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On this Presidents Day, it's time to look at the duties and responsibilities assigned by the Constitution to the President of the United States.

Article II of the Constitution deals directly with the job of being President, who can qualify, how a President is elected, the President's direct and implied powers, and how a President can be removed from office by Congress. After 1787, constitutional amendments were focused on the timing of presidential terms, changing the presidential electoral voting process, dealing with the inability of a President or President-elect to hold office, and presidential term limits.

Our Interactive Constitution project features leading scholars of differing viewpoints agreeing on the basic facts and matters of debate about key Article II clauses. Here is a list of those common interpretations and matters of debate. The highlight's below come from our series of essays on Article II.
The Vesting Clause
Article II, Section 1 begins: "The executive power shall be vested in a President of the United States." Saikrishna B. Prakash and Christopher H. Schroeder look at two important questions. First, does the term "executive power" identify a set of powers beyond those expressly identified in the Constitution, but which are nonetheless given to the President by virtue of the Vesting Clause? And, by "vesting" powers in a singular executive, does the Vesting Clause establish that the President may exercise those powers by himself, without interference by Congress, and, concomitantly, does it give the President the authority to direct and supervise any federal official involved in such matters?
The Commander-In-Chief Clause
The Commander in Chief Clause of Article II, Section 2 provides that "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States."

Michael D. Ramsey and Stephen I. Vladeck examine the long-running debate about the clause, pointing to Supreme Court Justice Robert Jackson's classic comments: "These cryptic words have given rise to some of the most persistent controversies in our constitutional history," with Presidents at various points claiming that it "vests power to do anything, anywhere, that can be done with an army or navy."
Treaty and Appointments Power
John O. McGinnis and Peter M. Shane look at how treaty making is a power shared between the President and the Senate, and how Article II, Section2, deals with the subject of official appointments. "Perhaps the greatest source of controversy regarding the Appointments Clause, however, surrounds its implications, if any, for the removal of federal officers," they write.
Article II, Section 3
Article II, Section 3 both grants and constrains presidential power. This Section invests the President with the discretion to convene Congress on "extraordinary occasions," a power that has been used to call the chambers to consider nominations, war, and emergency legislation. It further grants the President the authority to adjourn Congress whenever the chambers cannot agree when to adjourn, a power that no President has ever exercised. William P. Marshall and Saikrishna B. Prakash also explain the Take Care Clause, arguably a major source of presidential power because it seemingly invests the office with broad enforcement authority, but it also serves as a major limitation on that power because it underscores that the executive is under a duty to faithfully execute the laws of Congress and not disregard them.
The Impeachment Clause
The final section of Article II, which generally describes the executive branch, specifies that the "President, Vice President and all civil Officers of the United States" shall be removed from office if convicted in an impeachment trial of "Treason, Bribery, or other high Crimes and Misdemeanors." Neil J. Kinkopf and Keith E. Whittington write about how much of the controversy surrounding the Impeachment Clause has revolved around the meaning of "high Crimes and Misdemeanors," a phrase that is unique to the impeachment context.

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The Interactive Constitution: The President's constitutional powers

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On this Presidents Day, it's time to look at the duties and responsibilities assigned by the Constitution to the President of the United States. Article II of the Constitution deals directly with the job of being President, who can qualify, how a President is elected, the President's direct and implied powers, and how a President can be removed from office by Congress.

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congress trying to rein in presidential powers

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congress trying to rein in presidential powers

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WASHINGTON, Sept 21 (Reuters) - U.S. House of Representatives Democrats introduced legislation on Tuesday seeking to pull back powers from the presidency, part of an ongoing effort to rein in the White House in a rebuke to the administration of former Republican President Donald Trump.

House leaders said the "Protecting our Democracy Act" would restore the balance of power between the executive and legislative branches of government that was written into the Constitution.

Among other things, it would put new limits on the use of presidential pardons, prohibit self-pardons and strengthen measures to prevent foreign election interference or illegal campaign activity by White House officials.

The bill also would boost subpoena enforcement, protect inspectors general and watchdogs and strengthen oversight of emergency declarations.

As president, Trump fired a series of inspectors general - watchdogs charged with fighting corruption at federal agencies. To sidestep congressional control over government spending, he declared a national emergency at the border with Mexico to force the transfer of military funds to help build a wall there, a campaign promise.

"We have to codify this... so that no president of whatever party can ever assume that he, or she, has the power to usurp the power of the other branches of government," House Speaker Nancy Pelosi told a news conference.

Representative Adam Schiff, a lead sponsor, said Democratic President Joe Biden's White House had been consulted on the bill's contents. He said he hoped for a House vote this autumn.

The path forward was uncertain. Democrats hold only a slim House majority, and the Republican caucus stands firmly behind Trump, who is expected to run for re-election in 2024 and remains the party's most influential leader.

Republicans overwhelmingly opposed Trump's two impeachments - led by many of the Democrats who introduced the legislation - and rejected a bipartisan commission to investigate the Jan. 6 assault on the Capitol by Trump supporters.

Aides to House Republican Leader Kevin McCarthy did not immediately respond to a request for comment.

Reporting by Patricia Zengerle Editing by Bill Berkrot

Our Standards: The Thomson Reuters Trust Principles.

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Post Trump, U.S. Democrats offer bill to rein in presidential powers

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U.S. House of Representatives Democrats introduced legislation on Tuesday seeking to pull back powers from the presidency, part of an ongoing effort to rein in the White House in a rebuke to the administration of former Republican President Donald Trump.

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The Reporters Committee for Freedom of the Press

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AP Photo/Stephan Savoia

President Barack Obama's recent assertion of executive privilege in the investigation into Operation Fast and Furious highlights the difficulty journalists can face when invocation of the centuries-old doctrine prevents the disclosure of information necessary to effectively gather and report news about important government action.

"Any obstacle to obtaining official government records creates enormous resource and time problems for journalists," said Dennis Wagner, border reporter and investigative journalist for The (Phoenix) Arizona Republic and USA TODAY. "If you don't have the official record, your job is to obtain the information by other means - research, whistleblowers and other sources. Those efforts delay and in some cases stymie the public's right to know what the U.S. government is doing."

Executive privilege, a legal doctrine recognized more than 200 years ago, allows presidents to defy requests by members of the legislative and judicial branches for information the administration deems sensitive. The privilege ensures that the president receives candid advice from aides without fear of intrusion by Congress or the courts.

Although the privilege is not explicitly mentioned in the Constitution, the U.S. Supreme Court first found in the 1974 Watergate case, United States v. Nixon, a constitutional basis for the doctrine in "the supremacy of each branch within its own assigned area of constitutional duties" and in the separation of powers principle. A similar provision exists in the federal Freedom of Information Act Exemption 5 and permits an executive agency to withhold from disclosure certain documents on which executive officials rely.

The privilege was first used by George Washington, who said that the president is justified in withholding information only when doing so is in the service of the public interest and not an attempt to protect the political interests of the president and his administration. However, presidents have not always followed that standard, and their assertion of a broader privilege has impeded the free flow of information about matters of significant interest and concern to the public.

When a president invokes executive privilege, "it may be among the most difficult walls to penetrate because the number of potential leakers with access to White House documents is limited and closely monitored," said Wagner, who has covered the Fast and Furious investigation. "In some instances, I've simply been prevented from reporting on an important issue because the blockade worked."

Operation Fast and Furious

Beginning in October 2009, the U.S. Department of Justice, led by the federal Bureau of Alcohol, Tobacco, Firearms and Explosives, undertook an operation that allegedly allowed about 2,000 weapons to flow from legal U.S. gun dealers to Mexican drug cartels as part of a long-term gun trafficking investigation. In December 2010, two of these weapons were found at a site near the U.S.-Mexico border where U.S. Border Patrol Agent Brian Terry was fatally shot.

As part of an investigation into the operation, the House of Representatives Committee on Oversight and Government Reform subpoenaed in March 2011 all ATF and Justice Department communications and documents referring or related to Operation Fast and Furious. The Justice Department released about 7,600 pages of documents but did not turn over records relating to the agency's response to the fallout of the operation. The committee's dissatisfaction with the response prompted it to schedule a vote to hold Attorney General Eric Holder in contempt of Congress. On the morning of the June vote, Obama invoked executive privilege over the disputed documents, marking the first such assertion of his presidency.

Minutes after the contempt vote, Holder characterized it as "the regrettable culmination of what became a misguided and politically motivated investigation during an election year." The next day, the Justice Department announced that it would not prosecute Holder for failing to fully comply with the committee's subpoena.

The House Committee on Oversight and Government Reform responded with a lawsuit against Holder, asking a federal court to compel him to produce the documents. Last month, the Justice Department moved to dismiss the suit, arguing that courts historically have declined to resolve disputes between Congress and the president, instead leaving the branches to negotiate and reach an accommodation.

Obama claims that the documents and email messages at issue detail internal deliberations after news of the operation became public. While the Justice Department possessed the information, President Obama never actually saw it. However, that fact alone does not necessarily defeat his privilege claim because its successful invocation need not literally involve the president, said Stephen Vladeck, American University law professor.

"The privilege attaches to the office, not the person," Vladeck said. "It is about internal confidential communications within the executive branch. That's why it's called executive privilege and not presidential privilege."

As an example, Vladeck cites Cheney v. U.S. District Court, a 2004 U.S. Supreme Court case in which Vice President Dick Cheney challenged a lower court's ruling ordering Cheney to disclose certain records that would reveal how his National Energy Policy Development Group came up with its recommendations. The Supreme Court held that Cheney had the option - though he was not required - to invoke executive privilege even though President George W. Bush had not seen the documents in dispute.

"There was no allegation that President Bush was directly involved in those materials, but it was still internal executive branch communications," Vladeck said. "That the president does not see the documents is not dispositive of an executive privilege claim."

Expanding the privilege

Although use of the executive privilege by a vice president seemingly comports with its original intent, open government advocates said they are concerned by recent presidential expansions of the scope of the privilege.

"Executive privilege is to the president and his immediate circle," said Chris Farrell, director of research and investigation for Judicial Watch. "It's not to every person in the executive that could possibly be carrying out an order of the president."

Judicial Watch has filed a lawsuit seeking to force the disclosure of the disputed Operation Fast and Furious records. It also filed a lawsuit to obtain documents about the pardon President Bill Clinton granted in 2001 to Marc Rich, a wealthy financier who fled from the United States to Switzerland shortly before being charged with multiple counts of fraud, racketeering and tax evasion. In response to the suit, incoming President Bush invoked executive privilege.

"President Bush argued for the most broad interpretation possible of the long arms of executive privilege," Farrell said.

Recent administrations have attempted to expand the scope of the privilege, mainly through broadening the notion of deliberative process protections, according to an August Congressional Research Service report on presidential claims of executive privilege. Historically, executive privilege applied to the president's confidential communications with close advisers, a protection known as the presidential communications privilege. The deliberative process privilege was developed under FOIA and permits agencies to withhold from disclosure pre-decisional advice, opinions and recommendations that are part of their decision-making process. Over time, the executive branch has blended these two privileges together under executive privilege to claim that the protection extends to any policy deliberations or communications within the executive branch in which the president may have a confidentiality interest.

Obama has indeed relied on the deliberative process privilege to withhold documents in the Operation Fast and Furious investigation. In a letter to Obama asking him to invoke executive privilege, Holder explained that presidents repeatedly have invoked the privilege to protect confidential executive branch deliberative materials from congressional subpoenas, stating that "it is well established that the doctrine of executive privilege . . . encompasses Executive Branch deliberative communications." Holder did not mention any distinction between the deliberative process and presidential communications privileges.

Presidents also attempt to expand executive privilege through the use of various procedures for assessing requests for information that may be protected, according to the CRS report.

The Clinton administration, for example, attempted to expand the privilege by centralizing scrutiny and control of all potential claims of executive privilege with the White House Counsel's Office. In other words, Clinton established the Counsel's Office as a central clearinghouse for such claims, requiring all agency heads to directly notify the office when Congress requested any information that could be subject to protection. White House counsel then would seek an accommodation and if unsuccessful, would consult the attorney general about whether executive privilege should be raised. The president then would make the final decision to invoke executive privilege or, in many instances, direct his advisers to do so.

Evolution of the privilege

It wasn't until 1974, when President Richard Nixon asserted executive privilege to prevent the release of the Watergate tapes, that the doctrine was formally tested in the U.S. Supreme Court.

In United States v. Nixon (" Nixon I "), which involved a judicial trial subpoena issued to the president at the request of the Watergate special prosecutor, the Supreme Court acknowledged that a president's communications with his close advisers is "presumptively privileged" but rejected Nixon's assertion that the privilege is absolute. Rather, courts must balance the competing interests at stake, weighing the president's general need for confidentiality against, in this case, the judiciary's need for evidence in a criminal proceeding, the Court held.

"The Court maintained that executive privilege, like other governmental powers in a separated system, must be subject to a balancing test - the need for information had to outweigh any presidential claim to secrecy," said Mark J. Rozell, a professor of public policy at George Mason University and author of "Executive Privilege: Presidential Power, Secrecy and Accountability."

The Supreme Court weighed in on the issue again in 1977 when it considered Nixon's challenge to a federal statute that gave custody of presidential records to an official who would screen them for personal and private materials, which would be returned to Nixon, and preserve the rest for historical and government purposes. In rejecting Nixon's challenge to the act, the Court in Nixon v. Administrator of General Services (" Nixon II ") reiterated the holding in its earlier Nixon case that "the privilege is limited to communications in performance of a president's responsibilities of his office and made in the process of shaping policies and making decisions." The Court also found that there was a "substantial public interest" in preserving these materials so that Congress, as part of its "broad investigative power," could examine them to understand the events that led to Nixon's resignation.

Since then, a number of federal court decisions have established parameters around the executive privilege doctrine, namely as it relates to the individuals and type of documents covered by the privilege. In the 1997 case In re Sealed Case (" Espy "), which involved a subpoena in the grand jury investigation into improprieties by then Agriculture Secretary Mike Espy, the U.S. Court of Appeals in Washington (D.C. Cir.) restricted the scope of the privilege to White House staff that have "operational proximity" to direct presidential decision making. Thus, the ruling confined the extent of the privilege to the president and his immediate White House advisers only.

In Judicial Watch v. Department of Justice, the 2004 case involving Judicial Watch's request for documents related to Clinton's pardon of Marc Rich, the D.C. Circuit applied the principles it announced in Espy. The court found that the deputy attorney general and pardon attorney were too removed from the president and his senior advisers to qualify for protection under the privilege. An organizational, rather than a functional, test should be used to evaluate these claims because the latter could significantly expand the scope of the privilege, the court concluded.

Four years later, the D.C. Circuit provided additional guidance about the types of records that qualify for protection under the doctrine, holding that executive privilege applies only to documents or communications that "directly involve the President" or that were "solicited and received" by White House advisers. The court in Loving v. Department of Defense held that the privilege protected a memorandum prepared for the president by Department of Defense and Army officials regarding an Army private's death sentence because the requested information "directly involved" the president. In so holding, however, the court clarified that the president need not "solicit and receive" the communications himself in order to successfully invoke the privilege. Rather, documents that the president merely views qualify as those that "directly involve" the president, the court ruled.

Espy, Judicial Watch and Loving addressed the nature and scope of the privilege in the context of judicial and FOIA requests for information from the executive branch. Courts have been reluctant to intervene in similar disputes between Congress and the president. In a pair of cases addressing congressional demands for executive information - United States v. AT&T and United States v. House of Representatives - the D.C. Circuit and D.C. federal trial court respectively declined to resolve the disputes, noting that they should not intervene until the parties had exhausted all possibilities for settlement.

Because of this judicial unwillingness to intervene absent a showing that the accommodation process is failing, few legislative and executive branch disputes over the confidentiality of information have reached the courts for resolution. For that reason, there is continuing uncertainty as to how courts should analyze those like the one at issue in the Operation Fast and Furious investigation.

Most disputes between the executive and Congress are resolved through political negotiation and accommodation, as was the case in the 2007 dispute between the Bush administration and the House Committee on the Judiciary over subpoenas issued to former White House Counsel Harriet Miers and former White House Chief of Staff Joshua Bolten related to the controversial firing of nine U.S. attorneys. The committee was investigating allegations that improper, politically retaliatory criteria motivated the dismissals.

The House Judiciary Committee and the executive ultimately reached an accommodation but not before the committee sued in the federal court in Washington, D.C., which issued the only opinion to this day specifically addressing executive privilege in the congressional-executive context. The court in Committee on the Judiciary v. Miers applied the balancing test the Supreme Court put forth in its Nixon cases and ruled that the former White House employees had to cooperate with the committee's investigation.

"Notwithstanding its best efforts, the Committee has been unable to discover the underlying causes of the forced terminations of the U.S. Attorneys," the court said. "The Committee has legitimate reasons to believe that Ms. Miers's testimony can remedy that deficiency. There is no evidence that the Committee is merely seeking to harass Ms. Miers by calling her to testify."

The administration appealed the ruling but reached an accommodation before an appellate court heard the case. Under the agreement, the executive provided the committee with some of the requested documents, and Miers was permitted to testify in a closed but transcribed hearing. Her testimony revealed that then Senior Presidential Adviser Karl Rove and other top officials in the Bush White House were deeply involved in pushing for the ouster of the U.S. attorneys.

Although presidents successfully invoke most claims of executive privilege, the assertions sometimes fail, as in the case of Nixon and the Watergate tapes and Clinton in the Monica Lewinsky scandal. Nixon's failed assertion of executive privilege revealed to the public his steps to cover up the Watergate espionage operation. And because Clinton's assertion of the privilege was unsuccessful, many of his close advisers were compelled to testify about their knowledge of the president's sexual relationship with Lewinsky.

However, Rozell notes that a failed assertion of executive privilege depends on how failure is defined.

"On numerous occasions, a president has claimed executive privilege or threatened to do so and then has backed down after White House and congressional staffs worked out accommodations," Rozell said. "I would define these as instances of the system working successfully, even though the presidents may have failed to withhold all information through the use of executive privilege."

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The fast, the furious, and the executive privilege - The Reporters Committee for Freedom of the Press

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AP Photo/Stephan Savoia President Barack Obama's recent assertion of executive privilege in the investigation into Operation Fast and Furious highlights the difficulty journalists can face when invocation of the centuries-old doctrine prevents the disclosure of information necessary to effectively gather and report news about important government action.

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The current dispute between Democrats in the House of Representatives and Attorney General William Barr could result in contempt proceedings. So what contempt powers does Congress possess and can they be used against a member of the Executive Branch?

House Judiciary Committee Chairman Jerry Nadler is considering issuing a contempt citation against Barr if the Justice Department does not give his committee an unredacted version of the Mueller report. In turn, the Justice Department claims the House subpoena for the report does not serve a legitimate legislative purpose.

Based on precedent, statutes, and court rulings, the House and the Senate each have the power to invoke three types of contempt proceedings if a committee believes someone is obstructing its investigative powers.

The Congressional Research Service described each of these powers in a detailed March 2019 report. The first type of contempt power is a citation of criminal contempt of Congress. This power comes from a statute passed by Congress in 1857. Once a committee rules that an act of criminal contempt has occurred, the Speaker of the House or Senate President refers the matter to the appropriate U.S. attorney's office, "whose duty it shall be to bring the matter before the grand jury for its action." However, the Executive Branch in prior situations has claimed that it has the discretion to decide if a grand jury should be convened to hear the charges. But if the case goes to a grand jury, fines and a jail term could result from the ensuing criminal prosecution.

The second type of contempt power comes in the form of a civil lawsuit brought by the House or Senate, asking a court to enforce a subpoena. The Senate and its committees are authorized to bring such a lawsuit under a federal statute. There is no similar statute that applies in the House, but the federal district court in Washington, D.C. has decided that the House can nevertheless authorize its committees to bring a similar civil suit for enforcement of a subpoena. In either case, an executive branch member can contest the subpoena "based on a governmental privilege or objection the assertion of which has been authorized by the executive branch of the Federal Government," the CRS said.

The third type of contempt power-Congress's dormant inherent contempt power-is rarely used in modern times. Inherent contempt was the mode employed by Congress to directly enforce contempt rulings under its own constitutional authority until criminal and civil contempt statutes were passed, and it remained in use into the twentieth century. Under inherent contempt proceedings, the House or Senate has its Sergeant-At-Arms, or deputy, take a person into custody for proceedings to be held in Congress.

Although these powers are not directly stated in the Constitution, the Supreme Court has ruled on multiple occasions that they are implicit as an essential legislative power held by Congress.

Justice Willis Van Devanter made perhaps the most famous statement of these powers in McGrain v. Daugherty, a 1927 Supreme Court decision about Mally S. Daugherty, the brother of former Attorney General Harry Daugherty. A select Senate committee issued a subpoena for Daugherty to testify and to also surrender records from an Ohio bank. When Daugherty refused to comply after a second subpoena, the Senate passed a resolution issuing a warrant and authorizing a Senate deputy to take Daugherty into custody. Daugherty filed a habeas petition against his detention. A lower court ruled that the Senate exceeded its powers by detaining Daugherty, freeing him. However, the Supreme Court upheld his conviction, holding that under the Constitution, Congress has the power to compel witnesses and testimony "to obtain information in aid of the legislative function."

"Each house of Congress has power, through its own process, to compel a private individual to appear before it or one of its committees and give testimony needed to enable it efficiently to exercise a legislative function belonging to it under the Constitution," Van Devanter said. "This has support in long practice of the houses separately, and in repeated Acts of Congress, all amounting to a practical construction of the Constitution."

Another interesting dispute over inherent contempt citations took place in 1917, when a House subcommittee had United States attorney H. Snowden Marshall cited for contempt because he used insulting language in a letter to Congress. After federal judge Learned Hand denied Marshall's habeas petition, the Supreme Court said in Marshall v. Gordon that the letter's language did not obstruct the subcommittee from performing its legislative duties and it ordered Marshall discharged from custody.

In recent battles between Congress and the Executive Branch over contempt charges, executive privilege claims originating from a presidential directive or a Justice Department decision to not convene a grand jury have stopped criminal contempt proceedings from advancing. Civil contempt cases involving the executive branch have remained in the court system for extended time periods.

In all, the House has brought four criminal contempt and three civil contempt actions against Executive Branch officials since 2008. In each instance of a criminal contempt citation, the executive branch declined to refer the charges to a grand jury.

In the three civil cases, the Congressional Research Service said "the committees involved eventually obtained much of the information sought through those lawsuits, but only after prolonged litigation." For example, as of March 2019 the dispute over contempt charges in the "Operation Fast and Furious" subpoena involving President Obama's Attorney General Eric Holder had still been pending resolution in court for six years.

If Attorney General Barr were to face a contempt citation, he would be the fourth Attorney General since 1980 to become involved in a contempt dispute with Congress. In addition to the Holder contempt citation filed by the House in 2012, a Senate committee filed a contempt citation against William French Smith in 1984 and a House committee took similar actions against Janet Reno in 1998. The Smith citation never gained full Senate approval, while Reno's dispute ended when the 105th Congress concluded its session without acting on the committee's recommendation of a contempt citation.
Scott Bomboy is the editor in chief of the National Constitution Center.

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The current dispute between Democrats in the House of Representatives and Attorney General William Barr could result in contempt proceedings. So what contempt powers does Congress possess and can they be used against a member of the Executive Branch?

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Executive privilege history - from Thomas Jefferson to Trump

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Executive privilege history - from Thomas Jefferson to Trump

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This has a great section about John Marshall setting the precedent that Presidents can be compelled to provide evidence

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executive privilege, principle in the United States, derived from common law, that provides immunity from subpoena to executive branch officials in the conduct of their governmental duties.

Evolution of the principle of executive privilege

Although the term executive privilege was coined by the administration of Pres. Dwight D. Eisenhower in the 1950s, privilege claims in the United States have a long tradition within the executive branch. In 1792 the cabinet of Pres. George Washington debated the U.S. Congress's request to examine documents related to an ill-fated military expedition led by Gen. Arthur St. Clair against Native American tribes. The cabinet debated whether activities or documents related to administrative activities could be withheld from Congress; notes maintained by Secretary of State Thomas Jefferson showed that the cabinet was unanimous in its assertion that the president could do so when the public interest was at stake. The papers in question were eventually transmitted to Congress, but Washington went on to (successfully) assert executive privilege on several other occasions.

There is no specific provision in the U.S. Constitution that provides for executive privilege. However, successive administrations have claimed that the principle of executive privilege is implied by the Constitution through the structure of the separation of powers. In addition, the courts have consistently recognized the existence of such a privilege in decisions dating back to the early 19th century. In United States v. Burr (1807), for example, in which Aaron Burr was being tried for treason, the U.S. Supreme Court did not require the Jefferson administration to turn over requested documents, though it did maintain that the courts had the right to request such documents from the executive branch. Because executive privilege is entirely a construction of the courts, some constitutional scholars, such as Raoul Berger in Executive Privilege: A Constitutional Myth (1974), have argued that such protection simply does not exist.

Executive privilege in law and practice

In common law, executive privilege derives from the concept of "process privilege," or the protection of administrative officials in the performance of their official responsibilities. The reasoning underlying process privilege is that were administrative officials acting in their official capacities subject to investigation, such a threat would have a chilling effect on the administrative process. As Chief Justice Warren E. Burger wrote in United States v. Nixon (1974), explaining the Supreme Court's unanimous decision in the case involving audiotapes made by the Richard M. Nixon's White House that were at the centre of the Watergate scandal:

A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions, and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of Government, and inextricably rooted in the separation of powers under the Constitution.

Despite the Supreme Court's recognition of the principle of executive privilege, it went on to deny Nixon's privilege claim, holding that to the extent that the tapes involved neither military nor diplomatic secrets, "the President's generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial." The Supreme Court thus ordered that the tapes be turned over to Leon Jaworski, the special prosecutor.

Court-ordered exceptions to executive privilege include claims made that obstruct the conduct of a criminal investigation or claims made protecting activities that are not part of an official's governmental responsibilities. It is also possible (albeit not firmly established) that executive privilege claims pertain only to the president and his staff and not to the activities of the executive branch as a whole.

As a practical matter, because these exceptions can be interpreted to encompass most executive privilege claims, either by criminalizing malfeasance by the administration or by arguing in court that an administration official exceeded his responsibilities, most executive privilege claims are likely to fail in the face of determined opposition. Nevertheless, an executive privilege claim is one way the president can resist congressional oversight or criminal investigations.

In 1997 Pres. Bill Clinton invoked executive privilege in a civil suit in which Paula Jones, a former state employee in Arkansas while Clinton was that state's governor, alleged sexual harassment by Clinton. Lawyers representing Clinton argued that the president should be immune to civil suits during his time in service. The Supreme Court unanimously denied Clinton's request. The following year, in a related case, the court also denied a Clinton claim of privilege regarding conversations he had had in the Oval Office with White House advisers (who received federal compensation) concerning the Jones case. The court relied heavily on the precedent set in the Nixon tapes case.

During the administration of George W. Bush (2001-09), the president and his staff invoked executive privilege several times. For example, in one case Vice Pres. Dick Cheney refused to turn over to a congressional committee documents related to meetings he had with corporate executives concerning the administration's energy policies. Congress sued Cheney in the federal courts, but the vice president prevailed. The Supreme Court found that the request for documents was overly broad and that the potential infraction did not rise to the level of criminality. In another instance, however, White House attorney Harriet Miers and White House Chief of Staff Joshua Bolten refused to respond to a congressional subpoena concerning the firing of several federal prosecutors alleged to have been unsupportive of Bush administration policies. The U.S. Court of Appeals for the District of Columbia ordered Miers and Bolten to comply. (Miers subsequently was deposed by the House Judiciary Committee in a closed session in June 2009, after the Bush administration had left office. Bolton continued to demur.)

With the judiciary often ruling against executive privilege, the principle is intact in theory but tattered in practice.
Dan Franklin

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executive privilege, principle in the United States, derived from common law, that provides immunity from subpoena to executive branch officials in the conduct of their governmental duties. Although the term executive privilege was coined by the administration of Pres. Dwight D. Eisenhower in the 1950s, privilege claims in the United States have a long tradition within the executive branch.

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John Marshall ruling there is executive privilege or sorts and the courts can compel president's to testify BUT in this instance didn't.  "Recognizing that the public has a right to every man's evidence, the Court has held that the President may be required to testify or produce documents in criminal proceedings when called upon by the courts.¹⁴ This principle dates to the earliest days of the Republic, when Chief Justice John Marshall presided as the Circuit Justice for Virginia over the infamous treason trial of Aaron Burr. In that case, Chief Justice Marshall concluded that President Thomas Jefferson could be subject to a subpoena to provide a document relevant to the trial.¹⁵ Specifically, he declared that, in contrast to common law privileges afforded the King of England, the President was not exempt from the general provisions of the constitution, like the Sixth Amendment, that provide for compulsory process for the defense.¹⁶ Nonetheless, Chief Justice Marshall recognized that while the President could be subject to a criminal subpoena, the President could still withhold specific information from disclosure based on the existence of a privilege.¹⁷ In the two centuries since the Burr trial, historical practice by the executive branch¹⁸ and Supreme Court rulings unequivocally and emphatically endorsed Chief Justice Marshall's position that the President was subject to federal criminal process.¹⁹ In 2020, the Court extended this precedent to the context of a state criminal proceeding, concluding that the President was not absolutely immune from state criminal subpoenas.²⁰"

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Executive Privilege AND Congressional Investigations - Trump v. Mazars

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Executive Privilege AND Congressional Investigations - Trump v. Mazars

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In Trump v. Mazars, the Court recognized several separation-of-powers-based limitations on Congress's ability to access presidential records.³⁶ Writing on behalf of the Court, Chief Justice Roberts began by acknowledging three central limits on all congressional inquiries, regardless of the target of the inquiry: (1) there must be a valid legislative purpose related to a subject of legislation; (2) the purpose of the inquiry must not be for law enforcement or to expose for the sake of exposure; and (3) certain constitutional and common law privileges can limit disclosures of information.³⁷ The Court, however, viewed these limitations, standing alone, as inadequately restricting Congress's powers in a dispute with the executive branch.³⁸ After all, according to Mazars, any paper possessed by a President could relate to a conceivable subject of legislation, possibly allowing Congress significant authority to interfere with the executive branch.39

Recognizing that the typical limits on the subpoena power did not prevent Congress from attempting to aggrandize itself at the President's expense, the Chief Justice feared that judicial resolution of such a dispute using only those limits could deter negotiation between the two branches, historically the hallmark of such inquiries, and encourage Congress to seek compliance through the courts.⁴⁰ As a result, the Chief Justice instructed lower courts to perform a careful analysis using [s]everal special considerations that take adequate account of the separation-of-powers principles at stake during a legislative inquiry into the President's records.⁴¹ Specifically, in such a dispute, courts should, among other considerations: (1) carefully assess whether the confrontation can be avoided by relying on other sources to provide Congress the information it needs in light of its legislative objective; (2) insist on a subpoena that is no broader than is reasonably necessary to support Congress's objective; (3) consider the nature of the evidence of Congress's legislative purpose, preferring more detailed and substantial evidence to vague or loosely worded evidence of Congress's purpose; and (4) assess the burdens, such as time and attention, the subpoena imposes on the President.42

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Lower court

United States Court of Appeals for the District of Columbia Circuit

Advocates

Jeffrey B. Wall for the United States, as amicus curiae, supporting the petitioners

Facts of the case

The U.S. House of Representatives Committee on Oversight and Reform issued a subpoena to Mazars USA, the accounting firm for Donald Trump (in his capacity as a private citizen) and several of his businesses, demanding private financial records belonging to Trump. According to the Committee, the requested documents would inform its investigation into whether Congress should amend or supplement its ethics-in-government laws. Trump argued that the information serves no legitimate legislative purpose and sued to prevent Mazars from complying with the subpoena.

The district court granted summary judgment for the Committee, and the U.S. Court of Appeals for the D.C. Circuit affirmed, finding the Committee possesses the authority under both the House Rules and the Constitution.

In the consolidated case, Trump v. Deutsche Bank AG, No. 19-760, two committees of the U.S. House of Representatives-the Committee on Financial Services and the Intelligence Committee-issued a subpoena to the creditors of President Trump and several of his businesses. The district court denied Trump's motion for a preliminary injunction to prevent compliance with the subpoenas, and the U.S. Court of Appeals for the Second Circuit affirmed in substantial part and remanded in part.

Question

Does the Constitution prohibit subpoenas issued to Donald Trump's accounting firm requiring it to provide non-privileged financial records relating to Trump (as a private citizen) and some of his businesses?

Conclusion

7-2 decision
majority opinion by John G. Roberts, Jr.

The courts below did not take adequate account of the significant separation of powers concerns implicated by congressional subpoenas for the President's information.

The courts below did not take adequate account of the significant separation of powers concerns implicated by congressional subpoenas for the President's information. Chief Justice John Roberts authored the 7-2 majority opinion of the Court.

The Court first acknowledged that this dispute between Congress and the Executive is the first of its kind to reach the Court and that the Court does not take lightly its responsibility to resolve the issue in a manner that ensures "it does not needlessly disturb 'the compromises and working arrangements' reached by those branches. Each house of Congress has "indispensable" power "to secure needed information" in order to legislate, including the power to issue a congressional subpoena, provided that the subpoena is "related to, and in furtherance of, a legitimate task of the Congress." However, the issuance of a congressional subpoena upon the sitting President raises important separation-of-powers concerns. The standard advocated by the President-a "demonstrated, specific need"-is too stringent. At the same time, the standard advocated by the House-a "valid legislative purpose"-does not adequately safeguard the President from an overzealous and perhaps politically motivated Congress.

Rather than adopt either party's approach, the Court proposed a balancing test that considers four factors. First, courts should carefully assess whether the asserted legislative purpose requires involving the President and his papers, or whether the information is available elsewhere. Second, courts should consider whether the subpoena is no broader than reasonably necessary in scope so as to still serve Congress's legislative purpose. Third, courts should evaluate the evidence Congress has offered to "establish that a subpoena advances a valid legislative purpose"-the more "detailed and substantial," the better. Finally, courts should assess what burdens a subpoena imposes on the President.

Justice Clarence Thomas authored a dissenting opinion, in which he argued that Congress can never issue a legislative subpoena for private, unofficial documents.

Justice Samuel Alito authored a dissenting opinion, in which he argued that even accepting the balancing test adopted by the majority, the House subpoenas should fail without a greater showing from the House as to each of the four considerations outlined by the majority.

Cite this page

"Trump v. Mazars USA, LLP." Oyez, www.oyez.org/cases/2019/19-715. Accessed 17 Dec. 2020.

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United States Court of Appeals for the District of Columbia Circuit Jeffrey B. Wall for the United States, as amicus curiae, supporting the petitioners The U.S. House of Representatives Committee on Oversight and Reform issued a subpoena to Mazars USA, the accounting firm for Donald Trump (in his capacity as a private citizen) and several of his businesses, demanding private financial records belonging to Trump.

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"All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."
- U.S. Constitution, Article I, section 1

The Constitution says nothing about congressional investigations and oversight, but the authority to conduct investigations is implied since Congress possesses "all legislative powers." The Supreme Court determined that the framers intended for Congress to seek out information when crafting or reviewing legislation. George Mason of Virginia said at the Federal Convention that Members of Congress "are not only Legislators but they possess inquisitorial powers. They must meet frequently to inspect the Conduct of the public offices."

Origins

The constitutional framers assumed that Congress would conduct investigations as the British House of Commons conducted them. James Wilson of Pennsylvania, a future Supreme Court Justice and Convention delegate, wrote in a 1774 essay that members of the Commons were considered "grand inquisitors of the realm. The proudest ministers of the proudest monarchs have trembled at their censures; and have appeared at the bar of the house, to give an account of their conduct, and ask pardon for their faults." When the U.S. House convened in 1789, it established an early set of select committees, such as Rules and Ways and Means, to structure the legislative process including investigations.

Early Investigations

The House used its investigatory privileges in the First Congress (1789-1791). Robert Morris of Pennsylvania, the superintendent of finances during the Continental Congress and a financier of the American Revolution, asked Congress in 1790 to investigate his handling of the country's finances in order to clear his name of potential impropriety. The House referred Morris's request to a select committee, setting a precedent for future investigations, while the Senate had President George Washington appoint special commissioners and report back to that body. Representative James Madison of Virginia said that the "House should possess itself of the fullest information in order to doing justice to the country and to public officers."

Two years later, the House authorized a special committee to investigate the military defeat of General Arthur St. Clair. This was the first time the House investigated an official under the President's direct supervision. Several Representatives debated whether the House had authority to conduct such an investigation at all. Initially, Representative William Giles of Virginia moved a resolution to request that President Washington launch an investigation. But the House amended the resolution to create a select committee, authorized "to call for such persons, papers, and records, as may be necessary to assist their inquiries." Washington consulted his Cabinet to discuss compliance with the House's investigation. They agreed upon rules of disclosure that formed the early basis of what is now known as "executive privilege," or The President's prerogative to use private documents and unvarnished advice to formulate policy decisions.

Subpoena Power and Contempt

The House has compelled the attendance of witnesses since 1795, when it investigated an attempt to bribe Members. Indeed, early cases of congressional subpoena and contempt powers focused on the abuse or discredit of the House itself. Robert Randall, a real estate speculator, had tried to purchase what is now Michigan from the federal government and share the proceeds with Members of Congress who approved the sale. As a result, Randall was the first individual held in contempt of Congress. The House Sergeant-at-Arms was authorized to arrest him and bring him before the House, where he was reprimanded and placed in a local jail for a week.

Subpoena power for routine legislative matters evolved after an 1827 debate authorizing the Committee on Manufactures to "send for persons and papers." The committee, seeking more information on reforming the tariff of 1824, wanted to conduct its own investigation given that voluntary testimony and memorials to the committee had been "in many instances opposed to each other, and contradictory as regards facts." One Representative denounced the action as an "inquisition" and such power generally as "odious, and oppressive, in the highest degree." Representative Edward Livingston of Louisiana said it was better to have an independent investigation than rely on voluntary testimony by "those interested to deceive." Livingston said, "all our laws...would be better, more stable, more wise" if the House conducted its own investigations.

