Posts Tagged ‘constitution’


The Founding Fathers and the Tea Party

   Posted by: Robert    in News, Philosophy

It looks like the allegiance between the Tea Party and the founders is paying some tangible dividends.  New York Times op-ed contributor Ron Chernow has published a thoroughly incoherent column which purports to pit the Founders against the Tea Party and prove that the advocates for limited government have no special purchase on the people who created that limited government in the first place.  Unfortunately for Ron, his article fails to accomplish that task even by its own terms, nevermind the clear history which would place any one of the Founders, if not in the Tea Party, at least decidedly against President Obama and the liberal Democrats in Congress.

The essence of the author’s argument is that the Founders, far from being a homogeneous group, were a bunch of politicians with a variety of different ideas for how the newly formed nation should be governed.  And certainly, to the extent that that’s his argument, it’s true.  The Constitution itself is a document filled with compromises, most famously the 3/5 compromise on slaves and the large state / small state compromise which led to the level of representation in the House and Senate.  Indeed, even after the delegates had completed their work, the Constitution remained controversial.  This led to the Constitution being assailed in the Antifederalist papers, defended in the Federalist papers, with even more compromise brought thereafter with the drafting and passage of the Bill of Rights.

As the author himself acknowledges, “the founders favored limited government … but they clashed sharply over those limits.”  Notably, the primary argument had nothing to do with the further expansion of federal power.  In general, the Federalists said that the Constitution gives the national government just the right amount of power.  Their opponents, the Antifederalists, warned that the Constitution gave the national government too much.  As the Tea Party fights to get today’s national government back within Constitutional bounds, what they are really fighting to accomplish is to get our national government back in line with the founding era’s liberal view of national power.

Today, of course, the debate has shifted.  Liberals in Congress and President Obama actively champion by their actions a government with no meaningful limits at all.  Indeed, even those limits which should seem insurmountable — the express limits imposed by the Bill of Rights — are being actively undercut by Washington liberals.  Even conservatives are generally unwilling to look past the New Deal’s reallocation of power from the people and the states to the national government; fighting to return us not to the Founders’ vision of America, but to the immediate aftermath of FDR.  There is simply no comparison between today’s politics and the founding era; even King George III would be hard pressed to affect the daily lives of his people the way President Obama is able to affect ours.

In the end, the author concludes that “[n]o single group should ever presume to claim special ownership of the founding fathers or the Constitution they wrought.”  This statement, though somewhat true, is mostly meaningless.  It’s true that no particular group has special ownership of the Founders’ ideals; such ideals, after all, are (theoretically) the birthright of every American.  But it is false to imply, as the author clearly intends, that any group may validly lay claim those ideals.

Today’s liberal Democrats adhere to no ideology but their own — an ideology which seeks to forever destroy the balance of power the Founders once worked so hard and so carefully to establish.

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The Citizenship Clause and Anchor Babies

   Posted by: Robert    in Law

I was recently linked to an article by Ann Coulter which offers her take on the legal history of the citizenship of illegal alien born babies under the 14th Amendment.  Her article is interesting, and quite possibly the most reasonably presented argument I’ve seen from her.  The essence of her article is to point out that anchor babies — children born of illegal aliens on US soil which illegal aliens can use as an “anchor” to tie themselves to the US — are the product of a misunderstanding about the meaning of the 14th Amendment.  As she points out, the question whether the Citizenship Clause would apply to the children of aliens came up at the time the Clause was drafted, and rejected by its author.  Unfortunately, the history on this point is not so clear as she would cause us to believe, and is, in any case, irrelevant to the text of what the 14th Amendment actually says.

The Citizenship Clause of the 14th Amendment states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside

This clause has two essential parts.  In the first, it identifies a group of people (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof”) and then grants that group citizenship.  The essential question is whether or not the children of illegal immigrants are part of the identified group of people.  Based on the text and structure of the Clause, it is apparent that they are.

The part of the Clause that identifies the group is a conjunction of two separate conditions.  To qualify, you must be a person “born or naturalized in the United States.”  Anchor babies, by their very definition, are “born … in the United States,” so they pass this first test.  Having been born in the United States, you then must be “subject to the jurisdiction [of the United States].”  If there is a reason to believe that illegal aliens are not subject to US jurisdiction, it is difficult to imagine what that reason might be.  Illegal aliens are generally expected to obey US law, are subject to arrest, and can be imprisoned — all classic indicators that illegal aliens, while in the country, are subject to US jurisdiction.

