An Amendment for Congressional Term Limits

I’ve been watching videos on iTunes U from the Harvard Law School; in 2011 they held a series of talks from various scholars, politicians, and other observers on the possibility of petitioning the states to call on Congress for a constitutional convention.  One day of the convention was dedicated to the topics which might arise in such a convention—both the pet topics of those present and predictions as to what we could expect (addressing the possibility of a “runaway convention”, a worry that to me seems remote both because of the gravity of the circumstances and the need for ¾ of the several states to approve any proposed amendments).

            None seemed like a better idea to me than an amendment for Congressional term limits.

            One animating principle behind calling on the states to petition Congress for a convention (instead of the usual route of starting the amendment process with Congress) is distrust for the political process.  One presenter pointed out that James Madison estimated that right before the Revolution, 1/3 of the American colonists supported a revolution, 1/3 were loyal to the Crown, and 1/3 were generally indifferent.  If this is anywhere near true, then Congress has long rated lower in Americans’ minds than King George.

            The first Congress proposed a list of amendments which became the Bill of Rights.  All of these greatly limited the Congress’ own power either explicitly or by strong implication, with language like “Congress shall make no law…”, the limiting language of the 10^th Amendment, or the various substantive and procedural guarantees favoring the individual against the enforcement of Congress’ laws.  All of these measures either directly limited what power Congress might wield, or at best limited the means by which Congress and the executive branch might make such laws practically effective.  Never again in our history has such a powerful branch of government so sweepingly and brazenly limited its own power.  Can anyone imagine a modern Congress so recklessly apt to bind its own hands?  Can anyone conceive of a future Congress, or any other branch of government, so willing to surrender broad swaths of its own power?

Admittedly in theory, Congress’ power already extended only to enumerated items; as such many Federalists thought a Bill of Rights superfluous or even dangerous.  Still, many delegates to Congress assumed their posts believing in the need for a Bill, and/or under explicit instructions from their constituents.  Such amendments’ enactment would then also constitute self-preservation.  Given all of this, such willing surrender of power—even indeterminate, contestable power—still appears remarkable.  Congress could have proposed a more limited Bill, perhaps one that preserved its power to legislate in vaguely defined grave circumstances, or a shorter list with fewer enforceable guarantees. 

So why would they have done so?

Because most of them did not expect—or want—to stay in office for long.

            How can we recover the possibility of a Congress willing to limit its own power so drastically?  By forcing legislators to leave office, imposing more forcefully the reality that they will soon be unable to undo any laws that they enact—like the first Congress, they must keep in mind that limits they set may benefit them in the future, and that any laws may work to their disadvantage.

            In addition to ensuring a more representative sampling of the people (simply because more people will pass through the halls on Capitol Hill), such an amendment would set a limit to the dreaded “career politician”, and limit the political inertia influencing states and congressional districts to continue to reelect longtime Congressmen (and women) so as to maintain a highly influential delegate in the federal legislature.  This plan would also force legislators to maintain careers—or career prospects—outside of their Congressional duties.  Contrary to being a distraction, I think that with the assistance of various congressional aides in research and policy development, maintaining a career outside of politics would help to keep our legislators more grounded in life outside the Beltway.

            Weakening the grounds for the development of the career politician inculcates congressional service with more of a sense of civic duty—I leave my job to serve my state/district/country, but soon I must return.  I am not long for that world; I maintain my local attachments and loyalties.  Our Anti-Federalist co-founders feared that Congress would turn into a self-dealing ruling elite; I fear it has taken some steps in this direction.  Term limits seem a good way to fix that problem.

            To address some potential downsides: some might counter that forcing a more frequent Congressional recycling would force new delegates to learn their ins and outs of the legislature every so often.  There would be less overall experience on Capitol Hill, less professional wisdom from which newcomers could learn.  I acknowledge this could be a problem, but I answer that at least some of these “skills” which newcomers would learn constitute some of the shadier aspects of legislation that have driven Congress so deeply into the depths of the public opinion.  Outgoing legislators could serve as consultants or advisors for the incoming rookies.  Much of this advice would probably have centered on which legislators are prone to negotiate, which ones to avoid, which ones have certain pet projects, etc.  With constant recycling, such acclimation becomes obsolete as rapid turnover mitigates the wisdom the old might share with the young.

