Balkinization: The authoritarianism of the law

The authoritarianism of the law

Sandy Levinson

I am struck by the role that precedent plays in the discussion of whether states have a right, prior to the final announcement that a new amendment has been added to the Constitution, to rescind their prior approval. I am reminded of Jeremy Bentham's critique of precedent-based argument, which he correctly described as the worst kind of appeal to brute authority. Precedential argument is very much at odds with the image that lawyers often try to convey that they/we are devotees of reason and what Habermas might call the logic of the better argument. Once one throws precedent into the mix, though, then the "better argument" often boils down to the fact that some presumptive authority made a dubious decision in the past and that, for often unexplained reasons, we feel stuck with it today. I confess I tend to be a devotee of Andrew Jackson's statement in his Bank Veto that Supreme Court decisions are entitled "to only so much respect as their reasoning" entitles them to, and of Holmes's proclamation in The Path of the Law that it is "revolting" to have no better reason for doing something than the fact that so it was done in the reign of Henry IV.

Don't get me wrong: I think it is fine to "follow precedent" in matters that aren't of much importance. Who really cares, for example, whether one applies the preference rules of bankruptcy to a check based on its date of writing or receipt? It is important to have a rule, and whatever the Court says (and I confess I forget its holding) is fine with me. But where issues are truly important, precedential "reasoning" has relatively little to be said for it If I shared Randy Barnett's, Richard Epstein's, or Clarence Thomas's views of constitutional meaning and, more importantly, what constituted the most desirable kind of polity, then I would have no particular commitment to maintaining New Deal precedents in all of their glory. But I don't, and I'm glad to continue citing Darby as an authoritative interpretation of the Constitution.

So what this boils down to is that I await a fully developed argument, independent of reference to what some state attorney general might have said, about why a sensible constitutional designer, presumably desiring to create a document that, in Marshall's word, is to "endure" through time, would adopt a scheme of amendment that a) is needlessly difficult, as Article V most certainly is; b) disallows Congress from placing time limits once an amendment is proposed, so that we can have the silliness of the so-called 27th Amendment, proposed in 1789 and declared ratified in 1992; and c) tells states that once they have said yes to a proposed amendment, they are estopped from changing their minds regardless of any (presumptively justified) changes of opinion that what seemed desirable in, say, 1977 is no longer desirable in 2017. I think that the interpretations being offered of Article V make an already dreadful article even worse. Why, exactly, am I wrong?

No doubt there is good reason for the zeal behind adding the ERA to the Constitution. But I'm really quite amazed (and obviously unpersuaded) by the arguments being made that supporters don't have to go back to Congress for a reproposal or, as I would prefer, support an Article V constitutional convention that could consider the merits of an ERA and many other deficiencies of our really quite terrible Constitution. Were the shoe on the other foot, and the Koch brothers and ALEC were backing some similar proposed revival of what progressives thought was a fortunately dead amendment, I think we'd be properly furious.

Given that I'm not a strong devotee of the cult of "neutral principles," I could disregard this if I thought it were truly important, and not simply of symbolic significance, to add the ERA at tis time, but I just don't see exactly what it would add that is not already present in, say, Justice Ginsburg's interpretation of the Fourteenth Amendment in VMI. We could reopen the debate about gender-segregated bathrooms. Would they be barred by the ERA? But what else, exactly, would it change with regard to our existing doctrine of the 14th Amendment?

UPDATE: Brett, a frequent discussant with whom I usually disagree, makes the valuable point that the rules of Congress allow its members to change their vote up to the moment that the presiding officer announces the result. Why is that acceptable, but not a "sovereign state's" change of its collective mind? I can easily imagine that greater detrimental reliance is placed by callow members of the House or Senate on the fact that some Rep. X or Senator Y has voted yea, only to be stunned at the last moment by the change of those worthies' positions.

Posted 12:20 PM by Sandy Levinson [link]

Comments:

Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed.

