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All In One Place: The Evidence that an Amendments Convention is a Traditional “Convention of the States”

All In One Place: The Evidence that an Amendments Convention is a Traditional “Convention of the States”

You may have heard opponents of the Article V convention process claim that the make-up of a convention for proposing amendments is a “mystery”—that we have no idea of how the membership would be selected, how they would vote, etc.

Those active in the Article V movement have known for some time that this is inaccurate. For one thing, scholarly research by myself and other scholars, such as Professor Michael Rappaport at the University of San Diego School of Law, has established that an amendments convention is a convention of the states—something the Supreme Court itself acknowledged in 1831. Conventions of the states (and, before them, conventions of colonies) have a 300 year history and have played a prominent part in American life. Their protocols are well understood.

I thought it would be a good idea to collect in a single article all the major pieces of evidence that an amendments convention is a “convention of the states.” The material includes the Supreme Court opinion, pre-constitutional history, and records from the Founding era: comments by the Founders, formal state papers, and resolutions by state legislatures.

Pending selection of a final publisher, you can obtain a copy of the article here.

Court rulings on Trump travel ban endanger state rules used to block school choice

Court rulings on Trump travel ban endanger state rules used to block school choice

Liberal politicos celebrating court decisions voiding President Trump’s travel orders seem not to have noticed something: Those decisions pose a direct threat to the state constitutional language they rely on to block school choice programs.

This danger is not merely theoretical: The state constitutional language they rely on will come under Supreme Court scrutiny later this year.

The state constitutional provisions at risk are called “Blaine clauses” or, less accurately, “Blaine amendments.” They ban state aid to schools and other institutions deemed “sectarian” or “denominational.” Liberal lawyers, judges, and pressure groups have long argued that Blaine clauses ban school choice programs that include religious schools.

But if Trump’s travel orders violate the U.S. Constitution, then Blaine clauses probably do as well. Indeed, the case against the Blaine clauses is stronger in some ways than the case against the travel orders.

Blaine clauses are named for the prominent 19th century federal politician James G. Blaine. During Blaine’s political career, many Americans disliked new Catholic immigrants and their religion. Many states forced immigrant children into public schools imbued with Protestant theology. The idea was to wedge them into a non-denominational Protestant mold.

Catholics naturally asked for public assistance in funding their own schools. Blaine, whose mother was Catholic, seems not to have been prejudiced himself. However, his ambition led him to cater to prejudiced voters. In 1875, while serving as speaker of the U.S. House of Representatives, he proposed an amendment to the U.S. Constitution to permanently block “sectarian” (i.e., Catholic) institutions from enjoying equal treatment.

Blaine’s amendment failed to pass, but Protestant majorities wrote similar clauses into most state constitutions.

The word “sectarian” was carefully chosen. Some modern lawyers and courts think it meant merely “religious,” but they are mistaken. After all, the public schools receiving state aid were religious (Protestant).

The dictionaries of the time show that “sectarian” carried negative meanings of dissent, bigotry, and heresy. These were terms by which many Protestants described Catholics.

In his new study, Blaine’s Shadow, Ross Izard, an educational analyst at Denver’s Independence Institute, shows the direct connection between the Colorado constitution’s Blaine clause and religious and ethnic prejudice. He points out, for example, that Colorado’s Catholic population consisted largely of unpopular Mexican-Americans. He quotes from anti-Catholic newspaper editorials. And he observes that the state constitutional convention itself met in the lodge of a secret society that refused to admit Catholics!

Is this sort of evidence useful for determining whether a rule violates the First Amendment? The court decisions voiding Trump’s travel orders hold that it is. Those rulings rely on allegedly-anti-Muslim statements issued around the same time the orders were issued. The evidence of anti-Catholic bias surrounding Blaine provisions is far more extensive and unequivocal.

Moreover, courts traditionally don’t defer to alleged state violations of the First Amendment nearly as much as they defer to federal foreign affairs and immigration policies.

Liberal defenders of the Blaine clauses sometimes note that evidence of anti-Catholic bias does not exist in all the states that adopted them. This is true. For example, although Montana’s Blaine clause originated in that state’s 1889 constitution, its current version dates only to 1972—when anti-Catholic bias was presumably less.

