Eugene Volokh's Blog, page 2732
August 11, 2011
An Odd Proposal for Recess Appointments
Michael Tomasky, writing in The Daily Beast has this proposal:
I've been wondering lately the same thing as a lot of liberals in Washington: when and how will the president ever grow some backbone? Sure, the post-debt-deal polls show that he came out of the mess looking somewhat less terrible than the Republicans. But he looks weak, and he'll keep getting pushed around until he throws down on something. I'm planning an occasional series about what that something could be, and here's idea No. 1: force the Congress into recess and make a slew of appointments.
What? Force the Congress into recess? Yes. The president has the power under the Constitution to do exactly that. Read Article II, which is, of course, on the executive branch, Section 3, titled "State of the Union, Convening Congress." It states in full about the president that:
He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
"[H]e may adjourn them to such Time as he shall think proper." Of course, there are caveats. First, it must be an extraordinary occasion. Second, the two houses of Congress must disagree about the time of adjournment. Both can be finessed. On the first point, Obama can actually reasonably argue that the number of presidential appointments held up by Republicans (we'll get to the numbers in a minute) is so large as to constitute an extraordinary circumstance. On the second, all that would take is for the Democratic-controlled Senate to force a "disagreement" with the House about when Congress should adjourn....
If Obama invoked his constitutional power for a change, conservatives would howl, but liberals would be enraptured, and independents would note that he finally took a stand.... An Obama who did that would light this town up, and he'd be making a stand that would serve not only him well but also future occupants of his office of both parties (which is how he could package it in keeping with his post-partisan daydreams)....
I'm not an expert on separation of powers, but this seems like an odd way of framing the problem.
1. To begin with, to make recess appointments, President Obama doesn't have to "force the Congress into recess." All he needs is for the Senate to be in recess. "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." So all that's necessary is for the Senate to go into recess; the House can still keep doing whatever it wants to do.
2. To be sure, another provision of the Constitution, which the article doesn't cite, says that "Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days." So while the House doesn't have to adjourn for the President to make recess appointments, it does have to consent to the Senate's adjournment. And if the House doesn't consent, then the President might adjourn both houses (something that apparently no President had ever done, at least as of 2000). But I know of no reason to think that the House wouldn't consent to the Senate's adjourning. [UPDATE: A commenter points out that the House has at times indeed blocked the Senate's adjournment; but in any event, the necessary first step is for the Senate to seek house consent to adjourn.]
3. Indeed, another matter that the article doesn't mention is that the Senate had apparently been adjourning in the middle of a session, thus allowing recess appointments, quite regularly — until recently. According to the Congressional Research Service, "From November 2007 through the end of the Bush presidency, the Senate structured its recesses in a way that was intended, at least initially, to prevent the President from making recess appointments by preventing the occurrence of a recess of more than three days." It appears that the current "summer recess" of the Senate is in fact such a non-recess, with "pro forma sessions" every three days. If the President wants to make recess appointments, his first step is simply to get the Senate to go back on its Democrats-vs.-Bush-era practice.
4. I don't know Senate rules enough to know whether such a change from a recess-filled-with-pro-forma-sessions to a true adjournment could be filibustered by the Republicans. But if it can be filibustered by Republicans, then Tomasky's proposal is a nonstarter, because then there'd be no disagreement between the Houses — presumably neither would be adjourning.
So unless I'm missing something, all this talk of a literally unprecedented adjournment of both Houses is premised on the unstated hypothetical that the House will refuse to let the Senate adjourn — where right now it's the Senate that is refusing to adjourn, based on a policy that apparently was created by Democrats who wanted to block President Bush from making recess appointments. Perhaps if the Democrats simply revise that policy, the House will let the Senate adjourn, and President Obama will be able to make his recess appointments. UPDATE: Or perhaps some negotiation between the Senate, the House, and the President could let the Senate adjourn with the House's permission, and keep the House in session as long as it wants to stay in session. In any event, the President's goal, if he wants to make recess appointments, wouldn't be to have Congress adjourn; it would be to have the Senate adjourn, and have the House permit that adjournment.
