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Monday, November 21, 2005

More Constitutional Curiosities: The Constitution and Private Conduct

Over at Discourse.net, my colleague Michael Froomkin has a fascinating Constitutional Law Scavenger Hunt, although, as Michael himself admits, the current quiz neglects my all-time favorite silly constitutional quirk: "Who presides over the Vice President's impeachment?" [Hint: It's not the Chief Justice!].

But there's another constitutional curiosity that I've always found fascinating, but never had the time (or moxie) to seriously think about -- the Constitution and private action.  Near as I can tell (although I welcome readers to prove me wrong), only two (and a half) constitutional provisions expressly regulate private conduct.  Of course, this begs the broader, angrier debate about the Constitution and the right to privacy, but my target is far smaller.

The first provision pertaining to private conduct is, of course, the Thirteenth Amendment: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." So, I can't enslave people, even my 1Ls, even though I'm a "private" person (now, if only I taught at FSU...).

The other provision(s) dealing with private conduct are the Eighteenth and Twenty-First Amendments, both of which relate to prohibition. The Eighteenth outlaws the "sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes . . . ." And the Twenty-First, in repealing the Eighteenth, leaves intact the ban on "[t]he transportation or importation into any state, territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof . . . ." [As thoroughly explained in the recent Supreme Court decision, Granholm v. Heald.]

Arguably, the voting Amendments, so the Fifteenth, Nineteenth, Twenty-Third, and Twenty-Sixth Amendments, come closer to slavery and prohibition vis-a-vis regulating private conduct than the rest of the Constitution. But, at least in my view, they don't impose the same liability on private actors as the two provisions mentioned above.

So, aside from proscribing private conduct, be it slavery or the sale of liquor, what do these  Amendments have in common (and as opposed to the rest of the Constitution)?

What's fascinating to me is language in both of them that is (with one exception) nowhere else to be found in the Constitution:

The Thirteenth Amendment outlaws slavery "within the United States, or any place subject to their jurisdiction." The Eighteenth Amendment imposes prohibition in "the United States and all territory subject to the jurisdiction thereof."

Granted, similar language appears in Section 1 of the Fourteenth Amendment, which, in reversing Dred Scott, provides that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." But I'm otherwise unaware of any other part of the Constitution that imputes a jurisdictional limit (or non-limit, as the case may be) on the substantive guarantees contained therein.

All of this is a long way of saying that, if the two constitutional provisions regulating private conduct contain jurisdictional language, and the rest of the Constitution doesn't, isn't there a fairly compelling expressio unius argument that, otherwise, the Constitution acts on the government anywhere that the government acts?

I know that decades of case law (especially the so-called Insular Cases, Johnson v. Eisentrager, and, depending on whom you ask, United States v. Verdugo-Urquidez), run against this argument in holding that only parts of the Constitution apply outside the territorial United States, but where does that limit come from? Put another way, given how hot a topic the concept of extraterritorial constitutional rights is these days, be it w/r/t Guantanamo, "Black Sites," Iraqi abuse scandals, the McCain Amendment, the Graham-Levin Amendment, the... (you get the idea), it seems somewhat odd that there's no focus on textual implications.

To be fair, I'm not arguing that, because of the Thirteenth and Eighteenth Amendments, every alien everywhere should have the full panoply of constitutional rights afforded to you and I.  But it seems plain that, under the terms of the Thirteenth Amendment, an American contractor living on a U.S. military base in Iraq cannot keep an Iraqi as an indentured servant. Next door, however, Iraqis detained by the U.S. military have no constitutional rights whatsoever, at least according to the Administration.

Ah, lawyers.

Posted by Steve Vladeck on November 21, 2005 at 03:11 PM in Constitutional thoughts, Steve Vladeck | Permalink


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There are constitutional implications for substantive constitutional provisions. Lawyers for the big liquor companies attacked prohibition as unconstitutional! Impossible, you say, for an amendment to be unconstitutional? Here's a letter I had in the New York Times (NJ section) in 1983:
Unsuccessful Argument Against Prohibition

Rebecca Schlam Lutto's entertaining account of the trials and tribulations of Prohibition in New Jersey (Dec. 4) mentioned how a Newark brewer challenged the law in the courts.

The specifics are that the brewer's attorney, Elihu Root, along with other lawyers representing other challengers, took on the 18th Amendment in various ways, but the argument that most appealed to me was direct and simple, although not simplistic.

Root argued that the 18th Amendment was not an ''amendment'' within the meaning of the Constitutional provision that authorizes ''Amendment to this Constitution.''

He claimed that our Constitution is an organic law that organizes the powers of government, dividing power between the Federal Government and the states, and among the three branches of the Federal Government.

A provision banning the manufacture, sale, etc. of liquor does not allocate power to government; it does not resemble anything else in the Constitution and thus is not an ''amendment'' of the Constitution.