The House reformed and routinized its subpoena and contempt powers during the 19th century. Initially, it had authorized the Sergeant-at-Arms to arrest those disregarding the orders of the House and bring them before its Membership. After an 1857 case involving a reporter for the New York Times who was held in contempt for not divulging his sources for a report concerning potential bribery of House Members, Congress passed the forbearer to the current law on contempt (2 USC §194). In that law, the failure of a witness to answer "any question pertinent" to a congressional investigation would prompt an investigation by the Department of Justice, as well as potential fines and jail time.

Current Practice

Hearings are most commonly held for three reasons: to consider pending legislation; to investigate issues that may require legislation in the future; and, to investigate and oversee federal programs. They reflect the most important issues of the day and what occupies congressional attention. This means that Congress holds hearings on a variety of issues, from steroid abuse in professional sports to the use of weather satellites. Hearings have also been used to further the rights of minority groups. Congressional investigations not only help legislators make better policy decisions, but they are central to the system of checks and balances. Investigatory hearings can uncover presidential abuses of power and corruption, such as the Teapot Dome scandal in the 1920s or Watergate in the 1970s. But hearings have also been used for less noble purposes, such as the blacklisting of private citizens during the "un-American activities" hearings in the 1950s. While the power to investigate is broad, the Supreme Court has since ruled that Congress must confine itself to "legislative purposes" and avoid the strictly private affairs of individual citizens.

For Further Reading

Aberbach, Joel D. Keeping a Watchful Eye: The Politics of Congressional Oversight. (Washington, D.C.: The Brookings Institution, 1990).

Barrett, David M. The CIA and Congress: The Untold Story from Truman to Kennedy. (Lawrence: University Press of Kansas, 2005).

Bruns, Roger A., David Hostetter, and Raymond W. Smock, ed., Congress Investigates: A Critical Documentary History, revised edition, 2 vols. (New York: Facts on File, 2011).

Minta, Michael D. Oversight: Representing the Interests of Blacks and Latinos in Congress. (Princeton: Princeton University Press, 2011).

Ogden, August Raymond. The Dies Committee: A Study of the Special House Committee for the Investigation of Un-American Activities, 1938-1943. (Washington, D.C.: The Catholic University of America Press, 1943).

Ogul, Morris S. Congress Oversees the Bureaucracy. (Pittsburgh: University of Pittsburgh Press, 1976).

Perino, Michael. The Hellhound of Wall Street: How Ferdinand Pecora's Investigation of the Great Crash Forever Changed American Finance. (New York: Penguin Press, 2010).

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Investigations & Oversight | US House of Representatives: History, Art & Archives

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"All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."- U.S. Constitution, Article I, section 1The Constitution says nothing about congressional investigations and oversight, but the authority to conduct investigations is implied since Congress possesses "all legislative powers."

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Executive Privilege constitutional foundations and history AND connections to investigations

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Executive Privilege constitutional foundations and history AND connections to investigations

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This is a quote from the section Congressional Access to the Executive "The disputes, however, have been colorful and varied.³³ The basic premise of the concept of executive privilege, as it is applied to resist requests for information from Congress as from private parties with or without the assistance of the courts, is found in the doctrine of separation of powers, the prerogative of each coequal branch to operate within its own sphere independent of control or direction of the other branches. In this context, the President then asserts that phase of the claim of privilege relevant to the moment, such as confidentiality of communications, protection of diplomatic and military secrets, or preservation of investigative records. Counterposed against this assertion of presidential privilege is the power of Congress to obtain information upon which to legislate, to oversee the carrying out of its legislation, to check and root out corruption and wrongdoing in the Executive Branch, involving both the legislating and appropriating function of Congress, and in the final analysis to impeach the President, the Vice President, and all civil officers of the Federal Government."

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As much as it is discussed and debated, especially lately, there is remarkably little case law concerning "executive privilege"-the idea that there are at least some internal executive branch communications that are shielded against compelled disclosure. The Supreme Court has decided exactly one case involving the privilege, and even that decision-in the Watergate tapes case, United States v. Nixon-raised as many questions as it answered. One reason courts have historically had so little to say about the privilege is because, as the Congressional Research Service explained in 2014, "[t]he vast majority of these disputes are resolved through political negotiation and accommodation." Most privilege claims arise in disputes between Congress and the executive branch, and most of the time, the involved parties are able to reach some kind of compromise-or the relevant administration and/or Congress ends-before the dispute is conclusively settled by the courts. That's why the most voluminous discussions of executive privilege have come in memoranda by the Justice Department's Office of Legal Counsel-rather than judicial decisions.

But "political negotiation and accommodation" have not exactly characterized the relationship between the Trump administration and the House of Representatives over the past nine months. As a growing list of witnesses have refused to appear before Congress or turn over requested documents, the House has issued a steadily increasing number of subpoenas, which has in turn provoked litigation over the scope of Congress' subpoena power and, in some circumstances, whether and to what extent executive privilege provides a defense even against duly issued subpoenas. Last Friday, a divided panel of the U.S. Court of Appeals for the D.C. Circuit decided the first of these disputes, holding that President Donald Trump could not block one of his accounting firms from complying with a subpoena for financial records in the firm's possession because the subpoena was within Congress' authority to issue. And that ruling came on the heels of an eye-opening letter sent last Tuesday by White House Counsel Pat Cipollone to House Speaker Nancy Pelosi and three House committee chairs, suggesting that the White House will not comply with any information requests related to a potential impeachment inquiry.

For now, at least, these disputes are pitched at a categorical level. If and when courts reach specific claims of executive privilege, they'll find some clarity, but also a series of open questions, in the relevant case law. The following post tries to clarify what's been settled and what hasn't.
1. The Supreme Court and executive privilege
As the 2014 CRS study explained, "the Supreme Court has never addressed executive privilege in the face of a congressional demand for information." Instead, the case in which the court first recognized such a privilege- Nixon-arose from a subpoena issued by Special Prosecutor Leon Jaworski as part of his investigation into the Watergate break-in. But the court's 8-0 ruling in Nixon nevertheless provides three important benchmarks for executive privilege vis-à-vis Congress today.

First, emphasizing "the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties," the Nixon court traced executive privilege not to the common law, but to Article II of the Constitution. As Chief Justice Warren Burger wrote, "[w]hatever the nature of the privilege of confidentiality of Presidential communications in the exercise of Art[icle] II powers, the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties." In other words, "the protection of the confidentiality of Presidential communications has ... constitutional underpinnings," meaning that the privilege cannot be abrogated by statute. Indeed, even though President Richard Nixon ultimately lost before the court, this part of the court's decision was a significant (and, given the result, unnecessary) win for the presidency.

Second, the Nixon court rejected the president's claim that such a privilege is absolute, emphasizing that "the impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions would plainly conflict with the function of the courts under Art[icle] III." Instead, the court held that the executive privilege protected by Article II is a qualified privilege, and concluded that "it is necessary to resolve [the] competing interests" between executive privilege and the role of the courts "in a manner that preserves the essential functions of each branch."

Third, Nixon held that the president's interest in the confidentiality of his own communications, as memorialized in the tapes sought by the subpoena, was outweighed by "our historic commitment to the rule of law." In Nixon, specifically, "when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice." And as the court would explain three years later in another case involving Nixon, the privilege recognized in the earlier 1974 Nixon ruling "is limited to communications 'in performance of (a President's) responsibilities ... of his office,' and made 'in the process of shaping policies and making decisions.'"
2. The D.C. Circuit's major rulings: Espy and Judicial Watch
Although the Supreme Court has not considered the scope of executive privilege since the 1970's, the D.C. Circuit has ruled on the issue several times. Two especially instructive decisions are the 1997 decision in In re Sealed Case (known to posterity as the Espy ruling); and the 2004 ruling in Judicial Watch v. U.S. Department of Justice.

Espy concerns a grand jury subpoena for White House documents that arose out of a criminal investigation into former Secretary of Agriculture Mike Espy. In siding largely, but not entirely, with the White House, the D.C. Circuit clarified several features about executive privilege. First, as Judge Patricia Wald explained for the unanimous three-judge panel, executive privilege is, in fact, two different privileges: the "presidential communications privilege" recognized by the Supreme Court in Nixon, and a more general "deliberative process privilege," derived from the common law. As the court explained, the latter privilege covers most internal decisionmaking within the executive branch, but is far easier to overcome. The former privilege, in contrast, applies only to "direct decisionmaking by the President," and is far harder to overcome-requiring a greater showing of need by the requesting party, along with the unavailability of other mechanisms for obtaining similar evidence.

Espy also clarified that "communications made by presidential advisers in the course of preparing advice for the President come under the presidential communications privilege, even when these communications are not made directly to the President." To that end, "[t]he privilege must also extend to communications authored or received in response to a solicitation by members of a presidential adviser's staff, since in many instances advisers must rely on their staff to investigate an issue and formulate the advice to be given to the President." But Espy also stressed that "the presidential communications privilege should be construed as narrowly as is consistent with ensuring that the confidentiality of the President's decisionmaking process is adequately protected." Thus, "the privilege should not extend to staff outside the White House in executive branch agencies." Instead, "the privilege should apply only to communications authored or solicited and received by those members of an immediate White House adviser's staff who have broad and significant responsibility for investigating and formulating the advice to be given the President on the particular matter to which the communications relate," and only when the communications are specifically related to advice to the President "on official government matters." As the court concluded, "[t]he presidential communications privilege should never serve as a means of shielding information regarding governmental operations that do not call ultimately for direct decisionmaking by the President."

Seven years later, a different D.C. Circuit panel further sharpened Espy's analysis in Judicial Watch, a Freedom of Information Act suit seeking disclosure of DOJ documents relating to pardon applications and pardon grants. The government asserted both the presidential communications privilege and the deliberative process privilege as grounds for withholding disclosure under FOIA. But the court of appeals rejected the argument that the documents were protected by the presidential communications privilege. As Judge Judith Rogers wrote for a divided panel, even though the materials related to a "quintessential and non-delegable Presidential power"-the power to pardon-"internal agency documents that are not 'solicited and received' by the President or his Office are instead protected against disclosure, if at all, by the deliberative process privilege." Although Espy had, for the first time, expanded the presidential communications privilege to encompass communications not directly involving the president, Judicial Watch stressed the narrowness of that extension: "[W]hile 'communications authored or solicited and received' by immediate White House advisors in the Office of the President could qualify under the privilege, communications of staff outside the White House in executive branch agencies that were not solicited and received by such White House advisors could not."

Between them, Espy and Judicial Watch yield several conclusions about the scope of the presidential communications privilege under D.C. Circuit case law. First, the privilege may be asserted even as to communications in which the president is not personally involved. Second, the communications must nevertheless relate to "official government matters" calling for "direct decisionmaking by the President." Third, at most, the privilege can only be claimed by senior White House advisers (and their immediate staffers). Fourth, and most importantly, the scope of the privilege is to be construed as "narrowly" as is consistent with the confidentiality of the president's communications.
3. Judge John Bates' ruling in Miers
Although district court decisions do not have the same precedential force as rulings by the Supreme Court and courts of appeals, one ruling from the U.S. District Court for the District of Columbia subsequent to the D.C. Circuit's Judicial Watch decision may provide further insight into the scope of executive privilege today. In House Committee on the Judiciary v. Miers, Judge John Bates held that neither current nor former senior advisers to the president are absolutely immune from compelled congressional process-rejecting a claim that "executive privilege" protected the White House chief of staff or the former White House counsel from compliance with otherwise valid congressional subpoenas. In the process, Bates rejected the White House's argument that the Supreme Court's 1974 Nixon decision was limited to criminal subpoenas:

Congress's power of inquiry is as broad as its power to legislate and lies at the very heart of Congress's constitutional role. Indeed, the former is necessary to the proper exercise of the latter: according to the Supreme Court, the ability to compel testimony is " necessary to the effective functioning of courts and legislatures." Thus, Congress's use of (and need for vindication of) its subpoena power in this case is no less legitimate or important than was the grand jury's in United States v. Nixon. Both involve core functions of a co-equal branch of the federal government, and for the reasons identified in Nixon, the President may only be entitled to a presumptive, rather than an absolute, privilege here. And it is certainly the case that if the President is entitled only to a presumptive privilege, his close advisors cannot hold the superior card of absolute immunity.

The district court did not reach the merits of the privilege claim in Miers. And the government's appeal was voluntarily dismissed after the parties settled. But Bates' ruling stands as the only decision to date that expressly rejects an effort to distinguish the Nixon analysis as not applying to congressional subpoenas, and it rejects the argument that current or former senior White House advisors enjoy absolute testimonial immunity vis-à-vis Congress. If other courts follow Bates' lead, that would have significant ramifications for executive privilege claims against Congress going forward. Much remains unanswered by the courts, but the guidance from Espy, Judicial Watch and Miers should go a long way toward separating colorable privilege claims from those that are patently meritless.
4. Lessons for the future
In its 1977 ruling in United States v. AT&T Co., the D.C. Circuit refused to resolve a dispute between the DOJ and the House of Representatives arising out of a subpoena the House had issued to a private company for records that DOJ claimed were protected by executive privilege. As Judge Harold Leventhal wrote:

The framers ... relied, we believe, on the expectation that where conflicts in scope of authority arose between the coordinate branches, a spirit of dynamic compromise would promote resolution of the dispute in the manner most likely to result in efficient and effective functioning of our governmental system. Under this view, the coordinate branches do not exist in an exclusively adversary relationship to one another when a conflict in authority arises. Rather, each branch should take cognizance of an implicit constitutional mandate to seek optimal accommodation through a realistic evaluation of the needs of the conflicting branches in the particular fact situation. This aspect of our constitutional scheme avoids the mischief of polarization of disputes.

For better or worse, our contemporary politics are beset with "the mischief of polarization of disputes." And as the D.C. Circuit suggested in AT&T Co., the burden will eventually fall upon the courts to settle these disputes if, as seems increasingly likely, the political process cannot. However the courts ultimately resolve these cases, we should all bemoan the demise of the "spirit of dynamic compromise." It remains to be seen whether the courts will move quickly enough to prevent the current disputes from being mooted by the next election, which will return a new House of Representatives regardless of the results of the presidential election.

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Executive privilege, Congress' subpoena power, and the courts: A brief overview of a complex topic - SCOTUSblog

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As much as it is discussed and debated, especially lately, there is remarkably little case law concerning "executive privilege"-the idea that there are at least some internal executive branch communications that are shielded against compelled disclosure. The Supreme Court has decided exactly one cas

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The case was a constitutional clash on the scope of executive privilege and whether a former president may invoke it when the current one has waived it.

Former President Donald J. Trump has said he has a constitutional right to shield some White House records from Congress even though President Biden declined to invoke executive privilege over them. Credit... Erin Schaff/The New York Times

WASHINGTON - The Supreme Court on Wednesday refused a request from former President Donald J. Trump to block the release of White House records concerning the Jan. 6 attack on the Capitol.

Only Justice Clarence Thomas noted a dissent.

A special House committee investigating the attack sought the records from the National Archives, which gave both President Biden and Mr. Trump the opportunity to object.

Mr. Trump invoked executive privilege, a doctrine meant to protect the confidentiality of presidential communications, over some of the documents.

"Congress may not rifle through the confidential, presidential papers of a former president to meet political objectives or advance a case study," his lawyers told the justices in an emergency application.

"These sweeping requests are indicative of the committee's broad investigation of a political foe, divorced from any of Congress's legislative functions," the application said.

Mr. Biden took a different view in October in declining to assert executive privilege over some of the materials.

"Congress is examining an assault on our Constitution and democratic institutions provoked and fanned by those sworn to protect them, and the conduct under investigation extends far beyond typical deliberations concerning the proper discharge of the president's constitutional responsibilities," wrote Dana Remus, the White House counsel.

She added that executive privilege should not be employed to protect "information that reflects a clear and apparent effort to subvert the Constitution itself."

Mr. Trump told the justices that he had a constitutional right to shield the materials from Congress even though Mr. Biden declined to invoke executive privilege over them.

"The disagreement between an incumbent president and his predecessor from a rival political party," Mr. Trump's lawyers told the court, "is both novel and highlights the importance of executive privilege and the ability of presidents and their advisers to reliably make and receive full and frank advice, without concern that communications will be publicly released to meet a political objective."

Lawyers for the House committee responded that the Supreme Court should not thwart its inquiry. "The select committee's work," they wrote, "is of the highest importance and urgency: investigating one of the darkest episodes in our nation's history, a deadly assault on the United States Capitol and Congress, and an unprecedented disruption of the peaceful transfer of power from one president to the next."

Mr. Trump had sued to block release of the documents, saying that the committee was investigating possible criminal conduct, a line of inquiry that he said was improper, and that the panel had no valid legislative reason to seek the requested information.

Lawyers for the committee responded that the two tasks were often intertwined. "Congress often legislates by probing past illegality to determine why it occurred, how it could be prevented, whether more resources should be allocated to prevention and whether and how existing laws should be changed," they wrote, noting that Congress had enacted major legislation after the Watergate and Teapot Dome scandals.

Judge Tanya S. Chutkan of the Federal District Court in Washington ruled against Mr. Trump in November. A unanimous three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit affirmed that ruling in December.

Judge Patricia A. Millett, writing for the panel, acknowledged that former presidents have the right to invoke executive privilege. But she said the privilege is not absolute even when it is asserted by a sitting president.

In 1974, for instance, the Supreme Court unanimously ruled that President Richard M. Nixon had to comply with a trial subpoena seeking tapes of his conversations in the Oval Office, rejecting his claims of executive privilege.

Judge Millett wrote that several factors warranted disclosure of the documents despite Mr. Trump's objections.

Key Figures in the Jan. 6 Inquiry

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"To start," she wrote, "as the incumbent, President Biden is the principal holder and keeper of executive privilege, and he speaks authoritatively for the interests of the executive branch. Under our Constitution, we have one president at a time."

It is not unusual for sitting presidents to waive executive privilege, Judge Millett wrote. Mr. Nixon declined to invoke it to block his aides' testimony concerning discussions of possible criminal conduct before a Senate committee investigating the Watergate scandal. President Ronald Reagan authorized providing documents, including excerpts from his diaries, to congressional committees investigating the Iran-contra affair. President George W. Bush and Vice President Dick Cheney were questioned for hours by a commission investigating the Sept. 11, 2001, attacks.

In a Supreme Court brief on behalf of the Biden administration, Elizabeth B. Prelogar, the solicitor general, wrote that Mr. Biden's decision to allow disclosure of some documents was similarly appropriate.

His decision, she wrote, "is not likely to have any materially greater effect on the future candor of presidential advisers than have prior presidential decisions not to assert executive privilege in connection with events like Watergate, Iran-contra and Sept. 11."

Mr. Trump's lawyers said the former president enjoyed a special status under a federal law governing the disclosure of presidential records.

"President Trump is more than an ordinary citizen," they wrote. "He is one of only five living Americans who, as former presidents, are granted special authority to make determinations regarding the disclosure of records and communications created during their terms of office."

Judge Millett wrote that the House committee had a legitimate need for the documents.

"There would seem to be few, if any, more imperative interests squarely within Congress's wheelhouse than ensuring the safe and uninterrupted conduct of its constitutionally assigned business," she wrote. "Here, the House of Representatives is investigating the single most deadly attack on the Capitol by domestic forces in the history of the United States."

Mr. Trump's objections to the release of information concerning the rally that preceded the Capitol attack, the gathering's aftermath and related activities, Judge Millett wrote, were vague and inadequate.

"Mr. Trump has made no record nor even hinted to this court what context or information has been overlooked or what information could override President Biden's calculus," she wrote. "We cannot just presume it."

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In Rebuke to Trump, Supreme Court Won't Block Release of Jan. 6 Files

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The case was a constitutional clash on the scope of executive privilege and whether a former president may invoke it when the current one has waived it. WASHINGTON - The Supreme Court on Wednesday refused a request from former President Donald J. Trump to block the release of White House records concerning the Jan.

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Watkins v. United States (1957) is the U.S. Supreme Court case holding that the Due Process Clause of the Fifth Amendment limits Congress's ability to conduct investigations, namely its ability to require testimony on inquiries unrelated to the charge for which Congress summoned the witness to testify. Find a full opinion here.

In response to the Red Scare of the early-1950s, the House of Representatives created the Committee on Un-American Activities to investigate links, real or perceived, to the Communist Party. The Committee issued a subpoena to John Watkins, who worked as a labor union organizer, to appear as a witness to clarify allegations that he was a member of the Communist Party. Watkins denied allegations that he was a member of the Communist Party to the Committee's satisfaction, but the Committee then inquired into other persons whom Watkins knew and whom the Committee believed to be communists. Watkins refused to answer the Committee's roving inquiry on persons he knew, objecting that "I [do not] believe that this committee has the right to undertake the public exposure of persons because of their past activities." The Committee initiated a prosecution to hold him in contempt and the Court of Appeals of the District of Columbia upheld his conviction of one year in prison and a $100 fine for contempt. Watkins appealed to the U.S. Supreme Court and they granted certiorari.

The U.S. Supreme Court, in a 6-1 opinion written by Chief Justice Warren, overturned the conviction, finding that Congress's roving inquiry violated Watkins' procedural due process rights of the Fifth Amendment. The Court conceded that a witness could be held in contempt for refusing to answer a Congressional Committee's questions that carries out a specific legislative task. However, the Court reasoned, jurisdictionally a Committee only has the power to inquire into matters pertinent to the legislative task delegated to them.

Here, the Court noted, the Committee's task was vague and unclear. The Court emphasized this, stating, "[i]t would be difficult to imagine a less explicit authorizing resolution." The Court even criticized the Committee members for having clearly demonstrated "that they did not feel themselves restricted in any way to propaganda in the narrow sense of the word." In Watkins' case, when he questioned the pertinence of the questions on other persons he knew, the Committee responded that the question under inquiry was "subversion and subversive propaganda." The Court found this "at least as broad and indefinite as the authorizing resolution of the Committee, if not more so." Thus, the Court concluded that the Committee failed to "convey sufficient information as to the pertinency of the questions to the subject under inquiry." By doing so, the Committee violated Watkins' fair opportunity to determine whether he was within his rights in refusing, rendering his conviction in violation of the Fifth Amendment.

[Last updated in April of 2021 by the Wex Definitions Team]

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Watkins v. United States (1957) is the U.S. Supreme Court case holding that the Due Process Clause of the Fifth Amendment limits Congress's ability to conduct investigations, namely its ability to require testimony on inquiries unrelated to the charge for which Congress summoned the witness to testify. Find a full opinion here.

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John Peter Zenger and the Rights of Englishman

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John Peter Zenger and the Rights of Englishman

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The burning of Zenger's New York Weekly Journal

No country values free expression more highly than does the United States, and no case in American history stands as a greater landmark on the road to protection for freedom of the press than the trial of a German immigrant printer named John Peter Zenger. On August 5, 1735, twelve New York jurors, inspired by the eloquence of the best lawyer of the period, Andrew Hamilton , ignored the instructions of the Governor's hand-picked judges and returned a verdict of "Not Guilty" on the charge of publishing "seditious libels." The Zenger trial is a remarkable story of a divided Colony, the beginnings of a free press, and the stubborn independence of American jurors.
Background
The man generally perceived to be the villain of the Zenger affair, William Cosby, arrived in New York on August 7, 1731 to assume his post as Governor for New York Province. Cosby quickly developed a reputation as "a rogue governor." It is almost impossible to find a positive adjective among the many used by historians to describe the new governor : "spiteful," "greedy," "jealous," "quick-tempered," "dull," "unlettered," and "haughty" are a sample of those that have been applied.

William Cosby

Within a year after arriving on American shores, Cosby embroiled himself in a controversy that would lead to Zenger's trial and ultimate acquittal. The man with whom Cosby chose to pick his first fight, Rip Van Dam, was the seventy-one-year-old highly respected senior member of the New York provincial council. Cosby demanded that Van Dam turn over half of the salary he had earned while serving as acting governor of New York during the year between Cosby's appointment and his arrival in the colony. The hard-headed Van Dam agreed--providing that Cosby would split with him half of the perquisites he earned during the same time period. By Van Dam's calculations, Cosby would actually owe him money--over £4000.

Governor Cosby responded in August 1732 by filing suit for his share of Van Dam's salary. Knowing that he had no chance of prevailing in his case if the decision were left to a jury, Cosby designated the provincial Supreme Court to sit as a "Court of Exchequer" (without a jury) to hear his suit. Van Dam refused to roll over, and had his lawyers challenge the legality of Cosby's attempt to do an end-run of the colony's established jury system. The decision on the legality of Cosby's creation of the new court fell to the three members of the Supreme Court itself, and in April 1733 it voted 2 to 1 to uphold Cosby's action. Cosby wrote a letter to the dissenting judge, Chief Justice Lewis Morris, demanding that he explain his vote. Morris did so, but to Cosby's great displeasure, his explanation appeared not in a private letter to the Governor, but in a pamphlet printed by John Peter Zenger. Cosby "went ballistic," removing Morris as Chief Justice and replacing him with a staunch royalist, James Delancey.

Rip Van Dam

Cosby's action of firing Morris intensified the growing opposition to his administration among some of the most powerful people in the colony. Rip Van Dam, Lewis Morris, and an energetic attorney named James Alexander organized what came to be known as the Popular Party, a political organization that would constitute a serious challenge to Cosby's ability to govern.

Cosby attempted to maintain his grip on power by employing Francis Harison--a man called by historians Cosby's "flatterer-in-chief" and "hatchetman"--to become censor and effective editor of the only established New York newspaper, the New York Gazette. Harison defended Cosby both in prose and strained verse, such as this poem that appeared in the Gazette's January 7, 1734 issue:

Cosby the mild, the happy, good and great,
The strongest guard of our little state;
Let malcontents in crabbed language write,
And the D...h H....s belch, tho' they cannot bite.
He unconcerned will let the wretches roar,
And govern just, as others did before.

James Alexander, often described as the "mastermind" of the opposition, decided to take the unprecedented step of founding an independent political newspaper. Alexander approached John Peter Zenger who, along with William Bradford, the Gazette's printer, was one of only two printers in the colony, with the idea of publishing a weekly newspaper to be called the New York Weekly Journal. Zenger, who had made a modest living the past six years printing mainly religious tracts, agreed. In a letter to an old friend, Alexander revealed the Journal's mission: "Inclosed is also the first of a newspaper designed to be continued weekly, chiefly to expose him [Cosby] and those ridiculous flatteries with which Mr. Harison loads our other newspaper which our Governor claims and has the privilege of suffering nothing to be in but what he and Mr. Harison approve of."

On November 5, 1733, Zenger published the first issue of the Weekly Journal. The issue included a detailed account of the victory the previous week of Lewis Morris as Popular Party candidate for assemblyman from Westchester. Morris won the election despite the best efforts of Cosby to rig the election against him by having the sheriff disqualify Quaker voters (expected to be heavily pro-Morris) on the ground that the Quakers only "affirmed" rather than swore the oath required at the time of all voters. The election story, almost certainly written by Alexander, included this description of the sheriff's intervention:

[T]he sheriff was deaf to all that could be alleged on that [the Quaker] side; and notwithstanding that he was told by both the late Chief Justice and James Alexander, one of His Majesty's Council and counsellor-at-law, and by one William Smith, counsellor-at-law, that such a procedure [disqualifying the Quakers for affirming rather than swearing] was contrary to law and a violent attempt upon the liberties of the people, he still persisted in refusing the said Quakers to vote. ...

No doubt to the surprise and disappointment of Cosby, Morris won the election even without the Quakers' votes. The Journal story told of Morris's election being celebrated with "a general fire of guns" from a merchant vessel and "loud acclamations of the people as he walked the streets, conducted to the Black Horse Tavern, where a handsome entertainment was prepared for him."

Lewis Morris

Subsequent issues of the Journal, in addition to editorializing about other dubious actions of the Governor, contained ringing defenses of the right to publish, authored by Alexander, such as this offered in the second issue:

The loss of liberty in general would soon follow the suppression of the liberty of the press; for it is an essential branch of liberty, so perhaps it is the best preservative of the whole. Even a restraint of the press would have a fatal influence. No nation ancient or modern has ever lost the liberty of freely speaking, writing or publishing their sentiments, but forthwith lost their liberty in general and became slaves.

Cosby put up with the Journal's attacks for two months before deciding that it must be shut down. The first effort to silence the Journal occurred in January 1734 when Chief Justice Delancey asked a Grand Jury to return indictments based on the law of seditious libel. The Grand Jury, however, refused. Delancey tried again when the next Grand Jury met in October. He presented the grand jurors with broadsides and "scandalous" verse from Zenger's Journal, but the jurors, claiming that the authorship of the allegedly libelous material could not be determined, again refused to return indictment.

Cosby responded to these frustrations by proclaiming a reward of fifty pounds for the discovery of the authors of the libels and by issuing an order that Zenger's newspapers be publicly burned by "the common hangman."

Then, in an effort to get around the Grand Jury's refusal to indict, Cosby ordered his attorney general, Richard Bradley, to file "an information" before Justices Delancey and Philipse. Based on the information, the Justices issued a bench warrant for the arrest of John Peter Zenger. On November 17, 1734, the sheriff arrested Zenger and took him to New York's Old City Jail, where Zenger would stay for the next eight months.

The Weekly Journal was not published the next day, November 18. It would be the only issue missed in its publishing history. The next week, with the help of Zenger's wife, Anna, the Journal resumed publication with an issue that included this "apology":

As you last week were disappointed of my Journal, I think it incumbent on me to publish my apology, which is this. On the Lord's Day, the seventeenth, I was arrested, taken and imprisoned in the common jail of this City by virtue of a warrant from the Governor, the honorable Francis Harison, and others in the Council (of which, God willing, you will have a copy); whereupon I was put under such restraint that I had not the liberty of pen, ink or paper, or to see or speak with people, until my complaint to the honorable Chief Justice at my appearing before him upon my habeas corpus on the Wednesday following. He discountenanced that proceeding, and therefore I have had since that time the liberty of speaking thro' the hole of the door to my wife and servants. By which I doubt not you will think me sufficiently excused for not sending my last week's Journal, and hope for the future, by the liberty of speaking to my servants thro' the hole of the door of my prison, to entertain you with my weekly Journal as formerly.

The enormous bail of £800 set for Zenger turned into an important tactical advantage for the imprisoned printer. As a result of his stream of "letters" from prison, an outpouring of public sympathy for his cause developed.
The Trial
Old City Hall in New York, site of the Zenger trial (by David Grimm)

Zenger's defense would fall to sixty-year-old Andrew Hamilton of Philadelphia, perhaps the ablest and most eloquent attorney in the colonies--though that was not the initial plan. James Alexander and William Smith initially undertook Zenger's defense, but both were disbarred in April 1735 by Chief Justice Delancey when they audaciously objected to the two-man court (consisting of Justice Delancey and Philipse) Cosby had hand-picked to try Zenger's case.

Jury selection began on July 29, 1735, and once again Cosby attempted to influence events by having his henchman, Francis Harison, produce a roll of potential jurors that included forty-eight nonfreeholders, men presumed to be sympathetic to the Governor, including former magistrates and persons in Cosby's employ. This departure from normal procedures was too much even for Cosby's handpicked judges who, sitting behind an ornate bench in their scarlet robes and huge white wigs, rejected the ruse. Twelve jurors were quickly selected.

The trial opened on August 4 on the main floor of New York's City Hall with Attorney General Bradley's reading of the information filed against Zenger. Bradley told jurors that Zenger, "being a seditious person and a frequent printer and publisher of false news and seditious libels" had "wickedly and maliciously" devised to "traduce, scandalize, and vilify" Governor Cosby and his ministers. Bradley said that "Libeling has always been discouraged as a thing that tends to create differences among men, ill blood among the people, and oftentimes great bloodshed between the party libeling and the party libeled."

After a brief statement from John Chambers, Zenger's court-appointed attorney, Andrew Hamilton rose to announce that his client--sitting in an enclosed box in the courtroom--would not contest having printed and published the allegedly libelous materials contained in the Weekly Journal and that "therefore I shall save Mr. Attorney the trouble of examining his witnesses to that point."

Following Hamilton's surprise announcement, the prosecution's three witnesses (Zenger's journeyman associate and two of his sons) were sent home, and there was a long silence. Finally, Bradley spoke: "As Mr. Hamilton has confessed the printing and publishing of these libels, I think the Jury must find a verdict for the king. For supposing they were true, the law says that are not the less libelous for that. Nay, indeed the law says their being true is an aggravation of the crime." Bradley proceeded to offer a detailed and generally accurate account of the state of law on seditious libel of the time, supporting his conclusion that the truth of a libel is no defense.

The Zenger trial opens

Andrew Hamilton rose to argue that the law ought not to be interpreted to prohibit "the just complaints of a number of men who suffer under a bad administration." He suggested that the Zenger case was of transcendent importance:

From what Mr. Attorney has just now said, to wit, that this prosecution was directed by the Governor and the Council, and from the extraordinary appearance of people of all conditions, which I observe in Court upon this occasion, I have reason to think that those in the administration have by this prosecution something more in view, and that the people believe they have a good deal more at stake, than I apprehended. Therefore, as it is become my duty to be both plain and particular in this cause, I beg leave to bespeak the patience of the Court.

Hamilton argued that the libel law of England ought not to be the libel law of New York:

In England so great a regard and reverence is had to the judges that if any man strikes another in Westminster Hall while the judges are sitting, he shall lose his right hand and forfeit his land and goods for so doing. Although the judges here claim all the powers and authorities within this government that a Court of King's Bench has in England, yet I believe Mr. Attorney will scarcely say that such a punishment could be legally inflicted on a man for committing such an offense in the presence of the judges sitting in any court within the Province of New York. The reason is obvious. A quarrel or riot in New York can not possibly be attended with those dangerous consequences that it might in Westminster Hall; nor, I hope, will it be alleged that any misbehavior to a governor in The Plantations will, or ought to be, judged of or punished as a like undutifulness would be to our sovereign. From all of which, I hope Mr. Attorney will not think it proper to apply his law cases, to support the cause of his governor, which have only been judged where the king's safety or honor was concerned....Numberless are the instances of this kind that might be given to show that what is good law at one time and in one place is not so at another time and in another place.

His arguments might have been well-received by jurors, but Hamilton had almost no law to support his position that the truth should be a defense to the charge of libel. Not surprisingly, Chief Justice Delancey ruled that Hamilton could not present evidence of the truth of the statements contained in Zenger's Journal. "The law is clear that you cannot justify a libel," Delancey announced. "The jury may find that Zenger printed and published those papers, and leave to the Court to judge whether they are libelous."

In response to Delancey's ruling, Hamilton revealed the true nature of the defense strategy-- jury nullification:

I know, may it please Your Honor, the jury may do so. But I do likewise know that they may do otherwise. I know that they have the right beyond all dispute to determine both the law and the fact; and where they do not doubt of the law, they ought to do so. Leaving it to judgment of the court whether the words are libelous or not in effect renders juries useless (to say no worse) in many cases. But this I shall have occasion to speak to by and by.

Hamilton's lengthy summation to the jury still stands as an eloquent defense not just of a German-born printer, but of a free press:

It is natural, it is a privilege, I will go farther, it is a right, which all free men claim, that they are entitled to complain when they are hurt. They have a right publicly to remonstrate against the abuses of power in the strongest terms, to put their neighbors upon their guard against the craft or open violence of men in authority, and to assert with courage the sense they have of the blessings of liberty, the value they put upon it, and their resolution at all hazards to preserve it as one of the greatest blessings heaven can bestow....

The loss of liberty, to a generous mind, is worse than death. And yet we know that there have been those in all ages who for the sake of preferment, or some imaginary honor, have freely lent a helping hand to oppress, nay to destroy, their country.... This is what every man who values freedom ought to consider. He should act by judgment and not by affection or self-interest; for where those prevail, no ties of either country or kindred are regarded; as upon the other hand, the man who loves his country prefers its liberty to all other considerations, well knowing that without liberty life is a misery....

Power may justly be compared to a great river. While kept within its due bounds it is both beautiful and useful. But when it overflows its banks, it is then too impetuous to be stemmed; it bears down all before it, and brings destruction and desolation wherever it comes. If, then, this is the nature of power, let us at least do our duty, and like wise men who value freedom use our utmost care to support liberty, the only bulwark against lawless power, which in all ages has sacrificed to its wild lust and boundless ambition the blood of the best men that ever lived....

I hope to be pardoned, Sir, for my zeal upon this occasion....While we pay all due obedience to men in authority we ought at the same time to be upon our guard against power wherever we apprehend that it may affect ourselves or our fellow subjects....

You see that I labor under the weight of many years, and am bowed down with great infirmities of body. Yet, old and weak as I am, I should think it my duty, if required, to go to the utmost part of the land where my services could be of any use in assisting to quench the flame of prosecutions upon informations, set on foot by the government to deprive a people of the right of remonstrating and complaining, too, of the arbitrary attempts of men in power....

But to conclude: The question before the Court and you, Gentlemen of the jury, is not of small or private concern. It is not the cause of one poor printer, nor of New York alone, which you are now trying. No! It may in its consequence affect every free man that lives under a British government on the main of America. It is the best cause. It is the cause of liberty. And I make no doubt but your upright conduct this day will not only entitle you to the love and esteem of your fellow citizens, but every man who prefers freedom to a life of slavery will bless and honor you as men who have baffled the attempt of tyranny, and by an impartial and uncorrupt verdict have laid a noble foundation for securing to ourselves, our posterity, and our neighbors, that to which nature and the laws of our country have given us a right to liberty of both exposing and opposing arbitrary power (in these parts of the world at least) by speaking and writing truth.

Andrew Hamilton delivering his closing speech (by Henry Hintermeister)

Chief Justice Delancey seemed unsure how to react to Hamilton's eloquence. He instructed the jury that its duty under the law was clear. There were no facts for it to decide, and it was not to judge the law. Delancey all but ordered the jury to return a verdict of "Guilty":

The great pains Mr. Hamilton has taken to show how little regard juries are to pay to the opinion of judges, and his insisting so much upon the conduct of some judges in trials of this kind, is done no doubt with a design that you should take but very little notice of what I might say upon this occasion. I shall therefore only observe to you that as the facts or words in the information are confessed, the only thing that can come in question before you is whether the words as set forth in the information make a libel. And that is a matter of law, no doubt, and which you may leave to the Court.

