The Volokh Conspiracy

In a previous post, I argued that Supreme Court justices should not decide the individual mandate case based on the decision’s effect on their perceived “legitimacy.” Mark Tushnet asks, why not?

[W]hy exactly shouldn’t [Chief Justice John Roberts] worry if he believes that a Court decision — any one, really — will impair the Court’s legitimacy, in the sense that it would make it more difficult for the Court to hold public support for its (other) decisions? Or, believes that a decision will not be seen in retrospect as a wise one (the “verdict of history” point)? I’m not here endorsing the view that a decision striking down the Affordable Care Act would impair the Court’s legitimacy or be seen in retrospect as unwise, just wondering what’s wrong with taking those things into account when a justice is thinking about how best to interpret the Constitution. (Would Justice Henry Billings Brown have been wrong to think about them when trying to decide whether to pull his draft opinion in Plessy v. Ferguson in favor of Justice Harlan’s dissent?…)

This is a good question. The answer, in my view, is that the job of Supreme Court justices is to enforce the Constitution, not to make decisions that will have broad public support or be perceived as legitimate. Indeed, judicial enforcement of constitutional restrictions on government power is particularly crucial precisely in those cases where violations of those restrictions enjoy strong political support. To turn Mark’s question about Plessy around: Was Justice Brown’s decision justified by the fact that a contrary result might have been considered “illegitimate” by majority public opinion in the 1890s, and deeply resented by millions of white southerners? Was Korematsu justified because the internment of Japanese-Americans enjoyed overwhelming public support at the time, and a decision striking it down would have been widely denounced as an illegitimate intrusion on the wartime powers of the political branches?

This point applies to legitimacy in the eyes of future public opinion, as well as contemporary opinion. Future public opinion can easily be wrong, and can often support violations of the Constitution. For example, public opinion in 1900 was far less favorable to judicial enforcement of African-American rights than public opinion in the 1870s. If 1870s Supreme Court justices could accurately predict that trend, would they have been justified in cutting back on enforcement of the Fourteenth Amendment? It’s possible that future terrorist attacks will turn majority public opinion strongly against the Supreme Court’s Guantanamo decisions. If the justices believed that to be likely, should they have endorsed the Bush administration’s position in those cases in order to get on the “right side” of history?

Nonetheless, I think there are narrow circumstances where courts can legitimately take account of legitimacy. One such situation is when a correct constitutional decision would attract such wide opposition that it cannot be effectively enforced. If that is the case, courts are simply incapable of doing their normal duty, and perhaps they would be justified in not even trying. The case for making discretion the better part of valor in such situations might be especially strong if a the correct-but-unenforceable decision undermines the Court’s ability to enforce other parts of the Constitution in future cases. Perhaps a decision like Korematsu can be defended on that basis. A contrary ruling would almost certainly have been successfully disobeyed by the president and Congress. On the other hand, it’s possible that correct decisions in such cases would at least increase the chance that public opinion would change in the future, making it possible to eventually enforce the Constitution at a later date.

It’s also possible that a decision perceived as illegitimate is itself enforceable, but might still undermine enforcement of future decisions by compromising the Court’s reputation. If this is the case, the justices will have to consider whether the future damage to the Constitution outweighs the constitutional principles that would be sacrificed by reaching the wrong result in the present case. I think this kind of scenario is unlikely. If people are willing to obey the initial “illegitimate” decision, it seems like they would also obey future decisions that are less controversial. But it’s not impossible.

In both of these scenarios, the reason why it is legitimate for the justices to consider legitimacy is because of its potential effect on their ability to do their proper job of enforcing the Constitution – not because legitimacy is valuable in itself.

I think it’s fairly clear that a decision striking down the mandate doesn’t even come close to falling into one of these two categories. As I discussed in my previous post, the vast majority of the public – including many Democrats – would actually support such a ruling.

One can reasonably argue that legitimacy should play a much larger role in judicial decision-making than I would support. Perhaps the justices should value legitimacy for its own sake. Alternatively, perhaps widespread and deeply felt public opposition to a given ruling should lead the justices to doubt the validity of its reasoning. However, anyone who believes that the Court should uphold the mandate because of the perceived illegitimacy of a contrary ruling must also oppose other decisions that are viewed as illegitimate by a larger proportion of the population. These include cases such as Roe v. Wade, Kelo v. City of New London, the school prayer and religious display decisions, the Guantanamo cases, several of the Warren Court’s defendants’ rights rulings, the flag burning cases, and other decisions supported by liberal constitutional theorists. At the time they were decided – and in some cases even today – each of these rulings were perceived as illegitimate by a larger proportion of the public than is likely to oppose a decision striking down the mandate. Some of them also attracted vociferous criticism by parts of the legal elite.

In my view, many of the above decisions were actually correct. That’s because I do not think that perceived legitimacy should be an important factor in Supreme Court decision-making, except in very rare instances. But if you believe that legitimacy should be a major factor when it comes to the mandate, that principle cannot be limited to the present case. You have to apply it consistently across the board. Doing so would call into question a wide range of Supreme Court decisions.

UPDATE: I have slightly edited this post to fix one or two typos.

Both sides in the individual mandate litigation have developed a wide range of legal arguments to support their position. Some defenders of the mandate have also emphasized several nonlegal reasons why they believe the Court should uphold the law. These arguments have gotten more emphasis since the Supreme Court oral argument seemed to go badly for the pro-mandate side. The most common are claims that a decision striking down the mandate would damage the Court’s “legitimacy,” that a 5-4 decision striking down the mandate would be impermissibly “partisan,” and that it would be inconsistent with judicial “conservatism.”

Even if correct, none of these arguments actually prove that the Court should uphold the mandate as a legal matter. A decision that is perceived as “illegitimate,” partisan, and unconservative can still be legally correct. Conversely, one that is widely accepted, enjoys bipartisan support, and is consistent with conservatism can still be wrong. Plessy v. Ferguson and Korematsu are well-known examples of terrible rulings that fit all three criteria at the time they were decided.

In addition, all three arguments are flawed even on their own terms.

I. A Decision Striking Down the Mandate is Likely to Enhance the Court’s Legitimacy More than it Undermines it.

Claims that a decision striking down the mandate will undermine the Court’s “legitimacy” founder on the simple reality that an overwhelmingly majority of the public wants the law to be invalidated. Even a slight 48-44 plurality of Democrats agree, according to a Washington Post/ABC poll. Decisions that damage the Court’s legitimacy tend to be ones that run contrary to majority opinion, such as some of the cases striking down New Deal laws in the 1930s. By contrast, a decision failing to strike down a law that large majorities believe to be unconstitutional can actually damage the Court’s reputation and create a political backlash, as the case of Kelo v. City of New London dramatically demonstrated.

Striking down the mandate will damage the Court’s reputation in the eyes of many liberals and some legal elites. But a decision upholding it will equally anger many conservatives and libertarians, including plenty of constitutional law experts. There is not and never has been an expert consensus on the constitutionality of the mandate. Any decision the Court reaches is likely to anger some people, both experts and members of the general public. But more are likely to be disappointed by a decision upholding the law.

Ultimately, the Court should not base its decision in this case on “legitimacy” considerations. If the justices believe that the mandate is constitutional, they should vote to uphold it despite the possible damage to their reputations. But it would be a terrible signal if key swing justices refused to strike down a law merely because their reputations would be damaged in the eyes of a small minority of the public and a vocal faction of the legal elite. It would certainly call into question their willingness to make unpopular decisions that are compelled by their duty to uphold the Constitution, including in cases where they must strike down unconstitutional laws that really do enjoy broad public support.

II. An Impermissibly “Partisan” Decision?

Any decision striking down the mandate is likely to pit the five conservative Republican justices against the four liberal Democrats. Some commentators, such as Larry Lessig and Jonathan Cohn, claim that such a result would be impermissibly “partisan,” creating a perception that the Court is only willing to strike down “liberal” laws.

This sort of argument urges judges to engage in genuinely political decision-making in order to avoid the mere appearance of it. If a Republican-appointed justice votes to uphold a law he believes to be unconstitutional in order to avoid the appearance of “partisanship,” he would be allowing political considerations to trump his oath to uphold the Constitution.

