an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
We appreciate the lively discussion of Justice Chase’s opinion in Calder v. Bull, which has ensued from our "Essay" on Due Process as Separation of Powers, and has spread to various legal blogs, including Balkinization (Mark Tushnet), The Originalism Blog (Kurt Lash), and The Library of Law and Liberty Blog (Mike Rappaport). In the Essay we argue that the original understanding of due process of law was bound up with the original understanding of the role of the legislature, executive, and courts. In particular we focus on the separation of the judicial power from the legislature, and on the limited nature of executive power with respect to deprivations of rights. Calder is relevant because it involved legislative performance of a judicial function, and because Justice Samuel Chase’s opinion is often cited as an example of early judicial enforcement of unwritten constitutional principles. On pages 1745-46, we quote Chase's famous passage at 388 and the first sentence of the second paragraph at 394. We conclude that Chase's point was that "the legislature should not be 'presumed' to act contrary to these principles" [citing Lash's an article by Kurt Lash that offers a similar interpretation of the opinion]. By "these principles" we refer to the principles governing a social compact Chase lists on 388. Framed by the larger thesis of our paper, we link two notions. First, based on social compact principles, it should not be presumed that the people have given legislatures the power to act like courts. Second, based on those same principles, it should not be presumed that a legislature has acted like a court. Applying the Blackstonian equitable interpretive method, Chase could have–and we think, in light of his full opinion, most likely did–reach his result without holding that unstated unwritten principles of the U.S. Constitution trump explicit state legislation. This is what Mike Rappaport labels the third possible interpretation of the opinion. Kurt Lash and Mike Rappaport have both quoted the passage from 388, and we need not repeat it. Here is the passage we cite from 394; we quoted the part in bold.
It was further urged, that if the [constitutional] provision [prohibiting ex post facto laws] does not extend to prohibit the making any law after a fact, then all choses in action; all lands by Devise; all personal property by bequest, or distribution; by Elegit; by execution; by judgments, particularly on torts; will be unprotected from the legislative power of the states; rights vested may be divested at the will and pleasure of the state legislatures; and, therefore, that the true construction and meaning of the prohibition is, that the states pass no law to deprive a citizen of any right vested in him by existing laws. It is not to be presumed, that the federal or state legislatures will pass laws to deprive citizens of rights vested in them by existing laws; unless for the benefit of the whole community; and on making full satisfaction. The restraint against making any ex post facto laws was not considered, by the framers of the constitution, as extending to prohibit the depriving a citizen even of a vested right to property; or the provision, "that private property should not be taken for PUBLIC use, without just compensation," was unnecessary.
Chase’s reference at 388 and 394 to a “presumption” that the people will not vest legislatures with certain power and that legislatures will not exercise such power appears to us to employ the then-familiar method of Blackstonian equitable interpretation, which had been used by American courts even before there was a written federal constitution. Equitable interpretation involved departure from the plain meaning of a statute in a particular case, on the presumption that the legislature did not intend to violate basic norms of the rule of law – unless the language of the statute was explicit and the legislative intent evident. It was a bit like the modern practice of constitutional avoidance.
To be sure, in Blackstone there was only one step in the presumption: that of statutory construction. Chase used the presumption both with respect to the people vesting the legislature with power and also with the legislature exercising it. But it comes down to the same thing: narrowly construing state laws in accordance with the charitable presumption that the legislators did not intend to violate basic norms of the rule of law. The only difference is that Blackstone was operating in a unitary system, applying principles of British law to British statutes, while Chase was operating in a federal system, applying principles of federal law to a Connecticut statute. Perhaps Mark Tushnet is correct that we should have been more explicit in connecting the dots between Chases’s two uses of the presumption, but we thought (and still think) the connection is clear enough. The underlying point is unaffected: Chase used underlying legal principles to equitably interpret the Connecticut law, presuming Connecticut’s legislators (both the people and their representatives) not to have intended the legislature to act like a court. That said, we do not deny that Chase’s opinion is plausibly subject to different interpretations. The opinion is a textbook example of opaque, muddy, non sequitur-riddled judicial writing.
We would like to assert one point of personal privilege in this discussion, however: to absolve the Yale Law Journal editors of any charge that they submitted to an exercise of what Mark Tushnet calls “authorial power” in this matter. We did not assert authorial power, and the editors did not succumb to it. If there was any error in our discussion of Calder (and we are not persuaded there was) it belongs to the authors alone.
Nathan Chapman is Executive Director of the Stanford Constitutional Law Center. You can reach him by e-mail at firstname.lastname@example.org.
Michael McConnell is Richard and Frances Mallery Professor of Law and Director of the Stanford Constitutional Law Center. You can reach him by e-mail at email@example.com Posted
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