The Volokh Conspiracy

Ilya Somin has a thoughtful post on U.S. v. Bond here. I have only one quibble with what he has said. Ilya agrees with Justice Scalia and me that a treaty cannot increase the legislative power of Congress. But he reaches this conclusion in a slightly different way. The difference is actually an important window into this issue.

If the President signs a treaty promising that Congress will enact certain legislation, but Congress would ordinarily lack the power to enact that legislation, what happens? Missouri v. Holland seems to say that the treaty automatically gives Congress the legislative power at issue. Ilya and I both disagree.

Ilya would say that, under these circumstances, the treaty itself is void. He would say that the President has no power to make such a promise. In his view, the treaty power only empowers the President to make promises that the federal government knows it can keep.

In my view, the answer is different. I believe that the President can make such a promise, even though Congress lacks present power to keep it. Making such a promise is not generally advisable, to be sure, but it is permissible. To see why, consider that for every person, and every politician, and every government, the capacity to make promises exceeds the capacity to keep them. Many of our promises may turn on circumstances beyond our control, including the actions of third parties.

I might contract to build you a house on a particular tract of land by a particular date. Executing the contract might require circumstances, like good weather, that are not within my control. It might also require legal changes, like zoning waivers, that are also not within my control. This does not mean that we cannot make such promises. It merely means that we may fail to keep them.

Every non-self-executing treaty has this feature. Non-self-executing treaties promise that the United States will enact certain legislation. They promise, in other words, that we will utilize a particular constitutional mechanism, the mechanism of Article I, section 7, to achieve a particular outcome. But this mechanism requires the acquiescence of the House of Representatives — and the House has no role in the making of treaties. In every such case, there is the real possibility that the House will refuse to do what the President and Senate have promised, and then we will be in breach. Every time the President and Senate enter into a non-self-executing treaty, they are making a promise that they — and our treaty partners — cannot be certain that the United States will keep.

Now consider the case in which a treaty promises to enact legislation that Congress lacks the power to enact (either because such legislation would violate the Bill of Rights, see Reid v. Covert, or because it would exceed the enumerated powers of Congress, see Executing the Treaty Power). This is, in effect, a promise to use, not the legislative mechanism of Article I, section 7, but the amendment mechanism of Article V. The Article V mechanism, like the Article I, section 7, mechanism, requires the acquiescence of many political actors other than the President and Senate, and there is of course a great risk that these actors will refuse, putting the United States in breach. But this is, in principle, no different than the case above. Here too, the President and Senate are making a promise that turns on the actions of other political actors, a promise that they — and our treaty partners — cannot be certain that we will keep.

It will, of course, almost always be unwise to make such a promise. But perhaps not always. Imagine that the United States is defeated in a disastrous war, and the victorious country requires, as a term of a peace treaty, a concession that would violate the Bill of Rights. It proposes, for example, to allow the United States to maintain some military bases abroad, but insists that any crimes committed by people there, including the spouses of soldiers, must be tried by military commission. Can the United States agree to the term and end the war?

Such a treaty cannot be self-executing; if it were, then making it would violate the Bill of Rights. And if such a treaty were non-self-executing, it would not empower Congress to pass legislation executing it. A treaty cannot itself violate the Bill of Rights, and nor can it empower Congress to violate the Bill of Rights. These are the holdings of Reid v. Covert, and Rick, Ilya, and I all agree with them.

But does it follow that the President has no power to enter into such a treaty in the first place, even if it is non-self-executing? Ilya would say yes: If Congress has no power to execute such a treaty, then the President has no power to sign such a treaty, and if he does so, the treaty is void. But why? Would we really be obliged to fight to the last man rather than sign such a treaty?

This treaty, like all non-self-executing treaties, creates an international “legal” obligation. But this treaty, like all non-self-executing treaties, is not, of its own force, domestic law. It is hard to see how the subject matter of such a treaty exceeds the treaty power; a peace treaty is surely in the heartland of the treaty power. And since the treaty has no domestic legal effect, it’s hard to see how the treaty itself violates the Bill of Rights.

This hypothetical treaty, like all non-self-executing treaties, purports to require the action of other political actors — actions that the President and Senate cannot really guarantee. Most non-self-executing treaties are (uncertain) promises to use Article I, section 7; this one is an (uncertain) promise to use Article V. But why should that matter? The Article V amendment process is as much a part of the Constitution as the Article I legislative power. If a treaty can create an international commitment to exercise the latter, there is no reason in principle why it cannot create an international commitment to exercise the former.

I would say, contra Ilya (but perhaps consistent with Rick?), that the President has power to enter into such a treaty, even though Congress has no present power to execute the treaty. See Executing the Treaty Power at 1920-27.

