Originalism and the Supreme Court’s 2013 Term

At the National Constitution Center’s “Constitution Daily” blog, Doug Kendall and Tom Donnelly (Constitutional Accountability Center): Big Battles Brewing over the Constitution’s Original Meaning.  From the introduction: For decades, debates over the Constitution divided along familiar lines. Progressives professed faith in a “living Constitution,” while conservatives claimed fidelity to originalism. In recent terms, however, this dynamic…


Marco Simons on Originalism and Daimler v. Bauman

At Concurring Opinions, Marco Simons (EarthRights International) has this post on the Daimler v. Bauman case (argued at the Supreme Court 10/15):  Is There a Constitutional Right to Corporate Separateness?  Mr. Simons and I have been on opposite sides of some cases in the past, but I think there is something to his originalist argument here: The Ninth Circuit…


Sean Wilentz Plays John Yoo on the Debt Ceiling (with my Response)

In the New York Times, Princeton historian Sean Wilentz: Obama and the Debt (arguing that refusing to raise the debt ceiling “would violate [a] ‘fundamental principle’ of the Constitution” and that the President “in times of national crisis, can invoke emergency power to protect the Constitution” by, in this case, borrowing on his own authority.)

(Thanks to Michael Perry for the pointer).

I have some comments, none of them complimentary.  So I’ll start by saying that Professor Wilentz is a great historian and everyone should, at minimum, read his Bancroft-award-winning The Rise of American Democracy: From Jefferson to Lincoln (W.W. Norton, 2006).

Now for the comments:

1.  Wilentz asserts the meaning of Section 4 of the Fourteenth Amendment, chiefly by looking at drafting and ratifying history, prominently quoting Republican leader Benjamin Wade, and referring to the beliefs and motivations of other principal drafters.  In sum, this is the original meaning of the Fourteenth Amendment.  Apparently Sean Wilentz is an originalist!

But wait, I thought historians denied the very foundations of originalism, claiming that history cannot be used to establish fixed meanings.  Is there actually some deep split among leading historians regarding the use of history?  (See alsohere, in which the great historian Joseph Ellis appears certain of the historical meaning of the Second Amendment).  Or do historians’ doubts about the coherence of originalism only apply when it’s done by law professors, or by conservatives?

2.  Professor Wilentz’s history doesn’t show what he thinks it shows.


Seth Barrett Tillman on the Debt Ceiling

Regarding this post, Seth Barrett Tillman writes:

There is a new view that the President has authority to sell newly issued government debt, absent congressional authority (i.e., Congress’s raising the debt ceiling).
Professor Epps, Dorf, and Buchanan et al. may be right or they be wrong about the constitutional point. (Disclosure: My own view is that they are wrong.) But it does not matter if they are right or wrong. The Constitution is not the relevant body of law.

The relevant body of law is fiduciary duty law. No trustee, director, or officer of a primary dealer (the organisations which actually buy newly issued federal debt) would touch debt issued by the President absent either (1) congressional consent, or (2) Supreme Court approval of the practice. Any such purchase by a primary dealer would be clear violation of its fiduciary duty of care to its stockholders. Full stop. Ex hypothesi, Congress will not have consented: that’s why the President’s action would be unilateral. Likewise, judicial approval could only happen (long) after the Treasury sells the debt. To sell the debt, the Government would have to agree to an astronomical premium, and that would leave the government much worse off than not selling debt at all.

Epps, Dorf, Buchanan and other make an interesting theoretical point (like some which I have made!), but wholly impractical point (ditto). The President cannot sell debt on the credit of the United States absent congressional authority. It is a matter of private law, not public/constitutional law.

Very well put.  And it reminds me of a further point regarding Section 4 that I intended to make yesterday.  Far from supporting a unilateral presidential power to issue debt, Section 4 points the opposite direction.  It says (emphasis added):


A Follow-up on the Guarantee Clause

Regarding this post on the guarantee clause challenge to Colorado’s anti-tax initiative, Derek Muller writes:

I had two quick follow-ups, if you’re interested in exploring further. First, don’t you think that “the United States” might include the federal courts of the United States? That’s why I’m reluctant to peg nonjusticiability on the first Baker factor. Second, do you have any thoughts on Colorado’s claim that the Guarantee Clause cannot be enforced against the state governor, but must be enforced (if at all) against “the United States”?

My thoughts:  (1) In my initial post, I argued that the phrasing of the guarantee clause (“The United States shall guarantee to every State in the Union a Republican Form of Government”) indicates a textual commitment to the political branches, thus making the Colorado case a non-justiciable political question.  Professor Muller is right that the best response is that the federal courts are part of “the United States” and thus share the duty of enforcing the guarantee.  I’m not persuaded for several reasons.

First, the reference to “the United States” seems like a direction to the United States as a whole, in its sovereign capacity, not a direction to each individual component of the U.S. government.  That is similarly true of the word “guarantee”, which is not typically used to describe what courts do. And that conclusion seems particularly appropriate because the clause is potentially very intrusive on federalism; read broadly, it would make the federal courts overseers of the political systems of the states.  This is not likely a role the framers envisioned for the federal courts; rather, it is much more likely that they designed the guarantee as a mechanism that required the participation of the states collectively (through the Senate).