Even if there is a judicial duty to avoid the appearance of a partisan split, why doesn’t it fall on the liberal justices just as much as the conservatives? If one or more of the liberal justices were to join the five conservatives in striking down the mandate, that would diminish the appearance of partisanship just as much as a conservative “defection” to the liberal side would.

Finally, this line of criticism overlooks an important reason why decisions enforcing limits on congressional power often have an ideological division: the Court’s liberals have consistently voted against nearly all structural limits on congressional power under the Commerce Clause, the Necessary and Proper Clause, and the Tenth Amendment. Thus, the Court enforces such limits only in those cases where the five conservative justices can agree among themselves. The only way for the conservatives to avoid the appearance of partisanship in this area would be complete abdication of judicial enforcement of structural limits on congressional power.

III. Consistency with Judicial “Conservatism.”

Jeffrey Rosen and others have argued that a decision against the mandate would be inconsistent with “conservative” attacks on “judicial activism” and deference to legislative judgment. Judicial conservatism is not a single, unitary entity. All sorts of decisions can potentially be justified on “conservative” grounds.

However, one major strand of conservative legal thought over the last thirty years has been the need to enforce constitutional limits on federal government power. This idea would be completely undercut by a decision upholding the mandate, since all of the government’s arguments in favor of the mandate amount to a blank check for unconstrained congressional power. As I explain in detail in this amicus brief for the Washington Legal Foundation and a group of constitutional law scholars, the government’s various “health care is special” arguments collapse under close inspection.

Conservative support for judicially enforced limits on federal power is in some tension with loose conservative rhetoric about “judicial activism,” which is one reason why I have long been critical of such rhetoric. However, for most on the right, “judicial activism” is not coextensive with any judicial overruling of statutes, but rather with departures from the text and original meaning of the Constitution. And the originalist case against the mandate is very strong.

Conservatives and others can disagree among themselves as to how much deference should be given to Congress in any given case. In considering this issue, they should weigh two points that Rosen advanced in his important 2006 book The Most Democratic Branch: How The Courts Serve America.

Although generally advocating judicial deference to Congress, Rosen notes two important exceptions to this principle. The first is that “When Congress’s own prerogatives are under constitutional assault (in cases involving legislative apportionment or free speech, for example), it may be less appropriate for judges to defer to Congress’s self-interested interpretations of the scope of its own power.” Obviously, there are few more “self-interested” interpretations of “the scope of its own power” than one that would give Congress virtually unlimited power to impose any mandate it wants.

Second, Rosen suggests that “[f]or the Court to defer to the constitutional views of Congress, Congress must debate issues in constitutional (rather than political) terms” (pg. 10). In order to deserve deference, Congress needs to take the relevant constitutional issues seriously. In the individual mandate case, congressional Democrats notoriously demonstrated utter contempt for the constitutional issues, and plenty of ignorance to boot.

In fairness, their performance was no worse than that of the GOP when they controlled Congress during the Bush years. Far from generating serious constitutional deliberation in the legislative branch, the judiciary’s tendency to defer to Congress on federalism issues has had the opposite effect. Both parties give short shrift to constitutional limits on federal power because judicial deference has created a political culture in which almost anything goes. More careful judicial scrutiny of Congress’ handiwork might lead Congress to start taking the Constitution seriously again. That result should be welcomed by conservatives, libertarians, and liberals alike.

A nondeferential posture by the Court wouldn’t necessarily lead to the invalidation of the mandate. It merely means that the justices should give little weight to Congress’ “self-interested” interpretations of its own power and instead come to their own independent judgment on the constitutional issues at stake.

Ultimately, the Court should not decide the individual mandate case based on these sorts of nonlegal considerations. It is more important that its decision be right than that it be perceived as legitimate, nonpartisan, or conservative. But even on its own terms, the nonlegal case for upholding the mandate is not as impressive as its advocates claim.

UPDATE: Ed Whelan makes some relevant points here.

That’s the title of a new article by Gary Lawson and me, in Boston University’s American Journal of Law and Medicine, in a symposium issue on the PPACA. Except that unlike Alice, the PPACA neither becomes a Queen, nor wakes up to return to reality. Written before the oral argument, the article provides an overview of some of the main constitutional and linguistic topics at play in the PPACA cases.

In this interesting recent op ed in Canada’s National Post , my George Mason colleague Frank Buckley argues that parliamentary systems of government are less likely to become dysfunctional than separation of powers systems such as that of the United States:

Before Standard and Poor’s downgraded U.S. public debt, Barack Obama mused that the American system of separation of powers might not be all that it is cracked up to be. It results in gridlock, and had raised the specter that Congress would fail to raise the debt ceiling. “We did not have a AAA political system to match our AAA credit rating,” Obama noted….

By contrast, the Canadian system of government has never seemed more attractive, if one judges these things by their results. Notwithstanding its generous social-welfare safety net, Canada is ranked as economically more free than the United States by the conservatives at the Heritage Foundation in Washington, which puts Canada in sixth, and the U.S. in 10th place, in the group’s most recent international survey. On per capita government spending, the two countries are tied, and on corporate taxes Canada is way ahead. On public debt levels, it’s no contest….

Getting legislation passed or repealed in America is like waiting for three cherries to line up in a Las Vegas slot machine. Absent a supermajority in Congress to override a presidential veto, one needs the simultaneous concurrence of the president, Senate and House.

In a parliamentary system, however, one needs only one cherry. In Canada, neither the governor-general nor the senate has a veto power. All that matters is the House of Commons, dominated by the prime minister’s party.

An American separation of powers might nevertheless be thought better able to screen off bad laws, which might more easily be enacted in a parliamentary regime. The flip side is that bad laws, once enacted, can more easily be reversed when a government doesn’t face the gridlock of the separation of powers.

So which is more valuable: Pre-enactment screening or ex post reversibility? I’d suggest the latter, for one important kind of legislation: “Experience laws,” whose effects cannot be judged without the benefit of hindsight. Then, reversibility trumps ex ante screening — not that there’s much of the latter in Washington. And when you get down to it, just about all laws are experience laws.

Frank makes a good case. But I remain unpersuaded. It is indeed true that Canada’s government has performed better than the United States over the last decade, which has enabled Canada to (slightly) surpass the US on the Heritage Foundation’s measure of economic freedom in recent years, and to establish a much better fiscal position. On the other hand, that same Heritage rating had the US ahead of Canada for many years before the late 2000s (as was also true in the rival Cato/Fraser Institute index). During much of that period, Canada also had much worse fiscal problems, higher taxes, and higher per capita government spending than the United States. And obviously the US had a separation of powers system and Canada a parliamentary system in those days too.

The recent reversal is a result of Canada’s impressive economic reforms since 1996 and the massive growth of American government under George W. Bush and Barack Obama. That growth did not occur because of “gridlock,” but because Congress and the president successfully enacted major new laws greatly increasing spending and regulation. It would be dangerous to generalize from this relatively brief period, or even from the US and Canadian experience as a whole. Studies that compare the records of many countries, such as Persson and Tabellini’s Economic Effects of Constitutions show that, controlling for other variables, presidential separation of powers systems have smaller public sectors than parliamentary systems.

Frank’s argument that post-enactment reversal is more valuable than preenactment screening in preventing bad laws overlooks the problem of institutionalization. Once a bad law is enacted, interest group pressures and inertia often make it difficult to repeal – even in a parliamentary system. Moreover, widespread political ignorance ensures that voters often don’t even realize that a law is having bad effects or even that it exists at all. That is one of the reasons why so many European governments are experiencing severe fiscal crises caused by overspending – despite the fact that nearly all of them have parliamentary governments. Even if most “bad” laws are “experience laws,” it is also true that many such laws have been tried elsewhere previously. Opponents can rely on that experience without having to first try out the bad law themselves.

Frank also contends that parliamentary systems will distribute government spending more equitably than separation of powers systems:

A party leader who seeks support across the country must have the interest of the country as a whole in mind. If he concentrates government spending in one region only, he will lose support in other regions. That’s why strong a prime minister and a Parliament of nobodies better serves the country than the separation of powers and earmark-seeking Congressmen, like the late John Murtha of Pennsylvania (of the John Murtha Airport, John Murtha Center, etc.).

