Archive | Constitutional Amendments

The Fiduciary Foundations of Federal Equal Protection

Does the federal government have to adhere to the equal protection of the law? President Andrew Jackson certainly thought so. He vetoed in 1832 the recharter of the Second Bank of the United States, and based his veto message on constitutional grounds–among them, that the Bank was special interest legislation, created not for good of the general public, but to enrich select interests. President Jackson wrote: “There are no necessary evils in government. Its evils exist only in its abuses. If it would confine itself to equal protection, and, as Heaven does its rains, shower its favors alike on the high and the low, the rich and the poor, it would be an unqualified blessing. In the act before me there seems to be a wide and unnecessary departure from these just principles.”

This was the first use of the phrase “equal protection” in an American political document. Three and half decades later, the Fourteenth Amendment forbade States to deny to anyone the “equal protection” of the law.

In 1954, the U.S. Supreme Court ruled in Bolling v. Sharpe that the D.C. public schools could not be racially segregated. The Court held that the Fifth Amendment’s Due Process clause makes the principle of equal protection applicable to the federal government. Bolling was a hastily-written opinion, and it shows. Over the years, Bolling has been derided for creating “reverse incorporation”–as a good result that is hard to defend intellectually, other than by conceding the Supreme Court the power to act as Platonic Guardians.

That view is challenged in a new article by Gary Lawson (BU), Guy Seidman (Interdisciplinary Center, Herzliya, Israel) and Rob Natelson (Independence Institute). Their article “The Fiduciary Foundations of Federal Equal Protection” The abstract explains:

that a federal equal protection principle is not only consistent

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Response to Prof. Rosenkranz: ArmS & the Man – or Arms & the People

Nick takes issue with my suggestion that the Second Amendment on its face bars laws restricting people to one gun, such as that currently proposed by Gov. Quinn in Illinois.

My (first) argument is not an originalist or purposivist one, but rather a purely textual one. The primary meaning of “arms” is plural. Nick argues the plural is used to go with “the right of the people.” The real “reason,” I think, the plural term is used is probably because that is how it was written in the English Bill of Rights (and the Magna Carta). The question is what are the consequences of those possibly unconscious decisions and associations for a textual reading of the Constitution.

Certainly the plural arms goes with the plural “people.” But both are independent drafting choices. For example, the right of the people could have been “to be armed,” which would leave out the plural. Or it need not have been written in terms of “the People.” Nick compares it the Fourth Amendment. I like that: is the “people’s” right to be secure in their “houses, papers, and effects” even arguably singular, or be restricted to one house, one paper, one effect? Could papers be limited to one piece of paper? It is not “people” that makes “papers” plural, it is the way people commonly use paper.

Turning to purpose, the Framers used a plural word; they certainly did not intend to rule out “one gun” rules, because as far as I know, they had never encountered such restrictions, and were more interested in gun minimimums than maximums. None the less, the plural has consequences. Nor are the consequences absurd (this still permits two-gun limits) though they may be undesirable from certain policy perspectives. Nor is the reading contradicted by substantial originalist [...]

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“A Good Musket” and Bearing Arms

I’ve been discussing whether the right to bear arms is infringed by laws limiting people to bearing only one “arm”, as a proposal by Illinois Gov. Quinn seeks to do.

Perhaps the best evidence for a singular reading of “arms” is the Second Militia Act of 1792, section 1, which provides, in part, that a militia member must:

provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock./

(emphasis added).

These requirements, which track Colonial milita rules, do not purport to define or even regulate the right to bear “arms;” rather, it sets a minimum for the arms militiamen mush furnish at their own expense. Its about duties, not rights. Still, the relevant section of the Act concludes, after many further details, that “every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements required as aforesaid” shall have certain immunities from suit.

