Balkinization  

Sunday, June 30, 2013

Tendentious, mendacious or audacious? John Roberts rewrites the 10th Amendment

Sandy Levinson


One of the most astounding sentences in Roberts’s egregious Shelby County opinion gutting the Voting Rights Act is the following (slip op., p. 9):  “Indeed, the Constitution provides that all powers not specifically granted to the Federal Government are reserved to the States or citizens.  Amdt. 10.”  (emphasis definitely added)  This is, of course, a highly tendentious paraphrase of the text:  "
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”   No doubt Roberts realized that it would be, shall we say, a bit provocative if he had used the word “expressly,” given that Congress explicitly rejected amending the proposed Tenth Amendment (actually number 12 on the list) to include the magic word that had, of course, been present in the Articles of Confederation.  See, e.g., McCulloch v. Maryland on this point.  So instead he blithely substituted “specifically.”  [Update:  for what it's worth, I include the following set of synonyms from an on-line thesaurus
especially, exactly, in specie, intentionally, on purpose, particularly, precisely, specially, specifically ]
One might offer three different descriptions of this sentence:  a) merely tendentious; b) mendacious; or c) cleverly audacious, setting the basis for future citations of the form “as we recognized in Shelby County, only powers ‘specifically granted to the Federal Government’ are legitimate and all others are reserved to the states.”  As a long-time law professor, I can only say that if a student, asked to complete a short-answer question on “what does the 10th Amendment say,” wrote what Roberts did, I would be disinclined to award it a very good grade.  

I might point out, incidentally, with regard to Shelby County, that the Constitution expressly does grant Congress the power to engage in all appropriate legislation to enforce the 15th Amendment's guarantee that the right to vote will not be denied because of race.  So the 10th Amendment has nothing whatsoever to do with the case.  Instead, Roberts is telling us that because he, as a legislator, would not have joined Congress's overwhelming 2006 vote to renew the VRA, then Congress behaved "inappropriately."

Comments:

I think the argument would be that "specifically" is redundant in this context, rendered necessary only by the metastasizing concept of 'implied' powers. The whole point of dividing power into those delegated, and those not, is defeated if you're going to claim that powers not mentioned in the delegation are none the less somehow 'delegated'.

The principle, "Expressio unius est exclusio alterius" applies here: To list is to exclude that not listed.

Granted, this is a principle not much liked by those who don't believe the federal government SHOULD be one of limited powers. That doesn't make it any less applicable.

Anyway, I thought Shelby really relied on that "appropriate" in the 14th amendment, not on the 10th amendment. The 10th barely merited a mention in the opinion.
 

Brett

What do you think of the fact Professor Levinson points out though, that the Congress declined to adopt the word "expressly" which was used in the Articles? I would think that means something in interpreting the language...
 

And what do you think of McCulloch v. Maryland?
 

"Then, shalt thou count to three. No more. No less. Three shalt be the number thou shalt count, and the number of the counting shall be three. Four shalt thou not count, neither count thou two, excepting that thou then proceed to three. Five is right out."

Note this is comedy. In any serious context, when you direct your gardener to mow the lawn and trim the shrubs, you don't have to add that you're not authorizing him to fell all the trees in the orchard.

The 10th amendment was ratified to underline the principle that the federal government only got the powers given to it, not a general grant of power. But this is almost a sideshow, the 10th amendment was not central to Shelby, the 14th was, with it's "appropriate", which so many people would like to render meaningless.

What do I think of McCulloch v Maryland? Entropy sets in early, that's what I think.
 

"The 10th amendment was ratified to underline the principle that the federal government only got the powers given to it, not a general grant of power."

Yes, but it was ratified purposely leaving out the term "expressly" which was in the Articles preceding it, so there seems to be a good reason that the "powers given to it" might not have been simply those "expressly" given.
 

It isn't just the change in language from the Articles. The historical evidence doesn't support Brett's reading at all:

1. Both Madison and Hamilton agreed that Brett's reading is wrong. Here's Hamilton in Federalist 33:

“it may be affirmed with perfect confidence that the constitutional operation of the intended government would be precisely the same, if [the N&P clause] were entirely obliterated, as [it would be] if [it] were repeated in every article. [It is] only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government, and vesting it with certain specified powers.”

And Madison in Federalist 44:

“Had the Constitution been silent on this head, there can be no doubt that all the particular powers requisite as means of executing the general powers would have resulted to the government, by unavoidable implication. No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included.”

2. Jefferson and a few others (not Madison) made this argument in opposition to the Bank, but the majority in both Houses of the First Congress disagreed. Then Washington disagreed when Jefferson made the same argument to him. Then the Supreme Court unanimously disagreed with Jefferson in McCulloch.