            I touched on another potential problem earlier: that some districts losing influential, tenured legislators might lose out in this process by having to find new blood.  These would include districts with a speaker or minority leader.  But surely those districts without a Ted Kennedy, John Boehner, Paul Ryan, or Nancy Pelosi, etc. outnumber those that do.  The overall benefits of cycling in and out legislators who are less likely to make unnecessarily broad use of their powers surely outweigh the parochial detriments of depriving a few states and districts of highly influential representatives.

            Alternatives--such as my off-the-cuff thought that incumbents beyond a certain point must achieve a supermajority of their constituents to remain in office—run into other principled problems.  Such an amendment is awfully meddlesome in local affairs, and is likely to frustrate local politics more than an absolute bar.  Imagine a scenario in which a popular local politician runs with a strong local majority but is denied reelection because a minority faction (a loaded term, I know) organizes well enough to frustrate his political efforts, and as such to put their own candidate into office (one possible outcome).  Such an anti-democratic measure is more likely to fuel fires in local politics than an absolute bar which forces a majority party to run an entirely new candidate, and thus to feed on their democratic advantage, than a rule which may allow a minority party to dictate policy in national matters.  The aim of such an amendment is not to empower minority parties, but to air out Congress with a greater number of individuals carrying the democratic seal of their constituents, and as such to make each one less wedded to his or her own power.

The Impact of Rawls' Public Reason on Substantive Due Process

This entry contains a link to my final paper for a class I took last quarter on John Rawls' philosophy.  I wrote the paper with legal philosophy's lens; I asked whether the concept of Public Reason extrapolated in his books Political Liberalism and certain essays in Collected Papers could substantiate or offer guidance in the Court's substantive due process doctrine.

My tentative answer is that certain elements of the doctrine could survive if substantiated by public reason.  I started from the assumption that SDP floats untethered to the Constitution's text, and in such a vulnerable state, requires justification if it's to remain in the Court's tool chest.  In sum, I draw on various sources to argue that public reason supports two of the Court's three SDP tests: the Palko test (those rights "essential to the concept of ordered liberty", i.e. mainly the Bill of Rights), and those rights and liberties deeply rooted in our legal and historical traditions (what I call the Scalia/Rehnquist test).

I discount as innovative and personally preferential the third test, which includes such cases as Roe v. Wade and Casey v. Planned Parenthood.  I do this not because I have any personal animus against abortion (though I do find it morally questionable), but because I find such cases jurisprudentially flimsy, and not tethered to any public-reason-based consensus as Rawls would conceive.

I argue further that the Court cannot avoid using public reason in its jurisprudence; this doctrine helps to gloss over some amendments' questionable ratification (13th and 14th) on the basis of their wide, enduring, unquestioned public acceptance.  Those qualities of depth and breadth legitimate concepts which the Court wishes to incorporate into the Constitution beyond its text because they carry a deep and broad democratic pedigree, comparable to the Constitution itself.

Anyway, here is a link to the paper itself, should anyone care to examine it. Please feel free to offer comments!

https://docs.google.com/file/d/0Bz3rDLoaZcY2OENweFF4MXdORXM/edit

Tribe’s Unified Field Theory and the Constitution’s Axiom of Self-Government

Professor Tribe’s book, The Invisible Constitution, lays out arguments for the existence, development, and definition of the Constitution’s “dark matter”, those rules, doctrines, and interpretive methods which are nowhere contained in the document itself but are indispensible to its utility and existence.  It is a truly brilliant book; as my first exposure to Professor Tribe’s work, my amateurish self comes away thoroughly impressed.

            But this entry is not a book review.  I highly recommend that anyone interested in constitutional interpretation read it (it’s not very long, and the chapters are very short, lending it well to periodic reading), but I want to assess a particular part of the book: pages 128-141, where Tribe integrates substantive due process themes of privacy and liberty of contract into a broader concept in the invisible constitution, self-government.