However, as Ann Coulter points out:

The very author of the citizenship clause, Sen. Jacob Howard of Michigan, expressly said: “This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.”

She takes that statement as evidence that, when it comes to conferring citizenship on aliens, illegals’ babies need not apply, because the author of the Clause himself was sure that it would not be so.  Her basic argument has two flaws.  First, it is entirely possible that the Clause’s author wrote something that he did not intend; if so, that’s unfortunate, but it is the text, not the author’s intent that controls.  Second, and more importantly, his words do not say what Ms. Coulter takes them to mean.  Senator Howard is not talking about illegal alien babies; he’s talking about “aliens, who belong to the families of ambassadors or foreign ministers.”

In the constitutional analysis, the difference between illegal alien babies and foreign ambassador babies is important.  Foreign ambassadors, by diplomatic tradition and legal history, do not normally become subject to the jurisdictions wherein they perform their official duties.  This fact is the basis of diplomatic immunity, which ambassadors enjoy along with their families who join them during their travels.  For Senator Howard to say that the Citizenship Clause does not apply to “the families of ambassadors or foreign ministers,” he is not saying anything that isn’t clear from the Clause’s text.  Because they are not “subject to the jurisdiction [of the United States],” they are not part of the group that enjoys automatic citizenship.  Illegal aliens, however, have no diplomatic immunity, or any foreign immunity of any kind.  That fact leaves them in the automatic citizenship group and leaves us with anchor babies.

Ms. Coulter’s other examples of who falls into the group and who doesn’t break down along similar lines.  Native Americans are out because they are under tribal rather than US jurisdiction.  Legal immigrants are in because they have crossed into and, thus, subjected themselves to US jurisdiction.  And she finishes with a tale of welfare state horribles that have nothing to do with the constitutional question at hand.

Although it would be nice if the existence of anchor babies rested entirely on a misunderstanding of the 14th Amendment, that is, unfortunately, not the case.  By its plain terms, if you are born in the US and subject to US jurisdiction, you’re automatically a citizen.  Because babies born to illegal aliens on US soil meet both criteria, their citizenship is constitutionally guaranteed.

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Why Article 1, Section 7 isn’t the answer

   Posted by: Robert    in Law

As reluctant as I am to take issue with the well considered opinion of Mark Levin, I find myself doubting that the constitutional case against the Slaughter Rule is as open and shut as I have heard him and other conservative commentators describe.  While the procedure set forth in the Slaughter Rule of considering the Senate Bill to have been “deemed passed” is clearly contrary to the legal history and tradition of the country, and to the concept of democracy more generally, there is no particular command in Article 1, Section 7 of the Constitution, or any other place within its text, that definitively rebuts the Slaughter Rule.

Article 1, section 7 of the Constitution states:

Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law. But in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.

Mark Levin and other commentators point out from that text two phrases of paramount importance.  The first is the first sentence which states that “Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States,” and the second comes in the middle of the paragraph to say that “in all such cases the votes of both Houses shall be determined by yeas and nays.”  From these two phrases, and with reference to Clinton v. City of New York, commentators have deemed it obvious that the Constitution requires actually voting on the bill to pass it.  Obvious and correct as this ought to be, it’s not actually what the Constitution says.

To begin again at the start of the paragraph, the clause introduces itself with the words “Every bill which shall have passed” (emphasis added).  Those words, right there, are in the past tense.  This paragraph, right from the start, is not talking about how to pass a bill; it is, rather, talking about how to take a passed bill and turn it into a law.  The remainder of the paragraph is consistent with the understanding that it applies to passed bills, rather than bills to be passed.  It first describes the presentment to the President, explains the process for handling a veto, including its override, and further explains what happens to bills that the President leaves sitting on his desk.  All of the things described by the paragraph are only possible on bills which both houses have finished with.  This paragraph, in other words, assumes that a bill has been passed somehow, but offers no command for how that passage must come about.

Reading on to the second interesting clause, the bill says that “the votes of both Houses shall be determined by yeas and nays” in “all such cases.”  The inclusion of the word “such” is clearly an invitation to examine the preceding context of that phrase and to limit its scope accordingly.  The preceding context is none other than the process for overriding a Presidential veto, meaning that what that sentence tells us is that vetos may be overridden only by yeas and nays, and that it is limited to that meaning by its own terms.  Had the word “such” been omitted, Levin would have a stronger position, although he would still have an uphill battle to defeat the obvious context in which that phrase was placed.

