Thursday, June 28, 2012


Today's Supreme Court decision, of course, was mistaken in a number of respects, but the most serious problem with it is that the Court failed to correct certain precedents that, it had become clear, were erroneous. In this post, however, I will only object to an idea expressed by Chief Justice Roberts in the opinion -- not an original idea, on his part, but rather one that is at the center of what is wrong with the existing relationship between the Supreme Court and Congress.

The Chief Justice wrote:

"The reach of the Federal Government’s enumerated powers is broader still because the Constitution authorizes Congress to 'make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.' Art. I, §8, cl. 18. We have long read this provision to give Congress great latitude in exercising its powers: 'Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.' McCulloch, 4 Wheat., at 421."

This is an excellent example of the mistakes that can be made when judges receive precedents -- even the most venerable, best established precedents -- without adequate caution. In the first place, I do not think that either the "necessary and proper" clause or this quote, which is meant to explain it, can correctly be understood as extending the reach of the federal government (regardless of what politicians and justices have managed to actually reach by invoking them); instead, they strengthen its grip. That clause does increase what the federal government is empowered to do (other than so far as it is understood as the equivalent of certain common law maxims of interpretation, which were similar to it, in which case it only guarantees those implied powers), but only as a means of carrying other powers into effect. It does not authorize any new "ends," except for intermediate ones. Secondly, so far as the quote from McCulloch suggests otherwise, it is contrary to the Constitution and illegitimate. The body of "constitutional law" is not like the common law -- it is simply a tool for ascertaining the true meaning of the Constitution and giving it its proper effect. A rule of this "case law" that is contrary to the Constitution must be void for the same reason that Marshall explained that a statute that is contrary to the Constitution must be void: because if the two are inconsistent, one or the other must give way, and the Constitution, which is the Supreme Law of the Land, does not give way. As Edward Coke said of Magna Charta, our Constitution is such a fellow that he will have no sovereign.

"Our permissive reading of these powers is explained inpart by a general reticence to invalidate the acts of the Nation’s elected leaders. 'Proper respect for a co-ordinate branch of the government' requires that we strike down an Act of Congress only if 'the lack of constitutional authority to pass [the] act in question is clearly demonstrated.' United States v. Harris, 106 U. S. 629, 635 (1883). Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices."

To some extent, it is. The Constitution, if understood and applied faithfully, settles certain policy questions and protects us, to some extent, from the consequences of bad political choices by marginal or temporary majorities. However, we will not have the benefit of this protection so long as the Supreme Court persists in its policy of giving its blessing to Congress' exercise of unconstitutional powers.

Also, respect for a co-ordinate branch of the government, as the following paragraph of Chief Justice Roberts' opinion somewhat recognizes, does not involve ignoring any violation of the Constitution, or any practice of deferring to Congress other than when the unconstitutionality of the act "is clearly demonstrated," if a "clear" demonstration requires anything more than a satisfactory demonstration that the act is, in fact, unconstitutional. I might tend more to agree with such an application of the Court's respect for Congress if there were any reason to believe that Congress has actually developed and maintains something stating its own theory of the extent and nature of its constitutional powers, but based on what I know of Congress -- and I admittedly do not have an intimate, internal knowledge of Congress and its members and its operation -- Congress, as an institution, has no such theory or understanding of the Constitution, much less one that it treats as binding on itself, and certainly not one that persists, more or less intact, from Congress to Congress. Why should the Court treat with any respect a judgment which no recent Congress has actually made, concerning the true meaning and effect of the Constitution on its own powers? And if it does, is it not in doing so deciding that it is better for Americans to be bound by unconstitutional laws than for Congress to be bound by valid ones? Whatever the basis for such a policy decision might be, it is not of the Constitution.

"Our deference in matters of policy cannot, however, become abdication in matters of law. 'The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.' Marbury v. Madison, 1 Cranch 137, 176 (1803). Our respect for Congress’s policy judgments thus can never extend so far as to disavow restraints on federal power that the Constitution carefully constructed."

