Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Thursday, December 14, 2017

Strike-through amendments as the flip side of interpolating amendments

Legal changes to legal instruments can take various forms. Parties who wish to eliminate a contract provision or legislators who want to eliminate a phrase in a statute, for example, can just strike out the language that needs to go. The flip side of this kind of change is one that interpolates new words into a contract or into a statute. Both kinds of change are common in a range of legal instruments. 

When it has come to amending the Constitution of the United States, however, we have adopted a different form---supplemental add-on language tacked to the end. This kind of amendment resembles a codicil to a will. It modifies the legal effect of the original instrument by adding supplementary or replacement language without making any change to the wording of the original instrument itself.

This form is not what James Madison wanted. He acquiesced on form to save substance, as the supplemental form was important to a small group of congressmen whose votes he needed on the proposed amendments.

The First Congress's choice of this form for the first ten amendments was probably a bad decision. Putting the language that accomplishes the legal change together with what is being changed can provide more clarity than tacking it on to the end.

Consider, for example, the two amendments proposed by Madison that include protection for the "rights of conscience" against infringement by the federal government and the state governments. The protection against federal infringement would have been in Article I, § 9 (together with other limitations on the federal government), while the protection against state infringement would have been in Article I, § 10 (together with other limitations on state governments). The placement informs interpreters about the kind of protection given. 

For an idea of just how much clearer our Constitution would read if Madison's proposed form for amendments had been, take a look at the superb article by Professor Edward Hartnett, A "Uniform and Entire" Constitution; Or, What if Madison Had Won?, 15 Constitutional Commentary 251 (1998). Among other insights, Hartnett explains how a combination of interpolations and strike-throughs would have more powerfully extirpated slavery from the Constitution than doing the deed with a stand-alone Thirteenth Amendment. To better understand his discussion of the Thirteenth Amendment, though, one must appreciate his earlier explanation of how most of the "Bill of Rights" provisions of the first ten amendments would have been interpolated in Article I, § 9, "immediately after the protection of the Great Writ of habeas corpus and immediately before the prohibition on bills of attainder and ex post facto laws." One "embarrassing drawback" of this location for a bill of rights, Hartnett notes, is that Article I, § 9 also includes the protection of the slave trade from being banned until 1808. And here now we can pick up with Hartnett's discussion of an interpolated/strike-through Thirteenth Amendment:

The Thirteenth Amendment abolished slavery. If it were integrated into the body of the Constitution, it would fit comfortably in the Madisonian bill of rights in Article I, section 9. Indeed, since the Thirteenth Amendment renders irrelevant the limitation on Congressional power over the slave trade contained at the beginning of Article I, section 9, the language abolishing slavery can take the place of that evil provision. The result is that what earlier looked like an embarrassing way to begin a bill of rights would be eliminated, and the most basic right---the right to be free from enslavement---would take its place, joining such rights as habeas corpus, free speech, free exercise of religion, protection against unreasonable searches and seizures, and the prohibition on bills of attainder. Under Madison's approach to amendments, the limitation on the amendment power to protect the slave trade, as well as the hated fugitive slave clause of Article IV, section 2, would likewise be removed from the Constitution.

Pretty neat, huh?

The proposed strike-through amendment I have been setting up with MOJ posts this week would also take something right out of the Constitution. Morally speaking, the provision does not approach the evil of the provisions protecting the institution of slavery in various ways. But it is out of step with some fundamental commitments of our American experiment in self-government.

December 14, 2017 in Walsh, Kevin | Permalink

Wednesday, December 13, 2017

Cutting it out from the Constitution with a strike-through amendment

A practical problem facing many proposed constitutional amendments is that they add language to the Constitution that can be misinterpreted. The fear of misinterpretation, in turn, dampens people's willingness to support the amendment.

Whether the fear of misinterpretation is well-founded in any particular instance or not, the dampening effect that results can be real and significant. Think, for example, of how concerns about judicial adventuresomeness played into campaigns against ratification of the Equal Rights Amendment in the 1970s.

One way of addressing this problem would be to an amendment that does not anything to the text of the Constitution, but just takes it away.

No such amendment of this sort has ever been made. But that may be all the more reason for doing it now.

The earliest we approached an amendment of this sort is the Eleventh Amendment. It provides a rule of construction for a portion of Article III:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

The amendment's language refers back to the menu of case- and controversy-types in Article III, § 2 that sets out matters that can be brought within the judicial power of the United States.

Perhaps it would have been simpler to just cross out certain items in this menu, like this:

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

But this move would have amended too much. The strike-outs would have gone further in eliminating jurisdiction than what the text of the Eleventh Amendment seemingly accomplishes. That text does not touch controversies between citizens of a state and foreign states, citizens, or subjects, but leaves them within the reach of the judicial power of the United States. By contrast, the strike-through amendment would have taken these controversies out of the reach of the federal judicial power.

