Archive | Constitutional Amendments

The Subjects of the Constitution — Final Thoughts

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

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

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

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

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The Objects of the Fourteenth Amendment

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

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

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

The Fourteenth Amendment is more difficult still, but in a [...]

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The “Whole Constitution Pledge” Revisited

David Gans of the Constitutional Accountability Center, the liberal organization that originated the “Whole Constitution Pledge” has a post commenting on various criticisms of the Pledge, including those by Eugene Volokh, Jonathan Adler, and myself:

To take back America’s charter from the Tea Party, Constitutional Progressives – an initiative launched by the Constitutional Accountability Center and supported by numerous other organizations concerned with protecting the constitutional rights of all Americans – have urged all Americans to pledge to support the whole Constitution….

We are pleased that, over the last week, a number of prominent and well-respected conservatives have taken the time to weigh in on the merits of the “Whole Constitution” pledge. For example, Ed Whalen and Eugene Volokh, have pointed out that calling for repeal of constitutional amendments is not proof of lack of fidelity to the Constitution, noting that Article V gives all Americans the right to call for the repeal of aspects of the Constitution they think are inconsistent with fundamental constitutional principles. Likewise, Ilya Somin has noted that, even after 27 Amendments enacted over 220 years, the long running struggle for a better, fairer, and just system of government still continues. Notably, and to their credit, neither Ed Whalen, Eugene Volokh, nor Ilya Somin show any interest in making the case that the Tea Party’s vision of the Constitution is the correct one, or that their call for repeal of numerous, deeply-rooted parts of our constitutional order should prevail. In fact, Ilya Somin agrees that Seventeenth Amendment – high on the Tea Party hit list – is an important and enduring part of our constitutional order.

These are all important and correct points. Article V is incredibly important to our constitutional story. Because the Framers recognized that the Constitution they created was not

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Should We Support the “Whole Constitution”?

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 [...]

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To Really Support the Whole Constitution

Echoing Eugene’s comment below, I would feel better about the Constitutional Progressives’ “Whole Constitution Pledge” if I were confident that the drafters and signatories were truly pledging to support the whole Constitution, and not just those which can be used to advance a progressive political agenda through the courts.  Not only does the whole Constitution include Article V, as Eugene notes, but it also includes the Contracts Clause, the Privileges and Immunities Clause, the First Amendment’s Free Exercise Clause, the Second Amendment, the Fifth Amendment’s Takings Clause, and the Ninth and Tenth Amendments as well.  Given those spear-heading the pledge, including the Constitutional Accountability Center (the successor organization to Community Rights Counsel), the Center for American Progress, the People for the American Way Foundation, and Senator John Kerry, I have my doubts. [...]

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The Whole Constitution Pledge

Here’s the Constitutional Progressives’ “Whole Constitution Pledge” that various liberal groups are asking people to sign:

The Whole Constitution Pledge

Through the Constitution, “We the People” created the most enduring government charter in world history.

Building on the achievements of the Founding generation, successive generations of Americans have created a “more perfect union” through constitutional Amendments. These Amendments have improved our Constitution by ending slavery, enshrining guarantees of equality and citizenship, expanding the right to vote, and ensuring that the national government has the power and resources necessary to protect the nation, address national challenges and secure civil rights.

Some have advocated repeal of Amendments, including the 14th Amendment, the 16th Amendment, and the 17th Amendment, that make our Constitution better and this country great. Some have even failed to heed the lessons of the Civil War and the Civil Rights Movement and have advocated a return to ideas of secession and nullification.

I believe that our Constitution has been improved by the Amendments adopted over the last 220 years.

I pledge to support the whole Constitution.

But, as Ed Whelan points out, Article V is part of the “whole Constitution,” too — indeed, the part that helped bring about the Amendments that the pledge authors so praise. So I should say that I pledge to support the whole Constitution, including the provision that allows repeal of those provisions that were enacted by yesterday’s Americans but that today’s Americans choose to revise through the constitutionally prescribed means. As to which particular provisions should be kept and which should be repealed, I make no pledges. [...]

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Mandatory Road Repair Work and the Thirteenth Amendment Ban on Involuntary Servitude

Co-blogger Eugene Volokh recently cited the 1916 case of Butler v. Perry as an example of the reasoning that allows the Supreme Court to hold that some forms of forced labor do not violate the Thirteenth Amendment’s ban on involuntary servitude. Butler upheld a Florida law that required all adult males between the ages of 21 and 45 to pay a small fine or work on road repair for six days per year.

