Archive for the ‘Constitutional Law’ Category
posted by admin
by John Duffy, Peter Strauss and Michael Herz
Earlier this year, more than 100,000 citizens petitioned the White House to overturn a copyright rule issued by the Librarian of Congress that made unlocking a cell phone a crime. The White House responded by promising to seek legislation to overturn the Librarian’s rule. That was the most the President would or could do because “[t]he law gives the Librarian the authority,” and the Administration would “respect that process,” even though the Librarian acted contrary to the Administration’s views. See here. As the New York Times reported, “because the Library of Congress, and therefore the copyright office, are part of the legislative branch, the White House cannot simply overturn the current ruling.” See here.
There’s only one problem with all of this: The Department of Justice has been vigorously arguing precisely the contrary constitutional position in the federal courts. Read the rest of this post »
posted by Danielle Citron
Professor Barry Friedman and NYU-graduate and Genevieve Lakier have made an important contribution to our understanding of Commerce Clause power in their piece “‘To Regulate,” Not “To Prohibit:’ Limiting the Commerce Clause.” In the piece, just posted on SSRN, the authors debunk the long-standing and critically unexamined assumption that congressional power to regulate commerce entails the power to shut commerce down:
Today it is taken for granted that Congress’s power “to regulate . . . Commerce among the several States” includes the power to shut interstate markets down. That is why, for example, Congress is understood to have the power to ban the possession and use of marijuana, even though twenty states have expressed contrary preferences, either for the medicinal or recreational use of the drug. This Article argues that as a matter of constitutional history and theory both, this familiar assumption about congressional power is wrong. First, the Article demonstrates that the original understanding, which prevailed for over one hundred years, did not grant Congress the power to ban markets. Congress could pass “helper” statutes to facilitate state choices, and it could even ban particular goods (such as diseased cattle) “in service” of the interstate market; but it could not simply prohibit all commerce in products of which it disapproved. Second, the Article demonstrates that although this understanding changed following the 1903 Supreme Court decision in Champion v. Ames, none of the reasons supporting the change justify Congress possessing the power today. Finally, this Article examines theoretical justifications for congressional power grounded in law and economics and constitutional theory to suggest that the power “to regulate” interstate commerce should not be understood to include the power to prohibit it. The argument has implications for national bans on articles and activities such as interstate gambling, drugs, raw milk products and assault weapons.
posted by Gerard Magliocca
Over the weekend I was wondering about one way in which a bill no longer becomes a law. Article I, Section 7, gives the President three options about what to do when Congress passes something. He can sign it within ten days. He can veto it within ten days. Or he can do nothing. If he does nothing right before a congressional recess or an adjournment, the law can be pocket vetoed. That happens from time to time.
What presidents do not do anymore is refuse to sign a bill that they don’t like and allow it to become law. This used to happen in the 19th century. At some point, though, this practice died out. Presidents used to refuse to sign as a kind of protest. Today they sign and issue a signing statement listing all sorts of objections to the legislation. Setting aside whether you think that is a valid practice, I’m curious why the “no signing” custom became extinct.
posted by UCLA Law Review
Volume 60, Discourse
posted by Gerard Magliocca
In recent years, some conservative scholars and bloggers have advanced the argument that the word “proper” in the Necessary and Proper Clause should be read as a limitation on congressional authority. (In other words, a federal statute can be necessary but not proper.) I’m not persuaded by this argument, but I thought I’d throw in a quotation from Bingham discussing this topic on the House floor in 1862.
“Congress is the sole judge of what legislation is ‘necessary and proper’ for the common defense, the suppression of insurrection, the repelling of invasion, and the defense of the Constitution. The word necessary as used is not limited by the additional word ‘proper,’ but enlarged thereby.”
Now I’ll grant that you could say that “proper” should be read differently in wartime as opposed to peacetime, but it would be odd to say that in one case it adds power while in the other it subtracts power. This debate, though, speaks to a broader problem. It would appear that “necessary and proper” was a phrase that was conjured out of thin air at the Constitutional Convention. I don’t know of any prior uses of that phrase that would shed light on what it was supposed to mean, though I’m going to look into that.
posted by Jay Kesten
In an earlier post, I outlined an argument that – despite having attracted a fair amount of criticism – the Supreme Court’s vision of corporate political activity may have substantial normative merit from a corporate governance perspective. In this post, I’ll describe that vision in two related parts. First, whose expressive rights are being vindicated when corporations engage in political activity? And second, what internal governance structures should regulate how and when corporations speak?