            Tribe synthesizes the theme of those pages: “If we think of self-governing relationships, within communities that are not themselves enclaves of hierarchy and exploitation, as presumptively entitled, under the invisible Constitution, to protection from interference by government entities outside those relationships—interference that is unconstitutional absent unusually persuasive and narrowly tailored justification—then we have something like a ‘unified field theory’ of much of the invisible Constitution as it has, by and large, actually evolved over the past seven decades or so.”

            By way of summary, Tribe spends the previous pages explaining substantive due process’ (SDP) role in the invisible Constitution.  Suspending judgment on most of the particular provisions of the to which the Court has applied SDP, Tribe argues that nearly all of its iterations, from parental freedom (Pierce v. Society of Sisters, Meyer v. Nebraska) to the doctrine of selective corporation (Palko v. Connecticut, Gitlow v. New York [among many others], and The Slaughterhouse Cases [insofar as these removed the Privileges and Immunities Clause from the incorporation debate]) to the liberty of contract (Lochner v. New York and its progeny), share a common theme embedded in the invisible constitution: self-government and the principle of non-interference.

            Tribe does not argue that Lochner was correctly decided; rather, he believes the error lay in the Court’s refusal to acknowledge the massive disparities in bargaining power that its liberty of contract doctrine engendered.  Insofar as many other liberties have been read into the Due Process Clauses, and absent any rigorous analysis showing why selective incorporation and privacy belong there while contractual freedom does not, it is necessary to find a way to synthesize these cases into a single coherent theme without resurrecting Lochner and its ilk.  This Tribe does with aplomb.  He stops short of justifying SDP entirely on grounds of autonomy and popular sovereignty; his mission seems more tightly cabined than that, but it is clear he regards it as an important overarching theme of both SDP and the invisible Constitution.

            Now for my critique.  Leave it to a master like Tribe to find a way to legitimate SDP by appealing to the Constitution’s general theme of popular sovereignty.  The latter concept is hardly original; I encounter it regularly in my studies, extracurricular and curricular both.  It is the underlying theme of Bruce Ackerman’s We the People Vol. 2 (have yet to read Vol. 1 and cannot find Vol. 3), and a recurring observation in Akhil Amar’s exposition of the Constitution and its history in America’s Constitution: A Biography.  But what’s impressive about Tribe’s synthesis is the way he connects this noble theme to the most suspect of doctrines.

            But I fear Tribe runs into problems he does not—and perhaps cannot—fully reconcile with this tenet of the invisible Constitution.  For example, Tribe also argues that the Dormant Commerce Clause is equally part of the invisible Constitution: he both claims that any justification of this doctrine must come from reasoning outside of the text (the overarching theme of his book), and that it is born of necessity and general Constitutional principle (the notion of a unified nation, of the invalidity of a government passing laws regulating people and places outside of its jurisdiction, etc).

            I sense some conflict between the principle of non-interference that undergirds SDP jurisprudence as Tribe presents it, and his defense of the Dormant Commerce Clause.  I acknowledge the conflict more to pertain to the principles as applied than in the abstract, but I find it difficult to reconcile a strong Constitutional shield of non-interference protecting states, cities, and groups of individuals to conduct their own affairs—but in times of pressing need of government interference—with a doctrine which (in conjunction with the Commerce Clause as construed in the modern era) strips the states of yet more of their power to regulate commerce.  Are those areas that the DCC touches “unusually persuasive,” and is the Court’s elaboration of that doctrine a “narrowly tailored justification”?

            I’ll spare any readers a detailed analysis of the DCC and its consequences for Tribe’s thoughts in this section.  In sum, it struck me as odd that one scholar would defend both the DCC and a very strong general principle of federalism—basically arguing that the Court should apply strict scrutiny in assessing federal interference in lower-level self-government, but should maintain its capacious extra-textual Commerce Clause jurisprudence.

            I should also add that Tribe does not connect the concept of private self-government with which he defends the contract doctrine and the strong federalism with which he follows it.  He appears to gloss any differences between the public-private relationship and the vertical federal structure.  Perhaps it is acceptable to address this distinction by claiming a general right to self-government both of the sovereign people, and the pre-existent states whose powers predate the Constitution (he does address the police powers doctrine as part of the invisible Constitution earlier in the book).  But I wish he had acknowledged the distinction.

