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Tuesday, June 14, 2011

The Imaginary Constitution and Last Night's Republican Presidential Debate

In 2003 Ron Paul posted a short piece on line charging the federal courts with enforcing an “imaginary constitution.”   An imaginary constitution was very much in evidence during last night’s Republican Presidential Debate in New Hampshire, but the fictive foundational law in question was hardly the same one that Paul once accused “activist” federal judges of visiting on the nation.  Judge-made constitutional law said Paul in 2003, shortly after publication of the Lawrence v. Texas decision, was illegitimate as soon as it departed from the constitutional text and original intent of the founders.   Not only was the constitutionalism behind liberal judicial activism illegitimate in Paul’s eyes, but worse still it was unsavory, in that it lead to results considered distasteful by libertarians and social conservatives.  The obvious and overdue remedy said Paul nearly a decade ago was popular reconsideration of lifetime tenure for federal judges.   He did not stop to mention that tenure upon good behavior for federal judges is expressly and unambiguously guaranteed in Article III Section 1 of the Constitution, and he gave no indication that he had the amending process as opposed to legislation in mind as a prescribed solution to the ills he diagnosed.   Textualism and original intent one must suppose have their limits even for so principled a strict constructionist as Paul, and those limits are discoverable at the boundaries between political outcomes social conservatives find desirable and those they find abhorrent.   But perhaps it is uncharitable for me to suggest hypocrisy. It may well be that Paul has simply never read the Constitution (i.e. the written one as opposed to those imagined into being by dreamers of various stripes).  In any case, whether the cause was failure to abide by principle, ignorance, or an active capacity to fantasize, constitutional imagination figured everywhere in last night’s debate.   Consider the following short and in-exhaustive typology of constitutional orthodoxies proffered by the candidates last night at St. Anselm that depart markedly from the constitutional text ratified by selective groups of long since dead people inhabiting some regions of the current United States in 1787-89, 1789-91, and 1865-68.  I have grouped my observations into three classes, which I call text, tradition, and covenant.   Each of them will form the topic of a Blawg entry.  This entry deals with Text, specifically the Citizenship Clause and the Test Clause.

Former Minnesota Governor Tim Pawlenty lambasted Congress and the activist federal judiciary for recognizing birth-right citizenship for children of illegal immigrants, and touted his record of appointing conservative judges in Minnesota as proof that he was committed to ensuring the federal judiciary would not in future be staffed with liberals unwilling to take the Constitution seriously.  Given the enormous amount of attention directed at nascent movement to amend the Constitution to purge the Citizenship Clause of the Fourteenth Amendment, Pawlenty’s belief that birth-right citizenship is a judicial creation is hard to fathom.   Section 1 clause 1 of the Fourteenth Amendment states “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.”  There are those who argue that the children of non-citizens are not subject to the jurisdiction of the United States and therefore fall outside the Citizenship Clause, but the more natural reading is surely that all persons in the United States except those who enjoy diplomatic immunity are subject to the jurisdiction of the United States, and that their children are therefore entitled to birth right citizenship.  After all, nobody could seriously argue that a person lacking diplomatic immunity who was detained in the United States for a crime allegedly committed in the United States was not subject to the jurisdiction of the United States because his parents were foreigners.  To be sure, Pawlenty may not be out of the mainstream of Republican Party thinking on the question of birth-right citizenship, as the Birth Right Citizenship Act of 2011, currently in committee in the House, purports to eliminate birth-right citizenship for children both of whose parents are illegally in the country, constitutional text notwithstanding.  Whether it would amount to activism or plain meaning textualism for the judiciary to hold this Bill unconstitutional under the Citizenship Clause should it ever become law probably depends more on the intellectual honesty of the observer than nice semantic questions.   One can’t but wonder whether constitutional change as inelegant as the Eleventh Amendment might not offer a slightly (and only slightly) less disingenuous way out for those who wish to deport the children of illegal immigrants and still feign fidelity to the Constitution:  Nothing in the Constitution (such as perhaps the Birth Right Citizenship Clause) shall be construed to confer birth right citizenship on the children of illegal immigrants, or other classes transient legislative majorities may find objectionable, and hence ineligible for constitutional protections cast in otherwise universal terms.

