The Institute for Justice (IJ) fights for the little guy. IJ has a great track record of standing up to government when they refuse the right to earn a living here in the land of opportunity. Clark Neily is a senior attorney for IJ and has been on the front lines fighting for basic economic freedoms that Americans are promised in our constitution. As a result, he’s seen how our courts have failed in protecting our freedoms. In this speech given at the Independence Institute offices on April 16th, Clark discusses his new book, Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government.
Archive for the 'Constitutional History' Category
The other day I posted 4 of the 7 videos of the Article V Symposium that Rob Natelson moderated/MC’d. Below you’ll find the 3 missing videos for the whole collection!
Here are Rob’s opening remarks (8 minutes)
Author Bob Berry outlines several amendment ideas (20 minutes)
Michael Farris’ remarks (17 minutes)
Here’s the roundtable discussion (48 minutes)
Senator Kevin Lundberg and Representative Lori Saine’s resolution (13 minutes)
Questions and Answers (33 minutes)
Here’s Mark Meckler’s closing comments (11 minutes)
Our senior fellow in Constitutional Jurisprudence Rob Natelson was asked to be the moderator for this Article V “Convention for Proposing Amendments” symposium. Below you’ll find Rob’s remarks and the rest of the symposium for your viewing pleasure.
Here are Rob’s opening remarks (8 minutes)
Author Bob Berry outlines several amendment ideas (20 minutes)
Here’s the roundtable discussion (48 minutes)
Here’s Mark Meckler’s closing comments (11 minutes)
Opponents of a Convention of States long argued that there was an unacceptable risk a convention might do too much. It now appears they were mistaken. So they increasingly argue that amendments cannot do enough.
The “too much” contention was first promulgated in modern times by apologists for the liberal, ultra-activist Earl Warren/Warren Burger Supreme Court. Specifically, these apologists feared a convention might propose amendments to reverse their favorite judicial decisions. Their tactic was to claim that an amendments convention, even if legally limited, could turn into a “con-con” that disregarded its limits, repealed the Bill of Rights, and restored slavery. (Yes, some of them really said that.)
The liberals who promoted this scenario must have been amused when some deeply conservative groups fell into the trap and began using the same argument to kill conservative amendments.
The “too much” line, however, has been losing its persuasiveness. New research shows it to be legally and historically weak, and Americans increasingly are pondering the very real dangers of not resorting to the convention process the Founders bequeathed to us.
Hence the shift to the “too little” argument. Its gist is that amendments would accomplish nothing because federal officials would violate amendments as readily as they violate the original Constitution.
Opponents will soon find their new position even less defensible than the old. This is because the contention that amendments are useless flatly contradicts over two centuries of American experience — experience that demonstrates that amendments work. In fact, amendments have had a major impact on American political life, mostly for good.
* * * *
The Framers inserted an amendment process into the Constitution to render the underlying system less fragile and more durable. They saw the amendment mechanism as a way to:
* correct drafting errors;
* resolve constitutional disputes, such as by reversing bad Supreme Court decisions;
* respond to changed conditions, and
* correct and forestall governmental abuse.
The Framers turned out to be correct, because in the intervening years we have adopted amendments for all four of those reasons. Today, nearly all of these amendments are accepted by the overwhelming majority of Americans, and all but very few remain in full effect. Possibly because ratification of a constitutional amendment is a powerful expression of popular political will, amendments have proved more durable than some parts of the original Constitution.
Following are some examples:
Correcting drafting errors
Although the Framers were very great people, they still were human, and they occasionally erred. Thus, they inserted in the Constitution qualifications for Senators, Representatives, and the President, but omitted any for Vice President. They also adopted a presidential/vice presidential election procedure that, while initially plausible, proved unacceptable in practice.
The founding generation proposed and ratified the Twelfth Amendment to correct those mistakes. The Twenty-Fifth Amendment addressed some other deficiencies in Article II, which deals with the presidency. (My reference to a particular amendment does not mean I agree with every provision in it.)
Both the Twelfth and Twenty-Fifth Amendments are in full effect today.
Resolving constitutional disputes and overruling the Supreme Court
The Framers wrote most of the Constitution in clear language, but they knew that, as with any legal document, there would be differences of interpretation. The amendment process was a way of resolving interpretative disputes.
