The Volokh Conspiracy

On Monday, I pointed out a euphemism of constitutional discourse.  We are in the habit of saying “this statute violates the Constitution” (either “facially” or “as-applied”), when what we mean is that some government actor violated the Constitution — Congress, the President, a federal court, a state official.  The euphemism is bad, I argued, because it conceals constitutional culprits.  Simply put, if you care about the Constitution, you should care about who is violating it.

On Tuesday and Wednesday, I argued that this euphemism is bad for an even more fundamental reason.  It obscures what should be the organizing dichotomy of constitutional law.  The Court has correctly intuited that there are two basic flavors of judicial review — one somehow narrower, turning on the challenger’s specific facts and implying a remedy tailored to those facts; the other broader and more general, focusing on text rather than facts, and perhaps suggesting a sweeping remedial declaration that the statute is “void.”  But the Court has been distinctly vague about when each sort of challenge is appropriate and why.  It purports to “favor” the narrower type, and it purports to have set an extremely high bar for the broader type, but in some contexts (like the Commerce Clause), its presumption seems to run the other way, without any explanation.

The dichotomy that the Court has been grasping for is actually a dichotomy based on the subject of the claim, the answer to the who question.  A “facial” challenge is simply a challenge to legislative action.  An “as-applied” challenge is simply a challenge to executive action.  A “facial” challenge is broad and text-based, because it challenges the legislature’s action in making a law; the challenger’s particular facts cannot matter to the merits, for the simple reason that those facts arise later, after the alleged violation is complete.  An “as-applied” challenge is narrow and fact-based, because it challenges the executive’s action in executing the law.  Here the inquiry is distinctly fact-intensive, because the facts of execution are the constitutional violation.

This explains why the Court has apparently ignored its general rule and favored “facial” challenges in three particular contexts: the First Amendment, the Commerce Clause, and Section Five of the Fourteenth Amendment.  The Court has never explained these exceptions to the general rule, but these three provisions have one important characteristic in common.  They are all written in the active voice, with a single explicit subject: “Congress”.  Challenges under these provisions are challenges to legislative action.  Any constitutional violation will be visible on the face of the law, and the challenger’s specific facts — which arise after the law was made and so after the violation was complete — cannot matter to the merits of the case.

So, to determine whether a constitutional inquiry should be fact-based (as under the Fourth Amendment) or text-based (as under the First Amendment, the Commerce Clause, or Section Five of the Fourteenth Amendment), it is essential to answer the who question and identify the subject of the claim.

Unfortunately, not all Clauses are as clear as the examples given so far.  Unlike the First Amendment, most of the Bill of Rights is written in the passive voice, inviting the question: by whom? In these cases, it is much more difficult to tell who is bound by each clause.

At first glance, it might be tempting to say that that the passive-voice clauses bind everyone on Earth.  One might be tempted to say, for example, that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,” by anyone.  But in fact, virtually everyone agrees that such provisions bind only government actors.  A parent cannot violate this provision by searching their child, no matter how unreasonable the search.  Moreover, in a case called Barron v. Baltimore, Chief Justice Marshall held that such Clauses bind only federal government actors.  (The Fourteenth Amendment, ratified after Barron, applied many of the same restrictions to state actors, as I will discuss tomorrow, but it remains true, per Barron, that the passive voice clauses themselves bind only federal government actors.)

If constitutional structure limits the passive-voice clauses to government actors, and if constitutional structure limits them further, to only federal government actors, then perhaps constitutional structure limits at least some of them further still, to specific federal government actors: Congress, or the President, or the judiciary.  In The Objects of the Constitution, I attempted to apply Chief Justice Marshall’s textual and structural approach from Barron to this question, and tried to identify who, specifically, is bound by the passive-voice clauses of the Bill of Rights.

The complete analysis is too involved for a blog post.  (If you’re interested, please see the article itself.)  But the basic conclusions are rather striking.  It seems that when the Constitution binds Congress, it generally does so in the active voice (“Congress shall make no law”) or, in the passive voice, it speaks in unmistakably legislative terms (“no bill of attainder or ex post facto law shall be passed”).

But most of the Bill of Rights does not sound like that.  Most of it is written in distinctly executive-sounding terms, like “searches and seizures” “punishments inflicted,” and “property … taken.”  These are not words that invoke the “making” or “passing” of “bills” or “laws” in the halls of Congress, but rather executive action out in the world.  (Other provisions of the Bill of Rights are written in judicial terms, concerning the conduct of trials; again, if you are interested in these, please see the article itself.)

Another clue is that, other than the First Amendment, most mentions of “law” in the Bill of Rights are not restricting the laws that Congress can make (as in “Congress shall make no law”).  Rather, most mentions of “law” seem to be restricting what another branch may do in the absence of a law.  See, e.g., U.S. Const. amend. III (“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law”); id. amend. V (“No person shall … be deprived of life, liberty, or property, without due process of law”); id. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law”).

In short, it appears that most provisions of the Bill of Rights are not restrictions on legislative action.  In most of these provisions, Congress is not the answer to the who question.  Most of these provisions are restrictions on executive (or judicial) action.  Most are like the Fourth Amendment, not like the First Amendment. And this explains the Court’s intuition that most judicial review should be fact-specific and as-applied.

It also explains the Court’s intuition that the First Amendment is an exception to the rule.  The Court has always had the instinct that the First Amendment is special, that it merits special protection, that challenges can be earlier and broader, because, as the Court says, the “very existence” of offending statutes may cause “chill” and thus constitutional harm.  And so, the Court has crafted special doctrines, like overbreadth, which it purports to apply in the First Amendment context and no other.

But it has never noticed that its exceptional First Amendment doctrines map onto the First Amendment’s exceptional subject.  The First Amendment, unlike most of the Bill of Rights, is a restriction on Congress.  Congress is the subject of the Amendment and the answer to the who question.  If the First Amendment has been violated, then Congress has violated it, by making a law. That is why overbreadth doctrine is limited to the First Amendment.  That is why First Amendment challenges should always be “facial”.  And that is why the “very existence” of a censorship law is a constitutional harm.

In light of some of the comments and questions on my prior posts, it might be helpful to take a step back and explain exactly what puzzle I started out trying to solve.  For this discussion, we will use an example near and dear to the Conspiracy’s heart: the scope of the Commerce Clause, and whether it can justify the individual mandate of ObamaCare.

But first, the puzzle.  The Court has intuited that there are two basic forms of judicial review.  It has called these two forms “facial challenges to statutes” and “as-applied challenges to statutes.” But the distinction between them is quite confused. Under current doctrine, an “as-applied challenge” is somehow narrower, turning on the challenger’s specific facts and implying a remedy tailored to those facts. A “facial challenge” is broader and more general, implying, somehow, that the statute is rotten to the core, and perhaps suggesting a sweeping remedial declaration that the statute is “void.”  An as-applied challenge is mostly about facts, whereas a facial challenge is mostly about text.  But when is the former appropriate and when the latter? Precisely what remedy is appropriate in each case? Indeed, what exactly do these terms — “facial” and “as-applied” — even mean?

The Court has issued precious little guidance on the matter, merely emphasizing that it considers “as-applied” challenges to be the norm, and “facial” challenges to be a “disfavored” exception to the rule.  In a case called Salerno, the Court said: “A facial challenge to a legislative Act is . . . the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.”  That may sound like a clear rule, but courts and commentators have struggled mightily to figure out what it means.  And in any case, the Court itself often ignores this rule, in some contexts but not others, without explanation.

One such context is the Commerce Clause. In 1990, Congress enacted the Gun-Free School Zones Act, which made it a federal offense “for any individual knowingly to possess a firearm . . . at a place that the individual knows, or has reasonable cause to believe, is a school zone.”  Alfonso Lopez was charged with bringing a gun to a high school in San Antonio. He presented a constitutional defense, claiming that the Act “exceeded Congress’ power to legislate under the Commerce Clause.”  The Court agreed and, for the first time in fifty-eight years, struck down a statute on Commerce Clause grounds.

But here is the puzzle.  Why did the Court tolerate a “facial” challenge here, when it usually insists that they are “disfavored”?  Why is there no mention of Salerno and no inquiry into whether “no set of circumstances exists under which the Act would be valid”?  And why is there no inquiry into Mr. Lopez’s specific facts?  Why is there no substantial discussion of whether Mr. Lopez’s personal gun had travelled in interstate commerce?

The puzzle may be solved by focusing on the answer to the who question, the subject of the Clause. The Commerce Clause says: “The Congress shall have power . . . To regulate commerce . . . among the several states . . . .”  Like the First Amendment, it is written in the active voice and it has a clear subject: Congress.  So, a Commerce Clause challenge, like a First Amendment challenge, is a challenge to an action of Congress. Congress is the subject of the claim and the answer to the who question. And the answer to the when question follows: if Congress makes a law in excess of its power under the Commerce Clause and thus violates the Tenth Amendment, the constitutional violation occurs when Congress makes the law.

As the Court has intuited but not explained, a claim that Congress violated the Constitution by making a law, when it made the law, is inherently a “facial” challenge.  Facial challenges cannot be “disfavored” here; in this context, they are logically required.  Conversely, “as-applied” challenges cannot be “favored” here; in this context, they make no sense. The specific facts of enforcement cannot matter in a Commerce Clause case, for the simple reason that the constitutional violation is complete before those facts arise. It cannot matter whether Mr. Lopez’s gun travelled in interstate commerce, because Congress violated the Constitution long before, by making the law.

This is how to make sense of the Court’s muddled distinction between “facial” challenges and “as-applied” challenges.  The distinction the Court is grasping for is a distinction based on subject.  An as-applied challenge is a challenge to executive action (as in the Search and Seizure Clause of the Fourth Amendment). A facial challenge is a challenge to legislative action (as in the First Amendment and in the Commerce Clause).

This explains what happened in Lopez, and it explains what happened in the cases that followed.  The next Commerce Clause case, Morrison, was also a purportedly “disfavored” facial challenge — and it also succeeded.  Here, too, there was no analysis of specific facts, just analysis of the action (or “Act”) of Congress.

The one after that, Raich, argued by Conspirator Randy Barnett, took the opposite approach from Lopez.  Raich insisted that the Court should focus on her particular facts, and whether they affected interstate commerce.  One would have thought that this was a sensible strategy — the “as-applied” approach that the Court purports to favor.  But here, the Court would have none of it.  Raich’s facts were irrelevant to whether Congress did or did not exceed its power years before.

In light of these cases, it is enormously important that the healthcare litigation has been properly framed — with Randy’s wise guidance — as a facial challenge.  In the healthcare litigation, the challengers have carefully answered the who question, arguing that Congress exceeded its power by enacting the statute.  Thus, they are not arguing about the hardship to any particular person, just as Lopez did not argue about his particular gun.  Those facts don’t matter to the merits of the claim, because the culprit is Congress and the alleged violation is already complete.  As Randy has explained, that framing — that correct answer to the who question — is a crucial reason why this challenge may succeed.

Hello, Conspiracy! This week, I will be guest-blogging about a new model of constitutional review.  The first two installments — The Subjects of the Constitution and The Objects of the Constitution — were recently published in the Stanford Law Review, and the comprehensive version is forthcoming next year as a book by Oxford University Press.  Many thanks to Eugene for the introduction and to Randy Barnett for the rave review.

