A practical problem facing many proposed constitutional amendments is that they add language to the Constitution that can be misinterpreted. The fear of misinterpretation, in turn, dampens people's willingness to support the amendment.
Whether the fear of misinterpretation is well-founded in any particular instance or not, the dampening effect that results can be real and significant. Think, for example, of how concerns about judicial adventuresomeness played into campaigns against ratification of the Equal Rights Amendment in the 1970s.
One way of addressing this problem would be to an amendment that does not anything to the text of the Constitution, but just takes it away.
No such amendment of this sort has ever been made. But that may be all the more reason for doing it now.
The earliest we approached an amendment of this sort is the Eleventh Amendment. It provides a rule of construction for a portion of Article III:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
The amendment's language refers back to the menu of case- and controversy-types in Article III, § 2 that sets out matters that can be brought within the judicial power of the United States.
Perhaps it would have been simpler to just cross out certain items in this menu, like this:
The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
But this move would have amended too much. The strike-outs would have gone further in eliminating jurisdiction than what the text of the Eleventh Amendment seemingly accomplishes. That text does not touch controversies between citizens of a state and foreign states, citizens, or subjects, but leaves them within the reach of the judicial power of the United States. By contrast, the strike-through amendment would have taken these controversies out of the reach of the federal judicial power.
Whatever reason the framers of the Eleventh Amendment had for choosing the course they did rather than a strike-through amendment, the resulting text has been a site of great confusion and controversy. The body of "Eleventh Amendment" sovereign immunity law (in scare quotes because much of that law these days has little to do with the Eleventh Amendment itself) is in very bad shape now.
A more recent missed opportunity for a strike-through amendment was the Twenty-First Amendment. This amendment ended Prohibition by repealing the Eighteenth Amendment.
Its objectives probably could have been accomplished with a strike-through amendment together with ordinary federal legislation. But the Congress that proposed the amendment chose a different route, perhaps because of uncertainty about what simply repealing the Eighteenth Amendment would have meant about the respective powers of states and Congress to regulate alcohol sale, shipment, and consumption with the Eighteenth Amendment gone. Those matters had been the subject of constitutional litigation under the dormant Commerce Clause in the decades preceding the Eighteenth Amendment.
Whatever the reason for its wording, Section 2 of the Twenty-First Amendment has been another site of confusion and controversy in our constitutional law.
Although no strike-through amendment has yet been enacted, I can think of at least one (which I am setting up for a later post) that would improve our Constitution.
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What does this have to with Catholic legal theory (apart from its overlap with yesterday's post)? I am here reminded of the dangers of constitutional idolatry. There's nothing like a legal Exacto knife cutting through the Constitution itself to expose the cant of constitutional-law cultism for what it is.
Our Constitution is a human artifact made for human purposes. We should treat it as such, including by acknowledging its mistakes in the act of amending them.
It's time for a strike-through amendment.
Tuesday, December 12, 2017
Our politics is so poisonous and our constitutional law so contentious that one might be surprised to learn that mixing the two deliberately may benefit both. The mixture I have in mind is a constitutional politics aimed at amending the Constitution.
Whether originating in Congress (by two-thirds vote of each house) or in a convention of the states (upon a call by two-thirds of the states), a proposed amendment must be ratified in 3/4 of the states (whether by legislature or convention) in order to become law. Some have argued the process is too difficult. They're probably right. But this difficulty presents an opportunity for a particular kind of politics---one aimed at identifying and advancing changes in the law attractive enough to garner such widespread support.
Changes of such a sort must exist. Surely we don't have a perfect constitution. And some of the imperfections are obvious if we only stop to think about them. Wouldn't it be politically useful if a politician could become identified as a champion of an amendment to fix an obvious imperfection in our constitutional order? Such a politician would get credit not only for substance but also for style. People are yearning for a politics of this kind.
The proposed amendment cannot be too obvious, or else there would be little credit to be had for identifying and championing it. But it cannot be too obscure or trivial, either, or else there would be little expected gain from an investment of one's political capital in advancing it. The proposed amendment must be of a sort that does not have overwhelming support already, but that would and could merit such support if advanced effectively enough.
To satisfy these conditions, it is helpful to have a conception about what is good for our constitutional order that is not reducible to what people presently think is good for our constitutional order. Such a gap between what is really good and what is presently perceived to be good would morally justify the investment of political capital to close the gap.
What does this way of approaching political and moral dimensions of motivating a constitutional amendment have to do with Catholic legal theory? I am here reminded of Adrian Vermeule's contention that "[t]he claims of lawmaking in the service of overall public utility themselves have unimpeachable natural law credentials." When we make welfare economics arguments of a certain kind, we are not doing something different from making natural law arguments but rather making a kind of natural law argument.
Vermeule identifies the Pareto principle as one example of a principle that "natural reason suggests ... is almost necessarily correct" (at least with respect to normal central cases in which it is deployed). This is the principle that identifies a change as an improvement upon the status quo if and only if it makes one or more persons better off and no one worse off. This formulation raises obvious questions about what we mean by "better off" and "worse off," to be sure. But holding the Pareto principle in mind as a guide, might we identify any proposed constitutional amendments that satisfy it? If so, then we might also have a politically popular proposal on our hands, at least if is handled correctly.
