The Consequences of Allowing Presidents to Ignore the Declare War Clause

While most criticisms of nonoriginalism focus on the creation of constitutional rights that do not exist in the document, the failure to follow the original meaning concerning the separation of powers should receive more attention.  In particular, the failure of the courts and, in areas where the courts do not typically decide matters, the political branches to enforce the original meaning has had serious harm.

Consider the requirement under the Constitution’s original meaning that Congress authorize American wars (except where the U.S. is attacked).  There is a strong case to be made that Constitution’s original meaning imposes this rule.  Despite claims of presidents who seek to engage in hostilities without congressional authorization, the Constitution’s original meaning would work well.  By contrast, under our existing “constitutional practice,” presidents are usually able to engage in war without congressional authorization, as President Obama did in Libya.  And this not only allows presidents to fight wars that the country is not behind, but also undermines the entire system of responsibility that the Constitution establishes in this area. 

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Primus on the Inaccuracy of Madison’s Notes

In my last post, I discussed the implications for originalism if Madison’s Notes are inaccurate.  In this post, I will discuss some commentary by Richard Primus, one of the leading originalist critics, about why originalists might be upset about the inaccuracy of the diary. Primus acknowledges that original public meaning originalists should not be much affected by the inaccuracy, because Madison’s Notes are not very relevant to their theory, which focuses on word meanings.  But he still believes originalists are likely to be upset: Four of the important appeals of originalism are (1) the promise of stability, (2) the opportunity to bask…

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Does Inaccuracy in Madison’s Notes Matter?

Constitutional historian Mary Bilder has a new book entitled Madison’s Hand: Revising the Constitutional Convention, which argues that Madison’s Notes, which are the principal source of the Philadelphia Convention’s activities in drafting the Constitution, were revised more extensively than most people realize.  While I have not read Bilder’s book yet (but here is a brief summary), I very much like Bilder’s work, including this book and this excellent article.  I am, however, aware of the criticisms and accusations about Madison’s work from previous scholars.

The extent to which the possible inaccuracy of Madison’s Notes affects originalism depends in part on the type of originalist one is.  If one favors an original intent approach, then it is normally thought that the possible inaccuracy would be a big problem.  By contrast, if one favors an original public meaning approach, then many people believe such inaccuracy would not matter much, because it is the meaning of words that matter, not what went on in the Philadelphia Convention.

Here I want to explain in what ways the Philadelphia Convention debates are relevant to an original public meaning approach.  Such an approach inquires into the public meaning of the terms that the Constitution employs (rather than the subjective intent of the people who wrote the Constitution).  An original methods originalist version of original public meaning – which is my view – looks to the original interpretive rules to determine that public meaning.

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Does the Constitution Allow a Female President? Originalism Says Yes. Some Types of Nonoriginalism May Say No.

This might seem like an odd question, but a journalist recently asked me my opinion about the matter.  It turns out that Article II of the Constitution refers to the President as a him.  For example: “He shall hold his Office during the Term of four Years.”  If this “he” meant only a male person, there would be a strong argument that the President had to be a male.

But I believe that this interpretation is mistaken.  It is my understanding that the term “he” at the time of the Constitution had multiple meanings or usages.  While one of those was to refer to a male person, another was to use the term “he” to mean “he or she.”  Under that usage, a female President would be constitutional.

The same issue arises as to members of Congress as well.  For example, Article I, section 2, clause 2 provides “No person shall be a Representative who shall not have attained to the Age of twenty-five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.”  (Emphasis added.)

There are strong reasons for preferring the “he or she” meaning over the “he” meaning.  Most importantly, the Constitution contains explicit qualifications for serving in Congress and in the presidency.  These are normally thought to be the exclusive qualifications set by the Constitution.  Reading in another qualification – maleness – would thus conflict with the constitutional structure.

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Martha Could Have Succeeded George

Hillary Clinton is the odds on favorite to be the next President of the United States. From a reporter this weekend, I learned that her possible victory has offered an occasion for Dean Erwin Chemerinsky to argue that the original meaning of the Constitution would prevent her from being President. His primary contention is that women are excluded form the highest office because the original Constitution refers in many places to the President as “he.” Of course, Dean Chemerinsky does not believe that the Constitution correctly interpreted actually prevents Clinton from becoming President nor is he predicting that any court will so hold. He just wants to score points against originalism.

But his argument shows that he understands little about originalism and seemingly less about the plain text of the Constitution. First, the language of the Constitution has to be interpreted against the linguistic convention that existed at that time (and indeed despite its political incorrectness may exist even now) that the masculine reference can include females.  Lest there be any doubt that this was a convention at the Framing, one just has to consult the King James Bible, surely the book best known in the United States in 1789.

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Originalism and the Stability of Constitutions

In a previous post, I discussed the view of Barry Weingast and his coauthors as to what makes for the stability of a constitution. Weingast argued that there are three basic conditions needed for constitutional stability. First, the Limit Condition: having a constitution that imposes significant limitations on what the government may do, so that people do not have strong incentives to take extraconstitutional action to prevent the other party from securing power. Second, the Consensus Condition: having a constitution that makes clear what are constitutional violations, so that the people can unite together to stop the government from taking such unconstitutional actions. Third, the Adaptation Condition: having a constitution that allows for adaptation so that when social or other changes occur, the constitution can be modified to continue to satisfy these three conditions.

