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Category: Constitutional Law

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The Constitutional Convention Countdown

Scene_at_the_Signing_of_the_Constitution_of_the_United_StatesLast week the Michigan Legislature voted to call for a constitutional convention under Article V to propose a Balanced Budget Amendment.  This means that 34 states have now issued such a call.  Or maybe it’s less than that.  Let me explain.

The problem is that some states have repealed their prior calls for a Balanced Budget Amendment.  Thirty-four is the right count only if none of those repeals are valid.  But are they valid?  I think it’s up to Congress.  Coleman v. Miller held that Congress gets to decide whether a state has ratified an Article Five Amendment.  During Reconstruction, Congress counted some states as “yes” votes for the Fourteenth Amendment (e.g., Ohio) even though they had repealed their ratification. Coleman concluded from this precedent that the question of state ratification was a political question.  The same logic applies, in my view, as to whether a state has asked for a constitutional convention.

Giving Congress discretion over this question, of course, does not answer the question of whether a state repeal is valid.  There are good reasons to think that a state should be able to issue a repeal of a convention summons.  Insisting on the opposite view would mean that one legislature could bind all of its successors, which is generally a no-no in Anglo-American law. On the other hand, the Fourteenth Amendment precedent takes the opposite stance–those repeals were not allowed.  It’s fair to say, though, that Congress will probably bend over backwards (as long as Democrats control the Senate anyway) to find a way to not count in enough states for a constitutional convention.

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FAN.9.1 (First Amendment News) — McCutcheon Wins: Supreme Court strikes down aggregate limits law

Only minutes ago the U.S. Supreme Court handed down its ruling in McCutcheon v. FEC, the aggregate limits campaign finance case.

Link to opinion is here.

Vote to Reverse:  5-4 (sustaining First Amendment claim)

Plurality Opinion:  Chief Justice John Roberts (joined by Justices Scalia, Kennedy & Alito)

Concurring Opinion: Justice Clarence Thomas (would overrule Buckley)

Dissenting Opinions: Justice Stephen Breyer joined by Justices Kagan, Ginsburg, & Sotomayor.

The issues before the Court were: (1) Whether the biennial limit on contributions to non-candidate committees, 2 U.S.C. § 441a(a)(3)(B), is unconstitutional for lacking a constitutionally cognizable interest as applied to contributions to national party committees; (2) whether the biennial limits on contributions to non-candidate committees, 2 U.S.C. § 441a(a)(3)(B), are unconstitutional facially for lacking a constitutionally cognizable interest; (3) whether the biennial limits on contributions to non-candidate committees are unconstitutionally too low, as applied and facially; and (4) whether the biennial limit on contributions to candidate committees, 2 U.S.C. § 441a(a)(3)(A), is unconstitutional for lacking a constitutionally cognizable interest.

Commentary: SCOTUSblog (Amy Howe): “The Court rules in the Chief’s opinion that the aggregate limits do not further the permissible government interest in preventing quid pro quo corruption or the appearance of such corruption.”

 Lawyers: Supreme Court

For Appellant Shaun McCutcheon: Erin Murphy (lead counsel) & Paul Clement

For Appellant RNC: James Bopp, Jr. (NB: Though the NRC brief was prepared by Mr. Bopp, Ms. Murphy argued the case for both McCutcheon and the RNC)

For Senator Mitch McConnell (amicus): Bobby Burchfield 

For Appellee: Solicitor General Donald Verrilli, Jr.

Oral Arguments 

Resources & Related Materials 

  • Lower Court opinion (per Judge Janice Rogers-Brown) (argued by James Bopp, Jr., for Appellant)