Ultimately, the strongest argument against the Slaughter Rule are originalist rather than textualist, and Clinton v. New York guides the way.  In that case, the Supreme Court held that laws can only be formed when (among other things) “a bill containing its exact text was approved by a majority of the Members of the House of Representatives.”  But even this language leaves open the argument that, because it takes a majority to adopt a rule, and the rule contains an approval of the bill, passing the rule is tantamount to a majority of Representatives approving the bill.  Regardless, it is clear that the Supreme Court has recognized that there is a traditional process for passing laws, which is a good sign.

I have little doubt that the founders would be astonished to learn that the Slaughter Rule is even being considered.  The English law traditions they inherited and the process the country has followed consistently ever since the founding is clear in that bills are passed with majority votes, not with parliamentary trickery.

If the Senate Bill should pass on the basis of the Slaughter Rule, I wish Mark Levin the best of luck in bringing his lawsuit and having the bill stricken in court.  There is no doubt that the proposed rule is an abuse of process and a direct assault on American tradition, perpetrated by politicians waging a war against the liberty of the American people.  I do believe, though, that it would be a mistake to rely on the text of the Constitution alone to defeat the Slaughter Rule.

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More Privileges and Immunities Confusion

   Posted by: Robert    in Law

As one would not doubt expect from today, the media has been abuzz with thoughts and comments related to this afternoon’s oral argument in the case of McDonald v. Chicago. Most of the reporting has managed to crystallize around two salient facts: The Supreme Court will incorporate the Second Amendment, but the won’t do it through Privileges and Immunities.

With respect to the first fact, no piece of reporting I’ve yet to see has managed any more than a statement of agreement or disagreement with that the Court is poised to do. I’ll join this silly straw poll: Incorporating the Second Amendment would be an activist decision; Incorporation ignores the original understanding of the scope of the amendment, it ignores the unique anti-federal-involvement-in-state-gun-laws purpose which motivated the amendment, and it has no basis in the Constitution’s text.

More interesting is the bizarre confusion about what’s at stake when it comes to the use of the Privileges and Immunities Clause for bringing about that incorporation.

Under the Court’s current precedent, the Due Process Clause of the 14th Amendment provides every tool that McDonald could ever need to bring about incorporation of the 2nd Amendment. It also contains a great many other things. Most of what the Due Process Clause is said to contain has been rightly criticized by conservatives as being impossible to support under any reasonable reading of the text of the amendment. The Due Process Clause has become, in essence, an open-ended clause which allows the Court to pretty much do whatever it wants.

Perhaps recognizing that they would eventually need to reconcile their appropriate disdain for “substantive due process” with their misplaced desire to allow the Court to make activist decisions which favor conservative policy preferences, there has been a push to breathe new life into the Privileges and Immunities Clause of the 14th Amendment. Leading with a smear campaign against the Slaughterhouse Cases and culminating with today’s argument in McDonald, conservatives have certainly put up a good fight.

Despite an effort to promote the Privileges and Immunities Clause as being somehow more restrained than “substantive due process,” it was apparent that the justices saw at least partly through the charade. A parenthetical on SCOTUSblog tells the tale:

(In fact, when Gura near the end of the argument returned to the podium for his rebuttal, his time was used up by Justices Ginsburg and Anthony M. Kennedy exploring what other rights might come into being if the Court gave new life to the “privileges or immunities” clause. He responded that he could not provide a full list, to which Justice Scalia retorted: “Doesn’ t that trouble you?” It was obvious that it troubled the Court.)

A more appropriate question might have been, “Why does the Constitution need two open ended clauses?” Or perhaps, “What does anyone gain by replacing one open ended clause with another?”

And if, as Roger Pilon states over on Bench Memos, “[most 14th Amendment cases] should have been decided under the more substantive Privileges or Immunities Clause,” might not one be forgiven for wondering what the point is in promoting this distinction without a difference? When the Court can turn Due Process (among other things) into “emanations from penumbras” into a “right to privacy” into a right to abortion on demand, it seems unlikely that any amount of “history,” no matter how much “better [it] informed the Court,” would have done anything to have “better checked the Court’s occasional activism.” After all, activism happens when a court ignores the overwhelming weight of text and history to arrive at a preferred decision.