The jury withdrew to deliberate. A short time later, it returned. The clerk of the court asked the jury foreman, Thomas Hunt, to state the verdict of the jury. "Not guilty," Hunt answered. There followed "three huzzas" and "shouts of joy" from the crowd of spectators in the courtroom. Chief Justice Delancey demanded order, even threatening spectators with arrest and imprisonment, but the celebration continued unabated. Defeated, Delancey "left the courtroom to the jubilant crowd."
Trial Aftermath
Anti-administration supporters hosted a congratulatory dinner for Andrew Hamilton at the Black Horse Tavern. The next day, on the start of his return trip to Philadelphia, a "grand salute of cannon was fired in his honor."

The Zenger trial established no new law with respect to seditious libel, but in unmistakable terms it signaled the public's opposition to such prosecutions. Concern about likely jury nullification discouraged prosecutions, and press freedom in America began to blossom. A half-century after the Zenger trial, as members of the First Congress debated the proposed Bill of Rights, one of the Constitution's principal drafters and great-grandson of Lewis Morris, Gouvernor Morris, would write of the Zenger case: "The trial of Zenger in 1735 was the germ of American freedom, the morning star of that liberty which subsequently revolutionized America."

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The Trial of John Peter Zenger: An Account

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The burning of Zenger's New York Weekly Journal No country values free expression more highly than does the United States, and no case in American history stands as a greater landmark on the road to protection for freedom of the press than the trial of a German immigrant printer named John Peter Zenger.

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Gerrymandering, explained | The Washington Post

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a GREAT explanation for explaining how the constitution sets up national and state elections powers, a must read

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a GREAT explanation for explaining how the constitution sets up national and state elections powers, a must read

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The Elections Clause is the primary source of constitutional authority to regulate elections for the U.S. House of Representatives and U.S. Senate. The Clause directs and empowers states to determine the "Times, Places, and Manner" of congressional elections, subject to Congress's authority to "make or alter" state regulations. It grants each level of government the authority to enact a complete code for such elections, including rules concerning public notices, voter registration, voter protection, fraud prevention, vote counting, and determination of election results. Whenever a state enacts a law relating to a congressional election, it is exercising power under the Elections Clause; states do not have any inherent authority to enact such measures.

Although the Elections Clause makes states primarily responsible for regulating congressional elections, it vests ultimate power in Congress. Congress may pass federal laws regulating congressional elections that automatically displace ("preempt") any contrary state statutes, or enact its own regulations concerning those aspects of elections that states may not have addressed. The Framers of the Constitution were concerned that states might establish unfair election procedures or attempt to undermine the national government by refusing to hold elections for Congress. They empowered Congress to step in and regulate such elections as a self-defense mechanism.

On occasion, Congress has exercised its power to "make or alter" rules concerning congressional elections, and some of its laws lie at the very heart of the modern electoral process. It has established a single national Election Day for congressional elections, and mandated that states with multiple Representatives in the U.S. House divide themselves into congressional districts, rather than electing all of their Representatives at-large. Congress also has enacted statutes limiting the amount of money that people may contribute to candidates for Congress, requiring that people publicly disclose most election-related spending, mandating that voter registration forms be made available at various public offices, and requiring states to ensure the accuracy of their voter registration rolls.

The power of states and Congress to regulate congressional elections under the Elections Clause is subject to express and implicit limits. Fundamentally, neither entity can enact laws under the Elections Clause that violate other constitutional provisions. For example, the Constitution specifies that anyone who is eligible to vote for the larger house of a state legislature may vote for the U.S. House and U.S. Senate as well. The Elections Clause does not permit either the states or Congress to override those provisions by establishing additional qualifications for voting for Congress.

Likewise, the Fourteenth Amendment to the U.S. Constitution protects the fundamental right to vote, barring states from needlessly imposing substantial burdens on the right. When a law specifies that a person must satisfy certain requirements or follow certain procedures in order to vote, a court must determine whether it is a reasonable regulation of the electoral process under the Elections Clause, or instead undermines the right to vote. Laws requiring people to register to vote in advance of elections or mandating that they vote at their assigned polling places are exactly the types of restrictions that the Elections Clause permits.

The Constitution also specifies age, residency, and citizenship requirements to run for the House or Senate. Individuals who satisfy those requirements cannot be prohibited from running for office for failing to satisfy other qualifications. States can, however, impose reasonable ballot access restrictions that a candidate must fulfill in order to appear on the ballot, such as submitting a petition signed by a certain number of registered voters. The Supreme Court has aggressively enforced this restriction by invalidating various attempts to impose term limits on Members of Congress. In U.S. Term Limits, Inc. v. Thornton (1995), the Court held that the Elections Clause did not permit a state to refuse to print on the ballot the names of candidates for the U.S. House who already had served three terms there, or the names of candidates for the U.S. Senate who had already served two terms.

The Supreme Court has explained that the Elections Clause also imposes implicit restrictions on the power to regulate congressional elections. Neither Congress nor the states may attempt to dictate electoral outcomes, or favor or disfavor certain classes of candidates. In Cook v. Gralike (2001), the Court struck down a provision that required election officials to print a special warning on the ballot next to the name of any candidate for Congress who refused to support an amendment to the U.S Constitution that would impose term limits for Congress. The Court explained that the provision exceeded the state's power under the Elections Clause because it was "plainly designed" to favor candidates who supported term limits, while placing others at a disadvantage.

One unusual feature of the Elections Clause is that it does not confer the power to regulate congressional elections on states as a whole, but rather the "Legislature" of each state. The Supreme Court has construed the term "Legislature" extremely broadly to include any entity or procedure that a state's constitution permits to exercise lawmaking power. Thus, laws regulating congressional elections may be enacted not only by a state's actual legislature, but also directly by a state's voters through the initiative process or public referendum, in states that allow such procedures.

The Court also has held that a legislature may delegate its authority under the Elections Clause to other entities or officials. A few states have chosen to transfer power to draw congressional district lines from their respective legislatures to non-partisan or bipartisan "independent redistricting commissions." These states believe that such commissions can make the electoral process more fair by preventing voters from being divided into congressional districts in ways that unduly protect existing officeholders ("gerrymandering").

As this summary shows, congressional elections are conducted under a complicated mix of state and federal laws, reflecting the Elections Clause's division of authority between state legislatures and Congress.

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The Elections Clause is the primary source of constitutional authority to regulate elections for the U.S. House of Representatives and U.S. Senate. The Clause directs and empowers states to determine the "Times, Places, and Manner" of congressional elections, subject to Congress's authority to "make or alter" state regulations.

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Q1: Elections and Federalism WTP professors lecture

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Q1: Elections and Federalism WTP professors lecture

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The Constitution in American Life - U4 Q1: Federalism and American Elections

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The Constitution in American Life - U4 Q3: Judicial Review and the Judicial Toolbox with David Adler

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Felons voting

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Felony Disenfranchisement | The Sentencing Project

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A striking 6.1 million Americans are prohibited from voting due to laws that disenfranchise citizens convicted of felony offenses. Felony disenfranchisement rates vary by state, as states institute a wide range of disenfranchisement policies.

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Native language speakers win voting rights lawsuit against state

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A federal judge in Anchorage ruled Wednesday morning that the state elections division violated the U.S. Voting Rights Act by failing to provide ballot and candidate information in Native languages to Yup'ik and Gwich'in speakers in three rural regions of Alaska.

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Native Americans could have a significant impact on midterm elections.

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A case in which the Court held that Alabama's apportionment of the state legislature was unconstitutional under the Equal Protection Clause of the Fourteenth Amendment because representation was not based on population of counties.

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A rally in support of President Donald Trump turned deadly when thousands of of attendees stormed the U.S. Capitol building on Wednesday.

The unprecedented chaos in the nation's capital began midday Wednesday at a "Save America" rally at the Ellipse, a park near the White House, where Trump incited his supporters to march to Capitol Hill, where Congress was meeting to certify Joe Biden as the 46th president of the United States.

Federal law enforcement vehicles raced to the Capitol in an effort to beat the mob there. Soon, after breaching through barricades and security checkpoints, the protesters were inside the building -- forcing lawmakers to go into lockdown.

Members of the angry mob went door to door waving Confederate flags, looting the offices of senators and congressmen and repeating the false rhetoric that the president has spread since November -- that Trump was the real winner of the election.

Lawmakers were forced to retrieve gas masks from under their seats as tear gas was released into the rotunda.

A woman was shot amid a standoff between police and protesters in a stairwell outside the House chamber. The woman, Ashli Babbitt, was one of four people who died as a result of the mayhem.

As the minutes turned to hours of violence, politicians called on Trump to instruct his supporters to leave the Capitol. In a Twitter video that was later removed, Trump told them to go home, but repeated that the election was "stolen" from him and said he "loved" the protesters.

People still remained in the Capitol minutes before the 6 p.m. curfew ordered by Washington, D.C., Mayor Muriel Bowser began.

Senators returned to the session at 8 p.m. to confirm electoral votes, but the building was not deemed cleared until about 1:30 a.m., nearly 12 hours after the frenzy began.
For an expanded look into what happened at the Capitol riots watch the ABC News special, "24 Hours: Assault on the Capitol," exclusively on Hulu beginning in the evening on Jan. 11.

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A visual timeline on how the attack on Capitol Hill unfolded

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A rally in support of President Donald Trump turned deadly when thousands of of attendees stormed the U.S. Capitol building on Wednesday. The unprecedented chaos in the nation's capital began midday Wednesday at a "Save America" rally at the Ellipse, a park near the White House, where Trump incited his supporters to march to Capitol Hill, where Congress was meeting to certify Joe Biden as the 46th president of the United States.

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Inside the Capitol Riot: An Exclusive Video Investigation (Published 2021)

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The Times analyzed thousands of videos from the Jan. 6 attack on the U.S. Capitol Building to understand how it happened — and why. Here are some of the key findings.

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Ann Ravel (@AnnMRavel) is an Advisory Board member for the Markkula Center for Applied Ethics and was formerly the chair of the Federal Election Commission. Views are her own.
Voting is a sacred part of our system of government. Democracy's essential feature is the equal participation of all citizens in the electoral process to ensure that elected representatives respond to the will of the people. The Federalist papers are clear that the Framers intended political power to reside in "the great body of [white male] people," and not solely with the elites. Voting is one of the most direct methods for people to have an effective voice in the governmental affairs of their country, state, or community. Encouraging universal turnout is an essential way to make a difference in our country. Yet the history of voter participation in this country has been dismal. In the 2016 presidential election, the United States had one of the lowest turnouts in developed, democratic countries in the world.

Social science research, public polling, and federal court decisions indicate that there are underlying, pernicious factors that suppress the vote, particularly for the young, minorities, and lower-income citizens. This kind of voter suppression, while not as overt as historic direct voter suppression methods, such as poll taxes and violence toward minorities at the polls, has the same impact and purpose as direct voter suppression: to affect the voter's desire and ability to cast a ballot for the purpose of suppressing participation in the democratic electoral process.

Distrust in the voting process results in many citizens choosing not to vote. Many people say that because of the Supreme Court Citizens United decision, their representatives are "bought and paid for by the wealthy," so their vote doesn't count. The failure of some state and federal election authorities to disclose hacking incidents in the 2016 election also led many to distrust the systems themselves, and to stay away from the polls. The deluge of targeted misinformation and false political propaganda online in the 2016 and 2018 elections, which came from not only foreign but also American sources, affected the way people voted on highly charged social issues, and caused Blacks in swing states to stay home from the polls. These online communications were intended to sow dissent and anger and to exploit partisan and racial divides among voters. All these factors indirectly and directly worked to suppress the vote for political reasons, or to increase tensions surrounding voting. In a December 2019 survey, the Voter Study Group found that one in ten members of both parties said that there would be "a lot"or "a great deal"of justification for violence if the opposing party won the 2020 presidential election.

It is no accident, then, that some of these same mechanisms were employed in the 2020 election to dissuade voting and to sow anger, and to increase the already low trust in government and government institutions to influence the vote. The script to impact the vote in the 2020 election had been established in the 2016 and 2018 elections. A 2017 Gallup poll revealed that confidence of Americans in most major institutions was low: our major institutions had only an average 35% confidence rating overall. Lack of confidence extends to the United States Supreme Court, the presidency, organized religion, and Congress. And the Pew Research Center concluded, based on this abysmal lack of confidence, that it "speaks to the broader dissatisfaction Americans have with the state of the nation more generally". These are additional factors influencing both how people vote and whether they will vote at all.

In addition to these already existing dissatisfactions, in 2020 the nation was in the midst of a pandemic, which led to a change in our lives, and the rise in reliance on Internet platforms for social communications. Increasingly, there is disagreement over facts, a blurring of the lines between opinion and fact, and declining trust in respected sources. COVID made it unhealthy and dangerous to vote in large numbers in polling places, so voting by mail was a reasonable alternative to comply with the stay at home directives. But in early April, during a daily coronavirus briefing, Trump said, "No mail ballots, they cheat. OK, people cheat. Mail ballots are a very dangerous thing for this country because they are cheaters." He followed this up by encouraging Republicans to "fight very hard," when it comes to state wide mail-in voting. This statement was preceded by him forming a commission (and then disbanding it) early in his presidency to examine voting irregularities, even though there has been no evidence of much voter fraud in this country. A five year study on voter fraud commissioned by President George Bush found that, "The Justice Department has turned up virtually no evidence of any organized effort to skew federal elections." Nonetheless, the president tweeted that mail-in ballots could not be verified and so were a major threat to the election. He also claimed that people received unsolicited ballots and it was a "total fraud in the making." He dismissed unfavorable poll results as "fake". Studies have found that all of these allegations are false, and also that there was little evidence that mail-in-ballots helped one party over another. Yet until the day of the Capitol attacks, the President continued to speak and tweet many hundreds of times about the "steal."

These falsehoods continued to be spread on Internet platforms, from April until January of 2021. The unproven allegations were spread to millions of people, and were repeated and spread by many elected public officials. But by December, the lawsuits which alleged that the election was rigged failed. Courts which examined the evidence found no basis for the claims. The US Supreme Court, including Trump-nominated Justices, refused to hear appeals of these cases. Yet these reasoned decisions were either insufficient to persuade many elected officials that the allegations of fraud were unfounded, or they were willing to lie for their own self interest and so continued to argue the falsehoods in public forums. During the debate which ended in the certification of the Electoral College determination and affirming Biden's electoral victory, this behavior caused Representative Conor Lamb to state that the objections to Biden's electors are underpinned by the same lies that inspired the attacks on the Capitol, and that "the members who are repeating those lies should be ashamed of themselves."

This election and it's aftermath has clearly shown the negative and worrisome ramifications of the untruths that seems to have become a hallmark of our electoral process. Hana Callaghan, in her book, Voting for Ethics, wrote that "ethical campaigns are those that serve to create an informed electorate," and "political lying also diminishes trust in government in general." What Hana did not expect was the way that voter suppression, misinformation, outright lies about illegal ballots, and the way that internet platforms optimize the spread of inflammatory disinformation targeted to private groups were meant to undermine our government and democracy.

As President Obama has observed, however, many members of President Trump's party have spoken up forcefully to restore a common purpose to our politics. It brings to mind the Declaration of Conscience speech given by Senator Margaret Chase Smith, in 1950, objecting to the serious "national condition" posed by McCarthyism. Senator Chase Smith, who said she was speaking as a Republican and a woman, did not want to see a Republican regime embracing a philosophy that lacks political integrity or intellectual honesty. She did not want to see a Republican Party that rose to political victory on what she called the Four Horsemen of Calumny-Fear, Ignorance, Bigotry and Smear. Such institutional checks are an important way to protect our democracy.

Senator Chase Smith demonstrated political ethics and integrity. This is exactly what our country urgently needs to assure fair elections and encourage everyone in this country to participate in our political process. We must demand truth in politics from our elected officials, and only vote for those who are ethical. The Biden Administration should emphasize democracy and emphasize civic engagement, restore trust in government and government transparency, and encourage tolerance and respect. Our fragile democracy depends on it.

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Ann Ravel (@AnnMRavel) is an Advisory Board member for the Markkula Center for Applied Ethics and was formerly the chair of the Federal Election Commission. Views are her own. Voting is a sacred part of our system of government.

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Voting is an American principle and a basic democratic right that should be protected, promoted, and practiced, which is why many people are surprised to learn that the U.S. Constitution provides no explicit right to vote. This leaves voting rights vulnerable to the whims of politicians, and some citizens with fewer rights than others.

More than a decade ago, FairVote became the leading institutional voice calling for the establishment of an explicit individual right to vote in the U.S. Constitution. We believe that a grassroots movement to establish such an amendment would go a long way in ending the "voting wars" that plague us today. FairVote continues to serve as a trusted resource in support of activists, organizations, and elected officials working toward a right to vote amendment. Through our Promote Our Vote project, we work to build widespread support for a right to vote amendment, while advocating for pro-suffrage innovations at the local level.

Why We Need a Right to Vote Amendment

Even as the rising American electorate gains momentum, new regressive laws, rulings, and maneuvers are threatening voting rights without facing the strict scrutiny that would come with an affirmative right to vote in the Constitution.

In 2013, the Supreme Court struck down Section 4 of the Voting Rights Act (VRA), stripping the Justice Department of the powers it had for five decades to curb racial discrimination in voting. The Election Assistance Commission was left without commissioners for years and frequently faces bills in Congress that would end its existence entirely. Many schools skip civics education, contributing to the decline in voter turnout in local and primary elections.

Enshrining an explicit right to vote in the Constitution would guarantee the voting rights of every citizen of voting age, ensure that every vote is counted correctly, and defend against attempts to effectively disenfranchise eligible voters. It would empower Congress to enact minimum electoral standards to guarantee a higher degree of legitimacy, inclusivity, and consistency across the nation, and give our courts the authority to keep politicians in check when they try to game the vote for partisan reasons.

The Constitution has been amended 27 times. Excluding the Bill of Rights, 7 of the last 17 constitutional amendments have dealt directly with expanding the franchise and improving the way citizens vote.

Contrary to popular belief, there is not an affirmative right to vote in the U.S. Constitution

While the U.S. Constitution bans the restriction of voting based on race, sex and age, it does not explicitly and affirmatively state that all U.S. citizens have a right to vote. The Supreme Court ruled in Bush v. Gore in 2000 that citizens do not have the right to vote for electors for president. States control voting policies and procedures, and as a result, we have a patchwork of inconsistent voting rules run independently by 50 states, 3,067 counties and over 13,000 voting districts, all separate and unequal.

Millions of Americans are permanently barred from voting

Approximately 5 million Americans convicted of felonies who have already completed their sentences are permanently disenfranchised. Fourteen states do not have an automatic restoration process in place for returning citizens who have completed their sentences. Some states like Florida leave re-enfranchisement decisions to the discretion of public officials, discretion which could be exercised arbitrarily or used for political gain.

However, it is not only ex-felons who face difficulty registering to vote. Americans living overseas have trouble registering in their home district, because their state may not consider them residents anymore. Many college students attempting to register at their college precinct have faced voter intimidation or were simply refused the ability to register to vote. Such obstacles are not only arbitrary, but in many cases politically motivated.

The Right to Vote Amendment will guarantee all American citizens at least 18 years of age a constitutionally protected individual right to vote. Much like the rights to speech and religion, a constitutionally protected right to vote will be difficult to limit without showing a strong need for the limitation to exist.

State authority over voting creates unnecessary voting difficulties

Voting should be a simple process in which any registered citizen can easily participate. However, this is not always the case. Voter identification and registration requirements, as well as the machines that voters use, vary widely between states. States and counties design their own ballots, pursue their own voter education, and have near-complete authority over their state voting policies and procedures. With over 10,000 different jurisdictions, voters and potential voters are much more likely to cast a counted vote in some states, some counties, and some areas of the country than others, simply based on the difference in standards for each election. Elections in many states are rife with lost and incorrectly counted votes, and many voters are incorrectly told that they cannot cast a ballot.

Since voting is regulated by the states, there is little the national government can do if voters are intimidated or harassed at the polling booth. With the Supreme Court's 2013 decision to strike down section 4 of the Voting Rights Act, and Congress's unwillingness to act to restore key components of the Act, a Right to Vote Amendment is needed to further enforce voting rights.

Congress is powerless to set national standards

At present, Congress can take no action to formally help improve voting standards across the nation. While the Help America Vote Act (HAVA) of 2002, which passed in response to the voting fiasco of the 2000 presidential elections, does establish some standards including a provisional ballot, states are not required to follow these policies. The only way to ensure that every vote is counted and that electors follow the will of the people of their state is to create a constitutionally protected right to vote. The Right to Vote Amendment will give Congress the authority to protect the individual right to vote and oversee voting policies and procedures to ensure that elections are fair, accurate and efficient.

The Bill: House Joint Resolution 74

U.S. House Members Mark Pocan, among a number of other co-sponsors, has shown great leadership in introducing House Joint Resolution 74 (H.J. Res. 74), a bill that would establish an explicit right to vote in the Constitution. Read FairVote's policy brief on the right to vote amendment. See the text of the bill below:

SECTION 1. Every citizen of the United States, who is of legal voting age, shall have the fundamental right to vote in any public election held in the jurisdiction in which the citizen resides.

SECTION 2. Congress shall have the power to enforce and implement this article by appropriate legislation.

Right to Vote Resources

Links

RightToVoteAmendment.com - FairVote's resource hub on the Right to Vote Amendment

PromoteOurVote.com - FairVote's project to advance suffrage and civic engagement in communities in the spirit of a constitutionally guaranteed right to vote

FairVote Policy Brief on the Right to Vote Amendment

Publications

Right to Vote, by Jamie Raskin (The American Prospect, August 2001)

Speeches

Reverend Jesse Jackson addresses the NAACP Convention in Philadelphia, PA July 14, 2004

Congressman Jesse Jackson Jr. presents a position paper at FairVote's "Claim Democracy" conference, November 2003.

Robert Richie, Executive Director, FairVote at the Right to Vote Forum in Boston, MA on July 26th, 2004

Kim Gandy, President, National Organization of Women at the Right to Vote Forum in Boston, MA on July 26th, 2004

Jesse Jackson Jr., Congressman (D-IL) at the Right to Vote Forum in Boston, MA on July 26th, 2004

Academic Papers

Election Reform and the Right to Vote, by Anita S. Earls, Director of Advocacy, UNC Center For Civil Rights, explains the limits of HAVA and what Congress can do to establish a right to vote.

Reports

History of the Right to Vote

Throughout the history of the United States, voting rights have been expanded repeatedly by Constitutional Amendments and legislation. When the Constitution was written, most of the Framers did not believe in universal suffrage. However, as we have progressed as a society, traditionally disenfranchised groups, including women and racial minorities, have received voting rights through Constitutional Amendments. Of the 17 Amendments ratified since the Bill of Rights in 1791, seven have expanded voter eligibility or increased democratic participation. Enshrining an affirmative Right to Vote in the Constitution would be one more step toward universal suffrage and equal voting rights for all.
The History of Voting Rights (PDF)
FairVote's "Promote Our Vote" Project

At the local level, FairVote rallies support for a constitutional right to vote through its Promote Our Vote Project, a pilot program most active in Maryland. Its unique change platform works in partnerships to advance resolutions at the organizational, campus, and local level in support of an explicit right to vote in the U.S. Constitution, and concrete changes in practices and policy to ensure fair and equitable voting rights. The program's leadership consists of two dozen voting rights experts and advocates.

Maryland Resolutions

Based in Maryland, FairVote's Promote Our Vote Project has worked with local elected officials to build support for city and county right to vote resolutions.

Montgomery County, Prince George's County, and the City of Takoma Park have each passed resolutions calling for an explicit right to vote in the constitution and other national voting rights policy changes, such as the passage of the Voting Rights Amendment Act.

These localities have a collective population of approximately two million residents.

Montgomery County and Takoma Park resolutions paved the way for right to vote task forces to make policy recommendations and produce reports for recent municipal elections.

Additional Maryland cities are considering concrete policy ideas focused on increasing civic engagement and voter turnout.

Florida Resolutions

FairVote's Promote Our Vote Project provides services to partners in Florida as they advance right to vote resolutions across the state.

The University of Florida and Palm Beach State College passed right to vote resolutions through their student governments.

These universities have a combined enrollment of over 70,000 students.

These resolutions supported a national and state right to vote. They also sought practices and policies that improve the voting process for students.

FairVote's Promote Our Vote Project worked with Florida New Majority to introduce and successfully pass a right to vote resolution in North Miami.
I have never had a problem voting. Don't we already have a right to vote?
American adults living in states typically can vote, but they do not have a federally protected right to vote enshrined in the Constitution. States protect the right to vote to different degrees based on the state's constitutional language and statutes. The federal government traditionally only steps in to prevent certain broad abuses, such as denying the right to vote based on race (15th Amendment), sex (19th Amendment), or age (26th Amendment).

In most states, counties design their own ballots, pursue their own voter education, have their own policies for handling overseas ballots, hire and train their own poll workers, select polling place locations, and maintain their own voter registration lists. States have wide leeway in determining policies on absentee voting, polling hours and funding of elections. As a result, voters and potential voters have different experiences going through the registration and voting process depending on where they live. These differences can be even more pronounced in some local elections because of varying degrees of federal and state support.

States also currently have the power to explicitly limit the franchise. Current data shows states have chosen to deny nearly six million American citizens the right to vote because of felony convictions, including millions who have completely paid their debt to society. Some states even deny certain classes of overseas voters the right to vote.

Don't citizens have a right to vote in presidential elections?

Not necessarily. Article II of the Constitution reads in part: "Each state shall appoint, such manner as the legislature thereof may direct, a number of electors..." In other words, it is the state legislature and not the citizens of a particular state that determine which presidential candidate receives that state's electoral votes. In the early decades of the country, several state legislatures actually appointed electors to the Electoral College, rather than hold popular elections in their state. In the 2000 Bush v. Gore decision, five justices declared, "The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College." The Court went on to say that Florida's legislature has the power to take that power away from the people at any time, regardless of the popular vote tally.

In addition, it took a constitutional amendment in 1961 to enable residents of Washington, D.C. to vote for president. But the millions of American citizens living in territories like Puerto Rico, the Virgin Islands, and Guam still cannot vote for president.
What administrative problems do we have with voting in the United States and how will a constitutional amendment help?
Without national standards, states are free to create their own voting policies and procedures, which can limit or restrict a citizen's ability to vote. Only clear standards will ensure that every vote counts. States would be held accountable for running fair elections, and the federal government would be responsible for ensuring that funds were available to meet those high standards.

According to a study of the 2008 presidential election produced by the Cooperative Congressional Election Survey, led by the Massachusetts Institute of Technology, 2-4 million registered voters were "discouraged" from voting because of administrative hassles, such as long lines, voter identification, and problems obtaining an absentee ballot. The same study reports an estimated 9 million eligible people attempted to register but failed due to voter registration barriers like missed deadlines and changes of residence. A Constitutional Right to Vote will give Congress broad discretion in setting standards to ensure greater equality in election administration.
What groups of Americans would be protected by a right to vote amendment?
Legislation to establish a right to vote states that all American citizens who are of voting age have an individual right to vote "in any public election held in the jurisdiction in which the citizen resides." The federal government would protect this individual right to vote, thus making it more difficult for states or localities to disenfranchise groups or maintain procedures that make it unnecessarily difficult for citizens to vote. It would enfranchise all those who had been stripped of the right to vote due to a felony conviction and would pave the way for voters in Washington, D.C. to vote for a federal representative and Senators. In general, it would create more ways for individuals to ensure that their county and state use procedures that give citizens' the ability to vote.
Will citizens in the territories (Puerto Rico, Virgin Islands and Guam) be able to vote for president?
At present, residents of Puerto Rico, the Virgin Islands, and Guam are all citizens of the U.S. They pay taxes and can be drafted into the military, but do not vote for president. While this amendment would not specifically give citizens of the territories the right to vote automatically, it does open the doorway for them to gain the ability to vote for president.
What about American Samoa?
Residents of American Samoa are not actually American citizens; they are nationals. Current legislation to establish a right to vote specifies that only American citizens would have a right to vote, so nationals would not be included.
Will non-citizens and 16-year-olds be able to vote?
Under this amendment the decision about expanding the franchise to non-citizens and 16- and 17-year-olds would remain within states' jurisdiction.
Does the amendment get rid of the Electoral College?
The amendment does not specifically comment on the Electoral College. However, by declaring that every U.S. citizen has a constitutional right to vote, it does lay the groundwork for an argument against the Electoral College. But if the Electoral College remains, the amendment would bind state legislatures to appoint presidential electors based on the popular vote of the people.
How is this amendment different from the Help America Vote Act (HAVA)?
The Help America Vote Act of 2002 was a statute passed in response to the Florida election debacle and the systemic voting irregularities seen across the country after the 2000 presidential election. This act establishes some helpful standards. For example, it includes section on provisional ballots that allows a person to cast a vote if the person believes he or she is registered but does not appear on the voter register of that precinct. However, HAVA falls short because it does not set guidelines for how those provisional ballots should be counted.

Furthermore, the Act does nothing for the millions of Americans who are permanently disenfranchised in a dozen states because they are ex-felons. It does not prevent states from wrongly purging voters or engaging in other activities that limit the franchise. Fundamentally, it does not grant a right to vote. States still have the authority to direct electors to vote for a candidate of the legislature's choice. A constitutionally protected right to vote is the only means to ensure that every American will be protected.
Does the amendment guarantee statehood for Washington, DC?
The Right to Vote Amendment does not specifically call for statehood for Washington, D.C. and its half million residents. However, the amendment does guarantee that all Americans who reside in our nation's capital have a constitutionally protected individual right to vote, which could lead the way to full representation in Congress.
Is the right to vote a partisan issue?
No. The Supreme Court and many of our leaders from across the spectrum have affirmed the importance of the right to vote. Some may mistakenly believe that the amendment takes authority away from the states and moves it to the federal level, but in fact the amendment only ensures states meet certain clear standards in how they protect the right to vote. By ensuring that every American has an individual right to vote that is protected by the Constitution, this amendment establishes voting as an individual right, not just a privilege given by the states.

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Voting is an American principle and a basic democratic right that should be protected, promoted, and practiced, which is why many people are surprised to learn that the U.S. Constitution provides no explicit right to vote. This leaves voting rights vulnerable to the whims of politicians, and some citizens with fewer rights than others.

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The Constitution Art 1.2 and voting rights

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The Constitution Art 1.2 and voting rights

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How should the Constitution apply to a country that is very different from the one in which the Framers lived? It is among the most vexing and persistent questions in American constitutional law, as ongoing controversies over Article I, Section 2 exemplify.

Back in 1787, the United States was much smaller and predominantly agrarian. The norm was that only white, male landowners could vote in state legislative elections-and therefore in U.S. House elections under Article I, Section 2. After the Civil War, African Americans were finally recognized as equal citizens through the enactment of the Fourteenth and Fifteenth Amendments, yet their civil and political rights were brutally suppressed for almost another century. Women too were denied equal citizenship for most of our history, only winning the right to vote when the Nineteenth Amendment was added to the Constitution in 1920.

Expansion of the franchise is not the only respect in which our democracy has changed since the original Constitution. There has also been a major shift in responsibility over the enforcement of civil and political rights, away from the states and toward the federal government. The Fourteenth, Fifteenth, and Nineteenth Amendments all gave Congress authority to enforce the new rights they conferred. Congress has exercised its authority on numerous occasions, none more important than the Voting Rights Act of 1965, which made the right to vote a reality for southern blacks who had long been excluded from democratic politics.

The federal courts have played a critical role in fostering a more inclusive democracy as well. In the 1960s, the Supreme Court articulated the "one person, one vote" principle in cases like Wesberry v. Sanders (1964) and Reynolds v. Sims (1964). It also struck down the poll tax in Harper v. Virginia Board of Elections (1966), based on the principle that the right to vote should not depend on one's wealth or poverty. Other barriers to equal participation and representation were invalidated under the Voting Rights Act. We now take it for granted that race, sex, and economic means are not proper bases for denying or diminishing the vote.

With the renewed focus on voting rights in this century, new questions regarding the meaning and import of Article I, Section 2 have arisen. Two recent developments illuminate the challenge of applying the Constitution to a world that is very different from the one in which the Framers lived. Both concern the relationship between Article I, Section 2 and another provision of the Constitution. Both arise from the rapidly increasing Latino population, particularly in the U.S. southwest. And both raise questions that the Supreme Court has yet to resolve conclusively.

The first concerns state restrictions on who may register to vote, which many states have adopted over the past decade. One such state is Arizona, a state with a growing Latino population that adopted a law mandating documentary proof of citizenship to register. This state law conflicts with the National Voter Registration Act (NVRA), under which states must "accept and use" a federal registration form that does not require documentation of citizenship. Arizona argued that this federal requirement was impermissible under Article I, Section 2, because it allows states to determine the qualifications for voting in congressional elections.

This essay is part of a discussion about Article 2, Section 1 with Bradley A. Smith, Josiah H. Blackmore II/Shirley M. Nault Professor of Law, Capital University Law School. Read the full discussion here.

The Supreme Court rightly rejected this argument in Arizona v. Inter Tribal Council of Arizona (2013). Justice Scalia's opinion for the majority surveyed the history of Article I, agreeing that it allows states to set voting qualifications, but holding that Congress has broad power to regulate the manner of conducting congressional elections. Through the NVRA, Congress properly exercised this authority. Although it would raise constitutional doubts for Congress to prevent states from enforcing their voting qualifications, the NVRA imposed no such impediment.

While correctly decided, Arizona v. Inter Tribal Council is surely not the last word on the uneasy relationship between a state's power to set qualifications and Congress's power to regulate congressional election procedures. Arizona and other states have challenged the federal government's refusal to approve new proof-of-citizenship requirements on the federal registration form. New questions could arise if Congress were to adopt new rules regulating congressional elections, such as a uniform voter identification requirement preempting more stringent state laws.

The other recent controversy implicating Article I, Section 2 concerns the drawing of state legislative districts. For more than a half-century, the "one person, one vote" rule has required that districts be drawn on an equal population basis. Article I, Section 2 is the textual source of this requirement for congressional elections, while the Equal Protection Clause is its textual source for state legislative elections. Disagreement persists over exactly who should count in assessing whether the requisite population equality exists.

The question of who counts for state legislative redistricting was raised but not fully resolved in Evenwel v. Abbott (2016). Like every other state, Texas uses total population-including children, non-citizens, and others who are ineligible to vote-to draw its districts. The plaintiffs in Evenwel argued that the Fourteenth Amendment required Texas to equalize eligible voters among districts. The case thus raised the question whether "one person, one vote" is a principle of representational equality or voting equality.

The Supreme Court unanimously rejected the challenge to Texas's districting argument, holding that the state was entitled to equalize total population and not eligible voters. The result was not surprising, given the uniform practice of the states. Justice Ginsburg's opinion for the Court relied on the language and history of Article I, Section 2, which requires that representatives be apportioned among states "according to their respective Numbers." That includes people who are not eligible to vote. Section 2 of the Fourteenth Amendment retained this requirement, while abolishing the three-fifths clause. "It cannot be," Justice Ginsburg reasoned, "that the Fourteenth Amendment calls for the apportionment of congressional districts based on total population, but simultaneously prohibits States from apportioning their own legislative districts on the same basis."

The question Evenwel leaves open is whether states are required to equalize total population when drawing state legislative districts-or, alternatively, whether they may leave out non-voters like children, non-citizens, and prisoners. Evenwel holds that states may equalize total population, but does not decide whether they must do so. The issue could arise after the 2020 Census, if Texas or some other state decides to use eligible voters instead of total population to draw its districts. Such a decision would have the effect of weakening the voting strength of Latino communities, which tend to include more people (such as children and non-citizens) who may not vote. Evenwel suggests that "the theory of the Constitution" is that everyone should count but, again, does not definitively resolve this question.

The Arizona and Texas cases reveal the continuing importance of Article I, Section 2 to recent and ongoing controversies over the right to vote. Courts interpreting this provision should be guided by a clear-eyed recognition of how our law and society have developed since the Founding. That includes our greater inclusivity of our democracy, as well as the centrality of federal law in enforcing the right to vote. This isn't to say that the original meaning and the intent of the Constitution are irrelevant. To the contrary, they are critical touchstones, as the opinions in Arizona v. Inter Tribal Council and Evenwel demonstrate. But to paraphrase Justice Felix Frankfurter, the gloss that our constitutional history has written upon words of the Constitution should also inform their interpretation. That gloss includes the expansion of the right to vote and Congress's central role in protecting it.

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How should the Constitution apply to a country that is very different from the one in which the Framers lived? It is among the most vexing and persistent questions in American constitutional law, as ongoing controversies over Article I, Section 2 exemplify. Back in 1787, the United States was much smaller and predominantly agrarian.

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Voting Rights Laws and Constitutional Amendments
U.S. election laws date back to Article 1 of the Constitution. This gave states the responsibility of overseeing federal elections. Many Constitutional amendments and federal laws to protect voting rights have been passed since then.

Constitutional Amendments Affecting Voting Rights

The 24th Amendment, ratified in 1964, eliminated poll taxes. The tax had been used in some states to keep African Americans from voting in federal elections.

The 26th Amendment, ratified in 1971, lowered the voting age for all elections to 18.

Federal Voting Rights Laws

Federal laws passed over the years help protect Americans' right to vote and make it easier for citizens to exercise that right:

State Voter ID Laws

Two-thirds of states require you to show some form of identification before you're allowed to vote. Learn more about states' voter ID requirements.

Voter Fraud, Voter Suppression, and Other Election Crimes
Learn where to report voter fraud and voting rights violations that you witness or suspect.

What are federal election crimes?

Federal election crimes fall into three broad categories:

Many states have strengthened their voter ID requirements to try to stop voter fraud.

Is it illegal for someone to ask me who I voted for? Is it illegal for me to tell?

You have the right to cast your vote in private. It's up to you whether you want to share your choices with others.

There's no law preventing someone from asking you who you voted for.

How do I report voter fraud or voter suppression?