To reiterate, though, this is a mere intramural dispute. Ilya and I agree with Justice Scalia on the fundamental point: A treaty cannot increase the legislative power of Congress.

Georgetown’s Louis Michael Seidman, author of On Constitutional Disobedience has an NYT op-ed (noted in the comments to Orin’s open thread) calling for ignoring the Constitution — or at least those parts that he does not like.

As the nation teeters at the edge of fiscal chaos, observers are reaching the conclusion that the American system of government is broken. But almost no one blames the culprit: our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions. . . .

Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago. . . .

If even this change is impossible, perhaps the dream of a country ruled by “We the people” is impossibly utopian. If so, we have to give up on the claim that we are a self-governing people who can settle our disagreements through mature and tolerant debate. But before abandoning our heritage of self-government, we ought to try extricating ourselves from constitutional bondage so that we can give real freedom a chance.

As commenters in the open thread have already noted, the Constitution itself provides for its own revision to cure deficiencies: Article V. This amendment process has allowed for dramatic changes to the document, from the Bill of Rights and the Civil War Amendments to women’s suffrage and changes to election procedures.

Seidman cites what he characterizes as a proud history of “constitutional disobedience” to suggest that ignoring the document would be all to the good, suggesting that the country would be better off if political disputes about everything from budgetary policy to military conflict were merely debated on the policy merits. Yet Seidman conspicuously ignores the various policy measures throughout our nation’s history that would have remained the law of the land were it not for the Constitution, including numerous restrictions on the freedom of speech and the detention policies struck down by the Court in Boumediene.

Seidman suggests that liberal constitutional values such as the freedom of speech and religion, equal protection, and due process “are important, whether or not they are in the Constitution” and that “we should continue to follow those requirements out of respect, not obligation.” But our political history shows quite clearly that the political process is more than willing to trample such principles, often with substantial popular support even with a constitutional obligation to respect. Yet the whole point of a constitution is to prevent such abuses and constrain popular majorities.

Seidman writes that if we followed his advice: “The Supreme Court could stop pretending that its decisions protecting same-sex intimacy or limiting affirmative action were rooted in constitutional text.” So supreme court opinions would be nothing more than policy briefs and appeals to moral principle? It seems to me that is a recipe for undermining the legitimacy of judicial review and ultimately relegating all such questions to the political process — and producing quite a few results I doubt Seidman would much like (e.g. greater limits on expression, lesser protection of criminal defendants, and more expansive national security authority). There are reasonable arguments for constraining (or even eliminating) judicial review — I don’t agree with them, but I think they are reasonable — but I don’t take that to be Seidman’s argument. To the contrary, he seems to want to keep judicial review, but just for those constitutional provisions he likes, but that’s hardly the basis for a principled argument for “constitutional disobedience,” as such.

Of course the constitution doesn’t settle all questions, and wouldn’t even if everyone accepted the same approach to constitutional interpretation. Our understanding of the Constitution changes over time, even if the document itself does not (other than when we amend it). Seidman is correct that a constitutional order such as ours depends upon “entrenched institutions and habits of thought and . . . the sense that we are one nation and must work out our differences.” But that does not mean that the Constitution itself serves no role, or that lessening constitutional constraints on government action is desirable or beneficial. The Constitution is not perfect — far from it. But Seidman’s op-ed does not convince me we’d be better off to disregard it.

In state elections, the most important vote this November will be in Louisiana. A referendum there would significantly strengthen protection of the right to keep and bear arms in the state, and would set a very significant national precedent.

Before the Civil War, the Louisiana Constitution did not mention a right to arms. The Louisiana Supreme Courts, however, viewed the federal Second Amendment as directly applicable to state government. So in State v. Chandler (1850), the court held that the Second Amendment protected a general right to carry arms, but that a legislature could ban concealed carry.

A new state constitution, adopted in 1879, provided: “A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be abridged. This shall not prevent the passage of laws to punish those who carry weapons concealed.” La. Const., art. 3. The first sentence is, of course, nearly verbatim from the Second Amendment.

A century later, firearms prohibitionists had convinced some courts to reinterpret the Second Amendment so as to make it practical nullity. Supposedly, the Second Amendment right was not an individual right, but instead a “state’s right” or “collective right”–which meant that individual gun ownership could be entirely outlawed. Because the Louisiana Constitution’s language so closely paralleled the Second Amendment, there was a danger that a Louisiana court could interpret the state constitutional language to protect nothing at all. Indeed, some courts in other states had already done so, regarding state law language that copied the Second Amendment.