The founding generation employed it for this purpose just seven years after the Constitution came into effect. In Chisholm v. Georgia, the Supreme Court misinterpreted the wording of Article III that defines the jurisdiction of the federal courts. The Eleventh Amendment reversed that decision.
In 1857, the Court issued Dred Scott v. Sandford, in which it erroneously interpreted the Constitution to deny citizenship to African Americans. The Citizenship Clause of the Fourteenth Amendment reversed that case.
In the 1970, the Court decided Oregon v. Mitchell, whose misinterpretation of the Constitution created a national election law mess. A year later, Americans cleaned up the mess by ratifying the Twenty-Sixth Amendment.
All these Amendments are in full effect today, and fully respected by the courts. Some argue, in fact, that the Supreme Court actually over-enforces the Eleventh Amendment — a contention with which I do not agree.
Responding to Changed Conditions
The Twentieth Amendment is the most obvious example of a response to changed conditions. Reflecting improvements in transportation since the Founding, it moved the inauguration of Congress and President from March to the January following election.
Other amendments as well were wholly or partially triggered by changed conditions. The Seventeenth Amendment, which transferred elections for Senators from the state legislatures to the people, is still controversial in some quarters. But it was adopted only after social changes had caused widespread breakdown in the prior election system. (That is why the state legislatures themselves sought the change.) With the partial exception of Mark Levin, few if any of its critics address the very real problems the Seventeenth Amendment was designed to solve.
Similarly, the Nineteenth Amendment, which assured women the vote in states not already granting it, was passed for reasons beyond simple fairness. When the Constitution was written, overwhelming domestic duties and very short female life expectancies effectively disqualified most women from politics. During the 1800s, medical and technological advances made possible by a vigorous market economy improved the position of women immeasurably and rendered their political participation far more feasible. Without these changes, I doubt the Nineteenth Amendment would have been adopted.
Needless to say, the Seventeenth, Nineteenth, and Twentieth Amendments all are in full effect many years after they were ratified.
Correcting and forestalling government abuse
Avoiding and correcting government abuse was a principal reason the Constitutional Convention unanimously inserted the state-driven convention procedure into Article V. Our failure to use that procedure helps explain why the earlier constitutional barriers against federal overreaching seem a little ragged. Before looking at the problems, however, let’s look at some successes:
* In 1992, we ratified the Twenty-Seventh Amendment, 203 years after James Madison first proposed it. It limits congressional pay raises, although some would say not enough.
* In 1951, we adopted the Twenty-Second Amendment, limiting the President to two terms. Eleven Presidents later, it remains in full force, and few would contend it has not made a difference.
Now the problems: Because we have not used the convention process, the first ten amendments (the Bill of Rights) remain almost the only amendments significantly limiting congressional overreaching. I suppose that if the Founders had listened to the “amendments won’t make any difference” crowd, they would not have adopted the Bill of Rights either. But I don’t know anyone today who seriously claims the Bill of Rights has made no difference.
In fact, the Bill of Rights continues to have a huge impact more than two centuries after adoption. The courts enforce, to at least some extent, all of the original ten except, arguably, the Ninth. Some, such as the First Amendment, have been “super enforced.” Others, such as the Second and Fourth are under relentless pressure, but remain far better than nothing at all.
What about the Ninth and Tenth? They are certainly under-enforced today, but we must remember that they enjoyed full effect for nearly 150 years. No reasonable person would classify 150 years of effect as anything but a stellar political success. Even today, the Tenth retains some of its power, as Congress learned when the Supreme Court upended its effort to corral all the states into the Obamacare Medicaid expansion.
“I have but one lamp by which my feet are guided; and that is the lamp of experience,” Patrick Henry said. “I know of no way of judging of the future but by the past.”
In this case, the lamp of experience sheds light unmistakably bright and clear: Constitutional amendments work.
A federal court of appeals has just vindicated the Second Amendment right to keep and bear arms in a big way. And II’s own Dave Kopel was largely responsible.
California denied citizens the right to carry firearms outside their homes, unless they obtained a concealed weapons permit. But to get such a permit, citizens had to demonstrate “good cause”—and fear for one’s personal safety was not sufficient to show “good cause.” The effect of the statute was to allow the local sheriff to deny the right to bear arms to all but a favored few.