Porkbarrel spending for local projects is a genuine problem in the US. But the same is true in many parliamentary systems. In the latter, parties often include narrow interest groups who get compensated for their support with government spending grants. It’s far from clear that the problem of fiscal favoritism for narrow interest groups or particular regions is less severe under a parliamentary system than in the US. Western Canadians have long complained about the concentration of federal grants in Quebec and the Atlantic provinces.

This is not to suggest that the US system is ideal or that all other nations should copy it. There are a variety of reasons why a nation might prefer a parliamentary system to presidentialism. For example, a powerful presidency that concentrates executive authority in one person’s hands might be a bad idea for a nation with deep ethnic divisions or one with a long tradition of authoritarianism. Obviously, people who want high levels of government spending and regulation also have good reason to prefer parliamentary systems – a point made by many American liberals going back to Woodrow Wilson in the late 19th century. However, the available evidence suggests that separation of powers is an important constraint on the growth of government and that parliamentary systems are not, on average, better at preventing fiscal crises.

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 is not precluded by Section 3 of the PRA, which states that “Nothing contained herein shall be construed to limit the people’s rights of freedom of speech, freedom of the press, free exercise of religion, and such other rights of the people.” Section protects the rights of “the people.” The preceding Section 2 stated that “People, person, or persons as used in this Constitution does not include corporations.” Presumably, that rule applies to the use of “people” Section 3, which there also does “not include corporations.” If, on the other hand, the reference to “people” in Section 3 does apply to corporations, then the entire PRA would have no effect at all, since Section 3 would preserve from limitation any constitutional rights to which corporations were entitled before the PRA.

Another possible way to mitigate the effects of the PRA would be for courts to rule that the rights of corporations are really just the rights of the natural persons who own them. If so, people organized as corporations qualify as “natural” persons too. I think that is the correct interpretation of the status of “corporate” rights under our present Constitution. But adopting this idea as an interpretation of the PRA would completely undermine the whole point of the Amendment, which is precisely to deny constitutional rights to organizations utilizing the corporate form.

UPDATE: Before writing this post, I had not noticed that Eugene had made some of the same points in this April 20 post. I apologize for any excessive duplication.

Over at Balkinization, University of Texas law professor Mitch Berman has an elegant post explaining why he thinks the Medicaid provisions of the Affordable Care Act are unconstitutional. Put as briefly as possible, he argues that the states are not being compelled to accept and spend the money, but they are being coerced, and this coercion is unconstitutional because the states otherwise have a right not to be commandeered by the federal government. But a one-sentence summation doesn’t do justice to the argument so if you are interested you should read the whole thing. You can find responses to, and a followup by, Berman at Balkinization’s main page.

President Obama today fired his opening salvo in an unprecedented attack on the Constitution of the United States. Regarding the impending Supreme Court ruling on the health control law, the President said, “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

His factual claims are false. His principle is a direct assault on the Constitution’s creation of an independent judicial branch as a check on constitutional violations by the other two branches.

It is certainly not “unprecedented” for the Court to overturn a law passed by “a democratically elected Congress.” The Court has done so 165 times, as of 2010. (See p. 201 of this Congressional Research Service report.)

President Obama can call legislation enacted by a vote of 219 to 212 a “strong” majority if he wishes. But there is nothing in the Constitution suggesting that a bill which garners the votes of 50.3% of the House of Representatives has such a “strong” majority that it therefore becomes exempt from judicial review. To the contrary, almost all of the 165 federal statutes which the Court has ruled unconstitutional had much larger majorities, most of them attracted votes from both Democrats and Republicans, and some of them were enacted nearly unanimously.

That the Supreme Court would declare as unconstitutional congressional “laws” which illegally violated the Constitution was one of the benefits of the Constitution, which the Constitution’s advocates used to help convince the People to ratify the Constitution. In Federalist 78, Alexander Hamilton explained why unconstitutional actions of Congress are not real laws, and why the judiciary has a duty to say so:

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. . . .

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

Because Hamilton was the foremost “big government” advocate of his time, it is especially notable that he was a leading advocate for judicial review of whether any part of the federal government had exceeded its delegated powers.

Well before Marbury v. Madison, the Supreme Court recognized that the People had given the Court the inescapable duty of reviewing the constitutionality of statutes which came before the Court. The Court fulfilled this duty in cases such as Hylton v. U.S. (1796) (Is congressional tax on carriages a direct tax, and therefore illegal because it is not apportioned according to state population?); and Calder v. Bull (1798) (Is Connecticut change in inheritance laws an ex post facto law?). The Court found that the particular statutes in question did not violate the Constitution. (The ex post facto clause applies only to criminal laws; the carriage tax was an indirect tax, not a direct tax.) However, the Court’s authority to judge the statutes’ constitutionality was not disputed.

It would not be unfair to charge President Obama with hypocrisy given his strong complaints when the Court did not strike down the federal ban on partial birth abortions, and given his approval of the Supreme Court decision (Boumediene v. Bush) striking down a congressional statute restricting habeas corpus rights of Guantanamo detainees. (For the record, I think that the federal abortion ban should have been declared void as because it was not within Congress’s interstate commerce power, and that Boumediene was probably decided correctly, although I have not studied the issue sufficiently to have a solid opinion.) The federal ban on abortion, and the federal restriction on habeas corpus were each passed with more than a “strong” 50.3% majority of a democratically elected Congress.

As a politician complaining that a Supreme Court which should strike down laws he doesn’t like, while simultaneously asserting that a judicial decision against a law he does like is improperly “activist,” President Obama is no more hypocritical than many other Presidents. But in asserting that the actions of a “strong” majority of Congress are unreviewable, President Obama’s word are truly unprecedented. Certainly no President in the last 150 years has claimed asserted that a “strong” majority of Congress can exempt a statute from judicial review. President Lincoln’s First Inaugural criticized the Dred Scott majority for using a case between two private litigants for its over-reaching into a major national question, but Lincoln affirmed that the Court can, and should, provide a binding resolution to disputes between the parties before the Court. And in 2012, the government of the United States is one of the parties before the Court. (And the government is before the Court in part because the government filed a petition for a writ of certiorari to ask the Court to use its discretion to decide the case.)

Alone among the Presidents, Thomas Jefferson appears as a strong opponent of judicial review per se. Notably, he did not propose that Congress be the final judge of its own powers, especially when Congress intruded on matters which the Constitution had reserved to the States. Rather, Jefferson argued that in such a dispute the matter should be resolved by a Convention of the States, and the States would be make the final decision. Given that 28 States have already appeared as parties in court arguing that the individual mandate is unconstitutional, we can make a good guess about what a Convention would decide about the constitutionality of the health control law.

President Obama, however, wants Obamacare to be reviewable by no-one: not by the Supreme Court, not by the States.  You can find professors and partisans who have argued for such lawlessness, but for a President to do so is unprecedented.

The People gave Congress the enumerated power “To regulate Commerce . . . among the several States.” According to the Obama administration, this delegation of power also includes the power to compel commerce. Opponents contend that the power to regulate commerce does not include the far greater power to compel commerce, and that the individual mandate is therefore an ultra vires act by a deputy (Congress) in violation of the grant of power from the principal (the People). Seventy-two percent of the public, including a majority of Democrats, agrees that the mandate is unconstitutional. Few acts of Congress have ever had such sustained opposition of a supermajority of the American public.

President Obama today has considerably raised the stakes in Sebelius v. Florida. At issue now is not just the issue of whether Congress can commandeer the People and compel them to purchase the products of a particular oligopoly. At issue is whether the Court will bow to a President who denies they very legitimacy of judicial review of congressional statutes–or at least those that statutes which garnered the “strong” majority of 219 out of 435 Representatives.

