Balkinization: Original Meanings, Presidental Power, and the Post-Civil War Amendments

Original Meanings, Presidental Power, and the Post-Civil War Amendments

Mark Graber

I am wondering on a theory of original meanings whether the president has authority to veto legislation passed under the post-Civil War Amendments. I have no doubt that all the relevant actors expected that presidents could veto legislative efforts to exercise power under Section 2 of the Thirteenth Amendment, Section 5 of the Fourteenth Amendment, and Section 2 of the Fifteenth Amendments. We have been told, however, that original expectations are not valid sources of law. The issue is whether the public meaning of constitutional language used by the post-Civil War Amendments would be understood by the average citizen as granting the president right to veto legislation passed to enforce those provisions.

The crucial provision is "(t)he Congress shall have power to enforce, by appropriate legislation, the provisions of this article." I take it as obvious that no competent speaker of English would, if given only the text of Thirteenth, Fourteenth, and Fifteenth Amendment, interpret this language as granting the president the power to veto congressional efforts to enforce the Civil Rights Amendments. Of course, the average person would understand "Congress" to refer to the institution set out in Article I. Article I, Section 7, however, declares that all "Bills" are subject to legislative veto. The phrase "legislation" is not used. My down and dirty look through Articles I and II found no relevant language indicating whether "legislation" passed by the Congress must be subject to the veto power. Certainly, there is no language in the Post-Civil War Amendments that indicate one way or the other whether the enforcement clauses are intended to be exceptions to the veto power.

One might assume that a background assumption existed that anything passed by Congress was subject to the veto power, but another background assumption cuts in the other direction. A fair reading of Prigg v. Pennsylvania is that when the constitution creates an individual right, Congress has the power to pass legislation enforcing that right, even though that power is not mentioned in Article I, Section 8. Under this reading, no reason existed for the enforcement clauses if they were to be subject to the original constitutional rules for "Bills." Rather, on a nice Akhil Amar intratextualist reading, the reference to "legislation" instead of "bills" and the absence of any reference to the veto power plainly mean that legislation passed under the post-Civil War Amendments is not subject to the veto power. If you do not like that argument (I thought it was cute), consider the word "enforce." "Enforcing" is normally what the executive does. Given this common understanding in 1868, the plain meaning of "enforce" in the post-Civil War Amendments may be that Congress is being given executive authority with respect to these amendments. If what Congress is doing is exercising a combination of legislative and executive functions, then no need exists for the presidential veto.

Finally, consider the general context (although we are not allowed to know the general expectation that the president would have the authority to veto legislation passed under the post-Civil War Amendments). It’s very standard history that one purpose of the Fourteenth Amendment was to overcome President Johnson’s penchant for vetoing Reconstruction legislation. If that is the context, than a provision authorizing Congress to pass legislation that could not be vetoed seems perfectly plausible. After all, a great many persons believe that, contrary to Boerne v. Flores, Section 5 gives Congress some power to interpret Section 1 of the Fourteenth Amendment even though there is no specific language declaring Article III not fully operative. Hence, we should not expect any specific language declaring Article I, Section 7 inoperative.

I should emphasize that I intend this as an exercise, not as a serious effort to reject presidential power to veto legislation. My point is that I suspect a theory of original meanings is going to have to bring some original expectations in through the back door, or that the distinction between original meanings and expectations is not as sharp as some theory suggests. If the president does have power to veto legislative efforts to enforce the post-Civil War Amendments, the reason is likely to be that some kinds of original expectations have higher constitutional status than others.

Posted 9:18 PM by Mark Graber [link]

Comments:

Not buying it. The arguments can easily be turned around the other way. E.g., use of legislation, instead of bills implies Congress may only "enforce" once its bills are signed into law by the President. Similarly, "enforce" refers to provisions of the amendments as opposed to laws. This is akin to treaties, which Congress has the power to enforce by appropriate legislation.

Even more fundamentally, if they drafters of the amendments intended to preserve a Presidential veto, why would they explicitly say so? The President's job is to take care that the laws are faithfully executed. The amendments gave Congress the power to legislate in areas previously prohibited. Once Congress has that power, the President's role does not change. Bottom line, this reading seems like a stretch.

# posted by

Armen Adzhemyan : 10:11 PM

Very nice thought experiment. I'd suggest a couple of points:

1. The actual practice under Sec. 2 of the 13th A demonstrated an expectation that the President could veto such legislation. Specifically, Johnson did veto the Civil Rights Act of 1866. Continuing concerns about its constitutionality led Congress to re-write much of it into the 14th A.

2. While your cite to Prigg is clever, there isn't any real case authority to back it up. There's no case enforcing the privileges and immunities clause, for example. Given the universal understanding of the time regarding the proper roles of state and federal government, especially when it came to slavery, it would be understandable if Congress made assurance double sure in these Amendments.