The reference to “arms” raises the possibility that the term could apply to a single firearm. But event this inference is not clear. The militiamen had to have bayonets (their officers, swords), which might be part of “arms” rather than “accoutrements.” To my untrained eye, a late 18th-century bayonet would be an accoutrement, because it looks difficult to wield independently of the musket, unlike modern bayonets, which are attachable knives. However, my first, impressionistic take on contemporary usage is that bayonets were called “weapons,” suggesting they were part of arms. For example, “Attention was paid to inculcate the use of the bayonet, and a total reliance on that weapon.” Another officer recommended that “only by vigorous and persevering charges with that weapon that [...]

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Is the Right to Bear Arms Plural?

Tomorrow, Illinois’ concealed carry laws will become ineffective, having been held unconstitutional by the Seventh Circuit several months ago. The Court kept the unconstitutional law on life support for a few months to give the legislature time to craft a replacement measure. Springfield responded, but now that bill has been vetoed by Governor Quinn.

If the legislature does not override or accept the Governor’s veto by tomorrow, Illinois will go from being one of the most restrictive states for gun regulation to one of the most open.

The Governor issued an “amendatory veto” – declaring what additions or changes he would make to the legislation. Several of these raise serious Second Amendment problem (the legislature’s bill was not free of these, but Quinn’s is much worse). Here I’ll examine just one, which is in tension with the constitutional text itself: limiting people to carrying only one gun.

Arms is a plural term, and the presumption should thus be that the right to bear them extends to more than one firearm. To be sure, “arms” is one of those terms where the plural can refer to the singular. But it is not one of those “sheep” words where there is no singular; arm, firearm, weapon or gun would all clearly indicate the singular, but those words were not used.

Johnson’s Dictionary, notes that grammatically arms lacks a singular form even when used singularly, but defines it as “weapons” rather than weapon, suggesting the dominance of the plural use.

The straight textual argument may be particularly relevant here as the Seventh Circuit struck down the Illinois gun ban using a straight reading of “bear arms” – bear means to carry, and thus the right must extend to carrying in public. Given that the Court held “bear” must be taken seriously, [...]

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Colorado Inside-Out 1973 Time Machine

This Friday, July 6, at 8 p.m. Mountain Time, is Colorado Inside-Out’s annual Time Machine episode, on Colorado Public Television, channel 12. These episodes have won three regional Emmy Awards. This year’s episode takes us to 1973, with discussions of Equal Rights Amendment ratification, political violence, the energy crisis, and Watergate.

The characters are, from left to right: KHOW radio host Charlie Martin (Dominic Dezutti), folksinger Judy Collins (Patty Calhoun), Colorado State Rep. Gerald Kopel (me), an obscure actress with a couple Broadway cast appearances (Dani Newsum), and Rocky Mountain News police reporter Al Nakkula (Kevin Flynn). If you don’t live in Colorado, you can watch it on the cpt12.org website, starting sometime next week.

Also on the cpt12.org website, by Friday, will be a bonus segment, set in the year 2025. There we discuss the challenges facing President Chelsea Clinton, as she faces a hostile Congress dominated by the fusionist Green Tea Party.

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Somin on Bond

Ilya Somin has a thoughtful post on U.S. v. Bond here. I have only one quibble with what he has said. Ilya agrees with Justice Scalia and me that a treaty cannot increase the legislative power of Congress. But he reaches this conclusion in a slightly different way. The difference is actually an important window into this issue.

If the President signs a treaty promising that Congress will enact certain legislation, but Congress would ordinarily lack the power to enact that legislation, what happens? Missouri v. Holland seems to say that the treaty automatically gives Congress the legislative power at issue. Ilya and I both disagree.

Ilya would say that, under these circumstances, the treaty itself is void. He would say that the President has no power to make such a promise. In his view, the treaty power only empowers the President to make promises that the federal government knows it can keep.

In my view, the answer is different. I believe that the President can make such a promise, even though Congress lacks present power to keep it. Making such a promise is not generally advisable, to be sure, but it is permissible. To see why, consider that for every person, and every politician, and every government, the capacity to make promises exceeds the capacity to keep them. Many of our promises may turn on circumstances beyond our control, including the actions of third parties.

I might contract to build you a house on a particular tract of land by a particular date. Executing the contract might require circumstances, like good weather, that are not within my control. It might also require legal changes, like zoning waivers, that are also not within my control. This does not mean that we cannot make such promises. It merely means that [...]