Whatever reason the framers of the Eleventh Amendment had for choosing the course they did rather than a strike-through amendment, the resulting text has been a site of great confusion and controversy. The body of "Eleventh Amendment" sovereign immunity law (in scare quotes because much of that law these days has little to do with the Eleventh Amendment itself) is in very bad shape now.

A more recent missed opportunity for a strike-through amendment was the Twenty-First Amendment. This amendment ended Prohibition by repealing the Eighteenth Amendment.

Its objectives probably could have been accomplished with a strike-through amendment together with ordinary federal legislation. But the Congress that proposed the amendment chose a different route, perhaps because of uncertainty about what simply repealing the Eighteenth Amendment would have meant about the respective powers of states and Congress to regulate alcohol sale, shipment, and consumption with the Eighteenth Amendment gone. Those matters had been the subject of constitutional litigation under the dormant Commerce Clause in the decades preceding the Eighteenth Amendment.

Whatever the reason for its wording, Section 2 of the Twenty-First Amendment has been another site of confusion and controversy in our constitutional law. 

Although no strike-through amendment has yet been enacted, I can think of at least one (which I am setting up for a later post) that would improve our Constitution. 

* * *

What does this have to with Catholic legal theory (apart from its overlap with yesterday's post)? I am here reminded of the dangers of constitutional idolatry. There's nothing like a legal Exacto knife cutting through the Constitution itself to expose the cant of constitutional-law cultism for what it is.

Our Constitution is a human artifact made for human purposes. We should treat it as such, including by acknowledging its mistakes in the act of amending them.

It's time for a strike-through amendment.

December 13, 2017 in Walsh, Kevin | Permalink

Tuesday, December 12, 2017

Some political and moral dimensions in motivating a constitutional amendment

Our politics is so poisonous and our constitutional law so contentious that one might be surprised to learn that mixing the two deliberately may benefit both. The mixture I have in mind is a constitutional politics aimed at amending the Constitution. 

Whether originating in Congress (by two-thirds vote of each house) or in a convention of the states (upon a call by two-thirds of the states), a proposed amendment must be ratified in 3/4 of the states (whether by legislature or convention) in order to become law. Some have argued the process is too difficult. They're probably right. But this difficulty presents an opportunity for a particular kind of politics---one aimed at identifying and advancing changes in the law attractive enough to garner such widespread support. 

Changes of such a sort must exist. Surely we don't have a perfect constitution. And some of the imperfections are obvious if we only stop to think about them. Wouldn't it be politically useful if a politician could become identified as a champion of an amendment to fix an obvious imperfection in our constitutional order? Such a politician would get credit not only for substance but also for style. People are yearning for a politics of this kind.

The proposed amendment cannot be too obvious, or else there would be little credit to be had for identifying and championing it. But it cannot be too obscure or trivial, either, or else there would be little expected gain from an investment of one's political capital in advancing it. The proposed amendment must be of a sort that does not have overwhelming support already, but that would and could merit such support if advanced effectively enough. 

To satisfy these conditions, it is helpful to have a conception about what is good for our constitutional order that is not reducible to what people presently think is good for our constitutional order. Such a gap between what is really good and what is presently perceived to be good would morally justify the investment of political capital to close the gap.  

What does this way of approaching political and moral dimensions of motivating a constitutional amendment have to do with Catholic legal theory? I am here reminded of Adrian Vermeule's contention that "[t]he claims of lawmaking in the service of overall public utility themselves have unimpeachable natural law credentials." When we make welfare economics arguments of a certain kind, we are not doing something different from making natural law arguments but rather making a kind of natural law argument. 

Vermeule identifies the Pareto principle as one example of a principle that "natural reason suggests ... is almost necessarily correct" (at least with respect to normal central cases in which it is deployed). This is the principle that identifies a change as an improvement upon the status quo if and only if it makes one or more persons better off and no one worse off. This formulation raises obvious questions about what we mean by "better off" and "worse off," to be sure. But holding the Pareto principle in mind as a guide, might we identify any proposed constitutional amendments that satisfy it? If so, then we might also have a politically popular proposal on our hands, at least if is handled correctly.

I have one candidate that I'm setting up for a future post. But there must be more than one, right? If so, then there are more than one possible constitutional amendments in which good constitutional law holds the promise of promoting good constitutional politics.     




December 12, 2017 in Walsh, Kevin | Permalink

Friday, September 8, 2017

Thank you, Senator Feinstein!

In considering Senator Feinstein's revealing TV performance the other day, its openness is the only thing surprising about her open hostility to what a politician who panders to pro-abortionists seems to think of as Professor Amy Coney Barrett's "living dogmatism." The hostility is familiar.

Discerning viewers may have detected an element of unspoken envy as well. ("You have deep convictions. I have to perform for powerful factions. Poor me.") 