But Blaine clauses can be used as weapons to attack any unpopular religious denomination. All state courts need do is brand a disfavored denomination as “sectarian,” and —presto!—the state constitution thrusts them into a position of inequality. Even under proper modern usage, a non-denominational Protestant school is “non-sectarian,” while a Catholic, Mormon, or Orthodox Jewish denominational school is “sectarian.”

The First Amendment’s Establishment Clause does not permit government to play favorites in that manner. It does not permit the government to make judgments about which religions are acceptably “non-denominational” (good!), and which are “sectarian” (bad!).

Suppose a state constitution contained a clause that read, “Freedom of speech is guaranteed, except for any speech judges find to be contrary to the public good.”

Would such a clause survive review under the First Amendment to the U.S. Constitution? No it would not.

By the same reasoning, neither should Blaine clauses.

This article first appeared in The Hill.

How the New York Times Misrepresents the Supreme Court

How the New York Times Misrepresents the Supreme Court

A recent New York Times story, titled “A Polarized Supreme Court, Growing More So,” illustrates how left-of-center media distort perceptions of the U.S. Supreme Court.

The story’s problems begin with the lead paragraph’s assertion that Justice Neil Gorsuch’s appointment is “a conservative replacing another conservative.” What the Times probably intended to say is that the appointment replaces an originalist with an originalist. Originalism and conservatism are not the same thing.

Originalism is untied to political results, whether liberal or conservative. It applies the methods English and American judges have used for centuries to interpret most documents, including constitutions. The primary difference between modern originalists and non-originalists hinges on whether judges should be consistent or whether they should change the rules of interpretation for some hot-button constitutional issues.

In the article, as elsewhere, the Times describes the Court as split five-to-four, with the majority constituting a “conservative bloc.” It is more accurate to describe the Court as split four ways: (1) liberal activists (Elena Kagan, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor), (2) originalists (Clarence Thomas and Gorsuch), (3) advocates of judicial deference (John Roberts, Samuel Alito), and (4) an erratic social libertarian (Anthony Kennedy).

“And, in a shift in recent years,” the Times writes, “partisan affiliation has become a very strong predictor of voting trends for all its members.” The sentence is technically true but substantially misleading. This description would be better: although Democratic appointees have been reliably liberal on most issues, Republican appointees have commonly slipped to the left—a slippage reduced recently as GOP administrations have adopted better vetting procedures.

The article’s thigh-slapper is its description of Kennedy as “a moderate conservative.” Anyone familiar with Kennedy’s judicial style knows that he is not a moderate anything, much less a conservative. It is true that he has voted to strike down some particularly ambitious pieces of congressional legislation, but he has also reaffirmed the very liberal view that the federal government may exercise almost unfettered control over the national economy. More importantly, he has written a series of opinions reaching radical social results through an untethered and virtually unprecedented methodology.

Similarly revealing are the “experts” the Times chose to quote. Apparently, there are no experts in flyover country or in the South. Everyone worth hearing is from the Northeast or West Coast.  This is an extraordinary omission because the nomination of Gorsuch, a Coloradan, was widely viewed as an effort to rebalance the court toward the country’s center.

Neither do practicing lawyers exist in the Times’ world. Everyone quoted is affiliated with an academic or policy institution.

Nor do consistent originalist experts exist—even though the Gorsuch hearings dwelt largely on originalism. The Times quotes four liberals and one activist libertarian. No originalist scholars at all.

The Times article cites just one case by name: Citizens United v. Federal Election Commission. The Times treats that case, as is common among liberal writers, as an unqualified “conservative” victory. In fact, it was a split decision, with originalists winning on one issue but losing on the other.

Several years ago, the Times was properly criticized for describing the Court’s activist liberals as its “four moderates.” While the latest article doesn’t make that mistake, it does reveal the Times’ propensity for putting its left-of-center views at the hub of the ideological universe. Thus the reporter describes Obama appointee Merrick Garland as “not especially liberal.” And he selected for publication an unrebutted claim that Garland was “centrist.”