Godfather Pizza magnate Herman Cain, who held out his chief qualification for presidential office as complete lack of political experience, likewise favored using a rubric of cultural purity to establish fitness for civic participation. Where Pawlenty failed to account for the Citizenship Clause of the Fourteenth Amendment in assessing the eligibility of native-born children for continued residence in the United States, Cain chose to consider fitness for political appointment in blissful ignorance of the Test Clause of Article VI, which commands that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”  When moderator John King asked Cain to clarify recent remarks suggesting he would never appoint a Muslim to a cabinet position, neither Cain nor any other candidate on the stage gave any evidence of familiarity with or loyalty to the Test Clause.  Cain appeared to retreat somewhat from the ironclad rule he had earlier described, implying that in some instances it might be possible to survive the additional tier of vetting appropriate when nomination of a Muslim was under consideration.   The two-tiered process for Muslims and no others would be very difficult to reconcile to constitutional Equal Protection principles, a serious constitutional concern that equally escaped all the candidates’ attention.  Then again, for federal as opposed to state action outside the area of appointment to office, it is generally possible for a principled textualist to make a case that Equal Protection is irrelevant, which comes close to what Robert Bork did forty years ago in arguing that Brown v. Board of Education was rightly decided, but Bolling v. Sharpe (requiring desegregation of public schools in Washington D.C.) was not, since the Equal Protection Clause does not by its own terms target the federal government.   The Test Clause however applies squarely to federal appointment, so from a purely textual basis, religion-based exclusion from federal office is on even shakier ground than race-based discrimination in hiring by federal actors.

Last night’s debate was fascinating and engaging, and though constitutional text was celebrated with much fanfare, the particular positions developed by the various candidates discussed above did not evince on an individual or collective level a rock solid commitment to knowing and enforcing constitutional text.  Entries on the role of constitutional tradition and constitutional covenant in yesterday’s debate will follow shortly.

Posted by Bill Merkel on June 14, 2011 at 03:23 PM in Constitutional thoughts, Culture, Current Affairs, Immigration, Law and Politics | Permalink


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Posted by: سایت شرط بندی معتبر | Apr 24, 2020 8:46:23 AM

It's an interesting question whether "subject to the jurisdiction thereof" refers to federal jurisdiction, or state jurisdiction, or both. If Congress disclaims federal jurisdiction over illegal immigrants, but the states continue to exercise their local jurisdiction over illegal immigrants, then those illegal immigrants are arguably not subject to the jurisdiction of the United States.

Posted by: Andrew | Jun 17, 2011 7:19:32 PM

I was a conlaw student of Thomas Reed Powell in the fall of 1952. I was a military draftee when Powell delivered his James S. Carpentier Lectures at Columbia titled "Vagaries and Varieties in Constitutional Interpretation" in 1955. Powell died shortly thereafter and his Lectures were published in book form in 1956 by Columbia University Press. I did not become aware of Powell's Lectures until my semi-retirement from the practice of law in 1998 when I revived my interest in conlaw. The first chapter is titled "Establishment of Judicial Review." The second chapter is titled "Professions and Practices in Judicial Review" that in effect applies the first chapter to men. It starts:

"The so-called distributing clause in Article 30 of Part One of the 1780 constitution of Massachusetts speaks in terms of prohibitions rather than in those of grants:

'In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.'

Or as John Dewey once put it in conversation: 'to the end it may be a government of lawyers and not of men.'"

The founders/framers did not include similar language directly in the Constitution despite having the benefit of the 1780 MA constitution.

My poem was inspired by Powell's Lectures, as well as my personal reminiscences of the man over one too short semester in law school, late in my career. Back in 1952, conlaw was mostly about the commerce clause. There was no great hoohaha about originalism that surfaced early in the 1980s of the Reagan Administration per Ed Meese. But the title of Powell's Lectures can apply to the current state of originalism, living constitutionalism, or whatever interpretive philosophy is in vogue. It would be good if Google could publish the Lectures, of course with the approval and consent of Columbia, etc, via the Internet. Constitutional scholars of this day and age just might find that they are reinventing the wheel. Powell knew many members of the Court over his long career, much more so than is the case today. Chapter 2 of his Lectures addresses Justices and their possible biases, and whether decisions/opinions might extend beyond the constitutionally unspecified separation of powers.

Powell doesn't need rehabilitation. Rather, he should be studied. It is doubtful that current constitutional scholars have any where near the same "intimacy" that Powell had with members of the Court during his career. Senate confirmation procedures are not helpful in this regard.

Posted by: Shag from Brookline | Jun 15, 2011 7:30:43 AM

Thanks Shag. That's a wonderful poem. The idiom and sentiment are Jeffersonian, but I can't help but wonder whether its a modern creation cast in a Jeffersonian tone. Do you know its provenance? In any case, it captures perfectly Thomas Jefferson's theory of departmentalism, under which each department was constitutionally supreme in its own sphere. A famous relatively recent endorser of similar views was Ronald Reagan's Attorney General Ed Meese, who deployed closely related logic in critiquing the Supreme Court's decision in Cooper v. Aaron which had equated constiutional text and Supreme Court jurisprudence as equally supreme under the Supremacy Clause. Perhaps the best known example of departmentalism ever is Abraham Lincoln's characterization of Dred Scott as binding on the parties but not Congress or the President in his First Inaugral Address.

Posted by: Bill Merkel | Jun 14, 2011 10:42:20 PM

Regarding the portion of the Paul quote on judicial supremacy, here's my view (repeated from another blog):


Article III's brief purview
Specifies NOT judicial review;
Nor judicial supremacy
Over Congress or Presidency.
For co-equal branches
May each construe
Constitutional meanings
With their oaths to be true.