NOTES: (1) I considered the possibility that the Adjournment Clause only applies to disagreements between the Houses about the time to which they were to adjourn, which is to say the time of return, and not to disagreements about whether to adjourn. But my quick review of early treatises and modern legal academic views on the matter suggests that the dominant view is that the President may indeed adjourn both houses if they disagree about whether to adjourn. (2) I also understand that there is a dispute about whether the Recess Appointments Clause actually applies to mid-session adjournments, but recent practice has taken the view that it does so apply.
The Stumpf Sequel
Today the U.S. Court of Appeals for the Sixth Circuit granted death row inmate John David Stumpf's petition for a writ of habeas corpus for a second time – seven years after its first habeas grant, six years after the Supreme Court's reversal of that decision, and four years after the subsequent oral argument. As one might expect, the panel was divided, just as it had been the first time around. Judge Daughtrey wrote the majority opinion, joined by Judge Moore. Judge Boggs dissented. Although the majority's rationale is somewhat different this time, the arguments seem familiar. Could this decision prompt another Supreme Court reversal? Perhaps. After all, this is a habeas grant from the Sixth Circuit.
Excerpts from the opinions are below the jump.
Judge Daughtrey's majority opinion in Stumpf v. Houk, joined by Judge Moore, begins:
Recent polling results and statistical compilations support many of the economic and penological arguments that have long been raised in opposition to the imposition of the death penalty in the United States. Other statistics bolster objections to a form of punishment that, possibly because of its finality, has been shown to have been misdirected. Such polemical discussions, while interesting, are, however, better suited for the deliberations in the chambers of our state and national legislatures. In this appeal, we are not asked to involve ourselves in those debates, or even in a discussion of the constitutionality of the death penalty. Instead, we are required to examine only the constitutional ramifications of court proceedings that are alleged to have infringed John David Stumpf's right to be sentenced in accordance with longstanding principles of due process and fundamental fairness. We conclude that those principles were violated by the state in seeking to execute Stumpf even after it became clear that the basis for the imposition of the death penalty had been seriously compromised in the subsequent prosecution of Stumpf's accomplice, as further explained below. Indeed, the facts of this case exemplify the arbitrariness that prior decisions of the United States Supreme Court and of this court have decried as violative of fundamental constitutional safeguards. As a result, we once again reverse the judgment of the district court and remand this matter for issuance of a writ of habeas corpus, unless the State of Ohio conducts a new sentencing hearing for Stumpf within 90 days of the issuance of this opinion.
The opinion's conclusion reads, in part:
we conclude that Stumpf's due process rights were violated by the prosecution's arguments leaving the impression with Stumpf's sentencers that the petitioner was the principal offender in the murder of Mrs. Stout, even though the state had evidence and a belief that co-defendant Wesley was actually the triggerman in Mrs. Stout's murder. Because all indications are that the three-judge panel that sentenced Stumpf to death would not have done so had the state not persisted in its efforts at duplicity, we also hold that the petitioner was prejudiced by that constitutional violation.
Judge Boggs forceful dissent begins:
The majority has resurrected a new substantive right of their own invention, which made its first appearance in Stumpf v. Mitchell, 367 F.3d 594 (6th Cir. 2004), vacated by Bradshaw v. Stumpf, 545 U.S. 175 (2005), and apparently had all along been lurking somewhere within the Fourteenth Amendment. In its current iteration, the new right protects a convicted murderer from being sentenced to death where mitigating evidence (i.e., evidence that does not undermine the murder conviction itself but that might have counseled towards a more lenient sentence) discovered after sentencing is later used by the prosecution against a different defendant. Notably, the due process violation is not that mitigating evidence exists that is later discovered, which would not by itself offend the Constitution, [citations omitted] but, curiously, that the newly discovered evidence is later used by the prosecution against a different defendant. Somehow, that purely later conduct retroactively renders the earlier sentence unconstitutional.
