U.S. Constitutional Law I(C1 &

U.S. Constitutional Law I(C1 & C2) SPRING 2021

PROFESSOR STEPHEN J. SCHNABLY Office: G472 http://osaka.law.miami.edu/~schnably/courses.html Tel.: 305-284-4817 E-mail: [email protected]

SUPPLEMENTARY MATERIALS, PART I: TABLE OF CONTENTS

H. Res. 24 impeaching Donald John Trump, President of the United States, for high crimes and misdemeanors, 117th Cong. (2021-2022)...... 1 Louis Jacobson, Is this a coup? Here’s some history and context to help you decide, PolitiFact, Jan. 6, 2021 ...... 2 Jacob Schulz, When Extremists Stormed the Capitol and Got Convicted of Seditious Conspiracy, Lawfare, Jan. 20, 2021 ...... 5 Connor O’Brien & Jacqueline Feldscher, Pelosi asks Joint Chiefs about preventing Trump from launching nukes, POLITICO, Jan. 8, 2021 ...... 7 All 10 Living Former Defense Secretaries, Involving the military in election disputes would cross into dangerous territory, Op-Ed, Washington Post, Jan. 3, 2021 ...... 9 Brian C. Kalt, Constitutional Cliffhangers ch. 5 (2012) ...... 11 Constitution of Canada (excerpts) ...... 38 Constitution of the Republic of South Africa 1996 (excerpts) ...... 48 Edward Hartnett, A “Uniform and Entire” Constitution; Or, What If Madison Had Won?, 15 CONST. COMM. 251 (1998) ...... 58 Reference re Secession of Quebec, [1998] 2 S.C.R. 217 ...... 76 Supreme Court Act, R.S.C., 1985, c. S-26. An Act respecting the Supreme Court of Canada...... 86 Constitution Act, 1867, Canada, § 101 ...... 87 Joseph M. Lynch, NEGOTIATING THE CONSTITUTION: THE EARLIEST DEBATES OVER ORIGINAL INTENT 218-27 (1999) ...... 88 Dudgeon v. United Kingdom, 45 Eur. Ct. H.R. (ser. A) (1981), 4 E.H.R.R. 149 (1982) (European Court of Human Rights) ...... 93 George Lardner, Jr., A Test of The Power To Unpardon, WASH. POST, Jan. 14, 2009 ...... 96 Brian C. Kalt, Once Pardoned, Always Pardoned, WASH. POST, Jan. 26, 2009 ...... 98 The Judiciary Act of 1789, § 25, 1 Stat. 73, 85 ...... 100 The Judiciary Act of 1789, § 25, 1 Stat. 73, 85 (color coded) ...... 101 Andrew Jackson, Veto Message, July 10, 1832, reprinted in 3 MESSAGES AND PAPERS OF THE PRESIDENTS 1139-54 (1897) ...... 102 Congressional Enactments Timeline 1787-1858 ...... 104 Dred Scott v. Sandford: Timeline ...... 108 Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) ...... 110 Robert Barnes & Anne E. Kornblut, It’s Obama vs. the Supreme Court, Round 2, Over Campaign Finance Ruling, WASH. POST, March 11, 2010...... 119 Amita Kelly, McConnell: Blocking Supreme Court Nomination ‘About a Principle, Not a Person’, NPR.org, March 16, 2016 ...... 121

Editorial, The Stolen Supreme Court Seat, N.Y. Times, 12/24/16 ...... 122 Ilya Shapiro, The Senate Should Refuse to Confirm All of Hillary Clinton’s Judicial Nominees, The Federalist.com, Oct. 26, 2016 ...... 123 Kim Janssen, Posner Says ‘Highly Politicized’ Supreme Court Should Grow to 19 Justices, CHICAGO TRIBUNE, Aug. 1, 2017 ...... 125 Burgess Everett & Elana Schor, McConnell’s laser focus on transforming the judiciary, Politico, 10/17/18 ...... 126 Zach Beauchamp, The Supreme Court’s legitimacy crisis is here, Vox, Oct. 6, 2018 ...... 127 Ian Samuel, Kavanaugh will be on the US supreme court for life. Here’s how we fight back, The Guardian, Oct. 9, 2018 ...... 131 David B. Rivkin Jr. and Lee A. Casey, Democrats Abandon the Constitution, Wall St. J., Oct. 15, 2018 ...... 133 Gabby Orr, ‘We will not be betrayed again’: Trump’s SCOTUS list hits a new roadblock, Politico, July 27, 2020 ...... 135 Allen v. Wright, 468 U.S. 737 (1984)...... 138 The War Powers Resolution, 50 U.S.C. §§ 1541-1548 ...... 143 To prohibit the conduct of a first-use nuclear strike absent a declaration of war by Congress, H. R. 669, 115th Cong., 1st Sess...... 148 Charlie Savage, Can the President Be Indicted? A Long-Hidden Legal Memo Says Yes, N.Y. TIMES, July 22, 2017 ...... 150