It is likely to be several months, though, before we may look back to see that the longest lasting and most powerful effect of Senator Feinstein's revealing phrase was to significantly increase the likelihood that the next Associate Justice of the Supreme Court of the United States would be Judge Amy Coney Barrett of the United States Court of Appeals for the Seventh Circuit.

President Trump and his advisers are well aware of the power of the "But Gorsuch!" Effect. And Senator Feinstein has inadvertently created a new celebrity federal judge. 

In our forthcoming Supreme Court round-up for First Things ("A Less Corrupt Term"), Marc and I discuss some ways in which the "reality-TV-ification" of our governing institutions has reached the Supreme Court. The "dogma lives loudly within you" merchandise that has already appeared (reminiscent of the "Notorious RBG" merchandise that has popped up in recent years) suggests the emergence of a certain celebrity factor from unexpected quarters. And that factor will be unquestionably attractive for an Executive Producer looking to revive a flagging series through the Introduction of a New Character to the Show. 

A nomination like this might not be enough to get the Executive Producer invited to speak at Notre Dame's graduation, but it would certainly be good for ratings ... and isn't that what matters these days? So while I agree with Rick that Senator Feinstein's comment was "disgraceful," we might instead consider it "deplorable."

How will this one turn out? We'll have to stay tuned all season to see.

September 8, 2017 in Walsh, Kevin | Permalink

Friday, June 9, 2017

For Trinity Sunday, God For Us (book excerpt)

I recently had occasion to revisit God For Us: The Trinity & Christian Life, by Catherine Mowry LaCugna. I thought I'd share a brief excerpt in anticipation of the upcoming Trinity Sunday:

Christian theism has been severely criticized of late because it is said to be projective (Feuerbach, Freud); sexist, patriarchal, and clerical (feminism); bankrupt (atheism; death of God); static (process thought); ideological (liberation theology); nonreferential (analytic philosophy). In effect, these critiques testify to the deleterious outomce of the Christian doctrine of God that is in many respects secular, constructed out of philosophy, not out of the self-revelation of God in Christ. The root of the nonsoteriological doctrine of God is its metaphysics of substance: the pursuit of what God is "in se," not what God is 'in Godself' or 'by Godself.' All of the critiques of classical theism cry out for soteriology: Can we believe in God after Auschwitz? Can a male savior save women? Does God's justice prefer the rich and powerful? Can God respond to petitionary prayer? Does belief in God inhibit the full development of human persons? Does God predetermine the fate of individuals, and is freedom illusory? All these questions are at base questions about the character, the 'who' of God. Theology ought to be able to answer them. Theology cannot answer them by taking refuge in the classical metaphysical properties of God, such as omnipotence, omniscience, omnibenevolence, impassibility, incorporeality, and simplicity, since these are the very attributes that seem dubious. The only option is for Christian theology to start afresh from its original basis in the experience of being saved by God through Christ in the power of the Holy Spirit. The only option for Christian theology, in other words, is to be trinitarian.

June 9, 2017 in Walsh, Kevin | Permalink

Tuesday, June 6, 2017

JPII distinguishing nationalism and patriotism at the UN in 1995

In trying to understand Steve Bannon's outlook recently, I found myself wondering how it cohered with Catholic teaching about nations and peoples. That teaching, I think, is easier to understand than Bannon's outlook, if only because one must rely on reporting about Bannon. In any event, an important Catholic perspective on nationalism can be found in John Paul II's October 5, 1995 Address to the United Nations.

I was a sophomore in college that fall, and I remember one of my college chaplains remarking that Pope John Paul II's observations about the rights of nations were important. So I went and looked it up this evening. It's worth reading. 

Extended excerpt after the jump:

Continue reading

June 6, 2017 in Walsh, Kevin | Permalink

Tuesday, May 30, 2017

A disquieting observation about the Fourth Circuit's en banc immigration decision

The typical law student has a tendency to think he or she has performed worse on exams perceived as harder and better on exams perceived as easier. But often the opposite is the case. Thinking that one may have done poorly because the examination seemed so hard is sometimes a sign that one has performed well.

One of my law school professors (I think it was Dan Meltzer, but I'm not sure) gave an explanation of this phenomenon that made sense to me. Exams seem hard when the exam-taker has perceived the hard issues raised by the exam. Exams that seem easy may only seem that way because the exam-taker has missed the hard issues entirely.

I'm reminded of this phenomenon in reading the Fourth Circuit's en banc immigration decision. The decision seems legally wrong for reasons set forth in Judge Niemeyer's dissenting opinion, the government's briefs, and online writings by Josh Blackman, Ilya Shapiro, Marc DeGirolami, and others. Go find and read those if you are interested in the technical legal analysis. But don't forget that good legal analysis often is technical.