This past summer, the project was cited by the Third Circuit in a controversial executive detention case and discussed by the Seventh Circuit in an important gun rights case.  As Randy anticipated, it was also cited by Virginia earlier this year in its challenge to ObamaCare.  I will be discussing these practical applications later in the week.  Today, I will begin with the simple observation from which all these applications follow.

The school year has just begun, and in countless law school classrooms across the country, a phrase is just beginning to echo.  In all of these classrooms, professors are intoning, and students are dutifully transcribing, the following words: “This statute violates the Constitution.”

This is commonplace.  It is also wrong.

Statutes do not violate the Constitution any more than guns commit murder.  The Constitution prohibits certain actions. Actions require actors, just as verbs require subjects. Government actors, not statutes, violate the Constitution.  Congress, the President, federal courts, state officials — these are the potential subjects of a constitutional challenge. And every constitutional claim should begin by identifying which one is to blame.

Yet, as a general matter, our constitutional discourse is maddeningly vague about exactly who has violated the Constitution. If Congress makes a law, the President executes the law, and a constitutional right is violated, it must be that either Congress or the President violated the Constitution. But which one?  And is the answer the same in every case?  The Court rarely says that “Congress has violated the Constitution” or “the President has violated the Constitution.” Instead, it insists on saying: “the statute violates the Constitution” (or, worse yet, “the statute violates the Constitution as-applied”).

This formulation derives, perhaps, from an odd linguistic quirk. Congress acts by making laws. But the product of the action of Congress — the statute, the public law — is also called an “Act of Congress.” In grammatical terms, “act” is both a noun (“an act”) and a verb (“to act”), as it has been since before the Founding. In common parlance, when Congress acts (lowercase, verb), the result is an Act (uppercase, noun) of Congress.

But note the subtle difference between saying that “an act of Congress violated the Constitution” and saying that “an Act of Congress violates the Constitution.” The former (lowercase, past tense) properly focuses on Congress, its action in making the law, and the moment in the past when the law was made.  The latter (uppercase, present tense) confusingly focuses on the statute itself in the present, as though the statute were the culprit and its offense ongoing. And so usage has varied from the analytically correct (“this action of Congress violated the Constitution”) to the ambiguous (“this act/Act of Congress violated/violates the Constitution”) to the incorrect (“this statute violates the Constitution”).

From the Court’s perspective, this last formulation may possess the (dubious) merit of euphemism. Judicial review is always a politically sensitive matter, and the Court understandably tries to avoid direct confrontation with the coordinate branches. By saying that “the statute violates the Constitution,” the Court carefully avoids pointing a finger or casting express blame.

But this is not merely harmless euphemism. To say that “a statute” — rather than a government official — violates the Constitution is to conceal and abet a constitutional culprit.  Usually, the Court is at pains to emphasize the crucial importance of constitutional accountability. But here, the Court’s phrasing renders the government more opaque and less accountable, so that the People do not know whom to blame, whom to vote against, whom to impeach.  In short, the Court’s circumlocution hails from the familiar, passive, elusive, “mistakes were made” school of constitutional responsibility.

But that is not the worst of it. To say that “a statute violates the constitution” is to perpetuate a pathetic fallacy. Judicial review is not the review of statutes at large; judicial review is constitutional review of governmental action. Government actors violate the Constitution. And the structure and substance of judicial review turns on which one committed the violation.

This is not a mere linguistic or grammatical point, but a deep structural implication of federalism and separation of powers.  The Constitution restricts all different governmental actors. And it restricts these different actors differently. One cannot determine whether the Constitution has been violated without knowing who has allegedly violated it.  The predicates of judicial review inevitably depend upon the subjects of judicial review.

Chief Justice Marshall understood this, recognizing that the who question is “of great importance.” But a century later, the Court had entirely lost sight of the subjects of the Constitution. The fact that different clauses bind different actors is now treated, in case after case, as an embarrassing drafting error, fit for judicial “correction.” It would be “unthinkable,” the Supreme Court insists, if a constitutional prohibition applied to one governmental actor and not another. Yet it is hardly unthinkable — indeed, it is an irrefutable textual fact — that different clauses apply to different government actors.

As Marshall knew, this is a fundamental structural feature of our Constitution, reflecting the Framers’ deep insight that each branch and level of government poses different and distinct threats to individual liberty. As I will try to demonstrate this week, it is essential to identify the constitutional culprit, because judicial review of a legislative act is entirely different — formally, structurally, temporally different — from judicial review of an executive act.  These basic differences dictate both the structure and the substance of judicial review.

So, the first step in any act of judicial review must be to figure out the subject of the constitutional claim. The first question to ask is the all-important who question.  The Constitution has allegedly been violated. Who has violated it?

Co-bloggers Eugene Volokh and Jonathan Adler have made some powerful criticisms of the “Whole Constitution Pledge”put together by various liberal organizations. As Jonathan points out, there are some parts of the Constitution that most liberals prefer to underenforce, if not completely repudiate.

I would go further than that and note that at least a few parts of the Constitution are completely indefensible, including by the standards of modern liberals. For example, how many of the organizations behind the Whole Constitution Pledge support the provision in the Constitution that allows only native-born citizens to run for the presidency? I know I don’t – and it’s not because I have any desire to run for president myself. At best, this provision reflects unjustified suspicion of immigrants; at worst it’s rank bigotry. How about the rule under which the vice president (in his capacity as president of the Senate) gets to preside over his own impeachment trial? Does anyone, liberal or otherwise, believe that’s a good idea?

There are other parts of the Constitution, which though not obviously wrong, are at least open to serious criticism. For example, I think that it should be easier to break up excessively large and dysfunctional states, such as California. A number of liberal legal scholars, such as Sanford Levinson, believe it’s a bad idea to give some states fifty times greater representation per capita in the Senate than others. Are their ideas beyond the pale of reasonable discourse? Obviously not.

The Founding Fathers did a great job overall. But a few parts of their handiwork were flawed from the start, and some others that may have been defensible in 1787 or 1868 are no longer so today. For these reasons, I do not pledge to support the whole Constitution. Some parts of it are unworthy of support. I do urge judges and other government officials to impartially enforce all of its provisions for so long as they remain unamended. But that is not the same thing as endorsing their propriety.

Obviously, not all constitutional reform proposals are good ideas. For example, I am skeptical of calls by some on the right for the repeal of the 17th Amendment. But if you want to defend that Amendment against its critics, it’s not enough to endorse the “Whole Constitution” or to make general claims that “our Constitution has been improved by the Amendments adopted over the last 220 years,” as the Pledge puts it. You have to explain, as I tried to do, why repealing this particular amendment would do more harm than good.

Over the summer, I wrote a piece about the Supreme Court’s decision in the “violent videogames” case (Brown vs Entertainment Merchants Assn) for the forthcoming Cato 2011 Supreme Court Review. The Center for Constitutional Studies at Cato is having a kickoff event for the publication this coming Thursday (starting at 1030 AM), and I’ll be speaking there on the first panel about the Court’s evolving First Amendment jurisprudence.

VC’ers might be particularly interested in (though doubtlessly some will be angered or annoyed by) what I had to say about Justice Thomas’ thoroughly remarkable — though not in a good way — dissenting opinion in the case, one that, in my opinion at least, exposes the underlying flaws of the strict “originalist” position in constitutional law better than any other text:

Justice Thomas’ dissenting opinion expresses the hard-headed and uncompromising originalism for which he is well known:

When interpreting a constitutional provision, “the goal is to discern the most likely public understanding of [that] provision at the time it was adopted.” McDonald v. Chicago, 561 U. S. ___, ___ (2010) (slip op., at 25) (Thomas, J., concurring in part and concurring in judgment). Because the Constitution is a written instrument, “its meaning does not alter.” McIntyre v. Ohio Elections Comm’n, 514 U. S. 334, 359 (1995) (Thomas, J., concurring in judgment) (internal quotation marks omitted). “That which it meant when adopted, it means now.” Ibid. (internal quotation marks omitted). . . .

As originally understood, the First Amendment’s protection against laws “abridging the freedom of speech” did not extend to all speech. . . . In my view, the “practices and beliefs held by the Founders” reveal another category of excluded speech: speech to minor children bypassing their parents. The historical evidence shows that the founding generation believed parents had absolute authority over their minor children and expected parents to use that authority to direct the proper development of their children. It would be absurd to suggest that such a society understood “the freedom of speech” to include a right to speak to minors (or a corresponding right of minors to access speech) without going through the minors’ parents. . . . The founding generation would not have considered it an abridgment of “the freedom of speech” to support parental authority by restricting speech that bypasses minors’ parents.

In support of this latter proposition—which, more or less, ends the constitutional inquiry for Justice Thomas—he relies, inter alia, on Wadsworth’s “The Well-Ordered Family” of 1712, Cotton Mather’s “A Family Well-Ordered” (1699), “The History of Genesis” (1708), Locke’s “Some Thoughts Concerning Education” (1692), Burgh’s “Thoughts on Education” (1749), along with a number of more recent scholarly studies focused on child-rearing practices during the Founding period.

That is originalism on steroids, and, to my eye, rather poignantly illustrates the weakness of the approach. I understand, and am sympathetic to, the notion that the meaning of a constitutional provision should be informed by the meaning given to it by those who drafted and ratified it. But can that really mean that we will look to the child-rearing principles of Cotton Mather and John Locke to define, for all time, the scope of the constitutional protection for free speech? Even assuming that Justice Thomas (or anyone else) can reconstruct the sociology of the eighteenth century to definitively support the notion that parents possessed “absolute authority” over their children, and that “total parental control over children’s lives” was the governing societal norm—what then? The question in this case is not “do parents have absolute authority over their children?” The question in the case is, rather, “how does what the state did here relate to (a) the authority of parents over their children, (b) the power of the state to protect the well-being of children, and (c) the constitutional protection for ‘the freedom of speech’?” That’s a hard question in 2011, and it would have been a hard question in 1791, because it involves categorization: Is this, actually, a case about the authority of parents over their children? Or is it a case about the extent of the state’s power to protect minors? The scope of the First Amendment rights of video game manufacturers? Or the scope of the First Amendment rights of minors? Nothing in Justice Thomas’s historical research tells me, or can possibly tell me, how people in the eighteenth century would have answered those questions. Let me put it this way: I know enough about discourse in the late eighteenth century to know that if you had walked into a bar in, say, Richmond, or Boston, or Philadelphia, in 1791 and made any of the following statements, you would have gotten a nice little argument going:

• “The government has just decreed that children can’t attend religious services. Can it do that?”
• “The government has just decreed that all schoolbooks must include endorsements of John Adams’s candidacy for the Presidency, and a defense of the Alien and Sedition Act. Can it do that?”
• “The government has just decreed that adults may not sing to children who are not their own. Can it do that?”

Justice Thomas believes that all of those questions can be answered in the affirmative—and,more importantly, that “eighteenth century society” would have answered all of those questions in the affirmative. (Indeed, he believes the former precisely because he believes the latter). His belief is misplaced, in my opinion. No amount of historical research can tell us what “the answer” to any of those questions would have been—in 1791, 1891, or 1991—because there is no “answer” that “society” can give to those questions. They’re contested and contestable propositions, depending on (among other things) how you characterize what the government was doing: helping parents or usurping their role, for example. . . .