While I think there are good arguments against your proposal, it does raise interesting issues about originalist doctrine. A textualist might well argue just as you did with respect to the enforcement clauses. If the text isn't ambiguous, there'd be no reason to use my historical point to clarify the "plain meaning" of the text, nor to use the history itself to show the ambiguity (no, Virginia, there is no parol evidence rule).*

The other interesting point is the degree to which particular holdings like Prigg may be cited for propositions which, based on other evidence, we might doubt those at the time had in mind. In short, what standards do we expect from originalist argumentation?

*Apologies to the non-lawyer readers for a very obscure legal insider joke. I'll explain it if anyone asks, though I'm not sure you'll be any the wiser once I have.

# posted by

Mark Field : 11:14 PM

The citation of Prigg is interesting esp. with the discussion some time back on the perils of citing Dred Scott.

Prigg is a somewhat dubious interpretation of "original" meaning. Justice Story deemed the fugitive slave clause a sin qua non to ratification, probably giving it more respect than it deserved.

Also, talking about intratexualism, as a source of congressional power, it too was dubious. First, it is not in Art. I. Second, unlike some clauses in Art. IV, that section (purposely?) didn't say "Congress" (or the "United States") has power to do anything.

Cf. Kentucky v. Dennison. Taking another clause of Art. IV, sec. 2, the Supreme Court held that states only had a moral obligation to return fugitives of justice ... here a free black who helped a slave escape.

Puerto Rico v. Branstad suggested this is no longer good law, but it underlined the special favortism of Story at the time. [BTW "cases" did enforce the P&I clause, including in modern times, Doe v. Bolton.]

Anyway, as to Johnson and the 13th ... yeah, the 14A set in place various judicially enforceable rights too, while also giving Congress added weight in proving enforcement acts were not unconstitutional ... something even some moderate Republicans feared of some based only on the 13A.

Also, I'm not sure how your use of textualism necessarily is useful as a means of showing the perils of originalism. Are they not two different modes of theory? And, who are these people who "say" ... some surely are willing to use that sort of thing. Finally, the Necessary and Proper Clause talks about "execution" ... that sounds "executive" too, huh?

Talking about cute, I reference Daniel Farber and Suzanne Sherry's book on the perils of trying to tie any one theory up in a bow, a chapter addressing Amar included. These thought exercises, useful up to a point, underlines their point.

# posted by

Joe : 12:10 AM

Armen said: Bottom line, this reading seems like a stretch.

You're suggesting that, once the words are situated in the appropriate context, this hyper-literal reading becomes a stretch. But that's precisely Graber's point.

# posted by

Margo : 12:11 AM

There are three answers to Mark's question. The first is that we do not read texts in isolation from the rest of the document when we seek to determine their meaning. So his initial assumption that we start by asking how ordinary readers would understand the Reconstruction Amendments in isolation from the rest of the Constitution immediately gets us off on the wrong foot.

The second answer is that arguments from original meaning do not prevent us from looking to the other modalities for help when there is a genuine question as to what the text means or how we should apply it. It is a caricature of original meaning approaches to assume that we can discern all the answers solely from textual and intertextual exegesis. Structural and precedental arguments, as well as some of the other modalities often draw on expectations about how practices will go forward. But so what? They are perfectly valid forms of constitutional argument. They are very helpful in clarifying how to apply ambiguous texts. To suggest that we are somehow prohibited from using them when the text is genuinely unclear is bizarre.

The third answer is that the distinction between original meaning and original expectations is not a claim that we never look to expected applications of a text. It is a claim that, when the text refers to an abstract standard or principle, we are not bound by the way the adopters of the text would have applied the standard or principle to concrete circumstances, although we may certainly look to their expectations for guidance.

Mark's hypothetical concerns a somewhat different problem-- we do not know whether the word "legislation" in the amendments starting with No. 13 refers to the "bills" that are subject to Presidential veto. If there were a genuine ambiguity here (I don't think that there is), there are many ways to answer this question using the various modalities to supplement an inquiry into original meaning. But here is one pretty obvious one. We might assume that Congress would have adopted this language against the background of previous precedents and practices. (Just as the word "appropriate" in section 5 refers to the test of McCulloch and "privileges or immunities" refers back to the Privileges and Immunities Clause of Article IV).

We might note, for example, Congress has the power to pass "legislation" for the District of Columbia in Article I, section 8, cl. 17. If Presidents had the power to veto such "legislation," that might be a reason to think that "legislation" also required Article I, section 7 bicameralism and presentment.

# posted by

JB : 12:19 AM

Much thanks to everyone who responded. A brief reminder and some thoughts. The reminder is that this is an exercise. The issue is whether under a certain kind of original meaning theory, a constitutionally plausible argument can be made that the president has no power to veto any law based on a good faith interpretation of the post-Civil War Amendments. The thoughts.