Selected Supreme Court Briefs

  • Cert. Petition of Shaun McCutcheon & RNC (James Bopp, Jr., counsel of record)
  • Merits Brief of Appellant RNC (James Bopp, Jr., counsel of record)
  • Merits Brief of Appellant Shaun McCutcheon (Michael T. Morley, counsel of record)
  • Reply Brief of Appellant Republican National Committee  (James Bopp, Jr., counsel of record)
  • Amicus Brief of Sen. Mitch McConnell (Bobby Burchfield, counsel of record)
  • Amicus Brief of the Cato Institute in support of the Appellant (Ilya Shapiro, counsel of record)
  • Amicus Brief of Thomas Jefferson Center for the Protection of Free Expression and the Media Institute in support of the Appellant (J. Joshua Wheeler, counsel of record)
  • Brief of Appellee FEC (S.G. Donald Verrilli, Jr., counsel of record)
  • Amicus Brief of Brennan Center for Justice in support of Appellee (Daniel Kolb, counsel of record)
  • Amicus Brief of Americans for Campaign Reform in support of Appellee (Charles Fried)
  • Amicus Brief of Democratic Members of the U.S. House of Representatives in support of Appellee (Paul M. Smith, counsel of record)
  • Amicus Brief of Representatives Chris Van Hollen & David Price in support of Appellee (Seth Waxman, counsel of record)
  • Amicus Brief of Professor Lawrence Lessig in support of Appellee (Douglas T. Kendall, counsel of record)
  • For Additional Briefs, go here (ABA site)

Books, Symposia & Articles

  • SCOTUSblog Symposium on McCutcheon (forthcoming, 2014) (contributors: Jan Witold Baran, Richard Hasen, Burt Neuborne, Ilya Shapiro, & Fred Wertheimer)
  • SCOTUSblog Symposium on McCutcheon (Aug., 2013) (contributors: Erwin Chemerinsky, Ronald Collins, Robert Corn-Revere, Joel Gora, Justin Levitt, Tamara Piety, David Skover, & Adam Winkler)
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FAN.9 (First Amendment News) — Sunstein on Sullivan & its “Dark Side”

In the wide-open, robust, and uninhibited world of the First Amendment, nothing is sacred, not even the hallowed opinion in New York Times, Inc. v. Sullivan (1964). Case in point: Justice Antonin Scalia’s originalist reservations about Justice William Brennan’s constitutional handiwork in that landmark case. But alas, the conservative jurist is not alone. Enter the sometimes liberal Harvard Law Professor Cass Sunstein, who has recently authored an op-ed titled “The dark side of the First Amendment” (Bloomberg, March 26, 2014).Unknown

Some two decades ago, in his Democracy and the Problem of Free Speech, Professor Sunstein labeled the Sullivan case as “one of the greatest cases of modern free speech law.” Even so, he made it clear in that book and in later works that his understanding of the Sullivan principle was a cabined one. Later, in an August 21, 1995 review essay in The New Republic, he spoke of the question of causation, among other things. There Sunstein maintained that “it isn’t necessary to demand proof of causation before encouraging greater responsibility on simple prudential grounds.” In that regard, he argued that cultural questions should not be confused with constitutional ones when it comes to questions of causation. It is against that backdrop that we return to his views on Sullivan, which are at once somewhat laudatory and at the same time rather cautionary.

On the occasion of the 50th anniversary of Sullivan, Sunstein writes: “amid the justified celebration, we should pay close attention to the dark side of New York Times vs. Sullivan. While it has granted indispensable breathing space for speakers, it has also created a continuing problem for public civility and for democratic self-government.” (emphasis added).  Later on in his op-ed, he was more modest in his critique: “False accusations are hardly new. But New York Times vs. Sullivan can claim at least some responsibility for adding to a climate of distrust and political polarization in the U.S.” (emphasis added). Having said all of that, in the end he conceded that “the Court got the balance right” in Sullivan. What are we to make of this?

A few preliminary responses, first my own, and then some from a colleague. If I read him correctly, Professor Sunstein seems to be saying that constitutionally speaking Sullivan is a good thing, but culturally speaking it is not, or may not be so wonderful. Fair enough, for general discussion purposes anyway. That said, it must be remembered that we pay a price for liberty. So much for the constitutional side of the equation. On the cultural side, however, Sunstein seems to make his case on the back of a weak causation claim (recall: “it isn’t necessary to demand proof of causation . . . .”). That leads me to wonder: Is it unreasonable to expect that any meaningful cultural critique of Sullivan be related in some actual sense to questions of proof of causation? In other words, should cultural critiques be oblivious to what science can tell us, or at least suggest to us? Granted, one might understandably deplore the state of “discourse” in modern America.  But faulting Sullivan is another matter. More importantly, what is sorely missing from Professor Sunstein’s cultural critique is a critique of the culture writ large. By that measure, Sullivan may make for a convenient scapegoat, but little more, at least standing alone.