Consider a hypothetical case. B is killed in a horrifying fashion. A is tried for the murder of B, is convicted, and due to the terrible nature of the crime, is sentenced to death. A's trial is not merely in compliance with constitutional standards, but is a model trial. The most scrutinizing criminal lawyers available comb through the trial record in search of some plausible legal claim to bring on appeal, but they find nothing, and A's sentence is correctly affirmed on direct review. The majority's new right has no import at this time. Many years later, a witness comes forward with new information—the witness explains that C and A killed B in concert, and that C's conduct was more vile. Still, the majority's new right has no import. But wait—the prosecutor acts on the witness's testimony and tries C for B's murder, arguing that, even though A was already convicted of the murder, it was in fact C that committed the most horrifying aspects of the crime. Sure, the jury acquits C, but that is apparently besides the point. Now, the majority's new right finally jumps into action. The prosecutor in C's trial has denied A—yes, A—the right to be sentenced fairly, in violation of the Due Process Clause of the Fourteenth Amendment.
I do not agree with that application of the Constitution in the slightest, and as I explained in my first dissent in this case, I believe that the out-of-circuit cases that the majority relies upon for its new rule are readily distinguishable. Stumpf v. Mitchell, 367 F.3d at 618–22 (Boggs, J., dissenting). I would therefore affirm the decision of the district court dismissing Stumpf's petition for a writ of habeas corpus.
Utter Climate Ignorance
I have my share of disagreements with Jonathan Zasloff, particularly on matters of environmental law and policy (see, e.g., here), but his attack on Fox News' alleged climate "expert" Joe Bastardi hits the mark. There are reasonable bases upon which to question some aspects of global warming, including some of the more dire computer model projections, but Bastardi's claims (as reported by Media Matters) are woefully ignorant. Indeed, I can't think of many so-called climate "skeptics" who would endorse some of his "arguments." It's the climate equivalent of creation "science."
LawProf "Scam Blog"
A few years ago, law professor blogging behind a pseudonym was pretty common — remember Juan non-Volokh? Here's a bit of a throw-back, then: Inside the Law School Scam, written by a professor who confesses that he is scamming his students by being a lazy teacher and terrible scholar but drawing a high salary. Or perhaps, more precisely, that a lot of other law professors are doing that.
In my view, some of the author's posts are interesting but a lot of the claims are pretty hyperbolic. Plus, the idea of law professors blogging truthfully about being law professors is a large part of what law professor blogs have always been about, so I don't quite get the "speaking truth to power" tone. Finally, the author's particular perspective isn't exactly new: Lawprof Jeff Harrison has been writing a somewhat similar blog for years, albeit with his name attached to it. But I figured some folks might find it interesting nonetheless.
Hat tip: Kim Krawiec.
UPDATE: Paul Horwitz has some very good thoughts on this over at Prawfs.
"I Got Awful Grades My First Year in Law School. Should I Quit?"
Say that a student is asking himself this question. He went to law school wanting to become a lawyer. He still would like being a lawyer. He thinks he'll enjoy being a lawyer, if he can get a good job. But he's afraid that his very low grades for the first year — say, bottom 10% of the class — are a sign that he'll likely have very low grades at graduation (the correlation is quite strong, I'm told), and has a very high chance of not passing the bar on the first try, or even after several tries (the correlation there is quite strong, too, I'm told). And with his very low grades, even from a good school (not Harvard or Yale, but still a good school, say in the Top 50 but not the Top 10), he thinks he might have a lot of trouble getting a well-paying job as a lawyer.
Should he invest another $80,000 in tuition for the two years, plus (say) $80,000 in foregone income that he could be earning instead of going to law school? Or should he quit, and see if his talents can be better used elsewhere?
[UPDATE: Assume that, after getting bad grades the first semester, the student talked to his professors about what he did wrong, used whatever "academic support" resources the school provides, and otherwise tried to improve — but the second semester grades were still bad.]
Every year, thousands of law students face this question. They don't want to feel like quitters. They don't want their friends and family to see them as quitters. They've been told all their lives: "If at first you don't succeed, try, try again." "Winners never quit, and quitters never win." My sense is that at the Top 50 schools, very few people drop out after the first year; that has certainly been my experience at UCLA.
But they've also been told, "Don't throw good money after bad," and "Know when to cut your losses." Sometimes, quitting is the smart thing to do, especially if you recognize that it's not just quitting one project but starting (or restarting) another project.