On February 13, the U.S. Court of Appeals for the Ninth Circuit (the largest of the nation’s federal court of appeals districts) issued Peruta v. County of San Diego. It held that the California statute violated the Second Amendment. In doing so, the court cited one of Dave Kopel’s articles. But that citation went nowhere near showing the extent of his influence.
To clarify the historical understanding of the term “bear arms,” the Court spent much of its opinion citing and discussing obscure 19th century cases and commentaries on the right to keep and bear arms. It was Dave Kopel who first re-introduced these materials to public notice.
In 1998, Dave wrote an article called The Second Amendment in the Nineteenth Century, 1998 B.Y.U. L. Rev 1359. This was a massive compendium of cases, commentaries, and other materials. (By “massive,” I mean 188 pages, roughly three times the size of the typical law journal article.)
This article placed into the legal databases for the first time the full story of how the public viewed the Second Amendment during the century after the Constitution was ratified. By collecting and publishing this material, Dave made the collection readily accessible to later commentators, who built on his work. He also thereby made this material available to the courts.
The Court of Appeals cited Dave’s article in Peruta, but didn’t fully explain how that contribution made possible much of the later work that the court also cited. Pioneers don’t always get the credit they deserve.
This incident is only the latest example of how II, although a Colorado think tank, also advances freedom nationally and internationally.
When politicians start talking about “bi-partisan cooperation,” smart citizens get nervous. It usually means another transfer of freedom and taxes to the federal government at the expense of individuals, families, localities, and states.
Case in point: a Denver Post op-ed by two U.S. Senators (or their staffs) on their latest “bipartisan” deal. The Senators are Michael Bennett (D.-Colo.) and Richard Burr (R.-N.C.). The op-ed is pure political blather, a haze of almost incomprehensible feel-good rhetoric. But the upshot is this: The two distinguished solons are very proud of themselves for managing yet another transfer of authority from the states to the federal government.
You can read the op-ed here. As you can see, it is filled with mind-deadening phrases refined by pollsters and focus group research: “we have worked with,” “bipartisan,” “ensure the safety,” “stakeholders,” “pragmatism and hard work,” etc., etc.
As for the law itself, it has the kind of title we have come to expect from Congress in recent years: The Drug Quality and Security Act. (Doesn’t that title make you feel good?) Of course, many of these labels have about as much correspondence to the real world as the “Patient Protection and Affordable Care Act.”
The text of the measure is almost impossible for anyone without legal training to understand. (You can see for yourself here.) Essentially, however, it transfers to the federal government areas of drug compounding and distribution traditionally controlled by the states. It imposes new obligations, licenses, and/or paperwork on manufacturers, repackagers, wholesalers, and your local pharmacy. It takes major steps toward federal control of our state pharmacy boards, and restricts state regulatory choices in the areas it covers.
The bill is also about revenue: It authorizes the federal government to collect various new “fees.” (I put the word in quotation marks because those “fees” are really taxes.)
Like the op-ed, the text of the law is filled with mind-numbing, and sometimes deceptive, language. Consider this provision:
Nothing in this section shall be construed to preempt State requirements related to the distribution of prescription drugs if such requirements are not related to product tracing as described in subsection (a) or wholesale distributor and third-party logistics provider licensure as described in subsection (b) applicable under section 503(e) (as amended by the Drug Supply Chain Security Act) or this subchapter (or regulations issued thereunder).
At first, you might think the bill leaves state regulations in effect. But look closer: The provision really is about where federal law does preempt: “requirements . . . related to product tracing . . .. [and] wholesale distributor and third-party logistics provider licensure.” Another passage makes it clear that much state flexibility is gone:
Beginning on the date of enactment of the Drug Supply Chain Security Act, no State or political subdivision of a State may establish or continue any standards, requirements, or regulations with respect to wholesale prescription drug distributor or third-party logistics provider licensure that are inconsistent with, less stringent than, directly related to, or covered by the standards and requirements applicable under section 503(e).