For over the two years, the very intelligent and clever professors at Balkinization have been doing a great job up trying to come up with legal arguments in support of the health control law. Even people who were not persuaded by the arguments can see how they have contributed to the debate. The first item I wrote on the health control law was back on March 22, 2010, responding to an article by Jack Balkin in the New England Journal of Medicine regarding the tax power. (Incidentally, this may make me the second VC writer–very distantly second after Randy himself–to state in writing that the health control law is unconstitutional under modern law, not just under original meaning. )

My Independence Institute colleague Rob Natelson (U. Montana law school) first wrote on the constitutionality of the health control law on Jan. 23, 2010, responding to a Los Angeles Times essay by Akhil Amar, who also writes for Balkinization. (Making Natelson the 1st full-time law professor to write something on Barnett’s side of the issue.)

I think that the VC and Balkinization have jointly helped to elevate the constitutional analysis by the courts and by the public, especially when VC and Bk have engaged and addressed each other’s arguments. Both VC and Bk kept right on going last week, with plenty of arguments for the Court made during the period between the end of oral argument on Wednesday and the Court’s conference on Friday.

In the health control law debate, VC and Balkinization have each had one outlier. At VC, our outlier was Orin Kerr, who remains unconvinced by the arguments developed by Randy et al. Orin’s public questions and challenges have helped spur the health control skeptics to refine their arguments, and to state them more precisely and clearly.

Balkinization has a different kind of outlier. Andy Koppelman has spent two years penning variations of his thesis: “Everyone who doesn’t agree with me is stupid.”

As noted below by Randy, Koppleman’s latest essay explores the implications of his certitude that “the silliness of the constitutional arguments against the mandate is apparent to any competent lawyer who assesses them in good faith.” Because every competent lawyer knows that Koppelman is right, how could anyone, including Supreme Court Justices, purport to disagree?

There could be only two possible explanations for such a frivolous opinion: (1) a naked assertion of raw power by politicized right-wing justices contemptuous of democratic processes, or (2) a sort of mass hallucination induced by the inane rantings produced by the echo chamber of the right-wing blogosphere.

Thus, says Koppelman, everyone, including lower federal courts, should “nullify” a Supreme Court decision holding the health control law unconstitutional.

I’ll leave it up to the readers to decide whether the Supreme Court saying that Congress can’t force people to buy overpriced products from the Big Insurance oligopoly merits the same sort of response that Kentucky offered to a congressional statute which (as actually enforced) outlawed criticism of the President, or which Wisconsin offered to a federal statute purporting to conscript Wisconsin citizens into enforcement of the federal Fugitive Slave Act of 1850.

But I will say this, from an organizational behavior perspective. An organization whose task involves persuasive communications can sometimes be strengthened if there is one person in the organization who can thoughtfully say “Here’s why I think the rest of you may be wrong, and here are what I see to be the weaknesses in your argument.” In contrast, an organization will not improve its persuasive effectiveness if the organization pays any attention to a fanatical member who insists, “No, the people on the other side aren’t just wrong. They MAD I tell you! MAD! They live in an echo chamber, and can’t even consider contrary ideas. Isn’t that obviously CRAZY!!?”

For my own exchanges with Professor Koppelman, see Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, 121 Yale Law Journal Online 267 (2011), and Bad News for John Marshall, 121 Yale Law Journal Online 529 (2012), both of which were co-authored BU’s Gary Lawson. A shorter version of the Lawson/Kopel thesis on the Necessary and Proper clause is available at The Incidental Unconstitutionality of the Individual Mandate, Legal Workshop. Feb. 6, 2012.

[Epilogue: April Fool's. On me. Larry Solum of Legal Theory occasionally posts abstracts of "articles" by famous professors which  are actually Solum-written parodies that take the professor's approach and push it just one more, somewhat plausible, step into absurdity. In real life, Koppelman does accuse critics of the health control law of acting "in the spirit of a saboteur in wartime,” and he did characterize the Lawson/Kopel argument for obeying the original meaning of the Necessary and Proper clause, as expounded in McCulloch, as "insane." But he never called for nullifying a Supreme Court decision; and while he has always said that there are no non-"silly" arguments against the health control law, he has never posited mass insanity as an alternative explanation to his theory that the only way for the health control law to be ruled unconstitutional would be political bias by the judges. And congratulations to Larry Solum, who is never insane, always brilliant, and sometimes silly.]

RL:

Modern conservative constitutionalists, meanwhile, though dissenters in some ways from the orthodox interpretation of American constitutional history, also want to see themselves as part of a seamless jurisprudential tradition, and they venerate some of the same Progressive heroes as their liberal adversaries do…. In this tale, the good guys are Holmes, Frankfurter, and other Justices who are said to have properly put their political views to one side to enforce the Constitution as written.

From the promotional materials for Judge J. Harvie Wilkinson’s just-released Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance.

The judicial modesty once practiced by Learned Hand, John Harlan, and Oliver Wendell Holmes has given way to competing schools of liberal and conservative activism seeking sanctuary in Living Constitutionalism, Originalism, Process Theory, or the supposedly anti-theoretical creed of Pragmatism…. Judge Wilkinson calls for a plainer, simpler, self-disciplined commitment to judicial restraint and democratic governance….

I was actually a bit surprised to see that Wilkinson invokes Holmes and Hand.  When I talk about Holmes and the heroic role he has traditionally played in constitutional history, the usual retort is that Holmes, though he turned a good phrase,  is passe as a role model now that he’s been widely recognized as a misanthrope with Social Darwinist tendencies who cared not a whit about the rights of minorities, or of anyone else for that matter.

As for Hand, true to his Progressive (as in the early 20th century Progressive movement) ideology, his valedictory lectures at Harvard Law School in the late 1950s denounced Brown v. Board of Education, First Amendment protection for Communists, and the use of the Fourteenth Amendment’s Due Process Clause to protect any substantive rights including those “incorporated” from the Bill of Rights. I  would have thought that invoking his legacy would be rather unlikely to inspire 21st century readers.  I”ll report further after  I read the book.

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. And we should give serious consideration to the possibility that some parts of it are flawed or even dysfunctional. As I explained in this post, a few parts of the Constitution are indefensible and some others are at least open to serious question. Sandy is also right that legal scholars should pay more attention to the effects of the clear “hardwired” parts of the Constitution and to state constitutional law. The latter is sadly neglected by most constitutional law academics, and rarely gets its due in the law school curriculum. Hopefully, Sandy’s important book will help change that.

On the other hand, I am far less confident than Sandy that we should push for a major restructuring of the Constitution at this point in our history. As Richard Epstein notes in his response to Sandy’s post, such an effort could easily do more harm than good. We should not abjure all efforts constitutional reform. But I would prefer to use a scalpel rather than a meat cleaver. For that reason, I am skeptical of calls for a new constitutional convention, which has been advocated by some on the political right, as well as by Sandy himself.

I also disagree with some of Sandy’s specific criticisms of federal and state constitutions. For example, he writes that California’s state constitution is flawed because of “the near-inability to raise any taxes, given the constitutional requirement of a two-thirds vote in the legislature, coupled with the ability of the California electorate to pass legislation and even constitutional amendments through mechanisms of ‘direct’ democracy.” However, California has in fact been quite successful in raising taxes. It has the third-highest state income tax rate of any state (trailing only Hawaii and Oregon). The highest rate (9.3%) kicks in at an annual income of just $48,029. The state also has an above average state sales tax rate (6.25%). California’s fiscal crisis is the result of unusually high spending, not unusually low tax rates.

However, Sandy is not entirely wrong to believe that California’s problems have a constitutional dimension. As I explained in this post, the state’s dysfunctions are in part the result of its vast size and its favorable geographic location, which make it difficult for citizens to “vote with their feet” against excessive taxation and regulation. Only in the last few years have things gotten so bad that the state has begun to suffer net outmigration to other states. Californians would have been better off if the state were broken up into several smaller jurisdictions that would have to compete with each other for residents. But that option is rendered almost impossible by the federal Constitution.

UPDATE: The Tax Foundation reports that California has an additional 10.3% tax rate on incomes of over $1 million per year.

UPDATE #2: Mike Rappaport has posted a thoughtful response to Sandy’s post here. I agree with many of Mike’s points, though I a more sympathetic than he is to reforms that would make the US Constitution easier to amend.