            I’m continuing to read Professor Tribe’s book; it is outstanding. I hope to finish it in the next day or so.  I recommend it heartily for anyone looking for a scholar’s refutation of strict textualism—not only on normative grounds, but also on purely expository grounds.  Tribe says both that we should see the “dark matter” of the Constitution, but also argues that not to acknowledge it is both to disqualify unwittingly many of the Court’s most important decisions and enduring doctrines.  This dark matter is both pervasive and essential to our Constitutional order—one would be hard pressed to come away from this book with any other conclusion.

Marriage Equality

This entry is dedicated to equal marriage opportunity and the Constitution.

A series of cases will come before the Supreme Court this year pertaining to recognition of marriages for same-sex couples.  These cases will address various issues, some relating to the states, some to the federal government (challenging the constitutionality of the Defense of Marriage Act).  The Court here faces a complex set of questions.  I will address but one.

Does the Constitution require that the states recognize marriages between same-sex couples?

            To begin, I will separate this issue along two lines.  As a legislative matter, this issue seems very clear-cut to me.  I have been able to glean little more than a naked distaste for homosexuality and a deep-seated animus against homosexuals driving the laws and constitutional amendments in the states prohibiting legal recognition of those unions.  Were I to sit on any state’s legislature, I would be honored to vote for a statute recognizing marriages between same-sex couples.  I would be similarly honored to vote for state constitutional amendments to that end, or to vote against amendments outlawing such recognition (as I did in Florida in 2008).

            But the policy of marriage recognition is different from its constitutionality.

            This question raises competing claims: the Constitution’s demand that the states provide the equal protection of the laws, and the states’ police power: their undifferentiated authority to regulate on behalf of the health, safety, welfare, and morals of their citizens.  The states have historically dictated the terms of the marriages they will recognize with few exceptions (like the Court’s intervention in Loving v. Virginia, which ruled that a Virginia law prohibiting interracial marriages violated equal protection).  Defining the terms of marriage drives to the heart of the states’ police powers.

            The Court has spoken on issues involving state action and homosexuality before.  Important cases like Lawrence v. Texas and Romer v. Evans set a precedent for equal treatment toward those of whatever sexual orientation, though they conspicuously declined to name sexual orientation as a protected class under EP jurisprudence. 

Lawrence involved the invalidation of a Texas statute criminalizing sexual activity between same-sex couples.  The Court’s majority opinion relied on a right to privacy grounded in the Due Process Clause of the 14^th Amendment, and recent decisions elaborating (creating?) that right.  Justice Stevens, writing the majority opinion in Lawrence, made a special effort to foreclose the possibility that his opinion would be used in future cases to impose same-sex marriage recognition on the states by distinguishing this case from a hypothetical one involving marriage recognition by implying that the states would have an interest in reserving marriage for heterosexual couples.  But more pertinent to this discussion is Justice O’Connor’s (more cogent) concurrence noting that to prohibit sexual conduct for homosexuals but not for heterosexuals constitutes a violation of Equal Protection insofar as such a law treats similarly situated people differently without a rational basis. 

Romer overruled an amendment to the Colorado constitution forbidding anyone to claim protection from Colorado’s anti-discrimination laws on grounds of sexual orientation.  Stevens, writing for the majority again, unearthed as the amendment’s motivation nothing more than a transparent prejudice against homosexuals.  But again, he declined to say anything more than that these laws failed the rational basis test

Justice Scalia’s scathing dissent in Lawrence reveals inconsistency in the majority opinion, but also could portend the future: the Court’s opinion delves deeply into American and common law history to find and distinguish the motivations behind anti-sodomy laws from modern statutes like Texas’.  Such a painstaking analysis reaches far beyond normal rational-basis jurisprudence into the demanding standards of strict-scrutiny review.  The Court acts disingenuously when it says one thing and does another.  However, such an argument may reveal that the Court was merely unwilling to reveal its true intentions at that time.  The full revelation of this more exacting standard of review may await us this year.

