Balkinization: Fault Lines in the Constitution at the National Constitution Center

Fault Lines in the Constitution at the National Constitution Center

Sandy Levinson

Along with Gerard Magliocca, who will be talking about his excellent new book on the Bill of Rights, my wife Cynthia and I will also be at the National Constitution Center on Friday, December 15 (which happens to be Bill of Rights Day) to talk about our book Fault Lines in the Constitution. We were in Washington this past weekend speaking at the National Archives, and anyone interested in watching that presentation can click on to this Youtube site. We address eighteen different such fault lines and can necessarily talk only about a small subset of them at any given presentation, so the Friday presentation, which will take place from 1-2 PM, will necessarily focus on some different fault lines from those discussed in Washington.

Since it is Bill of Rights Day, we'll begin with the story of Eugene Debs, who went to jail for ten years (until pardoned by the under-rated Warren G. Harding, who also invited Debs to visit him at the White House) for opposing American participation in World War I. It's not only that the First Amendment proved to be simply a parchment barrier, but also, and more significantly for our purposes, that the Constitution says very little about "emergency powers" more generally, and the one things we know, contrary to the assertion of the Court in the Steel Seizure Case, is that emergencies often do indeed create the ostensible grounds for exercising powers that are nowhere explicitly spelled out. Many modern constitutions, such as the South African Constitution of 1994, do a far better job of contemplating a variety of potential emergencies and the possible responses that might be legitimate (and for how long).

No doubt, since we'll be speaking at a National Constitution Center program designed for high school students, we'll also note the gubernatorial candidacies of teenagers in both Vermont and Kansas, the two states that do not have minimum age requirements to run for governor. These kids are remarkably articulate, and I strongly hope that they are allowed to participate in the debates next year in those states. One of the unfortunate consequences of the eligibility fault line established by the US Constitution is not only that we don't even have the opportunity to hear the articulated views of relative youngsters who might have important things to say to us (such as, for example, a 24-year-old veteran of one of the endless wars currently being conducted by the U.S., arguably without sufficient authorization by a supine Congress).

I will also take this occasion to note that Fault Lines has been designated one of the best books of 2017 by Publishers Weekly, Kirkus Review, the School Library Journal, the Washington Post, and the New York, Chicago, and Denver Public Libraries. The Foreign Policy Journal declared that it "should be taught in every school." And the Richmond Times-Dispatch last week said that it would be "a fitting addition for homes where discussions, engagement and open discourse define the family culture." Though written for teenagers, it also has much in it for the teens' grandparents, parents, aunts, uncles, and big brothers or sisters. I can't imagine a better gift for whatever holiday you might be celebrating this season :)

I am following my regular practice of opening this for comment, but it's really hard to imagine why anyone would bother, other than anyone who actually looks at our National Archives presentation or, perhaps, has looked at our book. In that case, comments would be fully welcome.

Posted 9:07 PM by Sandy Levinson [link]

Comments:

"that the Constitution says very little about "emergency powers" more generally, and the one things we know, contrary to the assertion of the Court in the Steel Seizure Case, is that emergencies often do indeed create the ostensible grounds for exercising powers that are nowhere explicitly spelled out."

I wonder what the point of the 10th amendment was, if not to reject the idea that the federal government had any powers that weren't expressly delegated?

Anyway, I'll see if I can find some time to watch the presentation.

# posted by

Brett : 5:40 AM

Of special note today is the special Senate election in 'Bama. Republican candidate Roy Moore has said during his campaigning that America would have been better off if there had been no amendments to the Constitution AFTER the first 10 Amendments. Moore was especially critical of the 14th A. I wonder if Gerard missed getting a blurb for his book on the Bill of Rights by Moore (for marketing purposes, of course.) And it's clear without reading Sandy's (and his wife's) new book on "Faults" with the Constitution that the 13th, 14th and 15th As corrected certain faults in the 1787 Constitution (not to mention subsequent As that corrected faults regarding voting for Senators and Women's Suffrage). Whatever the results in 'Bama today, perhaps both Sandy and Gerard on Friday can tie-into their presentations what happens in 'Bama.

Regarding Brett's wonder about the 10th A's meaning, I wonder what history reveals about such, not only contemporaneously with its ratification in 1791 but throughout history since, including by the Executive, Legislative and Judicial Branches and academic circles. Maybe Roy Moore shares Brett's idea.

# posted by

Shag from Brookline : 8:49 AM

Odd, but I don't find the word "expressly" in the 10th A.

# posted by

Mark Field : 8:56 AM

By the way, over at the History News Network there is a review of:

"Nullification and Secession in Modern Constitutional Thought," edited by Sanford Levinson.

I direct link is available at Sunday's Legal History Blog's book reviews feature.

Query: Might nullification and/or secession cure "Faults" in the Constitution?

# posted by

Shag from Brookline : 8:58 AM

"Expressly" would have been redundant. You delegate powers by mentioning them, not by being coy about them. Don't demand that amendments be written like Monty Python skits in order to be taken seriously.