H. Res. 24 impeaching Donald John Trump, President of the United States, for high crimes and misdemeanors, 117th Cong. (2021-2022). Resolved, the Donald John Trump, President of the United States, is impeached for high crimes and misdemeanors and that the following article of impeachment be exhibited to the United States Senate: Article of impeachment exhibited by the House of Representatives of the United States of America in the name of itself and of the people of the United States of America, against Donald John Trump, Presi- dent of the United States of America, in maintenance and support of its impeachment against him for high crimes and misdemeanors. ARTICLE I: INCITEMENT OF INSURRECTION The Constitution provides that the House of Representatives "shall have the sole Power of Impeach- ment" and that the President "shall be removed from Office on Impeachment, for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." Further, section 3 of the 14th Amendment to the Constitution prohibits any person who has "engaged in insurrection or rebellion against" the United States from "hold[ing] and office ... under the United States.' In his conduct while President of the United States — and in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, provide, protect, and defend the Constitution of the United States and in violation of his constitutional duty to take care that the laws be faithfully executed — Donald John Trump engaged in high Crimes and Misdemeanors by inciting violence against the Govern- ment of the United States, in that: On January 6, 2021, pursuant to the 12th Amendment to the Constitution of the United States, the Vice President of the United States, the House of Representatives, and the Senate met at the United States Capitol for a Joint Session of Congress to count the votes of the Electoral College. In the months preced- ing the Joint Session, President Trump repeatedly issued false statements asserting that the Presidential election results were the product of widespread fraud and should not be accepted by the American people or certified by State or Federal officials. Shortly before the Joint Session commenced, President Trump, addressed a crowd at the Ellipse in Washington, D.C. There, he reiterated false claims that "we won this election, and we won it by a landslide." He also willfully made statements that, in context, encouraged — and foreseeably resulted in — lawless action at the Capitol, such as: "if you don't fight like hell you're not going to have a country anymore." Thus incited by President Trump, members of the crowd he had addressed, in an attempt to, among other objectives, interfere with the Joint Session's solemn constitutional duty to certify the results of the 2020 Presidential election, unlawfully breached and vandalized the Capi- tol, injured and killed law enforcement personnel, menaced Members of Congress, the Vice President, and Congressional personnel, and engaged in other violent, deadly, destructive and seditious acts. President Trump's conduct on January 6, 2021, followed his prior efforts to subvert and obstruct the certification of the results of the 2020 Presidential election. Those prior efforts included a phone call on January 2, 2021, during which President Trump urged the secretary of state of Georgia, Brad Raffensper- ger, to "find" enough votes to overturn the Georgia Presidential election results and threatened Secretary Raffensperger if he failed to do so. In all this, President Trump gravely endangered the security of the United States and its institutions of Government. He threatened the integrity of the democratic system, interfered with the peaceful transition of power, and imperiled a coequal branch of Government. He thereby betrayed his trust as President, to the manifest injury of the people of the United States. Wherefore, Donald John Trump, by such conduct, has demonstrated that he will remain a threat to national security, democracy, and the Constitution if allowed to remain in office, and has acted in a manner grossly incompatible with self-governance and the rule of law. Donald John Trump thus warrants impeachment and trial, removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States.