By way of another look, American University law professor Stephen Wermiel, who co-authored the seminal biography of Justice Brennan and more recently co-authored a book on Sullivan and its legacy, offered the following comment on Professor Sunstein’s article:

“Professor Cass Sunstein joined the fiftieth anniversary celebration of New York Times v. Sullivan, but bemoaned the ability of “talk show hosts, bloggers and users of social media” to “spread ugly falsehoods in an instant,” adding to “a climate of distrust and political polarization.” But Sunstein’s concerns lay too much blame on the shoulders of Sullivan. That unanimous ruling did not create a society in which free-flowing criticism, replete with occasional falsehoods, is rampant. That culture already existed; Sullivan only helped to fit it all into a robust constitutional democracy. To the extent that Sunstein’s criticism turns on the proliferation of instant means of communication, he gives too little weight to the access that victims of social media have to respond. Moreover, Justice Brennan, the author of Sullivan, was not alone in his belief that society benefits from “robust and wide-open debate.” It was, after all, the more judicially modest Justice John Harlan who 1971 observed that the ability of society to handle the cacophony of free speech is a sign of strength, not weakness.”

Returning to the constitutional side of the ledger, in his latest book (Conspiracy Theories and other Dangerous Ideas) Professor Sunstein further elaborates on his ideas about the virtues of “minimalist” judging, which makes one wonder if he would have indeed signed onto what Justice Brennan wrote in Sullivan. My guess: no.

Watch your calendar: The petition in Elane Photography, LLC v. Willock is scheduled to be considered at the Court’s April 4th Conference.

Note: I plan to have immediate and updated postings re McCutcheon v. FEC, the campaign finance First Amendment case now awaiting a ruling from the Supreme Court.

Journalists & “qualified First Amendment privileges”

Joel Kurtzberg of Cahill Gordon & Reindel has just filed a cert. petition in the case of Risen v. United States in which two issues are presented: (1) Do journalists have a qualified First Amendment privilege when subpoenaed to reveal the identity of confidential sources in a federal criminal trial?, and (2) should a federal common law privilege be recognized under Federal Rule of Evidence 501 to provide protection to journalists who are subpoenaed to reveal the identity of their confidential sources in a federal criminal trial? Read More

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Bright Ideas: Prof. Rick Hasen on the Recent and Future Voting War Engagements

There has been a tremendous amount of activity around election law since 2000. Decisions by the Supreme Court, district courts, and legislatures are affecting the future of how our country votes. The fights are in some ways old as voting is always political, but are new as the battlegrounds have changed. I am excited to welcome Professor Richard L. Hasen on Bright Ideas to get into some history, perspective on recent cases, and thoughts on where we need more research. As Professor Hasen says “The more we can address these points with facts and logic rather than hyperbole and assumption, the better.” Read on to find out the details.

Professor Hasen is Chancellor’s Professor of Law and Political Science at the University of California, Irvine. I have been fortunate to know his work in person from when he spoke at Thomas Jefferson School of Law about his book The Voting Wars: From Florida 2000 to the Next Election Meltdown. Professor Hasen is a nationally recognized expert in election law and campaign finance regulation, and is co-author of a leading casebook on election law. He is the author of more than 80 articles on election law issues, published in numerous journals including the Harvard Law Review, Stanford Law Review and Supreme Court Review. He was elected to the American Law Institute in 2009, and he was named one of the 100 most influential lawyers in America by The National Law Journal in 2013. We are are fortunate to have Professor Hasen with us today. With that let’s get to the questions.

Q: Rick, voting rights have taken on new importance. States are trying to pass laws that require proof of citizenship. The Supreme Court has rejected some attempts to require proof of citizenship in federal elections. But a federal judge in Kansas has just ruled that the federal government must aid states that wish to require proof of citizenship. Before we get into the details about whether that ruling makes sense, can you help folks understand what is going on? Why is there a renewed interest in voter registration?

A: The interest in voter registration is part of a broader interest in, and fights over, rules for how we run our elections, from registration, to voter i.d., to how to handle the ballots of people who vote in the wrong voting precinct. As I explain in my 2012 book, The Voting Wars, since 2000 we have witnessed a great struggle between the parties, and between the federal and state governments, over who controls the voting rules. The disputed 2000 election ending with Bush v. Gore showed everyone that in very close elections, the rules of the game can make a difference. Parties have been jockeying for position, with Republicans generally favoring laws making it harder to register and vote and Democrats making it easier. Both parties’ positions conveniently line up with their own electoral chances: an expanded electorate (full of poor, minority, and non-regular voters who are less likely to be registered) is believed to skew toward Democrats.