So in 1974, the Louisiana constitutional right was strengthened, with new language: “The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of concealed weapons.” La. Const., art. I, sect. 11. The new language made it indisputable that the state constitution’s right to arms was an individual right, belonging to each citizen.

Unfortunately, Louisiana’s Supreme Court, like some other courts of the late 1970s, was hostile to the right to arms. According to a 1977 Louisiana Supreme Court decision, “The right to keep and bear arms, like other rights guaranteed by our state constitution, is not absolute. We have recognized that such rights may be regulated in order to protect the public health, safety, morals or general welfare so long as that regulation is a reasonable one.” State v. Amos 343 So.2d 166, 168 (La. 1977).

It was unexceptional for the court to observe that the right to arms is no more “absolute” than any other right. But the court went much further, and essentially stripped the Louisiana arms right of any meaningful judicial protection. According to the Amos court, any form of gun control was constitutional, as long as it was “reasonable.”

In 2001, the Louisiana Supreme Court affirmed a lower court ruling that held: “The right to bear arms is established by the Second Amendment to the United States Constitution and Article I, § 11 of the Louisiana Constitution. The State of Louisiana is entitled to restrict that right for legitimate state purposes, such as public health and safety.” State v. Blanchard, 776 So.2d 1165 (La. 2001). The Blanchard court cited Louisiana state and federal cases from 1986 through 1999 for this proposition.

So Blanchard adopted an even weaker standard of right to arms protection than had Amos. Under Blanchard, any restriction is alright so long as the government has a “legitimate” purpose.  Blanchard‘s legitimate purpose test copies one prong of the weakest standard of judicial review, the “rational basis” test, which was originally created for Fourteenth Amendment Equal Protection cases. Under this test, every law is constitutional so long as the government has a “legitimate” purpose, and the law has a “rational” connection to that purpose.

Fortunately, gun control has not been politically popular in Louisiana in recent decades. So even though the state’s courts have essentially nullified the constitutional right to arms, Louisiana’s firearms statutes are not, in general, oppressive.

In the November 2012 referendum, Louisiana citizens will be given the opportunity to remedy the wrong decisions in Blanchard and Amos. Voters can adopt new constitutional language: “The right of each citizen to keep and bear arms is fundamental and shall not be infringed.  Any restriction on this right shall be subject to strict scrutiny.”

If adopted, the referendum would make two direct changes:

1. For the first time in Louisiana, concealed carry would be constitutionally protected. This makes sense, because in the 21st century (unlike in the 19th), concealed carry is most common way that Louisiana citizens exercise their right to carry handguns for lawful protection. Like most other states, Louisiana has a statutory system by which concealed carry permits are issued under fair and objective standards.

2. The judicially-imposed “legitimate purposes” test (the weakest test) of judicial review would be replaced by the strongest test: strict scrutiny. Under “strict scrutiny,” the burden of proof is reversed; the government bears the burden of proving that a gun control law is constitutional. To pass strict scrutiny, a law must be proven to serve a “compelling state interest” (not merely a “legitimate purpose”). Even if the law does advance a compelling state interest, the law is constitutional only if the government additionally proves that the law is “narrowly tailored” and is the “least restrictive means” to advance the compelling state interest.

Louisiana would be the first state to write the “strict scrutiny” standard into its constitution. This would become the model in other states for significantly strengthening protection of their own constitutional right to arms. So it is unsurprising that the proposed amendment is strongly supported by the National Rifle Association, the Louisiana Shooting Association, and Gov. Bobby Jindal, who is the most pro-right to arms Governor in Louisiana history, and a national leader on the issue.

Surprisingly, some people in Louisiana are opposing the Amendment on the grounds that it supposedly promotes anti-gun laws. For example, at this website, the author remains invincibly ignorant, even when the facts are patiently explained an attorney from the Louisiana Shooting Association. The website author wants to live in a world of absolute rights. Be that as it may, Louisiana today is not a state of absolute rights; it is a state where the right to arms essentially does not exist, as a matter of state constitutional law, as mis-interpreted by state courts. The amendment would remedy the misinterpretation, and make it drastically harder for future courts to uphold anti-gun laws.

A victory for the Louisiana referendum will profoundly strengthen the right to arms in Louisiana, and have significant positive effects nationally. A defeat would validate the actions of previously Louisiana judges in recent decades who deigned that the right to arms was unworthy of judicial protection.

