted piece of legislation. Liberals rediscovered a fealty to judicial restraint, and urged the courts - and indeed preemptively attacked the Justices - to consider what striking down the ACA would do to the Court’s legitimacy. In hindsight, this opportunistic switch speaks volumes about the superficiality of the entire judicial restraint/judicial activism divide.

Third, the reaction of conservative judges to this case revealed a jurisprudential fissure. The new generation of jurists, no longer duty bound by an unmitigated fealty to judicial restraint, are willing to engage the entire Constitution, through the exercise of the powers of judicial review. This fissure also portends future debates about the next republican nominee to the Supreme Court.

Fourth, libertarians, who for decades have sought to restore the original meaning of the Constitution, shied away from that task, and advanced a strategy that would excise the individual mandate alone without disturbing any New Deal-era precedents. The decision not to assert the originalist case for the unconstitutionality of the individual mandate, and to advance a popular constitutionalist argument, have largely gone unrecognized and unappreciated. Both of these choices speaks to the potential limitations of originalism in a world bound by entrenched precedents, and the potential strength of fostering social movements intent on restoring the lost constitution.

This observation leads to the last, and most important lesson - we learned a great deal about how important our Constitution is to we the people. The growing sentiment that the powers of the federal government are in fact constrained, and the New Deal cases may not have definitively resolved these issues - what Larry Solum has referred to as the now 'unsettled constitutional gestalt' - may be the most important lesson we can draw from this entire unprecedented experience.

UPDATE:  At Legal Theory Blog, Larry Solum comments:

Blackman has excavated much of the discussion about legal strategy from the blogosphere and public speeches. Essential reading for those seeking understand the relationship between legal arguments and politics in the lead up to and aftermath of NFIB v. Sebelius. Download it while its hot!


New Voter ID Case at the Supreme Court: A Case for Preemption
Michael Ramsey

Regular readers are likely aware that I'm not sympathetic to federal preemption claims and that I think modern preemption analysis is far afield from the narrow view of preemption contained in the text of Article VI.  (See here, here and here, for example).  So I thought it would be worth while to note a contested preemption case where I think the national law should displace state law (albeit one where the Supreme Court may decide the other way).

On Monday the Court granted cert. in Arizona v. Inter Tribal Council of Arizona, Inc., a voter identification case.  (Analysis from Lyle Denniston at SCOTUSBlog here).  Arizona law requires persons registering to vote to show specified proof of U.S. citizenship.  The National Voter Registration Act (NVRA), a federal law, creates a form that people may use to register to vote in elections for federal offices and which the states must accept for voter registration (states can create their own forms as well, but they must allow registration using the federal form if the voter uses it).  The NVRA form does not require proof of citizenship aside from a statement under oath.  Question: may Arizona require people registering using the federal form to provide proof of U.S. citizenship?

The Ninth Circuit said no, and I agree.  The NVRA requires that states “accept[] and us[e]”  the federal form “for the registration of voters in elections for Federal office.”  However, under Arizona law, Arizona refuses to "accept and use" the federal form for registration of persons who do not also comply with a state-imposed requirement.  That is precisely the situation for which Article VI's supremacy clause was designed: a person with a right  under federal law (here, to register using the federal form) is being barred from exercising that right by an additional hurdle created by state law.  True, as Arizona argues, the NVRA does not expressly say that additional state laws are preempted, but that is the obvious implication of the requirement that states shall accept the federal form.  Accepting the federal form in this context means accepting it without additional qualifications.  Arizona wants to able to reject (that is, not accept) some registrations submitted on federal forms.  That is exactly what the NVRA says Arizona can't do when it says the states must "accept" registrations on federal forms.

Nothing in Article VI requires that Congress expressly declare state laws preempted.  Article VI says that federal law is supreme.  Here, when a voter submits a federal form registration without proof of citizenship, there is a conflict between what the NRVA says Arizona must do (accept it) and what Arizona wants to do (reject it).  The supreme law prevails.  That should be the end of the story.

So why is the case going to the Supreme Court?  Perhaps unwisely, the Ninth Circuit thought the case more complicated.  Rather than using ordinary Article VI preemption analysis (which I think leads easily to its result), the circuit (en banc) decided that it would instead apply a more pro-preemption analysis it purported to derive from the elections clause (Article 1, Section 4), which provides: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislatures thereof; but the Congress may at any time by Law make or alter such Regulations..." 

Here is the core of the court's analysis:

In contrast to the Supremacy Clause, which addresses preemption in areas within the states' historic police powers, the Elections Clause affects only an area in which the states have no inherent or reserved power: the regulation of federal elections. As the Supreme Court has explained, because federal elections did not exist prior to the formation of the federal government, the states' sole authority to regulate such elections "aris[es] from the Constitution itself." [Citing U.S. Term Limits v. Thornton]  Because states have no reserved authority over the domain of federal elections, courts deciding issues raised under the Elections Clause need not be concerned with preserving a "delicate balance" between competing sovereigns. Instead, the Elections Clause, as a standalone preemption provision, establishes its own balance. For this reason, the "presumption against preemption" and "plain statement rule" that guide Supremacy Clause analysis are not transferable to the Elections Clause context.  [p. 4 of the opinion]

I'm unpersuaded.  Article I, Section 4 gives Congress a power -- to "make or alter" regulations relating to federal elections.  Whether an exercise of that power displaces an otherwise-valid state law on a similar subject requires us to consider what causes a state law to be displaced.  The answer to that question is found in Article VI: the federal law is "supreme" so in case of conflict it prevails; absent a conflict, there isn't a constitutional basis for displacing the state law.  The idea of states' "inherent or reserved powers" in this context is, I think, a red herring.  The power of the states to regulate federal elections is plainly granted in Article I, Section 4.  Article VI does not differentiate between some kinds of state powers and others (although Supreme Court cases have sometimes done so), and even if it did, this power is one clearly assigned to the states as a core aspect of the federalism structure the Constitution created.  Contra the Ninth Circuit, there's as much need for attention to the "delicate balance between competing sovereigns" here as anywhere, precisely because the Constitution specifically establishes it as an area in which those sovereignties are balanced.

I speculate that this part of the Ninth Circuit opinion, and not the outcome, is what attracted the Supreme Court's attention.  It shouldn't, though, detract from the very proper conclusion that a state can't reject a form the national government says it must accept.