Yet the reporter’s own article shows this to be untrue. It includes another unrebutted quotation in which a long liberal wish list is described as “safe” with Garland. If he were a centrist, presumably liberals would lose sometimes!

In fairness, the Times does quote an expert who cautions against its stereotyped nomenclature—pointing out that labeling Gorsuch and Garland as “‘conservative” or “liberal” is “too simplistic and unfair to both of them.” That caution, however, is buried at the end.

This article was originally published in the American Conservative.

Scalia Probably Favored An Amendments Convention — But Does It Matter?

Scalia Probably Favored An Amendments Convention — But Does It Matter?

A majority of state legislatures have voted to trigger the U.S. Constitution’s most important procedure for reforming the federal government. This is the gathering that Article V of the Constitution calls “a convention for proposing amendments”—more popularly known as a “convention of states.”

Advocates of a convention of states rely on a supportive statement made by the late Supreme Court Justice Antonin Scalia in 1979, when he was still a law professor. Opponents counter with a 2014 statement they claim contradicts his earlier one.

Was Scalia inconsistent? Did he change his mind after he became part of the government? Or, can these two statements be reconciled? The answer is: They probably can be reconciled—and in a way helpful to those supporting a convention.

But another question is: Should we give much weight to either of these statements? The answer to that one is, “Probably not.”

Scalia’s Earlier Statement About a Convention

In 1979, when supporting a convention, Scalia argued that it could be limited in scope. The only problem with his statement was that he showed limited understanding of the institution when he referred to it as a “constitutional convention”—something it clearly is not.

A constitutional convention is an assembly held to produce an entirely new document. A convention for proposing amendments, on the other hand, merely suggests one or more amendments. Earlier generations of Americans understood this, but during the 20th century, the two terms became confused. When Scalia spoke in 1979, that confusion had not yet been cleared up.

Scalia’s Later Statement

In his 2014 interview, Scalia said he opposed a “constitutional convention.” This time, however, he may have been using the phrase correctly. If you watch the 2014 video, you can see that the context suggests a broad general rewrite, rather than merely an amendment or two.

It is not hard to figure out why Scalia’s usage may have changed. Shortly before 2014, seven articles were published in law journals correcting the confusion between the two kinds of conventions. One of those articles appeared in the Harvard Journal of Law and Public Policy, a magazine with which Scalia had a long-standing connection.

Moreover, I authored five of those seven, including the one published by the Harvard Journal, and there is good evidence that Scalia was familiar with my work. In 2008, our articles (on other subjects) appeared together in the same issue of the Harvard Journal. Later that year, Scalia sent me a handwritten letter inviting me to visit him when I came to Washington, DC. I never took him up on his invitation, but in 2014, he cited still another of my Harvard Journal articles three times in a Supreme Court opinion.

It is likely, therefore, that by 2014 Scalia knew that a convention for proposing amendments is not a constitutional convention, and that he was opposing a general rewrite, not the amendments procedure.

Does All This Really Matter?

But does all of this really matter? Probably not.

Scalia is a revered figure, and rightly so. He was learned, eloquent, principled, and courageous. He also researched and published on many subjects, but Article V law was not one of them. And he seems never to have decided a case involving Article V. When Supreme Court justices, like other people, make statements on topics they have not studied, their views may not be well grounded.

In this respect, Scalia may have been in the same position as Chief Justice Warren Burger and Justice Arthur Goldberg, whose uninformed comments sometimes are trotted out by convention opponents. Two other modern justices—William Rehnquist and John Paul Stevens—did preside over important Article V cases, but neither opined on whether we should hold a convention.

The Constitution’s amendments process is not taught in law school and not widely understood. Despite his brilliance and wisdom, there is no reason to believe that Scalia was an expert in Article V.

This article originally appeared in the Daily Caller.

The Relationship Between the Declaration of Independence and the Constitution

The Relationship Between the Declaration of Independence and the Constitution

I’m sometimes asked about the relationship between the Declaration of Independence and the Constitution.

Their connection is not difficult to understand.

The Declaration is a statement based on natural law. Natural law consists of fundamental principles of justice and right. Monotheists see natural law as deriving from the Creator. Polytheists see it as deriving from the supreme deity or deities. Atheists who believe in natural law, such as the late philosopher/novelist Ayn Rand, view it as a collection of rules inherent in the way the universe works.