This isn't merely a legal fiction. It is a standard of human existence and practice so at some point reliance on precedent seems in no way surprising or problematic. Obviously, surely liberals in particular won't say precedents don't change. But, even then, there tends to be some basic principle of longstanding (such as equality) that isn't new. It's how it is specifically applied that is. McCulloch v. Maryland can be cited here.

I again ask Sandy Levinson and others -- if recission is deemed so logical as a possibility, where is the evidence that it was assumed that states might rescind ratification of the Constitution before the necessary numbers ratified. I'm not an originalist but some people care about this historical understanding. And, also, if it was not assumed, why wasn't it assumed? What reasons?

Mark Field cited a possible reason -- reliance interests. Once a state ratifies, this ratification is relied upon by others. This could especially be useful before modern communications. The receipt by the Secretary of State is a fixed thing and the issue would not always be in flux. Others (see the article cited in the previous thread) argue the text of Art. V overall at least implies states can only say "yes" or "no," not continuously change their mind. This might be stupid, of course, but see a book co-edited by SL, "Constitutional Stupidities, Constitutional Tragedies."

I think the precedent that there is an implicit time limit makes sense too so the 27A was badly handled. The effect of the amendment is limited but they should have re-started the clock, not counting the original eight states. It likely would have been ratified anyway, though not counting those eight, the necessary number only ratified this century. Too much time passed there regarding the ERA so this recission stuff is really moot.

This still leaves open a "message" recission which especially after a long period passed can tell Congress if the proposal is truly contemporary (see Coleman v. Miller for details). One national body with representatives of each state would be a logically (if that is all that matters) sound approach to handle such questions during the process.

I agree that supporters -- many of whom probably don't realize it is still active -- should go back to Congress. See, e.g., Jennifer Finney Boylan's ope-ed today in the NYT supporting a new GLBTQ Rights Amendment, noting a legal challenge to the "ratification" of the ERA if one more state legislature ratifies is "not without good reason: The E.R.A. was unique in having a time limit imposed. The 27th Amendment, in fact, was passed after Michigan ratified it in 1992, over 200 years after James Madison proposed it.)."

Anyway, on this blog, I personally have repeatedly cited precedent on this matter. I cite that in part since precedent is an important part of our law. And, I think the ERA itself was proposed with precedent understood -- if recission should be allowed, it should be expressed upfront in the process at least, ideally. But, precedent can be wrongly, surely.

However, I'm not sure it really is on this question.

# posted by

Joe : 12:52 PM

I don't see the argument for precedent that way. As I see, it's a prudential guide to consider that others may have adopted a different decision and to engage with their arguments. I'm not sure anybody thinks "precedent" (which in my view is too narrowly defined most of the time) is binding.

Now let me turn your other questions around: how does it make Art. V worse to prevent the added complication of state rescission? Seems to me that makes it more functional (assuming that's the goal).

# posted by

Mark Field : 12:54 PM

It makes it worse, because it takes a process intended to change the Constitution only if there is widespread agreement to changing it, and opens a path to changing it in circumstances where no such agreement is present.

In my hypothetical, 18 state legislatures vote to ratify an amendment in 2018, prior to the election. The election ousts those majorities, and the new legislatures vote to rescind.

Then in 2020 18 different state legislatures vote to ratify the amendment, and are themselves voted out by the people, and their ratifications rescinded by the new legislatures.

Then in 2021, a single state votes to ratify, and the amendment, which never had the support of more than 18 states, and currently has the support of only one state, becomes part of the Constitution.

THAT is what you're opening the door to by saying rescinding a ratification prior to reaching 3/4th of the states is not permitted.

I really don't see the case for a reliance interest here. Reliance interests kick in when you undertake an act which makes you worse off if the party you're relying on reneges. A state does not become worse off for voting to ratify an amendment, if another state rescinds. Rather, all that happens is that the status quo ante remains in force.

# posted by

Brett : 1:26 PM

The Supreme Court notoriously continues to hold that self-evident religious mottoes like "in God we Trust" and "under God" are, by hoary cultural tradition, political rather than religious and thus not subject to First Amendment proscription.

