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Rob Natelson’s Research Again Relied on by a Supreme Court Justice

Rob Natelson’s Research Again Relied on by a Supreme Court Justice

On November 27, 2017 the Supreme Court denied certiorari (review) of a lower court decision in Upstate Citizens for Equality v. United States. Justice Clarence Thomas issued a dissenting opinion in which he argued that his colleagues should have taken the case. Justice Thomas twice cited (i.e., explicitly relied on) Rob’s 2008 research article on the Indian Commerce Clause.

These two citations mark the 18th and 19th times since 2013 that Supreme Court justices have cited Rob’s articles. (The citations appeared in 6 different cases.) Besides Justice Thomas, Rob’s articles have been relied on by the late Antonin Scalia and by Chief Justice Roberts.

The Constitution’s Indian Commerce Clause reads “The Congress shall have Power . . . to regulate Commerce . . . with the Indian tribes.” Congress, with the support of the courts, claims those words give Congress “plenary” (unlimited) authority to govern Indian affairs without participation by the states—and even without participation by the President-and-Senate acting under the Treaty Power.

Justice Thomas has long doubted that this is the correct reading of the Indian Commerce Clause, and Rob’s research, published in the 2008 article, showed convincingly that Justice Thomas was right to be skeptical. The article was entitled The Original  Understanding of the Indian Commerce Clause, and it is available here.

In the Upstate Citizens case, the Secretary of the Interior, acting under a congressional statute supposedly authorized by the Indian Commerce Clause, seized jurisdiction over 13,000 acres in central New York State. The effect was to largely muscle out state and local authorities and to damage private citizens. Suing to overturn this action were citizens, a civic organization, and a local government.

The plaintiffs lost in the lower tribunals. The U.S. Court of Appeals also cited Rob’s article, but deemed itself bound by case precedent to uphold the government’s action. It was the latter decision the U.S. Supreme Court declined to review.

The result in Upstate Citizens suggests that even with the addition of Justices Alito and Gorsuch, Justice Thomas remains the only consistent originalist on the court.

What Does the Founding Era Evidence Say About How Presidential Electors Must Vote? – 5th in a Series on the Electoral College

What Does the Founding Era Evidence Say About How Presidential Electors Must Vote? – 5th in a Series on the Electoral College

The previous installment collected founding era evidence on whether presidential electors were to control their own votes. The evidence included dictionary definitions, existing practices, and the records of the Constitutional Convention.

This installment continues the discussion of founding era by collecting material from the public debates on whether to ratify the Constitution. These debates occurred between September 17, 1787, when the Constitution became public, and May 29, 1790, when the 13th state, Rhode Island, ratified. Comments from those debates generally show that the ratifiers understood presidential electors were to exercise their own judgment when voting.

Probably the most-quoted statement from the public debate is from Alexander Hamilton’s Federalist No. 68:

A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations. . . . And as the electors, chosen in each State, are to assemble and vote in the State in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place.

This is an important statement. However, for a number of reasons, we should not over-rely on The Federalist—or on Hamilton, for that matter—when reconstructing how the public understood the Constitution. Fortunately, there is a fair amount of additional evidence.

Some of this material consists of comments stating merely that the electors—rather than anyone else—would decide how to vote. In other words, they assume the electors would remain independent.

For example, Roger Sherman, a delegate at Philadelphia and a supporter of the Constitution, wrote that the president would be “re eligible as often as the electors shall think proper.” An essayist signing his name Civis Rusticus (Latin for “Country Citizen”) wrote that “the president was [chosen] by electors.” The Antifederalist author Centinel asserted that the state legislatures would “nominate the electors who choose the President of the United States.” The Antifederalist Candidus feared “the choice of President by a detached body of electors [as] dangerous and tending to bribery.”

In his second Fabius letter, John Dickinson—also described elector conduct in a way consistent only with free choice:

When these electors meet in their respective states, utterly vain will be the unreasonable suggestions derived for partiality. The electors may throw away their votes, mark, with public disappointment, some person improperly favored by them, or justly revering the duties of their office, dedicate their votes to the best interests of their country.