            However, both of these cases differ from the issues at hand: they forbid the states from engaging in discrimination, but they do not require legal recognition of marriages between same-sex couples.  There is a difference between a laissez-faire approach to personal relationships between consenting adults, and the active recognition of such relations’ equality before the law and the polity.  Hands-off is different from thumbs-up.  

            However, one could say that Romer does involve equal recognition of homosexuals in the states before the law insofar as it deals with self-identification along lines of sexual orientation, which in turn depends on sexual conduct.  Perhaps this case does involve thumbs-up recognition insofar as it demands that the states regard homosexuals legally as they would any other identifiable group.  Lawrence similarly involves non-discrimination along lines of sexual conduct (although again, Stevens denied to expand such recognition into the marital arena), and insistence that to criminalize certain sexual conduct stigmatizes those who engage in it, weakening regard for the law.  Both themes are present also in Romer, as arguably in any case challenging state failure to recognize same-sex marriage.  Such failure arguably perpetuates a stigma against homosexuals and homosexual conduct by enshrining it in law; further, such failure denies to homosexual couples the full measure of the law’s protection in such matters as taxation and inheritance.

            (I don’t know enough about civil unions to know whether this is strictly true, but in the event that they are not equal in such matters strengthens the EP argument.)

            Still, Lawrence mainly involves a hands-off policy toward homosexual relations more than it involves an active recognition and approval of such unions.  I’ve tried in the previous paragraph to argue as strongly as possible for active state recognition on Lawrence and Romer’s precedent.  But even Romer strictly requires the states not to disqualify sexual orientation as a protected class under their non-discrimination laws.  This decision did not require recognition of such a group, only that they not be disqualified out of hand.  It’s a stretch to say that the Court’s previous decisions regarding homosexuality pave the way for legal recognition of marriage between such couples.  Again, even Lawrence required only that the state’s coercive mechanisms not be used to stigmatize homosexuality and invade the privacy of adults’ bedrooms.  Romer dealt with nothing so private as sexual intimacy.

            The federal government has traditionally kept its hands off state regulations of marriage.  A notable recent exception was the case Loving v. Virginia in which the Supreme Court invalidated a Virginia stature forbidding interracial marriages on Equal Protection grounds.  The state had claimed that it was not treating the races unequally, since both white people and black people were subject to the same restrictions: neither group was allowed to intermarry.  In striking down the law, the Court declared that the right to marry was fundamental to individual liberty, and that such separation of the races necessarily violated equal protection despite its ostensibly equal treatment (both races were forbidden from intermarrying, but practically the Court understood that the legal and social burden would fall to black people).

Most important in this case for our purposes is Earl Warren’s declaration that the freedom to marry is fundamental.  Clearly, Loving pertains to racial inequalities, but it sets a precedent that the federal government will not hesitate to examine how states regulate marriage if certain lines of fairness are crossed.

            Are they crossed here?

            Equal Protection jurisprudence has recognized five classes against which discrimination will trigger heightened review: race, gender, alienage, illegitimacy, and exercising constitutional rights (the last is seldom used; usually the right at issue defends whoever exercises it without recourse to the EP Clause).  Sexual orientation is not among them.  Again, Romer and Lawrence involved no more than rational-basis review, requiring no greater scrutiny than cursory examination.

            So, the Court has not recognized that sexual orientation is a “discrete and insular minority” (U.S. v. Carolene Products Co.): deserving special protection because of political powerlessness, with a history of invidious discrimination.  As such, discrimination along lines of sexual orientation triggers the same standard of review as would state discrimination against any other lines, which is almost always permissible.

            Should discrimination against homosexuals trigger heightened review?  Few would dispute that this group has been victimized by discrimination in American history; they have indeed been victims of onerous discrimination.  And because social stigmas force many homosexuals (or those who question the certainty of their sexual orientation) to remain in hiding, this minority remains politically vulnerable due to its small size and disorganization.  It should not surprise—it is barely worth mentioning—that homosexuals are underrepresented in the political process.  There are surely far fewer openly gay legislators and other politicians in proportion to the population at large.