What advice would you give them? Please try to be helpful, and try to recognize that they wanted to be lawyers and still want to be lawyers, if they think they can have a rewarding legal career that justifies the extra investment of money, time, effort, and pain. As you would when giving advice to a friend, try to figure out what's right for them given what they likely want, not given what you would want given your own intellectual interests and social judgments. ("The world doesn't need more lawyers," for instance, doesn't count as helpful advice to them, whether or not it's correct.)
Collective Action Federalism and Judicial Enforcement of Enumerated Powers
I thank Prof. Kurt Lash for engaging my work with Robert Cooter on collective action federalism. And I am grateful to Prof. Eugene Volokh for giving me the opportunity this week to blog about the theory and to respond to some of Prof. Lash's criticism. It speaks volumes about Prof. Volokh that he provides a platform for multiple points of view.
In this, my final post, I will question how Prof. Lash frames the debate in which he is intervening. It is easy to lose sight of the framing when scholars air disagreements about what a certain Framer said, what he meant when he said it, and when he uttered the words. In scholarship, as in litigation, sometimes the framing is critical.
According to Prof. Lash, the choice (as he writes in his article) is between "limited textual enumeration and the need for judicial maintenance of the line between federal and state authority" on the one hand, and Resolution VI on the other, which (according to its advocates) "rejects textual or federalism-based limitations on federal power and instead authorizes Congress to regulate all collective action problems of national importance."
Similarly, Prof. Lash writes that a collective action approach to the clauses of Article I, Section 8 "would remove all subject matter or categorical boundaries to the scope of federal power." He continues:
Under the interpretive principle of Resolution VI, courts should not be interpreting text and precedent in a manner that maintains a line between state and federal responsibilities. Instead, courts should simply determine whether the matter involves an issue of national importance beyond the "competency" of the individual states. Under this approach, all congressionally identified "collective action problems" by definition fall within the constitutional powers of Congress, regardless of subject matter and regardless of the intrusion into matters traditionally left to state control.
In Prof. Lash's view, a collective action approach, if adopted, "would mark a dramatic departure from the current jurisprudence of the United States Supreme Court."
In sounding the alarm about a "move from a system of judicially limited enumerated power to one of majoritarian oversight of national 'harmony,'" Prof. Lash does not accurately describe the work of Akhil Amar, Jack Balkin, Andrew Koppelman, Donald Regan, Robert Stern, and others. Nor does he accurately describe my work on collective action federalism with Robert Cooter. As I wrote in my previous posts, the theory is compatible with judicial enforcement of limited, enumerated powers. For example, a collective action approach justifies the commerce power holdings in Lopez and Morrison and reconciles them with the holdings in Wickard and Raich.
A collective action approach does not render commerce power cases effectively nonjusticiable just because Congress can assert the existence of a significant problem of collective action among the states, however implausible the assertion. Collective action federalism is a theory of limits on federal power, not just a theory of licenses to legislate.
Part of the disconnect may arise because Prof. Lash misconceives of a collective action problem among the states as "the mere failure of individual state action on an issue of national interest." An interstate collective action problem arises when a problem disrespects state borders in the sense that there are spillover effects in other states, meaning that states impose significant costs on one another without paying for them. As Robert Cooter and I discuss in our article, there will certainly be disagreements about the presence and significance of interstate collective action problems. But resolution of these disagreements is not a simple matter of congressional assertion.
Nor does collective action federalism render the language of Section 8 irrelevant or superfluous. For one thing, much of the language in Section 8 evidences the structural principle that animates the theory. The principle, in other words, is partially derived from the language. For another thing, some of the language is not amenable to a collective action interpretation.
For example, the theory interprets the phrase "among the several States" in the Commerce Clause; it does not purport to construe the meaning of the word "Commerce." The theory is compatible with different understandings of that key term. If one adopts the Supreme Court's economic/noneconomic categorization, federal regulation of noneconomic problems of collective action among the several states is beyond the scope of the commerce power. Whether the regulation falls within the scope of another clause in Section 8 depends on the proper interpretation of that clause.