In Federalist No. 64, John Jay likewise implied elector choice and independence:

The convention . . . have directed the President to be chosen by select bodies of electors, to be deputed by the people for that express purpose; and they have committed the appointment of senators to the State legislatures . . .  As the select assemblies for choosing the President, as well as the State legislatures who appoint the senators, will in general be composed of the most enlightened and respectable citizens, there is reason to presume that their attention and their votes will be directed to those men only who have become the most distinguished by their abilities and virtue, and in whom the people perceive just grounds for confidence.

Some participants emphasized that electors would remain independent because the Constitution would protect them from outside influence. At the North Carolina ratifying convention, James Iredell, later a justice of the U.S. Supreme Court, spoke to the issue in a slightly different context:

Nothing is more necessary than to prevent every danger of influence. Had the time of election been different in different states, the electors chosen in one state might have gone from state to state, and conferred with the other electors, and the election might have been thus carried on under undue influence. But by this provision, the electors must meet in the different states on the same day, and cannot confer together. They may not even know who are the electors in the other states. There can be, therefore, no kind of combination. It is probable that the man who is the object of the choice of thirteen different states, the electors in each voting unconnectedly with the rest, must be a person who possesses, in a high degree, the confidence and respect of his country.

Advocates of the Constitution sometimes promoted the Electoral College as representing a viewpoint all its own rather than as reflecting the will of others. Hence Hamilton’s observation in Federalist No. 60:

The House of Representatives being to be elected immediately by the people, the Senate by the State legislatures, the President by electors chosen for that purpose by the people, there would be little probability of a common interest to cement these different branches in a predilection for any particular class of electors.

Some participants discussed how electors might be appointed—whether by the state legislatures or the people. For example, an essayist styled A Democratic Federalist wrote, “our federal Representatives will be chosen by the votes of the people themselves. The Electors of the President and Vice President of the union may also, by laws of the separate states, be put on the same footing.”

Yet such discussions of appointment were not accompanied by claims that those who made the appointments would dictate the electors’ votes. To be sure, William Davie, another Philadelphia delegate, said at the North Carolina ratifying convention that “The election of the executive is in some measure under the control of the legislatures of the states, the electors being appointed under their direction.” But “in some measure under the control” does not mean “wholly dictate.”

Possibly the closest anyone came to suggesting the legislatures would direct electors’ votes was a comment by Increase Sumner at the Massachusetts ratifying convention: “The President is to be chosen by electors under the regulation of the state legislature.” However, it is unclear what Sumner meant by “regulation.” He could be referring merely to the fact that the legislature would “regulate” how electors were appointed.

For those most part, moreover, participants worded their statements in ways that avoided any suggestions that electors’ votes could be controlled. In arguing for the Constitution, One of the People declared:

By the constitution, the president is to be chosen by ninety-one electors, each having one vote of this number . . . The constitution also admits of the people choosing the electors, so that the electors may be only one remove from the people . . .”

Note how this is phrased: (1) the electors choose the president, (2) the people may choose the electors, and if so (3) the choice of the president will be “only one remove from [not “determined by”] the people.”

At the Massachusetts ratifying convention Thomas Thacher asserted “The President is chosen by the electors, who are appointed by the people.” And in North Carolina Iredell argued that “the President is of a very different nature from a monarch. He is to be chosen by electors appointed by the people.” Again, observe the difference between appointment and choice of the president.

A final point: When crafting the Electoral College, the framers were careful to minimize opportunities for collusion, intrigue, or “influence.” As James Iredell observed in the extract quoted above, one element of the framers’ plan was to allow Congress to appoint a day for appointment of electors and another day for voting. In each case, however, “the Day shall be the same throughout the United States.” Article II, Section 1, Clause 4.

In 2016, the uniform day for the appointment of electors established by Congress was November 8. But Colorado authorities removed an elector and appointed in his alleged successor on December 19—manifestly not the same day as November 8.

Not only did this violate the uniform day rule, but it was a classic example of the kind of political maneuvering the rule was designed to prevent.

Activists Can Spend Their Time Better Than Trying to Resurrect the Long-Dead “Equal Rights Amendment”

Activists Can Spend Their Time Better Than Trying to Resurrect the Long-Dead “Equal Rights Amendment”

Left-of-center activists are prodding state lawmakers to waste public time “ratifying” a constitutional amendment that, by its very terms, is long dead and can no longer be ratified. Earlier this year they even convinced the Nevada legislature to sign on to their campaign.

They should use their time and energy more wisely by campaigning for amendments that are both feasible and would make life better. One such amendment was proposed by James Madison and approved by Congress over two centuries ago — but could still be ratified today.