Louis Jacobson, Is this a coup? Here’s some history and context to help you decide, PolitiFact, Jan. 6, 2021 Are Americans witnessing a coup? Before the Prior to the breach of the Capitol, some offi- storming of the U.S. Capitol on Jan. 6, the case cials and commentators suggested that Presi- was arguable, but not a slam dunk. After the dent Donald Trump, with such actions as trying Capitol was breached, the case became more to get Georgia’s secretary of state, Brad clear cut, experts say. Raffensberger, to "find" enough votes for him The questions stem from President Donald to win the state, was effectively attempting a Trump’s reaction to losing the 2020 presiden- coup. Others said some lawmakers who op- tial election. Trump and his supporters have posed counting the certified Electoral College filed a string of lawsuits rejected by the courts, slates in Congress were creating a coup. sought to strong-arm local officials into chang- These actions might fall into the category ing the results, and suggested incorrectly that of self-coups, in which the leader strong-arms Vice President Mike Pence could overturn the other branches of government to entrench will of the electoral college as he presided over power. the counting of the ballots. "These coups involve the existing chief execu- Whether the U.S. was witnessing a coup tive taking extreme measures to eliminate, or seemed speculative until the violent overrun of render powerless, other components of the gov- the House and Senate on the day the Electoral ernment (the legislature, the judicial branch, College votes were supposed to be counted, of- etc.)," the 2013 Cline Center report said. "It ficially certifying Biden’s victory. also includes situations where the chief execu- Here are some questions and answers on what tive simply assumes extraordinary powers in an makes a coup, as well as another concept that illegal or extra-legal manner (i.e., goes beyond is increasingly being discussed, sedition. extraordinary measures included in the coun- What is a coup? try’s constitution, such as declaring a state of A coup is shorthand for "coup d’etat," a French emergency)." term that means the overthrow of the govern- Trump’s call to the Georgia secretary of state ment. The key element of a coup is that it is might well qualify as an "extreme measure" carried out beyond the bounds of legality. and "illegal or extra-legal," although legal ex- "We define a coup d'état as the sudden and ir- perts have said it might be a hard case to pros- regular (i.e., illegal or extra-legal) removal, or ecute. displacement, of the executive authority of an Multiple commentators applied the coup label independent government," wrote the Coup to the objection to the lawmakers’ counting of D’etat Project at the University of Illinois’ the electoral votes, too. Cline Center for Democracy in 2013. Speaking at a Senate session to debate objec- The Cline Center characterized 12 types of tions to the electoral vote count, Senate Minor- coups. Several of them aren’t relevant to the ity Leader Chuck Schumer, D-N.Y., said, "Sad- current situation, including palace coups, mili- der and more dangerous still is the fact that an tary coups, counter coups, foreign coups, inter- element of the Republican Party believes their nationally mediated transitions, and forced res- political viability hinges on the endorsement of ignations. an attempted coup." Others might be, including "attempted coups" It may be harder to argue that the effort in Con- and "coup conspiracies." gress amounts to a coup. The law governing the Were Trump’s actions to overturn the election counting allows for objections to be registered, a coup? debated, and, if the chambers vote them down,

2 dispensed with. This is part of the law, not (though he didn’t). At the Capitol, some of the something outside it. group stormed the building, causing the House What about the storming of the Capitol? and Senate to break off debate and leave the The actions of some protestors at the U.S. Cap- chamber. itol, however, were clearly outside the law, es- Several categories of coups share some ele- pecially the people who were able to reach the ments of this scenario, although none fit per- floor of the House and Senate and lawmakers’ fectly. personal offices. "Rebel coups," according to the Cline Center, Speaking to CNN as the Capitol was being require "an organized, militarized group that is breached, Rep. Adam Kinziger, R-Ill., said, actively contesting government forces," though "Anywhere else in the world, we would call "militarized" may be too generous a description this a coup attempt, and that's what I think it is." of the disorganized groups that entered the NBC News’ Lester Holt said, "There have been Capitol. some elements of a coup attempt." Another category is "dissident actions," which Are they right? Let’s start by noting that while involve "small groups of discontents," though violence is part of many coups, being violent is the tens of thousands of protesters in Washing- not a necessary condition. (At least one per- ton on Jan. 6 were probably more numerous son reportedly died after being shot inside the than this category envisions. Capitol.) "Popular revolts " include "irregular regime That said, the actions on the Capitol grounds changes that are driven by widespread popular may strengthen the case for calling this an at- dissatisfaction with a government that is mani- tempted coup. fested by high levels of civil unrest." This The morning the Capitol was breached, and as doesn’t quite fit either, since the election results the House and Senate were preparing to count did not show "widespread" popular support for the electoral votes, Trump spoke in person to Trump remaining in office. thousands of supporters gathered between the On the other hand, other elements of the actions White House and the Washington Monument. on Jan. 6 do fit the overall definition of a coup. He called the presidential election the most cor- A sizable number of citizens were urged by the rupt in the nation’s history, and he repeated the president to move on the seat of legislative unproven claims of election fraud that have power at precisely the moment when the in- failed to find traction in courts across the coun- cumbent’s loss was to be formally sealed. The try. group proceeded to break laws by entering the He told the crowd that they needed to fight for building, causing damage inside, and forcing their country. "If you don't fight like hell, the electoral vote count process to halt. you're not going to have a country anymore," All this seems to fit the category of a "sudden he said. and irregular (i.e., illegal or extra-legal) re- He closed by saying, "We're going to walk moval, or displacement, of the executive au- down Pennsylvania Avenue," Trump said. thority of an independent government." It was "We're going to try and give our Republicans, sudden, laws were broken, and official func- the weak ones, because the strong ones don't tions of the government were displaced. (For need any of our help, we're going to try and this to apply, one has to envision President- give them the kind of pride and boldness that elect Joe Biden as the "executive authority," ra- they need to take back our country." ther than Trump, the incumbent but lame duck Trump ended his remarks by urging the crowd president.) to march down Pennsylvania Avenue to Con- gress, suggesting that he would join them