1. Of course, we cannot interpret amendments purely in isolation. Otherwise, we might have no idea what the meaning of "Congress" in the enforcement clauses. The problem is a bit more difficult, however, when the issue is whether a clause is intended to amend or be an exception to a previous clause. I take it, for example, that the text of the 11th amendment is not all that helpful when determining whether Congress can abrogate state sovereign immunity when legislating under the 14th Amendment. Of course, we might adopt an interpretive rule that Congress must say so explicitly when amending the original relationships between the legislative and executive branches of the national government, but then we have to confront Justice Miller who in Slaughter-House insists that the same rule ought to govern changes in the orginal relationships between the federal government and the states. Is the text of Section 1, on this score, much more explicit than the text of Section 5.

2. Is the following a valid original meaning argument. Foner and (to a lesser extent) Graber insist that majoritarianism was a central animating principle of the antebellum Republican party. Nelson and (to a lesser extent) Graber believe that section 5 was an effort to constitutionalize that principle. Sandy Levinson has famously argued that a presidential veto is countermajoritarian. Assume for purposes of argument that the above history is correct and that Levinson is philosophically correct. If we are to be guided by abstract principles or standards, can a president veto legislation based on a good faith reading of Section 1. If not, is the reason that Section 5 does not refer to an abstract principle or reason, but that "equal protection" does refer to "anti-caste" or "anti-subordination."

3. Cute points of the day. Article I, Section 8, Clause 17 gives Congress the power "to exercise exclusive legislation" over the district of Columbia. The word "exclusive" is not used with respect to other powers, even though it is very clear that states cannot erct lower federal courts. Hence, the reference to "exclusive" and "legislation" must mean that the President has no power to veto bills that are passed under clause 17.

Variation on this theme. Many Whigs (and the Republicans were an 80% Whig coalition) believed that Presidents could veto only bills they believed to be unconstitutional. "The words "exclusive legislation" indicate that no constitutional limits existed with respect to congressional powers under Article 17. Hence, the president, on Whig theory, could not veto any bill passed under section 17. One can make a similar reading of Section 5. If a reasonable person could conclude that a law was a good faith exercise of congressional power under Section 1, the language of Section 5 indicates that the president could not veto.

# posted by

Mark Graber : 9:11 AM

Hmm.

The word "exclusive" means that Art. I, sec. 9, Art. VI (religious tests/oaths) and the BOR doesn't apply to D.C.? (at least the first two, given they were ratified at the same time).

[One judge recently felt the 2A didn't apply to DC. Some think the EC is mostly a federalism device ... including Amar actually. So, maybe that too doesn't apply to purely local religious matters. Thus, congressional chaplains are allowed.]

As to federal courts, note the added word "whatsover." State courts share jurisdiction, more so in the past, with federal courts on certain matters. They are not "exclusive." Also, things like traffic rules and such suggests states can effect courts somehow.

Finally, cl. 17 also talks about 'buildings,' so court buildings (and everything that go inside) would, I guess, be included.

This sort of thing must be amusing at law school cocktail parties. Next thing you will be saying is that the 11A means that states themselves can't be sued by their own citizens to enforce federal powers.

# posted by

Joe : 10:24 AM

"The words "exclusive legislation" indicate that no constitutional limits existed with respect to congressional powers under Article 17.

The debates following the draft of the constitution presented by the Committee of Style support this reading of the DC power. Madison proposed to empower Congress "to establish an University, in which no preference or distinctions should be allowed on account of religion." Gouverneur Morris responded, "It is not necessary. The exclusive power at the Seat of Government, will reach the object."

But George Washington settled the question of vetoing despite the constitutionality of a Bill. Why would the drafters of the 13th, 14th, and 15th Amendments have such a reading?

# posted by

Armen Adzhemyan : 3:58 PM

"[O]riginal expectations are not valid sources of law."

My reaction is similar to one of Prof. Balkin's. On my view, the sense historically expressed by the text is binding, but the historically-understood referent is not. But that doesn't mean that original expectations about reference are not valid sources of law. They're just as interpretively relevant as later assessments of reference, like those made by courts. We should give both of them Skidmore deference--deference to the extent that interpreters are likely to have (a) properly grasped the original sense, and (b) properly assessed the reference-yielding facts.

# posted by

Chris : 7:52 PM

that the distinction between original meanings and expectations is not as sharp as some theory suggests.

Bingo. Unless the original expectations incorporate some sort of factual assessment distinct from the legal rule established by the amendment, original expectations are a pretty powerful indicator of original public meaning, especially when those expectations involve a core part of the amendment's legal mechanisms.

But that was probably your point.

# posted by

JimM47 : 6:58 AM

L.S.,

I think the problem, if any, is the strange way that the US Constitution is amended. Rather than properly amending the main text, the amendments add something to the end, leaving it to others (than the writers of the amendment) to decide which parts of the main text have been amended and/or overruled. If I recall correctly, that is also the root of the eternal 16th amendment/Brushaber nightmare.

# posted by

martinned : 5:20 AM