At the Legal Theory Blog, Georgetown law professor Larry Solum – a leading originalist scholar – has the following comments on my new paper, “Originalism and Political Ignorance”:

If Somin is correct, his argument provides support for one of the core arguments of “Semantic Originalism,” that the success conditions of constitutional communication can be met if we assume that the communicative content of the constitutional text consists of the conventional semantic meanings of the words and phrases as combined by shared understandings of syntax and grammar. Any additional communicative content must be delivered by the publicly shared context of constitutional utterance. If Somin is right, then that context is relatively information poor.

Somin does not argue that the public was generally ignorant of conventional semantic meaning–and this seems unlikely, since shared semantic understandings of some sort are required for linguistic communication to succeed.

Solum’s point has a lot of merit. The public need not know as much if all that originalist theory requires of it is an understanding of “conventional semantic meanings of the words and phrases” in the Constitution. I made a related point in my article when I noted that political ignorance is less of a problem for the original meaning of parts of the Constitution that are clear and unambiguous (pp. 24-26). I also suggested that the challenge posed by public ignorance may counsel in favor of literal rather than figurative interpretations of constitutional text, since low-knowledge voters are more likely to be aware of the former (pp. 44-45).

However, semantic meaning is not a panacea for the problem of ignorance. In many important cases, the semantic meaning of parts of the Constitution is ambiguous enough to allow more than one plausible meaning (e.g. – with terms such as “liberty,” “property,” and “equal protection of the laws”). Many of our most important constitutional disputes involve broad phrases like these, to which different people can attach widely divergent meanings, all of them linguistically plausible. In such cases, widespread public ignorance makes it difficult or impossible to pin down an original meaning. Many low-knowledge voters may have been unaware of the dispute and/or had no clear view on how to resolve it.

My paper on “Originalism and Political Ignorance,” currently under submission to law journals is now available on SSRN. Here’s the abstract:

Original meaning originalism may now be the most popular version of constitutional theory in the legal academy. The methodology has been endorsed by at least two Supreme Court justices and well-known scholars from across the political spectrum.

Original meaning is usually interpreted as focusing on the public understanding of the meaning of a constitutional provision at the time of ratification. This makes it essential to try to determine what the public actually knew and understood about the meaning of specific parts of the Constitution at the time they were enacted. If most of the public knew little or nothing about the constitutional provision in question, it may be difficult or impossible to determine its original meaning.

The evidence of extensive public ignorance on even very basic political issues suggests that such situations might well be quite common. Yet none of the rapidly growing literature on original meaning has so far grappled with the reality of widespread public ignorance.

This article begins the task of filling the gap in the literature. Part I describes the ways in which various theories of original meaning implicitly depend on assumptions about public knowledge. The problem is most severe with respect to determining the original meaning of provisions that are relatively vague and open-ended and least so when it comes to those that are more clear and precise. However, many of the most important disputes in constitutional law involve the former. The available empirical evidence on political ignorance suggests that the public may well have been poorly informed about many constitutional issues at the time of ratification. Indeed, political ignorance is actually rational for most voters.

In Part II, I consider several possible solutions to the challenge posed by political ignorance. These include relying on the perceptions of political elites, looking to contemporary coverage of constitutional issues in the popular media, and assuming that the public divined an original meaning after all, by relying on “information shortcuts.” Each of these approaches has some merit, but all also have important shortcomings. Part III briefly considers two ways in which originalists could respond to the challenge of political ignorance by modifying their theories: adopting a presumption in favor of literal over figurative interpretations of constitutional text, and leaving more issues to be resolved by construction rather than interpretation.

Political ignorance is not a terminal problem for originalism, and certainly does not discredit the theory completely. But it is an important issue that both originalists and their critics need to pay more attention to.

(1) Discussion of SDP continues over at Cato Unbound.   Too many interesting posts there to pick out one, so just start from Tim Sandefur’s lead essay and keep reading.

(2) Professor Michael McConnell and Nathan Chapman have posted an article on SSRN, Due Process as Separation of Powers.  The article cautions against “resorts to originalism to support modern due process doctrines,” finding that modern due process doctrines bear little similarity to the scope of the requirement of “due process of law” when the Fourteenth Amendment was enacted. On other hand, and contrary to standard originalist critiques emanating of SDP and its antecedents going back to Edward S. Corwin in the 1910s, the authors acknowledge that “due process of law” was understood to protect a (in their view very limited) category of substantive rights, in particular vested property rights.

I don’t agree with everything in this paper–in particular, I think the authors give short shrift to the influence of abolitionist constitutional thought.  The authors correctly note that before the Civil War, the (expansive, rights-oriented) abolitionist understanding of due process of law was not “adopted by more than a fringe,” but they fail to seriously grapple with the extent to which the Radical Republicans who drafted the Fourteenth Amendment after the Civil War were influenced by abolitionist thought. (I’m not sure how great the influence was, but it can’t be dismissed by reference to the state of constitutional law in 1860; the abolitionists were, after all, among the primary ideological victors of the war).

In any event, it’s a very valuable contribution to the debate over the meaning of the Due Process Clause, both in 1868 and today.

That’s the title of a new article by Gary Lawson and me, forthcoming in a symposium issue of Boston University’s American Journal of Law & Medicine. The Journal has a large readership among medical professionals who are interested in legal issues relating to medicine. Accordingly, if you have been following the VC’s debate on the ACA over the past couple years, most of what is in the article will already be familiar to you. Here is the abstract:

The question whether the Patient Protection and Affordable Care Act (“PPACA”) is “unconstitutional” is thorny, not simply because it presents intriguing issues of interpretation but also because it starkly illustrates the ambiguity that often accompanies the word “unconstitutional.” The term can be, and often is, used to mean a wide range of things, from inconsistency with the Constitution’s text to inconsistency with a set of policy preferences. In this article, we briefly explore the range of meanings that attach to the term “unconstitutional,” as well as the problem of determining the “constitutionality” of a lengthy statute when only some portions of the statute are challenged. We then, using “unconstitutional” to mean” inconsistent with an original social understanding of the Constitution’s text (with a bit of a nod to judicial precedents),” show that the individual mandate in the PPACA is not authorized by the federal taxing power, the federal commerce power, or the Necessary and Proper Clause and is therefore unconstitutional.

Today’s Ninth Circuit decision striking down California’s Proposition 8 banning same-sex marriage is unpersuasive because it claims that the law fails to meet even minimal “rational basis” scrutiny. Eugene Volokh does a good job of explaining why. But there is an alternative constitutional rationale for striking down same-sex marriage bans that avoids this problem. Proposition 8 is an example of sex discrimination, and must be evaluated under the higher standards of scrutiny applied to gender discrimination by the Supreme Court.

Although the sex discrimination argument has been advanced by several academic advocates of gay marriage, nonacademics tend to be skeptical because the same-sex marriage bans seem to be targeted against gays, not men or women. Hostility towards gays is certainly part of the motivation for bans on same-sex marriage. But that does not prevent these laws from qualifying as sex discrimination. In terms of the way the law is actually structured, a same-sex marriage ban in fact discriminates on the basis of gender rather than orientation. And it is perfectly possible to discriminate on the basis of sex even if the motivation for doing so is something other than sexism.

Consider the hypothetical case of Anne, Bob, and Colin. If same-sex marriage is forbidden, Anne is allowed to marry Colin, but Bob cannot do so. This is so even if Anne and Bob are identical in every respect other than gender. Bob is denied the legal right to marry Colin (and all other men) solely because he is a man. Denial of a legal right solely on the basis of gender is the very essence of sex discrimination.

By contrast, sexual orientation actually has no effect on the way the law operates. Anne is still allowed to marry Colin, even if one of them happens to be gay or lesbian. Bob is denied that right regardless of his sexual orientation. There are actually lots of real world cases where gays or lesbians have entered into opposite-sex marriages, such as the famous example of former New Jersey Governor James McGreevey, a closeted gay man who was married to a woman for many years. McGreevey’s marriage was not illegal, even if his actions were morally dubious.

All of this simply underscores the reality that a ban on same-sex marriage discriminates on the basis of gender rather than orientation – even if the motivation for the discrimination is hostility towards gays and lesbians. Under the Supreme Court’s approach to sex discrimination, any “statutory classifications that distinguish between males and females” are subject to heightened judicial scrutiny. A ban on same-sex marriage pretty obviously “distinguish[es] between males and females.”