"Invading the national legislature through force sedition," he said. "All those taking place and sounds like a coup; peaceful protest is obvi- those in conspiracy are guilty and punishable." ously not," said Michael Klarman, a Harvard Law School professor. Anthony Clark Arend, a specialist in international law at Georgetown University, said that he’s skeptical of labeling the lawmakers’ chal- lenges to the electoral vote count a coup, but he thinks it could be valid for the storming of the Capitol. "I do think the violent actions by the protesters currently occupying part of the Capitol could be seen as a coup attempt," Arend said. "To the extent to which the president can be seen as encouraging these actions, I would argue that he is supporting a coup attempt." What about sedition? Multiple commentators, including CNN’s Jake Tapper, have cast the actions of the protesters as sedition. Sedition is usually defined as conduct or speech inciting people to rebel against the authority of a government. This appears to be an even clearer descriptor of the events of Jan. 6. A seditious conspiracy is defined in federal law as two or more persons "conspir(ing) to overthrow, put down, or to destroy by force the Government of the United States, … or to op- pose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof." The law comes with a fine or imprisonment up to 20 years, or both. The storming of the Capitol would seem to qualify as the use of "force to prevent, hinder, or delay the execution of any law of the United States" or the authority of the U.S. government. "The people who stormed the Capitol building would seem to clearly qualify for prosecution under this provision," said Carlton Larson, a law professor at the University of California- Davis. James Robenalt, a lawyer with an expertise in political crises, agreed. "What we are seeing is

Jacob Schulz, When Extremists Stormed the Capitol and Got Convicted of Seditious Conspiracy, Lawfare, Jan. 20, 2021 “In Washington D.C., ruthless fanatic violence President Carter did ultimately commute the sen- erupted in the halls of Congress,” the news opened. tences of all four assailants. Extremists had burst into the Capitol. They made a The 1954 attack has gotten short shrift in coverage beeline for the chamber, looking for members of of the “Stop the Steal” riot on the Hill. But the Jus- Congress. It was “pandemonium.” The anchor de- tice Department and the Second Circuit’s handling clared that the attackers had earned “the evil dis- of the case has some real relevance to the current tinction of having perpetrated a criminal outrage al- moment. Bryce Klehm, Alan Rozenshtein and I most unique in America’s history.” He decried the wrote immediately following the attack that a Jus- attack as “wanton violence that shocked and stirred tice Department decision to charge the 2021 rioters the nation,” but “only did harm to the cause” the with seditious conspiracy or other “political attackers purported to represent. charges,” would “send the strongest message about the severity of the behavior on display.” And it Sound familiar? It should—except that the attack looks like the Department may be pursuing that in question took place on Mar. 1, 1954, at the hands route. It has already charged a militia leader with not of #MAGA extremists but of Puerto Rican in- conspiracy, though not seditious conspiracy. And dependence radicals. Acting U.S. Attorney for the District of Columbia In the hours and days after the Jan. 6, 2021 insur- Michael Sherwin told reporters last week that his rection in the Capitol, commentators and journal- office “organized a strike force...whose only ists rushed to label the siege as “unprecedented” or marching orders from me are to build seditious “never-before-seen.” Any number of commenta- [conspiracy] charges related to the most heinous tors have noted that the Capitol had not been acts that occurred in the capitol.” Sixty-five years stormed since the War of 1812. ago, the Justice Department took exactly that ap- Members of the 83d Congress might beg to correct proach toward the Capitol insurrectionists, and the the record on this point. On a March afternoon in Second Circuit’s opinion specifically deals with an 1954, members and staff scrambled for cover when attack on the Capitol. That opinion contains some four Puerto Rican nationalist terrorists stormed into law potentially relevant to the present situation: it the Capitol and began “spraying the place with bul- spells out the scope of the statute and unambigu- lets.” The attackers shot five congressmen and ously affirms its constitutionality, in a decision caused what a clerk later described as “bewilder- cited in a major later seditious conspiracy case. ment” on the House floor at this “surrealistic” at- The 1954 attackers had hoped the shooting would tack. Amazingly no one died, but 35-year old make a “grand political statement.” Lolita Lebron, Michigan Congressman Alvin Bentley, who was Rafael Cancel Miranda, Andrés Figueroa Cordero shot in the chest, “was never really the same.” and Irving Flores Rodriguez were members of the And just as commentators are now talking about Nationalist Party of Puerto Rico (PNPR). The the seditious conspiracy statute as a potential PNPR had a history of violence that predated the charge against some of the Jan. 6 rioters, the Justice Capitol attack. It had launched an unsuccessful re- Department charged the four attackers, along with bellion on the island on Oct. 27, 1950, and four 13 other members of the Puerto Rican nationalist days later, tried but failed to assassinate President group, with seditious conspiracy. Four pleaded Harry Truman in D.C. guilty and thirteen were convicted at trial. The U.S. The 1954 shooters took a day-of train from New Court of Appeals for the Second Circuit rejected an York, where the cell had its base, to Washington. appeal from twelve of the defendants, although At 2:30 p.m. the foursome burst into the Capitol 5

