To protect and defend

In discussing the oath the Constitution calls on each president to make upon taking office, Amar in his book "America's Constitution: A Biography" makes the point that the President swears to defend the Constitution itself, as opposed to the laws passed by the Legislature, as did the king of England upon taking throne. "In England, Parliament's enactments were supreme positive law, and a law-abiding monarch thus had to pledge allegiance to them. Such was the bedrock principle of the Glorious Revolution. In America, the bedrock principle was not legislative supremacy but popular sovereignty. The higher law of the Constitution might sometimes allow, and in very clear cases of congressional usurpation might even oblige, a president to stand firm against a congressional statute in order to defend the Constitution itself." (p. 179)

Re: Separation Story: In Answer to Kelly's Question

In his post Separation Story, Kelly asked me to recap a conversation we had on the changing deference granted between public accommodation and private association within American constitutional interpretation. The change for Kelly's specific example of hotel operators and their ability to turn away people based on personal beliefs or preferences came when Congress passed the Civil Rights Act of 1964, which expanded the common carrier rule to prohibit racial discrimination in access to public accommodations, such as buses and hotels. [1] The Supreme Court upheld the Civil Rights Act of 1964 as a valid exercise of congressional power under the commerce clause in the case Heart of Atlanta Motel v. United States (1964).

The Civil Rights Act and subsequent judicial rulings fundamentally altered the relationship betwene public accommodation and private association. The modern test for classifying an orgnaization as a private association is whether the organization in question exists solely for the benefit of its members, such as a church. See the Supreme Court decisions of New York State Club Association v. City of New York (1988) (where the Court decided that male-only clubs were a public accommodation) and The Boy Scouts of America v. Dale (2000) (where the Court decided that the Boy Scouts were not a public accommodation) for additional Supreme Court deliberation of this point.


[1] So You Want to Live in a Free Society (5). Thanks to Elizabeth Anderson at Left2Right for the tie of the Civil Rights Act's racial discrimination ban to the common carrier rule. Anderson's article has some insightful generalizations of this principle as well that could well be the paradigm to think of many of today's unresolved debates.

End judicial filibusters

Brian Tamanaha over at Balkinization has dutifully reminded conservatives of their deeply-held belief that the filibuster should be ended for judicial nominations and that every judicial nominee submitted by the President deserves an up-or-down vote. Rather than tongue-in-cheek tit-for-tat, perhaps respected constitutional scholars such as Professor Tamanaha could follow the call of the president-elect and advance real solutions that both sides can come together and embrace. This blog forwarded a solution to the abuse of the filibuster back in July of 2007: make the filibuster a filibuster again.

Novel, I know. But I think such a scheme just might work!

A more perfect union

In America’s Constitution: A Biography, author Akhil Reed Amar undertakes the daunting task of analyzing what the Constitution says and why it says what it says, in light of its late eighteenth century context. In a series of posts that will span over the next several weeks (possibly months, depending on time constraints), I will focus on some of the more notable and pertinent constitutional interpretations that Amar presents.

The first purpose provided by the Founders in the Preamble for establishing and ordaining the Constitution is to “form a more perfect union.” Like President Lincoln did during the debate leading up to the South’s secession and the Civil War, Akhil Amar keys in on this phrase to provide constitutional reasoning for rejecting a right of secession from the Union. Lincoln proposed that the southern States could not leave the Union because the states owed their very existence to the Union. For the sixteenth president of the United States, there was never a time that the United States did not exist, and, as such, the states were never independent nation-states. Since the aim of the Constitution was created to perfect the Union, secession was unconstitutional since it would by definition lead to a less perfect Union.

I’ve always found Lincoln’s argument to be problematic because it seems quite obvious to even the most casual student of history that there was a time when the states were free and independent states. The Declaration of Independence declares them so, and the Revolutionary War made them so. And whatever else the United States was under the Articles of Confederation, it was surely a different beast than it was under the Constitution of 1787. Amar agrees with this assessment:

Contrary to what Lincoln said, it is doubtful that a new, indivisible nation – as opposed to thirteen nation-states in a classic confederacy – sprang into existence in July 1776, four score and seven years before the battle of Gettysburg. In fairness to Lincoln, perhaps we should say that vis-avis the rest of the world, a new (confederate) nation was born in 1776. But the United States did not become an indivisible nation prohibiting unilateral state secession – the crux of the Gettysburg contest – until 1788. Lincoln also stumbled in claiming that none of the thirteen original states had ever been truly sovereign. If the issue were somehow unclear from 1776 and 1788, surely “sovereign” is the right word to describe North Carolina and Rhode Island in April 1789. [America’s Constitution, pp. 38-39]

However, the real question in the 1860’s – and for present-day interpretation – is whether states retained the right to unilateral secession after joining the Union. Amar continues:

On that question, Lincoln properly insisted that the Constitution’s more perfect union did not permit unilateral secession. Even though Jefferson Davis rightly read his name-sake’s Declaration, he wrongly read his country’s constitution. The fact that a new nation was lawfully formed in the 1780s by secession from the old confederacy did not mean that a new confederacy could be lawfully formed in the 1860s by secession from the old union. [America’s Constitution, p. 39]