That, for the most part, is true, but it again uses this language of "respect for Congress' policy judgments," which is only appropriate so far as those policy judgments concern subject matter and powers committed to the control of Congress, either explicitly or fairly implied, by the Constitution. Roberts rightly acknowledges that this respect may not extend so far as to cause the Court to ignore the limits of Congress' constitutional powers, but I think that by casting "respect for Congress' policy judgments" as a principle of its own, he wrongly -- and possibly unintentionally -- prepares the Court for the short-circuiting of its own consideration of the extent of Congress' powers, and to resolve questions that are not immediately clear with deference to Congress rather than by inquiring, reasoning, and arriving at a plausible conclusion concerning what power or rule was actually adopted and incorporated into the Supreme Law of the Land. Maybe this is how he was able to overlook the fact that certain uses of the powers of Congress are more in the nature of a regulation or a rule of conduct than a justifiable application of those powers (according to their own nature and internal logic), such as the use of the taxing power to fine certain courses of conduct, without designating that conduct as an offense or other form of unlawful conduct -- and without due process of law.

Thursday, June 21, 2012

Vox Populi Vox Dei

That maxim, for those who do not know what it means, means, "The voice of the People is the voice of God." It is false, of course; any person can make mistakes. More than a few of us do things that we wish that we hadn't done, and there are some who have committed crimes -- who have not only done a few things that happened to be prohibited by some legislature (or a City-County Council, passing "ordinances" about whether people can smoke in a place owned by someone who would allow it, or about the number of cars that people can park in their own yards) -- but who have done things that are actually worth incurring come sort of penalty over, due to the fact that the act was actually wrongful. Some of them are in legislatures. Some of the things that they have done, contrary to the laws of the "several States" and to the Supreme Law of the Land, have been in those legislatures, or in Congress (which is a legislature, to some extent).

As a part of my notes on Francis Lieber, author of the Lieber Code (among other works), I present the following, which concerns the idea that whatever the people are alleged to have declared is legitimate, advantageous, and just:

“Mr. Say informs us that when the first cotton manufactures were introduced into France, petitions from all the incorporated large towns, from merchants and silk-weavers, were sent to Paris, clamoring in vehement terms against the ‘ungodly-calico prints.’ Rouen, now the busiest of all the French cotton manufacturing places, was among the foremost, and the petition of the united three corporations of Amiens ended thus: ‘To conclude, it is enough for the eternal prohibition of the use of printed calicoes, that the whole kingdom is chilled with horror at the news of their proposed toleration. Vox populi vox Dei.’ This might well be considered as sufficient to prevent every reflecting man from using the maxim. We now know that the cotton tissue has become one of the greatest blessings of our race, giving comfort, health, and respectability to entire masses of men formerly doomed to tatters, filth, and its fearful concomitants, typhus and vice, and we know too that cotton manufacture is one of the most lucrative branches of French industry.”

“Unanimity of itself proves nothing worth being proved for our purpose. In considering unanimity, the first subject that presents itself to us is that remarkable phenomenon called Fashion—a phenomenon well-nigh calculated to baffle the most searching mind, and which has never received the attention it deserves at the hands of the philosopher, in every point of view, whether psychological, moral, economical, or political. Unassisted by any public power, by the leading minds of the age, by religion, literature, or any concerted action, it nevertheless rules with unbending authority, often in spite of health, comfort, and taste, and it exacts tributes such as no sultan or legislature can levy. While it often spreads ruin among producers and consumers, it is always sure to reach the most absolute czar and subject his taste. Though the head may wear a crown, Fashion puts her shears to its hair, if she has a mind to do so. Far more powerful than international law, which only rules between nations, she brings innumerable nations into one fold, and that frequently the fold of acknowledged folly. How can we explain this stupendous phenomenon? It is not necessary to do so here. The fact, however, must be acknowledged. It is the most remarkable instance of unanimity, but will any one say that Fashion is a vox Dei? The very question would be irreverent were it not candidly made in a philosophical spirit.”

“What fearful fanaticisms have not swept over whole countries with deplorable unanimity! The Romans were unanimous-enough when they slaughtered the worshippers of that God whose authority is invoked to dignify the voice of men in the fallacious maxim. If the voice of the people were the voice of God, the voice of the people ought not only to be unchangeable, but there ought to be one people only. Two nations frequently clamor for war, and both, under the motto Vox populi vox Dei, draw the sword against each other.”