The measure does not set forth its constitutional justification. In other words, it does not cite any of Congress’s enumerated powers as the basis for the authority it claims. Occasional mentions of “commerce” suggest that it relies on the Constitution’s much-abused grant of power to “regulate Commerce . . . among the several States.” In fact, however, the bill sweeps deeply into in-state commerce and into activities that really are not “commerce” at all.
The op-ed touts the bill’s “strong [meaning "intrusive"], uniform” [meaning "centralized"] standards. But the Constitution limited congressional powers precisely to protect us from too many centralized standards. The federalism created by our Constitution is about local control, responsiveness to local preferences, better government, diversity, and the ability of each state to learn from the experience of others. Moreover, as the Supreme Court has pointed out repeatedly, federalism is also about fracturing power to preserve freedom.
Our Founders and generations of Americans have concluded that human freedom and the other benefits of federalism are worth the occasional inconvenience arising from lack of uniformity. This should be particularly true today, when technology has reduced both the benefits of uniformity and the costs of diversity.
“The Drug Quality and Security Act,” however, appears to have been the product of one of those classic deals among politicians and lobbyists. The two Senators assure us that all the “stakeholders” (i.e., groups with lobbyists) were consulted.
But were you?
Just to show you that hypocrisy is alive and well in Washington, D.C. (as if you didn’t know), Title V of the Republican bill to “repeal and replace Obamacare” contains some of the same constitutional problems that led 27 states to challenge Obamacare. Under Title V, Congress would partially assume command of state court procedures—including how they conduct jury trials and what evidence is introduced.
Not surprisingly, the bill’s purported “justification” is the much-abused Commerce Power. However, it likely runs afoul of those parts of Chief Justice Roberts’ decision in which he held that (1) Congress could not invade certain core state powers and (2) although the individual insurance mandate was valid as a tax, it exceeded the Commerce Power.
This week I wrote an essay on the bill’s constitutional problems, which I’ve reproduced below, and in PDF form here.
To showcase just how diverse my TV show Devils Advocate is, this past Friday I had resident constitutional scholar Rob Natelson on and acclaimed performance poet Shawn Welcome on for 15 minutes each. Below you’ll find the shows:
Rob Natelson, our Senior Fellow in Constitutional Jurisprudence, was just cited in the U.S. Supreme Court. In June, Justice Thomas cited Rob’s work by name 12 times in two separate cases — an exceedingly rare honor for a legal scholar. This month, the Harvard Journal of Law and Public Policy published Rob’s short article on the constitutional amendment process. As its name suggests, the Harvard Journal is one of the nation’s most prestigious law reviews. The same journal has agreed to publish Rob’s ground-breaking article on the original meaning of the Recess Appointments Clause — a section of the Constitution now front and center in the debate over President Obama’s practice of appointing officials without the Senate approval.
Rob also is in increasing demand as a speaker. On June 14, he keynoted a national program in Colorado Springs for the Intercollegiate Studies Institute. In July, he’s presenting several programs in Montana. And in August, he’ll give addresses on the Constitution to two national organizations of state lawmakers—the conservative American Legislative Exchange Council and the more liberally-leaning National Conference of State Legislatures. Rob also regularly gives talks for Colorado citizens’ groups and is a regular on two Colorado radio shows and one in Montana.
Wouldn’t it be great if someone wrote a short essay about the right to keep and bear arms and its opposition in America? Perhaps something of similar length and persuasion as Thomas Paine’s “Common Sense” or the Federalist Papers?
Well, our resident Second Amendment scholar, historian, and law professor Dave Kopel did just that for Encounter Books. In his latest book appropriately titled, “The Truth About Gun Control,” Dave gives the reader a foundation for why the right to keep and bear arms is important, who fought this inherent right and why, and what’s at stake today from the likes of Mayor Bloomberg and President Obama. As Dave says, the book is meant to be read in one sitting. Or as I like to say, the book can be read to me in one sitting.
If you’d like to hear more about the book, check out this iVoices.org podcast. He and Justin go into more detail about the book and why it’s an important piece in today’s fight against the gun control machine.
If reading the book and listening to the podcast don’t entirely whet your appetite, I may have just the thing for you. On Tuesday, May 14th, we are holding a book signing and presentation with Dave here at the Freedom Embassy. Admission is FREE, but you must RSVP online or by phone at 303-279-6536. For more information, visit our Facebook page here.