The Founders’ Version of Natural Law

The men who approved the Declaration were monotheists (“endowed by their Creator with certain unalienable rights”). Their version of natural law had been worked out and popularized by writers such as John Locke. The fundamental characteristics of that version were

  • people have equal dignity before God,
  • God grants people rights or powers, some of which are transferable (alienable) and others not transferable (inalienable or unalienable),
  • government is erected primarily to protect people’s rights,
  • government is a fiduciary enterprise, subject to rules of public trust, and
  • the people may alter government when it does not serve their purposes.

The Constitution, on the other hand, is a statement of positive law. Positive law consists of rules enforceable by governmental authority. There are many positive laws, but the Constitution was designed to be the supreme positive law.

The Founders believed that in a perfect world, positive law would be the same as natural law. In an imperfect world that is impossible, but we should try to make positive law approximate natural law as closely as feasible.

The Founders understood that people would (and should) accept some variations from the ideal. (“[M]ankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed”). At some point, though, the gap between natural and positive law becomes too great to bear. This may be true for a particular law or for a set of laws—or even for an entire political system. In modern language we say the defective law or system “loses legitimacy.”

The Declaration served several purposes. First, it stated a natural law ideal (“We hold these truths to be self-evident. . . .”). Second, it showed how British legal practice varied from this ideal. Third, it explained that the variation had become too great to bear, justifying Americans in proclaiming their independence and thereby throwing Americans and their “British brethren” into a “state of nature” with each other. (Americans were not, however, thrown in a state of nature with their fellow Americans; most of their local ordinances continued to enjoy legitimacy.)

In other words, the Declaration argued that, as to Americans, the positive law of the British Empire had veered so far away from natural law that it no longer legitimately governed the colonies. It needed to be replaced. A similar event happened in our own time, when the peoples of eastern and central Europe overthrew their Communist regimes.

Particular laws or sets of laws may become illegitimate without the entire system being deemed so. For example, the 1960s civil rights advocates rejected laws mandating segregation, but only a few extremists in the movement rejected the American constitutional system. Similarly, a constitutional originalist or pro-life advocate today may well reject the legitimacy of the Supreme Court’s holding in Roe v. Wade without repudiating the entire political structure.

One common response to the illegitimacy of particular laws within a legitimate system is civil disobedience.

The Role of the Constitution

After Independence, the Declaration remained as a statement of America’s natural law ideals. The Constitution was adopted to move American positive law closer to those ideals. The Constitution did this in at least two principal ways:

  • by substantive rules, and
  • by imposing procedures designed to produce better results.

One instance of a substantive rule is the Contracts Clause of Article I, Section 10. The framers designed it to prevent states from using a common method of cheating people. The Contracts Clause did not apply to the federal government, but the framers subjected Congress to procedural mechanisms, like the president’s veto, that made it more difficult for Congress to pass laws cheating people.

The Constitution and Slavery

Although the Constitution was designed to move America closer to natural law principles, it was not a single-minded dash toward Utopia. The Founders could not produce a Constitution that approximated natural law in every way. For example, most Founders recognized that slavery was against natural law. But given the constraints of the time, tolerating slavery was the better of two bad choices. If the Constitution had banned slavery, it would not have met the nine-state threshold necessary for ratification. The result would have been a fragmented country. This likely would led to civil wars that lasted not just a few years (as our actual Civil War did), but decade after decade. That would have resulted in natural law violations greater even than slavery.

The Constitution Should Not Be Distorted to Achieve Natural Law Ends

Some people, including many liberals and libertarians, strain the Constitution to achieve what they see as its proper ends. They overlook the fact that the Constitution is a document of positive rather than natural law and that many of its provisions arise from prudential balancing among values. Moreover, as the supreme law of the land, the Constitution includes not only the Founders’ language, but their principles of interpretation. Their central principle of interpretation was to construe the document as the ratifiers understood it—not as the interpreter would like it to be.

The way to conform the Constitution more closely to natural law is not to pretend it means what it does not mean. The way to conform the Constitution more closely to natural law is to duly amend it.