In any event, if you feel like dropping in on the Cato event (perhaps to defend Thomas’ position!), you’re of course invited to do so.

[UPDATE: Chris Lund points out that Thomas' originalism is not always so crude as he expresses it here. In Citizens United, he joined Scalia's concurrence, which contained this paragraph:

A good deal more sensible than the position Thomas takes in Brown]

That’s the question raised by a lawsuit in Colorado’s federal district court, in the case of Kerr v. Hickenlooper. In an amicus brief, I suggest that the answer is “no.” The brief relies heavily on the scholarship of my Independence Institute colleague Rob Natelson, who happens to be the leading scholarly expert on the Guarantee clause.

In short, the Founders defined a “republic” to include governments such as those of ancient Athens, Carthage, and Sparta, all of which included elements of direct democracy. According to Minor v. Happersett (U.S. 1875), the decision of Congress to admit a state to the Union is conclusive proof that, at the time, the state had a Republican Form of Government. Massachusetts and Rhode Island had referenda when they were admitted. The progressive movement for initiative and referendum began in the last 19th century. Congress chose to admit Oklahoma (1907) which had very strong I&R provisions in its state constitution, and New Mexico (1911), whose statehood constitution specifically provided for the creation of a citizen initiative system.

Courts have held that the Republican Form of Government issue is not justiciable, and enforcement is up to Congress. The amicus brief, however, addresses the merits of the issue.

The Seventh Circuit’s decision in Ezell v. Chicago is a tremendously important case for Second Amendment doctrine. The key rules from Ezell: use originalism from both 1791 and 1868 to determine if an activity is within the scope of the Second Amendment right. If it is, apply First Amendment doctrine, and make the standard of review more stringent when the activity is closer to the core of the right, and when the government is prohibiting rather than regulating. Generally speaking, when looking for guidance, look to Eugene Volokh.

As the above rules apply to the case at bar: The right to practice with firearms is an important ancillary to the core of the Second Amendment right, so Chicago’s ban on firing ranges is subject to not-quite-strict scrutiny.

Here’s how the Ezell court set forth the above standards.

The Second Amendment is like the First Amendment, in that a temporary deprivation of the right may constitute irreparable harm:

[F]or some kinds of constitutional violations, irreparable harm is presumed. See 11A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE § 2948.1 (2d ed. 1995) (“When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.”). This is particularly true in First Amendment claims. See, e.g., Christian Legal Soc’y, 453 F.3d at 867 (“[V]iolations of First Amendment rights are presumed to constitute irreparable injuries . . . .” (citing Elrod v. Burns, 427 U.S. 347, 373 (1976))). The loss of a First Amendment right is frequently presumed to cause irreparable harm based on “the intangible nature of the benefits flowing from the exercise of those rights; and the fear that, if those rights are not jealously safeguarded, persons will be deterred, even if imperceptibly, from exercising those rights in the future.” Miles Christi Religious Order v. Twp. of Northville, 629 F.3d 533, 548 (6th Cir. 2010) (internal alteration and quotation marks omitted); see also KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1272 (11th Cir. 2006). The Second Amendment protects similarly intangible and unquantifiable interests. Heller held that the Amendment’s central component is the right to possess firearms for protection. 554 U.S. at 592-95. Infringements of this right cannot be compensated by damages.

When a law is “alleged to infringe Second Amendment rights,” there is a two-step inquiry, beginning with the question “Is the restricted activity protected by the Second Amendment in the first place? See Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. REV. 1443, 1449.”

To answer the first question, look to original meaning from both 1791 and 1868:

The answer requires a textual and historical inquiry into original meaning. Heller, 554 U.S. at 63435 (“Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.”); McDonald, 130 S. Ct. at 3047 (“[T]he scope of the Second Amendment right” is determined by textual and historical inquiry, not interest-balancing.). McDonald confirms that when state- or local-government action is challenged, the focus of the original-meaning inquiry is carried forward in time; the Second Amendment’s scope as a limitation on the States depends on how the right was understood when the Fourteenth Amendment was ratified. See McDonald, 130 S. Ct. at 3038-42.

Courts should follow the Supreme Court’s lead and treat “original public meaning as both a starting point and an important constraint on the analysis. See Heller, 554 U.S. at 610-19; McDonald, 130 S. Ct. at 3038-42. ” [fn. 11].

Footnote 11 offers some examples of what the court apparently sees as the generally correct approach to the original public meaning inquiry:

11 On this aspect of originalist interpretive method as applied to the Second Amendment, see generally AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 215-30, 257-67 (1998); Brannon P. Denning & Glenn H. Reynolds, Five Takes on McDonald v. Chicago, 26 J.L & POL. 273, 285-87 (2011); Josh Blackmun [sic, Blackman] & Ilya Shapiro, Keeping Pandora’s Box Sealed: Privileges or Immunities, The Constitution in 2020, and Properly Extending the Right to Keep and Bear Arms to the States, 8 GEO. J.L. & PUB. POL’Y 1, 51-57 (2010); Clayton E. Cramer, Nicholas J. Johnson & George A. Mocsary, “This Right Is Not Allowed by Governments That Are Afraid of the People“: The Public Meaning of the Second Amendment When the Fourteenth Amendment Was Ratified, 17 GEO. MASON L. REV. 823, 824-25 (2010); Steven G. Calabresi & Sarah E. Agudo, Individual Rights Under State Constitutions When the Fourteenth Amendment Was Ratified in 1868: What Rights Are Deeply Rooted in American History and Tradition?, 87 TEX. L. REV. 7, 11-17, 50-54 (2008); Randy E. Barnett, Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?, 83 TEX. L. REV. 237, 266-70 (2004); David B. Kopel, The Second Amendment in the Nineteenth Century, 1998 BYU L. REV. 1359; Stephen P. Halbrook, Personal Security, Personal Liberty, and “The Constitutional Right to Bear Arms”: Visions of the Framers of the Fourteenth Amendment, 5 SETON HALL CONST. L.J. 341 (1995).

If the plaintiffs lose on the “scope” question, then the case is over and the government wins. If the alleged law does apply to something within the scope of the Second Amendment right, the court must apply judicial review. “[T]he rigor of this judicial review will depend on how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on the right. See generally, Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense, 56 UCLA L. REV. at 1454-72 (explaining the scope, burden, and danger-reduction justifications for firearm regulations post: Heller); Nelson Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. REV. 1343, 1372-75 (2009); Adam Winkler, Heller’s Catch-22, 56 UCLA L. REV. 1551, 1571-73 (2009); Lawrence B. Solum, District of Columbia v. Heller and Originalism, 103 NW. U. L. REV. 923, 979-80 (2009); Glenn H. Reynolds & Brannon P. Denning, Heller’s Future in the Lower Courts, 102 NW. U. L. REV. 2035, 2042-44 (2008).”

The right to arms includes the right to practice with arms: “The right to possess firearms for protection implies a corresponding right to acquire and maintain proficiency in their use; the core right wouldn’t mean much without the training and practice that make it effective. The Ezell court pointed to the Supreme Court having “quoted at length from the ‘massively popular 1868 Treatise on Constitutional Limitations’ by judge and professor Thomas Cooley: ‘[T]o bear arms implies something more than the mere keeping; it implies the learning to handle and use them . . . ; it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order’.” In addition, “‘No doubt, a citizen who keeps a gun or pistol under judicious precautions, practices in safe places the use of it, and in due time teaches his sons to do the same, exercises his individual right.’ (quoting BENJAMIN VAUGHAN ABBOTT, JUDGE AND JURY: A POPULAR EXPLANATION OF THE LEADING TOPICS IN THE LAW OF THE LAND 333 (1880)).”

So what exactly is the standard of review?

“The City urges us to import the ‘undue burden’ test from the Court’s abortion cases…but we decline the invitation. Both Heller and McDonald suggest that First Amendment analogues are more appropriate, see Heller, 554 U.S. at 582, 595, 635; McDonald, 130 S. Ct. at 3045, and on the strength of that suggestion, we and other circuits have already begun to adapt First Amendment doctrine to the Second Amendment context, see Skoien, 614 F.3d at 641; id. at 649 (Sykes, J., dissenting); Chester, 628 F.3d at 682; Marzzarella, 614 F.3d at 89 n.4; see also Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense, 56 UCLA L. REV. at 1449, 1452, 1454-55; Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. REV. at 1376; Winkler, Heller’s Catch-22, 56 UCLA L. REV. at 1572.

So “we can distill this First Amendment doctrine and extrapolate a few general principles to the Second Amendment context. First, a severe burden on the core Second Amendment right of armed self-defense will require an extremely strong public-interest justification and a close fit between the government’s means and its end.” This amounts to what the court calls “not quite ‘strict scrutiny.’” Or it could be called strict scrutiny light. A “an extremely strongly” state interest, rather than a “compelling one”; and “a close fit” rather than “narrowly tailored.”

For “laws restricting activity lying closer to the margins of the Second Amendment right, laws that merely regulate rather than restrict, and modest burdens on the right may be more easily justified. How much more easily depends on the relative severity of the burden and its proximity to the core of the right.” The Ezell court does not elaborate the doctrine for deciding lesser cases, because the instant case involves a prohibition very close to the core.

The “plaintiffs are the ‘law-abiding, responsible citizens’ whose Second Amendment rights are entitled to full solicitude under Heller . . .The City’s firing-range ban is not merely regulatory; it prohibits the ‘law-abiding, responsible citizens’ of Chicago from engaging in target practice in the controlled environment of a firing range. This is a serious encroachment on the right to maintain proficiency in firearm use, an important corollary to the meaningful exercise of the core right to possess firearms for self-defense.”

In short, the Second Amendment is part of normal constitutional law. The standard of review is not the absolutist “What part of ‘shall not be infringed’ don’t you understand?’” Nor is the standard “reasonableness” as a euphemism for “rational basis so long as all guns are not banned”; nor the weak “undue burden” standard that was invented for one particular unenumerated right which is an extreme outlier in the weakness of its basis in history, tradition, and other sources for unenumerated rights. Intermediate scrutiny does apply sometimes, as with the First Amendment, and, also as with the First Amendment, stricter scrutiny applies at other times. As with much of the rest of 21st century constitutional law, the interpretive methodology includes both originalism and a practical analysis which some persons would call “living constitutionalism.”

Time magazine managing editor Richard Stengel has penned a cover essay about the Constitution, One Document, Under Siege. My Independence Institute colleague Rob Natelson wrote a response addressing some of the many illogical or inaccurate claims therein.

For example:

Stengel: “The framers . . . gave us the idea that a black person was three-fifths of a human being, that women were not allowed to vote and that South Dakota should have the same number of Senators as California, which is kind of crazy.”

Answer: The three-fifths compromise was a way of resolving a particularly thorny political difficulty; it was not an anthropological statement. In fact, the framers did recognize—repeatedly—the personhood of African-Americans. Nor did they “give us the idea” that women couldn’t vote; this was left up to the states, and in 1787 women DID vote, formally or informally, in some states. That may be one reason the Founders deliberately left the Constitution gender-neutral. (See p. 63 in my book, The Original Constitution.)