If you suspect voter fraud, report it to your state or territorial election office. You can also report it to:

If you witness or suspect voter intimidation or suppression, there are three ways you can report it:

Is Voting Mandatory in the United States?
In the U.S., no one is required by law to vote in any local, state, or presidential election. According to the U.S. Constitution, voting is a right. Many constitutional amendments have been ratified since the first election. However, none of them made voting mandatory for U.S. citizens.

Voter Accessibility Laws
Voter accessibility laws ensure that people with disabilities or language barriers are able to vote.

If you know you'll need accommodations on Election Day, contact your state or local election office to find out what to expect at your polling place.

Laws and Accommodations That Help Voters With Disabilities

Several federal laws protect the voting rights of Americans with disabilities. These include the Americans with Disabilities Act (ADA) and the Help America Vote Act (HAVA).

Voters with disabilities have the right to:

Polling places must have:

Wheelchair-accessible voting booths

Entrances and doorways at least 32 inches wide

Handrails on all stairs

Voting equipment for people who are blind or visually impaired

If you have a disability, you may:

You can also ask your election office what other options you have.

Some states offer "curbside voting," when a poll worker brings everything you need to vote to your car.

Local organizations may provide transportation to the polls.

Many states let people with disabilities vote by mail.

Accommodations That Help Voters Who Need Language Assistance

The Election Assistance Commission (EAC) helps people overcome language barriers to voting.

Federal law also lets you bring someone to help you if you can't read or write.

Federal Campaign Finance Laws
Federal law puts limits on campaign contributions to candidates for president and Congress. It requires the candidates to report all the money their campaigns receive and spend.

How Much Can You Contribute to a Candidate for Federal Office?

Most individuals can donate up to $2,900 per election, per candidate during the 2021-2022 elections. That means you can donate up to $2,900 each to:

Learn which organizations and individuals are not allowed to donate to federal candidates.

Financial Reporting Requirements for Candidates in Federal Elections

The Federal Election Campaign Act requires candidates to report:

The law applies to candidates for president as well as for the U.S. Senate and the U.S. House of Representatives.

The Federal Election Commission's Role in Campaign Finance Law

The Federal Election Commission (FEC) oversees enforcement of the Federal Election Campaign Act. The FEC:

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Voting Rights Laws and Constitutional Amendments U.S. election laws date back to Article 1 of the Constitution. This gave states the responsibility of overseeing federal elections. Many Constitutional amendments and federal laws to protect voting rights have been passed since then. The 24th Amendment, ratified in 1964, eliminated poll taxes.

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definitions, explanations and links to resources

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Create a new document and edit with others at the same time -- from your computer, phone or tablet. Get stuff done with or without an internet connection. Use Docs to edit Word files. Free from Google.

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subscribe to The NPR Politics Podcast podcast

Take a glance at the checkered map above, and it's clear that many states have moved in opposite directions in enacting new voting measures this year.

Those changes - which come after the pandemic upended election administration in 2020, a year that witnessed record turnout - have fallen mostly along partisan lines, with Republican-led states like Arizona passing new restrictive voting laws, while Democratic states such as Illinois have increased voters' ballot access.

The classifications on the map are from the Voting Rights Lab, which advocates for expanded voting access. The group determined whether each state's new provisions cumulatively expand or restrict access, or have a mixed outcome for voters.

"What we are witnessing in real time across the country is a widening divide," the lab said in a June report, "whereby some states are working to strengthen and expand participation in our democracy just as a significant number of states work to curtail it."

Dozens of states have enacted more than 200 new laws related to elections and voting, according to the organization.

Following former President Donald Trump's baseless fraud claims and efforts to overturn the 2020 election, GOP-led states that have curtailed ballot access or made changes to election administration - like Arizona, Florida and Georgia - have drawn most of the attention from federal lawmakers, voting advocates and the courts. Texas has just added its name to the list.

But overall the Voting Rights Lab says more states have passed into law measures that expand access.

On Capitol Hill, Republicans have blocked Democratic attempts to pass sweeping federal legislation that would set new election standards nationwide.

Below is a list of the states that the Voting Rights Lab says have passed laws that either mostly restrict or expand access.

Keep in mind: Some places, like Nevada, which will now send ballots to all eligible voters, have enacted significant changes; other state reforms are more modest.

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Map: See Which States Have Restricted Voter Access, And Which States Have Expanded It

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subscribe to The NPR Politics Podcast podcast Take a glance at the checkered map above, and it's clear that many states have moved in opposite directions in enacting new voting measures this year.

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The Voting Rights Act of 1965 is a landmark piece of federal legislation in the United States that prohibits racial discrimination in voting.[7][8] It was signed into law by President Lyndon B. Johnson during the height of the civil rights movement on August 6, 1965, and Congress later amended the Act five times to expand its protections.[7] Designed to enforce the voting rights protected by the Fourteenth and Fifteenth Amendments to the United States Constitution, the Act sought to secure the right to vote for racial minorities throughout the country, especially in the South. According to the U.S. Department of Justice, the Act is considered to be the most effective piece of federal civil rights legislation ever enacted in the country.[9] The National Archives and Records Administration stated: “The Voting Rights Act of 1965 was the most significant statutory change in the relationship between the federal and state governments in the area of voting since the Reconstruction period following the Civil War”.[10]

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limiting the Voting Rights Act

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Petitioner

Shelby County, Alabama

Respondent

Eric Holder, Jr. Attorney General

Lower court

United States Court of Appeals for the District of Columbia Circuit

Facts of the case

The Fourteenth Amendment protects every person's right to due process of law. The Fifteenth Amendment protects citizens from having their right to vote abridged or denied due to "race, color, or previous condition of servitude." The Tenth Amendment reserves all rights not granted to the federal government to the individual states. Article Four of the Constitution guarantees the right of self-government for each state.

The Voting Rights Act of 1965 was enacted as a response to the nearly century-long history of voting discrimination. Section 5 prohibits eligible districts from enacting changes to their election laws and procedures without gaining official authorization. Section 4(b) defines the eligible districts as ones that had a voting test in place as of November 1, 1964 and less than 50% turnout for the 1964 presidential election. Such districts must prove to the Attorney General or a three-judge panel of a Washington, D.C. district court that the change "neither has the purpose nor will have the effect" of negatively impacting any individual's right to vote based on race or minority status. Section 5 was originally enacted for five years, but has been continually renewed since that time.

Shelby County, Alabama, filed suit in district court and sought both a declaratory judgment that Section 5 and Section 4(b) are unconstitutional and a permanent injunction against their enforcement. The district court upheld the constitutionality of the Sections and granted summary judgment for the Attorney General. The U.S. Court of Appeals for the District of Columbia Circuit held that Congress did not exceed its powers by reauthorizing Section 5 and that Section 4(b) is still relevant to the issue of voting discrimination.

Question

Does the renewal of Section 5 of the Voter Rights Act under the constraints of Section 4(b) exceed Congress' authority under the Fourteenth and Fifteenth Amendments, and therefore violate the Tenth Amendment and Article Four of the Constitution?

Conclusion

Yes, Section 4 of the Voting Rights Act is unconstitutional. Chief Justice John G. Roberts, Jr. delivered the opinion of the 5-4 majority. The Court held that Section 4 of the Voting Rights Act imposes current burdens that are no longer responsive to the current conditions in the voting districts in question. Although the constraints this section places on specific states made sense in the 1960s and 1970s, they do not any longer and now represent an unconstitutional violation of the power to regulate elections that the Constitution reserves for the states. The Court also held that the formula for determining whether changes to a state's voting procedure should be federally reviewed is now outdated and does not reflect the changes that have occurred in the last 50 years in narrowing the voting turnout gap in the states in question.

In his concurring opinion, Justice Clarence Thomas argued that Section 5 of the Voting Rights Act is unconstitutional in addition to Section 4. He wrote that the blatant discrimination against certain voters that Section 5 was intended to prohibit is no longer evident. Without such extraordinary circumstances, Congress cannot constitutionally justify placing the burden of Section 5 on the states in question.

Justice Ruth Bader Ginsburg wrote a dissent in which she argued that Congress' power to enforce the Fourteenth and Fifteenth Amendments encompasses legislative action such as the Voting Rights Act. The legislative history and text of the Amendments as well as previous judicial precedent support Congress' authority to enact legislation that specifically targets potential state abuses. However, Congress does not have unlimited authority but must show that the means taken rationally advance a legitimate objective, as is the case with the Voting Rights Act. The evidence Congress gathered to determine whether to renew the Voting Rights Act sufficiently proved that there was still a current need to justify the burdens placed on the states in question. She also argued that, by holding Section 4 unconstitutional, the majority's opinion makes it impossible to effectively enforce Section 5. Justice Stephen G. Breyer, Justice Sonia Sotomayor, and Justice Elena Kagan joined in the dissent.

"Shelby County v. Holder." Oyez, www.oyez.org/cases/2012/12-96. Accessed 11 Nov. 2021.

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Shelby County, Alabama Eric Holder, Jr. Attorney General United States Court of Appeals for the District of Columbia Circuit The Fourteenth Amendment protects every person's right to due process of law. The Fifteenth Amendment protects citizens from having their right to vote abridged or denied due to "race, color, or previous condition of servitude."

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A brief summary of Supreme Court cases

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Judicial Activism vs. judicial restraint

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Judicial Activism vs. judicial restraint

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- What we're gonna do in this video is talk about the terms judicial activism and judicial restraint. In many videos, we have talked about how the judicial branch, one of its main powers, is to be a check on the executive and legislative branch, that it can exercise judicial review over them. It can say that a legislative action, that a law, that a statute is unconstitutional. It can say that an executive action, say a rule or regulation or an executive order, is unconstitutional, but as it's doing that, as it's exercising its judicial review, how does it go about doing that? And this term judicial activism was first introduced by Arthur Schlesinger, who we've talked about in other videos, and it's meant to imply a judiciary that is not strictly just ruling based on maybe what the Constitution says but also their own personal ideas. So personal views. It sometimes has an implication that the judges are overreaching in some way. Some people might say, and this would be a little bit of a negative, "legislating from the bench." Legislating from the bench, and you'll often hear is that, "Hey, that judge or that court is legislating "from the bench," from the people who don't like their ruling. They're saying, "Hey, they're not strictly looking "at the law. "They're trying to make their own laws "through their rulings." Now some would say that it's necessary for the judicial to do this because they are interpreting the Constitution in the world as it is, and the world that we are in changes over time. So it is really a form of positive activism, that they are defending liberties, that they are defending rights, especially in the social context that we're in. I'll leave you to decide whether you think this is a good idea or not. Now judicial restraint is the opposite of it. This is a situation where the judges or the courts limit their power, so limit their own power, their own power, where they say, "Hey, look, our job is to just be the umpire or the referee. "Our job is not to make new rules, "and so we are just going to strictly think "about whether something is constitutional "or whether it is not," and one of the most seminal cases on judicial activism versus judicial restraint happened in the early 1960s, and that is the case of Baker versus Carr, and so what happens is is that Baker is a resident of Shelby County, Tennessee. He was actually of the former mayor of a town outside of Memphis, which is in this area right over here, and he says that, "Look, the state is not reapportioning "its legislative districts the way it should be," that in general every 10 years there is a census, and based on that, we have been understanding of where the population sits, and then the state should be reapportioning districts based on population, but what Baker argued is is that the state of Tennessee actually did not redistrict since 1901, after the census of 1900, and it was now the early 1960s, and he says because of that, and he invoked the 14th amendment, you weren't getting equal protection, that people in his county that had gotten increasingly urban and had gotten increasingly dense over the course of those 60 years, that they were getting the same representation despite having a larger population than some of the rural areas where they have a lower population and had the same number of representatives, and so he takes this case against the Secretary of State of Tennessee at the time, who was Carr, and it eventually gets to the Supreme Court, and the essential question in Baker versus Carr is whether the courts even have jurisdiction over legislative districting because the districting was a power of the state legislature in Tennessee, and in this case, the United States Supreme Court actually did vote in favor of Baker. So not only did they say that Baker was right in asking for this redistricting, it had huge implications in saying that, yes, courts, like the United States Supreme Court, do have jurisdiction over something that was officially a legislative duty, telling the legislative that, "Look, you've got to do this 'cause "by not doing this action, "by exercising your discretion there, "you might not be allowing everyone to have "equal protection." Many have argued, including the two dissenters to the opinion that this was a form of judicial activism. It increased the power of the judiciary, and to appreciate the view of the United States Supreme Court that they do have jurisdiction over legislative districting, here is part of Associate Justice Douglas's concurring opinion. "Where the performance of a duty is left to the discretion "and good judgment of an executive officer, "the judiciary will not compel the exercise "of his discretion one way or the other... "for to do so would be to take over the office...." So he's saying, look, when it is someone's job where there's an executive officer to do this duty, then the courts should not have jurisdiction there, but then he goes on to write, "There is no doubt that the federal courts have jurisdiction "of controversies concerning voting rights. "The Civil Rights Act gives them authority "to redress the deprivation under color of any state law "of any right, privilege or immunity secured "by the Constitution of the United States "or by any Act of Congress providing "for equal rights of citizens...." Really saying that, look, if the court can see that some right is being violated, some right is described in any under the state law, under the United States Constitution, then the courts do have jurisdiction. "The right to vote in both federal "and state elections was protected "by the judiciary long before that right received "the explicit protection it is now accorded." So he's saying, look, even before the Civil Rights Act, even before the 14th amendment, that this was something that was part of the charter of the judiciary, part of the federal court system, and so it does lean in favor of judicial activism because you can imagine courts, and they have cited Baker versus Carr since the 1960s repeatedly as reason, saying, hey look, we're trying to protect people's rights, and people have a right to do X, Y, or Z, even if it hasn't been explicitly legislated. Now there were two dissenters, and this is what the dissenters wrote. "The courts authority--possessed of neither of the purse "nor the sword..." So here, the purse, that's the legislative branch that can think about budgets or the sword, that's the executive branch. The president's the commander in chief. "Ultimately rests on sustained public confidence "in its moral sanction." Let me underline that. "On sustained public confidence in its moral sanction. "Such feeling must be nourished "by the Court's complete detachment, "in fact and in appearance, "from political entanglement and by abstention "from injecting itself into the clash "of political forces in political settlements." So here, Associate Justice Frankfurter, in his dissenting opinion, is saying, look, we should stay out of this, that not only is it not our part to rule here, to say that, hey look, the legislative needs to do this redistricting again. He's saying that it actually undermines the credibility of the court, that the credibility "ultimately rests on sustained public confidence "in its moral sanction," and that by ruling in favor of Baker the court was overstepping of these bounds, that people would say, hey, you're starting to legislate from the bench. You're trying to get involved in the political, even though the court is supposed to stay above the fray of the political, or another way to think about this is that Associate Justice Frankfurter subscribed to the idea of judicial restraint and felt that the other six justices that were voting in favor of Baker were practicing to some degree judicial activism. They were getting into the territory of the other branches of government.

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Judicial activism and judicial restraint (video) | Khan Academy

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What we're gonna do in this video is talk about the terms judicial activism and judicial restraint. In many videos, we have talked about how the judicial branch, one of its main powers, is to be a check on the executive and legislative branch, that it can exercise judicial review over them.

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Great site for how the courts have interpreted presidential powers

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Great site for how the courts have interpreted presidential powers

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Presidential Powers under the U. S. Constitution

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The delegates to the Constitutional Convention of 1787 gave surprisingly little attention to the executive branch of government. In contrast to the protracted debates over the powers of Congress, the powers of the president were defined fairly quickly and without much discussion.

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Great constitutional overview with specific current and historical examples

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Great constitutional overview with specific current and historical examples

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Introduction

The U.S. Constitution parcels out foreign relations powers to both the executive and legislative branches. It grants some powers, like command of the military, exclusively to the president and others, like the regulation of foreign commerce, to Congress, while still others it divides among the two or simply does not assign.

The separation of powers has spawned a great deal of debate over the roles of the president and Congress in foreign affairs, as well as over the limits on their respective authorities. "The Constitution, considered only for its affirmative grants of power capable of affecting the issue, is an invitation to struggle for the privilege of directing American foreign policy," wrote constitutional scholar Edward S. Corwin in 1958.

Foreign policy experts say that presidents have accumulated power at the expense of Congress in recent years as part of a pattern in which, during times of war or national emergency, the executive branch tends to eclipse the legislature.

Friction by Design

The periodic tug-of-war between the president and Congress over foreign policy is not a by-product of the Constitution, but rather, one of its core aims. The drafters distributed political power and imposed checks and balances to ward off monarchical tyranny embodied by Britain's King George III. They also sought to remedy the failings of the Articles of Confederation, the national charter adopted in 1777, which many regarded as a form of legislative tyranny. "If there is a principle in our Constitution, indeed in any free Constitution, more sacred than any other, it is that which separates the legislative, executive, and judicial powers," wrote James Madison, U.S. representative from Virginia, in the Federalist papers.

Many scholars say there is much friction over foreign affairs because the Constitution is especially obscure in this area. There is not the intrinsic division of labor between the two political branches that there is with domestic affairs, they say. And because the judiciary, the third branch, has generally been reluctant to provide much clarity on these questions, constitutional scuffles over foreign policy are likely to endure.

Powers of Congress

Article I of the Constitution enumerates several of Congress's foreign affairs powers, including those to "regulate commerce with foreign nations," "declare war," "raise and support armies," "provide and maintain a navy," and "make rules for the government and regulation of the land and naval forces." The Constitution also makes two of the president's foreign affairs powers-making treaties and appointing diplomats-dependent on Senate approval.

Beyond these, Congress has general powers-to "lay and collect taxes," to draw money from the Treasury, and to "make all laws which shall be necessary and proper"-that, collectively, allow legislators to influence nearly all manner of foreign policy issues. For example, the 114th Congress (2015-2017) passed laws on topics ranging from electronic surveillance to North Korea sanctions to border security to wildlife trafficking. In one noteworthy instance, lawmakers overrode President Barack Obama's veto to enact a law allowing victims of international terrorist attacks to sue foreign governments.

Congress also plays an oversight role. The annual appropriations process allows congressional committees to review in detail the budgets and programs of the vast military and diplomatic bureaucracies. Lawmakers must sign off on more than a trillion dollars in federal spending every year, of which more than half is allocated to defense and international affairs. Lawmakers may also stipulate how that money is to be spent. For instance, Congress repeatedly barred the Obama administration from using funds to transfer detainees out of the military prison at Guantanamo Bay.

Congress has broad authority to conduct investigations into particular foreign policy or national security concerns. High-profile inquiries in recent years have centered on the 9/11 attacks, the Central Intelligence Agency's detention and interrogation programs, and the 2012 attack on U.S. diplomatic facilities in Benghazi, Libya.

Furthermore, Congress has the power to create, eliminate, or restructure executive branch agencies, which it has often done after major conflicts or crises. In the wake of World War II, Congress passed the National Security Act of 1947, which established the CIA and National Security Council. Following the 9/11 attacks, Congress created the Department of Homeland Security.

Powers of the President

The president's authority in foreign affairs, as in all areas, is rooted in Article II of the Constitution. The charter grants the officeholder the powers to make treaties and appoint ambassadors with the advice and consent of the Senate (Treaties require approval of two-thirds of senators present. Appointments require consent of a simple majority.)

Presidents also rely on other clauses to support their foreign policy actions, particularly those that bestow "executive power" and the role of "commander in chief of the army and navy" on the office. From this language springs a wide array of associated or "implied" powers. For instance, from the explicit power to appoint and receive ambassadors flows the implicit authority to recognize foreign governments and conduct diplomacy with other countries generally. From the commander-in-chief clause flow powers to use military force and collect foreign intelligence.

Presidents also draw on statutory authorities. Congress has passed legislation giving the executive additional authority to act on specific foreign policy issues. For instance, the International Emergency Economic Powers Act (1977) authorizes the president to impose economic sanctions on foreign entities.

Presidents also cite case law to support their claims of authority. In particular, two U.S. Supreme Court decisions-United States. v. Curtiss-Wright Export Corporation (1936) and Youngstown Sheet & Tube Company v. Sawyer (1952)-are touchstones.

In the first, the court held that President Franklin D. Roosevelt acted within his constitutional authority when he brought charges against the Curtiss-Wright Export Corporation for selling arms to Paraguay and Bolivia in violation of federal law. Executive branch attorneys often cite Justice George Sutherland's expansive interpretation of the president's foreign affairs powers in that case. The president is "the sole organ of the federal government in the field of international relations," he wrote on behalf of the court. "He, not Congress, has the better opportunity of knowing conditions which prevail in foreign countries and especially is this true in time of war," he wrote.

In the second case, the court held that President Harry Truman ran afoul of the Constitution when he ordered the seizure of U.S. steel mills during the Korean War. Youngstown is often described by legal scholars as a bookend to Curtiss-Wright since the latter recognizes broad executive authority, whereas the former describes limits on it. Youngstown is cited regularly for Justice Robert Jackson's three-tiered framework for evaluating presidential power:

Conflict Between the Branches

The political branches often cross swords over foreign policy, particularly when the president is of a different party than the leadership of at least one chamber of Congress. The following issues often spur conflict between them:

Military operations. War powers are divided between the two branches. Only Congress can declare war, but presidents have ordered U.S. forces into hostilities without congressional authorization. While there is general agreement that presidents can use military force to repel an attack, there is much debate over when they may initiate the use of military force on their own authority. Toward the end of the Vietnam War, Congress sought to regulate the use of military force by enacting the War Powers Resolution over President Richard Nixon's veto. Executive branch attorneys have questioned parts of the resolution's constitutionality ever since, and many presidents have flouted it. In 2001, Congress authorized President George W. Bush to use military force against those responsible for the 9/11 attacks; and, in 2002, it approved U.S. military action against Iraq. However, in recent years, legal experts from both parties have said the president should have obtained additional authorities to use military force in Libya, Iraq, and Syria.

Congress can also use its "power of the purse" to rein in the president's military ambitions, but historians note that legislators do not typically take action until near the end of a conflict. Moreover, lawmakers are often loath to be seen by their constituents as holding back funding for U.S. forces fighting abroad. During the Vietnam War, lawmakers passed several amendments prohibiting the use of funds for combat operations in Vietnam and neighboring countries. Congress took similar measures in the 1980s with regard to Nicaragua, and in the 1990s with Somalia.

Foreign aid. Presidents have also balked at congressional attempts to withhold economic or security assistance from governments or entities with poor human rights records. For instance, during the Obama administration, senior U.S. military commanders said that, while well-intentioned, restrictions on U.S. aid complicated other foreign policy objectives, like counterterrorism or counternarcotics.

Intelligence. Congress began to claim a larger role in intelligence oversight in the 1970s, particularly after the Church Committee uncovered privacy abuses committed by the CIA, Federal Bureau of Investigation, and National Security Agency. Congress passed several laws regulating intelligence gathering and established committees to supervise the executive branch's activities in areas including covert operations. Many presidents have protested these developments and claimed that Congress was encroaching on their prerogatives.

International agreements. The Senate has approved more than 1,600 treaties over the years, but it has also rejected or refused to consider many agreements. After World War I, senators famously rebuffed the Treaty of Versailles, which had been negotiated by President Woodrow Wilson. More recently, a small coalition in the upper chamber blocked ratification of the UN Convention on the Law of the Sea despite the support of both Republican and Democratic administrations. Political hurdles associated with treaties have at times led presidents to forge major multinational accords without Senate consent. For instance, the Paris Agreement on climate change and the Iran nuclear agreement, both negotiated by President Obama, are not treaties. Thus, legal analysts say, future presidents could likely withdraw from them without congressional consent. The Constitution does not say whether presidents need Senate consent to end treaties.

Trade. The Constitution expressly grants Congress the power to regulate foreign commerce, but lawmakers have for decades provided presidents special authority to negotiate trade deals within established parameters. Renewal of this "fast track" trade promotion authority has become more controversial in recent years as trade deals have become more complex and the debates over them more partisan.

Immigration. Presidents are constitutionally bound to execute federal immigration laws, but there is considerable debate over how much latitude they have in doing so. Many Republican lawmakers said the Obama administration ignored the law when it established programs shielding undocumented immigrants from deportation. For its part, the administration said that it had broad discretion to decide how to spend the government's scarce resources on enforcement. More recently, many Democratic lawmakers said President Donald J. Trump overstepped his constitutional and statutory authority when he attempted to block travelers from seven Muslim-majority countries from entering the United States.

The Reluctant Courts

Federal courts, including the Supreme Court, weigh in from time to time on questions involving foreign affairs powers, but there are strict limits on when they may do so. For one, courts can only hear cases in which a plaintiff can both prove they were injured by the alleged actions of another and demonstrate the likelihood that the court can provide them relief. For instance, in 2013, the Supreme Court threw out a lawsuit challenging the constitutionality of an electronic surveillance program, ruling that the lawyers, journalists, and others who brought the suit did not have standing because the injuries they allegedly suffered were speculative.

Another form of judicial restraint turns on the "political question" doctrine, in which courts decline to take sides on a major constitutional question if the judges say its resolution is best left to the president or Congress. For instance, in 1979, the Supreme Court debated whether to hear a case brought by members of Congress against the administration of President Jimmy Carter. The lawmakers claimed that the president could not terminate a defense pact with Taiwan without congressional approval. The court dismissed the case after a majority of justices found the underlying issue to be a political question, and thus outside the scope of their review.

However, the Supreme Court has weighed in on several cases related to the detention of terrorism suspects at the U.S. military prison in Guantanamo Bay. More recently, the court took on a dispute between the Obama administration and Congress over the recognition of Israeli sovereignty over Jerusalem. "It is for the president alone to make the specific decision of what foreign power he will recognize as legitimate," the court held.

Trends and Prospects

Presidents have accumulated foreign policy powers at the expense of Congress in recent years, particularly since the 9/11 attacks. The trend conforms to a historical pattern in which, during times of war or national emergency, the White House has tended to overshadow Capitol Hill.

Scholars note that presidents have many natural advantages over lawmakers with regard to leading on foreign policy. These include the unity of office, capacity for secrecy and speed, and superior information. "The verdict of history, in short, is that the substantive content of American foreign policy is a divided power, with the lion's share falling usually, though by no means always, to the president," wrote Corwin, the legal scholar.

Some political analysts say Congress has abdicated its foreign policy responsibilities in recent years, faulting lawmakers in both parties for effectively standing on the sidelines as the Obama administration intervened militarily in Libya in 2011 and in Syria starting in 2014. Lawmakers should emulate the activist measures Congress took to weigh in on foreign policy issues from the late 1960s to the early 1990s, they say. Policymakers can also significantly alter executive branch behavior simply by threatening to oppose a president on a given foreign policy issue.

Additional Resources

In a series of blog posts, CFR's James M. Lindsay examines the division of war powers between Congress and the president in the context of the U.S.-led military intervention in Libya.

President Trump's foreign policy proposals may spur Congress into taking a more active role than it has in recent years, writes political science professor Stephen R. Weissman in Foreign Affairs.

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U.S. Foreign Policy Powers: Congress and the President

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The separation of powers has spawned a great deal of debate over the roles of the president and Congress in foreign affairs, as well as over the limits on their respective authorities, explains this ...

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Executive Power: An Overview

In its first three articles, the U.S. Constitution outlines the branches of the U.S. Government, the powers that each branch contains, and the limitations to those powers. Article II outlines the duties of the Executive Branch.

The President of the United States is elected to a four-year term by electors from every state and the District of Columbia. The electors make up the Electoral College, which is comprised of 538 electors, equal to the number of Representatives and Senators that currently make up Congress. The citizens of each state vote for slates of electors who then vote for the President on the prescribed day, selected by Congress.

To become President, a person must be a natural born citizen of the United States. Naturalized citizens are ineligible, as are persons under the age of 35. In the case that the President should be unable to perform their duties, the Vice-President becomes the President (see: 25th Amendment). The 22nd Amendment places a two-term limit on the presidential office.

The President:

Is the Commander in Chief of the armed forces.
They have the power to call into service the state units of the National Guard, and in times of emergency may be given the power by Congress to manage national security or the economy.

Has the power to make treaties with Senate approval.
They can also receive ambassadors and work with leaders of other nations.

Is responsible for nominating the heads of governmental departments, federal judges, and Supreme Court justices.
The U.S. Senate is charged with approving these nominations.

Can issue executive orders, which have the force of law but do not have to be approved by Congress.

Can issue pardons for federal offenses.

Can convene Congress for special sessions.

Can veto legislation approved by Congress. However, the veto is limited.

It is not a line-item veto, meaning that the President must veto the entire bill, rather than parts of it.

Further, a presidential veto can be overridden by a two-thirds vote by Congress.

Delivers the State of the Union address annually to a joint session of Congress.

Congress holds the power to declare war. As a result, the President cannot declare war without their approval. However, as the Commander in Chief of the armed forces, Presidents have sent troops to battle without an official war declaration (which happened in Vietnam and Korea). The 1973 War Powers Act attempted to define when and how the President could send troops to battle by adding strict time frames for reporting to Congress after sending troops to war, in addition to other measures, however it has not had much effect (see " War Powers Resolution" section in the Commander in Chief Powers article).

Nominations

The President is responsible for nominating candidates for the head positions of government offices. The President will typically nominate cabinet officials and secretaries at the beginning of their presidency and will fill vacancies as necessary. In addition, the President is responsible for nominating Federal Circuit Court judges and Supreme Court justices and choosing the chief justice. These nominations must be confirmed by the Senate. While the President usually has broad appointment powers, subject to Senate approval, there are some limitations. In National Labor Relations Board v. SW General Inc. (2017), the Supreme Court decided that the " Federal Vacancies Reform Act of 1998 [FVRA], which prevents a person who has been nominated to fill a vacant office requiring presidential appointment and Senate confirmation from performing the duties of that office in an acting capacity, applies to anyone performing acting service under the FVRA."

Further, the President is constitutionally allowed to make recess appointments when the Senate is not in session (which means that such appointments are not subject to Senate approval until the end of the session). However, In National Labor Relations Board v. Noel Canning, the Supreme Court ruled that "for purposes of the clause, the Senate is in session whenever it indicates that it is, as long as - under its own rules - it retains the capacity to transact Senate business." As such, the Senate can claim to always be in session, therefore preventing the President from making any recess appointments.

Executive Orders

In times of emergency, the President can override Congress and issue executive orders with almost limitless power. Abraham Lincoln used an executive order in order to fight the Civil War, Woodrow Wilson issued numerous pardons related to US involvement in World War I ( 1913-1920), and in 1942 Franklin Roosevelt approved Japanese internment camps during World War II with an executive order.

The U.S. Constitution gives the President almost limitless power to grant pardons to those convicted of federal crimes. While the President cannot pardon someone impeached by Congress, they can pardon anyone else convicted of federal crimes without any Congressional involvement.

The Extent of the President's Powers

Article II of the Constitution contains the vesting clause, which states: "The executive Power shall be vested in a President of the United States of America." This has historically been interpreted to mean that the President is the head of the Executive Branch, but is still subject to limits within that Branch (i.e. if the President fires members of the Executive Branch, Congress would have oversight and would be able to investigate the firings). Some scholars, however, have interpreted the vesting clause under a much stronger lens, finding that the President has full power over the entire Executive Branch. Under this theory, commonly referred to as the unitary executive theory, any decision that the President makes regarding the Executive Branch would not be subject to any sort of review or oversight (i.e. Congress would not be able to investigate the President's firings of any members of the Executive Branch). While the Supreme Court has not directly embraced or rejected this theory, Justice Alito has made comments which have caused some to think that he endorses the theory: "The president has not just some executive powers, but the executive power - the whole thing."

Federal Material

U.S. Constitution

Article II - Executive Power

Amendment XII - Election of President and Vice President (1804)

Amendment XX - Presidential Term and Succession

Amendment XXII - Two Term Limit on President

Amendment XXV - Presidential Succession

Federal Statutes

Additional Resources

Official U.S. Executive Branch Web Site

USA.gov: Federal Executive Branch

American Presidency Project - Executive Orders

A Guide to Emergency Powers and Their Use

War Powers Resolution: Concepts and Practice

Related Topics

[Last updated in December of 2022 by the Wex Definitions Team]

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Executive Power: An Overview In its first three articles, the U.S. Constitution outlines the branches of the U.S. Government, the powers that each branch contains, and the limitations to those powers. Article II outlines the duties of the Executive Branch.

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The President Has Usurped the Constitutional Power of Congress

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The Constitution provides that "All legislative powers herein granted shall be vested in a Congress of the United States," and it goes on to grant Congress a robust-and fearsome-list of powers.

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When PolitiFact fact-checks fake news, we are calling out fabricated content that intentionally masquerades as news coverage of actual events.

When President Donald Trump talks about fake news, he means something else entirely.

Instead of fabricated content, Trump uses the term to describe news coverage that is unsympathetic to his administration and his performance, even when the news reports are accurate.

Trump is so taken with the phrase "fake news," that he's mentioned it at least 153 separate times in interviews, on Twitter and in speeches, according to a count compiled by PolitiFact.

Recently, Trump even took credit for inventing the term. "Look, the media is fake," Trump said in an interview with conservative pundit and former Arkansas Gov. Mike Huckabee. "The media is -- really, the word, I think one of the greatest of all terms I've come up with -- is fake. I guess other people have used it perhaps over the years, but I've never noticed it."

In 10 years of fact-checking, we here at PolitiFact have not seen such a yawning chasm between the meaning of words.

PolitiFact has devoted many hours to knocking down fake news: accounts of events that never happened, from the frightening to the frivolous.

We've fact-checked whether NASA said the earth would be plunged into darkness for 15 days in November. ( Pants on Fire.) We've looked at whether HIV had been detected in bananas sold at Wal-Mart. ( Pants on Fire.) And we looked at whether passers-by came to the aid of comedian Bill Murray when his car broke down in Rochester, N.H. -- or Marion, Ohio; or Shakopee, Minn.; or many other cities. (All Pants on Fire.)

We think it's worth diving into the differing definitions of fake news between the fact-checkers and the president. Our reporting found that it's a distinction that has solidified over the months of President Trump's tenure. And it has specific implications for language, for a free press and for the First Amendment.

The fact-checkers and fake news

If you define fake news as fabricated content, then 2016 was the year fake news came into its own. False reports ran rampant on social media sites, such as Facebook and Twitter, and they landed at the top of search results on Google and others. PolitiFact named fake news its Lie of the Year for 2016, citing fictitious Web posts that were the ultimate election-year clickbait, such as claims that Pope Francis endorsed Donald Trump, or that Hillary Clinton sold weapons to ISIS. (Neither of those things is true.)

Since the election, fact-checkers and the public have learned more about fake news. Some people create fake news to make a quick buck off automated advertising in a simple cash-for-clicks formula. Others use fake news for political mischief, such as liberal blogger Christopher Blair who told PolitiFact he writes fake news to "mess with conservatives." (A typical report: pop star Lady Gaga was arrested for criticizing first lady Melania Trump. Pants on Fire.)

Federal investigators, though, have been looking into whether people working on behalf of the Russian government have published or promoted fake news via U.S.-based social media as part of an effort to sow division and undermine democracy.

We don't know much about the specifics of these investigations, and it may be that investigators are looking at actions on social media that include but are not limited to fake news, especially political advertising.

Without discussing details, the Republican and Democratic leaders of the Senate Intelligence Committee held a press conference recently to warn that Russia had sought to undermine U.S. elections in 2016 and would likely try again.

"What I will confirm is that the Russian Intelligence Service is determined, clever, and I recommend that every campaign and every election official take this very seriously as we move into this November's election and as we move into preparation for the 2018 election," said Sen. Richard Burr, R-N.C., on Oct. 4.

Burr and his Democratic counterpart, Sen. Mark Warner of Virginia, said they intended to have a public hearing in November with representatives of the major platforms -- Google, Facebook and Twitter.

Meanwhile, Facebook has engaged with independent fact-checkers -- including PolitiFact -- since December 2016 to fact-check content that users flag as suspicious.

Facebook published its own report in April noting that the term "fake news" has come to refer to a wide variety of factually incorrect content, from inaccurate news to opinion pieces, parodies, hoaxes, rumors and simple misstatements. Facebook prefers the terms "false news" and "disinformation" for inaccurate content that is spread with intent to deceive.

"In brief, we have had to expand our security focus from traditional abusive behavior, such as account hacking, malware, spam and financial scams, to include more subtle and insidious forms of misuse, including attempts to manipulate civic discourse and deceive people," the report concluded.

Donald Trump and fake news

Since the beginning of 2017, President Trump has invoked the phrase "fake news" on 153 separate occasions. Virtually every instance has been in response to critical news coverage.

Trump has used it when he felt he wasn't getting enough credit for positive actions, such as helping Puerto Rico recover from Hurricane Maria. "We have done a great job with the almost impossible situation in Puerto Rico. Outside of the Fake News or politically motivated ingrates," he said on Twitter.

He's used the term after news channels simply reported what he said, such as his comments about white supremacists in Charlottesville, Va. "The only people giving a platform to these hate groups is the media itself, and the fake news," Trump said at a campaign-style rally in Phoenix.

And he's used the term repeated when news organizations have covered basic facts about the government's own investigations into Russia's influence on the 2016 election. "It is the same Fake News Media that said there is 'no path to victory for Trump' that is now pushing the phony Russia story. A total scam!" Trump said on Twitter.

Most often, PolitiFact found, his targets have been CNN (23 mentions in 2017) and NBC (19 mentions), followed by the New York Times (12 mentions) and the Washington Post (eight mentions). We found only one news outlet that had been singled out for praise during his discussions of fake news: Fox News.

Trump is particularly quick to label coverage "fake news" when the reports have unnamed sources, and unnamed sources seem to make Trump the most irate.

It's understandable that public figures get angry when they're accused of something but they don't know who the source is, said Aly Colόn, the John S. and James L. Knight Professor of Media Ethics at Washington and Lee University.

"If President Trump doesn't believe what is said, then he would believe it is fake, because it doesn't fit into the reality that he accepts," Colόn said.

When the media uses anonymous sources and Trump labels the stories as fake news, the public doesn't have much recourse for evaluating the evidence for themselves, Colόn said. That typically means they'll side with whomever they have the most sympathy with anyway.

"What becomes most prevalent is people are inclined to believe whoever they came to the dance with," Colόn said. "Until something very obvious and visible contradicts that, they're not going to have a very strong basis for accepting things from people they don't trust."

