Archive | Constitutional Law

Senator Ted Cruz: Limits On The Treaty Power

Senator Ted Cruz has an excellent essay in the Harvard Law Review Forum entitled Limits on the Treaty Power. Here is a taste:

The Necessary and Proper Clause does not give Congress power to implement treaties in a way that contravenes the structural limitations on the federal government’s powers …. The President should not be able to make any treaty — and Congress should not be able to implement any treaty — in a way that displaces the sovereignty reserved to the states or to the people.

Cruz thus argues that Justice Holmes’s opinion in Missouri v. Holland must be limited to its facts, or else overruled. Regular readers know that I entirely agree.

It is quite unusual for a sitting senator to publish original legal scholarship. And it is doubly unusual for a senator to, in effect, argue for constitutional limits on his own power. Read the whole thing. [...]

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Welcome John McGinnis and Michael Rappaport!

I am very glad to see that John McGinnis and Michael Rappaport are going to be guest-blogging here about their excellent new book, Originalism and the Good Constitution. I have some disagreements with their analysis. But it is nonetheless one of the best defenses of originalism in a long time. I reviewed the book in this post, back in October.

Readers interested in originalism and constitutional theory should also check out McGinnis and Rappaport’s many fascinating blog posts at the Liberty Law blog. [...]

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Brown v. Buhman and Bestiality

The Utah polygamy-rights decision is truly a courageous civil rights ruling. Most sexual liberties decisions going all the way back to Griswold v. Connecticut come at a time when the relevant practices have won very broad acceptance, especially among the educated elites. Not so with polygamy, which is quite far from the lives of the elites, and is opposed by a Baptists and bootleggers coalition of religious conservatives (bad for the “traditional family,” smacks of Mormonism) and secular liberals (bad for women, smacks of Mormonism). The judge will make few friends with his ruling. Editorialists will not liken it to great civil rights breakthroughs. It will surely be overturned, with conservative judges fearing an expansion of substantive due process, and liberal ones fearing a backlash. And that is what makes it brave, whether right or wrong.

Now seems like a good time to revisit a post on bestiality from earlier this year, which surely seems less radical now. Bestiality bans are [even?] less constitutionally defensible than polygamy bans because the purported harms associated with the practice are lower. It does not undermine families because it is not a substitute for traditional unions (though presumably limits one to unusually broad-minded spouses). Nor does it oppress women, the empirical claim behind bans on polygamy, as well as prostitution. Here is the body of the post:

Most states criminalize zoophilia and in many places the bans have been enacted quite recently. Moreover, the laws are from time to time enforced.

The 14th Amendment has been interpreted to recognize a broad and very valuable liberty interest in sexual autonomy. Constitutional doctrine regards private sexual choices as vastly more important than other kinds of choices, and thus presumptively protected. Homosexual conduct is just a hot-button particular instance of the general principle. Constitutional protection of [...]

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The Recess Appointments clause: Amicus brief on original meaning based on State practices

As VC readers know, an all-star cast of constitutional legal scholars, including three Volokhians, submitted an amicus brief in NLRB v. Noel Canning. Blog posts about that brief are here (pro forma sessions), here (“recess” and “session”) and here (“happen”). That brief focuses mainly on the text of the Constitution and interpretive practice, especially early practice. (The VC co-authors were William Baude, Dale Carpenter, and Eugene Kontorovich, plus former VC writer Michael McConnell.)

Another amicus brief in the case address the contemporary legal meaning of the words and phrases in the Recess Appointments Clause. The main sources for information about this are the records of the state legislatures during and before the ratification period. These sources clearly show that a “recess” took place only between the formal sessions of a legislative body. For a vacancy to “happen” during the recess, the vacancy must first arise during the recess. If a vacancy arises while a legislature in session, and the office is still vacant when the legislature goes into recess, the vacancy did not “happen” during the recess.

This originalist amicus brief was filed on behalf of the Independence Institute. The brief is based on the research contained in the article The Origins and Meaning of ‘Vacancies that May Happen During the Recess’ in the Constitution’s Recess Appointments Clause, by my Independence Institute colleague Rob Natelson. [Harvard Journal of Law and Public Policy, Vol. 37, No. 1 (2014), forthcoming.]