However, on the other hand, how discrete and immutable is this minority is questionable, since many consider sexuality to be a spectrum rather than a zero-sum game.  Still, homosexuals cannot change their orientation at a whim; this much should be apparent and accepted in the present day.  We should have long ago left behind the notion that homosexuals can be “cured” or otherwise treated for their “condition”.  However, sexual orientation is difficult to demonstrate, as opposed to race or gender, which are usually immediately apparent.  Thus, it would be easy for conniving individuals to take advantage of any special dispensations afforded homosexuals under non-discrimination laws. 

            Though homosexuals may not qualify as a discrete class, others fail to meet the criteria fully as well.  For example, women comprise slightly over half the American population; as such they cannot even be thought of as a minority, let alone one discrete and insular.  Though women have clearly been considered subordinates, and have been badly victimized by a political process to which they were not privy for generations, gender discrimination does not fit the EPC bill entirely.  As such, perhaps the best place for sexual orientation discrimination lies in the same category of mid-level scrutiny due to gender discrimination.

            Now, to argue for the opposite side: this case implicates the powers of the states.

            Once again, I will not address religious arguments, assuming for the moment that such laws founded on purely religious grounds would violate the Establishment Clause as incorporated against the states by Everson v. Board of Education (establishment) and Cantwell v. Connecticut (free exercise).  Solely on constitutional grounds, federal involvement in marriage runs up against the states’ police powers, which has traditionally involved regulation and recognition of marriage as part of their power to regulate on behalf of their citizens’ morals.

            Further, the political power of homosexuals and their allies is growing, demonstrated by some states’ legalization of marriage equality in the 2012 elections.  The national trend may be shifting in this direction, taking the wind out of the sails of any judicial efforts to remove this issue from the political process.  If this process fixes its problems on its own, there is no need for judges to step in.  Indeed, I posit that they have a duty not to become involved absent pervasive, persistent, and invidious inequalities in the political process.

            Regulating marriage drives right to the heart of these powers, especially as they have been eroded over time.  Though the federal government has the power and an interest in promoting and ensuring equality, the states have an interest in safeguarding those powers that still redound to them in an era in which most issues of substantive concern are resolved at the national level.

            If the federal government nationalizes marriage, what will remain to the states?  If either the Congress or the Supreme Court exercises its 14^th Amendment power to require all the states to recognize same-sex marriages, little will remain of their once-sovereign power.  Few issues drive deeper to the heart of the police power than regulating public morality, since today much of regulation on behalf of health and welfare is either handled by the federal government, or at least conceived from the top, and only executed on the bottom.  The expansion of federal commerce power to near limitlessness has enervated the states’ power to act for the health and safety of their citizens; to strike at public morality nearly destroys state sovereignty altogether.

            Moreover, the scenario presented above does not entail a Congressional act dictating rules of marriage recognition nationwide, but the Supreme Court claiming that such is the command of the Constitution.  Congress can only enact legislation appropriate to enforce the 14^th Amendment; the Court would implicate the issue in the Constitution itself.  The distinction is important.  The people can, if they choose, order that Congress reverse a statute.  A Supreme Court opinion can only be overturned by Constitutional amendment, or by a future Court decision.  The latter scenario largely cuts the people out of the equation, ostensibly (and ironically?) by invoking the people’s highest will and supreme law.

            Using statutory law to enforce marriage equality presents a different problem: what to do when the bare national majorities drawn on party lines shift Congressional power.  What happens to this hypothetical statute when Congress falls into conservatives’ hands again?  What happens when the small national liberal majority tilts back toward the Republicans?  Constant vibrations in national public policy compromise the predictability necessary to the legal system,

            One lesson that the nation should take from the abortion struggles is that a Supreme Court decision claiming a segment of public policy for its very own can stoke the flames of a debate that may have otherwise simmered more civilly.  With Roe v. Wade and subsequent cases, the people lost their voice; the policy choice became mysteriously and questionably embedded in the Constitution rather than decided by the people at large, or within their states.  This frustration may have caused the debate to become more acrimonious that it might have done otherwise (several states had begun moving to liberalize their abortion laws before Roe), the bitter backlash sparking a defensive response from other parts of the public.

            Those who disagree with given Supreme Court decisions are cut out of the political process.  Participation in this process should be seen as a positive good in itself, an example of the civic virtue without which a democracy cannot function.