Andrew Seaman, ethics chair for the Society of Professional Journalists, agreed that the use of unnamed sources "allows for people -- from the president to the public -- to sometimes easily wave away the information."

Nevertheless, that doesn't make the stories "fake."

"While I don't like the overuse of anonymous sources, I do have confidence in stories based on those sources from most large news organizations," Seaman said. "My advice to the public is to always consider a news organization's history and track record. The New York Times, Washington Post and others all have scandals in their pasts, but the overwhelming weight of evidence shows their journalism to be reliable and trustworthy."

At times, Trump has seemed to advocate outright censorship in response to negative coverage, as when he reacted to an NBC report based on anonymous sources that said Trump had wanted an unprecedented and likely impractical increase to the U.S. nuclear arsenal; Trump backed off when his advisers told him it was a bad idea, according to the report. (It was this incident that allegedly spurred Secretary of State Rex Tillerson to call Trump a moron -- again, a report based on unnamed sources.)

The NBC report on the nuclear arsenal enraged Trump enough to threaten the network.

"With all of the Fake News coming out of NBC and the Networks, at what point is it appropriate to challenge their License? Bad for country!" he tweeted the morning of Oct. 11.

Later that day, when asked about the report on the nuclear arsenal at a press conference, Trump said, "No, I never discussed increasing it. I want it in perfect shape. That was just fake news by NBC, which gives a lot of fake news, lately. ... It's frankly disgusting the way the press is able to write whatever they want to write. And people should look into it."

First Amendment implications

Trump's comments on revoking licenses prompted one member of Trump's own party to question his commitment to the Constitution's First Amendment.

"Mr. President: Words spoken by the President of the United States matter," said Sen. Ben Sasse, R-Neb., in a prepared statement. "Are you tonight recanting of the oath you took on January 20th to preserve, protect, and defend the First Amendment?"

Other First Amendment advocates described Trump's use of the term "fake news" as Orwellian, because it uses words to mean the opposite of their literal definition, as in George Orwell's dystopian novel 1984.

"It is a characteristic of authoritarian leaders, whether Communist or Nazi, to appropriate ordinary words and declare them to mean the opposite," said Bruce Johnson, a Seattle-based media lawyer. "Repressive regimes hold power by depriving their population of independent thinking and making the masses believe lies."

Trump's threats are "simply unprecedented," said Sonja R. West, the Otis Brumby Distinguished Professor of First Amendment Law at the University of Georgia School of Law.

"While other presidents have certainly had their disagreements with particular stories or journalists, they still showed a basic level respect to the press as an institution and acknowledged the important role it plays," West said. "Having the president openly wage war on the press by trying to delegitimize it is extremely concerning."

Finally, Trump's "fake news" attacks confuse ideas about what is accurate and what is newsworthy, said RonNell Andersen Jones, a professor of law at the University of Utah who studies the First Amendment and media law.

Trump's complaints tend to focus only on labeling the press as fake, rather than offering evidence to the contrary. This flies in the face of norms that assume that political leaders will rebutt incorrect news reports with better facts and evidence, she said.

"If mistakes are made, the president of the United States is better positioned than anyone in the world to clarify and correct the errors -- to counter misinformation with actual, correct information," Jones said. "Cases from the Supreme Court about media freedom envision that this will happen, and they protect the press even when it makes mistakes because of the expectation that government officials will counter any false information with clear, truthful information. Striking out at the press with nothing more than a bald label -- 'fake news' -- undercuts this central feature of our democracy and places the larger First Amendment framework at risk."

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How often has Trump said 'fake news' this year? We counted

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When PolitiFact fact-checks fake news, we are calling out fabricated content that intentionally masquerades as news coverage of actual events. When President Donald Trump talks about fake news, he means something else entirely. Instead of fabricated content, Trump uses the term to describe news coverage that is unsympathetic to his administration and his performance, even when the news reports are accurate.

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Trump's use of twitter-- going directly to the people

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Trump's use of twitter-- going directly to the people

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President Trump has repeatedly issued announcements and proposals over Twitter, during both the presidential election and the transition period, embracing the medium as a superior means of communicating with the American people compared to relying on traditional media organizations.

White House Press Secretary Sean Spicer has promised that Trump's tweets will continue: "He has this direct pipeline to the American people, where he can talk back and forth," Spicer recently explained to WPRI TV in Providence, Rhode Island, adding that Twitter allows him to "put his thoughts out and hear what they're thinking in a way that no one's ever been able to do before."

We'll track and unpack Trump's tweets here, according to our best understanding of their significance.

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President Trump has repeatedly issued announcements and proposals over Twitter, during both the presidential election and the transition period, embracing the medium as a superior means of communicating with the American people compared to relying on traditional media organizations.

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Climate change case for Alaska... is it a political question?

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Climate change case for Alaska... is it a political question?

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On October 9, sixteen youth suing the State of Alaska for its role in contributing to climate change and claiming their due process, equal protection, and Public Trust rights have been violated will have their case argued in the Alaska Supreme Court.

Lead plaintiff Esau Sinnok of Shishmaref has seen the impacts of a changing climate first hand. In 2016 the village voted to relocate due to erosion caused by rising sea levels. Decreased sea ice in the Chukchi Sea has made subsistence hunting and fishing difficult and transportation more dangerous.

"Since my grandfather was a boy, I used to hear stories of him telling me that the ice out there used to be as thick as a house, and that was eight to ten feet thick. Now we're lucky if we get at least five feet, and in recent years there's been more reports of people falling through the ice," Sinnok said. "With climate change it's just unpredictable now how safe the ice is and if we're able to go out on it safely and go hunting and fishing and collecting our water. It's not just a political issue to me, it's my livelihood. It's my home."

The lawsuit is supported by Our Children's Trust, which is also backing other youth-led climate actions across the country, including the high profile case Juliana v. United States.

While the Supreme Court hearing is a landmark for the youth-led environmental movement, Sinnok believes the youth will see success outside of the courtroom.

"Once these old people get out of office, not just in the State of Alaska, but also on the national level, and when the youth come up and take those position, I'm very hopeful for the future," Sinnok said. "I'm a very optimistic person. I believe that a victory for us will start with moving through a transition to a renewable energy economy, more solar panels, more wind turbines, more micro-grids in rural Alaska so that they can be powered off renewable energy instead of fossil fuels."

Other youth climate activists are planning to attend the October hearing and a press conference is scheduled to take place after the hearing.

Additionally, high school climate activists in Anchorage are leading a local event that is part international strike on climate change.

The Anchorage Youth Climate Strike is scheduled for Friday at 1:30 p.m. at Cuddy Family Midtown Park.
Copyright 2019 KTUU. All rights reserved.

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alaska youth suing state over climate change to be heard in state supreme court

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Alaska youth suing state over climate change to be heard in state Supreme Court

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On October 9, sixteen youth suing the State of Alaska for its role in contributing to climate change and claiming their due process, equal protection, and Public Trust rights have been violated will have their case argued in the Alaska Supreme Court.

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MUST WATCH or at least read the synopsis... WATCH

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MUST WATCH or at least read the synopsis... WATCH

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The President Has Usurped the Constitutional Power of Congress

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The Constitution provides that "All legislative powers herein granted shall be vested in a Congress of the United States," and it goes on to grant Congress a robust-and fearsome-list of powers.

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Juliana v. US climate case justiciability

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Juliana v. US climate case justiciability

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By Dana Drugmand

The Supreme Court the federal government's request to halt discovery and the trial in the youth climate lawsuit Juliana v. United States . The court's rejection on Monday of the defendants' application for a stay means the case will likely proceed to trial as scheduled in U.S. District Court on October 29.

"​This decision should give young people courage and hope that their third branch of government, all the way up to the Supreme Court, has given them the green light to go to trial in this critical case about their unalienable rights," Julia Olson, ​ executive director of ​Our Children's Trust​ and co-counsel for the young plaintiffs. "We look forward to presenting the scientific evidence of the harms and dangers these children face as a result of the actions their government has taken to cause the climate crisis."

The Supreme Court's decision is the latest to turn down government attempts to stop the proceedings. The Ninth Circuit Court of Appeals denied a second appeal for an extraordinary writ of mandamus on July 20. The U.S. District Court in Oregon is expected to rule promptly on defendants' motion for summary judgment and motion for judgment on the pleadings, which are versions of a motion to dismiss. The district court has already rejected an earlier motion to dismiss.

The Supreme Court's order called the government's request for relief "premature," in accordance with recent decisions from other courts. The government had tried to argue that preparing for trial and participating in discovery would be too burdensome.

However, the order, written by Justice Anthony Kennedy, also strikes a cautionary note for the plaintiffs, referring to the breadth of their claims as "striking," and warning that the case will not be easily resolved. "The justiciability of those claims presents substantial grounds for difference of opinion," Kennedy wrote. "The District Court should take these concerns into account in assessing the burdens of discovery and trial, as well as the desirability of a prompt ruling on the Government's pending dispositive motions."

According to Philip Gregory, co-counsel for young plaintiffs, the next step is discovery. The government is required to produce expert witness reports by mid-August.

"It will be interesting to see what position the Trump administration takes in regards to climate change and the harm it's causing the young plaintiffs," Gregory said.

We're ready for trial," he added. "We'll be there on Oct. 29. We're seeking to put the climate science on trial."

"The constitutional rights of my fellow plaintiffs and I are at stake in this case, and I am glad that the Supreme Court of the United States agrees that those rights should be evaluated at trial," 19-year-old plaintiff Victoria Barrett. "This lawsuit becomes more urgent every day as climate change increasingly harms us. I have reaffirmed confidence now that all levels of the federal judiciary have ruled in our favor that there should be no more delay in getting to our trial."

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Supreme Court refuses to halt kids climate case

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By Dana Drugmand The Supreme Court the federal government's request to halt discovery and the trial in the youth climate lawsuit Juliana v. United States . The court's rejection on Monday of the defendants' application for a stay means the case will likely proceed to trial as scheduled in U.S.

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In the near future, Congress will debate a new Authorization for Use of Military Force (AUMF). I use the word "debate" lightly. So far, no hearings have been scheduled, and no testimony is likely to be heard unless something changes. That's a shame, because this is a serious matter, and this is a deeply flawed AUMF.

For some time now, Congress has abdicated its responsibility to declare war. The status quo is that we are at war anywhere and anytime the president says so.

So Congress-in a very Congress way of doing things-has a "solution." Instead of reclaiming its constitutional authority, it instead intends to codify the unacceptable, unconstitutional status quo.

It is clear upon reading the AUMF, put forward by Senators Tim Kaine and Bob Corker, that it gives nearly unlimited power to this or any other president to be at war whenever he or she wants, with minimal justification and no prior specific authority.

That isn't an AUMF. That isn't Congress reclaiming its constitutional duties. That's a complete rewriting of the role of the executive and of the constitutional separation of powers.

The new Kaine/Corker AUMF declares war on at least the following places and people: the Taliban, al-Qaeda in the Arabian Peninsula, ISIS anywhere, al-Shabaab in Somalia and elsewhere, al-Qaeda in Syria, al-Nusra in Syria, the Haqqani network in Pakistan and Afghanistan, al-Qaeda in the Islamic Maghreb, in Niger, Algeria, Libya, and Nigeria, and associated forces (as defined by the president) around the globe.

That is simply breathtaking. Previous AUMFs have never included "associated forces," and with good reason. Yet the Kaine/Corker AUMF not only codifies military action against those associated forces, but by conservative estimates authorizes war in over 20 nations.

Should Congress declare war? Absolutely. Are there places we will need to be at war? Yes. Should we be having this debate at this time? Yes, we should. But we must have a full debate, with all sides considered, and with the constitutional power of every branch of government clearly in mind.

It is indisputably clear that the authority given to the executive under the AUMF passed after 9/11 has become too broad and needs updating. But this Kaine/Corker AUMF is not the answer. Simply put, it provides even more expansive war-making authority to the executive branch than the status quo.

If this AUMF is passed, Congress will have chosen to make itself irrelevant on the issue of war.

Currently, use of force without congressional authority is limited by the War Powers Act to national emergency or imminent attack. No more, under this AUMF.

Kaine/Corker would forever allow the executive unlimited latitude in determining war, and would leave Congress debating such action after forces have already been committed.

Under this bill, Congress could only disapprove of war, turning the Constitution on its head. Even worse, any resolution of disapproval could be vetoed, meaning two thirds of Congress would need to disapprove of a war, rather than a majority to approve of one. That's a huge, unwise, and unconstitutional change.

The Founders left the power to make war in the legislature on purpose and with good reason. They recognized that the executive branch is most prone to war. The Kaine/Corker AUMF would completely abdicate Congress's power under Article I.

Handing war-making power from Congress to the executive branch is not an exercise in congressional power. It is the final and full abandonment of that power. It is wrong, it is unconstitutional, and it should be stopped.
Rand Paul is the junior U.S. senator from Kentucky and a Republican.

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Rand Paul: Congress Moves to Give the President Unlimited War Powers

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In the near future, Congress will debate a new Authorization for Use of Military Force (AUMF). I use the word "debate" lightly. So far, no hearings have been scheduled, and no testimony is likely to be heard unless something changes. That's a shame, because this is a serious matter, and this is a deeply flawed AUMF.

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Just a week before the midterm elections, President Donald Trump said he might eliminate birthright citizenship -- the longstanding policy that virtually anyone born on U.S. soil has citizenship. And he said he could use an executive order to do it.

It's an idea that Trump had publicly floated before. But he's never before been so clear about using an executive order.

"It was always told to me that you needed a constitutional amendment. Guess what? You don't," Trump told Axios in an interview released on Oct. 30. "You can definitely do it with an act of Congress. But now they're saying I can do it just with an executive order."

Because this will ultimately be a question for the Supreme Court to resolve, we won't put it to the Truth-O-Meter. But experts say that Trump's assertion that he could use an executive order to overturn birthright citizenship is almost certainly wrong.

"If it's mandated by the Constitution, it can only be undone by a constitutional amendment," said Peter J. Spiro, a professor at Temple University Law School. "If it's mandated by statute, it can only be undone by a subsequent statute. It's only if it's mandated by neither that Trump could do it by executive order."

And most legal experts agree that birthright citizenship is bolstered by both the Constitution and by statute.

The legal underpinnings of birthright citizenship

The notion of birthright citizenship can be traced back as far as 1608 with a British decision in Calvin's Case, a decision that became part of the common law adopted in the early days of the U.S. legal system. Calvin's case granted subjectship -- a British concept that has since evolved into citizenship -- to all children born in Scotland except those of diplomats and enemy troops in hostile occupation.

There are three key pieces of legal precedent underpinning birthright citizenship, scholars say.

First, there's the Fourteenth Amendment to the Constitution. The relevant portion says 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."

This amendment "was unquestionably intended to cover the children of unauthorized migrants, namely the children of enslaved persons brought here by criminals after the prohibition of the slave trade," said Gabriel (Jack) Chin, a law professor at the University of California-Davis.

Second, there's a 1952 statute (8 U.S. Code § 1401) that echoes the language in the Fourteenth Amendment. "The following shall be nationals and citizens of the United States at birth: (a) a person born in the United States, and subject to the jurisdiction thereof," the statute reads in part.

And third, there's an 1898 Supreme Court decision, known as the Wong Kim Ark case. In its 6-2 majority decision, the justices ruled that Wong -- and others born on United States soil, with a few clear exceptions -- did indeed qualify for citizenship under the 14th Amendment.

"The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens. ... The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States."

Legal scholars added that the longstanding application of birthright citizenship is itself a strong argument for keeping it in place.

The "consistent, systematic, and unbroken historical practice" is a strong argument against Trump's view, Spiro said. "For at least a century, the government has extended citizenship to the children of parents present in the United States in violation of the immigration laws. That practice counts for purposes of constitutional interpretation and statutory interpretation."

The importance of the phrase "subject to the jurisdiction thereof"

The wiggle room that exists for opponents of birthright citizenship involves the qualifier "subject to the jurisdiction thereof" -- wording that appears in both the constitutional amendment and the statute.

Traditionally, this phrase has been interpreted to exclude only the U.S.-born children of foreign diplomats or of enemy forces engaged in hostilities on U.S. soil. But those skeptical of the legal basis for birthright citizenship say that the Supreme Court has never specifically ruled on whether the children of illegal immigrants would qualify for birthright citizenship, since that wasn't at issue in the Wong Kim Ark case. ( Read more about this aspect of the Wong Kim Ark case.)

The same window holds for the drafters of the Fourteenth Amendment, legal experts say. "Because there weren't any federal immigration controls at the time the amendment was adopted in 1868, there's no direct evidence how the drafters intended it to apply to that category," Spiro said.

John C. Eastman, a law professor at Chapman University, has written that this provides a path for overturning birthright citizenship. He wrote that undocumented immigrants, like foreign tourists, "are subject to our laws by their presence within our borders, but they are not subject to the more complete jurisdiction envisioned by the Fourteenth Amendment as a precondition for automatic citizenship."

For this reason, Eastman argues, the ruling in Wong Kim Ark "does not mandate citizenship for children born to those who are unlawfully present in the United States."

Many legal scholars disagree with this logic.

"Illegal aliens and their children are subject to our laws and can be prosecuted and convicted of violations - unlike diplomats, who enjoy certain immunities, and unlike foreign invaders, who are generally subject to the laws of war rather than domestic civil law," Ilya Shapiro has written for the libertarian Cato Institute. "The illegal immigrants' countries of origin can hardly make a 'jurisidictional' claim on kids born in America, at least while they're here. Thus, a natural reading of 'subject to the jurisdiction' suggests that the children of illegals are citizens if born here."

Could it be overturned by executive order?

It might be possible to overturn birthright citizenship by passage of a new statute, though even that's a minority view among legal scholars, said Jennifer M. Chacón a law professor at the UCLA School of Law. (She believes it would require a constitutional amendment.)

But even if that were possible, the notion that an executive order could accomplish it -- as Trump argues -- is dubious, legal experts said.

The president would effectively be "offering his interpretation" in an executive order, and this "tees up the lawsuit that will get the Supreme Court to rule, once and for all, what it means," said Mark Krikorian, executive director of the Center for Immigration Studies, a group that generally supports a tighter immigration system.

Kermit Roosevelt, a University of Pennsylvania law professor, agreed. Ending the practice of birthright citizenship "is something the president cannot accomplish by executive order," he said. The most the administration could do is "argue for its preferred interpretation in litigation. Executive orders can't amend statutes."

The most that Trump could do is sign such an executive order with the clear expectation that opponents would sue to block its implementation. After that, it would be up to the courts to decide the ultimate outcome.

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Can Trump end birthright citizenship by executive order?

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Just a week before the midterm elections, President Donald Trump said he might eliminate birthright citizenship -- the longstanding policy that virtually anyone born on U.S. soil has citizenship. And he said he could use an executive order to do it. It’s an idea that Trump had publicly floated before.

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Presidential signing statements increase power

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Presidential signing statements increase power

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A lot of crazy stuff tends to happen on New Year's Eve. It's amusing to analyze, say, the Lady Gaga-Mayor Bloomberg midnight kiss, but you've also probably heard about another buzzworthy, albeit less TMZ-worthy, event: President Obama's signing of the National Defense Authorization Act (NDAA).

Photo via Wikimedia Commons

The move was controversial primarily because the NDAA will allow the military to indefinitely detain, without trial, American citizens suspected of terrorism. But people have also been talking about the statement-technically called a presidential signing statement-that Obama included with his signing of the bill, in which he stated that he would interpret several sections of the bill differently. Here's all you need to know about presidential signing statements and how they apply to the NDAA.

What is a presidential signing statement?

It's a written pronouncement occasionally issued by the president when he signs a bill into law.

What is the purpose of a signing statement?

The purpose of the signing statement varies. The three most common purposes (as identified in this report) are:

Rhetorical: To point out positive or negative aspects of the bill and how they fit in with the administration's views

Political: To define or clarify what the president views as ambiguous aspects of the bill

Constitutional: To announce the president's view of the constitutionality of certain aspects of the bill

How often are signing statements used?

The first president to issue a signing statement was James Monroe. Between Monroe's time and the 1980s, only about a dozen signing statements were issued. Then in 1981 Ronald Reagan ushered in an era of prolific proclaiming. It depends on whether you count the number of statements made and the number of legislative statutes challenged, but it's safe to say that Ronald Reagan, George H.W. Bush, Bill Clinton, and George W. Bush have all challenged about 100 statutes of laws they have signed. Barack Obama has continued this modern tradition by issuing about 20 signing statements.

If the president says in a signing statement that part of a bill is unconstitutional, why doesn't he just veto the bill?

It certainly varies. Often the president will argue that the good of the bill outweighed the bad. For example, in President Obama's signing statement for the NDAA, he explained a few reasons why he chose to sign the bill (it authorizes funding for important national defense programs, etc.), then went on to point out a few sections of the bill that he viewed as unconstitutional. He then stated, "My Administration will interpret them [some of the disputed sections] to avoid the constitutional conflict."

Are presidential signing statements constitutional or not?

The Constitution doesn't say anything about presidential signing statements. It neither permits nor prohibits them. Here's what the Constitution does say about presidential power: the president has the power to veto any bill passed by Congress ( Article 1, section 7) and the authority to confirm that the laws are faithfully executed ( Article 2, section 3).

Some people have expressed concern that using a signing statement to declare an aspect of a particular bill unconstitutional is equivalent to initiating a line-item veto, which is unconstitutional (see Clinton v. City of New York). A panel of the American Bar Association has censured the use of signing statements for this purpose.

However, others argue that a signing statement has no legal effect, so it doesn't really matter, constitutionally speaking, what the statement says. A federal district court held that no executive statement "denying efficacy to the legislation could have either validity or effect" (see DaCosta v. Nixon).

So what's the big fuss about President Obama's signing statement for the NDAA?

The NDAA was a big issue to begin with because one section of it allows the military to indefinitely detain, without trial, American citizens suspected of terrorism. However, Obama stated: "Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens."

A lot of people are concerned that the aforementioned section conflicts with Americans' right to a fair trial and protection against unreasonable search and seizure. Thus, they're concerned that Obama's signing statement will not do enough to prevent the NDAA from infringing on citizens' rights.

Are presidential signing statements usually this controversial?

Not always. As mentioned above, sometimes presidential signing statements are simply used for political or rhetorical reasons. However, when a president says that he believes a part of the law is unconstitutional or that he'll interpret it differently, it gets tricky. When the statement basically says, "I signed this bill into law, but I plan on ignoring parts of it," there's probably going to be some debate. In the case of the NDAA signing statement, it has also come up that Obama initially criticized George W. Bush for using signing statements yet has issued 20 of his own.

For more information, check out this report by the Congressional Research Service or this overview by the Library of Congress.
Holly Munson works in Public Programs at the National Constitution Center.

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What's a presidential signing statement?

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A lot of crazy stuff tends to happen on New Year's Eve. It's amusing to analyze, say, the Lady Gaga-Mayor Bloomberg midnight kiss, but you've also probably heard about another buzzworthy, albeit less TMZ-worthy, event: President Obama's signing of the National Defense Authorization Act (NDAA).

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Political question and supreme court... Baker v. Carr

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Political question and supreme court... Baker v. Carr

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A case in which the Court found that redistricting issues present justiciable questions, and in which the Court reframed its political question doctrine.

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Source: An essay from George W. Carey, In Defense of the Constitution, revised and expanded edition, (Indianapolis: Liberty Fund, 1995).

James Madison and the Principle of Federalism

INTRODUCTORY NOTE

Any penetrating treatment of state-national relations must, soon or late, deal with the teaching of James Madison because, far more than any other individual, he is responsible for our modern conception of federalism. From soon after the new government commenced operations under the Constitution until his death in 1836 he was the foremost spokesman for the proposition that our system occupied a "middle ground" between a consolidated or unitary form-one in which the general government possessed complete control over the component units-and the confederal form, wherein the constituent units retained their sovereignty. This middle-ground conception of our union is what American government textbooks commonly use in defining federalism when setting forth the fundamental principles upon which our system rests.

Many, particularly conservatives, have come to share Madison's views concerning federalism and its significance so that today it is widely regarded as one of the pillars of our constitutional order and freedoms. It is also widely regarded as one of our major contributions to the art of government. Yet, as the following section makes clear, when we look carefully at Madison's political career and his writings, it is difficult to see precisely what this contribution amounts to, or, for that matter, how it serves to bolster and protect our constitutional liberties. Indeed, if we look at the Supreme Court's record in this respect, a coherent articulation of the middle-ground position might well be impossible because, contrary to what Madison intimates, theory and practice do collide. Put otherwise-and this for reasons set forth below-there are not, and, it would seem, never can be rules, guides, injunctions or the like that can satisfactorily serve to perpetuate or maintain the division of powers called for by Madison's middle-ground (federal) position.

But if this is so, we may profitably ask, what is at stake between the revisionists and the traditionalists over the issue of federalism? The answer is somewhat involved and requires that we proceed a step at a time. First, we should note that from the outset of our constitutional experience controversy over state-national relations was inevitable. Even before the Constitutional Convention we can see a manifest "tension" in our official documents concerning the nature of the political relationship of the states to one another. This is evident, for example, in the Declaration of Independence. Its opening paragraph asserts that "one people" are dissolving the "political bands that have united them with another," a clause that suggests at least a feeling of unity or "oneness" among the colonies. That there were centripetal forces in operation at this time is clearly borne out by the convocation of the Continental Congresses and the subsequent ratification of the Articles of Confederation. But we also see evidences of centrifugal tendencies. The final paragraph of the Declaration is evidence of this, calling as it does for "Free and Independent States" with "full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do." And, although the Constitution was a decisive move toward greater unity, it certainly did not provide a definitive resolution of these tensions.

What seems clear is that the early revisionists, with the exception of Herbert Croly, associated the centralization of authority that resulted from the ratification of the Constitution with a departure from the democratic principles they had associated with the political decentralization under the Articles. The heroes for these revisionists were the early Republicans led by Jefferson who played upon and emphasized the centrifugal aspects of the tradition. While the record of these Republicans shows that the disputes over state-national authority were, for the most part, over issues far removed from any constitutional principle, they did serve to establish positions to which future politicians could repair to suit their purposes. With the coming of the Civil War, we do find, as I have noted, a constitutional crisis arising over the nature of the foundations of the union, with the South taking a position that would render the union little more than a confederacy-a position that, as the following essay shows, Madison strenuously opposed despite his general antipathy towards centralization of authority.

Modern revisionists, following the lead of Croly, have abandoned the Jeffersonian position. Though they pay due homage to what they understand to be Jeffersonian ideals, they find Hamilton's views on the necessity of a strong central government more suited to the achievement of these ideals. Yet, on this matter, the revisionists cannot rightly be called revisionists; that is, as the following selection shows, an extremely strong case can be made that Hamilton's view of the union was closer to what the Framers intended than Jefferson's or that advanced by Madison after the system was set in motion. In any event, it is generally conceded that Hamilton had much the better case concerning the scope of national powers. Moreover, his position corresponded far more closely to the teachings of The Federalist than that of Jefferson or of the later Madison.

For this reason, I find the position of many traditionalists in contemporary debates concerning federalism somewhat exasperating. Simply put, many traditionalists in their battle against the new constitutional morality simply assume, for instance, that Jefferson and eventually Madison articulated the Framers' views concerning the nature of the union and the proper scope of national authority relative to the states. And insofar as this puts the traditionalists on the side of "states' rights" -which it has had a pronounced tendency to do-the proponents of the new morality can claim to have the better case not only constitutionally but morally as well. More concretely, to take but one example, the civil rights issues of modern times have served to put the traditionalists on the defensive on both constitutional and moral grounds.

Yet, the basic issue between the traditionalists and the revisionists, as I see it, does not come down to the question of whether the national government has overextended its authority vis-à-vis the states according to some preconceived notions of how substantive powers ought to be divided between the two jurisdictions, but, rather, how or by what means the disputes over their relative domains are settled. Both logic and common sense tell us that controversies between the states and national government have to be settled by some agency of the national government. But-and this brings us back to reflect on the central element of the new constitutional morality-this agency need not be the Supreme Court, as the revisionists would have it. Rather, the constitutional morality set forth in The Federalist strongly suggests that the "common constituents" acting through Congress ought to have the last say concerning the proper division of authority between the national and state governments. In other words, consonant with the republican character of the system, Publius's teachings are that the people are the proper judge of the proper distribution of authority between the two layers of government. Such seems to have been the morality even at the time the Fourteenth Amendment was adopted: Section 5 of that amendment grants to Congress-significantly, not the courts-the authority to enforce the broad provisions of Section 1 (e.g., "due process of law," "equal protection of the laws") which can be used to severely limit state authority.

This should be taken to mean that, on the whole, I think Congress, particularly since the New Deal period, has acted responsibly. Its expansive use of the commerce power to intrude upon the states' police powers is, to say the least, imprudent. The entire system of federal grants-in-aid which give it leverage over the states leads to an inefficient and unresponsive government. Nevertheless, unlike many, if not most, judicial interventions into the realms traditionally reserved to the states, Congress's actions can be repealed or revised through the ordinary political processes.

The revisionists cannot abide by a political, as opposed to a judicial, resolution of issues surrounding state-national relations because of other aspects of federalism that are often overlooked today. Federalism, conceived not in terms of a division of sovereignty but as a principle that recognizes the states as equal constituent parts of the national government, has played and will continue to play an important role in our system. Part of the recognition-the "formal" part-is fused into our constitutional framework and processes (e.g., the equality of state representation in the Senate, the election of the President). But other and far more important aspects of this federalism so conceived are "informal," the product of an evolutionary growth. The most significant of these is the development of our party system with roots firmly planted at the state and local levels. Indeed, it is through the political parties that state and local interests find expression in the national councils, a fact that helps to insure that, in the resolution of state-national conflicts through the political processes, state and local interests will have to be reckoned with.

In this sense, federalism contributes to the "messiness" or "untidiness" of the constitutional system that the proponents of the new morality deplore. That is why they defend activist courts that operate through the Fourteenth Amendment to impose their will upon the states: the courts, that is, are perceived as rising above the parochialism that characterizes congressional deliberations and that often delays or forecloses needed "reforms." Beyond this, of course, the proponents of the new morality would sleep easier with disciplined, programmatic, and centrally controlled political parties that would be able to resist and overcome the centrifugal forces that arise from the mere existence of politically viable states.

JAMES MADISON AND THE PRINCIPLE OF FEDERALISM

Despite the prodigious efforts of biographers, analysts, and commentators over the decades, James Madison still remains an enigma. While he is widely hailed as the "father" of the Philadelphia Constitution, we find that he was, almost from the outset of its operations, schizophrenic about the nature of the political union it fashioned. To be more exact, his views or positions relating to the proper relationship between the state and national governments and their respective spheres of authority-that is, his posture towards issues that are subsumed today under the rubric "federalism" -shifted markedly during the course of his political career. 1 Clearly, this state of affairs casts doubts on the reliability of his views regarding the nature and character of the federal union. But, more importantly, it eventually leads us to inquire about the status of the federal principle itself. Could it be, in other words, that federalism, rather than being the product of a principled evolution from constitutional moorings, is really anchored only in political expediency wherein the relationship between the national and state governments at any given moment depends upon the mere will of the dominant political force?

Madison's views and positions on federalism are intriguing largely because they do invite us to ask this and related questions. And the reasons are not hard to discover. In the first place, as we shall see, Madison's conception of federalism changed significantly soon after the new Constitution began to operate. Moreover, even after this initial change, he was not entirely consistent in his outlook or in his answers to very important questions inherent in his conception of federalism. And, beyond this, we find that at various stages of his career he had to contend with tensions between theory and practice. These circumstances naturally give rise to serious questions concerning his teachings: after making accommodation to political reality, what principles or elements of federalism remain intact? Or, to phrase this concern somewhat differently, are there rules, tests, standards, or guidelines derivable from his theory of federalism that remained relatively "pure" or constant over time? What aspects of his theory or teachings might serve us today in resolving conflicts between state and national jurisdictions or defining the proper spheres of each? 2 What, in short, do Madison's thoughts, trials, and tribulations teach us about the federal principle?

Surveying Madison's thoughts on federalism with an eye toward answering these and like questions is not an easy matter, and it is best that we set forth our procedure at the outset. First, we must deal with Madison the "nationalist," that is, with Madison during what we will call his "first" or "nationalist" stage, which runs from almost the beginning of his political career to his famous break with Hamilton over the incorporation of a national bank in the very first session of Congress. After this break, we confront the so-called "strict constructionist" Madison who held to a narrow view of national authority. This represents his "second" or, as we put it at times, "shifting" phase, for, as we shall see, he wavered in his rules concerning constitutional construction. 3 We will initially be concerned with Madison's nationalism and the reasons for his abandonment of this position.

While we can divide Madison's views of state-national relations into two relatively distinct phases without much difficulty, his theoretical positions and views are not so readily amenable to such delineation. Writing as "Publius" in The Federalist, Madison can be read to stake out two positions: the nationalist, and one which, as we see in retrospect, is thoroughly compatible with his later and more restrictive views concerning national authority vis-à-vis the states. As we will indicate, his Federalist position is probably best understood as nationalistic because it does conform on virtually all salient points with Hamilton's view of the proposed Union. Nevertheless, as we will also make clear, there is no gainsaying the "other" position that forms the theoretical framework for understanding the perplexing problems that he confronted throughout his second phase. Showing this, as well as why it is so difficult to abstract from his writing and actions much by way of systematic or coherent views of federalism, is the focus of our concern after the initial sections.

Madison: The Nationalist

What seems clear is that experiences under the Articles had convinced Madison of the need for a stronger and more energetic national government. While this view was, no doubt, commonly held, it is safe to say that Madison's opinions on what form the new government should take were not so widely shared. In his famous letter to Washington on the eve of the Philadelphia Convention, he set forth his candid views concerning the nature of state-national relations he would like to see obtain under a new constitution. Conceding that the "consolidation of the whole into one simple republic would be" both "inexpedient" and "unattainable," he adopted a "middle ground" position that would "support the due supremacy of the national authority" while not excluding "the local authorities wherever they can be subordinately useful." 4 His vision called for a national government "armed with positive and complete authority in all cases that require uniformity" and, beyond this, "a negative in all cases whatsoever on the acts of the States." This negative he deemed "absolutely necessary" not only with regard to state actions that might contravene or impinge upon national authority, but also as a "control on the internal vicissitudes of State policy, and the aggressions of interested majorities on the rights of minorities and of individuals." 5 In sum, Madison envisioned a negative national power that could reach down into the distinctly internal affairs of the states.

Perhaps more telling than these structural arrangements and formal procedures were Madison's arguments against the states' rights position. At one point, to give, as he put it, "full force" to the arguments against a national government such as that envisioned in the Virginia Plan, he asks his fellow delegates to speculate on the consequences of giving an "indefinite power ... to the General Legislature" thereby reducing the "States ... to corporations dependent on the General Legislature." Reasoning in a manner consonant with the views he had expressed earlier to Washington, he saw no reason why under this arrangement the legislature would deprive the states of any power so long as its continued exercise by the states was either desired by the people or "beneficial." He points to the examples of the states, particularly Connecticut, where "all the Townships are incorporated, and have a certain limited jurisdiction" and asks rhetorically: "have the Representatives or the people of the Townships in the Legislature ever endeavored to despoil the Townships of any part of their local authority?" He concludes that this has not been the case insofar as "this local authority is convenient to the people." And he sees no reason why this same relationship or condition should not obtain between the states and a national government vested with indefinite powers: "As far as its [national government] operation would be practicable it could not in this view be improper; as far as it would be impracticable, the conveniency of the General Government itself would concur with that of the people in the maintenance of subordinate Governments." Beyond this, he did not believe that "the people would ... be less free, as members of one great Republic, than as members of thirteen small ones." Thus, even "supposing a tendency in the General Government to absorb the State Governments no fatal consequences could result." However, state encroachments on national authority, he felt, would have fatal consequences; a judgment he believed was borne out by "the experiment we are now making to prevent the calamity." 12

The lack of an effective negative also bothered him, as we might expect, because of his concern "to secure individuals against encroachments on their rights." In this connection, he observes, a "serious evil" arises from the "mutability" of the state laws while their "injustices" have become "so frequent and so flagrant as to alarm the most steadfast friends of Republicanism." Such laws, he argues, have done more to prepare the "Public mind for a general reform, than those which accrued to our national character and interest from the inadequacy of the Confederation to its immediate objects." "The restraints against paper emissions, and violations of contract" he describes as "short of the mark": "Injustice may be effected by such an infinitude of legislative expedients that where the disposition exists it can only be controlled by some provision which reaches all cases whatsoever. The partial provision made, supposes the disposition which will evade it." Having noted this, he then proceeds to a lengthy discussion of why it is that "private rights will be more secure under the Guardianship of the General Government than under the State Government," 16 a discussion that anticipates the arguments of his famous tenth Federalist.

Madison as Publius

For obvious reasons Madison had to abandon certain of his arguments and positions in his contributions to The Federalist simply because the movement toward a stronger union had entered a new phase; outwardly, at least, arguments over the form of this union had been settled at Philadelphia and now the task-at least as Madison seemed to perceive it-was to present a united front to marshal support for its adoption. 17 While, as we have remarked, Madison's contributions to The Federalist can be looked upon as providing the grounds for his restrictive views on national authority (a matter we will turn to later), 18 his nationalism clearly shows through in at least three significant ways. First, he sets forth in Federalist 10 and in the latter part of Federalist 51 the virtues of the proposed extended or large republic: "In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of the majority of the whole society could seldom take place on any other principles than those of justice and the general good" (269). Extensiveness, he notes, also requires "the delegation of the government ... to a small number of citizens elected by the rest" (10:46). And, from his perspective, the chances of obtaining virtuous and knowledgeable representatives were greater in the large than the small republic. Thus, the multiplicity and diversity of interests combined with representation by "fit characters" provided what he believed to be a "republican remedy for the diseases most incident to republican government," namely, a cure for the ravages of "majority factions" (10:48). In this regard, he summarily dismisses the possibility that minority factions would ever gain control of the constitutional apparatus. Such a faction, he writes, "may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution" (10:45).