Q: Before we get into the recent cases, your mention of close elections makes me wonder, has something changed in the past twenty years? If I remember correctly, there have been a few other major elections at the state level where the vote came down to a handful of votes. It just seems odd that at a large scale, we are seeing major power shifts determined by a few hundred votes. I suppose the same could be said about Kennedy’s election. But still, does the closeness reflect something about political divisions, corruption, or something else?

A: I think something has changed. The amount of legislation on the state level has increased–at least if we think of controversial legislation. Further, the amount of election litigation has more than doubled in the period after the disputed 2000 election compared to the period before. Election law has become part of a political strategy. It is not just about litigating after a close election; it is about litigating before an election to get advantage under the rules.

Q: So it seems the fight for power has two shifts then. First, there are close elections. Second, there is the renewed and modern fights to control who votes. With that, what happened in Arizona v. Inter Tribal Council of Arizona, Inc.? What was the question and how did the Court come out on the issues before it?

A: Since Congress passed the 1993 National Voter Registration Act (NVRA, or “motor voter law,” because it mandates that motor vehicle departments offer voter registration), states have been required to accept a “federal form” for registering voters in federal elections. The Federal Election Commission used to be in charge of this form, but in 2002, when Congress passed the Help America Vote Act (HAVA) creating the United States Election Assistance Commission (EAC), the EAC has been in charge of the form.

Arizona asked the EAC to modify the form to require it to include a requirement that new residents in Arizona provide documentary proof of citizenship before registering to vote. The EAC deadlocked on the request. Arizona did not challenge the EAC determination in court. Instead, Arizona decided not to accept registrations on the federal form. Plaintiffs representing groups of voters sued to require Arizona to accept registrations submitted on the federal form. In the Arizona v. Inter Tribal case, the Supreme Court said that Congress had the power under the Elections Clause to set the “manner” of voting in federal elections, and on this basis Arizona could not refuse to accept the federal form.

In a twist, however, the Court (in an opinion by Justice Scalia) suggested that Arizona should sue the EAC for not requiring the citizenship information on the form. The Court noted that although the Elections Clause gives Congress the power to set the maner of federal elections, it gives states the power to set voter qualifications, even in federal elections. The Court further suggested that the EAC might not be able to promulgate a federal form which frustrates a state’s attempt to verify voter qualifications.

Arizona, joined by Kansas, filed just such a suit, and a federal district court just decided that suit. I offer my analysis here, and here is an important NY Times analysis of what may come next.

Q: Fantastic explanation. Thank you. I urge folks to look at Rick’s post and the Times piece. Although you are quite honest that you “do not know how this case will fare as it works its way up on appeal,” I’d like to close with a couple questions. First, the Times piece notes that Alabama is moving forward with its new voter requirements. It seems that the federal form would be quite complicated if it had to reflect 50 different voter qualifications. Furthermore if each, or even several, are challenged, whether a form is ever stable enough to use could be a problem. That may be a goal for some, but it makes me wonder at the odd outcomes. It has been some time since I took administrative law, but could the practical complications be a way to challenge the Scalia logic? It just seems strange that states can dictate to the federal government. Second, as broader question and to wrap up, do you have any suggestions about discrete topics professors or students should pursue on this topic (i.e., are there open issues on either side that merit study)?

A: On the specifics of the form, the EAC has made modifications before, and it is not clear that states wanting citizenship verification are going to demand different things–or that the different things can’t be easily pointed to on the form. I think the broader issue is whether states could stymie other federal laws, such as laws protecting military and overseas voters which require states to accept a “fail safe” federal ballot for voting. There’s lots of potential mischief in a muscular reading of states’ rights to enforce voter qualifications over Congressional election law power. Derek Muller flags some of these confusing points.

On the open questions there are so many, beginning with how to understand the borderline between state and federal power in this area. There is also a great need for more (and better) empirical work on the effect of these laws on turnout, fraud prevention, and voter confidence. The more we can address these points with facts and logic rather than hyperbole and assumption, the better.

Thanks for taking the time to listen!

