Category Archives: Law: Reading the Constitution

Attention Law Review Editors

The odds that any actual law review editors read this blog is vanishingly small, but if you, gentle reader, happen to know one, please tell them about this terrific article, Saving Democracy from the Senate, co-authored with one David Froomnkin, that they might want to publish in their journal.

This article is the first to take stock, in a systematic and comprehensive way, of the constitutional and statutory avenues available for reforming the malapportionment of the U.S. Senate. Collecting together the various options available enables reformers to think both programmatically about the normative choices at stake and strategically about a reform agenda. This in itself is a substantial contribution, not just to constitutional theory but also to ongoing practical efforts to reform the legal architecture of U.S. democracy. Moreover, by systematizing these considerations, the article also helps to make clear the relationship between statutory and constitutional reforms of the Senate, proposing a two-track strategy for reformers.

While the work of synthesizing the options and providing a comparative analysis is the most significant contribution, the article also provides several significant and novel analytical contributions that advance legal debates in these areas:

(1) The meaning of the Article V Entrenchment Clause. The article’s claims that (a) disempowering the Senate and (b) abolishing the Senate would not violate the Entrenchment Clause are claims that have been made before, although rarely. But they are not claims that have ever, to our knowledge, received extensive analysis. The article provides this extensive analysis, explaining why a range of ambitious constitutional reforms of the Senate would not violate the Entrenchment Clause and responding to objections.

(2) The referent of the Article V Entrenchment Clause. We are not the first to suggest that the Constitution could be amended to remove the Entrenchment Clause and then subsequently amended to alter the composition of the Senate. But we provide a crisper analysis of the reason than scholars have done previously. The reason is that the referent of the Entrenchment Clause is not a provision in Article V but a provision in Article I. The Entrenchment Clause, by its language, is not a self-entrenching clause.

(3) Article V and Equal Protection. The article provides a novel argument about the relationship between the Entrenchment Clause and the application of equal protection principles to the Senate. Orts in 2019 made a related argument, but his suggestion that Congress could reapportion the Senate by statute takes an idiosyncratic view of the Entrenchment Clause. We advance the more restrained argument that, while the Entrenchment Clause at present bars the application of equal protection principles to the Senate, amendment of the Constitution to remove the Entrenchment Clause would enable reapportionment of the Senate under Reynolds v. Sims.

(4) At-large Senators. Building on our argument about what the Entrenchment Clause prohibits—and what it does not—we explore the addition of a substantial number of nationally elected Senators to make the Senate more representative of the Nation. Whether or not we kept the existing Senators, no state’s “equal Suffrage” would be altered.

(5) Statehood. The article surveys the relevant legal authorities on the admission of new states, compiling an extensive range of relevant material. In the course of discussing the currently most salient cases of Puerto Rico and DC, the Article analyzes a Twenty-third Amendment issue that has not been extensively discussed.

(6) Breaking up (and merging) states. The article provides novel analysis of practical challenges confronting breakups (and, analogously, mergers) of states. It also suggests a promising policy response to these challenges, arguing that federal legislation to mitigate states’ costs and help to incentivize state breakups would be feasible, desirable, and constitutional. This prescription is, to our knowledge, original—perhaps in part because scholars have not yet grappled with the magnitude and stakes of the problem requiring a remedy.

Although we canvas a very wide variety of alternatives, and we weigh the difficulties, virtues, and vices of each, our recommendations center on certain constitutional reforms and the admission of a few new states.

All this, and yet even with the footnotes it’s still under 30,000 words!


Posted in Law: Constitutional Law, Law: Elections, Law: Reading the Constitution, Writings | 1 Comment

My Brother Imagines a Hypothetical World in Which Republicans Answer Hypothetical Questions

Dan has a whole bunch of sensible questions that reporters should be asking members of Congress from both parties about what they believe constitutes an impeachable offense. I agree they should be asking them.