On June 7, 1920, in a brief and conclusory opinion, the Supreme Court upheld the 18th Amendment without analysis of the above argument. Two justices dissented, but neither voted to hold the 18th Amendment unconstitutional.

PETER LUSHING, Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University, New York

Posted by: Peter Lushing | Nov 22, 2005 6:14:25 PM

Well there's also Article III, which protects the jury right, which states that when a crime is not committed within the boundaries of any state, the offender shall be tried in such a place as Congress may determine.

Also, Art. 4, Sec. 3, specifically grants Congress the power to regulate and dispose of "the territory of the United States.

Posted by: Alan | Nov 22, 2005 6:05:00 PM


I disagree. Until someone is actually a Representative or Senator then they are a private citizen. Regardless of who votes for them, the Constitution prohibits that private citizen from being a Representative or Senator, the electorate be damned.

An example of an official capacity restriction is Amendment 22, which prohibits a President from serving more than two terms (or a Vice-President from serving more than 10 years).

Of course, once a President is no longer President, e.g. Bill Clinton, Bush I, Carter and Ford, it is then a restriction on a private citizen. But the class of these private citizens is much smaller than those who, never having served, could run for Congress.

Posted by: nunzio | Nov 22, 2005 1:57:40 PM


I assume those would be classed as restraints on the senators or representatives in their official, not personal capacities (or perhaps even on the House and Senate in their institutional capacities, since they are the sole judges of the qualifications of their members); it clearly doesn't restrict individual voters, who can vote for whomever they want (they might just be voting for a candidate who is ineligible to serve if elected).

A better example that hasn't been suggested, I think, is Art. III, Section 3. It specifies the substantive elements of the crime of treason (which obviously applies to private conduct). Clause 2 states that Congress shall have the power to declare the punishment for treason, but I don't think that makes clause 1 non-self-executing. (Compare id. with art. 1, sec. 8, cl. 10 (providing that Congress shall have the power to "define and punish piracies, felonies committed on the high seas, and offenses against the law of nations"))

Posted by: Russell | Nov 22, 2005 11:36:27 AM

In addition to the 13th, 18th (and 21st) amendments, the following Constitutional provisions regulate private conduct:

Art I, sec. 2: "No person shall be a Representative . . ."

Art I, sec. 3: "No person shall be a Senator . . ." (Actually this would have been a regulation of state legislators until ratification of the 17th Amendment, which now makes it a regulation of private conduct);

Posted by: nunzio | Nov 21, 2005 9:48:26 PM

Russell puts my point better than I could -- such language makes perfect sense in the Thirteenth Amendment, but _not_ the Eighteenth. _Of course_, an entire theory of constitutional interpretation can't rest on an otherwise unnecessary phrase in a (since-repealed) constitutional Amendment, and I'm not daring to suggest to the contrary. It's just an interesting curiosity lost in the otherwise ever-present debate over the territorial scope of constitutional rights...

Posted by: Steve Vladeck | Nov 21, 2005 7:38:56 PM

Well, FWIW, the 13th and 14th Amendments' "jurisdiction" language can, I think, each be understood as specifically related to the substantive objective of the amendment:

In the case of the 13th Amendment, given that the Civil War had been presaged by long fights over the issue of slavery in the federal territories, it makes perfect sense (at least to me) for the drafters to have made explicit that they were abolishing slavery not just in the areas of rebellion (as in the Emancipation Proclamation) or even all of the states, but once-and-for-all in the entire territory subject to the Constitution.

With respect to the 14th Amendment, I've always assumed that the limitation "and subject to the jurisdiction thereof" was intended to exclude children of foreign diplomats from getting citizenship by birth; I don't know if that's the accepted interpretation, however, and haven't bothered to do any research. :)

I don't know how to explain the 18th Amendment language on this theory, except possibly as intended for emphasis. (Oddly, presumably the 18th Amendment wasn't needed with respect to the territories, as Congress already possessed the plenary power to legislate there under Article 4 --- all it would have needed to do was express its intent in the actual Prohibition Act to apply it there.)

Posted by: Russell | Nov 21, 2005 7:03:04 PM

While all this is fun, the point that should probably not be lost is that silence from Congress (or the Framers) means one of two things:

1) They intentionally hushed, when they could have spoken, knowing full well what a Prawf was going to divine from their mystical silence

2) They simply failed to speak. Oversight, intent, sloppiness, failure to think, totally different worldview, whatever. They said nothing. From nothing, we should draw... nothing.

So, when ERISA is silent on the statute of limitations for a particular claim, the courts should... assume there's no limit on bringing suit? No, they realize Congress left a gap they didn't mean to, and patch it up.

When the Framers failed to put jurisdictional limitations in all the parts of the Constitution where it could have had them, should the courts... assume the sky's the limit?