I have one candidate that I'm setting up for a future post. But there must be more than one, right? If so, then there are more than one possible constitutional amendments in which good constitutional law holds the promise of promoting good constitutional politics.
My partner in crime, Mark Movsesian, and I have a podcast on last week's oral argument in Masterpiece Cakeshop. We discuss the back and forth among the justices and the lawyers on both the compelled speech and the free exercise claims, the analogy to race, the status/conduct distinction, and much else (bookended by a little François Couperin (dit "le Grand")).
Friday, December 8, 2017
For your reading and learning pleasure, here's Scott Gerber's new paper on "Law and Catholicism in Colonial Maryland." Abstract:
Montesquieu famously concluded in The Spirit of the Laws that each form of government has an animating principle — a set of “human passions that set it in motion” — and that each form can be corrupted if its animating principle is undermined. Maryland is a compelling case study of Montesquieu’s theory: founded in 1632 by Lord Baltimore as a haven for Catholics, a mere two decades later that animating principle was dead. This article explores why. More specifically, the article examines the birth, death, and resurrection of Maryland’s animating principle by identifying with as much precision as possible the impact of the law itself on regime change in colonial Maryland.
Here's an important piece by Prof. Stephen Sugarman, "Is it Unconstitutional to Prevent Faith-Based Schools from Becoming Charter Schools?":
This article argues that it is unconstitutional for state charter school programs to preclude faith-based schools from obtaining charters. The first section describes the “school choice” movement of the past fifty years, situating charter schools in that movement. The current state of play of school choice is documented and the roles of charter schools, private schools (primarily faith-based schools), and public school choice options are elaborated. The second section argues that based on the current state of the law it should not be unconstitutional, under the First Amendment's Establishment Clause, for states to elect to make faith-based schools eligible for charters, and, therefore, the current practice of formal discrimination on the basis of religion against families and school founders who want faith-based charter schools should be deemed unconstitutional by the US Supreme Court. Put differently, this is not the sort of issue in which the “play in the joints” between the Free Exercise and Establishment Clauses should apply so as to give states the option of restricting charter schools to secular schools.
Add to this yet another important paper by Prof. Nicole Stelle Garnett, "Sector Agnosticism and the Coming Transformation of Education Law":
Over the past two decades, the landscape of elementary and secondary education in the United States has shifted dramatically, due to the emergence and expansion of privately provided, but publicly funded, schooling options (including both charter schools and private-school choice devices like vouchers, tax credits and educational savings accounts). This transformation in the delivery of K12 education is the result of a confluence of factors — discussed in detail below — that increasingly lead education reformers to support efforts to increase the number of high quality schools serving disadvantaged students across all three educational sectors, instead of focusing exclusively on reforming urban public schools. As a result, millions of American children now attend privately operated, but publicly funded, schools. This rise in a “sector agnostic” education policy has profound implications for the state and federal constitutional law of education because it blurs the distinction between charter and private schools. This paper explores three of the most significant of these implications.
Thursday, December 7, 2017
Faulker University Professor of Law Adam McLeod hit a nerve when last month he published a speech he'd delivered to students in his course, Foundations of Law. Impatient with his students' tendency to express "feelings" about topics or assume that they'd made an adequate case against an argument by merely dropping an "ism" such as "sexism," he took the time to lay some ground rules for the remainder of the course. Students were simply not to use "isms" when they contributed to class discussions; they were to define terms that they may have previously assumed admitted of only one definition ("equality" for instance); and, most notably, their professor warned them that if they began a contribution with "I feel," they'd have to cluck like a chicken.
In response to inquiries about the new ground rules, McLeod said: "I'm training lawyers here, and lawyers make arguments. Arguments consist of propositions and facts, or in other words, reasons...reasons don't always care how we feel about them...."
The whole speech is worth your time, but here's my favorite part:
Third, you should not bother to tell us how you feel about a topic. Tell us what you think about it. If you can’t think yet, that’s O.K.. Tell us what Aristotle thinks, or Hammurabi thinks, or H.L.A. Hart thinks. Borrow opinions from those whose opinions are worth considering. As Aristotle teaches us in the reading for today, men and women who are enslaved to the passions, who never rise above their animal natures by practicing the virtues, do not have worthwhile opinions. Only the person who exercises practical reason and attains practical wisdom knows how first to live his life, then to order his household, and finally, when he is sufficiently wise and mature, to venture opinions on how to bring order to the political community.
Cicero would be proud.
Wednesday, December 6, 2017
Doug Laycock and I did another piece, this one at Vox, explaining how the Court can and should rule for the baker, under the Free Exercise Clause, in a way that gives meaningful protection to both same-sex couples and religious objectors. (Several editor solicitations.) Conclusion, after going through the analysis:
We should not have to go through this detailed analysis to protect a simple act of conscience. Same-sex couples should be free to marry, with fancy weddings and wedding cakes, and conscientious objectors should not be required to assist. But under the Supreme Court’s interpretation, the Constitution protects religious conscience only against laws that fail its test of general applicability. Fortunately for Jack Phillips, the Colorado law as it was administered fails that test.