So rather than asking Republican members of Congress about impeaching Trump, we should be getting them to say what they themselves consider impeachable offenses – arguably locking them in, when and if Mueller can prove they were committed.

These are straightforward yes-or-no questions:

  • If a president is found to have solicited or knowingly accepted help from a foreign government to influence an American election, isn’t that an impeachable offense?
  • If a president fires a special prosecutor investigating him, isn’t that an impeachable offense?
  • If a president directly orders the Justice Department to prosecute his political rivals, isn’t that an impeachable offense?
  • If a president pardons himself, isn’t that an impeachable offense? 1
  • If a president promises pardons to potential witnesses against him, isn’t that an impeachable offense?

And, bonus essay question:

  • What level of presidential lying to you consider an impeachable offense?

But I think I know what most of the answers will be: “I don’t want to get into hypothetical questions.”

Even so, reporters should be asking them. Maybe the follow-up should be: “Wait, you mean you think there’s actually a sufficient probability of this that you consider the question hypothetical?”

Bonus xkcd on hypotheticals:

  1. Note by MF: For the record, I think there are two good arguments that if a President pardons himself the pardon is invalid. First there is the idea that ‘no man should be the judge in his own cause.’ Second there’s the idea that a pardon is a thing one person confers on another, so a self-pardon just is incoherent.[]
Posted in Dan Froomkin, Law: Reading the Constitution, Trump | 5 Comments

Trump Likely To Be Deposed

No, not like that, at least not yet.

Rather, odds are that Trump will have to answer questions in a deposition:

A New York State judge ruled on Tuesday that a defamation lawsuit brought by a woman who has said President Trump made unwanted sexual advances could go forward, raising the possibility of a public airing of other allegations of sexual misconduct against the president.

The decision by Justice Jennifer Schecter of State Supreme Court in Manhattan paved the way for lawyers to seek depositions from several women who accused Mr. Trump of sexual harassment before he was elected and to subpoena Trump campaign records related to his female accusers.

Justice Schecter rejected Mr. Trump’s argument that a state court has no jurisdiction over a sitting president. She cited a United States Supreme Court ruling that allowed Paula Jones to bring a sexual harassment suit against President Bill Clinton.

Actually, the issue of whether the Paula Jones precedent should apply with full force in state court is not frivolous at all. I can imagine reasons why a court might hold that there is too much risk of interference with the President’s, ahem, affairs to allow just any court to make demands on his time. Then again, I can think of even more arguments why the state courts should be allowed to proceed — if only that surely a sitting President could get an injunction from a federal court if the state court were to misbehave in some way.

Posted in Law: Civil Procedure, Law: Reading the Constitution, The Scandals | Comments Off on Trump Likely To Be Deposed

Is Obama Too Young to Be President?

Steven Calebresi has a pretty persuasive argument that if you interpret the Constitution dynamically, Obama is Too young for the No. 1 job.

Good thing Calabresi doesn't have standing to raise it in court!

Continue reading

Posted in Law: Reading the Constitution | 7 Comments

Guns and Senatorial Privilege

The news that one of Senator Webb's aides has been arrested for (inadvertently?) carrying the Senator's gun into a Senate office building raises a fun question. It seems Sen. Webb gave the aide the gun which the Senator usually carries because the Senator was getting on a plane and couldn't take it on board.

It made me wonder if gun control laws of this sort, when applied to Senators and representatives in any way infringe Art. I, sec. 6, paragraph 1 of the Constitution which states,

The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.

My suspicion that the answer is “no” and that it is proper to apply speed limits, DUI, and other rules of general public safety to Senators and Representatives appears after superficial research to be correct, but not quite for the reason I imagined, at least according to LII's annotated Constitution,

Privilege From Arrest

This clause is practically obsolete. It applies only to arrests in civil suits, which were still common in this country at the time the Constitution was adopted. 376 It does not apply to service of process in either civil 377 or criminal cases. 378 Nor does it apply to arrest in any criminal case. The phrase ''treason, felony or breach of the peace'' is interpreted to withdraw all criminal offenses from the operation of the privilege. 379.