The first question raises a tricky issue at the intersection of constitutional law and corporate theory. Corporations are legal fictions, albeit exceedingly useful ones. They are not self-aware, they have no conscience, and they cannot act or speak except through human beings. Yet, the law has long treated corporations as legal “persons” for most purposes, including eligibility for many (though not all) constitutional protections. This treatment poses a metaphysical question: just what sort of “person” is a corporation? To answer this question, the Supreme Court has historically relied on several theories of the corporation: the grant (or concession) theory, the aggregation theory, and the real entity theory. Briefly, the grant theory views the corporation as purely a creature of the state, having only the rights and protections provided by statute, and thus broadly vulnerable to government regulation. The aggregation theory looks past the corporate form to the individual members or shareholders exercising their freedom of associating for some legitimate business, and concludes that corporations must thus have whatever powers and privileges necessary to vindicate the rights of those underlying constituents. The real entity theory posits that corporations exist independently of their constituents or the statutes authorizing them, and are thus a distinct entity entitled to all (or at least most) of the rights of natural persons. The Supreme Court’s corporate jurisprudence has, infamously, cycled repeatedly and inconsistently through each of these theories, often employing multiple theories in the same case.
In contrast to this general indecisiveness, though, the Court’s corporate political speech cases fairly clearly adopt a version of the aggregate view. I treat the language from the cases in more detail in this paper, but the core idea – which flows from the early cases concerning corporations’ right to lobby, through Bellotti and more recently Citizens United - is that First Amendment speech rights inure to human beings. Thus, when corporations speak they do so on behalf of the human constituents acting collectively through the corporate form. As Justice Scalia explains in his Citizens United concurrence: “[t]he authorized spokesman of a corporation is a human being, who speaks on behalf of the human beings who have formed that association.”
As to the second question, the Court gives a firm but vague response: shareholders, acting through the procedures of corporate democracy, decide whether and how their corporations should engage in public debate. Yet, it’s not exactly clear what the Court means by “corporate democracy.” As a matter of corporate law, that concept is not self-defining; the proper allocation of decision-making power between managers and shareholders is one of the central, unresolved debates in modern corporate law. One can, however, glean three key principles from the Court’s decisions. First, the decision-making process is necessarily majoritarian. Some shareholders may dissent from the decision, but their remedy (if any) lays elsewhere. Second, the process must actually vindicate shareholders’ concerns. The Court concluded that shareholders need no legal protections external to corporate law because any ”abuse[s]” – referring to managerial decisions that do not accord with the majority’s desires – can be “corrected by shareholders” through this process. Finally, the Court seems to contemplate something broader than merely the representative democracy of electing the board. As Justice Powell notes in Bellotti, shareholders should be able to privately order their preferences as to corporate political activity by “insist[ing] on protective provisions” in the corporation’s constitutional documents, which would bind managerial authority ex ante.
Some claim that the combination of these criteria simply illustrates the Court’s misunderstanding of modern corporate law. Shareholder control rights within public firms are largely illusory. Even a majority of shareholders cannot insist on corporate action outside of certain limited circumstances, and the directorial election process usually leaves much to be desired in terms of disciplining management.
I argue, though, that there is a ready-made governance structure that conforms with this framework: allow shareholders to enact intra-corporate bylaws regulating corporate political activity, which (in most jurisdictions) they can do unilaterally by majority vote. In the next post, I’ll explain the mechanics of this approach, describe potential limitations arising from current jurisprudence concerning the scope of the shareholder bylaw power, and discuss pragmatic benefits to this form of private ordering.
posted by Gerard Magliocca
Before I move on to another topic, I want to wrap this one up by explaining why I am thinking about this issue. Basically, I’m interested in how judges think about cases where the law or action before them is highly partisan. Formally, of course, this should not matter. In practice, though, courts are influenced by this, either because of their own partisanship or because they think that such laws ought to be reviewed more carefully. Now figuring out what effect, if any, this has on real cases will take a while. A good summer research project, you might say.