# posted by

jimbino : 1:52 PM

Oops. My first comment said that "precedent" was too narrowly defined. I meant too broadly defined.

"It makes it worse, because it takes a process intended to change the Constitution only if there is widespread agreement to changing it"

For someone who's quite literalist much of the time, you're ignoring the plain text of Art. V: "when ratified by the Legislatures of three fourths of the several States". If the Framers wanted to leave open the power to rescind a ratification, or to impose a "widespread agreement to changing it" condition, they surely knew how to say so.

Regardless, I was responding to the OP, which describes Art. V as "needlessly difficult". ISTM that adding the potential for rescission makes it yet more difficult. Neither the text nor the history compels that result, and I've stated my structural arguments for why we should oppose it, so I see no reason to increase the difficulty.

I see the time limit issue as less significant because, best I can tell, there's universal agreement that Congress can impose one by including it in the text of the amendment.

# posted by

Mark Field : 2:16 PM

"Given that I'm not a strong devotee of the cult of "neutral principles," I could disregard this if I thought it were truly important, and not simply of symbolic significance, to add the ERA at tis time, but I just don't see exactly what it would add that is not already present in, say, Justice Ginsburg's interpretation of the Fourteenth Amendment in VMI. We could reopen the debate about gender-segregated bathrooms. Would they be barred by the ERA? But what else, exactly, would it change with regard to our existing doctrine of the 14th Amendment?"

Who knows what the bill will be, when you write a blank check?

I'll remind you that Obergefell represents something the ERA's opponents predicted if it were ratified, and the ERA's proponents dismissed as a vile smear. And now, as part of the program of rendering the ERA's defeat moot, it has been interpreted into the 14th amendment; Something people thought was absurd even given the ERA being ratified!

Who knows what the Court would feel empowered to do, given actual language to work with that was sort of vaguely on point? If they're capable of Obergefell, all bets are off.

# posted by

Brett : 2:49 PM

Brett draws a hypo. I drew another hypo.

A single small state (or make it three small states) can rescind and block what a supermajority wants, in fact which that state itself originally wanted. Recission can be a result of thin margins in state legislatures, one way or another. The "eighteen state" recission hypo is unlikely. At some point, repeal -- see the 18A -- is an option there at any rate. Here, we had a few states rescinding & it didn't matter since the time limit ran out anyway. Maybe, there is a reason a 150+ yr precedent has lasted.

The reliance issue I see is the value of ordered consistency of the process -- the state legislature decides whether or not to ratify. If they don't, it's still an open question. If they do, it is formally recognized by the Secretary of State. The thing isn't constantly in flux -- in/out/in/out etc. It also provides the state incentive to carefully decide. When other states are deciding, they a reliant on the states which ratified having a binding contract of sorts.

At least, this appears to be long term national and international practice. The text says "when ratified by the legislatures of three fourths of the several states." I think that is somewhat unclear but I can understand and accept the precedent that holds states only have the power to "ratify" -- per the text that sets forth the process -- and not to "de-ratify." Consider the process for passing laws:

"Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States"

Let's say a bill passed the House in June and the Senate considers the bill until December of that session with an intervening election that defeats the party in power. I'm not aware of the power of the House to change its mind, to rescind passage. The vote is final.

# posted by

Joe : 2:52 PM

I'll remind you that Obergefell represents something the ERA's opponents predicted if it were ratified, and the ERA's proponents dismissed as a vile smear.

The proponents of the original Constitution made various arguments that turned out in practice to not stand up to scrutiny given the test of time and experience. Not merely by "the Court," which reflected the changing understandings of the public and law on the question. And, if the ERA did ratify, it probably would have took time for the law to develop too, if somewhat quicker.

And, only some proponents dismissed the gay rights arguments, and yes, like the Federalist Papers (gambling! in Casablanca!), some leaned on certain arguments, handwaving perhaps reasonable criticisms.