The point of it all hinges on the type of arrangement the Articles of Confederation were as compared to the type of arrangement established by the Constitution of 1787. Under the old Articles, the United States truly was a confederation, a loose alliance of sovereign states. Under this scheme, members are bound by treaty and, as with any treaty, members can withdraw from the pact at any point they feel the treaty obligations are no longer being honored by other treaty members. In comparison, the United States under the Constitution of 1787 was a true nation. The Constitution set itself (along with subsequent federal laws and treaties passed under its authority) up as the supreme law of the land and rested true sovereignty with the People of the United States. The power of the United States under the 1787 Constitution flows from the People, rather than the States, and the states shifted from being sovereign members of a treaty pact to being constituent members of a federal republic, which was by nature a mixture between a federation and a traditional nation-state, governance being divided between the federal Congress and the several States. Protection of states’ rights and prerogatives would flow from the structure of the federal institutions themselves, rather than some right to unilaterally dissolve the Union reserved by the States:

State borders and state-law electoral qualifications would shape the House of Representatives, state legislatures would elect a Senate in which each state would have equal weight; state-chosen electors ballot for president; a Senate sensitive to states’ rights would confirm federal judges; each state’s borders and republican form of government would be guaranteed; and states would help propose and ratify federal constitutional amendments. [America’s Constitution, p. 36]

To seal the case for this interpretation of the Constitution and the absence of a right to secession, Amar points to the “bookend” of the Preamble – Article V, the article which sets forth the process for proposing and ratifying amendments to the Constitution. In this process, only three-fourths of the states need approve a proposed constitutional amendment for it to become effective on all states of the Union. This is in contradiction to the unanimous requirement set forth in the Articles of Confederation to change the fundamental charter. The Article V process is the one put in place to alter the nature of the relationship between the States and the federal government, as was done in the case of the Seventeenth Amendment. Dissolution of the Union must be a decision made by the whole (i.e., three-fourths of the States in accordance with Article V amendment process), not individual states who may, in their own limited parochial judgment, may have legitimate grievances.

Separation story

A few years ago, Craig and I were discussing the increasing friction between religious groups and the government over the last 20-25 years. He mentioned a specific SCOTUS ruling during the late 70's or early 80's that changed the criteria for when the public interest overrode an otherwise private matter. The example that sticks in my mind is a landlord who is refuses to rent to an unmarried couple who would be living together because it would go against the landlords beliefs. The cusp here is when public good (in this case being public accomodation, e.g. a hotel) is more important than an individual's right to rent according to his faith's stricters.

Craig, could you post about this topic? I think this blog would be a great place to present some of that history and analysis.

A new era dawns

This blog fancies itself an expositor of big ideas and, specifically, consideration of American governance informed by sound constitutional principles, so I made the decision not to use this blog for any of my writings during the presidential campaign that just culminated in the election of America's first African-American president, Barack Obama. It would have been too easy to lose the spirit of this blog and slide into the day-to-day myopic vision of campaign politics. That is important and has its place, but not here. Now that the capaign has passed, I do have a few reflective comments I want to make before regular blogging begins over the next few weeks.

I'm not one for trying to read the tea-leaves beforehand, but I can't help but feel that the old Reagan era has run its course and something else has started. I don't know what is being ushered in with Obama's win, but I don't think things will ever be the same in this country's political landscape, and I don't think Republicans will win the presidency again until they reform their message and figure out how to reassemble a new majority coalition. Part of this election was the finishing of what the 2006 congressional elections began -- holding the Republican Party accountable for their failures in governance for much of the past eight years. Consistent defecit spending, years of lax oversight of the housing and credit markets that led to the economic collapse in September, fanciful theories of the unitary executive, and incompetent administration of the Iraq War (the surge saved American defeat there, but not soon enough to turn around popular opinion of President Bush) were simply too much for John McCain to overcome. But it is also true that Barack Obama ran a consistent, disciplined campaign, and he is an inspiring, charismatic leader, the likes of whom American politics has not seen since Ronald Reagan.

I found Obama's acceptance speech Tuesday night moving and inspiring. If he doesn't do what Bush did and run to the narrow, partisan end of his Democratic base, he has the chance of forging a governing coalition of the magnitude that FDR and Reagan built. It's also inspiring to witness the first black President be elected, to see the full promise of the Fourteenth and Fifteenth Amendments along with the Civil Rights Act of 1964 finally realized, and to have a chance to finally move beyond the racial divides that have paralyzed large segments of our society for decades centuries.

Of course, a lot has to happen to turn this inspiration and hope into reality, and a highly-charged political atmosphere remains in America. But I share in the sense of hope that Obama's presidency offers. It is now up to him to govern for the entire country and not cater to the liberal policy preferences of the extreme left. It is now up to the country to get behind our new president, supporting him where we can and vigorously debating with him where we can't.

We've said here many times that politics is the art of compromise. If the Obama presidency can bring this lost art back to American politics, then more old wounds than slavery will have been healed in the process of this historic election.