In 1972, Congress proposed a measure supporters dubbed the “Equal Rights Amendment” (ERA). On its face, the ERA seemed to ensure equality for women. In a burst of enthusiasm, 35 of the necessary 38 state legislatures ratified it.

As public debate continued, however, it became clear the ERA was a poorly-drafted measure that would do little for women’s rights. It would have transferred massive amounts of power away from local governments and elected representatives, handing it instead to lawyers, judges, and bureaucrats. When state legislatures realized this, the ratifications stopped and several states rescinded.As proposed by Congress, the ERA provided that it would become part of the Constitution only if 38 states approved it within seven years — that is, by 1979. When the ratification campaign bogged down, Congress tried to change the rules by extending the deadline to 1982. Not surprisingly, a federal court ruled that Congress could not do that. Although the court’s decree later proved unnecessary — state legislatures weren’t going to ratify such a flawed amendment anyway—the court’s opinion remains one of the most thorough judicial discussions of the amendment procedure.

Of course, even if Congress’s extension had been valid, the ERA still would have expired long ago.

Do activists have any serious legal basis for raising the ERA zombie? Well, no. Their “legal” arguments are based on a 1997 article written as a law student project. As often happens with student projects, the article is so error-ridden that no court is likely to take it seriously.

Activists should spend their time more productively by promoting useful constitutional reforms overwhelmingly favored by the American people — reforms now blocked by an unresponsive Congress. Examples include federal term limits and a balanced budget rule.

Or, if they want to exercise their fascination for the ancient, they could campaign to complete ratification of James Madison’s original first amendment, which Congress proposed in 1789 as part of the Bill of Rights. Although the requisite number of states have never approved it, unlike the ERA, the original first amendment has no ratification deadline.

As proposed by Congress, the measure provided for growth in the House of Representatives along with the growth in population, until such time as:

the number of representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred representatives, nor more than one representative for every fifty thousand.

Adopting this amendment today might induce us to convert the U.S. House of Representatives from a council of Washington D.C. politicians into a large assembly citizen-lawmakers — linked to each other electronically, but residing in and representing their local communities. (The Senate would not be affected.) A large House of Representatives would better represent popular opinion and make it much harder for lobbyists and special interests to control Congress.

It would give citizens much better access to Congress than they have now. It would magnify the voices of the women the activists claim to care about.

Not only has modern technology rendered a very large House of Representatives practical, the cause is also politically feasible: In 1992 dedicated citizens secured ratification of Madison’s original second amendment — now in the Constitution as the 27th.

Whether or not activists undertake that project, they should stop wasting public time. Let the decomposed corpse of the ERA rest in peace.

Third in a Series: John Dickinson During the Continental and Confederation Periods

Third in a Series: John Dickinson During the Continental and Confederation Periods

This is the third of a five-part series on Founding Father John Dickinson, who published his highly influential “Farmer Letters” exactly 250 years ago. The series was first published by the Washington Post’s blog, The Volokh Conspiracy.

In 1774, John Dickinson was elected to the First Continental Congress. As he had in the Stamp Act Congress, he served as principal drafter of public statements. The following year he was returned to the Second Continental Congress, where he again served as principal drafter. He was the primary author of, among other papers, two petitions to the Crown and The Declaration of Causes and Necessity for Taking up Arms. Moreover, he chaired the congressional committee that drafted the Articles of Confederation: Our oldest draft of the Articles is in his handwriting.

Throughout this period he tried to steer a middle course between submission and rebellion. He was a firm believer in moderation, which he once called “a virtue, and the parent of virtues.” Another member of Congress, Thomas Jefferson, wanted to proceed more vigorously. In his Autobiography Jefferson relates a story pertaining to the Declaration of Causes and Necessity for Taking Up Arms and the second petition to the Crown, the Olive Branch Petition. The anecdote reveals how most of Dickinson’s colleagues perceived him:

I prepared a draught of the Declaration committed to us. It was too strong for Mr. Dickinson. He still retained the hope of reconciliation with the mother country, and was unwilling it should be lessened by offensive statements. He was so honest a man, & so able a one that he was greatly indulged even by those who could not feel his scruples. We therefore requested him to take the paper, and put it into a form he could approve. He did so, preparing an entire new statement, and preserving of the former only the last 4 paragraphs & half of the preceding one. We approved & reported it to Congress, who accepted it. Congress gave a signal proof of their indulgence to Mr. Dickinson, and of their great desire not to go too fast for any respectable part of our body, in permitting him to draw their second petition to the King according to his own ideas, and passing it with scarcely any amendment. The disgust against [i.e., distaste for] this humility was general; and Mr. Dickinson’s delight at its passage was the only circumstance which reconciled them to it.