Robert Cooter and I offer an unconventional interpretation of the General Welfare Clause, according to which Congress has at least some authority to regulate (and not just tax and spend money on) noneconomic problems of collective action. But whether we are right or wrong turns on the proper interpretation of Clause 1, including whether the text can bear such an interpretation and whether some taxes and regulations are materially equivalent. Whether we are right or wrong does not turn on Resolution VI. Moreover, one can reject our interpretation of Clause 1 while still accepting the rest of our structural account of Section 8.
I do agree that a collective action approach, if adopted explicitly, would likely result in very broad but not limitless federal power. The United States today is a country characterized by demilitarized state borders and substantial interstate mobility of persons and things. But it is inaccurate to describe such a state of affairs as "a dramatic departure from the current jurisprudence of the United States Supreme Court." A constitutional regime of very broad but not limitless federal power is the regime in which we live.
It's "the Internet." Please.
I'm losing my battle to keep the initial capital "I" in "the Internet." I'm starting see references to "the internet" everywhere; the latest to fall seems to be The Economist (see headline from July 30: "An internet with Chinese characteristics" — I'm quite certain that it was "the Internet" up until quite recently).
It actually matters. I had a footnote in the first chapter of my "Jefferson's Moose" book about why I was keeping it as "the Internet," and the more I think about it, the more I think it matters — for our understanding of the Internet and its role in the world, which is surely something we need to understand.
Suppose we live someplace that only has one bookstore. You write to me: "I'm going to the bookstore; let's meet there." I understand what you mean — after all, there's only one bookstore.
Now, suppose we live in a place with lots of bookstores. Now if you write "I'm going to the bookstore; let's meet there," I have no idea what you mean.
Finally, suppose we live in a place with lots of bookstores, but — it being a college town — it has one that is often referred to as "the Bookstore." You know, the Bookstore. If you write "I'm going to the Bookstore," I know where to meet you — it's a way of designating one bookstore out of many.
There are a hundred million internets — or 82 million, or 461 million, or who knows how many. Ranging from little teeny-tiny ones (like the one that connects my home network to my service provider's network) to big ones (the LAN in my law school building to the University network), to one really, really gigantic one. It would be nice to have a proper noun for that one, because we need to talk about it separately from all the others; it has many, many characteristics that distinguish it from all the others. The Bookstore.
Or suppose, with all the millions and millions of trees in the world, there was one that was 411 miles tall. Wow! Referring to that one as "the tree" doesn't work — it won't help us talk about how the Tree got to be so damned tall, and why the Tree is different from the other trees, and whether some virus might be attacking the Tree, and whether one of the other trees might supplant the Tree in height, and . . .
Neil Siegel and the Claims of Resolution VI Proponents (a reply)
My thanks to Neil Siegel for his willingness to engage the historical arguments presented in my new paper on Resolution VI. In this final post, I will address why the discussion is important and also respond to Neil's comments and some of the comments made by others during the week.
I should state from the outset that my article is directed at historical claims recently made in support of a Resolution VI-based reading of Article I, Section 8. Neither my paper nor my posts here at the Volokh Conspiracy address the relative merits of Cooter and Siegel's instrumentalist case for adopting the principle of Resolution VI. That said, I believe it is important to understand what it is Resolution VI proponents are asking for. Cooter and Siegel, for example, believe that a Resolution VI-based reading of Article I, Section 8 support revisiting the analysis in United States v. Butler and allowing Congress to regulate "for the general welfare" (properly understood). Andrew Koppelman insists that courts should rely on Resolution VI because the Resolution is the "functional equivalent" of Article I, Section 8—as in, Resolution VI "functions as the equivalent" of Article I, Section 8.
I think this is an accurate description of what Resolution VI proponents are about—effectuating the general principle of the Resolution should be the standard by which we measure proper interpretations of the text, as should be the case if they were functional equivalents. Any reading of the text that does not allow Congress to regulate for the "general interests of the Union," or in cases where the "states are separately incompetent," or where state action "interrupts national harmony," is an incorrect reading of the text. Here is how Wydra and Kendall put it in their briefs, "Only if 'commerce' is read in light of this broader dictionary definition and usage does the Commerce Clause effectuate the Framers' direction that Congress should have authority to "legislate in all Cases for the general Interests of the Union, and also in those Cases to which the States are separately incompetent, or in which the harmony of the United States may be interrupted by the Exercise of individual Legislation." This is not just the claim of a legal advocate. It is the same position taken by scholar Jack Balkin.