            The bottom line: when the Court implicates social issues in the Constitution without clear mandate, it removes a segment of the people’s power to decide issues for ourselves, which is understandably frustrating.  Furthermore, such decisions come dangerously close to making the Court into a roving super-legislature, creating public policy under the guise of Constitutional mandate and judicial review, but without the check of popular accountability.  This is arguably a violation of the separation of powers and due process of law.

            My refusal to endorse a Supreme Court decision imposing marriage equality on the states stems not from any prejudice against homosexuals, but a respect for the political process, and concern for the Constitution’s legitimacy, endangered by its persistent use in resolving contentious social ills.  The more we force the Constitution to take sides in our political debates, the more we risk fracturing the polity it constitutes irreconcilably.  It is cast in general principles, standing above the everyday political struggles that define our democratic order.

Why President Obama Could Easily Be Impeached Over the Debt Ceiling If Congress Fails to Raise It

Not my own essay, of course, but very interesting to read.

http://verdict.justia.com/2013/01/11/why-president-obama-could-easily-be-impeached-over-the-debt-ceiling-if-congress-fails-to-raise-it

I don't think that Republicans would be so reckless as to commit political suicide to ensure Obama's impeachment (he wouldn't get convicted/removed anyway, especially with Democrats in charge of the Senate).  I find it interesting because of the theoretical conundrum for any president: how to enforce the laws faithfully when they conflict with one another, a puzzle I had not considered before.

Ideally, a president should wait for Congress to untie the legal knot so that he/she does not have to try to do so unilaterally.  But with a deadlocked or intransigent Congress, it's unclear to me as to what any president could do.  The article's prescription, to find the "least unconstitutional" option, seems best, I suppose.

The "Invisible Constitution": Departmentalism and Meta-Rules

            In his book, The Invisible Constitution, Lawrence Tribe argues that certain invisible constitutional principles, like “one person, one vote”, the protected classes of the equal protection clause, privacy, and judicial review (among others) are necessary extrapolations on the Constitution, achieving a status commensurate with the written text.

            These co-equal offshoots of the unwritten constitution include certain iconic cases and statutes, like Brown, Marbury, the apportionment cases, and the Civil Rights Act of 1964.  Tribe describes the way in which a small part of that statute was elaborated and expanded to include sexual harassment as a form of sex discrimination, a principle axiomatic in American law, unlikely ever to lose that status.

            But why could statutory law formed by Congress as opposed to constitutional law as formed by judicial opinion and precedent not fill the hollow spaces in between the constitution’s words?  Why must it redound to judges to fill in the spaces of our supreme law?

            If Congress were entrusted with interpreting the Constitution and thus filling in its blank spaces, this would represent an abandonment of the theories of judicial review (the judiciary as the body responsible for constitutional review), and judicial supremacy (the judiciary as the branch responsible for resolving disputes between other branches).  It would also eliminate this "invisible constitution"; replacing it with statutory law would help to solve problems of constitutional legitimacy, though it might make the Constitution's provisions more subject to transient political breezes.

            Tribe presents a problem derived from Godel’s Theorem: any rule on how to read the Constitution, especially a rule that to ascertain its meaning only the written text be consulted exactly as it is, itself is extra-constitutional.  Therefore, such a rule disproves/disqualifies itself.  But what if such rules were not set by judges who exercise near plenary power over the constitution and its deployment, but were filled by statutory law enacted by the people’s delegates in Congress?

            A recent stark example of the Court’s jealous defense of its constitutional supremacy came in 1997’s City of Boerne v. Flores.  In this case, Congress challenged the recent decision of Employment Division v. Smith in which the Court overturned the compelling-state-interest doctrine used in Sherbert v. Verner and Wisconsin v. Yoder.  The Court ruled in Smith that as long as a state law is facially neutral, it will not violate the Free Exercise Clause.  Congress passed the Religious Freedom Restoration Act, forbidding state action that infringes religious practice, even as applied, trying to restore the stricter scrutiny of Sherbert and Yoder.

