The Volokh Conspiracy

Colorado’s Constitution (Art. X, sect. 20) is the Taxpayer’s Bill of Rights. Like similar provisions in other states, Colorado’s TABOR requires voter approval for tax increases, and for most spending increases that exceed inflation plus population growth. Several state legislators have filed suit in federal court to have TABOR declared unconstitutional. Allegedly, requiring voter approval for tax or spending increases violates Article IV, sect. 4 of the U.S. Constitution, which provides: “The United States shall guarantee to every State a Republican Form of Government. . . .”

In federal district court, the Colorado Attorney General filed a motion to dismiss Kerr v. Hickenlooper, based on the argument that RFOG claims are non-justiciable. That motion was denied, and the case is currently on interlocutory appeal to the 10th Circuit.

On Friday, I filed an amicus brief on behalf of the Independence Institute and the Cato Institute. The brief draws heavily from Rob Natelson’s article, A Republic, Not a Democracy? Initiative, Referendum, and the Constitution’s Guarantee Clause. 80 Texas Law Review 807 (2002). Natelson shows that the Founders consistently used the words “republic” or “republican” to refer to governments which had direct democracy. As the brief summarizes an analysis of every known Founding-Era dictionary: “Not one of these sixteen definitions from nine different Founding-Era definitions contained the least suggestion that a republic had to be purely representative.”

Moreover, the Supreme Court, in Luther v. Borden and Minor v. Happersett, has stated that the admission of a State into the Union is a conclusive determination that the State, at the time of admission, had a Republican Form of Government. Significantly:

In 1907, Congress admitted Oklahoma into the Union, although Oklahoma’s Constitution contained very strong provisions for initiative and referendum (Okla. Const., art. V, §§1-7) and provided for a mandatory referendum before the legislature could incur debt. Id. art. X, §25. Similarly, in 1912, Congress admitted New Mexico with a constitution that specifically contemplated enactment of laws, including fiscal measures, by citizen initiative. N.M. Const., art. XIX, §3.

Opponents of direct democracy rely heavily on a line from James Madison’s Federalist no. 10. They are misreading the document, however. Madison was criticizing pure democracy (no representation, no magistrates). A fuller examination of The Federalist shows that direct democracy was an accepted feature of what was considered to be a “republic.” See Federalists 6, 39, 43, 55, 63.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Former Speaker and presidential hopeful Newt Gingrich has been turning heads with his comments on “judicial activism” and the “Arrogant overreach” of federal judges. From the WSJ:

Republican presidential candidate Newt Gingrich came out swinging Saturday against the nation’s legal system, pledging if elected to defy Supreme Court rulings with which he disagrees and declaring that a 200-year-old principle of American government, judicial review to ensure that the political branches obey the Constitution, had been “grossly overstated.”

Courts “are forcing us into a constitutional crisis because of their arrogant overreach,” Mr. Gingrich told reporters in a Saturday conference call. He repeatedly blasted federal judges for imposing “elitist opinion” on the rest of the country. . . .

“Do we really believe that all the intricate systems that we have created should come down to one lawyer?” he said. “The courts are too aggressive, and the courts have been trying to impose an elitist value system on a country that’s inherently not elitist.”

He pointed to a position paper on his campaign website, which states that “should the Supreme Court issue decisions during a Gingrich administration that unconstitutionally empower federal judges with certain national security responsibilities, such decisions will be ignored.”

Here is the campaign white paper to which Gingrich referred.

Asked about these quotes on CBS’ Talk of the Nation this morning, Gingrich did not back off, and suggested that disputes among the three branches on constitutional questions should be decided “two out of three.”

Citing what he describes as “extreme behavior” on the party of the judicial system, Gingrich proposes a system wherein “it’s always two out of three.”

“If the Congress and the court say the president is wrong, in the end the president would lose. And if the president and the court agreed, the Congress loses,” said Gingrich. “The founding fathers designed the Constitution very specifically in a Montesquieu spirit of the laws to have a balance of power – not to have a dictatorship by any one of the three branches.” . . .

Gingrich conceded today that a number of legal experts would not necessarily be comfortable with his take on the separation of power within the American government. But, he says, that’s the point.

“I think many lawyers will find this a very frightening idea,” he said. “They’ve had this run of 50 years of pretending judges are supreme, that they can’t be challenged. The lawyer class defines America. We’ve had rulings that outlawed school prayer, we’ve had rulings that outlawed the cross, we’ve had rulings the outlawed the 10 Commandments, we’ve had a steady secular drive to radicalize this country away from all of its core beliefs.”

Gingrich’s proposals have drawn substantial criticism, including from the Right. On NRO’s Bench Memos, Ed Whelan and Matt Franck tag team the former Speaker’s proposal to abolish judgeships as a way of reining in wayward courts: 1 (Whelan), 2 (Franck), 3 (Whelan), 4 (Franck).