According to Balkin, "[i]n the words of Resolution VI, commerce is 'among the several states' when states are 'severally incompetent' to deal with a particular issue, 'or [when] the Harmony of the United States may be interrupted by the exercise of individual legislation.'" (emphasis added) Under Balkin's approach, the constitutional text means the principles of Resolution VI. The full breadth of Balkin's reading becomes even more apparent once you understand that Balkin believes "commerce" means "social interaction." Thus, Article I, Section 8 means that Congress has power to regulate "social interaction" when states are "severally incompetent" to deal with the issue or when state involvement interrupts the "harmony of the United States." Why should we choose such a broad reading of "commerce among the states? Because this effectuates the principle of Resolution VI.
None of these arguments rely on Resolution VI merely as a guide in situations when the otherwise clear meaning of the text runs out. All of these claims give the general principle of Resolution VI primacy of place in determining the scope of federal authority. The Resolution becomes the measure of the text. As a coup de grace, Balkin and other Resolution VI advocates believe that, absent the violation of an expressly enumerated right, courts should defer to Congress's determination of what counts as an instance of "interrupted national Harmony" (though Cooter and Siegel are agnostic on this point). But even without this final grant of authority to Congress to regulate "social interaction," it seems fairly clear that we have left the traditional principle of judicially enforced limited enumerated powers far behind.
But perhaps we should. Cooter and Siegel make a sophisticated argument that following the principle of Resolution VI would achieve beneficial results. Whether we should write a Constitution that follows such a principle is one thing. Whether we ought to interpret our current Constitution as if we have already done so, however, is another. One needs a reason to adopt one normative interpretive principle over another, and most Resolution VI advocates rely on historical claims regarding original intent and original meaning (including Cooter and Siegel), no doubt trusting that such claims will have normative pull in the minds of many readers (and judges). I argue that the evidence does not support these historical claims.
In his last post, Neil Siegel focuses on some of my arguments and concludes that they are either unpersuasive or relatively unimportant. I will address Neil's comments below, and, in so doing, respond to some claims made in the comments to this week's posts. But once again, a reminder: My full argument in found in my article, and not just in these blog posts. I hope, therefore, that readers will consider the evidence presented in its full context.
First, Neil points out that the framers' discussion of the principles of Resolution VI which I present in my article is so short, and occurs so late in the convention, and took place in the midst of so many proposed amendments, that he is "loath to draw strong conclusions one way or another." The problem with this point is that it tries to make a virtue out of what is actually a serious problem for advocates of Resolution VI. A paucity of reference is exactly what you would expect if the framers left Resolution VI behind the moment they adopted Article I, Section 8. If, on the other hand, the framers intended Resolution VI to serve (and continue to serve) as the foundational structural principle for understanding congressional power, why is the canal debate the only time its principles are mentioned despite the many post-Article I, Section 8 debates regarding the need for additional federal authority?
Other scholars have made similar points about the significance of these later calls for additional powers. The lack of references to Resolution VI in these discussions highlights a large hole in the "original intent" claims for Resolution VI: There is not a single piece of positive evidence showing that the framers intended Resolution VI to serve as a guide to understanding the scope of federal power following the adoption of Article I, Section 8. Indeed, no one made such a claim for more than one hundred years after the adoption of Article I, Section 8.
There is, however, newly identified historical evidence indicating that the framers did not have such an intent. The only time that the principles in Resolution VI were discussed in the convention following the adoption of Article I, Section 8, the convention rejected an attempt to add those principles to the Constitution. Moreover, James Madison and James Wilson acted on the understanding that these principles had not been adopted and that the powers of Article I, Section 8 would not be interpreted in a manner that effectuated the principles of Resolution VI.