On this score, Madison seemed to believe that there was an inverse relationship between extent of territory and susceptibility to the evils of faction. He held out no prospect that "pure" democracies, wherein the citizens "assemble and administer the government in person," could avoid the evils of faction. The nature of such democracies would "admit of no cure for the mischiefs of faction" since "impulse" and "opportunity" could so easily coincide among majorities: "A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual" (10:46). But small republics were, in his view, susceptible to the very same dangers. For example, Madison held out little prospect for just, stable, and republican government in Rhode Island outside the confines of union: "the insecurity of rights under the popular form of government within such narrow limits," he writes, "would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it" (51:269).

Second, he reiterates and expands upon his concern that the states will encroach upon the national government. He observes, once again, that the experiences of confederacies both "ancient and modern" conclusively show the proclivity of their members "to despoil the general government of its authorities, with a very ineffectual capacity in the latter to defend itself against the encroachments" (45: 236). And, though he concedes that the proposed constitutional system is quite dissimilar to these confederacies, he does not believe their experiences should be "wholly disregarded." He firmly held to the proposition that the states could more than fend for themselves in any conflict with the national government. On this point, he writes: "The State governments will have the advantage of the Federal government, whether we compare them in respect to the immediate dependence of the one on the other; to the weight of personal influence which each side will possess; to the powers respectively vested in them; to the predilection and probable support of the people; to the disposition and faculty of resisting and frustrating the measures of each other" (45:237).

And third, there can be no question that Madison viewed the Constitution as providing for a national government with full and sufficient powers to discharge the responsibilities placed upon it. While we will deal with this aspect of Madison's thought in another context, a good indication of the extent of his nationalism is the absence of any substantial differences between him and Hamilton-his principal collaborator and acknowledged nationalist-concerning the scope of national power. Indeed, what is somewhat astonishing is the similarity of their positions on key issues. In the first place, they both agree that the national government must possess the means necessary for the ends that are entrusted to its care. Hamilton writes as follows to this effect: "the means ought to be proportioned to the end; the persons from whose agency the attainment of any end is expected ought to possess the means by which it is to be attained." This proposition, he contends, rests upon "axioms as simple as they are universal" (31:15). Madison similarly maintains: "No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included" 19 (44:232).

Moreover, principally because the national government was charged with the responsibility of providing for the national defense, both men were opposed to placing any a priori limitations on the powers of the national government. Writing with regard to the national powers to provide for the national defense (e.g., "raise armies," "build and equip fleets") Hamilton puts the matter this way: "These powers ought to exist without limitation, because it is impossible to foresee or to define the extent and variety of national exigencies, and the correspondent extent and variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed" (23:11). On this same issue, Madison contends: "The means of security can only be regulated by the means and danger of attack. They will, in fact, be ever determined by these rules and by no others. It is vain to oppose constitutional barriers to the impulse of self-preservation. It is worse than vain; because it plants in the Constitution itself necessary usurpations of power, every precedent of which is a germ of unnecessary and multiplied repetitions" (41:210). 20

And, among other points of similarity, we find that both hold to the proposition that the extent of national powers vis-à-vis the states will depend on their "common constituents," who, in Madison's words, "ought not surely to be precluded from giving most of the confidence where they may discover it to be most due" (46:241). In a similar vein, Hamilton concludes: "If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measure to redress the injury done to the Constitution as the exigency may suggest and prudence justify" (33:160).

Despite the ambiguities and difficulties associated with Madison's position in The Federalist -as well as with Hamilton's, for that matter-a convincing case can be made that, from the early 1780s until shortly after the commencement of the system he helped to fashion, Madison was an energetic proponent of a strong national government. True enough, his nationalism assumed, as he put it in his letter to Washington, a "middle ground" that did not call for the abolition of the state governments. Nor did he envision a consolidated government wherein the national government would assume control over all functions. On the contrary, he could see the states performing numerous and vital functions. Yet, for all of this, the relative authority of the two governments with respect to one another did not, in his view, depend upon known and fixed constitutional rules, stipulations, or principles. Rather, in his judgment, the lines would (and should) depend upon two highly related factors: the wishes of the "common constituents" and the administrative capacities and competence of the two governments. In this scheme of things, there was no body of functions or powers that could be marked out as irrevocably within the domain of state authority. Instead, echoing the position he set forth in the Convention, Madison felt that over time it would be abundantly clear that "it is only within a certain sphere that the federal power can, in the nature of things, be advantageously administered" (46:241).

The "federalism" of Madison's nationalist phase can appropriately be characterized as "pragmatic." The boundary lines between the national and state authorities would be worked out over time; however, at any given point these lines could be altered. Moreover, Madison's approach made allowances for the fact that the national government might have to intrude upon even recognized and established areas of state authority in order to fulfill its responsibilities, particularly national defense. Hence, the lines between the two jurisdictions could never be considered as unalterably fixed.

Madison: The Strict Constructionist

What we have said to this point indicates that Madison's views toward state-national relations were straightforward and consistent. Certainly they pose no insoluble theoretical dilemmas. However, with his position on the incorporation of a national bank on constitutional grounds in 1791, we come to the second phase of his career. Put otherwise, at this point we witness an abrupt change in his approach to federalism, an approach, as we have already mentioned, that leads to practical and theoretical difficulties that he never resolves satisfactorily. 21 Nevertheless, by exploring them we do gain an insight into precisely why state-national relations have been a perennial source of controversy. Indeed, largely because our modern conception of federalism parallels that which we find in Madison's second stage, the problems that Madison wrestled with also stand at the heart of our contemporary controversies.

This shift, of course, prompts serious questions: What reasons can be adduced for Madison's rather sudden switch? Is it that he perceived a new way of looking at the political system devised at Philadelphia? If so, what caused this change of perception? And, in any event, what are we to make of the federal principle? These questions lead to others with still broader concerns: can the mere fact of such a reversal be taken as evidence that there was a lack of consensus at the Convention concerning the scope of national authority vis-à-vis the states? 25 Could it be that the Framers, to put this differently, simply took care to carve out the powers they felt it essential for the national government to possess, leaving the question of how far the exercise of these powers could intrude upon the residual powers an "open" matter to be worked out over time through the political processes much in the manner The Federalist suggests? And, if this be the case, is it not "legitimate" for one's views of state-national powers to vary according to the issues at stake in any particular controversy? This, of course, leads us back to the question of the constitutional status of federalism.

We will probably never know what caused Madison's change of heart. But the most frequently advanced explanations would lead us to believe that, contrary to Madison's professions, his change is attributable to factors far removed from the constitutional arguments he advances. One such explanation is that Madison, along with his fellow Virginians, viewed the incorporation of a national bank as serving Northern interests at the expense of the South. In this vein, Gaillard Hunt, certainly not an unfriendly biographer, perceives him as reacting against Hamilton's "inflexible devotion to a government of strongly centralized power" because Madison "knew ... that Hamilton's system was repugnant to a great majority of the people of America, whose attachments were local or sectional." And, in taking this stance, Hunt continues, "Madison secured the favor of the people of Virginia as he had never secured it before, and he now stood for the first time upon the firm ground of a public man who has behind him a constituency practically undivided in its support of him." If this means, Hunt argues, "base motives of expediency must be attributed" to Madison, so, too, must they be attributed "to the former Federalists in Virginia who now acted with him." 26 In this regard, Hunt does not overlook the possibility that Madison and others may have fallen under Jefferson's spell: "The truth is that Madison now had a party chief. This chief neither directed nor suggested Madison's opposition to Hamilton's consolidation policy, but his political conduct was now influenced by Jefferson's stronger personality and extraordinary power of attracting men to him." 27

Irving Brant offers a more principled explanation of Madison's behavior. In his account, Madison "saw the need to impose general checks against a mounting federal imperialism." But, because he faced "hostile majorities" in Congress, he was forced to turn "to the Constitution" even though its "ends and means presented a panorama of uncertainties." With the bank incorporation, Madison presumably found an issue that he could use to push for a doctrine of strict construction that might serve to stem dangerous centralization. 28 Beyond this, according to Brant, Madison's actions are understandable in another light: during his tenure in the House, he became not only an opponent of "the new money power grasping for control of the nation" but also the defender of "farmers, mechanics, storekeepers, small manufacturers-the American wayside of life-against organized commercial and financial interests with the government as their instrument." 29

Still another, more conceptual, explanation is offered by Marvin Meyers. In his view, Madison must be regarded as "a working statesman" who sought to achieve an "effective balance among the actual and shifting forces of American politics." Consequently, when he perceived that "the concentration of power in the national government appeared to threaten freedom, corrupt government, or drive substantial parties or sections to despair, he would organize countervailing powers and emphasize anticentralist, libertarian principles." Conversely, when the centrifugal force of local interests or presumed minority rights threatened needed and effective national authority, "Madison would throw his weight to the center and emphasize the principle of majority rule." According to Meyers, Madison's chief objective in this rather flexible policy "was the perfection of a lasting American republic." 30

But there are serious problems with those explanations that move us away from simple political expediency to more altruistic motives in accounting for Madison's turnabout concerning the scope of national powers. Not the least of these is that these explanations bring into question broader aspects of his theory, particularly his arguments relating to the workability and desirability of the extended republic. In this connection, we need only recall that Madison, writing as Publius, had maintained that the national government under the proposed Constitution would secure the rights and liberties of the people to a far greater degree than the state governments; that the multiplicity and diversity of interests in the extended republic rendered it unlikely that majority factions would rule; that the republican foundations of the system were sufficient to thwart minority factions; and, inter alia, that the states would enjoy a pronounced advantage over the national government in any disputes relative to their respective jurisdictions. In writing to this effect, he was only reiterating somewhat more systematically what he had said or written on other occasions over the years. Yet, the charitable explanations would have us abandon one or more of these contentions which stand at the very heart of his argument for the proposed Constitution. For instance, we are asked to believe that, within a period of two years-i.e., in the very first Congress-contrary to his previous position based on both history and firsthand experience, he had come to conclude that the states desperately needed protection from the national government; 31 or that minority factions had actually gained control of the national government. Thus, to the degree these explanations are correct, something would seem to be drastically amiss with his extended republic theory, something that could not be remedied by repeated expostulations on the modes of proper constitutional interpretation.

In addition to this, as we might gather from these explanations, we can expect to encounter difficulties in formulating easily transmissible rules or principles from Madison's approach in determining the proper state-national boundaries. Put otherwise, they suggest that ends or goals-whether for reasons of expediency or basic conviction-play a decisive role in his thinking about the constitutional boundaries between state and national power. And, even if it is true, as Meyers contends, that Madison was playing the role of "working statesman" -a role that would warrant his picking and choosing sides as the circumstances dictated-we still must face the question whether he did so by applying consistent rules and principles that can be communicated to future leaders who might like to play this same role.

These explanations certainly point to the conclusion that the major and enduring principles to be derived from Madison's thoughts on federalism will have to be found in the context of a wider, extra-constitutional framework. In other words, Madison's federalism does not reduce itself to a simple set of rules or principles presumably derived from the constitutional language. Rather, it involves a complex of considerations not the least of which would appear to be transcendent and distinctly nonconstitutional considerations and goals. This is a matter to which we shall return by way of discussing his legacy.

The Compound Republic

We do not mean to imply in the foregoing that there was no theoretical justification based on constitutional grounds for Madison's reversal. On the contrary, as we have taken care to point out, there did exist a theoretical framework to accommodate his position, elements of which he himself had set forth in The Federalist during his nationalist days. With the bank issue what we witness, in effect, is Madison jumping from one approach to state-national relations to another. And having chosen, in Brant's words, "the narrow path," Madison could find justification for it in The Federalist. However, this "narrow" approach, though at first glance theoretically more attractive than that of the nationalists, on further examination gives rise to problems and concerns that were never satisfactorily resolved in The Federalist and still remain very much with us today.

A convenient point of departure for surveying the key components of this framework, as well as how it differs from the old, is Federalist 39. This essay represents his most comprehensive overview of the proposed system from the vantage point of its federal character, and it also points to the theoretical problems and difficulties to which we have referred.

In Federalist 39, Madison sets out to answer "the adversaries of the proposed Constitution" who argue that its Framers did not preserve the "federal form, which regards the Union as a Confederacy of sovereign states"; that, instead, they established a " national government, which regards the Union as a consolidation of the States" (196). The first thing we note about this passage is Madison's use of the term "federal." 32 For him, as for the Founding Fathers, the words "federal" and "confederal" or "confederacy" were used interchangeably. Likewise, for Madison and others of the time, the terms "national" or "consolidated" were used to describe governments that we today would call unitary-systems wherein sovereignty resides in the central government. Today, of course, we use the term "federal," at least with regard to our constitutional system, to denote a division of sovereignty between the state and national governments. This terminological difficulty manifests the novelty of our constitutional arrangement in this respect; that is, at the time of founding there was no generally accepted term to describe the distribution of authority between the central government and the component units (i.e., the states) such as that contemplated in the Constitution. 33

Madison was quite aware of the "novelty of the undertaking." The Framers were, so to speak, trying to navigate in uncharted waters. While, he writes, "the existing Confederation is founded on principles which are fallacious" -so much so that it must be abandoned- "other confederacies which could be consulted as precedents, have been vitiated by the same erroneous principles." As a result, he observes, the history of confederacies "furnish[es] no other light than that of beacons, which give warning of the course to be shunned, without pointing out that which ought to be pursued" (37:182). In his last reflections on the nature of the system, written toward the very end of his life, he is to argue that for an understanding of the American political system it is necessary "to abandon the abstract and technical modes of expounding and designating its character; and to view it as laid down in the charter which constitutes it, as a system, hitherto without a model; neither a simple or a consolidated Government nor a Government altogether confederate." "The division and distribution of powers," he remarks, are "nowhere else to be found; a nondescript, to be tested and explained by itself alone." 34

To answer critics of the proposed Constitution who had evidenced concern about its departure from the federal (confederal) principle and to determine its "real character," Madison proposes five tests: (a) "the foundation on which it is to be established"; (b) "the sources from which its ordinary powers are to be drawn"; (c) "the operation of those powers"; (d) "the extent of them"; and (e) "the authority by which future changes in the government are to be introduced" (39:196). Two of these tests-(a) and (d)-which relate to the foundations of the system and the extent of the powers of the national government, are to concern Madison throughout his life. The other tests scarcely involve any problems or controversy at all. As for (b), since "the House of Representatives will derive its powers from the people; and the people will be represented in the same proportion, and on the same principle, as they are in the legislature of a particular state," the proposed system partakes of a national character. But the Senate, wherein there is provision for equality of state representation-a recognition of the states "as political and coequal societies" -embodies the federal principle. Thus, with regard to test (b), the system is "mixed" since it embodies both the federal or confederal and national principles (39:197). Test (c) relating to the "operations" of the national powers is easily answered: because the national government will operate directly upon the individual citizens composing it, and not through the states as intermediaries, it is national in this regard. Test (e), though a bit more involved, poses no real difficulties. This method for change is not national because "the supreme and ultimate authority" does not "reside in the majority of the people of the Union." Nor is it federal, since the concurrence of each state is not necessary for alteration. As Publius puts this: "The mode provided by the plan of the convention is not founded on either" national or federal principles. Yet it does bear a cousinly resemblance to them. To the extent that the procedure requires the concurrence of an extra-majority of the states, "it departs from the national and advances towards the federal character." However, to the degree the process does not require unanimity among the states, "it loses again the federal and partakes of the national character" (39:198).

However, difficulties do arise with regard to tests (a) and (d). While there is an interrelationship between these two tests that accounts for a good deal of Madison's observations about federalism, we do best to begin by examining them separately. Turning first to (a), Madison writes that the foundation of the Union is "federal." In this respect, he notes, the "assent and ratification" to the Constitution is not to be given by the people as "comprising one entire nation, but as composing the distinct and independent States to which they respectively belong" (39:196). At first blush this would suggest that the Constitution is a compact between sovereign and equal states very much along the lines of the Articles. A closer examination of why Madison labels the foundation "federal," however, does not support this view. In context he is applying the term "federal" to the mechanics of ratification; that is, it is through state conventions specially elected and convened that the Constitution is to be ratified. This mode of procedure is consonant with the federal principle. But the parties to the Constitution are not the states operating in their political capacities, the arrangement under the Articles. On the contrary, Madison is clear throughout his discussion on the crucial point: "the Constitution is to be founded on the assent and ratification of the people of America," not the states as political entities. "It is to be," he affirms, "the assent and ratification of the several States, derived from the supreme authority in each State-the authority of the people themselves" (39:196). 35

Though at times unduly vague, Madison is consistent throughout his career in maintaining that the Constitution is founded on the "assent and ratification" of the people. True enough, the Virginia Resolutions, which Madison authored to denounce the Alien and Sedition Acts, assert the "right" of the states "to interpose" their authority "for arresting the progress of the evil, for maintaining, within the respective limits, the authorities, rights, and liberties pertaining to them" -a "right" that devolves from the position that "the powers of the federal government" result "from the compact to which the states are parties." 36 But in the Virginia Report, which he wrote by way of justifying these Resolutions against the criticisms of other states, he clarifies this matter. He notes here that the word "state" is used in different senses in different contexts: "it sometimes means the separate sections of territory occupied by the political societies within each; sometimes the particular governments established by those societies; sometimes those societies as organized into those particular governments; and lastly, it means the people composing those political societies, in their highest sovereign capacity." And, he continues, "whatever different construction of the term 'states,' in the resolution, may have been entertained, all will at least concur in the last mentioned; because in that sense the Constitution was submitted to the 'states'; they are consequently parties to the compact from which the powers of the federal government result." 37 Nevertheless, we hasten to add, while this clarification does render him consistent concerning the foundations of the union, we should not conclude that his arguments concerning interposition are constitutionally sound. Quite the contrary. As we shall see, this clarification undercuts the theoretical ground upon which the Resolutions are based. (See, for instance, note 69.)

Despite this, we must note, Madison did not deny the right of a state to rebel against national authority. In answering the question what remedies are available "against the usurpation of power" by the national government other than the "right of the States individually to annul or resist them," he responds that, if recourse to constitutional processes should fail (e.g., "Ballotboxes & Hustings"), "and the power usurped be sustained in its oppressive exercise on a minority by a majority, the final recourse to be pursued by the minority, must be a subject of calculation, in which the degree of oppression, the means of resistance, the consequences of its failure, and consequences of its success must be the elements." In this case, the minority would have no choice "but to rally to its reserved rights ... and to decide between acquiescence and resistance, according to the calculations above stated." 41 But the right in question is not, perforce, a constitutional right; it is found in a higher authority, according to Madison, "the law of nature and of nature's God." 42

As Marvin Meyers notes, the Virginia Resolutions did serve to drive the national debate at a critical juncture in our history to "the roots of political order and the nature of the Union." 43 Moreover, they opened up a line of argument that was highly susceptible to exploitation by the later proponents of nullification. Nevertheless, Madison's view of the founding, consistent throughout his career, provided no theoretical support for these proponents. On the contrary, his conception of founding can be considered the major centripetal "force" in his theory of federalism.

The Problem of Divided Sovereignty

Where real difficulties do arise, as our discussion of founding intimates, is over test (d), the "extent" of the powers of the national government. It is with respect to this concern that we see the full dimensions of Madison's change of views concerning the nature of the Union. Significant portions of his analysis in Federalist 39 seem to be fully compatible with the positions and thoughts expressed in his second phase. For instance, he does tell us with respect to this test that the government is not "national" -i.e., unitary- in character. "The idea of a national government," he writes, "involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government." In such systems, he points out, "all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure." But, because the jurisdiction of the "proposed government extends to certain enumerated objects only, and leaves the several States a residuary and inviolable sovereignty over all other objects," it "cannot be deemed a national one" (39:19). Only in the final paragraph of the essay does he come around to labeling the new government "federal" with respect to extent of powers. 44

At various points in his writings, Madison has occasion to recur to a notion of "divided sovereignty" that derives from his conception of the extent of national powers. In his "Notes on Nullification," for instance, he writes that "the constitutions of the States, made by the people as separated into States, were made by a sovereign authority residing in each of the States, to the extent of the objects embraced by their respective constitutions. And if the states be thus sovereign, though short of so many of the essential attributes of sovereignty, the United States by virtue of the sovereign attributes with which they are endowed, may, to that extent, be sovereign, tho' destitute of the attributes of which the States are not shorn." 45 On this point, he maintains that "those who deny the possibility of a political system, with a divided sovereignty like that of the U.S. must choose between a government purely consolidated, and an association of Governments purely federal," two forms that have in his view proved fatally defective over the course of history. Our "compound system," "partly federal and partly consolidated," he goes on to say, "has been successful beyond any of the forms of Government, ancient or modern, with which it may be compared." 46

Madison, writing in The Federalist, tells us something about the character or nature of the residual powers of the states. As we might expect, he is not too specific. In Federalist 10, for example, he envisions the "great and aggregate interests being referred to the national government, the local and particular to the State legislatures" (47). In most cases he indicates the scope and nature of the states' residual powers by spelling out in some detail the powers of the national government. His most definitive statement concerning this division is to be found in Federalist 45:

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the States are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and property of the States (238). 47

While there are obvious problems associated with this concept of "divided sovereignty," some of which we will discuss later, we may provisionally note one aspect of this matter that is not so obvious: the divided sovereignty, as pictured by Madison, may be accepted as a fact; yet, there are different ways of looking at this fact in formulating a conception of the relative constitutional powers of the state and national governments. Proof of this is that Hamilton, writing in Federalist 9, seemed to share the conception of divided sovereignty that Madison advanced in Federalist 39. "The proposed Constitution," in his words, "so far from implying an abolition of the State governments, makes them a constituent part of the national sovereignty ... and leaves in their possession certain exclusive and very important portions of sovereign powers" (41). 48 But Hamilton surely did not come to look upon this division in the same way as Madison, namely, as a limitation on the extent of the exercise of the delegated powers of the national government.

Beyond this, as our previous remarks would suggest, it is doubtful-despite Madison's assertion to the contrary-that the states' residual powers could be considered "inviolable." At the very least, Madison's theory as set forth in The Federalist points to a "tension" on this score, for, as we have seen, it cannot entertain the notion of any limits on the exercise of powers necessary for the national defense. And we can readily imagine the national government intruding upon the states' domain, and legitimately so, to defend the Union against foreign attack. However, and very much to the point, Madison did not conceive of the national government's having a blank check; that is, he recognized that the first clause of Article I, Section 8, which authorizes Congress "To lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts, and provide for the common Defense and general Welfare of the United States," could be (and, indeed, was by certain Antifederalists) interpreted to provide the national government with "an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare" (41:214). In other words, such an interpretation, he believed, would render the system virtually unitary with respect to extent of powers. Consequently, he seems keen on refuting any such reading: "For what purpose," he asks, "could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power?" By way of answering, he remarks, "Nothing is more natural or common than first to use a general phrase, and then to explain and qualify it by a recital of particulars." Thus, he contends, the particulars or enumerated powers can be exercised in accordance with the goals or intent expressed in the "general phrase" (41:215).

Madison also employs the "inadmissible latitude of construction" principle in his criticism of Marshall's decision in McCulloch v. Maryland. His argument is not that Marshall reached the wrong conclusion concerning the constitutionality of the national bank-a position that he could hardly take since he had, as President, switched sides on this measure. Rather, he argues that the test developed by Marshall in determining the legitimate extent of national powers was far too "broad" and "pliant." Specifically, he objected to the "high sanction given to a latitude in expounding the Constitution which seems to break down the landmarks intended by a specification of the Powers of Congress, and to substitute for a definite connection between means and ends, a Legislative discretion as to the former to which no practical limit can be assigned." "Ends and means," he observes, "may shift their character at the will and according to the ingenuity of the Legislative Body. What is an end in one case may be a means in another; nay in the same case, may be either an end or a means at the Legislative option." 49 In this regard, he felt that a major source of "the error in expounding the Constitution" is to be found "in the use made of the species of sovereignty implied in the nature of government"; namely, that "the specified powers vested in Congress ... are sovereign powers, and that as such they carry with them an unlimited discretion as to the means of executing them." But, Madison is quick to point out, "limited government may be limited in its sovereignty as well with respect to the means as to the objects of its powers; and that to give an extent to the former superseding the limits to the latter, is in effect to convert a limited into an unlimited Government." In this respect, he held that there is a "reasonable medium between expounding the Constitution with the strictness of a penal law, or other ordinary statute, and expounding it with a laxity which may vary its essential character, and encroach on the local sovereignties with which it was meant to be reconcilable." 50

Madison, in his post-nationalist phase, makes good use of the proposition that no phrase or clause of the Constitution should be interpreted in such a way as to give the national government an "unlimited commission." The most notable of these is probably his veto in 1817 of an internal improvements bill, one of his last acts as President. In his veto message, which also constituted his farewell message, he warned that an improper interpretation of the "common Defense and general Welfare" clause would give Congress "a general power of legislation instead of the defined and limited one" intended. Citing the "supreme Law of the Land" clause, he contended that such an interpretation "would have the effect of subjecting both the Constitution and the laws of the several States in all cases not specifically exempted to be superseded by laws of Congress." 51 Towards the end of his message, he applies the same principle in more general terms: he cannot see how the power for internal improvements can "be deduced from any part" of the express powers "without an inadmissible latitude of construction." And without "adequate landmarks" he feared that "the permanent success of the Constitution" which "depended on a definite partition of powers between the General and the State Governments" would be endangered. 52

The Final Say: Nation or States?

From what we have said to this point, we can readily see that Madison's task in preserving the divided sovereignty would have been easier if he could have substantively identified those portions of "inviolable sovereignty" retained by the states. 53 This is to say, if he could somehow draw a line between the two jurisdictions, then the task of maintaining the proper division would be immensely facilitated. More concretely, in his criticisms of Marshall, he seems to advance the proposition that the states' residual powers or authority do place limitations on the means that the national government may use in executing its delegated powers. Yet, he does not specify what these residual powers are. But, it seems clear that coming to the "reasonable medium" he calls for would be far easier with at least some specification of areas within the sovereign domain of the states. What seems equally clear, moreover, is that Madison was fully aware of the impossibility of spelling out a substantive division or allocation of powers between the state and national governments, just as he could perceive the futility of attempting "a positive enumeration of the powers necessary and proper" for the exercise of delegated powers (44:232). This, it would seem, accounts for the fact that, when he writes of the division of powers, he does so in general, not specific, terms. Indeed, he speaks not so much of powers but of the different objectives, goals, and purposes of the two jurisdictions.

But if the powers cannot be substantively divided so that the parties have a pretty clear idea of where they stand relative to one another, then the answer to maintaining a division must be sought by providing procedures to settle differences as they arise. And, returning to Federalist 39, we see that Madison, immediately after writing of the states' "residual and inviolable sovereignty," turns to the crucial matter of how controversies should be settled. Here he declares that "the tribunal which is ultimately to decide, is to be established under the general government." This, he is quick to add, "does not change the principle of the case"; this tribunal is to decide controversies "impartially ... according to the rules of the Constitution." To secure this impartiality, he writes, "all the usual and most effective precautions have been taken." Such a "tribunal," he concludes, "is clearly essential to prevent an appeal to the sword and a dissolution of the compact; and that it ought to be established under the general rather than under the local governments...is a position not likely to be combated" (198). 54

It is with regard to the issues raised in this passage that the major difficulties associated with Madison's "second phase" federalism seem to arise. In the first place, it seems a bit disingenuous for him to maintain that the controversies are to be settled "according to the rules of the Constitution." This suggests that the Constitution does contain known rules for the resolution of such conflicts that the tribunal can and should apply. But, save for very obvious and flagrant cases-and these, in the nature of the case, would usually involve state encroachment on national authority-it is difficult to discern any such rules. To see this we need only take important areas where conflict could easily have been foreseen. For instance, what rules does the Constitution set forth for the impartial resolution of state-national conflicts that arise over the meaning of the "necessary and proper" clause? Or what rules do we find for impartially determining the scope and nature of the commerce power relative to the residual powers of the states? In any event, as we have already seen, integral to any dispute over the proper boundaries between state and national jurisdictions is the issue of what "tests" or rules ought to be employed. This is to say, if agreement could be reached over the rules for the settlement of disputes, controversies between the jurisdictions would substantially subside. Indeed, to the extent any such rules could be refined, such conflict might conceivably disappear altogether. In short, Madison, in referring to such rules, seems to beg the question.

We can look at the passage in another light that would, at first glance, seem to make more sense; namely, by "rules of the Constitution" Madison was referring simply to procedures called for by the Constitution; that is, for example, disputes are to be settled by a national authority, not by the states. But looking at the phrase from this perspective is not without enormous drawbacks. The fact is that Madison, even writing as Publius, is not at all unambiguous about how disputes should be settled. Quite the contrary. We need only recall here his position in Federalist 46, namely that the jurisdictional lines "will not depend merely on the comparative ambition or address of the different governments." Rather, he holds, "the ultimate authority, wherever the derivative may be found, resides in the people alone. Truth, no less than decency requires that the event in every case should be supposed to depend on the sentiments and sanction of the common constituents." And, beyond this, he writes: "If ... the people should in future become more partial to the federal than to the State governments, the change can only result from such manifest and irresistible proofs of better administration, as will overcome all their antecedent propensities" toward the state governments. If this does turn out to be the case, he does not believe the people should "be precluded from giving most of their confidence where they may discover it to be most due" (241).

We have, then, on the face of it, two answers to the procedural question of who should decide: a tribunal, presumably the Supreme Court, or the common constituents. It might be argued, of course, that Madison really provides only one answer: he believed that the Supreme Court should make an initial ruling that the "common constituents" could overturn through the amendment process, if they so desired. But this interpretation seems most unlikely, because it is an open invitation to frequent debate about fundamental constituent principles, a debate that could only undermine public confidence in the Constitution. On this matter, the words of Federalist 49 are quite relevant: "The danger of disturbing the public tranquility by interesting too strongly the public passions, is a still more serious objection against a frequent reference of constitutional questions to the decision of the whole society" (260).

But if, as seems likely, the "common constituent" solution does not mean the people acting in their constituent capacity (i.e., amending the Constitution), then we must ask: How or by what means are the common constituents to settle these jurisdictional disputes? How are they to adjust the boundary line between the national and state authorities? The most obvious answer would seem to be through Congress, since it is the only institution that can be said to represent the common constituents. This, of course, would be to lend a presumptive legitimacy to whatever decision Congress-the institution most likely to encroach upon the states' domain-may make concerning the extent of national powers vis-à-vis the states. This would oblige those who might contend that the national government has overstepped its bounds to make their case in the political arena in hopes of persuading Congress to reverse itself. What this means, in turn, is that Madison looked upon the disputes surrounding state-national relations as primarily political issues to be settled through distinctly political, not judicial or constituent, processes. Such a solution is certainly consonant with Madison's nationalistic views and, in slightly different form, it comes to play a significant role in his second phase thinking.

While this solution is tantamount to making Congress, the chief repository of national powers, the judge of the extent, Madison, writing as Publius, did not see any real dangers to the states' residual sovereignty resulting from this. Indeed, as we have already noted, he believed the common constituents would have a distinct propensity to favor the states over the national government should there be any conflict. Certain of his points in this respect are noteworthy in light of his later thoughts concerning state-national relations. On one side, Madison believed that "the prepossessions, which the members of Congress will carry into the federal government, will generally be favorable to the States." Congress under the Articles, he observes, paid "an undue attention to the local prejudices, interests, and views of the particular States" (46:242). And, while he sees every prospect that the new national government "will ... embrace a more enlarged plan of policy," its members surely will "be disinclined to invade the rights of the individual States, or the prerogatives of their governments." However, he does not believe such a "reciprocal" disinclination would be found in state governments bent upon augmenting "their prerogative by defalcation from the federal government" (46:242).

But what if the national government were to "feel an equal disposition with the State government to extend its power beyond the due limits"? (46:242) Madison answers this question at some length and provides still another, though distinctly nonconstitutional, solution to state-national controversies. He notes that, "should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand" (46:242). "The disquietude of the people; their repugnance, and, perhaps, refusal to cooperate" coupled with "the frowns of the executive magistracy of the State" and "embarrassments created by legislative devices" would pose difficulties "in any State" and "very serious impediments" "in a large State." And if, he continues, "several adjoining States" were to act "in unison," they would "present obstructions which the federal government would hardly be willing to encounter" (46:243).

The situation, from Madison's perspective, could only worsen if the federal government were to undertake "ambitious encroachments ... on the authority of the State government." Such encroachments, he writes, "would be signals of general alarm. Every government would espouse the common case. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole. The same combinations, in short, would result from an apprehension of the federal, as was produced by the dread of a foreign, yoke; and unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other." Yet, Madison can scarcely envision this occurring: "Who," he asks, "would be the parties" in such a showdown? He answers: "A few representatives of the people would be opposed to the people themselves; or rather one set of representatives would be contending against thirteen sets of representatives, with the whole body of their common constituents on the side of the latter" (46:243).

Madison, not content to rest his case on these grounds alone, turns to the "visionary supposition that the federal government might over time set out to accumulate a military force for the projects of ambition." Aside from arguing that the national government could not conceivably raise an army large enough for this purpose, he ridicules the notion that "the people and the States should, for a sufficient period of time, elect an uninterrupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads" (46:244). In sum, he holds that "the federal government" under the forms of the proposed Constitution "is sufficiently dependent on the people" and that "it will be restrained" by this "dependence from forming schemes obnoxious to their constituents" (46:245).

The Final Say: Courts or Congress?

As we have indicated, all of the theoretical difficulties that flow from The Federalist manifest themselves in Madison's second phase. To be sure, they take on an added complexity, but in the last analysis they come down to a search for a suitable procedure or process for settling controversies within his system of divided sovereignty. As we might expect, it is a search in which we find Madison again shifting ground, so much so that he appears to provide no definitive answer to this critical concern. This can best be illustrated by examining some of his salient positions.

We can fruitfully begin with his 1831 response to the charge of inconsistency leveled against him for assenting as President (1817) to the creation of a national bank. In this response he argues that an authoritative status attaches to constitutional interpretations that are grounded on a seemingly enduring consensus that finds expression in the political branches of the national government. In maintaining this, he of course has to face up to a theoretical question that arises from his conception of the Constitution as binding and fundamental law; namely, having sworn to uphold the Constitution, was he not bound, as President, to adhere to "his own construction of it," however different that construction might be from the "consensual" construction? 55 This he answers by contending that even the "most ardent theorist" would "find it impossible to adhere, and act officially upon, his solitary opinions as to the meaning of the law or Constitution, in opposition to a construction reduced to practice during a reasonable period of time; more especially when no prospect existed of a change of construction by the public or its agents." In effect, he argues, "the true and safe construction of a constitution" is to be found in "the uniform sanction of successive legislative bodies, through a period of years...under...varied parties," rather than in "the opinions of every new Legislature" which may fall under the spell of "the spirit of party" or the "eloquence and address of popular statesmen, themselves, perhaps, under the influence of the same misleading causes." 56

More specifically with regard to the national bank, he notes that its original foundation had been the subject of "ample discussion in its passage through the several branches." Moreover, during its twenty years of existence it had received "annual legislative recognition" and "the entire acquiesence of all local authority, as well as of the nation at large." He concludes: "a veto from the Executive under these circumstances, with an admission of the expediency and almost necessity of the measure, would have been a defiance of all obligations derived from a course of precedents amounting to the requisite evidence of the national judgment and intention." 57

Yet, in the very same year that Madison signed the bank bill, he saw fit-as we have remarked previously-to veto the internal improvements bill on virtually the same grounds he took in his original opposition to the bank. In his veto message, however, he is evidently concerned with the matter of precedents and consent. Aside from remarking that the "power to construct roads and canals" cannot be derived from the Constitution without "an inadmissible latitude of construction," he also notes that the "assent of the States," as provided for in the bill, cannot extend the powers of Congress into areas beyond those "specified and provided for in the Constitution." 58 Nor could Madison find sufficient "precedent" for the assumption of such a power despite the fact that during the Jefferson administration he had personally overseen extensive internal improvement projects. In this instance Madison holds that the national government can secure this power only through the amendment process. 59

While his reversal on the bank issue does help us to determine what constitutes a lasting consensus among the common constituents regarding state-national boundaries, it also raises a number of questions and concerns, some of which are intensified by his veto of the internal improvements bill. To begin with, what is sufficient precedent for a given constitutional construction? After all, what seems clear is that Madison could easily have found ample precedent to sign the internal improvements bill had he been so inclined for the very reasons he advances in justification for reversing his position on the bank. Assuming precedent to be a legitimate consideration in judging of the constitutionality of a measure, unless we can specify what constitutes sufficient precedent with some degree of precision, it cannot very well serve the ends that Madison had in mind; namely, a high degree of certainty, stability, and continuity concerning the meaning of the Constitution which is necessary for a decent and orderly government characterized by liberty. We might find, as the very examples before us suggest, that what is sufficient precedent for one might not be so for another. Consequently, over a period of years marked by abrupt changes in partisan sentiment, grounds would exist for both claiming and denying the existence of sufficient precedents.

Similar concerns arise with determining what we have called the "consensus" among the common constituents. It would seem that, on the basis of what Madison writes in this regard, we have good reason to presume such a consensus if the political parties have held the same constitutional construction for a "reasonable" period of time. Yet, what if a sizeable minority of one of the parties-perhaps say, the representatives of a particular geographical region-has, over the years, consistently opposed the construction given by legislative majorities? Are we to say, then, that a consensus exists? Or do we make this determination, as Madison seems to suggest, on an estimate of the possibilities of "a change in the public opinion"?

In addition to reliance on precedent and consensus as a means for fixing the proper state-national boundaries, Madison also perceived a role that the states might play. Because he was particularly anxious in the later part of his life to dissociate the Virginia Resolutions and Report which he authored from the doctrine of nullification advanced by South Carolina, he was compelled to differentiate, at least to some degree, the proper and improper constitutional modes of state protest against what the states considered to be intrusions on their authority. This endeavor can be viewed as a modification and refinement of his views presented in Federalist 46, where, as we have seen, he discusses the states' role in containing the national government.