Whether equality of states in the Senate is a good idea is a matter of opinion, but enough very sane people think so to disqualify the idea from being “kind of crazy.”

For Natelson’s point about personhood, see Federalist 54, explaining that the Constitution recognizes that slaves are “moral persons,” not mere property. That’s why Madison was careful to refer to them as “persons.” In New Jersey,  women had the formal right to vote until the legislature changed the law in 1807.

Stengel: “Your doctor’s stethoscope was made in one state and was shipped to and sold in another.”

Answer: Yes, and Congress may regulate the stethoscope sale.  But the Constitution, properly understood, generally does not permit Congress to regulate what the physician does with the stethoscope, and certainly not how he is paid for his services.

My favorite:

Stengel: “There is an old Latin phrase, inter arma enim silent leges, which roughly translates as “in time of war, the Constitution is silent.”

Answer: I included this because ignorance of Latin and of the Founders’ latinate English has led to many constitutional misinterpretations, and because the mangled, ungrammatical version Stengel uses suggests that he got it from Star Trek (Deep Space Nine) rather than from Cicero.

The phrase is actually “Silent enim leges inter arma.” One reason the Founders were better qualified to address constitutional issues than Mr. Stengel is that they HAD read Cicero, and in Latin.

Incidentally, the correct translation is “For laws are silent amid arms.”

My colleague Eric Claeys has a very interesting piece in National Affairs. The hook is the future USSC decsion on Obamacare, but the meat of the piece is an explanation of the divergent strands of modern constitutional conservatism:

To understand contemporary “judicial conservatism” and its ambiguities, it is helpful to describe it as a series of reactions against the “living Constitution” approach that was employed by the Warren and Burger Courts from the early 1950s to the 1980s. The Warren and Burger Courts handed down many landmark decisions declaring new constitutional rights relating to abortion, compulsory school integration, prayer in schools, the procedural rights of criminal defendants, and the death penalty. According to its critics, the living-Constitution approach reflected in these decisions mistakenly downgraded the original meaning of constitutional text, treated precedent too casually, and encouraged federal courts to usurp the legitimate discretion given to political officers to make sensitive policy judgments.

These three criticisms aligned and overlapped as applied to the Warren and Burger Courts’ major decisions. Yet these criticisms do not converge in every case. They diverge especially when the issue is not a new right declared by the Court but an act of Congress that strains the Constitution’s structure. In such a case, should a conservative judge invoke the judiciary’s power to protect the Constitution’s original meaning — or worry that such power forces him to second-guess Congress’s political choices?

As Claeys points out, over the Supreme Court’s conservatives, only Justice Thomas has come even remotely close to being a consistent originalist.

The only thing missing in the piece, I think, is a discussion of whether the virtual consensus in conservative circles (sorry, Orin) that Obamacare goes “too far” for constitutional purposes will affect the Justices’ ruling. To say the least, when the Court decided Gonzales v. Raich in the middle of the Big-Government Bush presidency, there was neither a consensus among conservative types that the federal government should be limited in general, much less that any such limits should apply to marijuana laws. To the extent that the Justices vote, as they generally do, consistent with the very strong preferences of the coalition that put them into power, Obamacare may get more negative votes than one might think. (Put another way, if President Bush had signed a law like Obamacare passed by a Republican Congress, opponents of the law would be lucky to get even Thomas’s vote.)

But the controversy over Obamacare aside, the piece is well worth reading in full.

A recent Yale Law Journal Online article by Northwestern law professor Andrew Koppelman argues that the Obamacare individual mandate is obviously constitutional, especially in light of how McCulloch v. Maryland construed the Necessary and Proper clause. Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform (April 2011).

Gary Lawson (Boston Univ.) and I partially agree:

Professor Koppelman evidently believes that the constitutionality of the individual mandate begins and ends with McCulloch v. Maryland. He is absolutely right about that. He simply has the wrong beginning and ending.

Professor Koppelman gets the beginning wrong because he starts his analysis in the middle of the McCulloch opinion instead of where John Marshall began. Chief Justice Marshall‘s famous discussion in McCulloch of the causal connection required by the word “necessary” was preceded by a seven-page analysis of the constitutionality of a federal corporation under the Necessary and Proper Clause. Those seven pages dealt with an issue that Marshall recognized had to be addressed before he decided whether a corporation was a causally “necessary” (or otherwise “proper”) means for implementing federal powers. The threshold question was whether the power to incorporate was incidental or principal.

Our article, Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, elucidates the original meaning of the Necessary and Proper clause, which Chief Justice Marshall considered so important, but which professor Koppelman overlooked:

The Necessary and Proper Clause incorporates basic norms drawn from eighteenth-century agency law, administrative law, and corporate law. From agency law, the clause embodies the venerable doctrine of principals and incidents: a law enacted under the clause must exercise a subsidiary rather than an independent power, must be important or customary to achievement of a principal end, and must conform to standard fiduciary obligations.

From administrative law, the Necessary and Proper Clause embodies the closely-related principle of reasonableness in the exercise of delegated power, which independently requires conformance with a similar set of fiduciary norms, including the norms of acting only within delegated jurisdiction and of treating all persons subject to a public agent‘s power impartially.

Evidence from eighteenth-century corporate law – and the Constitution was widely recognized in the founding era as a type of corporate charter – confirms these conclusions about the meaning of the phrase “necessary and proper for carrying into Execution . . . .”

The power to order someone to purchase a product is not a power subordinate or inferior to other powers, such as the power to regulate voluntary commerce. The power to compel commerce is at least as significant – or, in eighteenth-century language, as “worthy” or of the same “dignity” – as the power to regulate insurance pricing and rating practices. It is therefore not incidental to other powers exercised by Congress in the PPACA and must be separately enumerated if it is to exist.

Second, the doctrine of principals and incidents and the principle of reasonableness both embody the fiduciary norm that agents exercising delegated power must treat multiple principals subject to those agents’ power impartially. Interpreting the Necessary and Proper Clause to allow Congress to force private dealings with preferred sellers of products fails that basic fiduciary norm, as illustrated by founding-era concerns about Congress invalidly using the Necessary and Proper Clause power to create monopolies.

In a recent post, co-blogger Eugene Volokh reasserts the view that the text of the of the Thirteenth Amendment’s ban on “involuntary servitude” does not cover traditional state-imposed “duties of citizenship” such as mandatory military service and possibly even mandatory road work.

I think matters are not so simple as that. Eugene’s argument and others like it run into two problems. First, as I pointed out here and here, the Amendment contains an exemption for forced labor imposed as punishment for a crime. if the term “involuntary servitude” really does not apply to traditional “duties” to the state, there would have been no need for the Amendment’s exception for the use of forced labor as punishment for a crime. Using forced labor to punish criminals was a longstanding tradition, an obligation imposed by the state, and was surely not considered “akin to traditional slavery,” as Eugene puts it in his description of the scope of the involuntary servitude ban. The fact that the framers of the amendment believed that this exemption was necessary is a strong indication that the ban on involuntary servitude is not limited to conditions “akin to traditional slavery,” but was in fact intended to cover forced labor more generally. Otherwise, the exemption for servitude imposed as punishment for a crime would have been superfluous.

Second, as I explained more fully in this post, the “free labor” ideology underpinning the Amendment went beyond previous understandings in condemning forced labor generally, as opposed to merely slavery narrowly defined. Thus, it is wrong to assume that the framers and ratifiers of the amendment were necessarily guided by the relatively narrow definition of “involuntary servitude” embodied in laws that were drafted decades earlier. As the Supreme Court majority explained in the Slaughterhouse Cases, just a few years after the Amendment was enacted:

[The Thirteenth Amendment is a] grand yet simple declaration of the personal freedom of all the human race within the jurisdiction of this government….

The exception of servitude as a punishment for crime gives an idea of the class of servitude that is meant.The word servitude is of larger meaning than slavery, as the latter is popularly understood in this country, and the obvious purpose was to forbid all shades and conditions of African slavery. It was very well understood that, in the form of apprenticeship for long terms, as it had been practiced in the West India Islands, on the abolition of slavery by the English government, or by reducing the slaves to the condition of serfs attached to the plantation, the purpose of the article might have been evaded if only the word slavery had been used. [emphasis added]

The then-recent Civil War-era draft is not a good counterexample, for reasons I discussed here.

Note that majority seems to interpret the amendment to cover all “shades and conditions” of forced labor, including those imposed by the government (as were some of the practices it describes in the West Indies). It also emphasizes the importance of the exemption for servitude imposed as punishment for a crime in defining the scope of the Amendment.

Justice Stephen Field’s dissent, often praised by modern originalists, defines the term even more broadly:

The words “involuntary servitude”… include something more than slavery in the strict sense of the term; they include also serfage, vassalage, villenage, peonage, and all other forms of compulsory service for the mere benefit or pleasure of others. Nor is this the full import of the terms. The abolition of slavery and involuntary servitude was intended to make everyone born in this country a freeman, and, as such, to give to him the right to pursue the ordinary avocations of life without other restraint than such as affects all others, and to enjoy equally with them the fruits of his labor…. A person allowed to pursue only one trade or calling, and only in one locality of the country, would not be, in the strict sense of the term, in a condition of slavery, but probably none would deny that he would be in a condition of servitude. He certainly would not possess the liberties nor enjoy the privileges of a freeman. The compulsion which would force him to labor even for his own benefit only in one direction, or in one place, would be almost as oppressive and nearly as great an invasion of his liberty as the compulsion which would force him to labor for the benefit or pleasure of another, and would equally constitute an element of servitude.

Field’s analysis seems to cover every situation where a person is “allowed to pursue only one trade or calling, and only in one locality of the country.” Obviously, that is precisely what happens when an individual is subject to mandatory military service or any other form of forced labor imposed by the state. For as long as the obligation lasts, he can “pursue only one trade or calling” and only where the government directs him to do so. The fact that the obligation is temporary rather than permanent does not exempt it from the coverage of the Amendment. Otherwise, the mandatory “apprenticeship for long terms” referred to by the majority would be permissible. And, as Field mentions, it does not matter whether the service is imposed solely for the benefit of others (as in the case of traditional slavery) or also for the victim’s “own benefit” (as the government usually claims is true in the case of mandatory civilian or military service).

This is not to suggest that everyone in the late 19th century interpreted the Amendment as broadly as the Slaughterhouse justices did or that there was anything close to universal agreement on the subject. There clearly was not. For example, southern state governments and some northerners argued that the Amendment did not even ban peonage laws. I merely wish to suggest that there was no clear consensus going the other way that should trump the natural meaning of the words, or that should lead modern jurists to feel bound to uphold government-imposed forced labor, whether it is seen as implementing a “duty of citizenship” or not.

“A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” — Oliver Wendell Holmes

Many commenters on the Thirteenth Amendment, the draft, jury service, and compulsory road work post argued that the plain language of the Thirteenth Amendment makes the draft unconstitutional. (I think my coblogger Ilya argued something similar in a series of posts in 2007.) I think this question helps illustrate an important difference between two approaches to ambiguous text: an approach that tries to limit its focus to the text itself, and an approach that looks at the text as it was originally understood (which I will label “originalism” for purposes of this post). As between the two, I think originalism is generally preferable, whether or not one thinks that either should also be supplemented by other approaches, such as a focus on precedent. Let me briefly explain why.