This respect for Dickinson was not universal. John Adams, one of Congress’s leading hotheads, described him as “delicate, and timid” and representative of people of “great Fortune and piddling Genius.”

By the summer of 1776, Dickinson realized Independence was inevitable. He was certain, however, that publicly declaring it was premature. His July 1 speech in opposition to the Declaration, of which we have notes but not the text, shared with his 1764 Pennsylvania assembly oration a careful balancing of risks, probabilities, and benefits. Like his other productions, the July 1 speech was punctuated with sound bites. Thus, of his countrymen, he avowed, “I had rather they should hate me than that I should hurt them,” and he characterized advocates of an immediate declaration as wanting to “brave the storm in a skiff made of paper.”

A modern American may find it difficult to sympathize with Dickinson’s arguments against Independence. But a historian finds it difficult to disagree with all of them. Several of Dickinson’s predictions proved entirely accurate. One was that only American military successes, not the Declaration, would bring France into the war. Unfortunately, Dickinson’s prediction that his stance would destroy his popularity also proved accurate.

Dickinson’s speech against Independence, like his opposition to the 1764 Galloway-Franklin charter plan, illustrates the man’s enormous moral courage. There is no record—and I am not the first to make this observation—that John Dickinson ever backed down in the face of popular opposition when an issue was important.

When it became apparent that a majority of states in Congress would approve the Declaration, Dickinson remained a team player. He and Robert Morris withdrew so the vote could be unanimous. Unlike most in Congress, moreover, Dickinson served two stints in the Revolutionary armed forces.

Another insight into his character is offered by his 1781 decision to free his slaves. Most of the Founders opposed slavery. But Dickinson was one of the few to free his own slaves during his lifetime.

Dickinson’s loss of popularity kept him from political office for about three years. His political comeback began in 1779, when Delaware returned him to Congress. Two years later he was elected president of that state, and in 1783 president of Pennsylvania. He was re-elected to two additional annual terms, thereby serving the constitutionally-permitted maximum.

In 1786, he represented Delaware in the Annapolis Convention, and was elected president of that body. The Annapolis Convention, of course, was the assembly that recommended to the states a wider federal convention in Philadelphia the following May. Virginia (not Congress, as commonly claimed) responded by formally calling the Philadelphia conclave.

Delaware sent Dickinson to Philadelphia as the head of a five-man delegation. In that capacity he impacted the results significantly.

Fourth in a Series: John Dickinson’s Contributions to the Constitution

Fourth in a Series: John Dickinson’s Contributions to the Constitution

This is the fourth of a five-part series on Founding Father John Dickinson, who published his highly influential “Farmer Letters” exactly 250 years ago. The series was first published by the Washington Post’s blog, The Volokh Conspiracy.

John Dickinson believed the passions could be the source of evil, but “[d]uly governed, they produce happiness.” Indeed, “[t]he due regulation of the affections [emotions] is the perfection [completion] of man’s character.” One achieved “due regulation” through well-structured societal institutions, including constitutional institutions: “The best foundations of this protection, that can be laid by men, are a constitution and government secured, as well as can be, from the undue influence of passions either in the people or their servants.” (Observe the phrase “undue influence,” a concept common in fiduciary law.)

Dickinson’s 1764 speech to the Pennsylvania assembly showed he understood the difference between constitutions and ordinary legislation. The role of a constitution was to lay down procedures for managing the rights and powers citizens contributed to the central authority: “[A] constitution is the organization of the contributed rights in society.” A good constitution featured mechanisms to maximize human advantages and minimize disadvantages. It encouraged good results and discouraged bad ones—the “cultivation of virtues and correction of errors.”

Dickinson was in Philadelphia for nearly the entire convention, although illness apparently caused him to miss some of the proceedings. Notes taken by James Madison and others, as well as Dickinson’s own notes (not recovered until 1983) reveal a significant impact on the framers’ deliberations.