But, part of my opposition to ratifying at this late date is that so much did change since 1980. The final states are not ratifying the same thing. It's like the difference of the 1A (with emphasis on prior restraint and a low burden on the government) in the early 20th Century and it's understanding even by the 1930s. The process should be roughly contemporary. The seven year limit was reasonable in that respect.

# posted by

Joe : 2:59 PM

"A single small state (or make it three small states) can rescind and block what a supermajority wants, in fact which that state itself originally wanted."

Yes, and if the state doesn't want it anymore, the constitutionally mandated supermajority is no longer present.

Feature, not bug.

By the way, I looked up the official House and Senate rules. In both chambers a member is free, having already cast their vote, to change it, at any time prior to the final tally.

I simply think states should be in the same position, prior to the requisite 3/4ths vote having been reached.

# posted by

Brett : 3:26 PM

This comment has been removed by the author.

# posted by

Bart DePalma : 3:30 PM

This comment has been removed by the author.

# posted by

Bart DePalma : 3:32 PM

Sandy: So what this boils down to is that I await a fully developed argument, independent of reference to what some state attorney general might have said, about why a sensible constitutional designer, presumably desiring to create a document that, in Marshall's word, is to "endure" through time, would adopt a scheme of amendment that...

Article V says what it says and whether we think the resulting design is sensible is legally meaningless, but I am out of court for the day and I'll spend a few minutes speculating what the Founders were thinking when they drafted this article.

a) is needlessly difficult, as Article V most certainly is;

Given the original Articles of Confederation required unanimous state agreement to amend the constitution and Article V represented a significant liberalization, I suspect the Founders did not want the basic law of the nation to be easily changed.

b) disallows Congress from placing time limits once an amendment is proposed, so that we can have the silliness of the so-called 27th Amendment, proposed in 1789 and declared ratified in 1992;

The design of the Constitution and then the later 10A suggest the Founders took federalism seriously and did not want Congress limiting state powers, including the ratification power.

c) tells states that once they have said yes to a proposed amendment, they are estopped from changing their minds regardless of any (presumptively justified) changes of opinion that what seemed desirable in, say, 1977 is no longer desirable in 2017.

The design of similar provisions of the Constitution like the Declaration, Appointments and Treaty Clauses suggest a desire to have one body of government propose something and a second body grant approval. There are no time limits on any of these approvals, which suggests the Founders wanted to provide time for reasoned contemplation. This suggestion is stronger with the Constitution because that law deals with enduring structures and principles, the need for which is not transient.

Furthermore, the strict separation of powers throughout the Constitution suggests the Founders strongly opposed one body of government limiting the powers of another like the British king did with Parliament and the courts.

I think that the interpretations being offered of Article V make an already dreadful article even worse.

I agree for different reasons. Interpretations granting powers nowhere found in Article V like congressional time limits on state ratification and state rescissions of prior ratification votes make an already difficult amendment process nearly impossible.

# posted by

Bart DePalma : 3:33 PM

"By the way, I looked up the official House and Senate rules. In both chambers a member is free, having already cast their vote, to change it, at any time prior to the final tally.

I simply think states should be in the same position, prior to the requisite 3/4ths vote having been reached."

I think this is the wrong way to look at it. You're treating the states, collectively, as the equivalent to a legislative body. But Art. V refers to the states as "several", meaning individual. Each separate state vote should therefore be treated as final. And we all agree that Senators, say, can't change their votes after the result is final.

# posted by

Mark Field : 3:59 PM

Yes, and if the state doesn't want it anymore, the constitutionally mandated supermajority is no longer present.

Feature, not bug.

So, "widespread" support isn't the test, but the specific feature in place. What exactly that entails is the subject of debate, one that as far as I can tell was always practiced with the general assumption recission was not an option, though there was some dissent. Your way results in certain problems & see little need to change long practice.

By the way, I looked up the official House and Senate rules. In both chambers a member is free, having already cast their vote, to change it, at any time prior to the final tally.