Consider one possibility though. When the individual mandate was before the Supreme Court, many said that it would be wrong for a group of Justices chosen by one party to strike down the major party program of the other party. One might even say that this concern gave the Chief Justice pause. Where did that idea come from, at least with respect to people who were not just using it as a convenient argument?
Anyway, tomorrow I’ll turn to a set of posts about something that I’m writing about the mechanics of constitutional change.
posted by Gerard Magliocca
Reconstruction also presented some more challenging examples of the anti-partisan principle. Let’s consider some:
1. The Exclusion of the South from Congress.
In 1865, the Thirty-Ninth Congress refused to seat the Senators and Representatives of the eleven ex-Confederate States. They were all Democrats, and the folks doing the excluding were mostly Republicans. How is that consistent with the anti-partisan principle?
One point worth making about this is that under normal conditions we would think that a partisan use of the Guarantee Clause would be out of bounds, even though it represents a political question. (I think we would, by the way, say the same thing about the suspension of habeas corpus.) The aftermath of the Civil War, of course, was an extraordinary circumstance where this kind of treatment could be justified, though it was a hard question that President Johnson fiercely contested. (One could make a similar point about the process that was used to ratify the Fourteenth Amendment, of course.)
2. The 1876 Electoral Commission
When Rutherford B. Hayes and Samuel Tilden ended up in what was essentially a tie after the 1876 presidential election, Congress created a special body to rule on the disputed electoral votes of three states. That jury consisted of seven Republicans and seven Democrats. The last member was supposed to be an independent Supreme Court Justice (David Davis), but when he was appointed to the Senate by Illinois the slot went to Justice Bradley, a Republican. The commission then voted along party lines to give Hayes, the Republican, the presidency.
Resolving contested presidential problems (as the 2000 election demonstrated) is an especially difficult problem. Is there a nonpartisan way of deciding something so important? Doesn’t everyone who would be trusted with the power to decide have a vested interest in the outcome? Even if people are acting in a neutral way, will people believe that? I’m not sure that this tells us much, though it is worth noting that Congress at least tried to ensure party balance on the Commission.
3. Andrew Johnson’s Use of the Pardon Power
In the midst of his war with Congress, President Johnson issued a blanket pardon to almost every ex-Confederate. They were, again, almost all Democrats, and so was he. Once again, under normal circumstances this would be considered an abuse of power, and perhaps even an impeachable offense. Was that true then? Again, it’s hard to say.
Monday I will talk about what all of this means for courts.
posted by Gerard Magliocca
I want to make some other observations about what I’m calling the anti-partisan principle before I wrap this up next week and start grading exams.
One perplexing constitutional anomaly is the lack of congressional representation for the District of Columbia. The Twenty-Third Amendment, of course, gave DC the right to choose presidential electors. Another amendment was passed by Congress in the 1970s to give DC congressional representation, but that was not ratified. Many statutes have been proposed to accomplish the same goal, but none have passed. One could imagine a law that admits most of DC as a state so long as some inner core remains to satisfy the requirement that there be a federal district as the seat of government. (Just giving DC voting rights or admitting the whole district as a state may be unconstitutional, even though there is a question about whether that would be justiciable. Can the Supreme Court declare a state illegal?)
Why isn’t DC represented by voting members in Congress today? The answer is that everybody knows that they would all be Democrats. As a result, the GOP blocks any such proposal. The same might well be true if Puerto Rico ever applies for statehood, though that is less clear. Note that this is not true for all state admissions. Most territories do not have a predictable voting pattern when admitted. Indeed, the District of Columbia itself was not clearly aligned when the Twenty-Third Amendment was ratified, which probably explains why the amendment was ratified.
Does this mean that we would think it is fundamentally wrong to admit a state when that admission would benefit only one party? I would say no. If there were five such states at once, though, that would raise legitimate concerns of “state-packing.” We got close to this during Reconstruction. The GOP tried to admit at least two states over President Johnson’s vetoes because they knew they would be represented by Republicans in the Senate, but they only managed to admit one (Nebraska). Indeed, there was even talk of doing this during Johnson’s impeachment trial, as that could have changed the verdict.