Thanks to the Polsinelli firm, and to attorneys Sean R. Gallagher, Bennett L. Cohen, and Jon R. Dedon for writing the brief. The Independence Institute also worked with the Polsinelli firm this summer, in an amicus brief for a cert. petition in Bakoss v. Certain Underwriters at Lloyd’s of London (arguing state law, rather than federal common law, should supply [...]

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House Judiciary Committee Hearing: Take Care Clause

On Tuesday morning at 10:00am, the House Judiciary Committee will hold a hearing about the President’s constitutional duty “to take Care that the Laws be faithfully executed.” Michael Cannon, Simon Lazarus, Jonathan Turley, and I will testify. Video here and possibly on C-SPAN.

UPDATE: I will be discussing this with Greta on Fox News, Tuesday, Dec 3, 7:30pm. [...]

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Knives and the Second Amendment

The Second Amendment guarantees the right to keep and bear “Arms”–not solely “firearms.” While firearms have always been the paradigmatic Second Amendment arm, there are many other types of arms which are protected by the Second Amendment. By far the most common of the other arms are knives.

Now at the printer is the first detailed scholarly analysis of Knives and the Second Amendment. 47 University of Michigan Journal of Law Reform, vol. 47, pages 167-215 (Fall 2013). The article is co-authored by Clayton Cramer, Joseph Olson, and me. We argue that:

  • Under the Supreme Court’s standard in District of Columbia v. Heller, knives are Second Amendment “arms” because they are “typically possessed by law-abiding citizens for lawful purposes,” including self-defense.
  • There is no knife that is more dangerous than a modern handgun; to the contrary, knives are much less dangerous. Therefore, restrictions on carrying handguns set the upper limit for restrictions on carrying knives.
  • Prohibitions on carrying knives in general, or of particular knives, are unconstitutional. For example, bans of knives that open in a convenient way (e.g., switchblades, gravity knives, and butterfly knives) are unconstitutional. Likewise unconstitutional are bans on folding knives that, after being opened, have a safety lock to prevent inadvertent closure.

The article provides an explanation of various types of knives, of criminological evidence regarding knives, and of the 19th century panic and case law about Bowie Knives and Arkansas Toothpicks. We then apply the Second Amendment to modern knife laws. We cover the utility of knives for personal self-defense and for militia use, and the constitutional significance of technological changes in knives since 1791. Finally, the article considers some modern prosecutions, statutes, and cases from Washington, Oregon, Indiana, New York, and D.C. We conclude that even under the weakest relevant standard (intermediate [...]

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The Obamacare Fix’s Legality, State Law and Standing

I have a piece in POLITICO discussing the constitutional problems with the ObamaCare fix, which have been previewed here before. One aspect is whether state officials can ignore ObamaCare and instead apply “The Fix.” Regardless of the discretion President Obama has, state officials do not have enforcement discretion over federal law. It is just supreme, and even if the president ignores it, state officials can not.

Unlike prior exercises of presidential enforcement discretion, the fix depends on states violating federal law. That is because it does not change the law on the books. Rather, the feds are simply signaling that they will not enforce certain provisions for some time.

But many parts of Obamacare do have to be applied by states, the traditional front lines of insurance regulation. States, however, lack “enforcement discretion” when it comes to ignoring federal law, even when the president thinks it would be a good idea. As the president has often reminded us, the ACA is “the law of the land,” and remains so after the fix.

The Constitution’s Supremacy Clause makes federal law—not presidential policies— binding on the states. So what’s a state insurance commissioner to do? Federal law requires health plans to have a mandatory level of “minimum coverage.” Thus it is not clear how a state insurance commissioner can authorize a plan that violates federal law.

But state officials may encounter the ACA in different ways. In some states, it will have the general preemptive force of federal law. So states that authorize non-compliant plans pursuant to the Fix would be in conflict with federal law.

A more interesting scenario involves states that have passed “conforming legislation” to “domesticate” the ACA to make it more convenient to enforce. In such states, the ACA is both federal and state law, and at the [...]

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The Constitutionality of the ObamaCare “Fix”

President Obama in his speech on “fixing” the Affordable Care Act today did not specify what statutory authority, if any, he thinks authorizes him to make such dictats. Given the gargantuan length of the ObamaCare statute, he might still be looking. Press reports say the President is claiming a broad “enforcement discretion.”