I simply think states should be in the same position, prior to the requisite 3/4ths vote having been reached.

But, as I said, once the HOUSE itself casts a vote, it stands. So, if an individual legislator or even branch of the state legislature if that is allowed in that state, wants to change their mind before the state legislature [or convention as applicable], fine.

I simply think states should be in the same position as the House or Senate.

# posted by

Joe : 4:00 PM

Mark: "By the way, I looked up the official House and Senate rules. In both chambers a member is free, having already cast their vote, to change it, at any time prior to the final tally. >> I simply think states should be in the same position, prior to the requisite 3/4ths vote having been reached.

Rescission occurs after the final tally in a state ratification vote.

# posted by

Bart DePalma : 4:29 PM

To clarify, my last sentence should read "And we all agree that Senators, say, can't change their votes after the result is final in that chamber, even if the House has yet to vote.

Which is what Joe is saying.

# posted by

Mark Field : 4:52 PM

"I think this is the wrong way to look at it. You're treating the states, collectively, as the equivalent to a legislative body."

Yes, and each state as equivalent to a single member of the legislature.

What's going on internally to the state is irrelevant, once the mode of ratification has been set. The state ratifies or rescinds as a unit. Until 3/4ths of the states are simultaneously on record as ratifying, or a time limit has passed, the relevant tally has not taken place.

I think this is the appropriate way to view it. The states are like legislators in a legislative chamber, free to change their votes at will until the tally is complete.

# posted by

Brett : 5:09 PM

This discussion seems to be turning into a time loop like the one that Bill Murray was caught in in "Groundhog Day."

# posted by

Shag from Brookline : 7:06 PM

This comment has been removed by the author.

# posted by

Joe : 8:57 PM

As to the Update on the bottom line, I agree with Brett that it would be wrong to accept ERA but find mine and Mark's reply to the other point not answered. It's not the same thing.

On another point, note that the 10A concerns protecting the retained powers of the states and the people. But, the amendment process is a power only in place because of Art. V. If it is not granted, the states cannot somehow fill in the blanks. To belabor the point, to the extent there is a "necessary and proper" power there, Congress has it.

# posted by

Joe : 8:58 PM

Joe: But, the amendment process is a power only in place because of Art. V. If it is not granted, the states cannot somehow fill in the blanks.

Because the states preexisted and drafted both the Articles and then the Constitution, it is fair to say the states have the power to create a national constitution. The better question is what powers does Article V leave the states in this regard.

# posted by

Bart DePalma : 10:09 PM

" It's not the same thing."

That's what makes it an analogy, no?

# posted by

Brett : 5:55 AM

A worse analogy is provided by Mark Field’s comments in this thread. How many textual changes are we supposed to accept before we have his final answer? Can he retract and alter indefinitely or must we at some point draw the line and assume that he meant “narrowly” and that is his position going forward forever from that point?

Or do we require him to go through another submission process? That is (analogy switch here), if we cannot just legislate or regulate away the Second Amendment and instead should ratify a new amendment if we really want to change things, then surely the rescinding state in question is welcome to join with other states to ratify the amendment that repeals the ERA amendment if it goes through.

# posted by

Prof_Scott : 7:29 AM

"That's what makes it an analogy, no?"

An analogy is "a thing that is comparable to something else in significant respects.
"works of art were seen as an analogy for works of nature." It's not the same thing in the relevant way.

# posted by

Joe : 9:35 AM

Voting in yesterday's election caused me to realize that Brett's analogy fails not just because it confuses human individuals with corporate entities, but because there are times when even individuals can't change their minds. Once I gave my ballot to the precinct and it was deposited into the box, I can't get it back even if I realize I made a mistake and even though the election is not over.

# posted by

Mark Field : 10:33 AM

Actually, that isn't completely true. In at least 7 states, one can overturn one's absentee/mail-in ballot by going to vote personally on election day. So it can be possible to change your mind after you've cast a ballot.

# posted by

ruralcounsel : 11:05 AM