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Seidman: “Let’s Give Up on [Parts of] the Constitution”

Georgetown’s Louis Michael Seidman, author of On Constitutional Disobedience has an NYT op-ed (noted in the comments to Orin’s open thread) calling for ignoring the Constitution — or at least those parts that he does not like.

As the nation teeters at the edge of fiscal chaos, observers are reaching the conclusion that the American system of government is broken. But almost no one blames the culprit: our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions. . . .

Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago. . . .

If even this change is impossible, perhaps the dream of a country ruled by “We the people” is impossibly utopian. If so, we have to give up on the claim that we are a self-governing people who can settle our disagreements through mature and tolerant debate. But before abandoning our heritage of self-government, we ought to try extricating ourselves from constitutional bondage so that we can give real freedom a chance.

As commenters in the open thread have already noted, the Constitution itself provides for its own revision to cure deficiencies: Article V. This amendment process has allowed for dramatic changes to the document, from the Bill of Rights and the Civil War Amendments to women’s suffrage and changes to election procedures.

Seidman cites what he characterizes as a proud history of “constitutional disobedience” to suggest that ignoring the document would be all to the good, suggesting that the country would be better off if political disputes about everything from budgetary policy [...]

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Louisiana amendment to strengthen right to arms, on November ballot

In state elections, the most important vote this November will be in Louisiana. A referendum there would significantly strengthen protection of the right to keep and bear arms in the state, and would set a very significant national precedent.

Before the Civil War, the Louisiana Constitution did not mention a right to arms. The Louisiana Supreme Courts, however, viewed the federal Second Amendment as directly applicable to state government. So in State v. Chandler (1850), the court held that the Second Amendment protected a general right to carry arms, but that a legislature could ban concealed carry.

A new state constitution, adopted in 1879, provided: “A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be abridged. This shall not prevent the passage of laws to punish those who carry weapons concealed.” La. Const., art. 3. The first sentence is, of course, nearly verbatim from the Second Amendment.

A century later, firearms prohibitionists had convinced some courts to reinterpret the Second Amendment so as to make it practical nullity. Supposedly, the Second Amendment right was not an individual right, but instead a “state’s right” or “collective right”–which meant that individual gun ownership could be entirely outlawed. Because the Louisiana Constitution’s language so closely paralleled the Second Amendment, there was a danger that a Louisiana court could interpret the state constitutional language to protect nothing at all. Indeed, some courts in other states had already done so, regarding state law language that copied the Second Amendment.

So in 1974, the Louisiana constitutional right was strengthened, with new language: “The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying [...]

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Anonymity Granted to Catholic Donor Opposed to Marriage Amendment, But Amendment Supporters Object

In Minnesota, pro- and anti-gay marriage activists are fighting over political campaign disclosure laws, though this time the usual roles are reversed. On August 17, the Minnesota Campaign Finance and Public Disclosure Board ruled that the group working to defeat a constitutional amendment banning gay marriage does not have to disclose the name of a Catholic contributor to the “No” campaign.   “John Doe,” who works for a Catholic organization in Minnesota, gave $600 to Minnesotans United for All Families, the main group opposing the amendment.  (I serve as Treasurer of the group.)  He told the Board that he feared the Church would fire him if it knew he made the donation.  Under state law, he was entitled to exemption from itemized disclosure of his donation by Minnesotans United if he could demonstrate that he faced “loss of employment or other specified harms.” The Board determined he met that statutory standard. But supporters of the amendment, who have long claimed a need to shield the identity of their own donors, are saying that protection from harassment, intimidation, and retribution arising from amendment contributions should be a one-way street protecting only them.

The background to the Board’s decision provides some context for why John Doe sought anonymity.  In May 2011, the Minnesota legislature placed a constitutional amendment on the November 2012 ballot limiting marriage to opposite-sex couples. The Catholic Church hierarchy in Minnesota, led by Archbishop John Nienstedt of Minneapolis and St. Paul, has made passing the marriage ban a top priority.  So far, the Church has given more than $1 million to the “Yes” campaign, the largest donation on either side. But the Minnesota Church’s activism on the issue predates the campaign. In 2007, Nienstedt argued that those who “promote or encourage” homosexual acts cooperate in a “grave [...]