Most troubling to me, though, is the seeming confidence of the majority opinion that comes through in the language it uses as it deploys modern Establishment Clause doctrine. The reason that is troubling is traceable to one of the best law review articles I've read.

In *A Political History of the Establishment Clause,* 100 Mich. L. Rev. 279 (2001), John Jeffries and Jim Ryan offer precisely what their title suggests. Go ahead and read it. It will probably make you miserable if you really care about the law part of constitutional law. But it will also make you wiser.

If you're an anti-anti-Catholic, you might also--and appropriately--be more worried about judicial decisions finding Establishment Clause violations.

May 30, 2017 in Walsh, Kevin | Permalink

Wednesday, April 26, 2017

Judge Wilkinson, All Falling Faiths, and Anyone Who Loves America

Another book you may wish to consider for your summer reading list is All Falling Faiths: Reflections on the Promise and Failure of the 1960s, by J. Harvie Wilkinson III.

An exchange that stood out to me in David Lat's ATL interview with Judge Wilkinson about the book was the one that elicited Judge Wilkinson's statement that "the audience is anyone who loves America":

DL: I think the book will interest a wide range of readers for a wide range of reasons — but did you have a particular reader or group of readers in mind when you were writing it?

JHW: The audience is anyone who loves America. All of us can still help to repair the damage that long-ago decade did to the spirit of tolerance in education, to the stability of family bonds and units, to the rule of law, to our sense of America as our home, to our capacity for national unity even in times of crisis, and to the sustenance we derive from the practice of religious faith. It’s also important to recognize, however, that the 1960s did great good and helped to broaden America’s embrace of all its citizens, not just some. I hope that by the end of the book, each reader will come at least to appreciate the other side of the enduring ‘60s argument.

I believe the generation of the Sixties has been given one last chance to get it right. We can help upcoming generations learn from our experience. And we can devote our later years to bringing together the nation we did so much in our youth to drive apart. We owe our beloved country at least this much, before we leave Shakespeare’s stage and life itself for good.

Marc DeGirolami and I wrote an article a few years ago that explored the relationship between constitutional adjudication and constitutional theory through a study of some judicial and extrajudicial writings by Judge Wilkinson and Judge Posner. We contended that their anti-theory stance, together with their advocacy for judicial restraint and judicial pragmatism, respectively--which functioned in some important ways similar to the theories that they criticized--were best understood as accounts of judicial dispositions in constitutional adjudication. Judge Wilkinson's new book, together with his and Judge Posner's judicial and extra-judicial writings since Marc and I wrote, provide some evidence for the comparative attractiveness of the dispositions advocated by Wilkinson over those advocated by Posner. 

April 26, 2017 in Walsh, Kevin | Permalink

Wednesday, March 29, 2017

Orestes Brownson, "The Scholar's Mission"

With the helpful guidance of Richard Reinsch's Brownson anthology, I have lately begun trying to understand the constitutional thought of Orestes Brownson. I am interested in the nature of our Union, and Brownson promises to be very helpful in arriving at clearer thinking on that topic.

Through something of a roundabout way, I recently found myself reading Brownson's 1843 oration at Dartmouth College, "The Scholar's Mission."  This mission, he says, is nothing less than "INSTRUCTING AND INSPIRING MANKIND FOR THE ACCOMPLISHMENT OF THEIR DESTINY."

It seems to remain a matter of some dispute what the precise source of JFK's "ask not" exhortation may have been. Some hear echoes of an Oliver Wendell Holmes Jr. speech, and others of Warren G. Harding. Yet another possibility identified by others is this Brownson oration. It includes the exhortation: "Ask not what your age wants, but what it needs; not what it will reward, but what, without which, it cannot be saved; and that go and do, do it well; do it thoroughly; and find your reward in the consciousness of having done your duty, and above all in the reflection that you have been accounted worthy to suffer somewhat for mankind."

March 29, 2017 in Walsh, Kevin | Permalink

Monday, March 6, 2017

What's wrong with this picture?

Notice anything odd about this screenshot from a few minutes ago?

Hint: Does MOJ believe you should donate to Planned Parenthood to "Save Roe"? (I guess "Save Casey" or "Save Whole Woman's Health" doesn't have the same cachet?)

Save Roe MOJ Screenshot

I wonder what it was in my browsing history or whatever else Google has learned about me that makes me on MOJ a good target for the "Save Roe" ad. They got the supermarket ad right, after all. Kroger is our supermarket of choice in these parts of suburban Richmond.

We'll have to figure out if there's a way for MOJ to avoid being a billboard for Planned Parenthood. In the meantime, here's a podcast that explains why it might not be so good for you to let the "attention media" services use your Facebook and Twitter and other of your feeds that are really theirs as mobile billboards either. This episode of the Federalist Radio Hour features Cal Newport, author of Deep Work.

March 6, 2017 in Walsh, Kevin | Permalink