In Minnesota, pro- and anti-gay marriage activists are fighting over political campaign disclosure laws, though this time the usual roles are reversed. On August 17, the Minnesota Campaign Finance and Public Disclosure Board ruled that the group working to defeat a constitutional amendment banning gay marriage does not have to disclose the name of a Catholic contributor to the “No” campaign.   ”John Doe,” who works for a Catholic organization in Minnesota, gave $600 to Minnesotans United for All Families, the main group opposing the amendment.  (I serve as Treasurer of the group.)  He told the Board that he feared the Church would fire him if it knew he made the donation.  Under state law, he was entitled to exemption from itemized disclosure of his donation by Minnesotans United if he could demonstrate that he faced ”loss of employment or other specified harms.” The Board determined he met that statutory standard. But supporters of the amendment, who have long claimed a need to shield the identity of their own donors, are saying that protection from harassment, intimidation, and retribution arising from amendment contributions should be a one-way street protecting only them.

The background to the Board’s decision provides some context for why John Doe sought anonymity.  In May 2011, the Minnesota legislature placed a constitutional amendment on the November 2012 ballot limiting marriage to opposite-sex couples. The Catholic Church hierarchy in Minnesota, led by Archbishop John Nienstedt of Minneapolis and St. Paul, has made passing the marriage ban a top priority.  So far, the Church has given more than $1 million to the “Yes” campaign, the largest donation on either side. But the Minnesota Church’s activism on the issue predates the campaign. In 2007, Nienstedt argued that those who “promote or encourage” homosexual acts cooperate in a ”grave evil” and are “guilty of mortal sin.”  In 2010, on the eve of statewide elections, Nienstedt advocated a constitutional gay marriage ban in DVDs distributed to 400,000 parishioners.  Last year, Nienstedt informed churches that he would brook no open disagreement with the Church’s support for the amendment. Speakers against the amendment have been “uninvited” from local churches when the hierarchy learned of their planned appearances. Earlier this year, Catholic  students were left in tears after approved speakers at a mandatory school assembly tore into gay marriage, comparing homosexual love to bestiality, according to a report in the Minneapolis Star Tribune.  Earlier this summer, Trish Cameron, a teacher at a Catholic school in Moorhead, Minnesota, was fired when she privately told her supervisors that she personally opposed the amendment, even though she did not promote her views in the classroom.

The Campaign Finance Board analyzed Doe’s request as follows (the full text of the decision can be found at the Board’s website under the tab, “Board Issues Order Regarding the Application of John Doe for an Exemption from Disclosure. “):

 The Board granted Mr. Doe’s request for an anonymous and confidential proceeding because it concluded that publication of Mr. Doe’s application, even if under a pseudonym, would expose Mr. Doe to the loss of his employment. For the same reason, this Analysis and Order are issued in terms intended to protect Mr. Doe’s confidentiality so that this document, itself, will not expose Mr. Doe to the loss of his employment. . . .

Mr. Doe is employed by a Catholic organization in a position where he may, from time to time, be required to represent the organization’s policies to the public and to other organizations. Mr. Doe has strong opinions regarding the pending marriage amendment ballot question. Mr. Doe’s opinions are in contrast to the official position of the Catholic Church in Minnesota, which is one of the main supporters of the amendment.

Mr. Doe’s job does not require him to advocate for or against the marriage amendment. Nor does Mr. Doe argue that he is entitled to an exemption solely because he is employed by a Catholic organization. Instead, Mr. Doe argues that because his job requires him to represent the Catholic organization’s policies to others from time to time, if his opposition to the marriage amendment was known, it would cause immense strain in his working relationships. Mr. Doe believes that this strain may be enough that his employment would be terminated....

Mr. Doe believes that Ms. Cameron’s situation provides evidence in support of his position. Mr. Doe points out that Ms. Cameron acknowledged her opposition to the marriage amendment only in private, yet her employment was terminated as a result. On the other hand, Mr. Doe, who sometimes represents a Catholic organization regarding policy, made a $600 contribution to an association diametrically opposed to the Catholic Church’s position on the same issue. Mr. Doe believes that the Catholic Church’s actions with respect to Ms. Cameron provide clear and convincing evidence that public disclosure of his opposition to the marriage amendment would expose him to the loss of his employment.

Minnesota Statutes section 10A.20, subdivision 8, requires an applicant to demonstrate by clear and convincing evidence that an exemption from itemized disclosure is needed to protect the applicant from exposure to the loss of employment or other specified harms. In this matter, the Board concludes that this requirement has been met.