“If we carefully view the subject of unanimity, we shall find that in the cases in which vast action takes place by impelled masses—and it is in these cases that the maxim is invoked—error is as frequently the basis as truth. It is panic, fanaticism, revenge, lust of gain, and hatred of races that produce most of the sudden and comprehensive impulses. Truth travels slowly. Indeed, all essential progress is typified in the twelve humble men that fallowed Christ. The voice of God was not then the voice of the people. What the ancients said of the avenging gods, that they are shod with wool, is true of great ideas in history. They approach softly. Great truths always dwell a long time with small minorities, and the real voice of God is often that which rises above the masses, not that which follows them.”

“But the difficulty of fixing the meaning of this saying is not restricted to that of ascertaining what is the voice of God. It is equally difficult to find out what is the voice of the people. If by the voice of the people be meant, as was stated before, the organically evolved opinion of a people, we do not stand in need of the saying. We know we ought to obey the laws of the land. If by the voice of the people be meant the result of universal suffrage without institutions, and especially in a large country with a powerful executive, not permitting even preparatory discussion, it is an empty phrase; it is deception, or it may be the effect of vehement yet transitory excitement, or of a political fashion. The same is true when the clamoring expression of many is taken for the voice of the whole people.”

“Another instance, showing that no dependence can be placed upon the maxim, is that of proverbs. They are doubtless the voice of the people, and many of them contain much wisdom, but there are also many in favor of our worst passions and meanest dispositions …. A very large class of proverbs is directed against peasants and the laboring classes; against women, lawyers, physicians—indeed, against all the staple topics of former satire.”

“Sometimes the maxim is doubtless used in good faith, as the French at times use, without reserve, that favorite expression of theirs: The instinct of the masses; but generally, I think, Vox populi vox Dei is used either hypocritically or when people have misgivings that all may not be right, pretty much in the same manner as persons say that an argument is unanswerable, when they have a strong foreboding that it may be found very answerable.”

“Vox populi vox Dei has never been used in France so frequently as after the second of December, yet there are unquestionably thousands in that country who would find their religious convictions much bewildered, if they were obliged to believe that it was the voice of God which spoke through ballot boxes under the management of the most centralized executive in existence; and that the voice of the Deity requires a thousand intrigues among men for its utterance.”

“The doctrine Vox populi vox Dei is essentially unrepublican, as the doctrine that the people may do what they list under the constitution, above the constitution, and against the constitution, is an open avowal of disbelief in self-government.”

“The true friend of freedom does not wish to be insulted by the supposition that he believes each human individual an erring man, and that nevertheless the united clamor of erring men has a character of divinity about it; nor does he desire to be told that the voice of the people, though legitimately and institutionally proclaimed and justly commanding respect and obedience, is divine on that account. He knows that the majority may err, and that he has the right and often the duty to use his whole energy to convince them of their error, and lawfully to bring about a different set of laws. The true and stanch republican wants liberty, but no deification either of himself or others; he wants a firmly built self-government and noble institutions, but no absolutism of any sort—none to practise on others, and none to be practised on himself. He is too proud for the Vox populi vox Dei. He wants no divine right of the people, for he knows very well that it means nothing but the despotic power of insinuating leaders. He wants the real rule of the people, that is, the institutionally organized country, which distinguishes it from the mere mob. For a mob is an unorganic multitude, with a general impulse of action.  Woe to the country in which political hypocrisy first calls the people almighty, then teaches that the voice of the people is divine, then pretends to take a mere clamor for the true voice of the people, and lastly gets up the desired clamor. The consequences are fearful, and invariably unfitting for liberty.”

“Whatever meaning men may choose, then, to give to Vox populi vox Dei, in other spheres, or, if applied to the long tenor of the history of a people, in active politics and in the province of practical liberty, it either implies political levity, which is one of the most mordant corrosives of liberty, or else it is a political heresy, as much so as Vox regis vox Dei would be. If it be meant to convey the idea that the people can do no wrong, it is as grievous an untruth as would be conveyed by the maxim, the king can do no wrong, if it really were meant to be taken literally.”

Saturday, June 16, 2012


There is sometimes a lot to be learned by looking at manual markup on a draft of a document. Fortunately, such drafts exist of the United States Bill of Rights.