Thank you, Rick for sharing your ideas and giving us a sense of things to come.

NOTE: This interview was written using Google Docs. I posed questions to which Rick replied, and we edited content for flow and clarity.

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My Textualist Moment — the Use of the Words “Person” or “Persons” or “People” in Our National Bill of Rights

There has been much talk lately about whether corporations are or should be “persons” under the First Amendment, both for free speech and free exercise purposes.images

In a textualist moment, this got me to thinking about the wording of our federal Bill of Rights and what light it might shed on this. Let’s start with the First Amendment. Its focus is a limitation on the powers of Congress and makes no mention of persons until the reference to “the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

The Second Amendment mentions people in a similar way: “the right of the people to keep and bear arms, shall not be infringed.”

The Third Amendment uses the word “Owner” but not person or persons or people.

The Fourth Amendment is quite explicit: It speaks of the “right of the people” and the rights of “persons.” So, too, with the Fifth Amendment and its reference to “person.”

The Sixth Amendment mentions the rights of “the accused” and likewise uses the male pronoun “his” and “him” in this regard.

The Seventh and Eighth Amendments are silent on the personhood question.

The Ninth Amendment, of course, refers to the rights “retained by the people.”

And the Tenth Amendment reserves rights to “the states respectively, or to the people.”

There you have it. What to make of it? Well, I leave that to others to decide since I am not a bona fide textualist fundamentalist, though I do think text matters as a part of the constitutional calculation of things. Y tu? What do you think? (Feel free to respond in either your individual or corporate capacity.)

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FAN.8 (First Amendment News) — Shaun McCutcheon to write e-book

Ever the entrepreneurial figure, Shaun McCutcheon, the man at the center of the latest campaign finance storm known at McCutcheon v. FEC, has decided to take his case to yet a higher plateau — he’s writing an e-book titled Outsider Inside The Supreme Court — A Decisive First Amendment Battle. “It’s mainly about the actual [experience of being] an activist plaintiff (a DC ‘outsider’),” he told me. The work will be an e-book consisting of nine chapters. According to Mr. McCutcheon, the e-book is being written with significant assistance from Richard E. Cohen, a seasoned correspondent for Congressional Quarterly and the National Journal. Cohen, who has written on politics (see, e.g., here) and campaign finance issues (see, e.g., here), reportedly began working on the writing project with Mr. McCutcheon in late November or early December of last year. (Mr. Cohen is no newcomer to the subject of campaign finance laws. See, e.g., his “Giving till It Hurts: 1982 Campaign Prompts New Look at Financing Races,” National Journal, Dec. 18, 1982.)

SM_Book_Cover_ConceptsHere is the opening paragraph from the first chapter of the forthcoming e-book: “I strongly believe in Freedom of Speech and your right to spend your money on as many candidates and political activities as you choose. Free political speech and assembly are especially important to the future, because we can’t change anything in Washington, DC if we can’t change whom we send to Washington. Supporting those we believe will bring about change – and doing so through transparent contributions — is a good thing.” (emphasis added) He goes on to note: “So I filed a lawsuit, which was argued before the United States Supreme Court on Oct. 8, 2013. As I write this I’m waiting on the High Court’s ruling. This e-book is about the case, and the legal and political forces that drive it.”

Not to be overlooked is his attorney, Erin Murphy, who argued his case in the Supreme Court. He quotes her early on in the work: “‘By prohibiting contributions that are within the modest base limits Congress has already imposed to combat the reality or appearance of corruption,’ Erin Murphy—a former clerk to Chief Justice Roberts, who has become a Supreme Court litigator with a Washington D.C. law firm—told the Justices, ‘these limits simply seek to prevent individuals from engaging in too much First Amendment activity.’”

Some of the other chapters (which are each 3,000 words or fewer) concern:mcc-shaun

  • How Shaun McCutcheon first got actively involved in politics
  • How his case evolved
  • The various attorneys (notably Dan Backer) with whom he has worked on his case
  • How the media has covered the case and controversy, and
  • How the Court will ultimately rule in his case.

McCutcheon’s aim is to provide “a rare inside perspective of the evolution of an important court case from the view of an Alabama businessman.” To that end, he hopes that his account “will help demystify an important part of how our government operates.”