More examples of a hypothetical vein tomorrow.
posted by Gerard Magliocca
I came across an interesting bit of trivia yesterday that I wanted to share. Section Three of the Fourteenth Amendment states:
“No person shall be a Senator or Representative in Congress . . . who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or an as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” [By a two-thirds vote, Congress may remove the disability.]
Now this provision was obviously directed against ex-Confederate officials. In 1919, though, the House of Representatives invoked Section Three to exclude Victor L. Berger, who was elected from Wisconsin as a Socialist. Berger was excluded because he opposed our involvement in World War I, was German, and was convicted under the Espionage Act (though that conviction was reversed by the Supreme Court). After his exclusion, Berger’s constituents elected him again, and the House excluded him again. He was elected for a third time in 1922 and was finally seated.
It’s worth noting that this means there are really four qualifications for election to Congress. There’s age, citizenship. residency, and “not being disloyal.”
posted by Gerard Magliocca
I’ve talked about my research on the anti-partisan principle with respect to political precedents (or constructions) set during the “Revolution of 1800″ and slavery. Now let’s turn look at two other prominent examples.
1. The Impeachment of Andrew Johnson.
The chief lesson that we now draw from the acquittal of Andrew Johnson is that presidents should not impeached and removed merely because they are unpopular or at odds with Congress. In other words, the principles implicated are separation-of-powers and respect for the fixed term of four years. The story is more complicated than that, as my Bingham biography explains. But there also a basic problem with the standard description.
The removal of President Johnson would have caused a transfer of party power by Congress. Johnson was a Democrat who was part of a unity ticket in 1864. After Lincoln’s assassination, the Vice-Presidency was vacant. If Johnson had been removed, the new President would have been Benjamin Wade, a Radical Republican from Ohio who was the President Pro Tempore of the Senate. (That was how the line of succession was set up then.) My description of the Johnson precedent an an anti-partisan event is a better description, although after the ratification of the Twenty-Fifth Amendment the issue is usually moot since a loyal running mate will typically succeed an impeached and removed President.
2. The Court-Packing Plan
As I pointed out in my initial post on this subject, the number of Supreme Court Justices is not constitutionally fixed at nine. The defeat of FDR’s 1937 proposal, though, does establish that any attempt to change the number of Justices on a partisan basis is wrong. Giving a President and his party four new Justices through a statute or extraordinary event, such as a plane crash, is viewed as “unconstitutional,” even though, formally, it is not. That was not true prior to the 1930s–the Court’s size was manipulated for partisan reasons during the Johnson presidency and people thought that was OK.
Next time I’ll talk about some other modern precedents related to the admission of states.
posted by Gerard Magliocca
I’ve posted a revised version of my paper, with a new title. This draft talks a good deal more about West Virginia State Board of Education v. Barnette and adds some other significant details.
posted by Stanford Law Review
The Stanford Law Review Online has just published a Note by Anjali Motgi entitled Of Arms and Aliens. Ms. Motgi examines, in light of the Newtown tragedy in December, how the Second Amendment has continued to fuel debate over a topic of national importance: the rights of illegal immigrants.
Still, the questions that compelled the Tenth Circuit not to touch the Second Amendment issue—including whether gun ownership is a “private right not generally denied aliens, like printing newspapers or tending a farm,” or is, like voting, limited to citizens—must one day be answered. Meanwhile, district courts have offered their own analyses of the meaning of “the people.” And this issue is one that could potentially align normally opposed constituencies: conservatives who seek to prevent government abuse by supporting the fundamentality (and therefore the expansive scope) of the Second Amendment as an individual right, and progressives who seek to expand our notion of community by increasing the panoply of rights to which immigrants have access.