In reaction to the decision, the “Yes” campaign dismissed the idea that gay-marriage supporters might need the same kind of anonymity that gay-marriage opponents have long claimed they needed.  Chuck Darrell, the spokesperson for the “Yes” campaign, told the Star Tribune: “[The] history of donor harassment on the marriage issue overwhelmingly shows that it is only the donors to traditional marriage who are harassed.” The anti-gay marriage campaign also criticized protection for the Catholic donor on its Facebook page on August 22.  The Yes campaign has effectively shielded the identity of most of its individual supporters by funneling their contributions through anti-gay marriage organizations like the Catholic Church, the Minnesota Family Council, and the National Organization for Marriage (NOM) — which then make bulk organizational contributions to the Yes campaign.  Under Minnesota campaign finance rules, these groups do not have to list individual donors in these circumstances.  NOM has gone to great lengths in other states to protect its donor lists.  So far there has been no word from the Catholic Church itself or from NOM about whether Doe should be able to have his identity protected.

George Will recently published a good Washington Post column on the ill-conceived People’s Rights Amendment, which Eugene Volokh and I blogged about here and here. Will points out several serious flaws in the proposal, and builds on some of the points we made:

Controversies can be wonderfully clarified when people follow the logic of illogical premises to perverse conclusions....

Joined by House Minority Leader Nancy Pelosi (D-Calif.), 26 other Democrats and one Republican, [Rep. James McGovern] proposes a constitutional amendment to radically contract First Amendment protections. His purpose is to vastly expand government’s power — i.e., the power of incumbent legislators — to write laws regulating, rationing or even proscribing speech in elections that determine the composition of the legislature and the rest of the government. McGovern’s proposal vindicates those who say that most campaign-finance “reforms” are incompatible with the First Amendment...

His “People’s Rights Amendment” declares that the Constitution protects only the rights of “natural persons,” not such persons organized in corporations...

McGovern stresses that his amendment decrees that “all corporate entities — for-profit and nonprofit alike” — have no constitutional rights. So Congress — and state legislatures and local governments — could regulate to the point of proscription political speech, or any other speech, by the Sierra Club, the National Rifle Association, NARAL Pro-Choice America or any of the other tens of thousands of nonprofit corporate advocacy groups, including political parties and campaign committees.

Newspapers, magazines, broadcasting entities, online journalism operations — and most religious institutions — are corporate entities. McGovern’s amendment would strip them of all constitutional rights. By doing so, the amendment would empower the government to do much more than proscribe speech. Ilya Somin of George Mason University Law School, writing for the Volokh Conspiracy blog, notes that government, unleashed by McGovern’s amendment, could regulate religious practices at most houses of

worship, conduct whatever searches it wants, reasonable or not, of corporate entities, and seize corporate-owned property for whatever it deems public uses — without paying compensation. Yes, McGovern’s scythe would mow down the Fourth and Fifth Amendments, as well as the First.

One can argue for the constitutionality of campaign finance regulations on several grounds. But doing so on the basis that people organized into corporate entities have no constitutional rights does indeed lead us down the dangerous path dramatically illustrated by the Peoples’ Rights Amendment.

Co-blogger Eugene Volokh has an excellent post on how the proposed People’s Rights Amendment threatens freedom of speech. But it’s important to recognize that the proposal goes far beyond denying free speech rights to entities organized as corporations. It would deny them all other constitutional rights as well. Section 1 of the proposed amendment states that the “the rights protected by this Constitution” are limited to “the rights of natural persons.” Notice that this is not limited to free speech rights or even to First Amendment rights generally. Section 2 emphasizes that “People, person, or persons as used in this Constitution does not include corporations, limited liability companies or other corporate entities established by the laws of any state, the United States, or any foreign state.” Notice that this is not limited to for-profit corporations lobbying for their narrow self-interest. It applies to all corporations of any kind, including nonprofits, media corporations, churches, and others.

Thus, the PRA would deny all constitutional rights to all entities organized as corporations. If the Amendment passes, government would be free to search corporate-owned premises at will, restrict freedom of religion at houses of worship owned by corporate entities (which includes most churches), condemn corporate-owned property for private uses and without paying compensation, and so on. This result is consistent with the logic of those who criticize the Citizens United decision on the grounds that corporations don’t have First Amendment rights because they aren’t “real” people. If this reasoning is correct with respect to the First Amendment, it surely applies to other constitutional rights too. But even dedicated supporters of campaign finance regulations might wonder whether those laws are so wonderful that their protection justifies the sweeping restrictions on all other constitutional rights embodied in the People’s Rights Amendment.

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

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

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

In this recent post, University of Texas constitutional law professor Sanford Levinson calls for a reassessment of our federal and state constitutions:

[I]nstead of being fixated on what the Constitution means, one instead asks whether the Constitution, given a stipulated meaning that may in fact not be at all difficult to discern, is in fact wise. One might call this a “Jeffersonian” approach to the Constitution inasmuch as it invites relentlessly asking whether the Constitution is serving us well. This is, incidentally, an especially important question if we agree on constitutional meaning. Disagreement, after all, suggests the possibility of legitimately interpreting the Constitution to achieve what we might describe as “happy endings.” The situation is decidedly different, however, if we agree on constitutional meaning, but believe that it sets us up less for happy endings than for driving over a cliff....