It is true that the Chief Executive has some room to decide how strongly to enforce a law, and the timing of enforcement. But here, Obama is apparently suspending the enforcement of a law for a year – simply to head off actual legislation not to his liking. Congress is working on legislation quite similar to the president’s fix, but with differences he considers objectionable. This further demonstrates the primarily legislative nature of the fix.

Indeed, the fix goes far beyond “non-enforcement” because it requires insurers to certain new action to enjoy the delay. This is thus not simply a delay, but a new law.

The “fix” amounts to new legislation – but enacted without Congress. The President has no constitutional authority to rewrite statutes, especially in ways that impose new obligations on people, and that is what the fix seems to entail. And of course, this is not the first such extra-statutory suspension of key ObamaCare provisions.

UPDATE: Here is the text of the administration’s letter describing the fix. [...]

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Does the original meaning of the First Amendment protect a right of privacy in campaign contributions?

My Independence Institute colleague Rob Natelson examines the question from an originalist perspective, in a new working paper published on SSRN. His analysis is summarized in this blog post on his website. In brief: political contributions are best analyzed as a form of Freedom of the Press. The Freedom of the Press includes the right to anonymous authorship. The right can be breached in cases of abuse, as when a civil libel plaintiff needs to discover the identity of the person who libeled him.

Some readers may disagree with the first part of Rob’s analysis, but the point about the right to exercise the Freedom of the Press anonymously seems indisputably correct. Rob extends the anonymity argument far beyond the points made by Justice Thomas in his Citizens United concurrence. [...]

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A Market for State Borders

Following up on my earlier post on parts of a state seceding to join another state, I’d like to call attention to a neat article by Joseph Blocher, coming out in the University of Pennsylvania Law Review, entitled “Selling State Borders.” It suggests such political redrawing can be accomplished through sales between states, and shows how common such deals already are. [...]

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Three Important New Books on Constitutional Law

In this post, I briefly review three important new books on constitutional law that are likely to interest many of our readers. Here goes:

I. John McGinnis and Michael Rappaport, Originalism and the Good Constitution.

This book is a fascinating and innovative defense of originalism. Unlike some other originalists, who defend the theory because they claim it is the only feasible way to interpret legal texts, McGinnis and Rappaport argue that originalism is superior to living constitutionalism because it produces better consequences, in the form of legal rules that benefit more people over time. They contend that the original meaning is likely to have beneficial consequences because it was enacted by supermajority decision-making processes. On average, constitutional rules supported by supermajorities are likely to be better than those produced by judges using various living constitution methodologies of interpretation or those produced by normal political majorities.

A great strength of the book is that McGinnis and Rappaport do not shy away from difficult issues that some other originalists downplay or ignore. These include the reality that most blacks and virtually all women were excluded from the political processes that produced the original meaning of the most important parts of the Constitution, the claim that Brown v. Board of Education is incompatible with originalism, and the problem of how to deal with decades of accumulated nonoriginalist precedents. To each of these dilemmas, the authors provide insightful answers. For example, they point out that Brown would probably not even have been necessary had the federal government effectively enforced the original meaning of the 14th and 15th amendments between the 1880s and 1950s. Even if integrated public schooling was not in and of itself required by the original meaning, the protection of black voting rights and a wide range of civil rights clearly [...]

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How Best to Secede from a State

Some spirit of secession has spread across the land, with various areas in Maryland, Colorado, Texas, California and elsewhere discussing seceding from their states, because of political alienation arising from significant differences in values and preferences. I don’t take the political prospects of American secession movements too seriously, and assume their principal purpose is to gain leverage for their preferred policies within their state governments.

These secessionists have an advantage over those seeking outright separation from the Union – and a big disadvantage. On one hand, they don’t have to deal with the Confederacy/slavery baggage that tends to confound discussions of secession in the U.S. On the other hand, the Constitution, Art. IV, sec. 3 clearly forbids the creating a new state in the territory of an existing one without the latter’s consent, and the consent of Congress. That is a high bar, practically insurmountable.

But there may be an easier way for those who seek to secede from their state – instead of creating a new “51st” state, secede to join an existing state. The Constitution’s requirement of home-state and congressional consent only clearly applies to the creation of a “new state”:

… 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.

The language of the provision is a bit unclear. Does the second clause above (“nor any State be formed”) refer back to, and continue the discussion, of “new states”? That would mean that the provision does not govern the transfer of territory from one state to another. The interpretation probably depends on what it means for [...]

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