jackbalkin at yahoo.com
bruce.ackerman at yale.edu
ian.ayres at yale.edu
corey_brettschneider at brown.edu
mary.l.dudziak at emory.edu
joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
mgraber at law.umaryland.edu
sgriffin at tulane.edu
jonathan.hafetz at shu.edu
jkessler at law.columbia.edu
akoppelman at law.northwestern.edu
msl46 at law.georgetown.edu
slevinson at law.utexas.edu
david.luban at gmail.com
gmaglioc at iupui.edu
mazzonej at illinois.edu
lmcclain at bu.edu
mikhail at law.georgetown.edu
pasquale.frank at gmail.com
npersily at gmail.com
Michael Stokes Paulsen
michaelstokespaulsen at gmail.com
dpearlst at yu.edu
rick.pildes at nyu.edu
dpozen at law.columbia.edu
raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
alice.ristroph at shu.edu
siegel at law.duke.edu
david.super at law.georgetown.edu
btamanaha at wulaw.wustl.edu
nelson.tebbe at brooklaw.edu
mtushnet at law.harvard.edu
winkler at ucla.edu
Compendium of posts on Hobby Lobby and related cases
The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC
The Anti-Torture Memos (arranged by topic)
Interpreting the Twelfth Amendment
Monday, October 15, 2012
Interpreting the Twelfth Amendment
Gerard N. Magliocca
One of the golden oldies in constitutional interpretation is the question of whether the Vice-President can preside over his own impeachment trial as President of the Senate. The constitutional text does not prohibit this obvious conflict-of-interest, but such a scenario is hard to reconcile with basic fairness. (In Akhil Amar's new book, he makes a persuasive case that vice-presidential participation as a judge is his own case would violate the structural principles of the Constitution.)
Of course he can. Being a real world document, the Constitution which was actually ratified has flaws. Originalists don't deny this, they just care that it IS the actual constitution, all the same.
funny you should ask http://www.pointoforder.com/2012/10/11/are-you-ready-for-the-romney-biden-administration/
It seems to me that there are three arguments against permitting the VP to vote here. First, as a textual matter, the VP’s vote wouldn’t give the winner a “majority of the whole number,” which the 12th amendment says is necessary for a choice, because the VP isn’t a senator and therefore is not part of the “whole number” of senators. Second, as a matter of purpose or consequences, it is unlikely that the 12th amendment was intended to allow the VP to vote in an election in which he would so often be an interested party (just as members, at least in the House, are not supposed to vote on matters relating to their own seats).
Third, and perhaps most tellingly, the 12th amendment provides that a quorum for purposes of selecting the VP is two-thirds of the Senate, but a majority is necessary to a choice. Thus, 67 senators are enough to vote on the issue, but there must be 51 voting in favor of the winner. If only 67, or any number between 67 and 99, senators vote, and 50 vote for Biden, the Senate would not be equally divided, and thus the VP would have no vote.
The counter-argument, at least to the third structural point, would be that the Senate could require all senators to attend (which is true) and to vote (which I am not sure is true) and to make a choice between the two eligible candidates (ditto), thereby resulting either in one candidate winning outright or in a tie, which the VP could break.
Note the additional complications if one or more seats have not been yet filled (eg, because of a contested election).
Assuming that the VP cannot break the tie, then I suppose the Senate has two options (1) negotiate until an agreement is reached on a winner and (2) declare the Vice Presidency vacant, thereby triggering section 2 of the 25th amendment.
In 2000 the electoral vote was 271-266 (with one Democratic elector abstaining). Counterfactually, assume that two prescient Republican electors abstained from voting for Dick Cheney, meaning there was no electoral majority for Vice President. In that case, Senator Lieberman, the Democratic candidate for VP, could have voted for himself when the Senate elected the VP. How is an incumbent VP different?
As to who "cares" about the actual constitution, this might interest some:
Labels aside, those who disagree with "originalists" (whatever type in question), "care" what is in the "actual" Constitution & realize it has "flaws." Being a "real world" document, they also find the path taken by originalists as often naive or misguided for just that reason.