I have recently published a new book, Framed: America’s 51 Constitutions and the Crisis of Governance (Oxford University Press), that focuses almost exclusively on the wisdom of constitutional structures that are, almost without exception, obvious in their meaning. Evidence of this obviousness is that they are rarely brought up in law school classes precisely because there is nothing to “argue about” in the only sense that lawyers and their professors define that term, which involves debates about meaning...

An important theme of the book is that there are fifty-one constitutions within the United States if one takes into account the fifty states. More to the point, these state constitutions can teach valuable lessons of their own. Some of them, as with the national constitution, may offer cautionary lessons inasmuch as they help to explain the dysfunctionalities of given state politics.

I agree with much of what Sandy says in this post. We should not blindly venerate the Constitution. And we should give serious consideration to the possibility that some parts of it are flawed or even dysfunctional. As I explained in this post, a few parts of the Constitution are indefensible and some others are at least open to serious question. Sandy is also right that legal scholars should pay more attention to the effects of the clear “hardwired” parts of the Constitution and to state constitutional law. The latter is sadly neglected by most constitutional law academics, and rarely gets its due in the law school curriculum. Hopefully, Sandy’s important book will help change that.

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

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

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

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

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

My final post about my book, Constitutional Cliffhangers, will deal with fixing and preventing constitutional cliffhangers.

One of my pet peeves is when an article identifies a potential constitutional problem and then concludes blithely that the best solution is just to amend the Constitution. Even passing a statute is tough. Heck, just getting Congress’s attention is hard. A few years ago, I wrote an article about a 50-square-mile swath of Idaho where (according to my theory) people can commit crimes with impunity. Orin posted something about it here and it went viral. A bestselling novel was even written about it. And yet, of the scores of members of Congress I wrote to trying to get them to close the loophole, only a couple even acknowledged my letters.

My book thus wrestles with the very real barriers to fixing the traps I identify, either before or after the nation steps in them. The final chapter of my book offers a lengthy analysis along these lines. I’m not going to say much about that in this post, other than to talk a bit about my conclusion that some cliffhangers are not really worth trying to fix in advance.

There are two kinds of cliffhangers: those in which the main problem is a bad result, and those in which the main problem is uncertainty. An example of the former is Chapter 1, where a sitting president might get prosecuted (with the attendant disruption) or might not (with the attendant injustice). The fact that, in the meantime, presidents and prosecutors go about their days unsure of the answer is much less of a problem. The chapters on self-pardons and late impeachment fit in this category as well. Legislation requires energized consensus, and there wouldn’t be one. Best, then, to just wait for an actual case to deliver a final resolution: either an acceptable result or an unacceptable one that motivates Congress to act.

When the problem is uncertainty, by contrast, the case for proactivity is stronger. In Chapters 3 and 4, constitutional uncertainty could rip the country in half, with two people claiming presidential power, issuing contradictory orders to the military, and purporting to fire cabinet members. The cost of resolving such cliffhangers “the hard way” is so high that it should soften opposition and make it easier — albeit still not easy — to reach a consensus and fix things ahead of time.

The main thing I want to talk about in this last post, though, is better drafting. There is no way to go back in time to 1787 and help the Framers write a better Succession Clause, or to 1947 to help the Twenty-Second Amendment’s drafters tighten up their wording, but Congress will probably draft procedural constitutional amendments in the future. I have some modest suggestions for drafting them better.

The rules and procedures surrounding the presidency are no place to be casual. These provisions should be hyper-precise, even if it means losing some of the public accessibility that is otherwise ideal for the Constitution’s language. Yesterday’s sad tale of the attempt to simplify the Twenty-Second Amendment showed that sacrificing exactitude for punchiness can cost you both.

The process of drafting technical amendments is an odd combination of painful slowness and reckless speed. It typically has taken years and multiple attempts to get a proposed constitutional amendment introduced, through committee in one house of Congress, onto the floor, approved by two-thirds, through committee in the other house, onto the floor there, and approved by two-thirds there. Each step presents an opportunity to change the text.

Especially at the final stages, though, there is a strong sense of impatience and urgency. Having gotten as far as they have, proponents are reluctant to allow anything that might stop the proposal’s forward progress. Moreover, having fought so much and for so long over the details, they distrust any attempt to unravel their craftsmanship.