I continue to be disappointed that conservatives have generally failed to remain true to the principles of judicial restraint when it comes to carrying guns. As I said at the time, the Court in Heller got to the right conclusion — individual right, no flat ban on handguns — but did so in a terribly activist way with an opinion I would not have joined. In this case, however, I continue to believe that incorporation is nowhere to be found in the Constitution and that, while a respect for precedent may council against disicorporating the Bill of Rights, there is no reason to extend its impropriety beyond where it has already gone.

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Corporate Personhood and Citizens United

   Posted by: Robert    in Law

Much has been made in the press and the blogosphere about the Supreme Court’s supposed embrace of some concept of corporate “personhood” falling out of the decision in Citizens United v. FEC.  Most of this discussion seems to key from the dissent filed by Justice Stevens, which spends a fair amount of time diving into that very issue.  Exactly where this concept is to be found in the majority opinion eludes me.  Justice Kennedy’s writing may take a long and winding road to get to the same place that The Chief Justice and Justice Scalia would reach in far fewer pages, but even he avoids wandering off into the wilderness of anthropomorphisis.  Nor does the Constitution offer any reason to think that corporate personhood is somehow necessary to support the Court’s holding.

The language of the First Amendment is simple and absolute: “Congress shall make no law … abridging the freedom of speech.”  Based on that language, the operation of the amendment is not difficult to understand: It points out a thing which Congress may not do.  The amendment is written without reference to persons or corporations and without reference to the type, content, or character of speech.  If a law is an abridgment of the freedom of speech, Congress shall make no law causing it.

Nobody has argued that the law in question is anything other than an abridgment of (corporate) speech.

The lack of reference to personhood in the First Amendment is noteworthy in light of some of the other “rights” to which a person-corporation would presumably be entitled.  The most frequent straw man that I have seen is to the right of a person-corporation to vote.  But this comparison is untenable when the text of the First Amendment is compared to the text of the Fifteenth, which speaks of “[t]he right of the citizens of the United States.” (emphasis added)  Neither the majority in Citizens United nor the First Amendment rest the right secured on citizenship, whereas the Fifteenth Amendment does so explicitly.

The notion that Citizens United is somehow dependent on a concept of corporate personhood is further discredited by considering the original understanding of what the Bill of Rights sought to accomplish.  One of the founding era arguments against the Bill of Rights was the understanding that none of the things which it explicitly forbade Congress from doing were within Congress’s power in the first place.  Nowhere do the Articles of the Constitution suggest that Congress has the authority to limit the freedom of speech.  Nowhere does the Constitution suggest that Congress gets additional power when legislating against a corporation.  The Articles, thus, reinforce the understanding that corporate personhood is entirely irrelevant to the conclusions reached by the Court in Citizens United.

Although the attempted reducto ad absurdum argument of corporate personhood sounds interesting, in reality it is little more than a meaningless straw man.  Corporate personhood is not required for the Court to have decided Citizens United as it did, and the Court gave no particular indication that it was doing so.  While there may be other precedents that point in the direction of regarding corporations as human beings, I am sure that Citizens United, if read honestly, does not belong listed among them.

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Maybe a base hit?

   Posted by: Robert    in Law

I always find it troubling when I disagree with Matt Franck, but at least partial disagreement is where I find myself today.  In a post on Bench Memos, he discusses what he believes to be the judicial role in evaluating the constitutionality of the federal health care bill.  He doubts that there is a proper role for the courts in evaluating the health care bill, including the individual mandate that the law would impose.  I believe that the mandate does fall within the scope of judicial review, though not on the basis of anything Roger Pilon or George Will had to say.

The basic function of the judicial process is to determine what law applies to a given set of facts.  In making that determination, courts look to the laws passed by Congress, to the dictates of treaties and other legally binding agreements to which the US is a party, and to the Constitution to determine which laws are applicable.  Courts have a number of ways to deal with laws that conflict with one another.  Among statutes, or between statutes and treaties, the usual rule is that whatever happened most recently overrides older law if the conflict is unavoidable.  The famous exception to this usual rule applies when a law comes up against the Constitution; in that case, the Constitution overrides the statute or treaty. Determining whether the Constitution has overridden some other law is what we know as Judicial Review.  And, while we regularly talk about courts “striking down” laws, my understanding of the physics of that action are really closer to a court saying “we cannot apply this law to any set of facts.”  The statute still exists, but the law it creates is unusable.