Although a ban on same-sex marriage qualifies as sex discrimination, it is not automatically unconstitutional. Since the 1970s, the Supreme Court has taken the view that laws that discriminate on the basis of sex do not violate the Constitution if they can pass “intermediate scrutiny,” which requires them to be “substantially related” to an “important state interest.” If opponents of same-sex marriage are right to claim that Western civilization will fall into deep decline if the practice is allowed, that would be enough to pass the test. Ditto if they can show that same-sex marriage somehow inflicts severe harm on children. But any such arguments would be subject to detailed judicial scrutiny. They would have to be backed by real evidence, and could not pass muster just by being minimally plausible, as under the “rational basis” test.

Some originalists might reject my argument on the grounds that sex discrimination itself is not really banned by the original meaning of the Fourteenth Amendment. I criticized such arguments in this post. For a much more comprehensive rebuttal, see this important recent article by Steven Calabresi and Julia Rickert.

A more moderate originalist critique of my position might hinge on the idea that the framers of the Amendment would not have thought of a same-sex marriage ban as sex discrimination. But it is not hard to figure out that a law under which a legal right is dependent on gender discriminates on the basis of sex. The Framers surely thought that this was justifiable sex discrimination. But that does not mean that it isn’t sex discrimination at all. If asked whether marriage laws circa 1868 limited the right to marry on the basis of gender, most people at the time would surely have said yes. And, as in the case of occupational discrimination against women, the Framers’ view that this form of sex discrimination is constitutionally permissible hinged on dubious factual assumptions that we are not bound by today.

In sum, a ban on same-sex marriage easily qualifies as sex discrimination and is therefore subject to heightened judicial scrutiny. Whether it could withstand such scrutiny is a question I leave to others, though I am skeptical about its chances.

UPDATE: Many commenters seem to be assuming that, in order for a law to qualify as sex discrimination, it has to be motivated by hostility to men or women. Not so. As the Supreme Court puts it, a law can qualify as unconstitutional sex discrimination so long as it is a”statutory classification… that distinguish between males and females.” Similarly, a racial classification counts as racial discrimination for constitutional purposes even if the motives behind it are benign.

It is also not true that a ban on same-sex marriage avoids qualifying as sex discrimination because it affects members of both genders. It still denies rights to both men and women solely on account of their sex. The fact that Bob cannot marry Colin solely on account of gender is not somehow “balanced” by the fact that Anne is similarly forbidden to marry Carol. Similarly, a law banning interracial marriage still qualifies as race discrimination even though both blacks and whites are barred from marrying members of the other racial group.

Hello Volokh Conspiracy readers! I’d like to thank Eugene for this opportunity to guest blog here about my new book, Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies.

Today I’ll have one post with a brief introduction, and another with an excerpt/discussion from one chapter. I’ll discuss a couple more chapters tomorrow and Thursday, and conclude with some general lessons on Friday. I look forward to your comments, and I’ll try to post some responses to them too.

My book is about what I call constitutional cliffhangers, all of them of the presidential variety. I define these cliffhangers as “scenarios in which the fate of the president or presidency is in doubt as politicians, courts, and the people argue over the proper interpretation of the Constitution.” They range from the merely interesting all the way up to full-blown constitutional crises.

In the middle six chapters, I sketch out hypothetical situations in which (1) a president is criminally prosecuted; (2) a president pardons himself; (3) cabinet members try to oust an allegedly disabled president, who in turn tries to oust them; (4) the secretary of state and the Speaker of the House fight for control of the presidency after the president and vice president are killed; (5) an ex-president is impeached; and (6) a two-term president attempts to stay in power.

In each case there are legal arguments on both sides, complicated by intense politics. The politics are often decisive in cases like these, so it might seem pointless to spend too much time debating the legal niceties. I’ll address that important issue on Friday.

In the remainder of this introductory post, I’ll address a common question that topics like mine evoke: “Why worry about a bunch of crazy stuff that will never happen?”

The short answer is that crazy stuff like this happens quite often. The scenarios in my book were chosen because they haven’t happened yet, but some of them have come close. More to the point, other examples abound in American history: The Jefferson-Burr tie in the Election of 1800 is probably the first; the Harrison-Tyler “acting president” question from 1841 is probably the most significant; and the Paula Jones case is probably the most recent. The Constitution has too many wrinkles and slick spots in it for us to avoid tripping or slipping on them once in a while.

It’s worthwhile to try to identify problems before they happen, and to discuss and possibly fix them. Indeed, some of them are too obvious to ignore, yet we still manage to do so until it’s too late. Consider this passage from my introductory chapter about the lessons we can learn from our most contentious presidential election:

The whole election turned on a few hundred disputed votes in Florida. There had been ultra-close presidential elections before, and there had been ambiguous results in individual states before; it was only a matter of time before both happened at the same time. Unfortunately, no steps had been taken to prevent it.

The problem was that there were no rules for resolving a dispute like this. The quintessential American mixture of politics and litigation filled the void. The Republicans fought to defend their initial lead; the Democrats fought to open things back up and recount the votes. The Republicans controlled key posts in the state government; the Democrats won key victories in Florida state court. The Republicans took their case to Washington, D.C., where Republican-appointed Supreme Court justices declared that there was no time for recounts, handing the election to the Republicans. And so, in 1877, Rutherford B. Hayes became our nineteenth president.

You might recall some similar things that happened in 2000. The underlying quandary — an electoral system in which it is easy for the margin of error to greatly exceed the margin of victory — was no secret before 1876, let alone in 2000. And yet it dangled out there unsolved, waiting to snag both elections. For the most part, it dangles still.

That’s the spirit of Constitutional Cliffhangers.

I’ll be posting again later today with a look at my favorite cliffhanger (Chapter 4 in the book), a succession crisis in which the secretary of state and the Speaker of the House wrestle, figuratively, for control of the White House.

The Occupy Wall Street movement is often seen as a left-wing counterpart to the Tea Party movement. Until recently, however, OWS has differed from the Tea Party in so far as it paid little attention to constitutional issues. By contrast, constitutional issues are a central focus of the Tea Party, which claims that the courts have departed from the original meaning and have allowed the federal government to seize too much power. As I explained in this article, the Tea Party fits the classic model of “popular constitutionalism” – a popular movement that makes constitutional issues a central focus of its agenda. Until now, such issues have been mostly peripheral for OWS.

Today, however, a group inspired by OWS is holding a series of “Occupy the Courts” protests, which do focus on constitutional issues, mostly attacking the Supreme Court’s campaign finance decisions:

The “Occupy” movement will turn its focus on the nation’s highest court Friday as organizers plan to gather around the Supreme Court building dressed like justices and singing songs of the Motown group, The Supremes.

The event is being held around the two-year anniversary of the Supreme Court decision in the case of Citizens United v. Federal Election Commission, which removed many limits to corporate spending in federal political campaigns, organizers say….

The one-day event dubbed “Occupy the Courts” is organized by the grassroots group called Move to Amend and was inspired by the Occupy Wall Street participants, organizers said.

“Move to Amend volunteers across the USA will lead the charge on the judiciary which created — and continues to expand — corporate personhood rights,” the Occupy the Courts website states.

There is some irony in the OWS protestors campaign against “corporate personhood.” OWS gets a great deal of financial and organizational support from labor unions and other left-wing organizations that are, legally speaking, organized as corporations. Labor unions were, in fact, among the biggest beneficiaries of the Supreme Court’s Citizens United decision, which the OWS protesters revile. Do the protesters believe that labor unions and left-wing nonprofits have First Amendment rights? Should the government have unconstrained authority to forbid unions and other corporate entities from spending money on OWS protests and other forms of political speech? If not, then the OWS protesters cannot categorically reject the idea that people organized as corporations have constitutional rights too.

Perhaps the real argument is that only profit-making corporations should be denied constitutional rights, while unions and nonprofits fall in a different category. But there is nothing in the text, structure, or history of the Constitution to support any such distinction. Freedom of speech applies just as readily to speakers motivated by economic self-interest as those with more altruistic motives. Moreover, economic self-interest is a big part of the motivation of labor unions too. One of the main purposes of unions is to increase the incomes of their members. OWS itself often appeals to economic self-interest. After all, one of their central demands is the redistribution of wealth from “the 1%” to “the 99%,” including OWS activists themselves.