Behind all of this dwells the idea that we are a “people,” a notion that undergirds not just diverse areas of American jurisprudence but also our public imagination. Bracketing the controversy over what the Second Amendment protects—possession of semiautomatic assault rifles and large stores of ammunition or something less—to consider the co-occurrence of the Fourth Circuit ruling in Carpio-Leon and the Sandy Hook tragedy raises a peculiar juxtaposition around the “who” of this right: is a father who keeps a rifle at home to protect his wife and three children, or a ranch hand who carries a gun to guard farm animals against predators, less a member of “the people” than a suburban divorcée with a passion for trips to the shooting range? Whatever the Founders meant in drafting the Second Amendment, it seems improbable that they foresaw that it would become a locus for public dialogue about the boundaries of the national community.
posted by Gerard Magliocca
This is tangential to my last couple of posts, but I want to make an observation about the way that congressional election disputes are resolved. The Constitution gives each House of Congress the power to “be the judge of its elections, returns, and qualifications of its own members.” Well into the twentieth century, disputed House or Senate elections were resolved by Congress. That has not happened, though, in the last thirty years. (The last case came from a House race in Indiana.) Since then, every contested election for Congress was decided by state courts under state law.
There are two interesting facets of this. The first is that this constitutes an extraordinary delegation of authority. Indeed, this could be the only example of a congressional power being delegated completely (and without any guiding principle) to the states. Second, the decision to do this may be based on the idea that Congress cannot fairly judge such issues. Why? Because it would just be done on a party-line vote.
posted by Gerard Magliocca
Another set of examples that illustrates what I’m calling the anti-partisan principle (or norm) comes from the slavery era. While we think of partisanship in terms of party, in that era the fundamental division in society was between slave states and free states. The Constitution made some efforts to preserve a balance of power between those factions, most notably in the Fugitive Slave Clause, the Direct Tax Clause, which made it difficult for Congress to tax slaves, and the Importation Clause, which guaranteed the right to import slaves for a minimum of twenty years.
This structural design was extended in a series of measures adopted during the ante-bellum period. The Missouri Compromise of 1820 and the Compromise of 1850 each consisted of a series of laws that were enacted as a package to maintain the slavery/freedom balance. One component of these deals was that the number of free and slave states should be equal. That equilibrium lasted from the 1810s until 1850. When California was admitted in 1850, a further arrangement was made that one of its senators would support slavery and one would oppose it, which, if you think about it, was a pretty significant limit on state sovereignty.
The Civil War resulted from the breakdown of this fundamental principle that the slave and free factions must be balanced. Lincoln famously said that the Union could not remain half free and half slave. Dred Scott declared the Missouri Compromise unconstitutional. And Minnesota was admitted in 1858 as a free state while Kansas was not admitted as a slave state. The violation of the anti-partisan norm triggered the South’s secession. Consider the following question. Why did the South secede in 1860-61? They could block any constitutional amendment on slavery. Lincoln pledged in his First Inaugural that he would not touch slavery in the states where it already existed. These guarantees, though, were not good enough because he no longer would guarantee that slavery interests would be given equal weight within the Federal Government. So they left.
The difference between political partisanship and slavery is that the Framers were unfamiliar with the former but familiar with the latter. That is why you could find explicit efforts to balance the factions in one but not the other.
Tomorrow I’ll move on to another set of examples that postdate
posted by Gerard Magliocca
To return to my posts from last week, I’m working through the idea that there is an unwritten constitutional principle (or, if you do not like that phrase, a powerful norm) holding that changes to the structure of government cannot be undertaken when they would lead to a substantial and foreseeable partisan advantage. This is a logical extension of Federalist #10. Madison argued there that an object of constitutional design was to prevent any one faction from gaining too much power. Sometimes, though, the constitutional design is inadequate. At that point, though, public opinion, elite opinion, and the courts step in to preserve the balance of power.
The first set of precedents expressing this anti-partisan tenet with respect to political parties came in the aftermath of Jefferson’s election in 1800, which marked the first transfer of power from one party to another. Consider one of the famous incidents from that era–the “Midnight Judges” nominated by President John Adams. After the election, the Federalist Congress enacted (and Adams signed) the Judiciary Act of 1801. This Act, among other things, created many new federal judgeships. Adams nominated and the Senate confirmed men for these seats on the eve of Jefferson’s Inaugural.
Today we think that this action was deeply wrong. Why? The Judiciary Act of 1801 was not unconstitutional. Nor was there anything illegal about the subsequent appointments. The “Midnight Judges” are an anti-precedent because they were done by a lame-duck President and Congress for a significant and definite partisan advantage. Why is that important? Because it helps explain why the repeal of the Judiciary Act was constitutional. When scholars look at Stuart v. Laird, the 1803 case that upheld the repeal, it is often seen as an example of the Supreme Court folding in the face of political pressure. Viewed in light of this anti-partisan principle, the Court’s decision was sound. When in doubt, brazen partisan power grabs cannot stand.