3. The Federalists had a majority in Congress and controlled many states when the BoR was passed and ratified. They never would have agreed to such an important reduction in the power granted to Congress, and there's zero evidence that they did.

Look folks, John Roberts is a Lost Causer, a neo-Confederate. This has been clear since he used similar intellectual dishonesty to reframe the holding in Brown, and we probably should have known it long before that.
 

The "spirit" of the 10A at times seems not to quite match the words.

"Granted, this is a principle not much liked by those who don't believe the federal government SHOULD be one of limited powers. That doesn't make it any less applicable."

I don't know who "those" people are though repeatedly they amount to those who think the Constitution (including what the text appears to say) provides the feds certain limited power that is not limited enough for Brett.

Anyway, if a ratifier of the Constitution who fought in the Revolutionary War and served in three branches of government within a decade or so of its passage cannot be trusted, originalism does leave a lot to be desired.

Since he followed the approach of Hamilton and the Washington Administration on the bank, "entropy" seems to have set around 1791 or so.
 

It's Federalists vs Anti-Federalists. The Constitution is a Federalist document. The Bill of Rights, including the 10th amendment? An ANTI-Federalist document. It was imposed on them by states that didn't fully trust the Federalists.

And I can't say I'm much impressed with the determination to see to it that the 10th amendment remains a dead letter.

However, to repeat, what did the work in Shelby was the "appropriate legislation" language in the 14th, NOT the 10th amendment. Which is to say, it's those attacking Shelby who are trying to ignore part of an amendment, not the originalists.
 

Brett twice refers to the 14th Amendment and appropriate legislation. Actually, in Shelby, it is the 15th Amendment's enforcement clause that applied. Each of the 13th, 14th and 15th Amendments has enforcement clauses empowering Congress specifically. On an earlier related threat, I referenced Jack Balkin's "The Reconstruction Power," a draft article available at:

http://ssrn.com/abstract=1558749

Brett is no linguist and he's not very cunning, but that doesn't stop him from speaking with forked tongue. Perhaps he thinks it not relevant that the Civil War Amendments were enacted long after the 10th Amendment and that these Amendments' enforcement clauses empowering Congress limited the 10th.
 

To enumerate and to specify are synonymous.

So long as we all acknowldege as did the Court in McCullogh that the federal government is one limited to enumerated powers, I do not see the problem with Roberts' choice of terms.

Specify does the raise the issue of express and implied application of the enumerated powers.
 

Perhaps Justice Roberts was simply channeling Hamilton in Federalist 33 as quoted by Mark above:

“it may be affirmed with perfect confidence that the constitutional operation of the intended government would be precisely the same, if [the N&P clause] were entirely obliterated, as [it would be] if [it] were repeated in every article. [It is] only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government, and vesting it with certain specified powers.”
 

Of course McCulloch specifically raised the matter of "implied" powers as well as the specifically enumerated "necessary and proper" clause supporting the Court's holding on Congress' power to establish an unenumerated national bank. The enforcement clauses of the 13th, 14th and 15th Amendments specifically empower Congress. I suspect Roberts is channeling Rehnquist - recall the latter's memo as a Clerk on the continuing validity of Plessy when Brown v. Bd. of Educ. was being considered by the Court.

While no one directly challenges Brown any more, the direct challenges are to what Brown spawned. (By the way, would the Federalist Society exist but for Brown?)
 

I meant to post:

"Specify does NOT raise the issue of express and implied application of the enumerated powers.
 

Our SALADISTA's (FKA our yodeler) "correction" seems to not be in line with McCulloch which addressed - raised - both express and implied powers supporting Congress' actions.
 

If the key language was in fact the phrase "appropriate legislation" in Sec. 2 of the 15th A, then I have to wonder why Roberts chose to use such a loaded phrase as "equal state sovereignty" or even refer to the 10th A at all. That's pretty much hanging a Confederate flag on his argument.

It's also hard for me to see how interpretation of Sec. 2 supports Roberts' conclusion, since the whole point of that clause was to adopt Marshall's language from McCulloch. Any claim that Marshall intended a narrow interpretation is pretty hard to take seriously.
 

An ANTI-Federalist document. It was imposed on them by states that didn't fully trust the Federalists.

The Congress and states "expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added." including the "declaratory" 10A.

Madison, a Federalist, didn't mind since it stated a principle already expressed in the Federalist Papers. Anti-Federalists were known to think it didn't go far enough. This might be why they sometimes added words to it ala John Roberts.

http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html

The 10A still doesn't say "expressly" or even "enumerated." It says "delegated." And, those who disagree with Brett (who to be clear I'm using as a stand-in for a viewpoint) still don't support "unlimited" federal power.

And I can't say I'm much impressed with the determination to see to it that the 10th amendment remains a dead letter.

How? By applying delegated powers like the Commerce Clause or the 15A in ways you disagree with. "Dead letter" yet again means "not restrictive enough for me."