Dickinson’s views were more centralizing than those of other small state delegates, such as New Jersey’s William Paterson. Yet they were more “federal” than views of nationalists such as Madison and Alexander Hamilton. Dickinson spoke for the “preservation of the States in a certain degree of agency [action],” but was willing to go much farther than those who wished merely to amend the Articles. Thus, he pressed for an enumeration of federal powers two months before the Committee of Detail adopted one. The ultimate federal/state balance was much closer to his ideals than, for example, to the ideals of Madison, the putative “father of the Constitution.”

The list of constitutional provisions impacted by Dickinson is a very long one. Consider the Great Compromise by which Senators were allocated by state and Representatives by population. As Dickinson hinted in his ratification-era Fabius letters, he had promoted a formula of this sort long before the other delegates acceded to it.

Dickinson sponsored the resolution that allocated at least one Representative to each state. In his draft plan for a constitution, he inserted the first rudimentary version of the Necessary and Proper Clause. (It would have authorized Congress to “pass Acts for enforcing” other congressional laws.) Amid debate over whether the Constitution should create a federal judiciary below the Supreme Court, he suggested the compromise whereby Congress received power to decide the issue. Despite misgivings, he made the motion to permit the president to be impeached. An opponent of the slave trade, he eventually helped broker the compromise whereby the trade was left untouched for several years, with power in Congress to abolish it thereafter.

Of course, he did not always get his way. He initially favored allocating members of the House of Representatives by wealth and tax contributions rather than by population. Eventually, he yielded to the convention’s conclusion that population generally was a fair proxy for wealth. The exception to the link between population and wealth was slavery, because of the lower productivity of slaves compared to freemen, white or black. The three-fifths compromise was the convention’s effort to quantify the difference, but Dickinson unsuccessfully opposed it.

Perhaps his most notable contributions pertained to the structure of the Senate. He suggested terms of office both staggered and long—although his initial preference was for seven years rather than six. He proposed that the Senate equally represent the states and that Senators be selected by the state legislatures. He sought to adapt British precedent to American conditions: Just as the House of Lords was necessary to protect the nobility and the royal veto to protect the Crown, the Senate would protect the states. Dickinson could look simultaneously back to the past and forward to the future.

This faculty surfaced again during the debate over the Origination Clause. In British parliamentary practice (adopted in modified form in some of the new state constitutions) all money bills originated in the Commons. The Lords could approve or disapprove them, but could not amend them. In conjunction with Virginia’s Edmund Randolph, Dickinson successfully fought for a requirement that all revenue bills, but not all money bills, arise in the House of Representatives, with the Senate enjoying power to amend.

Some delegates believed limiting revenue origination to the House was irrational, and they buttressed their opposition by reciting difficulties experienced in a few states with origination clauses in their recently-adopted constitutions. Madison in particular launched a convoluted attack against an origination rule.

Dickinson’s response to Madison was his most famous speech of the convention. This is the version reported by Madison himself:

Experience must be our only guide. Reason may mislead us. It was not Reason that discovered the singular & admirable mechanism of the English Constitution. It was not Reason that discovered or ever could have discovered the odd & in the eye of those who are governed by reason, the absurd mode of trial by Jury. Accidents probably produced these discoveries, and experience has give a sanction to them. . . . And has not experience verified the utility of restraining money bills to the immediate representatives of the people. Whence the effect may have proceeded he could not say; whether from the respect with which this privilege inspired the other branches of Govt. to the H. of Commons, or from the turn of thinking it gave to the people at large with regard to their rights, but the effect was visible & could not be doubted. Shall we oppose to this long experience, the short experience of 11 years which we had ourselves, on this subject. . . [A]ll the prejudices of the people would be offended by refusing this exclusive privilege to the H. of Repress. and these prejudices shd. never be disregarded by us when no essential purpose was to be served. When this plan goes forth, it will be attacked by the popular leaders. Aristocracy will be the watchword; the Shibboleth among its adversaries. Eight States have inserted in their Constitutions the exclusive right of originating money bills in favor of the popular branch of the Legislature. Most of them however allowed the other branch to amend. This . . . would be proper for us to do.

Here was a statement of Burkean conservatism three years before Burke’s Reflections on the Revolution in France.

As sometimes happened during Dickinson’s career, his colleagues rejected his proposal at the time—only to adopt it later.