Implicit in that entire process is the fact that what the courts are evaluating are, indeed, laws.  Because the (originalist) Constitution only enables Congress to pass laws within certain enumerated categories, it naturally follows that anything which does not follow from that authority cannot be considered a law. Because courts are not in the business of applying things which are not laws, it must follow that the courts cannot find constitutional any penalty which results from a law beyond the federal government’s authority to create.

In other words, the government may very well impose an individual mandate and hope that most people comply, and their doing so would seem to be just outside the realm of court review.  But the instant they impose a penalty on people who do not obey the individual mandate — the instant they seek to impose a fine — the courts now have a subject to address which is well inside the proper judicial role.  The courts can, and should, find the individual mandate unconstitutional because it imposes penalties which the federal government has no authority to impose.

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Privileges, Immunities, and Incorporation

   Posted by: Robert    in Law

I have recently been spending some time thinking about some of the arguments being made in the Chicago handgun case, McDonald v. City of Chicago, currently before the Supreme Court.  At issue in that case is whether it is constitutional for states and local governments to ban the possession of handguns, in light of last year’s ruling n DC v. Heller.  The case naturally hinges on the question of incorporation, a doctrine created and selectively applied by the Supreme Court to bind portions of the Bill of Rights against the states through the Due Process Clause of the 14th Amendment.  Legal conservatives, like those bringing McDonald, have long complained that the Due Process Clause, properly understood, contains no such doctrine.  To supplement the shortfall, they have brought before the Supreme Court an argument that the 2nd Amendment is incorporated by the Privileges and Immunities Clause of the 14th Amendment.  I do not think this is so.

The history of the Privileges and Immunities Clause in the 14th Amendment is best understood by reference to the Slaughterhouse Cases which gave the clause its first judicial interpretation.  The Slaughterhouse Cases involved a challenge to a state law in which Louisiana established a state-wide slaughterhouse corporation and prohibited the slaughter of animals in any facility not operated by that corporation.  The law was challenged broadly on 14th Amendment grounds, including the Privileges and Immunities Clause.

Critics contend that the Slaughterhouse Cases effectively “gutted” the Privileges and Immunities Clause and now hope to use that Clause as a vehicle for a new, “conservative” foundation for incorporation.  But would a flawed doctrine by any other line of constitutional authority not smell as sweet to the activists who seek to promote the rule of judges over the text of the Constitution?  Are the advocates in McDonald prepared to argue that years of complaining about the constitutional fallacy of “substantive due process” is really no more interesting than a semantic disagreement; that the judicial authority they have decried has been there the whole time, just under a different name?

A simple reading of the text and reference to the parallel P&I provision of the original Constitution reveals that the language of the Privileges and Immunities Clause cannot support incorporation.  In Slaughterhouse, the Supreme Court noted that “[The original P&I Clause’s] sole purpose was to declare to the several States, that whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify, or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction.”  In other words, a state cannot discriminate against the citizens of another state.

The 14th Amendment takes the same language and adds only the slightest change.  Whereas the original P&I Clause referred to the “Citizens of the several States” (US Const. Article 4, Section 1), the new clause referred to the “citizens of the United States.” (US Const. Amdt. 14, Section 1)  This second clause comes immediately after a blanket grant of US citizenship to “all persons born or naturalized in the United States” and of state citizenship to “the state wherein they reside.”  Anyone residing in a state, or who otherwise has state citizenship, is covered by the original P&I Clause.  However, the 14th Amendment created a class of people (admittedly more hypothetical than real) who may be citizens of the United States, having been “born or naturalized” here, but do not “reside” in any state, and therefore hold no state citizenship.  The 14th Amendment P&I Clause extends coverage to those people as well.

Nowhere can I recall having heard an argument that the privileges and immunities granted by any state are automatically incorporated against the rest through the original Privileges and Immunities Clause.  Such an understanding of the P&I Clause would surely have seemed bizarre to the founders, and is strange to us today.  The minor linguistic changes between the original and the 14th Amendment P&I clauses are certainly not significant enough to invite the creation of an incorporation doctrine.

As the Supreme Court considered in the Slaughterhouse Cases (with emphasis added):

Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?