Consider another example from this era–the impeachment of Justice Samuel Chase in 1805. The failure of the Senate to convict Chase (a Federalist) is now seen as a precedent establishing that Justices may not impeached for expressing views that are unpopular. Another way of viewing that acquittal, though, is that the impeachment and removal of Justices of one party by the other party is fundamentally wrong because it would allow a party to take advantage of a temporary supermajority in Congress to purge the Court and replace the Justices en masse.
Tomorrow I will take a look at additional examples, as I build toward articulating something about Chief Justice Roberts’s opinion in Sebelius.
posted by Gerard Magliocca
I want to draw your attention the following article by Kathryn Watts on “Judges and Their Papers.” It’s fair to say that I’m biased as a historian in thinking that researchers should have broad access to legal materials, but . . .
Here’s the Abstract:
Who should own a federal judge’s papers? This question has rarely been asked. Instead, it has generally been accepted that the justices of the U.S. Supreme Court and other federal judges own their own working papers, which include papers created by judges relating to their official duties, such as internal draft opinions, confidential vote sheets, and case-related correspondence. This longstanding tradition of private ownership has led to tremendous inconsistency. For example, Justice Thurgood Marshall’s papers were released just two years after he left the bench, revealing behind-the-scenes details about major cases involving issues like abortion and flag burning. In contrast, Justice David Souter’s papers will remain closed until the 50th anniversary of his retirement, and substantial portions of Justice Byron White’s papers, including files relating to the landmark case of Miranda v. Arizona, were shredded. In addition, many collections of lower federal court judges’ papers have been scattered in the hands of judges’ families. Notably, this private ownership model has persisted despite the fact that our country’s treatment of presidential records shifted from private to public ownership through the Presidential Records Act of 1978. Furthermore, private ownership of judicial papers has endured even though it has proven ill-equipped to balance the many competing interests at stake, ranging from calls for governmental accountability and transparency on the one hand to the judiciary’s independence, confidentiality and collegiality on the other.
This Article is the first to give significant attention to the question of who should own federal judges’ working papers and what should happen to the papers once a judge leaves the bench. Upon the 35th anniversary of the enactment of the Presidential Records Act, this Article argues that judges’ working papers should be treated as governmental property — just as presidential papers are. Although there are important differences between the roles of President and judge, none of the differences suggest that judicial papers should be treated as a species of private property. Rather, the unique position of federal judges, including the judiciary’s independence, should be taken into account when crafting rules that speak to reasonable access to and disposition of judicial papers — not when answering the threshold question of ownership. Ultimately, this Article — giving renewed attention to a long forgotten 1977 governmental study commissioned by Congress — argues that Congress should declare judicial papers public property and should empower the judiciary to promulgate rules implementing the shift to public ownership. These would include, for example, rules governing the timing of public release of judicial papers. By involving the judiciary in implementing the shift to public ownership, Congress would enhance the likelihood of judicial cooperation, mitigate separation of powers concerns, and enable the judiciary to safeguard judicial independence, collegiality and confidentiality.
posted by Gerard Magliocca
Yesterday I said that I would do a set of posts on unwritten constitutional norms. (I won’t say “unwritten unwritten,” as that went over like sour milk.) One of my observations was that the Court-packing crisis of 1937 should be understood as holding that fundamental structural change may not be undertaken in a knowingly partisan way. In other words, the problem is not whether Congress expands the size of the Supreme Court. The problem is doing that in a way that is intended to benefit a particular faction.
This anti-partisan principle connects many of the other powerful precedents set by the political branches. Consider some examples:
1. Justices may not be impeached and removed due to mere political or ideological disagreements. (The failed impeachment of Samuel Chase).
2. The President may not be impeached and removed due to mere political or ideological disagreements. (The failed impeachment of Andrew Johnson, though this only works as I’ve framed it if that removal would turn the White House over to a different faction, which was true in 1868.)