Posted in Law: Reading the Constitution | Comments Off on Guns and Senatorial Privilege

Why the Air Force Is Not Unconstitutional

I forget sometimes just how diverse the readers of this blog are, although one need only to look at the readers’ self-descriptions from those kind and generous enough to leave one to be reminded of this fact. So I suppose I shouldn’t be surprised at how many people — mostly non-lawyers — asked, in one form or another, for me to not just post the questions but also the answers to my Constitutional Law Scavenger Hunt. (Lawyers, and especially law students, probably knew better than to expect a law professor to actually answer a question.)

Although this may risk turning my hobby into something that more closely resembles my job, I’m going to give it a shot for a while and see how it goes. My vague goal will be to do at least one a week, aimed primarily at the non-legal reader or first-year law student (I hope that specialists reading these will take the time to correct my errors, but I won’t be presuming in this series of posts to try to tell you anything you don’t already know). Along the way I hope also to address a few of the classic chestnuts I left out of my original list such as “who presides at the impeachment trial of a Vice President?”.

I’ve created a new category for these posts to collect them in a handy form for those who come in late. Who know, maybe I’ll even publish the lot on a dead tree some day.

So, by popular demand, here’s the first one.

Q1: What clause, if any, of the Constitution permits Congress to establish an air force?

A: Article I, § 8, provides that Congress may “raise and support Armies,” and “provide and maintain a Navy,” and make “Rules for the Government and Regulation of the land and naval Forces.” The Air Force is “comprehended in the constitutional term ‘armies.'” Laird v. Tatum 408 U.S. 1 (1972) (Douglas, J., dissenting).

The question illustrates the dangers of adopting an overly literal “strict construction” or “clause-bound interpretivist” approach to the Constitution as opposed to, say, a more expansive Marshellian approach (“it is a Constitution we are expounding here”). If we were to read the “Armies” and “a Navy”, and the “land and naval” forces language literally, it would be tempting to read it as excluding an Air Force. It also shows the power (and perhaps virtue) of a structural or holistic approach to constitutional interpretation. “Land and naval forces” was, after all, all the armed forces known at the time of the Framing. Why not read that text to mean “armed forces”? Surely, after all, that is what was intended. (There is a third, wimpish, approach to this issue, which is to note that the Air Force was initially part of the Army, and thus to argue that it is just another Army, one that happens to fly.)

“A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American Constitution is not only to be inferred from the nature of the instrument, but from the language. Why else were some of the limitations found in the 9th section of the 1st article introduced? It is also in some degree warranted by their having omitted to use any restrictive term which might prevent its receiving a fair and just interpretation. In considering this question, then, we must never forget that it is a Constitution we are expounding.”

–Marshall, CJ, in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819).

As far as I can tell, no judge has ever seriously suggested that the Air Force is unconstitutional. Indeed, Justice Douglas’s dictum (in dissent) may be the only discussion of this issue by a federal appellate court in the law reports.

On the one hand, this may reinforce our faith in the fundamental sanity of legal discourse. On the other hand, this absence might be traced to modern standing doctrine (the doctrine that unless at least one plaintiff has a unique and personal interest in the outcome of the case, courts should not hear it at all), which creates few opportunities for the issue to arise. Few, but not none at all, as demonstrated by the creative lawyering before the U.S. Air Force Board of Review in U.S. v. Naar, 951 WL 2298 (AFBR), 2 C.M.R. 739 (1952). There, appellant, an Air Force officer, argued unsuccessfully that he had been prosecuted unlawfully because the Fifth Amendment states that “no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment of a Grand Jury, except in cases arising in the land or naval forces” and the Air Force was neither. The tribunal made short work of that argument.

Posted in Law: Reading the Constitution | 14 Comments