"The powers not delegated to the united states by the Constitution, and by this we mean actually delegated in writing, in this Constitution, in English to be interpreted by the normal laws of grammar, and inventing new meanings for words is prohibited, as well as scribbling in the margins, or interpreting the failure to forbid the exercise of a power as delegation..."

Please. If a power isn't mentioned, it isn't delegated.

# posted by

Brett : 10:08 AM

Unfortunately for you, the Framers expressly rejected your proposed interpretation when the chartered the Bank. The Court confirmed that they were right in McCulloch and has done so repeatedly ever since.

Furthermore, not only did the Framers include the N&P clause as a delegated power, but they, ahem, expressly argued that it was included solely out of caution and that Congress would have that power anyway.

# posted by

Mark Field : 10:40 AM

Even textualists and originalists interpret/construe the Constitution by implication when it suits their purposes. Using "expressly" would not be redundant but its use might limit implication. Let's check SCOTUS on this.

# posted by

Shag from Brookline : 10:47 AM

Here's a link:

https://www.theatlantic.com/national/archive/2011/07/constitutional-myth-7-the-10th-amend

"Constitutional Myth #7: The 10th Amendment Protects 'States' Rights'" by Garrett Epps on "tenthers" such as Mike Lee and Brett.

# posted by

Shag from Brookline : 11:01 AM

"Unfortunately for you, the Framers expressly rejected your proposed interpretation when the chartered the Bank."

So, by this reasoning, we should assume that the Alien and Sedition acts define the extent of 1st amendment protection of speech, right?

They erected parchment barriers, then tore the barriers themselves. They were right about the threat that the nation faced: They themselves.

Their fallibility doesn't imply we have to share their guilt, though: We're free to honestly interpret their work, not engage in the same sophistries they did.

# posted by

Brett : 11:46 AM

Wait a minute. You, a purported originalist, are going to reject the actual interpretation of an essential point, covered in the Federalist, extensively debated by the First Congress, plus Washington, plus the Supreme Court in an opinion written by an actual ratifier? I mean, I think originalism is junk, but your position goes miles beyond me.

# posted by

Mark Field : 12:59 PM

Oh, and as for the Alien and Sedition Acts, I don't have to treat those as precedent because I'm not an originalist. They're a real problem for anyone who is, though.

# posted by

Mark Field : 1:00 PM

Originalism doesn't require that you pretend the founders were perfect, incorruptible.

Suppose a legislator votes for a criminal statute. Later he does something which, facially, violates the statute. And even attempts to rationalize doing so.

Are we obligated to interpret the statute in such a way that his subsequent conduct can't be a violation? No, of course not; We know people commit themselves to follow rules, and then break those rules. People are fallible.

So, too, were the founders.

# posted by

Brett : 1:37 PM

Here's Brett's silly-gism:

1. The Founders/Framers as are all people were fallible.
2. The Founders/Framers wrote the 1787 Constitution
pursuant to which Congress proposed the bill of rights in 1789,
the former ratified by people in 1789 and the latter ratified by
people in 1791.
3. Therefore, the Constitution and the bill of rights are also fallible.

While the Framers/Founders may not have been perfect, neither are the originalists of the multi-versions of originalism, a movement that started in the late 1970s, who claim centuries later to know the intent, understanding, meaning, whatever, back in 1789 and 1791 than contemporaries and those closer in time did. Brett continues with his simpletonian concept of the meaning of the Constitution and its amendments. We are, it is said, a nation of laws, not of men. But men (now women, too) make the laws, interpret and enforce them. The Constitution does not provide judicial for supremacy over the federal executive and legislative branches. And these men and women are fallible. So maybe that fits with Brett's sometimes anarcho libertarian mode. Sandy focuses upon Fault Lines in the Constitution. Perhaps it's fallibility and we're all doomed by the Constitution'a original sin (That Roy Moore seems to want to bring back).

# posted by

Shag from Brookline : 3:04 PM

Brett's favorite federal power-over immigration-isn't 'expressly' delegated by the Constitution. At best it's implied by the Slave Trade Clause. Of course, I don't see how originalists can point to that clause for that power because it's fairly obvious the 'original public understanding' of that clause was that it wasn't about immigration but slavery.

# posted by

Mista Whiskas : 3:34 PM

Odd, but I don't find the word "expressly" in the 10th A.

OTOH, it's in the Articles of Confederation:

"Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled."

Usually, when something is specifically not included in a replacement document, it is particularly notable. The actual words, us living constitutionalists care about them, is "delegate" -- "authorize." There is various ways that can be done besides explicit mentioning, which is a basic reason why the lack of "expressly" matters.

The "emergency powers" are defended for good or ill in various ways with references to the text anyhow. But, adding a word to the 10A is still bad pool.

"So, by this reasoning, we should assume that the Alien and Sedition acts define the extent of 1st amendment protection of speech, right?"