3. The antebellum rule that a state could not be admitted if that would upset the balance between free and slave states. (1820-1861)
4. The admission of Hawaii (a Democratic state) and Alaska (a Republican state) as a pair in 1959. (This also, BTW, probably explains why the constitutional amendment proposed by Congress to give DC congressional representation was not ratified by the states in the 1970s. Everybody knew that would mean two more Democratic Senators for decades.)
5. The way in which the size of the House of Representatives was adjusted from 1789 until 1929 (when the number was basically fixed at 435). (I’ll explain that more later.)
None of these are judicially enforceable, of course. A more difficult question is whether, as I’ve previously suggested, this could also explain why the Chief Justice refrained from striking down the individual mandate.
Anyway, no more posts until Monday. The Masters is on, you know.
posted by Gerard Magliocca
I’m going to do a series of posts on what I think will be my next article (or maybe a book). I’ve talked before about the idea that there is a powerful unwritten unwritten constitution. Let me begin by explaining what I mean by this through two examples.
First, there are some acts that would be deemed constitutional in the Supreme Court or in the highest forum of review, but would nonetheless be considered unconstitutional by most voters and elites. How can that be? Consider an analogy. Can the British Parliament do something unconstitutional? One view is no. Parliament is sovereign. It gets to decide what is constitutional. But that is not how the unwritten constitution is understood in the UK even though there is no judicial review. Certain practices or statutes are viewed as fundamental and can only be changed after extraordinary consideration (two general elections, a referendum, etc.) Where do these limits come from? From some deeper view of what the Constitution is–the unwritten unwritten law.
I’m going to give many examples of this phenomenon, but here’s one. It is constitutional for Congress to expand the size of the Supreme Court. The text clearly gives that authority to Congress, and it has been exercised in the past. If it was exercised tomorrow, no court could strike it down. When FDR tried this in 1937, though, lots of people argued that it was unconstitutional. Why? Because they came to believe that a partisan expansion of the Supreme Court would be totally inconsistent with separation of powers and the rule of law. Now consider an alternative that I discussed with my students. Suppose we really thought that the Supreme Court would function better with 15 members. How could that be done? Probably the answer would be to give each party three Justices in that reform. Most people would think that was constitutional. In both cases, however, an unwritten unwritten principle is being invoked–partisan balance with respect to fundamental structural change. (Another version involves a hypothetical plane crash that kills four Justices. I doubt that the President could just pick four replacements that he likes, confirmed by a Senate controlled by his party. That would lead to a “constitutional crisis.”)
Second, there could be some force that limits constitutional actors in practice even though it will never be openly stated. Try this one on. Why would a decision declaring same-sex marriage a constitutional right not lead to a decision that polygamy is a constitutional right? Now we could answer this by exploring the differences between the two and drawing a principled line between them. But we could also say the following: Polygamy will not be recognized as a fundamental right because no state permits it. This is just another way of describing the state of public or elite opinion, of course, but that could lead us inductively to conclude that “The Supreme Court will not declare something illegal in all 50 states to be constitutionally required.” We could take that further and say “2/3 of the states,” “3/4 of the states,” or some other ratio. If the Supreme Court does not strike down same-sex marriage across the board in June, it is probably not because of the doctrine or the logic. It is because, I submit, too many states still ban same-sex marriage. There is, in that sense, an important unwritten norm stemming from federalism that constrains the Court.
Anyway, I’ve got a lot more of these to go through. Hope it will be fun for you.
posted by Gerard Magliocca
I was reading the Constitution the other day (’cause that’s what people like me do in their spare time), and I paused over something in the Twenty-Third Amendment that I had not thought about. The Amendment gave the District of Columbia the right to vote in presidential elections, but the text specifically says that the District shall not be entitled to more electoral votes “than the least populous state.” So even though Washington DC has more people than Vermont or Wyoming, the District cannot get more electoral votes than they do.
In practice, I do not think that this has mattered since the 23rd Amendment was ratified. In other words, the District has not been entitled under the standard calculation to anything other than three electoral votes over the past fifty years (1964 was the first presidential election in which DC voted). That could change at some point, though, and I wonder why this provision was included. Just to make it clear that the District is second-class? You would think that denying Washington DC its own Senators and Representative would make that plain enough.