Moving on. The 12A says "the Senate" should choose & it is unclear if "the Senate" should work differently on this matter in the case of a tie.
As the OP notes, self-interested parties acted in this context though like a President pardoning himself, arguably the "not a judge in your case" implicit rule might be in place.
Basically, arguments are present on both sides but good policy is for Biden not to vote since there is no compelling obligation to press such a bad policy. Good thing it is not likely to split 50-50 or we would have to hope one vote would be convinced to vote differently.
The vacant/25A route requires a confirmation by both houses. So, there remains a possibility of no relief, if the Senate continues to vote 50-50, the old VP's term up now & no tiebreaker present.
Or, at least one senator could have changed their mind and/or the President could have nominated a different VP that affected the proceedings.
It’s a fair point, but there are two separate issues here. First, does the Twelfth Amendment permit the VP to vote, regardless of whether he is a candidate? Second, assuming that the VP is generally permitted to vote, is there a particular prohibition when he is a candidate?
Taking the second question first, its true that there are instances where the Constitution grants a power and does not explicitly prohibit its exercise in conflict of interest situations. These would include (a) a Senator or Representative voting in a Twelfth Amendment election in which he or she was one of the candidates; (b).Members voting on their own elections, qualifications or discipline under Article I.; and (c) the VP presiding at his own impeachment trial.
Jim assumes that (a) is permissible and maybe it is. I merely observe that (b) is not permissible, at least under House precedent as I understand it, and Professor Amar apparently thinks that (c) is also impermissible. So I am not sure that the answer is that obvious.
My main point, however, relates to the first question, namely whether the VP has the power to vote, under the Twelfth Amendment, at all. I would argue that the high probability of a conflict of interest in any such voting is a strong reason not to construe ambiguous provisions as granting that power.
For once, I'm in complete agreement with Brett. There are many dumb things in the Constitution, of which this may be one. But it seems clear to me that the text of the Constitution allows the VP to break any and all tie votes.
Professor Levinson- it may be clear that the VP is permitted to break all tie votes (although I would note that it was at least somewhat controversial well into the 19th century whether the VP’s vote extended to procedural or organizational matters), but presumably the VP couldn’t break a 49-49 tie under the 12th amendment (or at least can’t break it in a meaningful way). It is also not clear (at least to me) that the VP is part of the “whole number” referred to in the 12th amendment. Finally, what happens if the vote is 50-49? There is no tie, so presumably it is “clear” that the VP cannot vote?
Incidentally, while I understand that Brett believes the Constitution should be read according to its plain text, even if the results are stupid, and Sandy believes that the Constitution is often stupid, that doesn’t mean we have to look for stupid results. “Where a meaning is clear, its consequences, whatever they may be, are to be admitted—where doubtful, it is fairly triable by its consequences.”
"“Where a meaning is clear, its consequences, whatever they may be, are to be admitted—where doubtful, it is fairly triable by its consequences.”"
Yup, I'm just concerned about the tendency to let concern for consequences cause doubt, where you wouldn't find any if you didn't give a damn what the consequences were.
Prof. Levinson should not be in "complete" agreement since the implication is that non-originalists don't "care" etc. There are "stupidities" in the Constitution as a book he was involved in notes.
I'm just concerned about the tendency to let concern for consequences cause doubt, where you wouldn't find any if you didn't give a damn what the consequences were.
If so, not sure why you implied "originalists" were the ones who "cared." Being the "real world," those who live in it care about consequences & try to avoid bad consequences when possible.
The Constitution is full with provisions that can be interpreted in various ways. It is likely in the "real world" for people to be more concerned about that when the results are bad.
This does not mean we should ignore what is in the actual Constitution but what is there (as mls etc. shows here) is often less clear than some might think. For instance, a President pardoning himself very well might have violated a basic due process principle that was understood to be implicit.
A world passed between 1804, the year of Amendment XII's ratification; and 1933, the year amendment XX was ratified. XX modified XII in part. Party politics became de rigeur in that time span. If the legislature assembled as the electoral college arrives at the described standoff, I would expect a partisan outcome, not a government in the style the French prefer to call co-habitation.