Does Colorado Have a Republican Form of Government?

At the Excess of Democracy blog, Derek Muller (Pepperdine Law) has an interesting post on Kerr v. Hickenlooper, the case claiming that Colorado lacks a republican form of government, as required by Article 4, Section 4 (the guarantee clause).  As he explains:

In 1992, Colorado voters, by initiative, enacted a “Taxpayer Bill of Rights” (TABOR) that prohibits the legislature from raising tax rates or imposing new taxes without voter approval. Plaintiffs recently sued and claimed that the legislature had a kind of inherent right as a republican form of government to control tax increases.

The district court rejected defendant’s argument (at least as an initial matter) that claims under the guarantee clause are non-justiciable.  The Tenth Circuit heard oral argument last Monday.

Professor Muller thinks that the case is a non-justiciable political question.  I agree, but on somewhat different grounds.  He argues:

The second prong [of Baker v. Carr, a key political question precedent] … is salient: “a lack of judicially discoverable and manageable standards for resolving it.” Defining a “Republican Form of Government” is not an easy task, and certainly not one the judiciary has undertaken in over 200 years.

Further, the narrowness of the question weighs against examining the definition. The defendants who appealed note in their briefs that there are limited sit[u]ations in which it might be justiciable–such as if a state instituted a tyranny or a monarchy. But here, the question is whether the legislature has a right to raise taxes absent the popular vote of the people-and, perhaps as a prior question, whether the people can remove a delegated task of certain kinds of taxation from their representatives by initiative and restore it to themselves.

I disagree.  The fact that a question is hard should not make it non-justiciable.  Muller quotes a law professors’ amicus brief (written by some people with whom I often don’t agree, including Erwin Chemerinsky):


William Jacobson on Natural Born Citizens

From earlier this month, William A. Jacobson (Legal Insurrection) has this impressive post — actually a long scholarly essay — on the eligibility clause: natural born Citizens: Marco Rubio, Bobby Jindal, Ted Cruz.  Short version: he thinks there is not a clear case for ineligibility of any of the three.  (Quite an impressive set of comments too, although the vitriol runs pretty high).

My thoughts are here (regarding Cruz).

As to Jindal and Rubio, I think there is no substantial textualist/originalist argument against their eligibility, as they were both both in the United States (although to non-citizen parents).  Whatever else it did, English law considered a “natural born subject” to be anyone (other than the child of a foreign ambassador or invader) born within English territory, without regard to the citizenship of the parents.  Absent evidence to the contrary, it seems appropriate to read the constitutional language in light of its English predecessor. 


David Barron and Martin Lederman on Congress’ Power to Limit War

In my post on Congress’ power to declare a limited war, I noted that the leading scholarship in support of Congress’ power is by Saikrishna Prakash (here).  I should also have added as well the outstanding two-part article “The Commander in Chief at the Lowest Ebb” by David Barron and Martin Lederman in the Harvard Law…


Congress’ Power to Authorize Limited Hostilities

Does Congress have constitutional power to authorize limited strikes on Syria?  In his otherwise outstanding post on Congress’ war powers, Michael Stokes Paulsen suggests that the answer might be no:

… [I]t is fruitless, and equally unconstitutional, for Congress to authorize the use of force but attempt to micro-manage how it is to be used (as some versions of the proposed resolution now being debated would do). As noted, the conduct of war, once authorized, lies in the hands of the president. Congress has the power to declare war, and the president does not. But the president has the power to conduct war as Commander in Chief—and Congress does not.

I’m not sure which versions of the resolution are meant here, but the principal proposal — (a) limiting the use of force to degrading Syria’s chemical weapons capacity, and (b) limiting the use of force to air power — seems well within Congress’ power to declare a limited war.

The leading article on this subject is by Saikrishna Prakash in the Texas Law Review: The Separation and Overlap of Military Powers.  From the abstract:

Absent from war-powers scholarship is an account of when war and military powers separate and when they overlap. Making arguments sounding in text, structure, and history, this Article supplies such a theory. Numerous English statutes and practices help identify the meaning of the Constitution’s war and military powers. Additional insights come from the Revolutionary War and the half-dozen or so wars fought in the three decades after 1789. In those early years, Congress micromanaged military and wartime operations. Presidents (and their advisors) acquiesced to these congressional assertions of power, expressing rather narrow understandings of presidential power over war and military matters. Using early history as a guide, this Article argues that the Constitution grants Congress complete control over all war and military matters. Some authorities, such as the powers to declare war and establish a system of military justice, rest exclusively with Congress. Military authorities not granted exclusively to Congress vest concurrently with the President and Congress, meaning that either can exercise such powers. In this area of overlap, where congressional statutes conflict with executive orders, the former always trump the latter. Tempering Congress’s ability to micromanage military operations are significant institutional and constitutional constraints that typically make it impossible for Congress to move military assets on a far-off battlefield. In sum, the Constitution creates a powerful Commander in Chief who may direct military operations in a host of ways but who nonetheless lacks any exclusive military powers and is thus subject to congressional direction in all war and military matters.

While I would not go quite as far as Professor Prakash (see here), I agree that Congress has substantial ability to set the goals and limits of the use of force in connection with an authorization of war.