I want to argue that these conditions are much better satisfied when the constitution is interpreted in an originalist way.  Here I will be talking about the U.S. Constitution.

The Limit Condition is better satisfied by following the original meaning of the Constitution. If the original meaning is not followed, then it becomes unclear what limits the Constitution actually imposes. Interpreters can modify its meaning to a significant degree.  Thus, people may fear the exercise of power by a government because that government may exercise dangerous powers that are currently not allowed, but will be permitted when the Supreme Court (or other actor) reinterprets the Constitution. 

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Pass A Constitutional Amendment to Overrule Kelo and Help Regain our Republic

Charles Cooke has called for a constitutional amendment to overrule Kelo v. City of London. In Kelo a narrow majority of the Supreme Court read the public use requirement out of the Fifth Amendment’s Taking Clause and allowed the amendment to become a tool of private developers to take property from the politically less powerful. Cooke makes the excellent point that this amendment may unite many conservatives and liberals, because the Kelo decision aided special interests at the expense of the property rights of ordinary citizens.

Passing a constitutional amendment would be good for the republic even beyond the benefit of overturning Kelo and the more expressive one of trumpeting the importance of property rights. Deliberating on and enacting constitutional amendments is good for our constitutional culture.

First, it would rebut the facile and false claim that our constitutional amendment process is so hard that no significant amendments can be passed—a claim often made to justify non-originalism. In fact, the nation passed the transformative sixteenth and seventeenth amendments when there were almost as many states as there are today.  In 1971 the twenty-sixth amendment reducing the age requirement for voting to eighteen took less than four months to ratify—the shortest time in the nation’s history.

Second, moving amendments to the front and center of debates would improve our politics.

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It Is Not Clear that the Speaker Needs to Be a Member of the House

In a post last week, Diana Schaub argues that the Speaker of the House must be a member of the House of Representatives.  Here is the initial part of her argument:

There is an inescapable logic to the setting forth of the Constitution’s sections which should guide interpretation. In Article 1, Section 1, we learn that Congress is vested with specified legislative powers and that Congress “shall consist of a Senate and House of Representatives.” In Article 1, Section 2, Clause 1, we learn that “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States.”

These definitions govern the meaning of subsequent clauses. I admit that it would have put the kibosh on the present foolishness if the fifth clause had included the words in italics: “The House of Representatives shall choose from among their number their Speaker.” I think it simply never occurred to them that someone would take it into his head to contend that the Speaker of the House could be an individual who was not a fellow legislator. The possessive pronoun is important. The House chooses “their” Speaker—a Speaker, we might say, who is of the House, by the House, and for the House. According to Article 1, Section 2, Clause 1, the House is composed of members and only members. The existing members of the House cannot summon into being a new member. The drafters thought the chain of connection from Sections 1 and 2 to Section 5 was clear enough; and for over 200 years, it was.

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7th Annual Originalism Works-in-Progress Conference

Every year, the University of San Diego Originalism Center holds an Originalism Works-in-Progress Conference in February.  Happily, the conference has come to be one of the significant events in academic originalism, with leading originalist and nonoriginalist academics attending.  At these events, I often feel like I am witnessing "state of the art" originalism. Here is the list of papers and commentators for this year's conference, which will be held February 19-20, 2016 at the University of San Diego Law School.  Anyone interested in attending should contact the Center. 1. Will Baude (Chicago) and Stephen Sachs (Duke), The Law of Interpretation (Paper to be given by…

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A Nonoriginalist Challenge to Birthright Citizenship for Illegals – Part III: A Nonoriginalist Interpretation

In my prior two posts, I argued 1) for a large amount of legal immigration and 2) that the original meaning of the Fourteenth Amendment confers birthright citizenship, even on  the children of illegal immigrants.

Here, though, I want to present a nonoriginalist interpretation of the Fourteenth Amendment’s Citizenship Clause – one that would deny birthright citizenship to the children of illegal aliens. My principal aim in this exercise is to make a point about nonoriginalism: while many advocates of nonoriginalism seem to believe that nonoriginalism only leads to more rights of the type that they like, this is not true. While most advocates of nonoriginalism probably favor birthright citizenship, nonoriginalists should see that the original meaning here supports a result they like, whereas nonoriginalism allows a strong argument for a result they dislike. (It is also worth noting to originalists that nonoriginalism may sometimes support results they like.)

While the language “subject to the jurisdiction thereof” might have the original meaning as I mentioned in my previous post, it could also be understood as meaning  “subject to the exclusive jurisdiction of the United States.” Under international law at the time of the Fourteenth Amendment, states had jurisdiction over their citizens anywhere in the world, but of noncitizens mainly in their own territories. Thus, the children of solely American citizens born in the United States are exclusively subject to the jurisdiction of the United States. No other country has jurisdiction over them. By contrast, the children of foreign citizens, who were typically citizens of their parents’ country of birth, would not be subject to the exclusive jurisdiction of the United States, because they would be subject to the jurisdiction of their parents’ home country. This interpretation, then, has the consequence that the children of foreign citizens, both legal and illegal, would not be citizens at birth under the Fourteenth Amendment.

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