Friday, June 15, 2012

Constitutions and an Idea of "Conservatism"

This is from a certain Edward Shepherd Creasy, in 1848:

“The ancient Athenians had a national oath by which each generation of citizens bound themselves to defend the state, and to hand it down to their descendants better than they had found it:—

“That oath was conceived in the truest spirit of Conservatism; and in its spirit should each Englishman act who truly venerates the Constitution of his country, and wishes to preserve it unimpaired. For that purpose, while religiously guarding its primary institutions from the experiments of the mere theorist and the assaults of the destroyer, he must work out its vital law of growth and development, and endeavour to apply its principles to the emergencies of the present time, as his ancestors did to the emergencies of the times gone by. Finality is a delusion, and Revolutionary Change is madness. The only safe course is the good old track of Constitutional progress by means of Constitutional Reform.”

Thursday, June 14, 2012

The Indiana Self-Defense Law

Recently, headlines (and other sources of media content) have been written which create the impression that Indiana's Right to Defend bill, which was passed by the Indiana General Assembly and signed into law by Governor Mitch Daniels this March, somehow legalizes the killing of police officers. Of course, there are certain situations in which this law actually would protect people who kill a police officer in self-defense, but, as a reasonably skeptical, level-headed person would have to suspect, the law would not legalize the murder of police officers as a general matter, or whenever they trespass on someone's property, or even whenever they enter a person's house in violation of the law. It only protects a person in using reasonable, necessary defensive force to repel unlawful police action.

Anyway, Radley Balko wrote about this at greater length.

Friday, June 8, 2012

Concerning the Police Power, Again

This is for those who think that legislatures can be (and have been) trusted with supreme, absolute legislative power (with a few limited exceptions set forth in their constitutions, and with deference being given to the legislature on the issue of constitutionality, for no reason which originates from the text or history of those constitutions); it is an old Indiana law, which, fortunately, is no longer on the books, regardless of what those "stupid laws" websites might claim: "Sec. 70. That if any person, shall vend or cause to be vended, any playing cards, or any obscene book, pamphlet or print, he shall on conviction thereof, be fined in any sum not less than one, nor more than three dollars for every such pack of cards, book, pamphlet, or print vended."

Yes, an American state legislature, duly elected by the people, understood its "police power" to extend to the prohibition even of decks of cards.

These days, we are past all of that, however. We just prohibit the sale of alcohol on Christmas and on Sundays (except for at the Indy 500).

Thursday, June 7, 2012

The Indiana Constitutional Convention of 1850-1851

Concerning a proposal to retain certain natural rights-related language from Indiana's 1816 constitution, which had been borrowed from Pennsylvania's adaptation of the Virginia Declaration of Rights, and which was very similar to the famous second paragraph of the Declaration of Independence, a certain Mr. Howe said:

“The gentleman from Tippecanoe (Mr. Pettit) contended that the proposition that all men are born equally free and independent is not true. In the sense in which he uses the words, he is undoubtedly correct; but with his intellect certainly he ought to have been able to approximate to the meaning which existed in the mind of the immortal author of these words when he first committed them to paper. In the sense of Jefferson and the framers of the Declaration of Independence, the assertion is true, and always will be true. The assertion refers to the rights of man as existing under the law of nature; and by that law, in contra-distinction to the law of man, all men are born equally free. That is the way in which the term ‘men’ is used.

“It does not require a grammarian to know that men are not ‘born’ in the sense in which the gentleman from Tippecanoe used the term. All know that this ‘man’ is a generic term, including the whole human race, and refers undoubtedly to the time of their birth. It simply declares that all men are born free, and that by the law of man, and usurpation alone, they have become enslaved. That is the meaning precisely, and nothing more nor less. The objection that slavery now exists has nothing whatever to do with the matter. Now we all know—for we have all both heard and read—what is the origin of slavery. Is slavery legitimate by the law of nature or of man? Can you hold slaves by the law of nature? Every schoolboy will respond ‘no’ to the question, and tell you that it exists only by usurpation. The words, therefore, are not only true, but beautifully true; and as an abstract proposition it is little whether it is retained in the new Constitution or not. It will be equally true whether we adopt it or reject it. But inasmuch as our ancestors have seen proper to adopt these words, and inasmuch as they were in the mouth of every freeman of the country at the time, and have become nationalized, and immortalized by the circumstances under which they were written, I think we ought to retain them. There certainly can be no impropriety in doing so; but, on the contrary, I regard them as manifestly proper. If there be one political document that has been given to immortality more than another, it is precisely that Declaration. Nothing whatever in all Grecian or Roman times can possibly excel this in classic purity or excellence. Let us then adopt it.”