Here is how I understand the counter-argument: Perhaps, during the discussion on incorporation powers, the framers were really just discussing one particular application of the principle, one involving charters of incorporation for the construction of canals. One can reject a particular application of a principle without rejecting the principle itself. Therefore, this particular discussion and its conclusion tell us little if anything about the framers' view of Resolution VI.
The way in which Madison framed his motion, however, and the manner in which Wilson supported it, directly cut against such a counter-argument. Madison did not just propose power to grant charters of incorporation, he proposed allowing such charters "where the interest of the U.S. might require & the legislative provisions of individual States may be incompetent." There is no escaping the fact that, if advocates are right and Article I, Section 8 must be read as effectuating the principles of Resolution VI, then the power that Madison proposed to add to the Constitution had, in fact, already been added. To believe the power did not currently exist was to believe the principle had not been adopted.
One might argue that Madison actually believed such power already existed and he was making the proposal only "for greater caution." Neither he nor anyone else said this, of course. And the idea that Madison held an unstated belief that Article I, Section 8 harbored power to grant charters of incorporation becomes all the more unlikely when one remembers that Madison argued all his life that Article I, Section 8 properly construed did not include the power to grant charters of incorporation (his ultimate signature on the second bank bill reflected acquiescence to precedent; Madison continued to argue against the interpretation that allowed for charters of incorporation). Madison's life-long position on the matter supports a conclusion that the most obvious reading of his proposal is, in fact, the correct one: Madison sought to add the power because he did not think the power had been added.
Some might dismiss Madison's later claims regarding the powers of incorporation as no more than an after-the-fact change of mind. Even if true (for which, again, there is no evidence), this cannot explain the remarks of James Wilson. Wilson supported Madison's proposal, not for "greater caution," but because it was "necessary to prevent a State from obstructing the general welfare." The most obviously reading of this declaration is that Wilson did not think the principles of Resolution VI were currently operative (otherwise, the power to prevent the "interruption of national harmony" would have covered Wilson's concern). But even if there is some other reasonable way to understand Wilson's use of the word "necessary," Wilson then further clarified that Madison's proposed power was unlike the power to grant mercantile monopolies because that power had already been "included in the power to regulate trade." It is inescapable that Wilson viewed Madison as suggesting the addition of a power not already granted in Article I, Section 8.
Once again, remember, we are not just talking about the power to grant charters of incorporation. Madison proposed adding such power in cases "where the interest of the U.S. might require & the legislative provisions of individual States may be incompetent." If Article I, Section 8 must be read to effectuate the principles of Resolution VI, then this power by definition already existed. Wilson believed it did not exist. And it is hard to find a more ardent nationalist than Wilson.
Finally, there is the case of James Wilson's speech in the Pennsylvania Ratifying Convention. It is not altogether clear to me whether Neil disagrees with my claim that Wilson was actually referring to Sherman's proposed principle. According to Neil, it does not matter if I am right because "it ultimately would not matter if he had." As I understand Neil's point, he is able to derive his preferred "collective action federalism" out of either Resolution VI or Sherman's proposal. Perhaps he can and perhaps framers' support for Resolution VI ultimately is irrelevant to his argument.
I, however, had understood Neil and Robert's article as claiming that one reason for supporting their approach was because (1) it echoed the principle of Resolution VI, and (2) one can make an originalist argument that Resolution VI reflected the framers' intent because the framers expressly adopted Resolution VI, and (3) this claim is buttressed by Wilson's speech. But if Wilson was referring to Sherman's proposal, then this erases the remaining originalist argument in support of a Resolution VI-based reading of Article I, Section 8. This, in turn, erases one reason for adopting the approach of Cooter and Siegel–the one with which they begin their analysis (see Cooter & Siegel, part I.A.1).
Once again, I am not trying to persuade readers that the framers cared nothing about "collective action federalism." It is altogether possible that individual delegations of power reflect the kinds of concerns discussed in Cooter and Siegel's paper. However, I am arguing that there is no historical evidence that the framers intended Article I, Section 8 to be understood as reflecting the general principle of Resolution VI, and that there is no historical evidence that Wilson made any such claim in the Pennsylvania Ratifying Convention. That being the focus of my paper, it becomes very important to determine whether Wilson was actually referring to the particular principle of Resolution VI. The evidence, I believe, strongly indicates that he was not. And I do not understand Neil as claiming otherwise—indeed, I'm pretty sure he agrees.