All this and more must follow, if the proposition of the 78 plaintiffs in error be sound. For not only are these rights subject to the control of Congress whenever in its discretion any of them are supposed to be abridged by State legislation, but that body may also pass laws in advance, limiting and restricting the exercise of legislative power by the States, in their most ordinary and usual functions, as in its judgment it may think proper on all such subjects. And still further, such a construction followed by the reversal of the judgments of the Supreme Court of Louisiana in these cases, would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment. The argument we admit is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when in fact it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people; the argument has a force that is irresistible, in the absence of language which expresses such a purpose too clearly to admit of doubt.

We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.

I am equally convinced, and believe that the P&I argument in McDonald must fail.

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Re: When Judges Judge

   Posted by: Robert    in Uncategorized

Looking around the Internet today, I happened across a three part discussion of sorts between some folks over at the National Review Online.  The essence of the discussion begins as Jeff Rowes and Clark Neily attempt to convince us that it would not be an act of judicial activism for a court to strike down a law banning compensation to organ donors, to the extent that the law bans compensation for bone marrow donation.  Their argument is made in the first post, which is filled with policy reasons why compensation for bone marrow donation should be legal.  The entire discussion, such as it is, is hardly noteworthy, except that it makes clear the hazard that comes from an all too common misunderstanding about the nature and purpose of the Constitution.

Jeff and Clark complain that “[Ramesh Ponnuru’s] view, shared by an unfortunate number of conservatives, is that the Constitution created a legislature with the unbridled authority to deprive citizens of liberty arbitrarily, at least in the absence of a (sufficiently) enumerated right.”  They reply by stating:

[It is] just wrong as a matter of text, history, and original understanding of the Constitution. Government officials in America have never had the power to act arbitrarily, and among the most important roles assigned to — though not always discharged by — our judiciary is ensuring that the other branches act within the constitutional bounds assigned to them. Irrationally denying citizens their right to participate in safe, effective, lifesaving medical care is not a legitimate exercise of power. It is not only appropriate but vitally important for courts to fulfill their constitutionally assigned role as a check on the arbitrary exercise of government power,

What is wrong is that Jeff and Clark, like so many others from every political walk of life, and including judges, even those who sit on the Supreme Court, treat the Constitution as some sort of limiting document which restricts the otherwise unbounded power of the federal government.  It is that view which is “just wrong as a matter of text, history, and original understanding of the Constitution.”  Far from being a limiting document, the Constitution is best read as an enabling document.  It is best read according to the following procedure:

  1. The government has no power.
  2. Except these powers, which the Constitution explicitly grants to the government.
  3. Except these powers, which are nowhere in the explicit grants anyway, but which are so important to keep away from the government that we’re going to call them out by name in the Bill of Rights.

The historic defense against arbitrary laws is the fact that the federal government, until around the New Deal era, was understood to not have a great deal of authority with which to enact them.  Indeed, it is hard to imagine which provision of the Constitution would act to enable the federal government to regulate abortion donations at all, at least as long as the organs never crossed state lines to trigger the Interstate Commerce Clause.  Yet, we readily accept that the federal government has this power, absent some specific Constitutional instruction to the contrary.  Jeff and Clark chose the Due Process Clause (presumably the “substantive” flavor), and now get to hope for the best with their argument that the law is arbitrary.

The mere formulation of the essential argument made by Jeff and Clark points out the trouble with interpreting the Constitution backwards.  They are essentially asking a judge to decide whether or not there is a “rational medical reason to imprison people for five years for compensating marrow donors, but not imprison people for compensating blood or sperm donors.” (emphasis added)  A judge, who probably has no training in medicine, is being asked to decide whether or not a law is medically rational?  And yet, that is the required burden to prove that the law is arbitrary.

Under an originalist reading of the Constitution, we would have little need to wonder whether this law is arbitrary.  It would never withstand scrutiny, because it would fall entirely outside the realm of federal power.

Unfortunately, nobody asks anymore where in the Constitution the federal government has the power to do most of the things that it does.  The neglect makes sense; our courts have taught us for nearly a century that between the Commerce Clause, the Due Process Clause, the Necessary and Proper Clause, the General Welfare clause, and emanations from penumbras of all of the above and more, nothing is beyond the federal power except those few things mentioned in the Bill of Rights.  But, if the Constitution is to have any meaning at all, we must ask for the source of federal authority — rooted in the text of the document itself, not what the courts have said about it — in every matter that Congress takes up.

Jeff and Clark deserve deserve to win.  I just wish were practical for them to use a different argument.