1. Let’s begin with the Seventh Amendment, my favorite illustration of this question. The Seventh Amendment says that “In suits at common law … the right of trial by jury shall be preserved.” Now “common law” can mean several things. It can mean judge-made law (or, if you prefer, judge-found law, though that’s a legal fiction) as opposed to statutes. It can mean a particular body of law that was once made by judges, even if now it is codified in statute, as opposed to law that was originally created by a legislature. It can mean Anglo-American law as opposed to European civil law, which is derived from Roman law. Or it can mean law that is sufficiently linked to the sort of law historically enforced in common-law courts as opposed to the sort of law historically enforced in so-called courts of equity.

Today, in my experience, “common law” tends to bear the first meaning (judge-made law). That’s how I’ve seen it most often used. But it’s clear that at the time of the Framing the phrase “Suits at common law” referred to the last meaning, which is to say law historically enforced in common-law courts (which usually called for payment of damages) as opposed to the now largely long-defunct separate courts of equity (which is where injunctions and similar remedies came from). So which meaning should we use?

Here’s my thinking: If we’re appealing to the text of the Seventh Amendment, it must be because we think the enactment of that text should have legal significance. We’re not just appealing to abstract principles of right and wrong, or to the broad structure of the Constitution. (Rightly or wrongly, much of the discussion of the freedom of speech, equal protection, and the like does make such appeals; but I assume here that we’re confronting an argument based on the constitutional text, not on general constitutional theory.) Rather, we think the Seventh Amendment should be followed because it’s law.

Why is it law? Because it was enacted through the proper legal channels by people who had the legal authority to enact it, and because we choose to continue to accept those people’s actions as authoritative. (Again, we could dismiss those actions as no longer binding on us; but if we’re arguing about the text as it was adopted, as opposed to constitutional or moral theory more broadly, we must think the actions of the adopters were indeed in some measure important to us.)

And if we’re going to apply the Seventh Amendment because in 1791 enough states ratified it to make it part of the Constitution, it makes no sense to apply it in a way that’s completely different than how it was understood at the time — for instance, by applying it only to judge-made tort doctrines and not statutory ones — simply because this definition has become more common since 1791, and because the original definition is largely unknown to all but lawyers. That would be more a constitutional pun, I think, than a sensible form of constitutional interpretation.

I should acknowledge that there is a significant alternative to an originalist view of the text, and it is a view that focuses on the text as understood in light of the actual practices of the legal system today. The theory here is that the Constitution derives its force from the continuing consent of the governed, and that if our legal system — crafted as it is by elected officials and those appointed by elected officials — over time accepts some new meaning of a term, then that meaning becomes part of the constitutional framework.

But whether that might be true for some provisions, it isn’t true for the Seventh Amendment. The legal system continues to treat “Suits at common law” as referring to suits of the sort that would have been brought in common-law courts during the Framing era, largely because of the influence of originalism on the courts that have interpreted this particular provision. And certainly there’s no broad public understanding to the contrary.

2. I’d say the same about the Thirteenth Amendment. Bans on slavery and “involuntary servitude” existed in America from 1787 on, beginning with the Northwest Ordinance and then getting enacted in various state constitutions. As best I can tell, those bans were never generally understood as casting constitutional doubt on mandatory military service — which was the norm even in peacetime, in service in the state militia — or on jury duty. By the time the Thirteenth Amendment was enacted, “involuntary servitude” had an established legal meaning, and that was a meaning limited to conditions that were more akin to traditional slavery and less to the duties of citizenship such as military service or jury service. Maybe this approach was morally unsound, or even illogical, as some have argued. But when the ban on involuntary servitude was made part of the Constitution, it was not understood as being a ban on all involuntary work.

Continue reading ‘The Seventh and Thirteenth Amendments, and Ambiguous Constitutional Text’ »

At CNN, Politico, National Review Online’s “The Corner” blog, and at the Susan B. Anthony List website, you can read the developing controversy over some Republican presidential candidates’ refusal to sign the SBA Lists’ “2012 Pro-Life Citizen’s Pledge.”

Signers thus far are Bachmann, Gingrich, Pawlenty, Paul, and Santorum. The items on the pledge are:

FIRST, to nominate to the U.S. federal bench judges who are committed to restraint and applying the original meaning of the Constitution, not legislating from the bench;

SECOND, to select only pro-life appointees for relevant Cabinet and Executive Branch positions, in particular the head of National Institutes of Health, the Department of Justice, and the Department of Health & Human Services;

THIRD, to advance pro-life legislation to permanently end all taxpayer funding of abortion in all domestic and international spending programs, and defund Planned Parenthood and all other contractors and recipients of federal funds with affiliates that perform or fund abortions;

FOURTH, advance and sign into law a Pain-Capable Unborn Child Protection Act to protect unborn children who are capable of feeling pain from abortion.

Of the candidates who have refused to sign, Mitt Romney objects because the wording of the demand to cut on federal abortion funding could be construed to stop federal aid to many hospitals; further, he refuses to make pro-life a litmus test for his executive branch appointments, as long as the appointees are willing to abide by (President) Romney’s own pro-life views. Herman Cain says he would “sign” the pain bill, but will not take the pledge to “advance” the bill, because “Congress must advance the legislation,” and he must have ”respect for the balance of power and the role of the presidency.”

Thus, of the announced candidates, we have only Gov. Gary Johnson who might have constitutional scruples about the federal pain bill.

The Pain-Capable Unborn Child Protection Act, which has been enacted in several states, requires that physicians provide a woman who is at least 20 weeks pregnant, and who is seeking an abortion, with information to obtain informed consent about the pain that the fetus will feel during the abortion.

The PCUCPA is probably constitutional under Planned Parenthood v. Casey, since it does not ban pre-viability abortions, and the lower courts have not generally found other informed consent laws for abortion to be an “undue burden,” as Casey defines that term.

However, a federal PCUCPA is plainly unconstitutional under the “original meaning” of the Constitution, which judges appointed by SBA Pledge signers would presumably uphold. The federal version of PCUCPA is S. 314, introduced by Sen. Mike Johanns (R-Neb.). After the definitions section of the proposed statute, the bill states: “Any abortion provider in or affecting interstate or foreign commerce, who knowingly performs any abortion of a pain-capable unborn child, shall comply with the requirements of this title.”

Federal abortion control under the purported authority of congressional power “To regulate Commerce…among the several States” is plainly unconstitutional under the original meaning of the interstate commerce.

Even under the lax (but non-infinite) version of the interstate commerce power which the Court articulated in Lopez,  a federal ban on partial-birth abortion is dubious, as Glenn Reynolds and I argued in a Connecticut Law Review article. Indeed, in the 5-4 Supreme Court decision upholding the federal ban, Gonzales v. Carhart, Justices Thomas and Scalia, who voted in the majority to uphold the ban as not violating the Casey abortion right, concurred to point out “that whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it.”

In other words, if the attorneys who challenged the federal ban on partial-birth abortions had been willing to raise all plausibile constitutional claims, instead of losing the case 4-5 they probably could have won 6-3, by assembling a coalition of 4 strongly pro-abortion-rights Justices, plus Scalia and Thomas on the commerce issue.

When we get beyond Lopez, and truly look at original meaning, then the unconstitutionality of the federal PCUCPA is obvious. In Gibbons v. Ogden, Chief Justice Marshall explained that “health laws of every description” are outside the scope of the federal commerce power. The statement has been cited with approval by other Supreme Court justices at least 20 times. As Wickard v. Filburn observed, the Marshall opinion in Gibbons “described the Federal commerce power with a breadth never yet exceeded.” Wickard v. Filburn, 317 U.S. 111, 120 (1942). (For more on Marshall’s views about federal health control, see this article by Rob Natelson and me.)

Marshall’s opinion in Gibbon may be considered the outer boundary of any originalist interpretation of the interstate commerce power. What doctors tell patients before providing abortions is obviously not interstate commerce, all the more so since the vast majority of patients do not cross state lines to obtain abortions.

Yale’s Jack Balkin makes the argument that in the original meaning, “commerce” means “intercourse,” and thus the original meaning allows a vast amount of federal regulation of intra-state, non-economic activity. Rob Natelson and I explained the errors in this theory in an on-line article for the Michigan Law Review.

Presumably the Republican signers of the SBA pledge would not assert that the appointment of judges who accept Balkin’s “commerce = intercourse” theory of original meaning would comport with President’s pledge to appoint judges who would follow original meaning. All of the Republican presidential candidates have said that the Obamacare individual mandate to purchase expensive congressionally-designed health insurance from the congressionally-favored insurance oligopoly is unconstitutional. Balkin’s intercourse theory, however, would support the constitutionality of the mandate.

The signing of the SBA pledge by Rep. Ron Paul (R-Tex.) is particularly disappointing, since Paul has usually made a point of being scrupulous about federal powers. Indeed, Paul was the sole “pro-gun” Representative who voted against the Protection of Lawful Commerce in Arms Act, a federal statute which outlawed lawsuits, in federal and state courts, against the manufacturers, wholesalers, and lawful retailers of firearms for guns which were lawfully sold and properly functioning. Paul’s argument was that the law exceeded the federal power to regulate interstate commerce; I disagree, since the undisputed original purpose of the interstate commerce power was to empoower Congress to act against state barriers to interstate commerce. The anti-gun lawsuits were plainly an effort to use fanciful tort theories to damage the entire national market in firearms, by imposing on that market many restrictions which had been considered and rejected by Congress and the state legislatures.

Thus, in regard to the anti-gun lawsuits, Paul’s scruples were mistaken, in my view, but he deserves credit for being sincerely scrupulous. I wish that he, and the rest of the Reublican presidential field, kept their constitutional scruples intact regarding federal anti-abortion legislation.

While the federal PCUCPA does not invoke section 5 of the 14th Amendment as a basis for the legislation, it is possible to construct an argument that some federal anti-abortion laws could be based on that power. However, it’s hard to base such an argument on the original meaning of the 14th Amendment, since there is not a shred of evidence in the 1865-68 history of the creation and ratification of the 14th Amendment (nor in the immediate post-ratification period, nor for nearly a century after ratification) that anyone imagined that the 14th Amendment empowered Congress to enact abortion-control laws, or guaranteed abortion rights.

So if a Republican who signs the SBA pledge is elected President, and he or she adheres to item 1 in the SBA pledge, appointing judges who adhere to the Constitution’s original meaning, then those judges will uphold state versions of the PCUCPA while declaring unconstitutional a federal PCUCPA.

Libertarians, economists, and my fellow constitutional theorists are all known for arguing that the conventional wisdom overstates the importance of individual political leaders. Instead, we emphasize the the constraining impact of institutions, public opinion, and political incentives. The structure of the system matters a lot more than the individual leader. Libertarian economist Bryan Caplan, however, recently argued that a great leader could do a lot more good than most libertarians believe:

I maintain that an intelligent, wise, brave president could do enormous good. How? For starters, he could give full presidential pardons to everyone serving time for (federal) drug-related offenses. The president can’t end the drug war on his own, but he could free hordes of innocent people before his term (singular, no doubt) ran out.* And needless to say, there are plenty of other unjust laws a president could negate with blanket pardons.