Posted by: Shag from Brookline | Jun 14, 2011 9:24:10 PM

One further thought, Jay, is that if Paul meant to suggest removal of federal judges by impeachment where a popular majority disapproves of the judges' performance for reasons unrelated to law breaking, he was taking very much the position of the Jeffersonian's during the impeachment trials of Justices Pickering and Chase, which Jefferson himself labelled impolitic (I think from memory that bumbling or bungling was the phrase of art) soon after the fact. Personally, I think it much more likely that Paul had in mind some other mechanism similar to recall or non-retention that exists in many western states, and that he had not stopped to consider the incompatibility of those or related devices with Art. III.

Posted by: Bill Merkel | Jun 14, 2011 6:35:15 PM

I take your point Jay, at least to a degree, but it seems to me that there is (or should be) a principled distinction between impeachment and legislative votes of no-confidence, and that this distinction in part reflects differences between the U.S. system and a Westminister style parliamentary model of government. Also, when Paul suggests that executive as well as legislative agents of the people should act more vigorously to remove unsuitable judges, he cannot have impeachment in mind, since the executive plays no role in the constiutional impeachment process. All that said, I'm not at all certain I could map out the line where permissible impeachment ends and impermissible votes of no confidence begin in the American system, and that difficulty is likely reflected in the Supreme Court's treatment of impeachment as a non justiciable political question. I think an interesting case is non-feasance in office, i.e. doing absolutely nothing. One couldn't say that a POTUS who had litterally done nothing but lounge and golf for two years had broken any laws, but the House might be inclined to impeach and the Senate convict just the same.

Posted by: Bill Merkel | Jun 14, 2011 6:22:22 PM

Thanks for the link! I was familiar with the quote...I guess, to me it could easily refer to a constitutional amendment. At the very most, it's so vague as to be unclear what, precisely, he's advocating---it's obviously oriented towards identifying and decrying the perceived problem, not setting forth a solution.

To me, only by approaching the quote with the idea of "Hey, I'm gonna do a blog post on how Ron Paul doesn't know what's in the constitution" can one draw the conclusion (from that quote) that "Hey, Ron Paul doesn't know what's in the constitution!"

Posted by: casual reader | Jun 14, 2011 5:08:29 PM

The last line may suggest that Paul favors a robust use of the impeachment power (one that I would likely not agree with), but I'm unsure how it suggests that he doesn't know that good behavior tenure is in the constitution.

Posted by: Jay | Jun 14, 2011 5:02:54 PM

Thanks Chuck and Casual Reader. Here's what Paul wrote:

"As a society we should reconsider the wisdom of lifetime tenure for federal judges, while Congress and the President should remember that the Supreme Court is supreme only over other federal courts — not over the other branches of government. It's time for the executive and legislative branches to show some backbone, appoint judges who follow the Constitution, and remove those who do not."

and a link to the full piece, which I hope will work via Typepad.


It may be that his understanding has ripened over the last decade, but the last line in particular does not suggest abiding respect for tenure upon good behavior, and does not suggest (to me at least) a belief that amendment is necessary to correct perceived ills. The full piece suggests also (to me at least) that Paul had been fully briefed on Federalist Socity Code words ca. 2003 to signal fellow travellers respecting his judicial politics. Finally, a comparison of the 2003 post to his remarks last night suggest that Paul's perceived need to signal solidarity with anti-gay voters has moderated some. Whether that is because polls suggest anti-gay appeals are less useful today, or whether it is because his principles have evolved, I do not know.

Posted by: Bill Merkel | Jun 14, 2011 4:31:17 PM

Chuck: agreed.

"Textualism and original intent one must suppose have their limits even for so principled a strict constructionist as Paul, and those limits are discoverable at the boundaries between political outcomes social conservatives find desirable and those they find abhorrent."

Really? You think that Ron Paul finds life tenure for judges so "abhorrent" that he would say that life tenure can be abolished by statute, in the face of clear language to the contrary? I think the far more reasonable conclusion is that, given Paul's reference to "popular reconsideration" and not "statute" or "legislation," he was referring to a constitutional amendment.

Can't wait for the rest of the half-baked rants!

Posted by: casual reader | Jun 14, 2011 4:17:02 PM

"He did not stop to mention that tenure upon good behavior for federal judges is expressly and unambiguously guaranteed in Article III Section 1 of the Constitution, and he gave no indication that he had the amending process as opposed to legislation in mind as a prescribed solution to the ills he diagnosed."

Whatever criticisms one might have of Paul -- and there are plenty of good ones -- this strikes me as just snark, not evidence of constitutional illiteracy on Paul's part. He obviously knows the procedure for amending the Constitution, having introduced various proposed amendments in the House. And the man favors using letters of marque in place of a Global War on Terror. I think it's a pretty safe assumption that someone who knows the Constitution allows Congress to issue letters of marque knows an amendment would be required to get rid of life tenure for Article III judges.

Posted by: Chuck | Jun 14, 2011 3:34:55 PM

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