Arlen Specter and the “Social Compact”

   Posted by: Robert    in News, Politics

It took some work for me to find a video of the question posed by Katy Abrams to Senator Arlen Specter which included his response, but the reward was well worth the effort.  Katy’s question is interesting not only for its power (which is obvious enough from the response she got), but because it is the most crystal clear delivery to date of the question Americans should be asking.

At so many of these town halls, citizens are standing up and asking tough questions to their politicians about the proposed health care reforms.  Many come prepared with questions about the House bill, some speak more in general.  There are questions of taxes, of who pays, of what will happen to private insurance, and all of the other details.  These are important questions which must be asked.

What Ms. Abrams asks, though, is a question which is far more important.  She says it herself, that what she wants to know is not just about this, or that, or the other thing.  Her question — the one all of us need to ask — is what any of these things mean for the foundation of the country.  Even if the health care plan was perfect, as Americans and proud believers in constitutional government, we cannot neglect to ask ourselves if the government is acting within its constitutional authority.  As believers in liberty, we must not neglect to ask ourselves if the government is acting within its appropriate role.  If either of those two questions are answered in the negative, then none of the rest even matters.

Senator Specter’s response is telling in a number of ways.

After stammering around for a bit, he offers a platitude about his work defending the Constitution, then instantly changes the subject completely away from health care.  I do not believe, Senator, that however zealously you may have defended the Constitution in the past, that you or any other government official may be excused from defending the Constitution now or in the future, as long as you continue to serve.  The oath you swear is always and everywhere; it has no provision for “I did good last time,” or “I’ll get the next one.”

From there, Senator Specter proceeds to talk about how our “social compact” has a “provision to take care of people who need some help.”  Whatever his “social compact” may be, I guarantee that it is not the Constitution.  Nowhere can I find in the Articles or Amendments a “help those in need” clause.  Not that they needs one, of course.  The Founders knew what history has shown time and again: The best way for a government to help those in need is to stand back and get out of their way.  The people themselves can — should — take care of their own, and that’s what a “social compact” is all about.  It is an agreement of and among the people, far different from a constitution which is a contract between the people and their government.

Our Constitution, of course, is not one that is admitting of government operated health care.  The power to provide health care is certainly not “delegated to the United States by the Constitution,” which means that it must be “reserved to the States … or to the People.” (US Constitution, Amendment 10)  As that language makes clear, it is impossible to uphold and defend the Constitution and support government health care at the same time.

When the government has no authority to do something, the vote should be simple and  clear.  “No.”  The people understand this, and they proclaim it proud and true from every side of the aisle.  But to get the answer, we must do as Ms. Abrams and ask the question.  Defending our freedom is at the pinnacle America’s “social compact.”



Gun Rights and the States

   Posted by: Robert    in Law

More a post of first impression than anything else, but I again find myself irritated at the NRA and the rather bizarre copy of the Constitution that they appear to possess.  As SCOTUSblog reports here and here, the NRA has filed an appeal in the Supreme Court asking the justices to apply the Second Amendment against the states, through a method known as incorporation.  While the affront to federalism brought by incorporation is disturbing in any case, it is particularly so in the Second Amendment context, given that amendment’s deep ties to federalist concerns.  But what occurs to me is that there may be another way for the NRA to get what it wants without needing to cast any pretense of concern for state sovereignty to the winds to get there.

The key is a practice I’ve seen used by state courts that usually comes up in the equal protection context where state constitutional provisions are held to be identical in scope to their federal constitutional counterparts.  In the case of equal protection, I have generally heard state courts say, in essence, that their state equal protection guarantees extend no further than federal equal protection guarantees.  Of course, equal protection guarantees cannot be less.

While state courts certainly are not bound to maintain equivalence, there is a compelling logic to keeping a consistent meaning for the same set of words when those words appear in both federal and state law.  At a minimum, it promotes a consistency of law which is well within the role of the courts to foster.  More importantly, when state constitutions adopt pre-existing provisions of federal law or the federal Constitution, it tends to be because they want to adopt the meaning of the federal provision, which is precisely what the Supreme Court had declared.

Of course, differently worded state constitutions and state courts which choose to disagree with the Supreme Court as far as their own state constitutions go remain a risk to the NRA position under my approach.  Nevertheless, it is far less judicially activist and destructive to federalism than the path currently being charted by the NRA, and it would certainly not preclude them from returning to the Supreme Court with their activism later if the more modest approach doesn’t pan out.

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