Well, whichever way you decide, I wouldn't go with a latinate phrase as the rule of decision. Figure out first what makes sense, what kind of test (intent, law of nations, upsetting expectations, absurd result) you might like to use. *Then* bolster your argument with searching for speech from silence. If you must.

Posted by: Eh Nonymous | Nov 21, 2005 6:57:08 PM

Remember that the equal protection clause also refers to jurisdiction: "No state shall ... deny to any person within its jurisdiction the equal protection of the laws."

It's somewhat beside the point of the post, but I think the bit about jusrisdiction auggests that the Equal Protection clause is a substantive entitlement to protection from violence, rather than a generic anti-discrimination provision. On this reading, the 13A, EPC, and 18A impose governmental duties within particular spheres: the duties to eliminate slavery and alcohol, and the duty to protect against violence.

For more historical work on a substantive reading of what I think we should call the "(equal) protection clause," see Maltz, Harrison, and Avins. I mention it a bit in my article, too (at 67-68).

Posted by: Chris | Nov 21, 2005 5:58:10 PM

I take your point; mine is only what we should infer to the contrary -- the only argument in which the Constitution doesn't apply extraterritorially produces what, to me, is an absurd result -- viz., that slavery and prohibition are the most physically expansive "rights" in the Constitution. I guess it's another example of how neither extreme could possibly be right, but the debate is missing what (possibly little) relevance these provisions provide...

Posted by: Steve Vladeck | Nov 21, 2005 5:29:52 PM


When I was talking about the dates of drafting of the 13th and the 18th, I wasn't comparing them to each other, but rather to the rest of the Constitution. My argument is that we can't apply expressio unius based on the language in the 13th and 18th because these amendments don't suggest anything about the intent of the framers of the rest of the constitution (except perhaps other amendments drafted contemporaneously to the 13th and 18th).

In the end, I'm arguing that we can't really learn anything about the territoriality of the rest of the constitution from the 13th and 18th, both because they speak to different actors (government vs private) and because they were written by different people.

Posted by: Hillel Levin | Nov 21, 2005 4:54:08 PM

Will -- I'm not saying it applies to _more_ places; I'm saying it's coextensive. That is to say, the jurisdictional qualifier is necessary only w/r/t the regulation of private conduct because there is an implicit assumption that, otherwise, the Constitution applies everywhere the government acts. Because the Thirteenth and Eighteenth Amendments are _not_ limitations on government action, a more express statement of their territorial reach is necessary. I'm not saying this solves anything, mind you, just that it seems plausible that they're trying to achieve the same goal...

Hillel -- You're probably right, of course, but that sets up an odd contradistinction, doesn't it? Under that reading, the Thirteenth and Eighteenth Amendments are _broader_ than the rest of the Constitution. I buy that for slavery, but prohibition? Really?

And, as an interesting historical footnote, they (13A and 18A) actually _were_ drafted roughly contemporaneously... The first draft of what eventually became the Eighteenth Amendment was actually submitted in the early 1870s, although it languished for quite a period of time. [Again, not that this proves anything.]

Posted by: Steve Vladeck | Nov 21, 2005 4:47:28 PM


Couldn't the expressio unius argument go the other way too: the rest of the Constitution ONLY applies in the United States, and NOT in any other territory or jurisdiction, whether controlled by the US or not.

How scary is that?

But here's why I don't think expressio unius is particularly strong in this case:

Expressio unius, like other constructions, aims to get at the intent of the author. If she specified X in part 3, but did NOT specify X in part 2, she must not have meant for that specification to apply to part 2.

This works (sort of) in contracts and unified pieces of legislation. But I'm not sure it works as well in the amended Constitution. The intent of the framers of Article II or the Fourth Amendment is not really evidenced by the intent of the very different framers behind the 13th and 18th Amendments, is it?

Further, even if they had been drafted at the same time, by the same people I assume would could come up with reasons that the "territory" language was uniquely necessary in those cases, but not in the rest of the Constitution.


Posted by: Hillel Levin | Nov 21, 2005 4:34:34 PM

Just wondering, but why is the implication of the expressio unius that the Constitution otherwise applies to more places than it does in the 21st and 13th Amendments? Why wouldn't the expressio unius argument be that since the 18th and 13th Amendment's extend the Constitution's reach to the full extent of its territorial jurisdiction, that the other provisions of the Constitution don't apply to all of the territorial United States, let alone to areas outside of our territory?

If I remember my Congressional history, during some pre-Dred Scott periods there was a "universal understanding ... that the Bill of Rights did not apply to the territories." (David Currie, The Constitution in Congress: The Jeffersonians at 315).

Now I don't find this expressio unius argument any more compelling than the first, but I'm still confused about why you assume that the implication of an expressio argument would be extra-territorial application of the rest of the constitution, rather than an implication that the rest of it doesn't even apply intra-territorially.

Posted by: Will Baude | Nov 21, 2005 4:22:53 PM

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