If all those contingencies come to pass, professor Levinson will be joined by many choruses asking for better rules, set at a limited constitutional convention. I even would predict invocation of the names of a few US Senate parliamentarians past!
I am not sure teaparty isolationism-conservatism-literalism is sufficiently entrenched, certainly not in the national legislature upper chamber, yet. Yet, it could prove interesting in the post-election-day time, given the constitution's careful respect paid to the lower chamber in such putatively contentious times.
Hello Dear and Respected Editor/ Website Manager,
I hope you are fine and carrying on the great work you have been doing at your blog. I am Amna Mekal from The Pakistani Spectator (TPS), We at TPS throw a candid look on everything happening in and for Pakistan in the world. We are trying to contribute our humble share in the webosphere. Our aim is to foster peace, progress and harmony with passion.
We would like to interview you for our website to facilitate the bloggers and other aspirants for blogging. Please send us your approval for your interview in your reply to firstname.lastname@example.org , so that I could send you the Interview questions. We would be extremely honored.
Media Manager TPS,
FWIW, Michael Ramsey agrees that Biden cannot vote under the 12th amendment http://originalismblog.typepad.com/the-originalism-blog/2012/10/eugene-volokh-on-the-twelfth-amendment-and-founders-errormichael-ramsey.html
Its good to hear from you, Shag. I was worried that the title of Sandy's post "Was John Yoo right after all?" might have done you in.
No, I wasn't done in my Sandy's title, but it reminded me that I haven't had a "Yoo-Hoo" for quite awhile. Perhaps a more accurate title for Sandy's post might have been "Yoo of little faith" to byte the big one.
منتدى دردشة عراقنا
منتدى شلة عراقنا
One of the golden oldies in constitutional interpretation is the question of whether the Vice-President can preside over his own impeachment trial as President of the Senate. swtor gold
buy swtor gold
cheap swtor gold
buy tor credits
cheap tor credits
t seems to me that there are three arguments against permitting the VP to vote here. First, as a textual matter, the VP’s vote wouldn’t give the winner a “majority of the whole number,” which the 12th amendment says is necessary for a choice, because the VP isn’t a senator and therefore is not part of the “whole number” of senators. Second, as a matter of purpose or consequences, it is unlikely that the 12th amendment was intended to allow the VP to vote in an election in which he would so often be an interested party (just as members, at least in the House, are not supposed to vote on matters relating to their own seats).guild wars 2 gold
buy guild wars 2 gold
cheap guild wars 2 gold
cheapest guild wars 2 gold
guild wars 2 gold for sale
All's for the best in the best of all possible worlds！ I have not see post good enough like yours here.Just admire your intelligence and informative explanation. I am a wow gamer but can't write such detailed info about that.
More tags: wow gold for cheap /
world of warcraft money /
gold for wow cheap /
cheap gold for wow
HD kaliteli porno izle ve boşal.Post a Comment
Bayan porno izleme sitesi.
Bedava ve ücretsiz porno izle size gelsin.
Liseli kızların ve Türbanlı ateşli hatunların sikiş filmlerini izle.
Siyah karanlık odada porno yapan evli çift.
harika Duvar Kağıtları bunlar
tamamen ithal duvar kağıdı olanlar var
Books by Balkinization Bloggers
Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023)
Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022)
Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022)
Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022)
Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021).
Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021).
Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020)
Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020)
Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020)
Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020).
Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020)
Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020)
Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020)
Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019)
Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018)
Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018)
Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018)
Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017)
Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017)
Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016)
Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015)
Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015)
Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015)
Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014)
Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution
Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014)
Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013)
John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013)
Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013)
Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013)
Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013)
James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013)
Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues
Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013)
Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012)
Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012)
Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012)
Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012)
Jack M. Balkin, Living Originalism (Harvard University Press, 2011)
Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011)
Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011)
Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011)
Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011)
Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010)
Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010)
Balkinization Symposium on The Decline and Fall of the American Republic
Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010)
Mark Tushnet, Why the Constitution Matters (Yale University Press 2010)
Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010)
Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009)
Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009)
Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009)
Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009)
Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009)
Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008)
David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007)
Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007)
Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007)
Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006)
Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006)
Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006)
Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006)
Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006)
Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005)
Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004)
The Information Society Project
Syllabi and Exams