To a large extent, they are right. Often, proposed last-minute changes represent arguments that were already considered at the committee level and either were shot down there or were the subject of a carefully wrought compromise. Even to the extent that some changes are new, any proposal that stops long enough to get pecked at by hundreds of individual members of Congress will have a hard time ever getting through. If the proposed change is picky and it concerns an unlikely series of events — the stuff of constitutional cliffhangers — it will be hard to defeat the floor leaders’ powerful natural desire to ignore it.

But once there is a consensus on an amendment’s concept, execution, and details, an argument that is solely about the text should not be so disfavored. To be sure, when somebody on the floor of the Senate identifies a phrase that could be drafted better and proposes redrafting it, that is inimical to the goal of final passage. Sending the language back through committee could take weeks or months — an unavailable luxury near the end of a congressional term. Drafting by the full Senate on the spot doesn’t work very well either. Still, sometimes a late change really is called for. Realistically, it’s the last chance; once Congress has approved a proposed amendment, it has no real opportunity to do any redrafting.

Congress thus needs a way to identify mistakes earlier in the process, and to fix late-discovered mistakes in a way that doesn’t unravel years of careful work. The key is to separate the process for agreeing on an amendment’s purpose from the process for finalizing the text. I have a modest suggestion: add two steps to the process, drawing upon wisdom in the general public and using modern collaborative technology to perform a sort of wiki government.

When people or committees have been working with a text for too long, it becomes difficult for them to see the problems with it. A fresh pair of eyes — or better yet, millions of fresh pairs — can be very valuable. Consider the analogy of the very successful use of open-source collaboration to write and debug software. Constitutional amendments can be complicated, but they are less so than software (or than statutes, where this technique has been tried in some places, with mixed results). Thus, there is good reason to think that with the right collaborative technology, interested members of the public would be very helpful at “debugging” and optimizing proposed constitutional amendments.

Once a congressional committee has reached a final, clear consensus on the concept, execution, and details of an amendment, it should give the text one more run-through, to make any improvements to the text that better vindicate that consensus. The committee could take, say, five days to optimize the text with the help of an online process through which interested members of the public could propose, discuss, and rate alternative phrasings.

Working together, the interested public would quickly discover previously unnoticed loopholes and pitfalls, identify the best ways to prevent them, and generally optimize the text. Textual optimization is not easy, but that’s precisely the point. Members of Congress and their staffs, even at their most able, intelligent, and hardworking, cannot match the “wisdom of crowds.”

The “crowd” might find bugs that affect the details in ways the committee had not clearly addressed, but the collaborative process could provide multiple optimized texts, each one reflecting a different set of substantive choices. The committee would still vote on the substantive choices; the public process would just flag issues and offer good language to deal with them. (The committee could get public input at an earlier stage, when it is discussing concept, execution, and details, but there is reason to doubt that this would work nearly as well.)

Once the proposal moves from committee to the full House or Senate, there might be new debate about the concept, execution, and details. Changes at this stage would require changes to the text that the first round of public input might not have covered. But at that point, a similar (and shorter) public process could help to smooth the text over again. Because the textual changes would be working toward a common goal, and because it would not entail rejecting, or tabling, or sending the item back to committee, the public process would not need to slow things down much at all.

Congress would still maintain its voting power, of course. The public would have influence, not direct authority. But public influence would be a welcome addition to the process, even aside from its effectiveness. The Constitution represents the voice of the People with a capital P, not just that of their representatives, in a way that is not the case in the less concise, less accessible world of statutes. When it comes to writing new words into the Constitution, this sort of public participation would have a nice symbolic value as well.

Vladimir Putin’s recent announcement that he intends to return to the presidency after the 2012 election has been rightly denounced as a deepening of authoritarianism in Russia. Having effectively repressed Russia’s opposition parties and media, Putin is now consolidating his position as a dictator. Barring some sort of sudden collapse of his regime (which is by no means impossible), he can now rule into the 2020s with little or no effective opposition.

It’s worth remembering that Putin had to leave the presidency in the first place because Russia’s 1993 Constitution bans presidents from serving more than two consecutive terms. Therefore, he turned the office over to his handpicked successor Dmitri Medvedev, who will now become prime minister after Putin’s nearly inevitable victory in the 2012 election, from which most opposition parties are effectively excluded from participating. Putin’s return to the presidency cuts off any hope that the Russian government will continue Medvedev’s moves towards modest political and economic liberalization.

The whole sorry situation highlights the wisdom of the US Constitution’s 22nd Amendment, which not only bars presidents from serving more than two consecutive terms, but also forbids two-term presidents from ever holding the office again in the future. That prevents American presidents from pulling off the trick that Putin used with Medvedev – leaving a loyal flunky in power for four years and then returning to office. It thereby makes it much harder for any one man to consolidate dictatorial dominance.