            The Court responded jealously in Flores, striking down the RFRA, indignantly reminding Congress that the Court wields the final word in constitutional matters.  The Court explained to Congress that the 14^th Amendment gives Congress the power to enforce its provisions, not to interpret them.  If there were any remaining question as to whether anyone carries co-equal power to interpret the Constitution, then the Court laid it to rest in Flores.

            Does such a rule run the risk of contradicting the Constitution itself?  Does giving Congress the power to set the rules by which the judiciary may read and exercise the constitution put too much of its power in the hands of the majority?  Does it run afoul of the concept (Federalist 78) that judges should be responsible for safeguarding the minor parties in the community by keeping the majoritarian branches within their assigned limits?  The answer to all of these questions may be yes.  Tribe defends judicial review as necessary to secure the Constitution from majoritarian manipulation (though one fairly asks whether the Court has done such a good job of erecting enduring doctrines, so avoiding the momentary lapses of transient majorities), as I have done in other essays as well.  Still, given the grave errors of the Court’s history, it’s hard to predict that co-equal interpretation would necessarily be worse overall.

The "invisible constitution's"  contents: meta-rules for how to read it; law filled into the blank spaces in the text; investing words with more meaning than their dictionary definitions would allow, are all necessary results of judges’ exclusive hold on the Constitution, byproducts of judicial review and judicial supremacy.  As long as the judiciary remains its highest institutional interpreter, their rules will fill in the gaps around the document’s deliberately vague clauses. 

Although other forces, like the weight of public opinion, the gravity of history, and the demands of public policy and circumstance will help to determine which of their opinions and rules are granted co-equal constitutional status with the document itself, such equality is a necessary result of the constitutional system we have slowly chosen.

            If Congress wielded co-equal constitutional power, as departmentalism would demand, then statutory law might fill in those constitutional gaps rather than judicial discretion and interpretation.  We might do better in this way to avoid the vagaries of the “invisible constitution” and the problems of legitimacy which such an approach must bear.  How can an “invisible constitution”, which was neither ratified, voted on, nor much less created by the people, command their allegiance as binding—even supreme—law?  How can something not of the people’s creation, nor even that of their elected delegates, attain so lofty a status in a system ostensibly predicated on popular sovereignty?

Though this approach presents its own set of problems, it would help to mitigate these constitutional gray areas, and put the people’s document, for better or worse, back into their collective hands.

So what is the bottom line? What does this mean for our constitutional order?  It means that the invisible constitution is an inevitable part of the way this order has developed.  Public reason (in the Rawlsian sense) gives the people some measure of control over which parts of this judicial construct become essential, unwritten parts of their supreme law (in instances like the Equal Protection clause encompassing race, or judicial review being so accepted by the people and politicians).  I have argued elsewhere that a deep (long-lasting) and broad consensus on a given topic of law or politics (i.e. an undeniable public reason as Rawls describes it in both Political Liberalism and select parts of Collected Papers) lends such a policy an equal democratic pedigree to the Constitution itself. 

Elsewhere, I used this argument to substantiate certain aspects of the Supreme Court’s substantive due process jurisprudence, and to discredit any further complaints about the constitutional illegitimacy of such as the ratification of the 13^th and 14^th Amendments and the expansion of federal power in the New Deal (described in Bruce Ackerman’s We the People Vol. 2).  However, that there would be an attenuated connection between such “invisible” constitutional mandates and the people themselves is the necessary result of our judiciary’s political insulation.

It is surely too late to reverse course now without major federal restructuring, probably requiring an amendment or two.  Keeping the system as it stands seems a stable, if not theoretically satisfying, approach to constitutional development. 

But if we continue to reject departmentalism and co-equal constitutional interpretation, then we should check ourselves when complaining about judicial activism, or invention.  We are forced to accept Tribe's argument that a meta-rule constraining the judiciary to pure textual interpretation itself relies on some form of an invisible constitution, and as such disqualifies itself, unless we are willing to embrace an external departmentalist check on judicial supremacy.  Such an invisible residuary is inplicit in the concept of the Constitution as enforceable law (see Article VI, Section 2), cast in vague terms that require elaboration.  As we have entrusted our Court with the highest institutional power to elaborate, we should not complain too much when they do it.