The lesson: Libertarians should stop insisting that our problems are too complex for any human being to solve. Many of our problems can literally be solved with the stroke of a pen. Any intelligent, wise, brave leader who wants to solve problems faces vast orchards of low-hanging fruit. The only reason the orchards are so bountiful, unfortunately, is that people who are intelligent, wise, and brave rarely make it to the top.

Bryan’s main point is well taken. An “intelligent, wise, brave president” unconcerned about reelection could do a lot of good that conventional politicians avoid for fear that it would hurt their electoral prospects. By the same token, such a leader could also do a lot of harm, if his unpopular policies turn out to be worse than those preferred by the electorate. At the same time, as Bryan recognizes, it’s no accident that such leaders “rarely make it to the top.” The political process systematically advantages those candidates who prioritize seizing and holding on to power over those who are willing to sacrifice office for the sake of principle.

In addition, Bryan somewhat overstates the good that even a president totally indifferent to his political fate can do in the unlikely event that he could get elected in the first place. Such a leader would still have to trim his sails somewhat in order to avoid a political backlash that makes things worse than they were before. Consider Bryan’s example of a president who decides to pardon everyone serving time for federal drug-related offenses. That policy would be extremely unpopular. It will be even more so if even one or two of the pardoned drug dealers goes on to commit a highly publicized murder or other serious crime.

In response, Congress might well enact broader and more punitive anti-drug laws; even if the incumbent vetoes them, his successor would not. The next president would sweep into office on a pro-drug war platform; quite possibly, he would order federal prosecutors and law enforcement agencies to pursue the War on Drugs more aggressively than before. There might be a similar backlash at the state level (the states imprison many more drug offenders than the feds do). The cause of drug legalization, which has been slowly gaining ground over the last several decades, would suffer a significant political setback. The net result could well be a long-term increase in the number of people imprisoned for nonviolent drug offenses. Other principled but highly unpopular policies could backfire in similar ways.

That said, there is much that a politically brave president opposed to the War on Drugs could do to make things better without generating a massive backlash. He could order federal prosecutors to deemphasize drug prosecutions relative to other priorities (without actually banning such prosecutions entirely). He could issue pardons or commutations in some of the more egregious drug cases (ones involving police abuses or extremely long sentences for minor offenses). He could keep President Obama’s broken campaign promise and genuinely end medical marijuana prosecutions in states where medical marijuana is legal. Many of these measures would carry a political price, which is one reason why Obama hasn’t done any of them. On the other hand, they probably are not large-scale enough to make drugs a major issue in the next presidential election or generate a backlash large enough to undue the good they would do at the margin. These changes are small enough that the majority of rationally ignorant voters wouldn’t even notice them, thereby reducing the likelihood of a major backlash.

The bottom line: A good, wise, and politically fearless president could do a lot more good than many suppose. But even the best and bravest leader would still have to make substantial concessions to political reality, lest all his good works be undone.

My article, “The Tea Party Movement and Popular Constitutionalism,” is now available on SSRN. It is part of a recent Northwestern University Law Review Colloquy symposium on the Constitutional Politics of the Tea Party Movement. Here is the abstract:

The rise of the Tea Party movement follows a period during which many scholars have focused on “popular constitutionalism”: the involvement of public opinion and popular movements in influencing constitutional interpretation. Most of the previous scholarship on popular constitutionalism analyzed movements identified with the political left. Although the Tea Party movement is primarily composed of conservatives and libertarians, it has much in common with previous popular constitutional movements.

Part I of this Essay describes some of these similarities, focusing on the ways in which popular constitutional movements have arisen in response to social or economic crises, or major policy initiatives instituted by their opponents. Part II explains how the Tea Party movement shares key strengths and weaknesses of other popular movements. Public opinion on constitutional and policy issues is often influenced by widespread political ignorance and irrationality. The Tea Party is no exception to these trends. The evidence suggests, however, that Tea Party supporters are no more likely to be ignorant than public opinion generally, or their opponents on the political left.

Part III explains two possible advantages of one unusual feature of the Tea Party: the fact that it is the first popular constitutionalist movement in many years whose main focus is the need to limit federal power. The enormous size and scope of modern government undercuts meaningful democratic control over government policy because “rationally ignorant” voters cannot keep track of more than a small fraction of government activity. Strengthening democratic accountability is one of the main objectives of advocates of popular constitutionalism. The imposition of stricter limits on government power might make that goal easier to achieve. The Tea Party’s focus on limiting government also makes it less likely that we will see the emergence of a right-wing populist movement that is primarily focused on intolerance and xenophobia, of the kind that often arose during previous economic downturns.

The individual mandate challenge in the Fourth Circuit drew three judges appointed by Democrats, two by President Obama. Since James McReynolds retired from the Supreme Court in 1940, I believe that no judge appointed by a Democratic president has recognized any identifiable judicially-enforceable limits to Congress’s power to regulate interstate commerce [I wrote that in haste, and as I was driving to preschool, a couple of recent examples occurred to me. I think all these examples occurred in the context of criminal laws and were based on Lopez/Morrison, and were of course lower court judges, with all of the Democratic-appointed Supreme Court Justices recognizing, thus far, no practical limits on the commerce power.]. That these three judges will vote to uphold the mandate, the signature policy achievement of a Democratic president and Congress, and do so unanimously, is almost a foregone conclusion, and, for reasons explained here, the question of whether three Democratic judges think that the activity/non-activity distinction is persuasive is entirely irrelevant to the ultimate outcome of the litigation.

I do find it amusing, thought, that, as Orin reports, “Motz shot back that, when Daniel Webster spent four days arguing a case on commerce regulation before the Supreme Court, he never once mentioned ‘activity’ as a crucial factor, and the Constitution itself does not mention the word.”

I don’t think that the Democrats want to fight this battle over the 18th or early 19th century understanding of Congress’s power to regulate interstate commerce.

UPDATE: For the benefit of those who can’t be bothered to clink on the link to my previous post, here is the argument in nutshell: “What the opponents of the individual mandate had to do was provide plausible arguments that the individual mandate is distinguishable from precedents like Wickard v. Filburn and Gonzales v. Raich. Whether or not the best interpretation of those precedents supports the individual mandate or not is almost entirely irrelevant.” The five Republican Justices on the USSC are not in any practical way bound to follow the “best” interpretation of precedent, but they will not follow a wholly implausible one. Regardless of what the Fourth Circuit judges think, the inactivity/activity distinction is a plausible one, and whether the majority on the USSC follows it will come down to a variety of non-legal factors, along with one very important legal factor: can the defenders of the law persuade at least one of Justices Kennedy, Alito, Scalia, and Roberts that upholding the law doesn’t mean giving Congress plenary power to regulate everything and anything.

FWIW, I can easily see the USSC voted anywhere from 8-1 to uphold the law to 5-4 to invalidate it. The latter scenario becomes most plausible if the USSC doesn’t rule until 2013, and in the meantime the GOP wins the presidential elections in 2012, keeps the House, and takes the Senate.

The Northwestern University Law Review Colloquy has posted a symposium on “The Constitutional Politics of the Tea Party Movement.” The symposium was organized by Richard Albert of Boston College, who arranged a panel on the subject at this year’s AALS conference and wrote an introduction available here. The symposium includes contributions by well-known constitutional law scholars such as co-blogger Randy Barnett, Jared Goldstein, and Sanford Levinson. My own contribution to the symposium analyzes the Tea Party Movement as an example of “popular constitutionalism.” Here is an excerpt from the introduction:

The rise of the Tea Party movement followed a period during which many academic students of constitutional law focused on “popular constitutionalism”: the involvement of public opinion and popular movements in influencing constitutional interpretation. Many of these scholars argue that popular constitutional movements have a beneficial impact on constitutional law, and some even contend that popular constitutionalism should supplant judicial review entirely….

Most of the previous scholarship on popular constitutionalism focuses on movements identified with the political left, such as the civil rights movement…. Although the Tea Party movement is primarily composed of conservatives and libertarians, it has much in common with previous popular constitutional movements.

Part I of this Essay describes some of these similarities, focusing on the ways in which popular constitutional movements have arisen in response to social or economic crises, or major policy initiatives instituted by their opponents. Part II explains how the Tea Party movement shares key strengths and weaknesses of other popular movements. For example, public opinion on constitutional and policy issues is often influenced by widespread political ignorance and irrationality. There also tends to be a conflation of constitutional and policy preferences. The Tea Party is no exception to these trends. The evidence suggests, however, that Tea Party supporters are no more likely to be ignorant than public opinion generally, or their opponents on the political left…..

Part III explains two possible advantages of one unusual feature of the Tea Party—the fact that it is the first popular constitutionalist movement in many years whose main focus is the need to limit federal power. The enormous size and scope of modern government undercuts meaningful democratic control over government policy because “rationally ignorant” voters cannot keep track of more than a small fraction of government activity. Strengthening democratic accountability is one of the main objectives of advocates of popular constitutionalism. The imposition of stricter limits on government power might make that goal easier to achieve. The Tea Party’s focus on limiting government also makes it less likely that we will see the emergence of a right-wing populist movement that is focused on intolerance and xenophobia, of the kind that often arose during previous economic downturns.

Attorney Ryan Williams recently published an article in the Yale Law Journal called “The One and Only Substantive Due Process Clause.” It’s pathbreaking.

Essentially, Williams argues that in 1791, when the Fifth Amendment’s Due Process Clause was enacted, “due process of law” had only a procedural meaning, and only guaranteed proper judicial procedures. By 1868, however, when the Fourteenth Amendment’s Due Process Clause was enacted it was widely accepted that “due process of law” also had a substantive meaning, and prohibited certain types of legislation.

That, in itself, is not entirely new. Indeed, based on my own reading of the previously existing sources, it’s more or less what I say in Chapter 1 of Rehabilitating Lochner. What’s new is the depth of the research Williams has undertaken. Previously, attention had focused mainly on a few major state court cases, along with Dred Scott v. Sandford. Williams goes well beyond the usual suspects, which allows him to conclude that by 1868, “a recognizable form of substantive due process had been embraced by courts in at least twenty of the thirty-seven then-existing states as well as by the United States Supreme Court and the authors of the leading treatises on constitutional law.” (Few state courts, meanwhile, had rejected “substantive due process”, as opposed to simply not ruling on the issue one way or another).

Williams’s article poses a challenge to the minority of scholars who argue that the original meaning of the Fifth Amendment’s Due Process Clause was “substantive,” and even more so to the much larger group of scholars who claim that the substantive interpretation of the Fourteenth Amendment’s Due Process Clause was simply invented by activist judges in the Gilded age and “Lochner era.” Indeed, Williams’s research suggests that a sincere originalist may be required to accept a substantive interpretation of component to “due process of law.”

Aside: Kudos to the Yale Law Journal, which I’ve noticed has published some very interesting scholarship this year which has not emanating from the standard sources, i.e., well-known law professors at top 15 or so schools.

Charlie Savage of the New York Times reports that the Obama Administration is arguing that the Constitution does not require congressional authorization for the Libya intervention because it is not a “war,” but merely some smaller scale of military action:

“The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation,” Mr. Obama told The Boston Globe in December 2007.