Obviously, there are many other differences between the US and Russian political systems that make authoritarianism a lesser danger in the former. Nonetheless, the power of the modern presidency is great enough that a popular leader who could serve indefinitely might consolidate enormous power and gradually undermine democracy. At the state level, term-limited governors who are allowed to return to office later have sometimes used relatives or friends as placeholders for a term until they can return to power. George Wallace, for example, used his wife Lurleen.There is no reason why a president could not adopt the same tactic.

In the Russian case, Medvedev might well have taken a more liberal and independent line if he knew that Putin could not come back. Even if Medvedev did not do so, other Russian political elites might have acted differently if not for the spectre of Putin’s return hanging over them. At the very least, it would have been harder for Putin – or anyone else – to concentrate power in the hands of one man and the narrow clique surrounding him. In theory, Putin might have been able to just ignore the Constitution in 2008 and stay in power anyway. But doing so would have undermined his legitimacy with the West, and probably at home as well. That’s why he chose to leave office in 2008 rather than stay on illegally.

Despite Putin’s imminent return to the presidency, his power is not completely secure. Even with government control of much of the media, public opinion is starting to turn against him and especially his government. If the price of oil falls, Russia’s oil-dependent economy will decline with it, and other elites might then find it in their interest to turn against the regime. Putin’s government is not nearly as brutal and oppressive as its Soviet predecessor, and there are still many active opposition groups who could take advantage of the government’s difficulties. For the time being, however, Putin has successfully consolidated his authoritarian regime. And his ability to return to the presidency after a four year hiatus is one of the reasons why.

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

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

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

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

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

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

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

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

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

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

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

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

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

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 infallilble, generations of Americans have been able to change the Constitution in fundamental ways, ending slavery, guaranteeing equality, and ensuring a vibrant democracy that respects the right to vote free from discrimination. But none of these points, in fact, cut against the Pledge. On the contrary, with the Tea Party seizing on Article V to demand repeal of numerous Amendments ratified by the American people over the full sweep of our history, it is critical for the American people to understand the full arc of our constitutional story and to take our Constitution back.

I am pleased that CAC wants to continue this discussion, and of course we’re always happy to be called “prominent and well-respected.” I fear, however, that Gans’ defense of the Pledge fails and that he posits greater agreement between us than actually exists. If, as he now writes, Article V of the Constitution is “incredibly important” and the Constitution is – even now – “not infallible,” then the Pledge is wrong to call for support of “the whole Constitution” and to attack the Tea Party activists for having the temerity to want to change some parts of it. That was the main point of my original post criticizing the Pledge: that some parts of the present Constitution are indefensible (including by the standards of the political left) and others are at least reasonably debatable. We should not denounce the Tea Party – or anyone else – merely because they don’t support “the whole Constitution.”

In addition, I am perfectly willing to defend some important aspects of “the Tea Party’s vision of the Constitution.” As I explain in this article, I think the Tea Partiers are absolutely right to argue that the powers of the federal government should be far more limited than current Supreme Court jurisprudence allows. Indeed, I have been advocating stricter enforcement of constitutional limits on federal power since long before there was a Tea Party. I also agree with the view of many Tea Partiers that the Court has failed to provide anything remotely approaching adequate protection for constitutional property rights and economic liberties. Many other conservative and libertarian constitutional law scholars – both “prominent” and otherwise – hold similar views.

As Gans notes in regards to the effort to repeal the Seventeenth Amendment, I do not agree with the Tea Party on every constitutional issue. Indeed, it would be impossible for me to do so, since there is considerable internal disagreement in the movement. Not all Tea Partiers support repeal of the Seventeenth Amendment, for example, and it’s not even clear whether a majority do so. But I do think that the rise of a popular movement emphasizing stronger enforcement of constitutional limits on federal power is a positive development, even if I don’t agree with all of its specific proposals.

Finally, it’s worth noting that Gans is wrong to describe Jonathan and myself (and probably also Eugene) as “conservatives.” We are in fact libertarians. That distinction matters here because there are some important differences between libertarian and conservative views on constitutional reform. For example, few if any libertarians support efforts to repeal the birthright citizenship provision of the Fourteenth Amendment. The backing for that idea comes almost entirely from conservatives, because the latter tend to be more wary of immigration than libertarians are.

UPDATE: It’s not entirely clear from the context whether Gans meant to describe Jonathan Adler as a conservative in addition to Eugene and myself. If he did not, then I retract that part of my critique of his post.

UPDATE #2: Jonathan Adler has responded to the part of Gans’ post criticizing him here (you may need to scroll down to find his comment).

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.

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.

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.