It sounds like a good Civ Pro 101 (or, perhaps, Cyberlaw 101) exam hypothetical :

“Your client, Scott Roberts, a Virginia resident, purchased a Pontiac engine block from Kauffman Racing Equipment, L.L.C., an Ohio-based company that builds automotive equipment and sells it to the public. Roberts purchased the engine block after viewing it on Kauffman’s website. Roberts did not travel to Ohio; indeed, he has never been to that State. After Roberts received the engine, he found it defective, but after various exchanges of communications between Roberts and Kauffman, Kauffman refused to refund Roberts’ purchase price. Roberts then began a campaign of posting comments criticizing Kaufmann on several websites related to automotive equipment. Kauffman alleges that these comments constitute defamation and intentional interference with contracts and business relationships. Question: Based on these facts alone, and assuming no other contacts between Roberts and the state of Ohio, can an Ohio state court exercise personal jurisdiction over Roberts?”

It’s not a hypothetical, but a real case, and Ohio Supreme Court answered in the affirmative, relying on my 3rd-least-favorite Supreme Court case of all time, Calder v. Jones. In Calder, the Court allowed a California court to exercise personal jurisdiction over the authors of an article that a California resident, Shirley Jones, alleged to be defamatory. The authors of the article lived in Florida, and had no contacts with the State of California other than (a) the “knowledge” that Ms. Jones lived in California (and that therefore the “harm” would be felt in California) and (b) the distribution of the allegedly defamatory comments in California.

It’s absurd. A doctrine that allows a finding that you have had the requisite “minimum contacts” with New Mexico sufficient to satisfy the Due Process Clause simply on the grounds that you have said nasty things – even defamatory things – about someone whom you happen to know lives in New Mexico has always struck me as profoundly odd and misguided, and it has given lower courts fits over the years. Among other peculiarities, basing the inquiry on what the defendant does or does not know brings you into a hopeless swamp of uncertainty; it’s fair to haul me into a New Mexico court if I know that the mail order place where I buy my guitar strings is located in New Mexico, but not if I don’t know that? And that makes sense because . . .?

It would be nice to take Calder out of its misery once and for all. The folks over at Mayer Brown, with the Yale Supreme Court clinic, are (more or less) trying to do that; they have submitted a petition for certiorari in the Roberts v. Kauffman case. The petition’s a nice piece of work – if any of you happen to be studying these issues for that Civ Pro 101 or Cyberlaw exam, you could do a lot worse than reading it over for a very clear statement of what the law in this area looks like. I’m not enough of a Court-watcher to know whether the Court would, if it grants cert, do the sensible thing and overrule (or at least narrow into non-existence) the Calder doctrine – the prospect of the Court hearing the case and re-affirming (or even, heaven forbid, strengthening) the doctrine does, I admit, make me a little nervous (though maybe someone who knows the predilections of our Justices better than I do can reassure me on that score).

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 amend constitutions. The vast majority of the amendments in question were enacted by a majority vote referendum, similar to that which led to the passage of California’s Proposition 8. When and if public opinion in those states shifts decisively in favor of gay marriage, advocates can easily reverse those amendments by sponsoring a referendum initiative of their own. To be sure, such an effort requires funding and organization. But gay marriage advocates are reasonably strong in both areas. For these reasons, the anti-gay marriage amendments will ultimately cause no more than brief delays in the enactment of gay marriage once majority opinion comes to support it.

On a less important note, I think Balkin also overstates the importance of Mehlman’s and Bush’s role in the passage of these amendments. Given the massive outcry that the Massachusetts Supreme Judicial Court’s 2003 pro-gay marriage decision caused among social conservatives, it is likely that conservative groups would have tried to put as many amendments on state ballots as they could, even absent Mehlman’s efforts.

Balkin also criticizes Mehlman for “us[ing] moral opposition to homosexuality as a lever to get out the vote” in 2004, despite the fact that he was a supporter of gay marriage himself. Although one can theoretically be opposed to gay marriage without also opposing homosexuality as such, it is very likely true that most of those who oppose the former do so in large part because of their opposition to the latter. That said, I’m not sure that Mehlman is as blameworthy as Balkin suggests. In politics, it is not unusual to support one candidate over another despite the fact that the preferred candidate has objectionable views on some issues. Perhaps Mehlman believed that Bush’s superiority over John Kerry on other issues was great enough to justify doing all he could to elect the former despite the likely negative impact on gay marriage. Maybe he also believed (as I do) that these amendments would not have much longterm effect. Like most political operatives, Mehlman is no saint. But he may not be as big a sinner as Balkin suggests.