Madison in his "Notes on Nullification" dwells upon these resolutions to distinguish their meaning and intent from that of the nullification doctrine advanced by South Carolina. But his basic concern is a narrow one; namely, that his resolutions do not assert the right of a single state "to arrest or annul an act of the General Government which it may deem unconstitutional." Rather, he points out, throughout the Resolutions the right of the interposition is said to reside in the "States" -the plural, rather than singular, reference. To this effect, he writes: "by the rightful authority to interpose ... was meant, not the authority of the States singly and separately, but their authority as the parties to the Constitution; the authority which, in fact, made the Constitution; the authority which being paramount to the Constitution was paramount to the authorities constituted by it, to the Judiciary as well as the other institutions." In this vein, he goes on, "There cannot be different laws in different states on subjects within the compact without subverting its fundamental principles, and rendering it as abortive in practice as it would be in theory." Indeed, he notes, "the persevering differences among the States on the constitutionality of Federal acts" would be sufficient to cause turmoil in the system. 63

Madison's rejection of nullification and defense of the Virginia Resolutions does make sense on at least two grounds. The most obvious, of course, is that to acknowledge the right of nullification by a single state would undoubtedly lead to chaos ultimately destructive of the Union. Indeed, why he chose to direct his argument only against nullification by a single state is baffling since the same consequences would flow in rough proportion as the states are less than unanimous in nullifying a particular national law. Of greater significance in light of his other views on this matter is his defense of interposition on purely political grounds; that is, as a formal, structured, and organized protest. At this level he believes the effort resulted in "a triumph over the obnoxious acts, and an apparent abandonment of them forever." And, while he concedes that some contend the Resolutions did not have this effect, he maintains that their impact "may be safely left to the recollection of those who were co-temporary with the crisis, and to the researches of those who were not, taking for their guides the reception given to the proceedings by the Republican party everywhere, and the pains taken by it, in multiplying republications of them [the Virginia Resolutions] in newspapers and in other forms." 64

Beyond this there are very serious problems with interposition, so serious that it is highly doubtful that it could ever represent a workable means or method for the settlement of state-national tensions. On the practical side, it should be noted, interposition, however it might be exercised by a state, presumably could be resorted to only when all the states had come to agreement concerning its appropriateness or necessity. We say "presumably" because Madison is not exactly straightforward on this question. However, he does write of the states' interposing in "their collective character as parties to and creators of the Constitution." 65 His evident concern would seem to be providing for uniformity of law among the states in the interposition process in order to avoid the potential chaos inherent in the doctrine of nullification by a single state. To this point he writes that the purpose "to be attained by the invited cooperation with Virginia" was "to maintain within the several States their respective authorities, rights, and liberties, which could not be constitutionally different in different States, not inconsistent with a sameness in the authority and laws of the U.S. in all and in each." 66 In any event, Madison does not indicate that he believes anything short of unanimity-e.g., two-thirds or three-fourths of the states-is sufficient to "trigger" interposition.

Bearing this in mind, there is every reason to believe that interposition would never prove an effective barrier to national encroachments. It is hardly possible, for reasons that Madison spells out in The Federalist, that Congress would pass a law so blatantly intrusive that all of the states-or even three-fourths or two-thirds-would act to interpose. The negative reception accorded the Virginia Resolutions should have made this much abundantly clear to Madison, the more so as he regarded his case against the national government as conclusive. 67 Moreover, reliance on interposition could well prove counterproductive from the states' point of view; that is, if, perchance, the national government were intent on encroaching on the states, the unanimity (or extra-majority) requirement would make it extremely difficult for the states to resist. What is more, the states' failure to interpose effectively could be taken to bestow constitutionality on the questionable national laws. Thus, at this level, interposition would seem to be totally inadequate for the very purposes Madison had in mind. In fact, to rely upon it would serve to give the national government a relatively free hand in setting state-national boundaries.

On the theoretical side, Madison contends that the import of the Virginia Resolution was "to show that the authority to interpose existed, and was a resort beyond that of the Supreme Court ... or any authority derived from the Constitution." 68 However, in his depiction of the process there is a serious flaw that stems from the fact that, if interposition proceeds from the state legislatures in the manner he suggests, then it is the state governments, not the constituent majorities in the states, that are determining the division of authority. Clearly, given Madison's own conception of our constitutional foundations, the state governments have no more authority to do this than the national government. What this means is that, even if all the states were to agree to interpose, their subsequent actions would lack constitutional sanction. 69

Why Madison involved himself so deeply in such an exercise and why, afterwards, he sought to justify it on the grounds that he does is puzzling, particularly in light of Article V which provides an easier and constitutional means of redress. What is apparent is that his efforts to "fuse" the states into the process of resolving state-national controversies cannot be taken seriously from a constitutional point of view. Save for the amendment process-and even here there are difficulties-the states, for all practical purposes, are constitutionally "locked" into the system at a decided disadvantage compared to the national government. 70 Nevertheless, much as he had in The Federalist, Madison looks upon the states as a political force that must somehow be factored into the final resolution. Viewed from this perspective, his doctrine of interposition makes sense; it provides an outlet for the expression of views from the states that prudent politicians at the national level would do well to heed. In the last analysis, to judge from what he does say about it in relation to the Alien and Sedition Acts, he did look upon interposition in this fashion.

Finally, Madison's views on the Court as an arbiter of state-national boundaries in his second stage retain the ambiguities we encountered in The Federalist. More than once he reaffirms and amplifies his position as set forth in Federalist 39. At one point, he maintains that "the provision immediately and ordinarily relied on" for the settlement of "controversies ... concerning the partition line between the powers belonging to the Federal and State government ... is manifestly the Supreme Court of the United States, clothed as it is with a jurisdiction 'in controversies to which the United States shall be a party'... and being so constituted as to render it independent and impartial in its decisions." He adds that "other and ulterior resorts" for the settlement of controversies "would remain, in the elective process, in the hands of the people themselves, the joining constituents of the parties, and in the provision made by the Constitution for amending itself." 71

On another occasion he puts the Court's role in a wider context. To secure "the rights and powers of the States in their individual capacities, against an undue preponderance of the powers granted to the government over them in their united capacity, the Constitution has relied on, (1) the responsibility of the Senators and Representatives in the Legislature of the U.S. to the Legislatures and people of the states; (2) the responsibility of the President to the people of the U.S.; and (3) the liability of the Executive and Judicial functionaries of the U.S. to impeachment by the Representatives of the people of the States, in one branch of the Legislature ... and trial by the Representatives of the States, in the other branch." While conceding that "time alone" will determine whether "this structure of Government" will operate to preserve the legitimate rights and powers of the states, he feels that thus far (1830) "sufficient control, in the popular will," has been exercised over the "Executive and Legislative Departments." Such, he notes, was the case with the Alien and Sedition Laws when "the first election that ensued after their passage put an end to them." Moreover, in his opinion, "whatever may have been the character of the other acts, in the judgment of many of us, it is but true, that they have generally accorded with the view of a majority of the States and of the people." 72

Turning specifically to the Supreme Court in this context, he maintains that the "thirty-ninth number of The Federalist " embodies both the "prevailing view" at the time of founding and the "view that has continued to prevail" concerning the settlement of controversies between the national and state governments: namely, the Supreme Court is "the tribunal which is ultimately to decide." He is quick to add this "concession of ... power to the Supreme Court, in cases falling within the course of its functions ... has not always been rightly exercised." But, though the courts have on occasion rendered decisions "which have incurred serious and extensive disapprobation," Madison still gives the judiciary and, presumably, the Supreme Court, high marks: "with but few exceptions, the course of the Judiciary has been hitherto sustained by the predominant sense of the nation." 73

In this context Madison was not so much concerned with the Court setting forth general principles or standards for determining state-national boundaries or restraining the national government, as with the capacity of the national government to enforce its laws uniformly among the states. He emphasizes "the utter inefficiency of a supremacy in a law of the land, without a supremacy in the exposition and execution of the law." What is more, he argues, without national judicial supremacy "all equipoise between the Federal Government and the State Governments" would be destroyed: "whilst the functions of the Federal Government are directly or indirectly elected by and responsible to the states, and the functionaries of the states are in their appointment and responsibility wholly independent of the U.S., no constitutional control of any sort belonged to the United States over the States." What is "evident" from this, according to Madison, is that without national judicial supremacy "it would be in the power of the States, individually, to pass unauthorized laws, and carry them into complete effect, anything in the Constitution and law of the U.S. to the contrary notwithstanding." 74

What we see from the foregoing is that there are two aspects or dimensions of Madison's position regarding the role of the Court: one that deals with its role relative to the states; the other that concerns its authority relative to the other branches of the national government, principally Congress. The first of these, the one that Madison emphasizes here, is relatively free from difficulties. The Court, this is to say, is indispensable for the reasons that Madison sets forth. Yet, in Madison's view, the Court is obliged to nullify national laws that encroach upon the states' residual powers. But, in this respect, he does not advance our understanding of the principles, standards, norms, or doctrines the Court is to use in making its determinations much beyond what he writes in The Federalist.

Theoretical and practical problems beyond those raised in The Federalist do emerge, however, in his second phase. One very practical concern, and one that he notes in his Virginia Report, is "that there may be instances of usurped power, which the forms of the Constitution would never draw within the control of the judicial department." And still another, potentially more serious problem that he mentions in the same context is that "the judicial department," like the legislative and executive, "may exercise or sanction dangerous powers beyond the grant of the Constitution." 75 These difficulties, as we might expect, he brings to the fore by way of justifying his doctrine of interposition, a doctrine that, as we have seen, offers no effective remedy.

But the chief difficulty with Madison's position concerns, once again, the relationship between the Court and the people operating in their political capacities through the elective departments of the national government. Madison informs us, consistent with his Federalist views, that the political departments of the national government will rarely intrude upon the residual powers of the states. So we may assume that the Court would seldom have occasion to nullify a national law that might be the source of controversy. From another perspective, as we have also seen, he seems to judge the Court's record-and that of the political branches, too-by the degree to which its decisions have been "sustained by the sense of the nation." 76 Put another way, we may say that he evidenced some concern about the degree to which the Court's decisions fell within the boundaries of what can be termed the settled consensus of the common constituents as manifested over time in the political branches of the system, both state and national. For this reason, the question whether the Court's opinion should take precedence over this developed consensus is not easy to answer. Suppose, for instance, that Marshall in McCulloch v. Maryland had declared the national bank unconstitutional on the same grounds originally advanced by Representative Madison. What might the later Madison have said about such a decision in light of the reasons he advanced for his switch on the bank issue? Which decision, that of the common constituents expressed over time or that of the Court, would he have accepted as authoritative?

Leaving these and like questions to one side, we do know how he felt the state-national issues would be settled in practice. Consonant with his more general republican theory, he writes that "it is not probable that the Supreme Court would long be indulged in a career of usurpation opposed to the decided opinions and policy of the Legislature." Nor did he believe "Congress, seconded by Judicial Power" could, "without some change in the character of the nation, succeed in durable violations of the rights and authorities of the States." "But, what," he asks, "is to control Congress when backed and even pushed on by a majority of their Constituents?" His answer: "Nothing within the pale of the Constitution but sound arguments and conciliatory expostulation addressed both to Congress and to their Constituents." 77

Madison's positions on this critical issue would lead us to believe that we must differentiate between theory and practice. In practice, as he remarks, the people acting through Congress will prevail, we may presume, because of the republican nature of the system (it will move where the greater "weight" carries it) and the central constitutional role of the Congress. At the level of constitutional theory he is somewhat ambiguous. He mentions amendments; a "tribunal," the Supreme Court as it turns out; "common constituents," (which would "square" the practical with the theoretical); a firm "consensus," such as that which formed around the legitimacy of the national bank; and "interposition." In no instance does he suggest that the states, save as they participate in the amendment or interposition processes, should have any say in the final resolution of disputes between the two jurisdictions. This is understandable. But, the role he suggests for national institutions-i.e., the Congress and the Supreme Court-as potential referees is not free from theoretical difficulties, since they can also be considered parties to the disputes or controversies they are called upon to settle. Nevertheless, as we see from his discussion of the Alien and Sedition Acts in particular, he seems to believe that the most effective remedy for encroachments by the national government is to be had through distinctly political processes at the national level, that is, through an appeal to the common constituents who will bring Congress back into line. "In the last resort" he writes in The Federalist: "a remedy [for usurpation of powers by the national government] must be obtained from the people, who can, by the election of more faithful representatives, annul the acts of the usurpers" (44:233).

Madison: Proponent of Consensual Processes

As the foregoing should clearly indicate, there would seem to be insurmountable difficulties associated with rendering Madison's views on federalism consistent. They do not seem to fit into a coherent whole. Of course, we should hardly expect to find too much by way of consistency between his nationalist and post-nationalist stages. But we do find some consistency, which is not altogether insignificant. We have already noted, for instance, that his conception of the foundations of the Union, though unnecessarily obscure in places, remains the same throughout and so, too, does his view of the role of the individual states in resolving federal disputes. His position regarding the "general welfare" clause does not change from that he set forth in The Federalist during his nationalist phase, though in practice he did deviate from it. And, it would be fair to say, he was consistent throughout in his opposition to constitutional constructions that would, in effect, render the system consolidated or unitary.

Madison's real difficulties arise when he takes upon himself the defense of divided sovereignty. While this notion, as we have seen, runs through both stages of his thought, we perceive the problems it raises in terms of theoretical consistency most clearly in the second phase. Specifically, during his "shifting" period, Madison sought to justify divided sovereignty by pointing out the detrimental effects consolidation would have on values such as liberty, justice, and individual rights; 78 that is, on grounds that scarcely fit well with his extended republic theory to which he adhered throughout his life. Moreover, he never faces up to the difficulty that emerges in The Federalist: how viable can a system of divided sovereignty be when the national government is charged with the responsibility of providing for the common defense? Can the states, in other words, really possess "inviolable" portions of sovereignty without depriving the nation of its capacity for self-preservation?

But perhaps the greatest difficult encountered in Madison's thought is this: while he defends divided sovereignty, he does not provide us much by the way of transmissible rules and principles for the resolution of disputes between the national and state authorities. To be sure, he addresses this problem, but his answers do vary. Yet, in fairness to Madison and others who have wrestled with this issue, we should hardly have expected him to provide us with clear-cut or definitive answers. Today, even with the benefit of over two hundred years of experience, we still are no closer than Madison to formulating any such principles or standards. Indeed, if we take recent decades as our measure, we seem to have retrogressed: we still cling to the principle of federalism built upon Madison's notion of "divided sovereignty" -if, that is, we are to believe our American government textbooks-but in decision-making circles at the national level, concern about the states' portion of sovereignty, a matter of enormous concern for Madison, is clearly on the wane.

In the last analysis, the search for such rules and principles would appear to be futile. But this very futility is, in our judgment, the profoundest lesson to be derived from Madison's teachings on federalism; namely, we are forced to rely upon our own best resources for resolving jurisdictional disputes. Put otherwise, while the Constitution more or less forces us into resolving these conflicts, it does not provide us with rules or principles for doing so. We are left to our own devices, within, of course, the general boundaries provided by the Constitution.

Now Madison does not leave us completely in the dark over how we should go about settling the perennial disputes over the "line." At the very least he identifies, either expressly or by clear implication, conditions or processes that are important for a satisfactory resolution of differences over the proper boundaries. The most important of these would seem to be those that hold out the prospect of insuring a stable consensus-a consensus that differs from others that emerge from our political processes because a wider and more fundamental complex of considerations and values must necessarily come into play. For instance, the participants are obliged to address themselves at some point to the constitutional issues involved and whatever consensus does emerge cannot be crafted in terms so broad as to have the effect of abrogating the constitutional principle that stands at the heart of the controversy. 79

Still another aspect of this consensus would be its acceptance by the states. In this regard, Madison seemed to envision the states not only playing a role in shaping the view of the common constituents, but also in setting the broad limits within which the consensus would have to come to rest. Put otherwise, the views of the states would have to be taken very seriously because state reactions, even those far less extreme than Madison pictures in The Federalist, could well have an adverse effect on the implementation of national policy. Indeed, we can well imagine, given the terms in which Madison writes, that what a majority of common constituents want might have to be severely modified or even abandoned in the face of potential opposition by several states, particularly those in a contiguous geographical area. Thus, the stable consensus comprises something more than just the majority of the common constituents; in many instances, it also has to embody the attitudes that find expression through the agencies of the states.

To the extent that these observations conform with Madison's general approach-and we think they do-then we may say that he looked, in the main, to the distinctly political processes for setting the boundaries between national and state authority. This seems evident enough because only through the give-and-take of these processes can there be any guarantee or assurance that the outcome does represent a genuine consensus. Obviously, the Supreme Court, given its isolation from the actual give-and-take of politics, is ill-suited to take into account the various forces that must be accommodated to achieve a lasting consensus. What is more, the very nature of the judicial processes precludes measuring the relative intensities of the competing parties.

In saying this, we recognize that another view or interpretation of Madison's position is arguable; namely, he meant for the boundaries to be set by the Court over time, not through the consensual processes described above. In this view, which prevails today, the Court's decisions would be final and binding unless modified or overturned by a constitutional amendment. There is, as we have seen, some evidence to support this interpretation. Aside from his recurrence in his later years to the solution of an impartial "tribunal," originally set forth in Federalist 39, he does seem to hold to the proposition that there are fixed boundaries-as distinct from the "floating" or changing boundaries provided through the consensual process-that ought to be secured by the courts. Indeed, the language used in Federalist 39 would suggest as much: the controversies between the two relatively distinct "spheres" of jurisdiction can be settled impartially by recourse to "the rules of the Constitution."

While arguable, this interpretation, in the last analysis, is probably not tenable for a number of reasons and considerations we have already examined. The so-called "rules of the Constitution" are certainly not so evident or clear as Madison would seem to have us believe. Moreover, this interpretation leaves no room for the standard he sets forth at other places in his writings, namely, the degree to which decisions by the Court and Congress are "sustained by the predominant sense of the nation." And very much related to this, we would have to ignore or dismiss his remarks about the consensual processes that brought about his reversal of judgment on the bank issue. To this we may add another consideration not at all alien to Madison's more general views: reliance on the Court could well produce an inflexibility that might seriously impair the national government in meeting its constitutional obligations; or, if not that, the flouting of the Court's decisions by the political arms would, on any showing, undermine popular confidence in the system.

Finally, in this connection, as we have intimated, the answers that Madison provides for resolving state-national cleavages-the "consensus" and "Court" -are not so incompatible as they might seem. Certainly, in the consensual solution, the Court would have a significant role to play. It would, among other things, have to interpret the relevant provision of the national laws in controversies arising from their implementation. In many instances, of course, it would have some discretion in fitting the terms of the law to the specific circumstances or in determining the "intent" of Congress. In this fashion, at what might be called the "tactical" level, it would have a decided input in adjusting the boundaries between the two jurisdictions. In its most important functions, providing for the uniform interpretation of national laws and insuring that state laws do not contravene national laws or authority, the Court would also have an input. In other words, it is easy to conceive of many circumstances where the Court would act in the capacity Madison ascribes to it in Federalist 39 without having to concede that it is the final arbiter, short of recourse to amendment, with regard to the proper division of powers.

What is beyond dispute is that, no matter what interpretation we lend to Madison's thoughts, there is an insurmountable gulf between them and the more controversial of our current practices regarding state-national relations. We need not go into great detail on this matter to realize that Madison's views cannot conceivably be construed to embrace the virtual abrogation of the federal principle through the Court's unilateral interpretation of the Fourteenth Amendment, which has deprived the states of authority over concerns that had long been regarded as well within their domain. To put this matter in its starkest terms, our present situation represents a violation of one of Madison's most fundamental political principles. In addition to its judicial function, which the Court exercises when it declares state laws, practices, or actions unconstitutional, it has, to an alarming degree, assumed the legislative function by fashioning remedies for the states' presumed "shortcomings." Hence, in Madison's terms, what we are witnessing is a judicial tyranny, a tyranny in which no regard is shown for either the substantive or procedural concerns evident in Madison's thinking. 80

Madison's views on federalism also help us to understand why the Court's behavior in recent decades is causing unrest and tensions in American society; namely, its intrusions into the states' domain simply are not in accord with "predominant sense of the nation." Rather, they bear all the earmarks of being the product of an ideology. Put another way, it is difficult to believe that the substance of the major decisions of the Court in recent decades-e.g., those relating to prayer, busing, and abortion-would ever have been enacted into law. But, above all, this situation illustrates the unsettling and even disastrous consequences that flow from a doctrinaire approach-one that necessarily eschews consensual processes because it holds to the fiction that the answers are to be "discovered" in the Constitution.

Madison, we should note by way of concluding, understandably perceived the dangers to his system of divided sovereignty residing in a change in the state of mind of the common constituents concerning state-national relations-a change that would manifest itself in Congress and eventually result in greater consolidation. The situation today is quite different: because of the Fourteenth Amendment and the opportunities its language opens up, it is the Court, not the common constituents or Congress, that is the "culprit." Of course, Madison did not believe the Court would assume such a role. In his estimation "whatever may be the latitude of Jurisdiction assumed by the Judicial Power of the U.S. it is less formidable to the reserved sovereignty of the States than the latitude of power which it has assigned to the National Legislature." 81 But he was not at a loss about what to do if the Court did play such a role: "Such is the plastic faculty of legislation, that notwithstanding the firm tenure which judges have on their offices, they can by various regulations be kept or reduced within the paths of duty; more especially with the aid of their amenability to the Legislative tribunal in the form of impeachment." Moreover, as we have pointed out, he thought it unlikely that the Court "would long be indulged in a career of usurpation to the decided opinions and policy of the Legislature." 82

That Madison's solutions today are regarded as nothing less than heretical in some quarters-a fact that helps to account for the helplessness of the political arms to restrict or otherwise control the Court-indicates the extent to which the Constitution, its character and operations, is now conceived of in terms totally foreign to Madison's. Consequently, what many today conceive of as the problem of federalism-i.e., the gradual erosion of the states' residual authority-is, in fact, but a manifestation of a more basic problem that concerns the character of the regime established by the Constitution.

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Source: An essay from George W. Carey, In Defense of the Constitution, revised and expanded edition, (Indianapolis: Liberty Fund, 1995). Any penetrating treatment of state-national relations must, soon or late, deal with the teaching of James Madison because, far more than any other individual, he is responsible for our modern conception of federalism.

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Introduction

The political question doctrine could be read narrowly or more broadly. Read narrowly, the political question doctrine should be invoked only when the issue presented to the Court is one that "has been textually committed to another branch of government." That is, if the framers of the Constitution made clear their intention that the judiciary not resolve a particular question of constitutional interpretation, that determination must be respected. More broadly, the political question doctrine might be invoked when there is a lack of judicially manageable standards to decide the case on the merits, when judicial intervention might show insufficient respect for other branches of government, or when a judicial decision might threaten the integrity of the judicial branch.

In Baker v Carr (1962), the Court concluded that the political question doctrine did not bar courts from reaching the merits of a challenge brought against Tennessee's system of apportioning its state legislature. Although the case was "political" in the sense that it was about politics, and there were questions about how courts might grant relief if Tennessee's apportionment scheme was declared unconstitutional, the Court saw neither as reasons for invocation of the political question doctrine.

"Prominent on the surface of any case held to involve a political question is found:
(1) a textually demonstrable constitutional commitment of the issue to a coordinate political department;
(2) or a lack of judicially discoverable and manageable standards for resolving it;
(3) or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;
(4) or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government;
(5) or an unusual need for unquestioning adherence to a political decision already made;
(6) or the potentiality of embarrassment from multifarious pronouncements by various departments on one question."(Baker v Carr)

Congressman Adam Clayton Powell

In Powell v McCormack (1969), the Court also rejected an argument that the case ought to be dismissed as presenting a political question. The Court concluded, in a case involving the refusal of the House of Representatives to seat Adam Clayton Powell, that the decision to exclude members was not textually committed to the House--with the exception of criteria identified in Article I, Section 5 relating to age, citizenship, and state residency. Since the refusal to seat Powell was based on a determination that Powell had acted unethically prior to his election, the Court found the exclusion not authorized by Article I and ordered Powell's seating.

Judge Walter Nixon
In Nixon v United States (`1993), the Court found a textual commitment to the Senate of the manner in which it might "try" a federal officer for impeachment. Judge Walter Nixon, convicted in an impeachment proceeding for accepting a bribe, argued that the Senate proceeding violated the Constitution because under Senate impeachment rules he was allowed to bring certain evidence only before a Senate Committee, not the full Senate. The Court refused to interpret the word "try," concluding that the framers reserved that question for the Senate itself to answer.

Finally, in Vieth v Jubelirer (2004) considered whether cases involving claims of partisan gerrymandering are constitutional. The Court divided 4-1-4 in Vieth on the issue of whether judicially manageable standards existed that could be used to decide such cases. Four justices saw claims of partisan gerrymandering as presenting a non-justiciable political question, four justices believed that standards existed or could be developed to decide such cases, and one justice (Kennedy) stood in the middle, writing a concurring opinion that suggested he had doubts about the ability of the Court to develop judicially-manageable standards, but was unwilling to rule out the possibility completely. (Interestingly, Kennedy hinted that gross cases of partisan gerrymandering might violate the First Amendment, not the Equal Protection Clause, as most other justices see as the better basis for challenging such laws.) Kennedy presumably voted with the majority in a subsequent case challenging a reapportionment scheme in Texas pushed by Republican House Majority Leader Tom DeLay, designed to eliminate as many as possible House Democrats from Texas. The Court ordered the case sent back to the lower courts to determine whether the Texas reapportionment plan violated the Constitution.

Cases

Baker v Carr (1962)
Powell v McCormack (1969)
Nixon v U. S. (1993)
Vieth v Jubelirer (2004)
Key Textual Provisions for Cases:

Article IV, Section 4:
The United States shall guarantee to every State in this Union a Republican Form of Government...
Amendment XIV, Section 1
[N]or shall any State...deny to any person within its jurisdiction the equal protection of the laws. (Baker v Carr)

Article I, Section 2:
No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.
Article I, Section 5:
Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members...
Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member...
(Powell v McCormack)

Article I, Section 3:
The Senate shall have the sole Power to try all Impeachments.
(Nixon v U.S.)

Questions
1. Which of the following reasons seem to justify dismissal of a case as "a political question": (1) textual commitment of a decision to another branch, (2) presentation of an issue so momentous that to decide it threatens the Court as an institution, (3) presentation of an issue that cannot be decided by "judicial reasoning," (4) the unavailabilty of effective judicial means of redressing a legal violation if one is found, (5) the case raises serious issues of national security, (6) decision in the case would likely embarrass another branch of government, and (7) presentation of an issue that the court "can't get a handle on"? Which of the above are the strongest reasons for dismissing a case?
2. Have Justice Frankfurter's concerns about the courts involving themselves in matters of legislative reapportionment (see Baker v Carr) proven well-founded?
3. How would our state politics be different today if Baker v Carr had come out the other way? Would, for example, the Tennessee legislature still be badly apportioned if the courts had not intervened?
4. If the Senate were to convict a federal judge (or the President) after a "trial" in which the impeached official was denied any opportunity to present evidence, would the Court still refuse to review the action on the ground that it was a political question?
5. What should be made of Justice Kennedy's concurring opinion in Vieth? Justice Kennedy clearly is disgusted with the degree of partisan gerrymandering, but can't yet find a workable test for deciding when a redistricting plan might violate the Constitution. Does that mean that he agrees that these cases present non-justiciable questions (at least until such a test can be found)? Note that there are only four clear votes in Vieth for finding cases challenging political discrimination in redistricting plans to be non-justiciable, so Kennedy's opinion is key.

A political question?
The Texas reapportionment scheme devised in 2003 to eliminate
Democratic members of Congress. (Austin Chronicle).
Link to close up of central Texas (boxed portion of map).

In 2006, the Supreme Court, in League of Latin American Citizens v Perry, revisited the issue of the legality of Tom DeLay's plan for reapportioning Texas. The Court remained unconvinced that a meaningful standard for judging partisan gerrymandering existed--thus seemingly giving the greenlight to partisan map-drawing whenever one party controls both state houses and the governorship. The Court did, however, find that one of the redrawn districts discriminated against Latino voters in violation of the Voting Rights Act and ordered that district lines be redrawn to restore Latino voting power to its pre-existing state.

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The Supreme Court's "Political Question Doctrine"

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Introduction The political question doctrine could be read narrowly or more broadly. Read narrowly, the political question doctrine should be invoked only when the issue presented to the Court is one that "has been textually committed to another branch of government."

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political question and justiciability of gerrymandering

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political question and justiciability of gerrymandering

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It is open season for partisan gerrymandering after the Supreme Court in Rucho v. Common Cause ruled in a 5-4 decisionthat partisan gerrymandering was a non-justiciable "political question." Rucho v. Common Cause, 139 S. Ct. 2484, 204 L.Ed.2d 931 (2019). The Court dealt with two consolidated cases involving voters and other plaintiffs from North Carolina and Maryland alleging that both states' congressional districting maps were unconstitutionally gerrymandered based on partisan lines. In North Carolina the plaintiffs claimed that the state's districting plan diluted the votes of Democrats, and in Maryland the plaintiffs claimed that the state's districting plan diluted the votes of Republicans. There was no question that both states' legislatures engaged in the practice of partisan gerrymandering. As one of the two Republicans chairing the redistricting committee stated, "I think electing Republicans is better than electing Democrats. So, I drew this map to help foster what I think is better for the country." Rucho v. Common Cause, 318 F. Supp. 3d 777, 809 (MDNC 2018). The same Republican also stated that the map was drawn with the aim of electing ten Republicans and three Democrats because he did "not believe it [would be] possible to draw a map with 11 Republicans and 3 Democrats." Id. at 808. Despite the fact that Democratic candidates received more votes statewide, nine Republicans and three Democrats were elected with one election still pending. Rucho, 139 S. Ct. 2491-92. Similarly, the Democratic governor of Maryland testified that his aim was to "use the redistricting process to change the overall composition of Maryland's congressional delegation to 7 Democrats and 1 Republican by flipping" one district. Id. The plaintiffs alleged that the partisan gerrymandering violated the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, the Elections Clause, and article I, §2, of the Constitution. In both of the cases, the lower courts found for the plaintiffs.

Article III of the Constitution states that federal courts may only decide "Cases" and "Controversies." The Court has interpreted this to mean that federal courts may only address questions "historically viewed as capable of resolution through the judicial process." Flast v. Cohen, 392 U. S. 83, 95 (1968). In some cases, "the law is that the judicial department has no business entertaining the claim of unlawfulness-because the question is entrusted to one of the political branches or involves no judicially enforceable rights." Vieth v. Jubelirer, 541 U. S. 267, 277 (2004) (plurality opinion). In these cases, the claim is said to present a "political question" that is outside the courts' jurisdiction. Baker v. Carr, 369 U. S. 186, 217 (1962). In determining whether an issue is a nonjusticiable political question, the Court will look at whether there is "a lack of judicially discoverable and manageable standards for resolving it." Id. In two areas, racial gerrymandering and one-person, one-vote, the Court has held that justiciable issues can arise from a state's drawing of a congressional district. See Wesberry v. Sanders, 376 U. S. 1 (1964); Shaw v. Reno, 509 U. S. 630 (1993) (Shaw I).

Chief Justice Roberts, writing for the Court, began the opinion by detailing the extensive history of partisan gerrymandering. There were instances of partisan gerrymandering occurring throughout the colonies prior to independence and, according to the Chief Justice, the framers were well aware of this practice. Despite being aware of the practice, through the Elections Clause in article I §4 of the Constitution, the framers assigned state legislatures the power to determine the time, place, and manner of the election of congressional representatives. Furthermore, through the Elections Clause Congress was granted oversight power to "make or alter" any state regulations. Congress exercised this power in an attempt to end partisan gerrymandering in the Apportionment Act of 1842.

The Chief Justice opined that is was difficult to create a "clear, manageable, and politically neutral" test for fairness because it is unclear what fairness looks like in the context of partisan gerrymandering. He then went on to discuss how fairness could take the form of ensuring each district is competitive, but it could also take the form of "engaging in cracking," dividing a party's supporters among multiple districts, and "packing," highly concentrating a party's supporters into one district, "to ensure each party its 'appropriate' share of 'safe' seats." Rucho, 139 S. Ct. 2500. Quoting the late Justice Scalia, the Chief Justice wrote,

"Fairness" does not seem to us a judicially manageable standard. . . . Some criterion more solid and more demonstrably met than that seems to us necessary to enable the state legislatures to discern the limits of their districting discretion, to meaningfully constrain the discretion of the courts, and to win public acceptance for the courts' intrusion into a process that is the very foundation of democratic decision-making.

Vieth, 541 U. S. at 291.

Ultimately, the Court ruled against all of the plaintiff's claims, instead finding that partisan advantage is a permissible intent behind districting choices, and that the issue is to be left to the legislature because "there are no legal standards discernible in the Constitution for making such judgments, let alone limited and precise standards that are clear, manageable, and politically neutral." Rucho, 139 S. Ct. 2500-02.

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It is open season for partisan gerrymandering after the Supreme Court in Rucho v. Common Cause ruled in a 5-4 decisionthat partisan gerrymandering was a non-justiciable "political question." Rucho v. Common Cause, 139 S. Ct. 2484, 204 L.Ed.2d 931 (2019) .

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Congress gives up WAR power to President -- AUMF

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Congress gives up WAR power to President -- AUMF

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The Pentagon press secretary, Peter Cook, walked into the Pentagon briefing room on the afternoon of Aug. 1 with an announcement: The U.S. had just launched airstrikes against Islamic State targets in Libya.

Reporters in the room jumped in with questions: Why now? What are the targets? What's the end goal? Finally, well into Cook's briefing, a reporter raised her hand and asked, under what legal authority were the strikes being conducted?

"Under the 2001 Authorization for the Military Force," Cook replied. "Similar to our previous airstrikes in Libya."

The press conference moved quickly on. But take a minute to wrap your head around Cook's words.

Congress passed the 2001 Authorization for Use of Military Force (AUMF) in the frantic days after the Sept. 11 attacks. It cleared both the House and the Senate with overwhelming majorities - just one "No" vote between both chambers. The AUMF was designed to give President Bush the power to use force, to defend the U.S. against future attacks. It runs just 60 words:
"That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." An expanded definition

In short, the 2001 authorization grants the president a congressional stamp-of-approval to use force against those responsible for the Sept. 11 attacks, and those who harbored them. In other words, against al-Qaida and the Taliban.

Today, a decade and a half later, the Obama administration argues that the authorization continues to apply to U.S. military actions in Afghanistan. Also, that it applies in Iraq, in Syria, and beyond - including the ongoing air campaign in Libya, against ISIS - a group that did not exist 15 years ago.

"Under domestic law, and international law, the United States is at war with al-Qaida, the Taliban, and their associated forces," said President Obama, in a 2013 speech at National Defense University that sought to explain the legal reasoning. "We are at war with an organization that right now would kill as many Americans as they could if we did not stop them first. So this is a just war - a war waged proportionally, in last resort, and in self-defense."

Describing ISIS as an "associated force" of al-Qaida and the Taliban is controversial. Many terrorism experts call it a stretch, when ISIS and al-Qaida are now actively fighting each other in Syria and elsewhere.

The White House did try to update the authorization, sending Congress proposed new wording last year. But the effort went nowhere in Congress. Both Republicans and Democrats hated it. Some called it too broad, others not broad enough. Plus, after the 2003 Iraq invasion, casting a vote on military force carries political risk.
A captain sues the president
This is where things have stood ever since. And this is the state of affairs that an Army intelligence officer, Capt. Nathan Smith, is seeking to challenge, in a lawsuit filed in U.S. District Court for the District of Columbia. The defendant in the suit? Smith's commander in chief, Barack Obama.

Here's the backdrop: Capt. Smith is active-duty. He was deployed to Kuwait, as an Army intelligence analyst supporting the campaign against ISIS.

"He argues that he has been given an illegal order, and directed to obey an illegal order by the president," says Michael Glennon, a professor of international law at the Fletcher School at Tufts University, and one of the lawyers supporting Smith in his suit. Glennon argues that Congress never signed off on war against ISIS, and that sending troops to war without such authorization violates the War Powers Resolution. That's a law that Glennon helped draft, as a Senate lawyer back in 1973.

Glennon believes Capt. Smith is trapped: either fighting a war he believes is illegal, or risking court martial if he disobeys orders.

"He is really confronted with a Catch-22," says Glennon. The solution, Glennon says, is for lawmakers to step up and own the fight against ISIS. "That's the purpose of this lawsuit. And that's the vision of the Constitution. To hold members accountable for the decision to go to war."

Jennifer Daskal agrees. She's a former Justice Department lawyer, now a professor at American University in Washington. In an interview, Daskal said the current situation sets a dangerous precedent, by writing future presidents a blank check for war. She also believes that it ignores the intentions of the Founding Fathers.

"Congress is supposed to be declaring war, and the president is supposed to be making war," she says. "There appears to be a clear abdication of responsibility on behalf of Congress."
Will Congress act?
Some members of Congress are pushing to weigh in. Perhaps most prominent among them is Sen. Tim Kaine, the Virginia Democrat, who is now Hillary Clinton's running mate.

"The 2001 authorization passed in the days after 9/11 to enable us to go after the attack's perpetrators is badly in need of an update," said Kaine, in a Senate floor speech in 2014. Since then, he has repeatedly called on his fellow lawmakers to revisit the war authorization. It's a cause he could take to the White House, if a Clinton-Kaine ticket wins in November.

Meanwhile, here's another development to watch for this fall: a possible ruling in the lawsuit filed by Capt. Nathan Smith.

David Remes, an attorney representing Smith, told NPR that the government's latest brief to the court is due on Sept. 14. That's 15 years - to the day - since Congress passed the Authorization for Use of Military Force.

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When The U.S. Military Strikes, White House Points To A 2001 Measure

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The Pentagon press secretary, Peter Cook, walked into the Pentagon briefing room on the afternoon of Aug. 1 with an announcement: The U.S. had just launched airstrikes against Islamic State targets in Libya. Reporters in the room jumped in with questions: Why now? What are the targets? What's the end goal?

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The question of how power should be divided between the federal government and the states is really what American politics has been all about for well over two centuries. It is a question debated by delegates to the Constitutional Convention in Philadelphia in 1787, debated by Federalists and Anti-Federalists during the ratification period, and debated between and within our political parties ever since. Elections have been won and lost on this question, and a Civil War fought over it.