It so happens that, in 2007, I wrote a detailed critique of Butler as part of a series of posts explaining why mandatory national service would violate the Thirteenth Amendment. Here is an excerpt:

Justice McReynolds’ opinion for the Court… [argues that] “the term ‘involuntary servitude’ was intended to cover those forms of compulsory labor akin to African slavery which, in practical operation, would tend to produce like undesirable results. It introduced no novel doctrine with respect of services always treated as exceptional, and certainly was not intended to interdict enforcement of those duties which individuals owe to the state.”

There are several problems with this formulation. First and most important, 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. As I explained more fully in this post, using forced labor to punish criminals was a longstanding tradition, and was surely not considered “akin to African slavery.” Second, McReynolds’ argument elides the hard question of determining what evils really were “akin to African slavery” and likely to “produce like undesirable results.” The “free labor” ideology underpinning the Thirteenth Amendment was based on a broad opposition to all forms of forced labor as inimical to a free society, not merely

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Philadelphia 1787 was not a runaway convention

So explains my Independence Institute colleague Rob Natelson, on his Our American Constitution blog. Forty-eight of the 55 delegates had instructions which allowed them to go beyond amending the Articles of Confederation.

Rob’s research into early American history has found that constitutional conventions (for a new constitution, or to amending an existing document) had well-established procedures by the time of the Framing. Click here for post that will provide a summary, and to lead to Rob’s extensive analysis of original sources. As Rob explains, constitutional conventions for a balanced budget, or other salutary (in my view) purposes have been blocked in part by fears raised by the John Birch Society that a new convention would run away like the Philadelphia Convention did, or that the procedures of a new convention are completely unclear. To the contrary, the procedures are clear, and neither the Philadelphia Convention nor its early American analogues exceeded their mandate. [...]

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Reflections on the Repeal Amendment

Co-blogger Randy Barnett’s proposed Repeal Amendment has generated a great deal of controversy. The amendment would give a two thirds majority of the states the power to repeal any federal law or regulation. The idea has now been endorsed by a number of congressional Republicans, including soon-to-be House Majority Leader Eric Cantor.

Randy argues that the amendment could play a significant role in “deterring even further expansions of federal power.” Critics such as Washington Post columnist Dana Milbank claim that it would seriously undermine the Constitution or even “destroy” it .

I think that both sides’ claims are overstated. If enacted, the Repeal Amendment would have only minor effects because mobilizing 34 states (the number needed for a two-thirds majority) to oppose any congressional enactment is extremely difficult. Proponents of repeal would have to win not just 34 votes, but 67 or 68, since every state but Nebraska has a bicameral legislature. In some cases, the party that controls the state senate is not the same as the one that controls the lower house, which makes it difficult to get both to vote for the same repeal proposal.

As Randy himself points out, “[g]etting two-thirds of state legislatures to agree on overturning a federal law will not be easy and will only happen if a law is highly unpopular.” If it were that unpopular, it seems unlikely that the law would be enacted by both houses of Congress and the president in the first place. In practice, therefore, the Amendment’s effects would largely be limited to repealing a few old laws that no longer have significant political support. And even in those cases, assembling the required two-thirds majority will be difficult.

Moreover, as I noted in a 2009 post on one of Randy’s earlier amendment proposals, state governments [...]

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Assessing the Impact of State Constitutional Amendments Banning Gay Marriage

In this post commenting on the revelation that former Republican National Committee chairman Ken Mehlman is gay, Yale lawprof Jack Balkin argues that the recent spate of state anti-gay marriage constitutional amendments may significantly retard progress towards gay equality:

[Ken] Mehlman was the chair of the Bush 2004 presidential campaign, which deliberately used opposition to same-sex marriage–and indeed, moral opposition to homosexuality–as a way of increasing turnout among members of the Republican base. One way of doing this was to work with anti-SSM groups to schedule votes on state constitutional amendments that would prohibit the recognition of same sex marriage. As a result of this strategy, thirteen states passed such amendments during the 2004 election cycle, followed by a dozen or so more in the next four years.

These amendments matter because they complicate the most obvious path toward marriage equality: proceed state by state and get a majority (or more) of states to recognize same-sex marriage. After that occurs, it is much easier for the federal courts and the Supreme Court to consider a challenge to laws banning same sex marriage.

A few states with such constitutional amendments would not be a very serious obstacle……

The problem is that as a result of the 2004 Bush campaign, a much greater number of states have constitutional amendments that block both ordinary legislation and judicial interpretation of state constitutions. At last count, 29 states had constitutional bans on same sex marriage.

I criticized arguments similar to Balkin’s here, here, and here. To briefly summarize my main points, I doubt that these amendments will have more than a minor effect for two reasons. First, most of them are in states that are unlikely to enact gay marriage anytime soon. Even more importantly, most are in states with easy to [...]

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