The administration’s legal team appears to be distinguishing between a full war and a more limited military operation, on the theory that the Libyan intervention falls short of what would prompt any Congressional authority to control decisions about whether to initiate hostilities.Asked about Mr. Obama’s 2007 statement, Tom Donilon, Mr. Obama’s national security adviser, said Monday that the administration “welcomes the support of Congress in whatever form that they want to express that support.” But, Mr. Donilon added, Mr. Obama could authorize the operation on his own.

“This is a limited — in terms of scope, duration and task — operation, which does fall in the president’s authorities,” he said.

As I have pointed out here and here, this may be a reasonable argument if the Libya operation remains short and very limited in scale. But if it drags on or the fighting escalates, the administration’s legal position will become increasingly tenuous. Moreover, as Jack Goldsmith points out, the administration may be relying on Clinton-era arguments justifying the 1994 Haiti and 1995 Bosnia interventions. But those arguments relied heavily on the notion that the interventions in question were “consensual” (US forces had been invited by the governments of those countries). By contrast, the Libyan government certainly hasn’t invited us to bomb its forces, and the administration has not recognized the rebels as as the “true” government in Gaddafi’s place.

Some might say that none of this really matters. After all, no court is likely to enjoin military operations against Libya, even if a lawsuit were filed. But the president and Congress have an independent duty to uphold the Constitution even if courts cannot or will not force them to do so. We should strive to establish a political culture where all three branches of government take their constitutional obligations seriously. I am not naive enough to believe that politicians will ever do so fully. But we can certainly do better than the present situation where most of our elected leaders give the Constitution no more than lip service unless forced to do by defeat in Court.

Constitutional considerations also matter in so far as they might sway public opinion. While people who strongly support or strongly oppose the Libya intervention are unlikely to change their minds on the basis of constitutional concerns alone, many observers are on the fence. I am one such fence-sitter myself, since I see some strong arguments on both sides of the policy issue. The Libya action has split both the right and the left in interesting ways. In such a fluid situation, constitutional arguments might have a greater impact than in a case where partisan divisions are tightly drawn and most people have strong commitments to one side or the other.

Harvard law professor Jack Goldsmith, a leading constitutional law and international law scholar, has an article in Slate defending the constitutionality of President Obama’s use of force against Libya without congressional authorization.

I am a big fan of Goldsmith and his academic work. He’s one of the leading scholars in his field. In this case, however, I think his argument falls short.

Goldsmith makes two central claims: that the original meaning of Congress’ power to declare war is ambiguous and that longstanding practice supports presidential power to initiate war unilaterally. There is some merit to both arguments. But both are much weaker than Goldsmith suggests.

I. The Problem of Ambiguity.

Here is Goldsmith’s argument based on ambiguity:

Legal scholars disagree about the original meaning of the Constitution’s conferral on Congress of the power “to declare war.” Many contend it required Congress to formally approve all uses of U.S. military force abroad, save, as James Madison said at the Convention, in situations needed to “repel sudden attack.” Others maintain the “declare war” clause provides more leeway, allowing the president to use force abroad as long as the force does not rise to the level of “war,” whatever that means. Yet others argue that the framers meant simply to give Congress the authority to signal under international law a state of war; the real work in controlling presidential initiation of force, under this view, was Congress’ control over appropriations and the size of the standing army.

It is true that there is disagreement about these issues among legal scholars. But under either the first or the second view that Goldsmith lists, a large-scale military action that involves US forces in prolonged combat surely qualifies as a “war.” There is indeed some ambiguity about exactly where a small-scale “conflict” ends and “war” begins. But the fact that we cannot draw a precise line between the two does not mean that there aren’t numerous cases that clearly fall on one side or the other. We can’t draw a precise line between people who are “short,” those who are “average” height, and those who are “tall.” But that doesn’t mean that we can’t easily determine that Pee Wee Herman is short, while Shaquille O’Neal is tall.

Similarly, the existence of ambiguous borderline cases does not prevent us from readily concluding that Vietnam, Korea, and the two Iraq conflicts are wars, while President Clinton’s 1998 decision to launch a few missiles against Al Qaeda camps in Afghanistan probably wasn’t. As I noted in my previous post on this subject, the small scale of US military involvement in Libya so far might put the case in the ambiguous category. But if US air and missile strikes against Gaddafi continue for any great length of time, it will fairly rapidly clearly become a war – even if we cannot pinpoint the exact moment when it does so.

As for the claim by a few legal scholars such as John Yoo that Congress’ power to declare war does not limit the president’s ability to initiate force at all, the historical evidence is overwhelmingly against it. Even Alexander Hamilton – the biggest supporter of sweeping presidential power among the Founders – admitted that “the Legislature have a right to make war” and that “it is…the duty of the Executive to preserve Peace till war is declared.”

II. Historical Practice.

Goldsmith also argues on the basis of historical practice:

[P]ractice confirms that the president, under his commander-in-chief and other executive powers, has very broad discretion to use U.S. military force in the absence of congressional authorization. Presidents have done this, in military actions large and small, over 100 times, since the beginning of the republic. The largest and most consequential unauthorized military action is the Korean War launched by President Truman in 1950. Another big conflict without congressional authorization—and, indeed, in the face of an overt congressional vote that declined to provide such authorization—was President Clinton’s Kosovo intervention in 1999. Some less significant unilateral uses of military force in the past 30 years include Haiti (2004), Bosnia (1995), Haiti (1994), Somalia (1992), Panama (1989), Libya (1986), Lebanon (1982), and Iran (1980)….

Critics will claim that a pattern of consistently violating the Constitution cannot remedy the illegality of these actions. But that is not the right way to view this pattern. An important principle of constitutional law—especially when the allocation of power between the branches is at issue—is that constitutional meaning gets liquidated by constitutional practice.

I am skeptical that a pattern of practice automatically validates what would otherwise be violations of the Constitution. Did decades of longstanding segregation laws validate the constitutionality of Jim Crow?

Even if practice does have the force Goldsmith attributes to it, that practice is much less clear than he suggests. Most of the cases of “unilateral” executive use of force Goldsmith cites were small-scale actions where little or no actual combat was expected. These examples don’t qualify as “wars” unless virtually any use of force does. Such cases include Haiti, Somalia, Lebanon, and others. Other cases on Goldsmith’s list (e.g. – Libya 1986 and Iran 1980) were responses to terrorist attacks sponsored by the regime in question. Even those who advocate a narrow interpretation of presidential war power don’t deny that the president can use force to respond to direct or imminent attacks on Americans. The 1989 Panama intervention – a much larger use of force – also falls within that category. Before the US invasion, Panamanian dictator Manuel Noriega foolishly declared that a “state of war” existed between the two nations and threatened US troops and civilians in the area of the Panama Canal. Both points were cited by President George H.W. Bush in his justification for the invasion.

As I have pointed out in the past, Bill Clinton’s 1999 Kosovo War really is an example of large-scale unilateral use of military force by the president in the face of congressional opposition. But there are many more cases where the president sought and obtained congressional authorization in advance of military action or very soon after it began. These include Vietnam, Afghanistan, the two Iraq conflicts and others. Going back further in time, presidents also got congressional authorization for the War of 1812, Mexican War, the Spanish-American War, and the two world wars. Indeed, the actual historical practice suggests that the larger and more unambiguously “war”-like a planned military action is, the more likely the president is to seek congressional authorization and to avoid action that Congress is unlikely to endorse.

The Korean War is a major exception to this pattern, and I apologize for previously mistakenly suggesting that it was not. President Truman never sought congressional authorization for that conflict, even though he could easily have gotten it. However, Harry Truman’s decision to enter the war did enjoy overwhelming congressional support and most of the congressional and public criticism of his conduct of the fighting came from Republicans who claimed that he wasn’t acting aggressively enough.

In sum, the historical record cuts both ways. But there are many more cases where presidents have gotten congressional authorization for large-scale military action than those where they have not.

Several liberal Democratic members of Congress are claiming that President Obama’s decision to use force against Libyan dictator Muammar Gaddafi requires congressional authorization:

A hard-core group of liberal House Democrats is questioning the constitutionality of U.S. missile strikes against Libya, with one lawmaker raising the prospect of impeachment during a Democratic Caucus conference call on Saturday.

Reps. Jerrold Nadler (N.Y.), Donna Edwards (Md.), Mike Capuano (Mass.), Dennis Kucinich (Ohio), Maxine Waters (Calif.), Rob Andrews (N.J.), Sheila Jackson Lee (Texas), Barbara Lee (Calif.) and Del. Eleanor Holmes Norton (D.C.) “all strongly raised objections to the constitutionality of the president’s actions” during that call, said two Democratic lawmakers who took part.

Kucinich, who wanted to bring impeachment articles against both former President George W. Bush and Vice President Dick Cheney over Iraq — only to be blocked by his own leadership — asked why the U.S. missile strikes aren’t impeachable offenses….

Saturday’s conference call was organized by Rep. John Larson (Conn.), chairman of the Democratic Caucus and the fourth-highest ranking party leader. Larson has called for Obama to seek congressional approval before committing the United States to any anti-Qadhafi military operation.

“They consulted the Arab League. They consulted the United Nations. They did not consult the United States Congress,” one Democrat lawmaker said of the White House. “They’re creating wreckage, and they can’t obviate that by saying there are no boots on the ground. … There aren’t boots on the ground; there are Tomahawks in the air.”

Andrew McCarthy, a prominent conservative legal commentator, makes a similar argument here.

This is another of those rare cases where I agree with Dennis Kucinich, though I would not go so far as to advocate impeachment. Unlike Kucinich (and Andrew McCarthy), I tentatively think that Obama has chosen the right policy on Libya. But whether right or not, military action on this scale surely does require congressional authorization under the Constitution.

Article I of the Constitution clearly gives Congress, not the president, the “power… to declare War.” The Founding Fathers sought to avoid a situation where one man had the power to commit the nation to war on his own initiative.

It’s arguable that some small-scale uses of force don’t rise to the level of a war and therefore can be undertaken by the president acting alone under his authority as commander-in-chief of the armed forces. President Reagan’s 1986 airstrike on Libya might be an example, as were Bill Clinton’s 1998 missile strikes against Al Qaeda base camps in Afghanistan. If all the Obama administration intends is to launch a few Tomahawk missiles, perhaps this action would fall in the same category. However, it seems highly likely that the president plans to go well beyond this. Military operations are likely to continue for some time, perhaps until Gaddafi has either been overthrown or at least compelled to leave the rebel-controlled parts of Libya unmolested. If so, it seems quite clear that congressional authorization for military action on that scale is required.

Congressional authorization also might not be needed if all the president is responding to an ongoing or imminent attack. However, Gaddafi has not attacked the US in recent years (though he did sponsor numerous anti-American terrorist attacks in the 1980s and early 90s) and there doesn’t seem to be any evidence that he had any immediate intention of doing so.

As Andrew McCarthy recognizes, congressional authorization need not specifically use the words “declaration of war.” It is enough that it clearly authorize large-scale military operations against the enemy in question, as the Authorization for the Use of Military Force against Al Qaeda and the Taliban did in 2001.