The Constitutional Convention undoubtedly was called to broaden the powers of the federal government as they existed under hopelessly ineffective Articles of Confederation. Yet, there was considerable disagreement among the delegates as to how extensive the powers of the federal government should be. The document produced in Philadelphia in September of 1787 reflects numerous compromises on the question of the rights of states and the powers of the new federal government. While the sovereignty of states was preserved in most respects, specific provisions were included limiting their powers (States were deprived of the powers to, for example, "impair the obligations of contracts," enact ex post facto laws, or pass bills of attainder). Most significantly, however, the Constitution in Article VI ("The Supremacy Clause") made any valid exercise of federal law (and the Constitution enumerated a long list of federal powers, including the broad power to regulate commerce) superior to any state law "to the contrary."

The Anti-Federalists opposed ratification of the Constitution. Their principal argument was that the Constitution gave too much power to the federal government and took away too many powers of the states. They complained about the Supremacy Clause, about the powers of the President, about the six-year terms of Senators, and about the many new powers granted to Congress. Arguing for ratification were the Federalists, including such prominent figures as Alexander Hamilton, John Jay, and James Madison (authors of The Federalist Papers). The Federalists saw the states as impeding the development of commerce (through imposition of state tariffs and other laws) and threatening private property (Rhode Island, for example, had enacted a law cancelling all debts). The Federalists saw a stronger federal government as critical to the United States taking its place as a leader on the world's stage. As a compromise necessary to ensure ratification, Federalists agreed to propose a Bill of Rights that would specifically limit the powers of the new federal government and would, through the Tenth Amendment, recognize that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

During the presidency of George Washington, the issue of the rights of states moved front and center after the Supreme Court announced its opinion in Chisholm v Georgia (1793), holding that states can be sued in federal court for damages by citizens another state. The legislature of Georgia was so angered by the Court's decision that it passed a resolution declaring that anyone who tried to enforce it would be "hanged without the benefit of clergy." State officials in Georgia were not the only persons shocked by the Chisholm decision, and the result the 11th Amendment, effectively overruling the Court's opinion and limiting the power of the federal courts to hear such suits in the future. (The 11th Amendment has been more broadly interpreted later on to prohibit suits against states for damages in federal court even by the state's own citizens.)

The cause of the rights of states had its champions in the first decades of the nineteenth century, including Thomas Jefferson and Andrew Jackson, among many others. So did the cause of building a strong national government, with its champions including John Adams and the chief justice he appointed, John Marshall. Chief Justice Marshall's views were reflected in several important Court decisions broadly interpreting the powers of Congress under the "Necessary and Proper Clause" (McCulloch v Maryland (1819), upholding the power of Congress to create a national bank) and Gibbons v Ogden (1824), and upholding the power of Congress under the Commerce Clause to regulate steamboat traffic between the states.

The Civil War, of course, was fought over the question of whether states should have the right to protect the institution of slavery. After that war, the ratification of the 14th Amendment imposed important restrictions on the rights of states to regulate the lives of persons within its jurisdiction. During the course of the twentieth and on into the twenty-first centuries, the Court turned again and again to the 14th Amendment (largely through its doctrine that applied--or "incorporated"--the Bill of Rights to the states) to overturn state laws restricting the rights of speakers, criminal defendants, private property owners, gun owners, members of racial and ethnic minorities, and others.

The Court has found in the Constitution other limitations on states as well. Most significantly, it has interpreted the Commerce Clause not just to be a positive grant of power to Congress, but also to be a limitation on the power of states to regulate interstate commerce in particularly burdensome ways.

The cause of states' rights has risen and fallen over the years. Generally, in eras of conservative Courts states have been given wide latitude to exercise their choices (see Dred Scott v Sandford, for an extreme example). Recently, the Court has recognized limits on the powers of Congress under the Commerce Clause, given fresh meaning to the 10th Amendment, and expanded the doctrine of state sovereign immunity under the 11th Amendment.

Typically today, cases that pit the rights of states against the power of the federal government will be decided by a closely divided Supreme Court. The exception is often in cases applying the Supremacy Clause (preemption doctrine) where views on the merits of the federal law seem to influence votes as much as do any overarching views of how the preemption doctrine should be applied.

Politics, the Supreme Court, and Federalism

Few would deny that the political values of justices, as well as theories of constitutional interpretation, play a role in their decisions in specific cases. The conservative wing of the Court, for example, generally favors a restrictive interpretation of the federal commerce power (and therefore a broad view of states' rights), favors an expansive interpretation of the 10th and 11th Amendments, and typically has a narrower view of how the 14th Amendment limits choices available to states (except for favored individual rights, such as the right to bear arms).
THE POLITICAL MAKE-UP OF THE CURRENT COURT
Five members of the current Supreme Court were appointed by Republican presidents. Four justices were nominated by a Democratic president.
MOST LIKELY TO RESTRICT THE EXERCISE OF FEDERAL POWER AND SUPPORT "STATES' RIGHTS": Justice Thomas (most likely of all!), Justice Kennedy, Justice Scalia, Justice Alito
SWING JUSTICE (somewhat more likely to exercise judicial restraint and uphold the exercise of federal power, but sympathetic to states' rights claims): Chief Justice Roberts
SKEPTICAL OF STATES' RIGHTS CLAIMS, BUT PERSUADABLE: Justice Breyer, Justice Kagan
LEAST LIKELY TO RESTRICT THE EXERCISE OF FEDERAL POWER AND SUPPORT "STATES' RIGHTS": Justice Ginsburg, Justice Sotomayor .

Provisions in Constitution Concerning States' Rights

Key Provisions Specifically Recognizing Rights of States

Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Amendment XI (1795)
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. Key Provisions Interpreted to Limit the Powers of States The Congress,...on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which...shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress....No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports...., he Congress shall have Power...To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.Article. VI.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Article I, Section. 8 ("Dormant Commerce Clause"):
T

Article I, Section. 8 ("Necessary and Proper Clause"):
The Congress shall have Power...To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Article I, Section. 10.
No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
Amendment XIV (1868)
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

State Rights Banner ("Don't Tread on Me")(circa 1860)

Selected Cases on the Division of Powers
Between the Federal and State Government
McCulloch vs Maryland (1819)
(Necessary and Proper Clause)
Gibbons vs Ogden (1824)
(Federal Commerce Power)
Dred Scott v Sandford (1857)
(Power of Federal Gov't to Regulate Slavery)
Hammer vs Dagenhart (1918)
(Power of Fed'l Gov't to Regulate Child Labor)
Wickard vs Filburn (1942)
(Reach of Federal Commerce Power)
Brown v. Board of Education of Topeka (1954)
(Right of States to Operate Segregated Schools)
Garcia v San Antonio Metro. Transit Auth. (1985)
(Meaning of 10th Amendment)
New York v United States (1992)
(Meaning of 10th Amendment)
U. S. vs Lopez (1995)
(Reach of Federal Commerce Power)
Printz v United States (1997)
(Meaning of 10th Amendment)
(Right of States to Regulate Commerce in Alcoholic Beverages)Granholm v Heald/ Swedenburg v Kelly (2005)

Gonzales v Oregon (2006)
(Preemption)
Shelby County v Holder (2013)
(10th Amendment and "Equal Sovereignty Principle")

1. Which of the following regulatory concerns is best handled by state governments, and which better handled by the federal government? : State or federal power?
2. What are the arguments for assigning a particular power to either the federal or state government? [Seestate vs federal powers.]
3. What values might cause a judge to believe one or another branch of the federal government should have more power? What values might cause a judge to believe that states should have a larger role in our federal system? What values might cause a judge to believe that state powers should not be enlarged at the expense of federal power?

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The Question of State's Rights and The U. S. Consitution: American Federalism Considered

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The question of how power should be divided between the federal government and the states is really what American politics has been all about for well over two centuries. It is a question debated by delegates to the Constitutional Convention in Philadelphia in 1787, debated by Federalists and Anti-Federalists during the ratification period, and debated between and within our political parties ever since.

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Constitutional interpretation, or constitutional construction, the term more often used by the Founders, is the process by which legal decisions are made that are justified by a constitution, although not necessarily correctly. Constitutional controversies are about whether an official act is consistent with, and authorized by, a constitution or constitutional statute or court decision. Since a constitution is a law, and the supreme law within its domain, and authorizes statutes and other official acts which have a textual expression, the principles of constitutional interpretation are essentially the same as the principles of statutory or judicial interpretation.

Most legal scholars recognize six main methods of interpretation: textual, historical, functional, doctrinal, prudential, equitable, and natural, although they may differ on what each includes, and there is some overlap among them.

1. Textual: Decision based on the actual words of the written law, if the meaning of the words is unambiguous. Since a law is a command, then it must mean what it meant to the lawgiver, and if the meaning of the words used in it have changed since it was issued, then textual analysis must be of the words as understood by the lawgiver, which for a constitution would be the understanding of the ratifying convention or, if that is unclear, of the drafters. Some Latin maxims: A verbis legis non est recedendum. From the words of the law there is not any departure. 5 Coke 118. Noscitur à sociis. Meaning of words may be ascertained by associated words. 3 T.R. 87.

2. Historical: Decision based less on the actual words than on the understanding revealed by analysis of the history of the drafting and ratification of the law, for constitutions and statutes, sometimes called its legislative history, and for judicial edicts, the case history. A textual analysis for words whose meanings have changed therefore overlaps historical analysis. It arises out of such Latin maxims as Animus hominis est anima scripti. Intention is the soul of an instrument. 3 Bulst. 67.

3. Functional. Also called structural. Decision based on analysis of the structures the law constituted and how they are apparently intended to function as a coherent, harmonious system. A Latin maxim is Nemo aliquam partem recte intelligere potest antequam totum perlegit. No one can properly understand a part until he has read the whole. 3 Coke Rep. 59.

4. Doctrinal: Decision based on prevailing practices or opinions of legal professionals, mainly legislative, executive, or judicial precedents, according to the meta-doctrine of stare decisis, which treats the principles according to which court decisions have been made as not merely advisory but as normative. Some Latin maxims are: Argumentum à simili valet in lege. An argument from a like case avails in law. Coke, Littleton, 191. Consuetudo et communis assuetudo . . . interpretatur legem scriptam, si lex sit generalis. Custom and common usage . . . interpret the written law, if it be general. Jenk. Cent. 273. Cursus curiæ est lex curiæ. The practice of the court is the law of the court. 3 Buls. 53. Judiciis posterioribus fides est adhibenda. Credit is to be given to the latest decisions. 13 Coke 14. Res judicata pro veritate accipitur. A thing adjudicated is received as true. Coke, Littleton, 103.

5. Prudential: Decision based on factors external to the law or interests of the parties in the case, such as the convenience of overburdened officials, efficiency of governmental operations, avoidance of stimulating more cases, or response to political pressure. One such consideration, avoidance of disturbing a stable body of practices, is also the main motivation for the doctrinal method. It also includes such considerations as whether a case is "ripe" for decision, or whether lesser or administrative remedies have first been exhausted. A Latin maxim is Boni judicis est lites dirimere. The duty of a good judge is to prevent litigation. 4 Coke 15.

6. Equitable: Also called ethical. Decision based on an innate sense of justice, balancing the interests of the parties, and what is right and wrong, regardless of what the written law might provide. Often resorted to in cases in which the facts were not adequately anticipated or provided for by the lawgivers. Some scholars put various balancing tests of interests and values in the prudential category, but it works better to distinguish between prudential as balancing the interests and values of the legal system from equitable as balancing the interests and values of the parties. It arises out of the Latin maxim, Æquitas est perfecta quædam ratio quæ jus scriptum interpretatur et emendat; nulla scriptura comprehensa, sed sola ratione consistens. Equity is a sort of perfect reason which interprets and amends written law; comprehended in no code, but consistent with reason alone. Coke, Littleton, 24.

7. Natural. Decision based on what is required or advised by the laws of nature, or perhaps of human nature, and on what is physically or economically possible or practical, or on what is actually likely to occur. This has its origin in such ancient Latin maxims as: Jura naturæ sunt immutabilia. The laws of nature are unchangeable. Jacob. 63. Impossibilium nulla obligatio est. There is no obligation to do impossible things. D. 50, 17, 185. Lex non cogit ad impossibilia. The law does not compel the impossible. Hob. 96. Lex neminem cogit ad vana seu inutilia peragenda. The law requires no one to do vain or useless things. 5 Coke 21. Legibus sumptis desinentibus, lege naturæ utendum est. Laws of the state failing, we must act by the law of nature. 2 Rol. Rep. 98.

Within these methods, we can, by study of the writings of the Founders, and the writings they read, elicit such principles for interpreting the Constitution for the United States as the following:

1. The Constitution is the written document. Although it may be considered to include the understandings of its words as of the time of ratification, it does not include the subsequent body of practices or precedents upon which constitutional decisions might be based, which may or may not be consistent with it, or authorized by it. The written document refers to itself as "this Constitution", and provides for only four methods by which it may be amended, all of which apply only to the written document.

2. The authority for provisions of the Constitution is the ratifications and state admissions. Current consent or acquiescence, or lack thereof, to the Constitution or any practice, does not affect the original constitutive acts, and has no authority, unless expressed through adoption of amendments as provided in Article V.

3. Provisions of the Constitution are mutually consistent. There are no internal logical contradictions, except that a provision of an amendment inconsistent with a previous provision supersedes that provision.

4. None of the words are without force and effect, except those superseded by amendments, unless such amendments are repealed. Except for the statement of purpose in the preamble, every word was intended by the Framers to be legally normative, and not just advisory, declaratory, aspirational, or exhortatory. Verba intelligi ut aliquid operantur debent. Words should be interpreted to give them some effect.

5. Rights and powers are complementary. Every right recognized by the Constitution is an immunity, that is, a right against a positive action by government, and is equivalent to a restriction on delegated powers. Conversely, every delegated power is a restriction on immunities. An immunity may be expressed either as a declaration of the right, or as a restriction on powers.

6. There are no redundancies within the original unamended Constitution. However, amendments may be alternative ways of expressing equivalent content in the original unamended Constitution or previous amendments. More specifically, the Bill of Rights added no new content not implicit in the original unamended Constitution, except the twenty dollar rule of the Seventh Amendment.

7. The Constitution was intended to define a functionally complete and harmonious system. That does not mean, however, that all powers anyone might think the nation or any branch, level, office or department should have, were actually delegated.

8. Original "intent" is functional, not motivational. The private motives of the Framers or Founders are irrelevant and largely unknowable, and likely to have been diverse. The common law rule of interpretation understood by the Founders was to discern the functional role of elements of the law, not the private purposes of the lawgivers.

9. The ratification debates are the best evidence of original understanding. The arguments of those opposed to ratification are not just the positions of the losers in the debates, which some might dismiss as not indicative of original understanding. As the debates proceeded, understandings evolved and clarified, and positions changed. Most opponents were satisfied by adoption of a Bill of Rights, and by assurances by the proponents concerning how the words of the Constitution would be interpreted, and those assurances must be considered part of the original understanding. That means that a construction to which the more significant "anti-federalists" would object is almost certainly incorrect.

10. Powers are narrow, rights broad. The entire theme and tenor of the ratification debates was that delegated powers were to be interpreted as strictly as possible, consistent with the words, and rights as broadly as possible, with the presumption in favor of the right, and the burden of proof on those claiming a power. Potestas stricte interpretatur. A power is strictly interpreted. In dubiis, non præsumitur pro potentia. In cases of doubt, the presumption is not in favor of a power.

11. Delegated powers cannot be subdelegated. The U.S. Constitution vests all legislative powers in Congress, and all judicial powers in the Supreme Court and inferior courts, except as specifically expressed. Executive branch officials may subdelegate but must remain responsible for the actions of their subordinates. There can be no authority exercised that is not accountable through constitutional officials.Delegata potestas non potest delegari. A delegated power cannot be delegated. 9 Inst. 597.

12. The power to regulate is not the power to prohibit all modalities of something. It is only the power to issue prescriptions to "make regular", enforceable only by deprivations of property or privileges, not of life, limb, or liberty. There must always be some modality that is not prohibited.

13. Implied powers are only to "carry into Execution" an expressed power and not to do whatever is necessary to achieve the intent for which a power might be exercised. Delegation of a power is delegation of the right to make a certain kind of effort, not to do whatever is necessary to get a desired outcome.

14. There can be no common law crimes. They are in conflict with the prohibitions on ex post facto laws and bills of attainder.

15. Rights may not be disabled or unduly burdened by legislative or executive process. "Due" process is judicial only, involving the granting of a petition to disable a right of the defendant, with the burden of proof on the plaintiff or prosecutor, and with the defendant having at least those minimum protections that prevailed during the Founding. with similar disablements having similar standards of proof and protection.

16. There is no right without a remedy. Ubi jus ibi remedium. There must always be an accessible forum in which a complainant has oyer and terminer for any petition.

Related Posts
An Examination into the Leading Principles of the Federal Constitution by Noah Webster
Commentaries on the Constitution of the United States - Abridged Version by Joseph Story
Elementary Catechism of the Constitution by Arthur J. Stansbury
Notes of Debates in the Federal Convention of 1787 by James Madison
Notes of the Secret Debates of the Federal Convention of 1787 by Robert Yates
Principles of Constitutional Interpretation
The Anti-Federalist Papers Special Edition
The Constitution of the United States
The Essential Anti-Federalist Papers
The Essential Federalist Papers
The Federalist Papers by Hamilton, Madison and Jay

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Constitutional interpretation, or constitutional construction, the term more often used by the Founders, is the process by which legal decisions are made that are justified by a constitution, although not necessarily correctly. Constitutional controversies are about whether an official act is consistent with, and authorized by, a constitution or constitutional statute or court decision.

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An Independent Judiciary: Cherokee Nation v. Georgia and Cooper v. Aaron

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Home - Supreme Court of the United States

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Learn about the text, history, and meaning of the U.S. Constitution from leading scholars of diverse legal and philosophical perspectives.

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Introduction

In 1800 the Federalists and their candidate, President John Adams, lost the election to Thomas Jefferson. Early in 1801 the lame-duck Federalist Congress enacted a controversial Judiciary Act that created 58 new judgeships, including 42 justiceships of the peace, for Adams to appoint. Jefferson complained that the Federalists "have retired into the judiciary as a stronghold." On the night March 3, 1801, John Marshall, acting as secretary of state, affixed the official seal to the commissions for the justices of the peace. He did not, however, deliver the commissions. The next day, after Thomas Jefferson was inaugurated, he directed the new secretary of state, James Madison, to withhold delivery of 17 of the 42 commissions, including that of William Marbury. William Marbury sued for a writ of mandamus to require Madison to hand over his commission.

William Marbury

The decision in Marbury's case, written by Chief Justice John Marshall (the very same John Marshall who affixed the seal to Marbury's commission--talk about a conflict of interest!) established and justified the power of judicial review. It is the first case read by virtually every first-year law student and is generally considered the greatest of all landmark cases. Marshall strained to reach his result. The plain words of Section 13 of the Judiciary Act indicate that Marbury went to the wrong court or invoked the wrong statute (or both), but Marshall proceeded as if the suit were authorized by Section 13 and then declared the statute unconstitutional on the grounds that it purported to expand the Court's original jurisdiction in violation of Article III. Marbury's suit was dismissed for lack of jurisdiction. Marshall's decision--brilliant in its conception--allowed the Court to brand Jefferson a violator of civil rights without issuing an order that the President could have ignored.

Case
Marbury vs. Madison (1803)

Fragment from John Marshall's Handwritten Decision

Questions

1. Is judicial review a good idea? Should nine unelected judges be able to tell our elected representatives what they can and cannot do?
2. Are courts more likely to block an enlightened consensus with their adherence to outdated principles or to protect the politically weak from oppressive majorities?
3. Are judges, protected with lifetime tenure and drawn generally from the educated class, more likely to be reflective and above the passing enthusiasms that drive legislative action?
4. Does Marbury mean that legislators or members of the executive branch have no responsibility to judge the constitutionality of their own actions?
5. Could we have a workable system of government without judicial review?

"The prime and most necessary function of the Court has been that of validation, not that of invalidation. What a government of limited powers needs, at the beginning and forever, is some means of satisfying the people that it has taken all steps humanly possible to stay within its powers."

--Professor Charles L. Black

(James Madison Univ.) Links
Marbury v. Madison Background & Players

Judicial Review (Wikipedia)1800-1809 American Events Timeline

John Marshall - Definer of a Nation

(from 1803 Petition, Debate & Vote of Wm. Marbury & Others
Annals of Congress)

Pitching quoits

Quoits, Anyone?:
The Personality Differences of John Marshall and Thomas Jefferson
"[John Marshall] was proud of his skills in pitching quoits--a game involving a kind of round horseshoe--and could be observed at the Quoits Club in Richmond toward the end of his life downing Madeira and rum punch, getting down on his hands and knees earnestly measuring the distance between his quoit and those of his opponents, and then shouting in unaffected happiness when he won. It is hard to imagine the withdrawn and aristocratic Jefferson in a similar posture."
--Jeffrey Rosen, The Supreme Court: The Personalities and Rivalries That Defined America (2006).

Chief Justice John Marshall

The Judiciary Act (Section 13):

The act to establish the judicial courts of the United States authorizes the supreme court "to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States."

Article III of Constitution
Section. 2

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.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Original Intent & Judicial Review
The Constitution does not expressly provide for judicial review. What should be made of this fact? Does it suggest that the framers did not intend to give the courts such a power? Not necessarily, although that is one explanation for its absence. It is also possible that the framers thought the power of judicial review was sufficiently clear from the structure of government that it need not be expressly stated. A third possibility is that the framers didn't think that the issue would ever come up, because Congress would never pass legislation outside of its enumerated powers. Only 11 of the 55 delegates to the Constitutional Convention, according to Madison's notes, expressed an opinion on the desirability of judicial review. Of those that did so, nine generally supported the idea and two opposed. One delegate, James Wilson, argued that the courts should have the even broader power to strike down any unjust federal or state legislation. It may also be worth noting that over half of the thirteen original states gave their own judges some power of judicial review.

Footnote:
The Flying Fish Case

Two Views on Seizures
Vice President Thomas Jefferson opposed the 1799 order of President Adams allowing the
seizing of ships.

Many people know the first Supreme Court decision to declare an act of Congress unconstitutional (It's Marbury, of course), but few people could identify the Court's first decision declaring Executive Branch action to be unconstitutional. Little v Barreme (1804), called the Flying Fish case, involved an order by President John Adams, issued in 1799 during our brief war with France, authorizing the Navy to seize ships bound for French ports. The president's order was inconsistent with an act of Congress declaring the government to have no such authorization. After a Navy Captain in December 1799 seized the Danish vessel, the Flying Fish, pursuant to Adams's order, the owners of the ship sued the captain for trespass in U. S. maritime court. On appeal, C. J. Marshall rejected the captain's argument that he could not be sued because he was just following presidential orders. The Court noted that commanders "act at their own peril" when they obey invalid orders--and the president's order was outside of his powers, given the congressional action.

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Introduction In 1800 the Federalists and their candidate, President John Adams, lost the election to Thomas Jefferson. Early in 1801 the lame-duck Federalist Congress enacted a controversial Judiciary Act that created 58 new judgeships, including 42 justiceships of the peace, for Adams to appoint.

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Published in December 2006. THE SUPREME COURT is a production of Thirteen/WNET New York. © 2007 Educational Broadcasting Corporation. All rights reserved. Terms of Use | PBS Privacy Policy

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Matthew G. Whitaker, former chief of staff to Jeff Sessions before Mr. Sessions was fired this week as attorney general, has taken over as acting attorney general. Credit Credit Chip Somodevilla/Getty Images

WASHINGTON - The acting attorney general, Matthew G. Whitaker, once espoused the view that the courts "are supposed to be the inferior branch" and criticized the Supreme Court's power to review legislative and executive acts and declare them unconstitutional, the lifeblood of its existence as a coequal branch of government.

In a candidate Q. and A. when he sought the Republican nomination for senator in Iowa in 2014, Mr. Whitaker indicated that he shared the view among some conservatives that the federal judiciary has too much power over public policy issues. He criticized many of the Supreme Court's rulings, starting with a foundational one: Marbury v. Madison, which established its power of judicial review in 1803.

"There are so many" bad rulings, Mr. Whitaker said. "I would start with the idea of Marbury v. Madison. That's probably a good place to start and the way it's looked at the Supreme Court as the final arbiter of constitutional issues."

Mr. Whitaker lost the 2014 primary to Joni Ernst, who went on to win election to the Senate. But on Wednesday, he vaulted to power when President Trump fired Attorney General Jeff Sessions and appointed Mr. Whitaker as the acting attorney general, putting him in charge of the Justice Department.

Because Mr. Trump installed Mr. Whitaker as the nation's top law enforcement official without undergoing the vetting process of a Senate confirmation hearing, his answers to the 2014 candidate questionnaire, published by Jacob Hall on the Caffeinated Thoughts website alongside answers by the other Republican primary contenders, offer a rare window into how he thinks about legal issues.

Mr. Hall said he interviewed Mr. Whitaker over the phone, writing down his answers. Mr. Whitaker holds strongly conservative views across a range of issues, his answers revealed.

His criticism of Marbury aligned with the view of some conservatives that the 1803 case - or at least how it came to be interpreted - gave the courts too much power to strike down laws. But Mr. Whitaker also criticized famous decisions in which the Supreme Court declined to strike down laws that conservatives do not like, from 1930s cases involving President Franklin D. Roosevelt's New Deal programs to the 2012 case in which the court declined to strike down President Barack Obama's health insurance law.

"We'll move forward from there," he said, "all New Deal cases that were expansive of the federal government. Those would be bad. Then all the way up to the Affordable Care Act and the individual mandate."

Laurence Tribe, a Harvard Law School constitutional law professor, said that Mr. Whitaker's expressed views of the Constitution and the role of the courts "are extreme and the overall picture he presents would have virtually no scholarly support" and would be "destabilizing" to society if he used the power of the attorney general to advance them.

Simultaneously criticizing the Supreme Court's power of judicial review while criticizing cases where it declined to strike down laws regulating economic and health insurance matters, was a sign of an "internally contradictory" and "ignorant" philosophy, Mr. Tribe said. Because the attorney general oversees decisions about which laws the Justice Department will defend and can decide which not to enforce, he said, Mr. Whitaker's views likely would have faced sharp scrutiny even from Republicans in a confirmation hearing.

"He seems to think much of the fabric of federal law that is part of our ordinary lives violates the Constitution of the United States to which he is evidently going to take an oath," Mr. Tribe said.

In the 2014 interview, Mr. Whitaker also expressed a range of other conservative views.

He is likely to hold fast to Mr. Sessions's position in a lawsuit brought by Republican-controlled states seeking to have the Affordable Care Act's insurance protections for people with pre-existing conditions struck down. Under Mr. Sessions, the department sided with the plaintiffs instead of fighting to keep the law intact. Mr. Whitaker's 2014 views on the insurance law suggests he will be unlikely to change that position.

"We need to do everything we can to repeal it, defund it, delay it - we need to do whatever it takes," Mr. Whitaker said of the Affordable Care Act. "It's having an incredibly negative impact on our economy. What can we do? We need to get a majority in the House and Senate and we need to get this president to change his mind. We need the people to agree with us that it's such a negative, long-term impact on our economy and it has to be undone."

He also signaled opposition to abortion rights, saying that he thinks "life begins at conception," and to same-sex marriage rights, saying that "it's traditionally been up to the churches and to God to define that." He expressed frustration that Iowa's legislature had not pushed back against a state Supreme Court ruling in 2009 that permitted same-sex couples in Iowa to marry.

"Here in the state of Iowa, we can't even get our elected officials to do anything about it and that's really frustrating," he said. "It's affecting our military. There are chaplains in the military under a lot of pressure to go against their religious beliefs."

Mr. Whitaker voiced a hard line on immigration, saying he did not believe in "amnesty" for undocumented immigrants who are already inside the country - he did not address the so-called Dreamers, or people brought to the United States as children - and talked about visiting the southwestern border while he was the United States attorney for the Southern District of Iowa during the second term of the Bush administration.

"I was able to see what our border looks like and the fact it is under assault on a daily basis from people trying to bring illegal people and illegal drugs into our country," he said. "What do I think the solution is? We need to secure the border first and then look at ways to reform the system, whether that's getting rid of chain immigration," in which migrants trace the paths of relatives or others they know to come to the United States, "or increasing the number of skilled-worker visas."

He indicated that he did not think mass shootings justified more restrictive gun-control laws, saying the problem was mental illness and that "I don't think infringing on Second Amendment rights will prevent those types of events."

And Mr. Whitaker said he believed the federal government should play no role in public education.

"The Department of Education should be disbanded and the resources either returned to the taxpayers or put into the schools," he said. "Bureaucrats in Washington, D.C., shouldn't know how to better educate my kids than I do."

On the issue of climate change, Mr. Whitaker said he was "not a climate denier," but also said that while the globe may be warming and human activities may contribute, "the evidence is inconclusive" and "that's very small and it may be part of the natural warming or cooling of the planet." As a result, he said, he did not believe in regulations aimed at curbing carbon emissions that could "hamstring" the American economy.

"I don't believe in big-government solutions to a problem that doesn't appear to be that significant or quite possibly isn't man made," he said.

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Acting Attorney General Once Declared Courts 'Inferior' and Criticized Supreme Court's Power

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WASHINGTON - The acting attorney general, Matthew G. Whitaker, once espoused the view that the courts "are supposed to be the inferior branch" and criticized the Supreme Court's power to review legislative and executive acts and declare them unconstitutional, the lifeblood of its existence as a coequal branch of government.

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by A. E. Dick Howard

The framers of the United States Constitution made clear that the document was to be regarded as fundamental law. Article VI states that the Constitution and those laws "which shall be made in pursuance thereof" (as well as treaties) shall be "the supreme Law of the Land." The framers also provided, in Article III, for one Supreme Court and such inferior courts as Congress might establish. Do those two provisions, read together, give the Supreme Court the power to strike down laws, including acts of Congress, found to be inconsistent with the Constitution?

While the framers clearly intended that there be a judicial branch, at the Philadelphia Convention of 1787 they spent little time mulling how far the "judicial power" might extend. They spent far more time debating the powers the new federal government would have, the composition of the federal Congress, the balance which ought to be struck between state and federal power, and the nature of the new federal executive. When the proposed Constitution was put to the several states for their approval, the ratification debates focused heavily on concerns about federal power generally-and on the lack of a bill of rights.

At the state level, judicial review-the power of a court to declare a legislative act to be unconstitutional-was only just beginning to emerge in the early years of the republic. The very idea of democracy was thought to emphasize the role of legislatures as being the voice of popular will. But Americans soon discovered that their own legislatures, like kings or parliaments, could threaten rights and freedoms. Hence, along with ideas like separation of powers and checks and balances, judicial review emerged as a linchpin of ensuring constitutional supremacy.

At the federal level, it was Chief Justice John Marshall who, in 1803, made explicit the courts' power of judicial review. In famous language, oft quoted in later cases, Marshall declared, "It is emphatically the province and duty of the judicial department to say what the law is." And that duty, he concluded, encompasses the courts' power to strike down even acts of Congress if they are found to conflict with the Constitution.

Until the American Civil War, the Supreme Court's constitutional jurisprudence focused largely on matters of federalism. The Bill of Rights, added to the Constitution in 1791, applied only to federal actions, not to the states. After the Civil War, however, the adoption of the Fourteenth Amendment enjoined the states from denying any person due process of law or equal protection of the laws. In time these provisions would be the basis both for major congressional actions (such as the Civil Rights Act of 1964) and for more sweeping judicial power (notably including the Supreme Court's 1954 decision in Brown v. Board of Education, finding racial segregation in public schools to be unconstitutional.

In the early decades of the twentieth century, the Supreme Court was often perceived as protecting property and enterprise against progressive legislation. In 1905, for example, the Court, striking down a New York law limiting the number of hours bakers could work in a day, called such statutes "meddlesome interferences" with the rights of individuals. That kind of judicial thinking put the Court on a collision course, in the 1930s, with President Franklin Roosevelt's New Deal. Threatened with "Court packing"-the proposal that further seats might be added to the Court-the justices changed course and took a more deferential approach to state and federal social and economic reform legislation.

Today's Supreme Court undertakes to review a remarkable range of issues. America is sometimes referred to as a "litigious society." Certainly Americans seem to have a knack for converting disputes into judicial contests-a trait commented on in the nineteenth century by Alexis de Tocqueville. In the 1960s, in the era of Chief Justice Earl Warren, the Court embarked on an especially ambitious agenda. The Warren Court decreed one person, one vote to be the rule in legislative appointment, applied most of the procedural guarantees of the Bill of Rights to the states, gave heart to the civil rights movement, and opened the door to a constitutional right of privacy and autonomy. Even with justices appointed by more recent Republican presidents, the Court has shown a discernable self-confidence in tackling many of the country's great issues.

What role does the Supreme Court play in American life? Among its key functions is that of being an arbiter of the federal system. No issue occupied more of the framers' attention at Philadelphia than giving the national government adequate powers while at the same time protecting the interests of the states. Thus the Supreme Court regularly is called upon to decide whether a federal statute or regulation preempts a state action. Likewise, the Court is often asked to decide whether a state law, otherwise valid, impinges upon some national interest such as the free flow of commerce. For example, when North Carolina passed a law that, neutral on its face, discriminated against Washington state apples in favor of local growers, the Court saw protectionism at work and invalidated North Carolina's law.

The Supreme Court also plays a fundamental role in ensuring the rights and liberties of individuals. James Madison once worried lest the Bill of Rights be only a "parchment barrier." In modern times the Court has been active in enforcing the guarantees of the Bill of Rights, not only against the federal government (their original purpose), but also against the states. The Court's reading of constitutional protections has often been robust and assertive. For example, in 1963 the Court held that the Sixth Amendment's guarantee of the right to counsel means, not only one's right to have a lawyer in court, but also the right to have counsel appointed, at state expense, if the defendant is too poor to afford a lawyer. The justices are especially solicitous of freedom of expression. Thus, in 1965 the Court held that, if a public officials who bring libel suits must meet a demanding standard- "actual malice," that is, proving that the speaker knew that the statement was false or acted in reckless disregard of its truthfulness.

One hears lively debate over whether the Constitution should be read as a "living" document. Some argue that judges should search for the Constitution's "original meaning," that is, the meaning ascribed it to by its framers, augmented perhaps by tradition and precedent. Others see the document as more organic. Thus in cases arising under the Eighth Amendment's ban on cruel and unusual punishment, the Court has invoked a notion of "evolving standards," permitting the Court, as it did in 2005, to declare the death penalty for youthful offenders to be unconstitutional.

There is no doubt that the Court has gone beyond the literal text of the Constitution in recognizing and securing particular rights. A conspicuous example is the right of privacy or autonomy. Drawing upon the Fifth and Fourteenth Amendment's guarantee of due process of law, the Court has found constitutional protection for such interests as the right of contraception, a woman's right to choose to have an abortion, and, in 2004, the right not to be punished by a state for homosexual behavior. The Court's abortion decisions have been especially controversial, but, whatever the Court may do in future abortion cases, it is hard to imagine the justices' declaring that there is no constitutional basis, in general, for some notion of personal privacy.

Under the Constitution, justices of the Supreme Court serve for life or good behavior. No justice has ever been removed from the Court by impeachment. Nominations to the Court, however, have in recent decades become highly political events. The more territory the Court's decisions cover, the higher the stakes when a vacancy occurs. To what extent, then, do the Court's decisions reflect the social and political attitudes of the day? Some cynics suggest that the justices "read the newspapers"-that they take public opinion into account when they shape opinions. There is little basis for this view. A fairer judgment is that, over the long term, the Court tends to reflect the country's dominant mood. Thus the Warren Court, in the 1960s, was sympathetic to national solutions for national problems. Under the leadership of Chief Justice Rehnquist, the Court in more recent years became, in some respects, a more conservative tribunal, more respectful of the states' place in the federal union. As the Roberts Court gets underway, the struggle between the more conservative and liberal justices on the Court seems to have become sharper.

The Supreme Court's decisions raise a fundamental question: What is the place of an unelected judiciary in a democracy? There is an inherent tension between two basic principles in a constitutional liberal democracy-accountable government by a democratically elected majority, and enforcement of the Constitution even if it requires striking down laws favored by that majority. Judicial review is especially attractive when it reinforces democratic principles such as one person, one vote, free and fair elections, and freedom of speech and press. The rule of law-indeed, the very idea of a constitution-requires that the Constitution be enforced as the supreme law of the land. The Supreme Court may err in particular cases. But the Court's role in ensuring the rule of law commands widespread assent among the American people.

A. E. Dick Howard is the White Burkett Miller Professor of Law and Public Affairs at the University of Virginia. He is the author of a number of books, articles, and monographs. These include The Road from Runnymede: Magna Carta and Constitutionalism in America and Commentaries on the Constitution of Virginia. More recent works include Democracy's Dawn: A Directory of American Initiatives on Constitutionalism, Democracy, and the Rule of Law in Central and Eastern Europe and Constitution-Making in Eastern Europe.

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by A. E. Dick Howard The framers of the United States Constitution made clear that the document was to be regarded as fundamental law. Article VI states that the Constitution and those laws "which shall be made in pursuance thereof" (as well as treaties) shall be "the supreme Law of the Land."

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The Supreme Court has removed an obstacle to Alabama's efforts to execute a convicted killer who is in declining health.

The justices on Monday unanimously reversed an appellate ruling that had blocked the execution of 67-year-old inmate Vernon Madison.

The 11th U.S. Circuit Court of Appeals had ruled that Madison is incompetent to be executed because he doesn't understand his death sentence or remember what he did after suffering multiple strokes.

The Supreme Court said in an unsigned opinion that testimony shows Madison "recognizes that he will be put to death as punishment for the murder he was found to have committed."

Madison was convicted in the 1985 killing of Mobile Police Officer Julius Schulte, who had responded to a domestic call involving Madison.

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Supreme Court removes obstacle to executing Alabama inmate

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The Supreme Court has removed an obstacle to Alabama's efforts to execute a convicted killer who is in declining health. The justices on Monday unanimously reversed an appellate ruling that had blocked the execution of 67-year-old inmate Vernon Madison. The 11th U.S. Circuit Court of...