In conclusion, the historical claims made to support the idea that Article I, Section 8 effectuates the general principle of Resolution VI are not only unsupported by any express historical evidence, those framers who spoke to the matter expressly denied this was the case. Claims to the contrary have either missed critical evidence to the contrary or rely on errors of historical fact, or both.
My thanks to Neil Siegel, Eugene Volokh and all the bloggers here at the Volokh Conspiracy for the invitation and the (usual) high-level discussion.
August 10, 2011
Federalism and Property Rights
My recently published article "Federalism and Property Rights" is now available on SSRN. It's part of the University of Chicago Legal Forum Symposium on Governance and Power. Here is the abstract:
Both the Supreme Court and leading legal scholars have often cited federalism as a reason to severely limit federal judicial enforcement of constitutional property rights. Defenders of the federalism rationale for judicial deference on property rights issues make two key arguments. One holds that abuses of property rights by state or local governments will be curbed by interjurisdictional competition, rendering judicial intervention unnecessary. The second is the superior knowledge and expertise of state and local governments relative to federal judges.
This article criticizes both claims. Part I explains why competitive federalism is unlikely to provide effective protection for property rights in land because property is an immobile asset. People who "vote with their feet" by leaving a jurisdiction cannot take their land with them. For this crucial reason, interjurisdictional competition will often fail to effectively protect property rights in land, though it may be more useful in the case of rights to mobile property.
Part II takes up the issue of diversity and expertise. While state and local governments may indeed have greater expertise than federal courts in assessing local conditions, federal judicial protection of property rights ultimately empowers not judges but property owners. It is the latter who will actually get to decide the uses of the land in question in cases where federal courts prevent state or local governments from condemning their property or restricting its use. Owners generally have greater knowledge of their land than local government officials do. Moreover, the local expertise rationale for judicial deference on property rights would, if applied consistently, justify judicial deference to state and local governments with respect to numerous other constitutional rights, including those protected by the First and Fourth Amendments.
Blogosphere mavens might be interested to learn that this is the first major article I wrote that was inspired by a blog post, specifically this exchange with NYU law professor Rick Hills (who is one of the "leading legal scholars" mentioned in the abstract). Although we continue to disagree on this issue, I'm grateful to Rick for the inspiration, and for his very helpful comments on the paper.
Trekblogging
I'm back from my trek through Mustang, Nepal. Since I blegged here for toys, books, and laptops to take to rural schools along my route, I thought readers might want to learn what actually happened on the trek. I've begun posting installments from my travel journal on Skating on Stilts. Since the Volokh Conspiracy isn't exactly a travel blog, I don't plan to post them all here. But for those who are interested, here's a link, and a taste, from the first installment. More to come soon.
The Royal Audience
It's time for our audience with the raja.
There's just one problem.
"What else can I wear?" I ask my son, Gordon.
I mean it literally. The raja and his remnant kingdom are tucked high in the Himalayas between Tibet and Nepal at an altitude of 12,000 feet and more. And with the shadows growing long, I am cold.
So, protocol can go hang. What I want to know is whether there are any more clothes I can put on before we meet the Raja of Lo. I'm wearing a watch cap, a rain jacket, cargo pants, and long underwear. Not enough. After walking four days to get to Lo Manthang, the kingdom's ancient capital, we've already got on all the clean clothes we brought with us. And most of the dirty ones.
I feel a little guilty. I spent nearly four years representing the United States in meetings with foreign officials — meetings where it was a major faux pas to wear the wrong lapel pin. The kingdom of Lo has can trace its roots to 1380; it has had a king about three times as long as the United States has had a president. And I am going to sit down with its king wearing dusty hiking shoes and a watch cap.
I am pretty sure our protocol officer wouldn't have approved.
Our guide entered the room. "Quickly please!" he said. "The raja will see you now." I rise to my feet and head down to the street, stopping only to tuck a small bottle of local whiskey into my pocket.
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