Such contradictions are not unusual in popular constitutionalist movements. Many Tea Party supporters, for example, continue to back the federal War on Drugs, despite the fact that much of it is unconstitutional under a limited, originalist interpretation of congressional power.

Whether OWS addresses the contradiction in their position, and, more generally, tries to develop a coherent constitutional vision remains to be seen. It’s possible that OWS will, over time, make constitutional issues a major part of their agenda, thereby becoming a full-blown popular constitutional movement. It is also possible that they will quickly move back to focusing on other matters. If I had to guess, I would predict that constitutional concerns are unlikely to become a central focus of OWS. They have too many other issues that interest them more. However, the movement is still relatively new and could easily develop in unexpected directions.

UPDATE: Lest there be any doubt, Move to Amend, the OWS offshoot that organized the “Occupy the Courts” protests states on their website that their position is that “human beings, not corporations, are the persons entitled to constitutional rights.” They don’t just think that Citizens United was wrongly decided. They believe that corporate entities should not be able to claim any constitutional rights at all. That, of course, includes not only free speech rights for unions and nonprofit corporations, but also numerous other rights.

UPDATE #2: I should acknowledge an error: Contrary to what I previously thought, most unions are not organized as corporations, but have a separate legal status of their own. I very much regret the mistake and apologize for it.

At the same time, it is important to recognize that unions, like corporations were freed from restrictions on independent campaign-related speech by the Citizens United decision, and the Court’s reasoning in both cases was the same. Moreover, the “corporations aren’t people” argument for restricting corporate speech still applies to unions with equal force. Unions are no more “natural” persons than corporations are. Both are legal entities with special rights, obligations, and privileges defined by the government. In some ways, unions actually have more legal privileges than corporations do. For example, unlike business corporations, they are exempt from federal income taxation.

On behalf of the Independence Institute, Rob Natelson and I wrote an amicus brief on the Medicaid mandate currently before the Supreme Court. (The ACA requirement that states must drastically expand Medicaid eligibility, or lose all their federal matching funds for Medicaid.) Here’s the Summary of Argument:

By imposing the Medicaid mandates in the Affordable Care Act (“ACA”), Congress exceeded the scope of its enumerated powers. If allowed to stand, those mandates could be the death-knell for the Constitution’s finely calibrated system of federalism. The states truly would be little more than agencies for Congress to “commandeer” at will.

The Founders created and the People ratified a Constitution protecting the States’ role as limited “sovereigns.” As this Court has ruled repeatedly, the states’ sovereign “independence” entitles them to make decisions within their sphere based on their own policy judgments, free of federal coercion. As explained below, this rule and the closely-related principle of federal non-coercion is of particular constitutional importance in financing health and social services.

In sustaining the Medicaid mandates, the United States Court of Appeals for the Eleventh Circuit overlooked both Founding-Era constitutional principle and modern Supreme Court doctrine. It also overlooked aspects of the Medicaid mandates that particularly aggravate their coercive qualities. Insofar as the ACA authorizes withdrawal of all Medicaid funds from States that choose not to submit to the Medicaid mandates, that statute slashes at the heart of American federalism. It is unconstitutional and void.

Intelligent comments are welcome, although experience suggests that there will also be plenty of comments from twits who have not read the brief, yet proclaim their absolute certainty about supposedly fatal errors in its legal reasoning. Rob’s summary of brief is available on his blog.

I was thinking of writing a post on Newt Gingrich’s ill-advised attack on the judiciary. However, most of what I would have wanted to say is covered in this George Will column:

When discussing his amazingness, Newt Gingrich sometimes exaggerates somewhat, as when…. he said, “People like me are what stand between us and Auschwitz”…… What primarily stands between us and misrule, however, is the Constitution, buttressed by an independent judiciary.

But Gingrich’s hunger for distinction has surely been slaked by his full-throated attack on such a judiciary. He is the first presidential candidate to propose a thorough assault on the rule of law. That is the meaning of his vow to break courts to the saddle of politicians, particularly to members of Congress, who rarely even read the laws they pass.

Gingrich’s most lurid evidence that courts are “grotesquely dictatorial” is a Texas judge’s aggressive decision concerning religious observances at high school functions, a decision a higher court promptly (and dictatorially?) overturned….

So, Gingrich is happy? Not exactly. He warns that calling the Supreme Court supreme amounts to embracing “oligarchy.”

He says that the Founders considered the judiciary the “weakest” branch. Not exactly. Alexander Hamilton called the judiciary the “least dangerous” branch (Federalist 78) because, since it wields neither the sword nor the purse, its power resides solely in persuasive “judgment.” That, however, is not weakness but strength based on the public’s respect for public reasoning. Gingrich yearns to shatter that respect and trump such reasoning with raw political power, in the name of majoritarianism.

Judicial deference to majorities can, however, be a dereliction of the judicial duty to oppose actions irreconcilable with constitutional limits on what majorities may do. Gingrich’s campaign against courts repudiates contemporary conservatism’s core commitment to limited government….

To teach courts the virtue of modesty, President Gingrich would attempt to abolish some courts and impeach judges whose decisions annoy him — decisions he says he might ignore while urging Congress to do likewise. He favors compelling judges to appear before Congress to justify decisions “out of sync” with majorities, and he would sic police or marshals on judges who resist congressional coercion. Never mind that judges always explain themselves in written opinions, concurrences and dissents….

[Gingrich] disdains the central conservative virtue, prudence, and exemplifies progressivism’s defining attribute — impatience with impediments to the political branches’ wielding of untrammeled power. He exalts the will of the majority of the moment, at least as he, tribune of the vox populi, interprets it.

I would add that Gingrich conveniently ignores the fact that there are already many constraints on judicial power. Judges are nominated by presidents and confirmed by the Senate, which makes it difficult to push through nominees who deviate greatly from the political mainstream. Once appointed, they cannot easily enforce decisions in the face of strong opposition from public opinion and/or the other branches of government. Congress can impose additional restraints by deciding which courts have jurisdiction over what issues.

Historically, federal courts have erred at least as much by failing to strike down unconstitutional laws and policies as by overruling laws that they should have upheld. Many of the most notorious Supreme Court decisions – Plessy v. Ferguson, Korematsu, Buck v. Bell, Kelo v. City of New London (which, as Will notes, Gingrich has harshly criticized), fall into the former category.

Earlier this month, I posted on Steven Calabresi and Julia Rickert’s new paper, “Originalism and Sex Discrimination.”  Published in the Texas Law Review, this article makes an originalist argument that gender discrimination, such as the exclusion of women from VMI, is unconstitutional.

This is an important article, which has already received notice from Lawrence Solum and Jack Balkin, among others.  It was also subject to a lengthy critique by Ed Whelan on NRO’s Bench Memos in five parts: 1, 2, 3, 4, and 5.  Calabresi and Rickert have written a response to Whelan which I am posting here.  It begins below and the continues after the jump.

[UPDATE: Ed Whelan has a brief rejoinder here.]

Steve Calabresi & Julia Rickert Response to Ed Whelan

We recently posted an article on SSRN entitled “Originalism and Sex Discrimination,” which  has now been published in the Texas Law Review. We argue in our article that the Fourteenth Amendment outlaws all systems of caste from the Black Codes to European feudalism to the Indian Caste system.  We also argue that after the ratification of the Nineteenth Amendment in 1920 giving women the right to vote, it was constitutionally correct to read the Fourteenth Amendment’s ban on caste as outlawing sex discrimination with respect to civil rights.  Our position is that originalists reading the text of the Fourteenth Amendment today need to synthesize it with the text of the Nineteenth Amendment.  We believe that the political right to vote which the Fifteenth Amendment extends to men of any race, and which the Nineteenth Amendment extends to women of all races, is at the apex of the Constitution’s hierarchy of rights while civil rights, which the Fourteenth Amendment protects form the base of the pyramid.  Children, aliens, and former felons have civil rights under the Fourteenth Amendment, but they do not have the political right to vote.  No group, however, in our opinion can be granted political rights without also acquiring civil rights under the Fourteenth Amendment.