The e-book is slated to come out sometime shortly after the Court rules in McCutcheon. Read More

Gluck on Halbig

The tough luck constitutionalists are pushing another line of attack on the Affordable Care Act.  As Abbe Gluck recently observed,

Health care reform won a big victory in court on January 15, when a federal judge in Washington, D.C., rejected a challenge to the new health insurance marketplaces, or exchanges, created under the Affordable Care Act (ACA). . . . [T]he court rejected as unsupported by the ACA’s history the argument that Congress viewed the subsidies as a “carrot” to induce the states to run the exchanges (and so had no need to provide them on the federal exchanges). Although today there is great “red state” resistance to the exchanges, when the ACA was drafted, congressional advocates for states’ rights clamored to let the states run them, and no one assumed that they wouldn’t. The fact that Congress failed to foresee today’s political environment doesn’t change what it originally intended.

For those interested in the appeal, Gluck has posted today on the challengers’ farrago of “kitchen-sink arguments, many of which are incompatible with the basic principles of statutory construction on which their briefs purport to rely and which evince a misunderstanding of the ACA’s procedural history.”  

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Originalism and a Road Draft

One tradition of the common law was that all able-bodied men could be compelled to provide labor to fix roads and bridges. In 1916, a Louisiana statute codifying this authority was challenged as unconstitutional under the Thirteenth and Fourteenth Amendments.  The Court, in an opinion by Justice McReynolds, rejected these claims (Butler v. Perry).  The 13th Amendment, the Court said: “[I]ntroduced no novel doctrine with respect of services always treated as exceptional, and certainly was not intended to interdict enforcement of those duties which individuals owe to the state, such as services in the army, militia, on the jury, etc.”  Because drafting men for road work was a long established practice prior to Reconstruction, there was no constitutional problem.  Likewise, the Fourteenth Amendment did not bar the practice, since “to require work on the public roads has never been regarded as a deprivation of either liberty or property.”

I’m wondering whether an originalist would have to say that a state statute drafting people into road work today (or executing an existing statute that authorized such a draft) would be constitutional.  It is fair to say that this is one of those situations that would probably never happen even if authorized, but then again how is that different from the broccoli hypothetical under the Commerce Clause?

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Secession from a State

There will be a ballot proposition in California this year asking voters to approve dividing the state into six states. This plan is a one-way ticket to Nowheresville, as Congress would never agree to a division of the state, but it does raise some interesting structural issues.

Article Four of the Constitution provides that “no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.”  Why did the Framers feel the need to spell this process out?  The answer, I think, is that in 1787 some of the original 13 states had uncertain territorial claims outside of their boundaries.  Maine, for example, was claimed by Massachusetts.  Kentucky was originally claimed by Virginia.  And so on.  Thus, there was a need for a procedure that would address how to handle statehood petitions coming from these areas, and some of the states probably wanted some assurance that they could not be divested of their claims without their consent.  It’s a robust guarantee of state integrity.

Another point that often gets overlooked, though, is that Article Four expressly permits secession from a State.  If the state and federal governments consent, then a disgruntled part of a state can leave.  (The only example is West Virginia during the Civil War, which was problematic because the illegal government in Richmond did not agree to this secession.) The presence of this state secession provision could imply that secession by an entire state was not permissible, though that sort of textual argument is always tricky.

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Was the Manhattan Project Unconstitutional?

87px-JROppenheimer-LosAlamosSorry to interrupt the coverage of the missing plane, but . . .

I was reading Garry Wills’ book on Bomb Power:  The Modern Presidency and the National Security State, and he raises the following question:  Was the Manhattan Project unconstitutional because its funding was not disclosed?  Article I, Section 9, says “a Regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.”  There are no express exceptions.  By contrast, Article I, Section 5 does contain an exception for recording information in the Journal of each House with respect “such parts as may in their Judgment require Secrecy.”  Consequently, you could say that the lack of such an exception on accounts and budgeting means that there is none.  As far as I know, the Manhattan Project was the first case where military spending was concealed, though I’m not certain.

On the other hand, the Manhattan Project is seen as such a great success that it may constitute a precedent that creates an unwritten exception for public disclosure when national security is at stake.  That is in fact how it’s been treated for the last seventy years.  Moreover, nobody has standing to challenge secret military or intelligence spending as unconstitutional (or at least it is hard to see how somebody could obtain standing).