I'm not really sure why. There was a strong dispute -- as there was regarding various constitutional provisions -- on the legitimacy of those acts at the time. It is a sign that interpretation of the Constitution is best approached by using the lessons of history as a whole, not selectively appealing to one alleged "original understanding." But, if that sort of thing appeals, the actions of the first few Congress are rather notable [Jefferson opposed them largely on federalist grounds, accepting seditious libel in state prosecutions.]

# posted by

Joe : 4:03 PM

Immigration would arise in various contexts such as regulation of commerce but yes the lack of "expressly" assists there.

# posted by

Joe : 4:18 PM

Congratulations on all the plaudits for your book.

# posted by

Asher Steinberg : 5:13 PM

Yet again, people two centuries after the fact know with certainty the answers to questions the Framers disagreed about, if they even thought about them.

# posted by

CJColucci : 5:38 PM

For a musical interlude, check out:

https://www.youtube.com/watch?v=R-TGmc4CZUU

featuring Ella and Louis. [I couldn't locate a version by Sassy (Sarah Vaughn) in condolence for Roy.]

# posted by

Shag from Brookline : 9:04 AM

Blogger Brett said...I wonder what the point of the 10th amendment was, if not to reject the idea that the federal government had any powers that weren't expressly delegated?

Shag: "Constitutional Myth #7: The 10th Amendment Protects 'States' Rights'" by Garrett Epps on "tenthers" such as Mike Lee and Brett.

Epps: Since the Amendment was adopted, constitutional thinkers have concluded that the express powers delegated to the federal government by the Constitution necessarily carry with them the "implied" powers needed to carry them out.

When the Constitution expressly grants the national government power over a subject matter area by definition implies the delegation of subsidiary powers within that subject matter area which the Constitution may not expressly note. For example, Congress's expressly delegated power to "raise and support armies" includes the implied power to buy artillery for the Army, even though the Constitution does not mention artillery.

Contrary to the title of Epps' essay, this common sense interpretation of delegation in no way contradicts the Tenth Amendment command: "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."

# posted by

Bart DePalma : 3:01 PM

SPAM misreads Epps, misreads history of the 10th A in inaction, in an attempt to display his selfishness uber selflessness. SPAM ignores the N&P clause as well. Now, I realized SPAM's skills as a criminal defense attorney in rural CO making plea deals in its police courts for DUI clients. Beyond those police courts, SPAM is out of his league. Perhaps SPAM could cite to how SCOTUS has addressed the 10th A from the ratification of the bill of rights to date reflecting SPAM's position.

# posted by

Shag from Brookline : 4:52 PM

Shag: SPAM ignores the N&P clause as well.

The N&P clause simply grants Congress the power to enact laws necessary to execute, but does not grant Congress the power to exceed, the previously delegated powers. For example, Congress can create a mint so it can exercise the delegated power to coin money.

Beyond those police courts, SPAM is out of his league.

I have routinely drafted briefs on matters of constitutional law in both criminal and civil courts of both the state and federal systems for the past 20 years. Have you ever drafted one?

Perhaps SPAM could cite to how SCOTUS has addressed the 10th A from the ratification of the bill of rights to date reflecting SPAM's position.

Progressive courts have reduced the 10A to a nullity by rewriting the Commerce Clause into a near general police power.

Restoring our federal system is one of the primary reasons we badly need an Article V convention of the states.

# posted by

Bart DePalma : 6:33 PM

SPAM a constitutional scholar? Check the archives for his bragging rights on being the #1 DUI defense counsel in his rural CO neighborhood after leaving "big law" in FL for CO's Mile High (state of Mind) before the Ganja revolution. Why SPAM's close to a full time troll at this Blog. Just check the Archives.

SPAM on SCOTUS cites to back up his tenther claims is as follows:

"Progressive courts have reduced the 10A to a nullity by rewriting the Commerce Clause into a near general police power."

The 10th A was ratified in 1791. Prior to the New Deal, which began in 1933, there were "progressive courts"? The New Deal is long gone; so is the Warren Court. Since then SCOTUS has been conservative. But what about between 1791 and 1933 and after the Warren Court to date on 10th A cites supporting SPAM's view?

As to the need for a convention of the states, check the Archives of this Blog for amendment proposals made by SPAM. The current political atmosphere is too dysfunctional for anything like a second constitutional convention. The Constitution has its faults, in text, in interpretation, etc, but the song "It Had To Be You" includes this line: "With all your faults I love you still ... " Progress has been made over more than 200 years (despite what Roy Moore said about amendments after the tenth). The current atmosphere politically at such a convention might indeed lead to nullification and secession or a 2nd A shootout.

# posted by

Shag from Brookline : 7:44 PM

How about the power to create paper money?

# posted by

Shag from Brookline : 7:48 PM

SPAM's:

"Restoring our federal system is one of the primary reasons we badly need an Article V convention of the states."

might be his suggestion that SCOTUS was great during The Gilded Age" of the late 19th century, which SPAM believes were America's best days.

# posted by

Shag from Brookline : 8:02 PM