In five posts on National Review, Ed Whelan, who is one of the most acclaimed conservative legal thinkers and activists of his generation, disagrees with our view.  Whelan agrees to assume along with us that the Fourteenth Amendment outlaws systems of caste, as a matter of original meaning, but he disagrees with us that traditional laws that banned married women from owning property, entering into contracts, or working as lawyers or bartenders set up a system of caste even if the Fourteenth Amendment bans systems of caste.  Whelan also argues that the Nineteenth Amendment ought not to be read synthetically with the Fourteenth because doing so renders the Fourteenth Amendment superfluous.  Whelan makes many additional arguments which we will try to address below, but this is the gist of his argument.

Continue reading ‘Calabresi & Rickert Respond to Whelan on Originalism and Sex Discrimination’ »

Last week, I noted the important new article by Stephen Calabresi and Julia Rickert making an originalist case for the unconstitutionality of sex discrimination.  In short, they argue that the 14th Amendment is best understood as prohibiting caste legislation, not just racial discrimination, and that it must be read in light of subsequent amendments, the 19th Amendment in particular.

Ed Whelan has responded to the Calabresi-Rickert article at length at NRO’s Bench Memos.  To put if briefly, he is not convinced.  His response consists of five parts: 1, 2, 3, 4, and 5.

It is generally accepted that the Supreme Court’s sex discrimination jurisprudence cannot be reconciled with an originalist interpretation of Section One of the Fourteenth Amendment.   Originalists and non-originalists alike accept that the original intent of Section One was to preclude racial discrimination against blacks, and that there was no intent to prevent sex discrimination by state entities.  Nor did the original public meaning of Section One embody a rule that would prevent state governments from engaging in sex discrimination.

In an important new paper, forthcoming in the Texas Law Review, Northwestern law professor Steven Calabresi and Julia Rickert argue that the conventional originalist view on sex discrimination is wrong, and that the Supreme Court’s sex discrimination decisions (if not their rationales) are largely consistent with a true originalist understanding of Section One of the Fourteenth Amendment.  Specifically, they argue that Section One is best understood as a prohibition on caste legislation and that the meaning of the Amendment must be considered in light of subsequent constitutional amendments, the Nineteenth Amendment in particular.  Thus understood, Section One prohibits state-sponsored gender discrimination and can even justify the Court’s decision in the VMI case.

This article is Lawrence Solum’s “Download of the Week,” and with good reason, as it is sure to prompt significant discussion and debate.  As Solum would say, “Download it while it’s hot!”

The American Revolution took place because of various abuses of the rights of Americans by the British government. So when we seek to understand the rights of citizens in the nation that was created by that Revolution, one useful guide is looking at the negative example of what the Americans were revolting against. For example, Justices have looked at the revolution-provoking use general warrants (Henry v. United States, 1959),  unrepresentative government as exemplified by (but not limited to) taxation without representation (Texas v. Johnson, 1989, Rehnquist dissenting),  and violation of the right to trial by jury, via use of vice-admiralty courts (Parklane Hosiery v. Shore, 1979, Rehnquist dissenting).

More broadly, as the 2d Justice Harlan wrote in his oft-quoted dissent in Poe v. Ullman, when the Court is “supplying of content” to constitutional ”liberty,” the Court should have “regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke.”

Can commentators supply some additional examples, either regarding specific issues, or general Poe-like rules? Citations to Supreme Court cases are welcome, but also welcome are citations to other sources who are regarded as guides for constitutional understanding–such as Abraham Lincoln, or influential commentators.

This week, I have argued that the great overlooked question in constitutional law is the who question: who is bound by each clause and so who may violate it? These posts have attempted to answer this question for many of the most important clauses.  They have also attempted to sketch some of the implications of the answers.  Many more answers, and many more implications, may be found in my Stanford Law Review articles, The Subjects of the Constitution and The Objects of the Constitution.

Both the answers and the implications are contestable (and many of the comments have contested them!).  But the question, at least, has already started to take root (at least in the Third Circuit and the Seventh Circuit).  And it turns out that once you start asking, it is difficult to stop.

So, to the law students reading this blog, I leave this one parting thought.  When your professor tells you that “a statute violates the constitution” — either “facially” or “as-applied” — just ask him what exactly he means.  If the Constitution has been violated, then someone must have violated it, at some particular moment in time.  Ask your professor: who violated the Constitution and when? The discussion that follows may change the way that you think about constitutional law.

Many thanks to Eugene for the invitation, to Randy for the generous review, and to the Conspiracy for your gracious hospitality.

This week, I have argued that the great overlooked question in constitutional law is the who question: who has allegedly violated the Constitution? The question is important, first, for simple reasons of constitutional accountability: if you care about the Constitution, you should care about who is violating it.  But it is also important because it frames the organizing dichotomy of constitutional review.  The Constitution binds different governmental actors in different ways.  And judicial review of legislative action is fundamentally, structurally different from judicial review of executive action.  What the Court calls a “facial challenge” is actually a (broad and text-focused) challenge to legislative action.  What the Court calls an “as-applied” challenge is actually a (narrow and fact-focused) challenge to executive action.

So, it is essential to know which clauses of the Constitution bind which governmental actors.  Sometimes, happily, it is easy to tell, because some clauses are written in the active voice, with an explicit subject.  “Congress shall make no law … abridging the freedom of speech.”  “The Congress shall have power … To regulate Commerce … among the several States.”  Challenges under these provisions are challenges to legislative action.  They are inherently “facial” and do not turn at all upon specific facts that arise after the legislature made the law.  (Those facts might matter for preliminary questions, like standing, but they will not matter to the merits of the constitutional inquiry.)

Unfortunately, most clauses of the Bill of Rights are not so easy.  Most of them are written in the passive voice, inviting the question: by whom? Yesterday, I argued that most of these clauses bind the Executive (or Judicial) branch rather than Congress.  This explains the Court’s intuition that most constitutional challenges are properly fact-based, or “as-applied”.

The Fourteenth Amendment is more difficult still, but in a different way.  It is written in the active voice, with an express subject, but its subject is less specific than “Congress.”  The Fourteenth Amendment says: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

It is tempting, of course, to say that this provision binds all state actors, and so Fourteenth Amendment rights are rights against all of them.  But, unfortunately, the question is more complicated.  The Fourteenth Amendment is said to “incorporate” the Bill of Rights against the States.  But, as we have seen, the Bill of Rights itself protects rights against particular federal actors.  The subject of the First Amendment, for example, is “Congress.”  It is a prohibition on legislative action.  Does it follow, therefore, that the First Amendment as incorporated applies only to state legislatures?

Not necessarily.  In his masterpiece, The Bill of Rights: Creation and Reconstruction, Akhil Reed Amar explained how the rights in the Bill of Rights are refined as they are incorporated against the States.  Building on Amar’s brilliant work, my article explores perhaps the most important refinement of all — refinement of the subjects and objects of the Bill of Rights.  The rights as incorporated do not necessarily restrict the state analogues of the same federal actors.

The reason derives from the structural logic of the Constitution.  Because the Constitution created the federal government, it could be precisely calibrated to empower and restrain each of the three branches that it created.  The Bill of Rights provisions are restrictions on powers granted elsewhere in the document. They are, as Chief Justice Marshall says, “limitations of power granted in the instrument itself.”  The limitations are, thus, carefully calibrated to the power grants.

But the Constitution did not create the state governments, and it permits a wide variety of state governmental structures—requiring only that those structures be “Republican.”  So the Framers could not be certain precisely who, at the state level, would pose each sort of threat to liberty.  The Fourteenth Amendment restricts state governmental powers that are not to be found in the Constitution itself.  These provisions cut across state powers that may or may not be found in various state constitutions and may or may not vary from state to state. Here, the restrictions do not map onto grants of power to particular state officials, and so the restrictions are phrased generally: “No State shall.”

For this reason, incorporation of the Bill of Rights may work a refinement of the subjects and objects of the Bill of Rights.  Contra the conventional wisdom, different actors may be bound at the state level than at the federal level. For each privilege or immunity, it is essential to ask: privilege or immunity against whom? I venture some answers in The Objects of the Constitution.