However, to repeat, what did the work in Shelby was the "appropriate legislation" language in the 14th, NOT the 10th amendment.

Ideas like equality of states and concern for their "dignity" did part of the work and this is part of the spirit of the 10A.

Which is to say, it's those attacking Shelby who are trying to ignore part of an amendment, not the originalists.

Not that "originalists" can be trusted anyway, since "entropy" set in c. 1791 and a leading ratifier of the Constitution, John Marshall, cannot be trusted.

Yet again, please, no one is trying to "ignore" the amendment. They DISAGREE on what something fairly opaque means. Not agreeing with you doesn't mean we are "ignoring" anything.
 

Mark Field's latest reminds me of Gerard N. Magliocca's appeal for more respect for the history of the 14A. Like it or hate it, one charm of the majority opinion in McDonald v. Chicago is some (some) actual respect of the history. Then, the goals there and here were somewhat different.
 

Richard A. Posner's Slate comment on Shelby County begins:

"Shelby County v. Holder, decided Tuesday, struck down a key part of the Voting Rights Act (the part requiring certain states with a history of racial discrimination in voting to obtain federal permission in advance to change their voting procedures—called “preclearance”) as violating the “fundamental principle of equal sovereignty” of the states. This is a principle of constitutional law of which I had never heard—for the excellent reason that, as Eric points out and I will elaborate upon briefly, there is no such principle."

Perhaps our SALADISTA (FKA our yodeler) and Brett can find that principle that CJ Roberts focused on in Shelby with their extensive constitutional expertise. Joey Fishkin did a number on this in an earlier post on the dignity of states.
 

This comment has been removed by the author.
 

Shag:

Roberts is far too concerned with precedent rather than the text of the Constitution itself.

Equal application of the law is a fundamental tenet of our Constitution.

The command of Section 1 of the 15A covers all states and thus any laws Congress enacts to enforce that command should likewise apply to all states.

Roberts could have easily made this textual argument, instead of relying solely on some scattered and not wholely on point prior precedent, and reversed Katzenbach's approval of Congress targeting a minority of states for enforcement of the 15A

 

"The command of Section 1 of the 15A covers all states and thus any laws Congress enacts to enforce that command should likewise apply to all states."

That seems like a pretty ahistorical reading, closing one's eyes to a ton of evidence that in enacting the 15th Congress was thinking of and facing a particularly regional problem.
 

Mr. W:

What matters is what Congress wrote.

The 15A is not limited to the states of the Confederacy, and neither BTW was Section 4 of the VRA.
 

I'm not saying it is so limited. My point was that given that it was written in response to and with in mind of the oppression of black voters in a certain region it seems odd to read into its text "or by any State" a requirement that all enforcement in its subsequent sections must apply equally to all states and regions.
 

The best our SALADISTA (FKA our yodeler) can come up with is this:

"Equal application of the law is a fundamental tenet of our Constitution."

Perhaps our SALADISTA can fill us in on how that tenet applide to African Americans (and women and Native Americans) before the Civil War Amendment, including the then provision in the Constitution supporting that tenet. Of course our SALADISTA knows that even AFTER the Civil War Amendment, the equal protection clause of the 14th Amendment provided very little benefit to African Americans until 1954's Brown v. Bd. of Education, and even then those former confederate states fought both Brown and what it spawned (including the 1965 VRA) tooth and nail.

So the application for hundreds of years was piss poor for African Americans.

So perhaps our SALADISTA can be a little more specific on the provision(s) of the Constitution that supports CJ Roberts's “fundamental principle of equal sovereignty” of the states that Judge Posner says doesn't exist.
 

Shag:

What is your point? That the Court should allow Congress to enforce the 15A in asimarly "piss poor" unequal fashion today?
 

I assume "asimarly" was intended to mean ""a similarly," in which case I would ask exactly when did Section 3 of the VRA become "a similarly 'piss poor' unequal fashion" - when the VRA was enacted in 1966, on renewal dates, including the most recent in 2006 almost unanimously, or just the other day when CJ Roberts relied upon his “fundamental principle of equal sovereignty” of the states?

But the point is aimed at a textual reading of the Constitution to locate provisions that support Roberts' principle. Our SALADISTA (FKA our yodeler) perhaps cannot find the answer in the text and thus ducks and weaves. The changing demographics may be the foundation of Roberts' principle. Alas, look at the quick responses of Texas and some other old confederacy states to take advantage of the elimination of Section 3 by the Roberts five.
 

Shag:

Reread my conversation with Mr. W.

I would add to that conversation that the command of Section 1 of the 15A not only applies to all states, but also the national government. Thus, any enforcement of that command ought to have the same reach.
 

To enumerate and to specify are synonymous

These poll numbers are great news for John McCain!