For all the hoopla about the supposedly overwhelming growth of presidential power, presidents have in fact gotten advance or nearly simultaneous congressional authorization for almost every major military intervention the United States has undertaken since World War II. This was true in Korea, Vietnam, the two Iraq wars, and many other cases. Bill Clinton’s 1999 military action in Kosovo was the one time during that period when a president entered into a major conflict in the face of actual opposition by the majority in Congress. In part for that reason, Clinton strictly limited the scale of American involvement, avoiding the use of ground forces and ensuring that US troops didn’t suffer any combat casualties. Perhaps Obama plans to do the same thing with Libya; but if so, he will be in a difficult position if more coercion is needed to succeed.

In addition to constitutional reasons, presidents also have strong political incentives to seek congressional support for military action. Without it, the president will have to take the sole political blame if anything goes wrong.

In this case, I have little doubt that Obama could get congressional authorization if he tries to do so. There is considerable Republican support for the Libya intervention, and Obama can also count on the support of most of his fellow Democrats. The Democratic leadership in both the House and the Senate is backing him, despite the opposition of some House liberals.

For both constitutional and political reasons, the administration should seek a congressional vote as soon as possible.

UPDATE: I have changed the spelling of the Libyan dictator’s name in this post to what seems to be the more common English usage at this time: “Gaddafi.”

UPDATE #2: It’s worth noting that then-Senator Obama reached a similar conclusion back in 2007, when he said the following:

The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.

Obama’s 2007 position is actually more sweeping than mine, since it appears to apply to all military attacks, whereas I think that the president can unilaterally launch small-scale military operations that are not large enough to amount to a war.

UPDATE: I should acknowledge that President Truman in the Korea War never did get a clear congressional authorization for the war. I was wrong to suggest otherwise and apologize for the error. On the other hand, Truman’s decision to enter the war did enjoy overwhelming support in Congress, and most of the congressional criticism of his waging of the war came from Republicans who claimed that he wasn’t waging it aggressively enough.

This Thursday, I will be taking part in a Federalist Society panel on President Obama’s decision not to defend DOMA in Court. Edward Whelan, President of the Ethics and Public Policy Center and prominent legal blogger for National Review, will be on the panel with me, and my colleague Neomi Rao will moderate. The panel will be held from 12 to 1:30 PM at the Rayburn House Office Building on Capitol Hill, and free lunch will be served. Registration and other details available here.

I previously defended the president’s decision here.

Last week, I defended President Obama’s decision not to defend the constitutionality of the Defense of Marriage Act, on the grounds that the administration has concluded that it is unconstitutional. Although I disagree with some of the administration’s specific legal arguments in this case, I think the president’s duty to defend the Constitution supersedes his obligation to uphold federal statutes when the two conflict.

As I mentioned in the earlier post, this is not the first time that an administration has refused to defend a federal law on such grounds.
NPR recently published a helpful summary of similar decisions by previous administrations, including various Republican ones:

While the administration’s DOMA shift is unusual, it is not rare. It has happened more than a dozen times since 2004 and many more in the past 60 years, including in some very important cases.

During the Eisenhower, Kennedy and Truman administrations, the presidents, in one form or another, refused to defend separate-but-equal facilities in schools and hospitals. The Ford Justice Department refused to defend the post-Watergate campaign finance law, much of which was subsequently upheld by the Supreme Court. The Reagan administration refused to defend the independent counsel law, a law subsequently upheld by the Supreme Court by a 7-to-1 vote. It also refused to defend the one-house legislative veto of many executive actions; in that case, the administration was more successful, winning 7-2 in the Supreme Court. The Clinton administration refused to defend a federal law mandating the dismissal of military personnel who were HIV-positive. The George W. Bush administration refused to defend a federal law that denied mass-transit funds to any transportation system that displayed ads advocating the legalization of marijuana. And in the George H.W. Bush administration, the Justice Department refused to defend a federal law providing affirmative action in the awarding of broadcasting licenses — a law subsequently upheld by the Supreme Court by a narrow 5-4 vote.

The fact that Republican administrations have done the same thing in the past doesn’t necessarily prove that Obama’s decision was justified. After all, as Obama himself would be quick to agree, Republican administrations make plenty of mistakes too.

The history does, however, support my point that presidential refusal to defend the constitutional of a statute doesn’t automatically lead to its defeat in Court. As NPR notes, the courts ended up upholding the challenged law in many of the cases where an administration chose not to defend it. More importantly, in all these cases the law was effectively defended by other parties, even if it was ultimately struck down.

The Obama Administration’s decision not to defend the constitutionality of the Defense of Marriage Act has inspired a great deal of criticism from commentators who believe that it is an unwise or illegitimate extension of executive power. The critics include Richard Epstein, Curt Levey, and our own Orin Kerr, among others. John Yoo argues that this is a constitutionally permissible exercise of executive power, but an unwise one that contradicts the Democrats’ position on other executive power issues.

I’m not a fan of either the Obama Administration or some of the legal arguments they have made in support of the claim that DOMA is unconstitutional. But I do think that they made the right call here. If a President genuinely believes that a federal statute is unconstitutional he has a duty not to defend it.

I. The President’s Duty to Defend the Constitution Supersedes His Duty to Uphold Federal Statutes When the Two Conflict.

Let’s start with first principles. The president takes an oath to “preserve, protect, and defend” the Constitution. His duty to uphold the Constitution supersedes his obligation to enforce federal statutes when the two come into conflict. After all, federal statutes are only legitimate in so far as they are constitutional. One of the greatest threats to the Constitution is the enactment and enforcement of unconstitutional laws that exceed the powers of government.

Ever since George Washington, presidents have exercised their own judgment in assessing the constitutionality of federal laws, and have not simply deferred to the courts or to Congress. Each branch of government has an independent responsibility to assess the constitutionality of current and proposed laws. This is not incompatible with the duty of the president or Congress to obey judicial decisions that strike down a statute, since the Constitution gives the courts jurisdiction over all cases arising under it. But if the courts haven’t yet ruled on the issue, nothing prevents the president or Congress from making a considered independent judgment that the statute is nonetheless unconstitutional and acting accordingly.

Thus, if the president genuinely believes that DOMA or any other federal statute is unconstitutional, he has at least a prima facie duty not to defend it in court, and possibly a duty not to take actions to enforce it either, as part of his exercise of prosecutorial discretion (a traditional executive power). Obviously, the president can still choose to defer to Congress or the courts in ambiguous cases where he is not sure whether a statute is constitutional or not. It would have been perfectly legitimate for the Obama Administration to conclude that they are not sure whether DOMA is constitutional, and therefore will defer to the considered judgment of Congress until such time as the Supreme Court definitively decides the issue. But the President apparently has a considered view that the statute really is unconstitutional, and not merely uncertain in its status. If so, his duty to the Constitution requires him take the action that he did.

II. Practical Considerations.

Many of the critics of Obama’s decision cite the danger that allowing presidents to refuse to defend statutes they consider unconstitutional would allow them to negate any laws the administration happens to disagree with, simply by not arguing for them in court. This is a reasonable concern. But I think it is overblown.

The fact that the administration chooses not to defend a federal law doesn’t mean that it won’t have other able defenders. In practice, virtually any significant federal law is likely to be supported by states and/or private parties who have standing to intervene. For example, any of the 45 states that today forbid gay marriage would probably have standing to defend its constitutionality on the grounds that otherwise they might have to extend tax credits and other government benefits to resident couples who have entered into same-sex marriages in other states. If a future Republican administration chooses not to defend the constitutionality of the individual mandate, both state governments who support it and various private parties who benefit from it materially would have standing to intervene. For example, insurance companies support the mandate because it requires people to buy their products and that financial stake in the law is surely sufficient to give them standing.

Indeed, supporters of a challenged law should prefer that its defense be handled by a party that is genuinely committed to it, rather than a hostile Justice Department that is only litigating the case because they believe they can’t get out of it. Ed Whelan, a prominent critic of the Obama Administration’s handling of the DOMA litigation, claims that the “administration has been sabotaging DOMA litigation from the outset” by refusing to make the best possible arguments in the law’s defense. If so, wouldn’t DOMA supporters be better off if the statute’s defense were handled by parties who actually believe in their case and genuinely want to win it?

Past experience supports the conjecture that a president’s unwillingness to defend a federal statute doesn’t necessarily doom it to defeat. This is not the first time that a president refused to defend the constitutionality of a federal law or regulation. In 1989, as Jim Copland points out, the George H.W. Bush administration refused to defend the constitutionality of federal affirmative preferences in the Metro Broadcasting case. In the 1982 Bob Jones case, the Reagan administration refused to defend an IRS policy denying tax exemptions to a university that practiced racial segregation for religious reasons. Significantly, both policies were ultimately upheld by the Supreme Court, as other extremely able lawyers were found to defend them. For example, the Bob Jones case was won by prominent Washington, DC lawyer William Coleman.

In recent years, federal courts have gradually relaxed standing rules, making it easier for a variety of parties – especially state governments – to bring lawsuits or intervene in existing ones. Thus, it is highly unlikely that a president’s refusal to defend a statute in court will mean that it won’t find able defenders elsewhere. If there is still a problem, the proper solution is to further loosen restrictive standing requirements, which should be eliminated anyway for reasons I explained here.

UPDATE: I should add that it might also be legitimate for the president to adopt a general policy of deferring to congressional judgment on issues relating to the constitutionality of federal statutes, if he believes that Congress’ judgment on these matters is likely to be systematically superior to that of the executive branch. But I think any such presumption is at best dubious in an era when Congress generally enacts whatever statutes it wants with little or no serious consideration of constitutional constraints on its power.

UPDATE #2: I have changed around some of the wording in this post for the sake of clarity.

UPDATE #3: It may be that it will be harder for states to get standing to defend DOMA than I suggest above, because the President is only declining to defend the constitutionality of Section 3 (forbidding federal government recognition of same sex marriages contracted in the states), while continuing to argue the provisions in DOMA that allow states to refuse to recognize same-sex marriages contracted elsewhere. Nonetheless, I think states can get standing. Some state tax benefits depend on federal law recognition of marriage, as also does some federal funding of state government programs. Given that even a small fiscal effect is enough to get standing under current precedent, the states will likely be able to find something – as might various private parties opposed to same-sex marriage.

AG Holder’s memo explaining why Justice is declining to defend DOMA begins, “After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, i as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment.” Later, Holder claims that the arguments in favor of the constitutionality of DOMA are not “reasonable.”

Orin has explained below why this assertion of executive power may be troubling, but I suspect that I am significantly less troubled than he is.

But I have a different bone to pick with the administration. According to news reports, while Justice will not defend DOMA in Court, the Administration will continue to enforce DOMA until it’s declared unconstitutional by the judiciary.

Wait a second! If the Executive Branch is asserting the authority to engage in independent constitutional review of an existing law, and the president decides that the law is unconstitutional, it strikes me that the Executive Branch has no business enforcing this unconstitutional law.

So I take the Obama Administration to task not for asserting executive review here, which is at least arguably proper, but for trying to split the baby in half, and declaring that it won’t defend an unconstitutional law, but will enforce it. And not just any unconstitutional law, but one regarding which the Administration claims there are no “reasonable” supporting arguments.