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George Will on the People’s Rights Amendment

George Will recently published a good Washington Post column on the ill-conceived People’s Rights Amendment, which Eugene Volokh and I blogged about here and here. Will points out several serious flaws in the proposal, and builds on some of the points we made:

Controversies can be wonderfully clarified when people follow the logic of illogical premises to perverse conclusions….

Joined by House Minority Leader Nancy Pelosi (D-Calif.), 26 other Democrats and one Republican, [Rep. James McGovern] proposes a constitutional amendment to radically contract First Amendment protections. His purpose is to vastly expand government’s power — i.e., the power of incumbent legislators — to write laws regulating, rationing or even proscribing speech in elections that determine the composition of the legislature and the rest of the government. McGovern’s proposal vindicates those who say that most campaign-finance “reforms” are incompatible with the First Amendment…

His “People’s Rights Amendment” declares that the Constitution protects only the rights of “natural persons,” not such persons organized in corporations…

McGovern stresses that his amendment decrees that “all corporate entities — for-profit and nonprofit alike” — have no constitutional rights. So Congress — and state legislatures and local governments — could regulate to the point of proscription political speech, or any other speech, by the Sierra Club, the National Rifle Association, NARAL Pro-Choice America or any of the other tens of thousands of nonprofit corporate advocacy groups, including political parties and campaign committees.

Newspapers, magazines, broadcasting entities, online journalism operations — and most religious institutions — are corporate entities. McGovern’s amendment would strip them of all constitutional rights. By doing so, the amendment would empower the government to do much more than proscribe speech. Ilya Somin of George Mason University Law School, writing for the Volokh Conspiracy blog, notes that government, unleashed by McGovern’s amendment,

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The Potential Impact of the People’s Rights Amendment Goes Far Beyond Restricting Freedom of Speech

Co-blogger Eugene Volokh has an excellent post on how the proposed People’s Rights Amendment threatens freedom of speech. But it’s important to recognize that the proposal goes far beyond denying free speech rights to entities organized as corporations. It would deny them all other constitutional rights as well. Section 1 of the proposed amendment states that the “the rights protected by this Constitution” are limited to “the rights of natural persons.” Notice that this is not limited to free speech rights or even to First Amendment rights generally. Section 2 emphasizes that “People, person, or persons as used in this Constitution does not include corporations, limited liability companies or other corporate entities established by the laws of any state, the United States, or any foreign state.” Notice that this is not limited to for-profit corporations lobbying for their narrow self-interest. It applies to all corporations of any kind, including nonprofits, media corporations, churches, and others.

Thus, the PRA would deny all constitutional rights to all entities organized as corporations. If the Amendment passes, government would be free to search corporate-owned premises at will, restrict freedom of religion at houses of worship owned by corporate entities (which includes most churches), condemn corporate-owned property for private uses and without paying compensation, and so on. This result is consistent with the logic of those who criticize the Citizens United decision on the grounds that corporations don’t have First Amendment rights because they aren’t “real” people. If this reasoning is correct with respect to the First Amendment, it surely applies to other constitutional rights too. But even dedicated supporters of campaign finance regulations might wonder whether those laws are so wonderful that their protection justifies the sweeping restrictions on all other constitutional rights embodied in the People’s Rights Amendment.

Unfortunately, this dangerous result [...]

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Reassessing Our Federal and State Constitutions

In this recent post, University of Texas constitutional law professor Sanford Levinson calls for a reassessment of our federal and state constitutions:

[I]nstead of being fixated on what the Constitution means, one instead asks whether the Constitution, given a stipulated meaning that may in fact not be at all difficult to discern, is in fact wise. One might call this a “Jeffersonian” approach to the Constitution inasmuch as it invites relentlessly asking whether the Constitution is serving us well. This is, incidentally, an especially important question if we agree on constitutional meaning. Disagreement, after all, suggests the possibility of legitimately interpreting the Constitution to achieve what we might describe as “happy endings.” The situation is decidedly different, however, if we agree on constitutional meaning, but believe that it sets us up less for happy endings than for driving over a cliff….