MSNBC didn't televise the speech of a Hispanic or African American elected official or candidate at the RNC

Expect Rice to resign within the week and accept all responsibility to protect the President

The center right electorate still opposes Obama policy, which is why they will fire him on Tuesday

The hits just keep on coming.
 

Here's the text of Sections 1 and 2 of the 15th Amendment:

"Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

" Section 2. The Congress shall have power to enforce this article by appropriate legislation."

The VRA addresses the denial or abridgment "by any State..." pursuant to Congress' enforcement power in Section 2. Section 1's text does not suggest a need for uniformity of Section 2's enforcement power for all of the states, although the VRA does apply to all of the states broadly.

Consider the "dignity" of the states carved out for special treatment. How did these states show their "dignity" for the 15th Amendment all those years since the adoption of the 15th Amendment up to 1966 with the VRA? How have these states shown their "dignity" for the 15th Amendment through the 2006 renewal almost unanimously by Congress of the VRA? And how have in particular the states of TX and NCar shown their "dignity" for the 15th Amendment within hours, days following CJ Roberts' principle in Shelby County?
 

Shag:

Under your reasoning, the Congress could decide to use the 14A to enforce the Bill of Rights against the states on behalf of white folks, but not black folks.

I would think that you of all people would recognize that equal enforcement of the law is a fundamental tenet of our Constitution.
 

Our SALADISTA (FKA our yodeler) attempts a diversion with his reference to the 14th Amendment that did not address the problems the 15th Amendment.attempted to resolve. A separate thread would be required to address the impact of the 14th Amendment on the Bill of Rights (or at least the first 8 Amendments). The decision in the DOMA case applied the 14th Amendment to protect a group from discrimination, a group that includes people of various colors. And McDonald v. Chicago, by incorporating the Second Amendment via the 14th, recognized an individual right for people of all colors. Perhaps when the point is reached as a result of changing demographics, a case might be made for affirmative action for white folks. That may be a matter for the 22nd century.

But let's not divert from the current 15th Amendment issues. And just what textual provisions of the Constitution support CJ Roberts' principle? Likewise with respect to our SALADISTA's claim of a " ... fundamental tenet of our Constitution." Maybe a real textualist will provide some help to our SALADISTA.
 

Garry Trudeau’s post-Shelby County Doonesbury comic strip features “The Return of Jimmy Crow” demonstrating that progressives are not sitting idly by.
 

Bart

I see in the Constitution a provision prohibiting any state from denying persons equal protection of the law, but no such provision regarding States. Not being a judicial activist I would therefore have not struck down a duly enacted piece of legislation on such extra-textual grounds.

Happy 4th to all!
 

Mr. W:

If you can show me how a law enforcing the 15A commandment applying to all states and the federal government can be textually applied to a minority of states, I am all ears.

The Constitution does not have to use the magic term "equal protection" to apply the principle of equal application of the law.
 

Once again our SALADISTA (FKA our yodeler) with this:

" ,,, the principle of equal application of the law."

fails to provide a supporting cite to the text of the Constitution. Perhaps our SALADISTA is a faux textualist.
 

This comment has been removed by the author.
 

This comment has been removed by the author.
 

Shag:

What part of "by the United States or by any State" in the 15A do you not understand?

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation


Section 2 only gives Congress the power to enforce the article in Section 1 as written - against the federal government and all states. There is no grant of power to Congress to enforce Section 1 against some subset of governments out of political convenience any more than they may only protect some subset of the citizens of the United States.
 

Our SALADISTA repeats Sections 1 and 2 that I had earlier spelled out challenging the principle he asserts. Sections 1 and 2 do not set forth such a principle. In fact, Section 2 would seem by its words, in conjunction with Section 1, to authorize Congress to legislate against any state that violates Section 1. Yes, more than one state may violate Section 1. But Congress is not proscribed by Section 2 to address every state in the same manner. The VRA in fact addresses all states in varying ways, recognizing Jim Crow states, with the procedures set forth in Sections 3 and 4 of the VRA. Congress also provided for an "opt out" for the Jim Crow states and also for an "opt in" by any state, whether Jim Crow or not, based upon actions taken. [I note that despite the Court's VRA decision, action may be taken to "opt in" TX for certains actions it has taken.]

Textualism fails to establish our SALADISTA's claimed principle. Perhaps an originalist can use "construction" as opposed to "original meaning" to find such a principle since the text is not clear.
 

The 10th amendment was ratified to underline the principle that the federal government only got the powers given to it, not a general grant of power.fifa coins online
lol elo boost
fifa 14 coins for sale
But this is almost a sideshow, the 10th amendment was not central to Shelby, the 14th was, with it's "appropriate", which so many people would like to render meaningless.
 

Post a Comment

Home