I have recently published a new book, Framed: America’s 51 Constitutions and the Crisis of Governance (Oxford University Press), that focuses almost exclusively on the wisdom of constitutional structures that are, almost without exception, obvious in their meaning. Evidence of this obviousness is that they are rarely brought up in law school classes precisely because there is nothing to “argue about” in the only sense that lawyers and their professors define that term, which involves debates about meaning…

An important theme of the book is that there are fifty-one constitutions within the United States if one takes into account the fifty states. More to the point, these state constitutions can teach valuable lessons of their own. Some of them, as with the national constitution, may offer cautionary lessons inasmuch as they help to explain the dysfunctionalities of given state politics.

I agree with much of what Sandy says in this post. We should not blindly venerate the Constitution. [...]

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Constitutional Cliffhangers: Final Thoughts on Staying Out of Trouble

My final post about my book, Constitutional Cliffhangers, will deal with fixing and preventing constitutional cliffhangers.

One of my pet peeves is when an article identifies a potential constitutional problem and then concludes blithely that the best solution is just to amend the Constitution. Even passing a statute is tough. Heck, just getting Congress’s attention is hard. A few years ago, I wrote an article about a 50-square-mile swath of Idaho where (according to my theory) people can commit crimes with impunity. Orin posted something about it here and it went viral. A bestselling novel was even written about it. And yet, of the scores of members of Congress I wrote to trying to get them to close the loophole, only a couple even acknowledged my letters.

My book thus wrestles with the very real barriers to fixing the traps I identify, either before or after the nation steps in them. The final chapter of my book offers a lengthy analysis along these lines. I’m not going to say much about that in this post, other than to talk a bit about my conclusion that some cliffhangers are not really worth trying to fix in advance.

There are two kinds of cliffhangers: those in which the main problem is a bad result, and those in which the main problem is uncertainty. An example of the former is Chapter 1, where a sitting president might get prosecuted (with the attendant disruption) or might not (with the attendant injustice). The fact that, in the meantime, presidents and prosecutors go about their days unsure of the answer is much less of a problem. The chapters on self-pardons and late impeachment fit in this category as well. Legislation requires energized consensus, and there wouldn’t be one. Best, then, to just wait for an [...]

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Vladimir Putin and the 22nd Amendment

Vladimir Putin’s recent announcement that he intends to return to the presidency after the 2012 election has been rightly denounced as a deepening of authoritarianism in Russia. Having effectively repressed Russia’s opposition parties and media, Putin is now consolidating his position as a dictator. Barring some sort of sudden collapse of his regime (which is by no means impossible), he can now rule into the 2020s with little or no effective opposition.

It’s worth remembering that Putin had to leave the presidency in the first place because Russia’s 1993 Constitution bans presidents from serving more than two consecutive terms. Therefore, he turned the office over to his handpicked successor Dmitri Medvedev, who will now become prime minister after Putin’s nearly inevitable victory in the 2012 election, from which most opposition parties are effectively excluded from participating. Putin’s return to the presidency cuts off any hope that the Russian government will continue Medvedev’s moves towards modest political and economic liberalization.

The whole sorry situation highlights the wisdom of the US Constitution’s 22nd Amendment, which not only bars presidents from serving more than two consecutive terms, but also forbids two-term presidents from ever holding the office again in the future. That prevents American presidents from pulling off the trick that Putin used with Medvedev – leaving a loyal flunky in power for four years and then returning to office. It thereby makes it much harder for any one man to consolidate dictatorial dominance.

Obviously, there are many other differences between the US and Russian political systems that make authoritarianism a lesser danger in the former. Nonetheless, the power of the modern presidency is great enough that a popular leader who could serve indefinitely might consolidate enormous power and gradually undermine democracy. At the state level, term-limited governors who are [...]

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