building and began firing on the House Floor. A of President Truman, the D.C. shooting and an un- House page explained later that, “[a] lot of the Con- fulfilled “master plan for revolution in Puerto Rico gressmen just heard pop-pop-pop-pop going on, encompassing occupation of military garrisons and and they thought it was firecrackers.” House attacks on American forces stationed on the Is- Speaker Joe Martin later wrote in his memoir that land.” The defendants belonged to different cells of it was “the wildest scene in the entire history of the party, referred to in the Second Circuit opinion Congress.” Capitol Police—aided by D.C. Metro- as “juntas.” Most of the defendants, including all politan police, staffers, and Rep. James Van Zandt, the shooters, belonged to the New York junta. A a World War II veteran and Navy Rear Admiral— few others named in the indictment had roles in the arrested three of the shooters on-site, and police de- Chicago junta or were dual-hatted between one of tained the fourth later in the day. the U.S. juntas and the junta back in Puerto Rico. House pages, meanwhile, carried the wounded Twelve of the defendants appealed their trial court Congressmen out to ambulances. An overseer for convictions to the Second Circuit, but the appeals the House pages recalled trying to call hospitals to court rejected the appeal in a short opinion and re- tell them a shooting happened in the Capitol Build- affirmed the lower court’s decision. Wrote the Sec- ing: “I said, ‘There’s been a shooting in the House ond Circuit, the PNPR, “once a political party, had of Representatives. You got to send an ambulance.’ abandoned hope of achieving Puerto Rican inde- He said, ‘Kid, you shouldn’t joke about things like pendence through legitimate political processes in that,’ and hung up the phone.” The phone operators favor of overthrowing American authority in that at the hospitals weren’t the only ones incredulous commonwealth by force of arms and by violence.” after the shooting. In a comment with a striking re- Two parts of the Second Circuit are particularly no- semblance to the lies promulgated by some House table for present purposes: First, the ruling articu- Republicans after the 2021 riot, Puerto Rican Res- lated an expansive vision of what a “conspiracy” is ident Commissioner Antonio Fernós-Isern labeled under the seditious conspiracy statute; and second, the attackers as “communist dupes,” telling the it held that the statute itself doesn’t run afoul of free Baltimore Sun, “Can it be the doing just of Puerto speech protections. Rican Nationalists?... Who benefits? Certainly not Puerto Rico.” [I]t’s important to keep in mind that there are two different buckets of potential 2021 seditious con- A grand jury in the Eastern District of New York spiracy defendants: on the one hand, there are those indicted the four shooters and thirteen other mem- who stormed the Capitol and are likely quite vul- bers of the Nationalist Party of Puerto Rico for se- nerable to seditious conspiracy prosecution; on the ditious conspiracy. The indictment didn’t just other, there are those who might have played a role cover the D.C. shooting, but alleged a “single con- in coordinating the riot, but weren’t physically pre- tinuous conspiracy operating at least from Sept. sent in the Capitol. And the fact pattern of the Stop 1950 to May 1954.” During that period, recounted the Steal breach differs in some respects from what the Second Circuit, the group “committed spectac- happened in 1954—for example, the Capitol riot- ular acts of violence”: the 1950 “armed uprising” ers did not belong to groups that tried to assassinate in Puerto Rico, the botched assassination attempt the President of the United States.

Connor O’Brien & Jacqueline Feldscher, Pelosi asks Joint Chiefs about preventing Trump from launching nukes, POLITICO, Jan. 8, 2021 House Speaker Nancy Pelosi spoke with the na- chain of command that requires input and approval tion's top military officer on Friday about precau- from many officials. Instead, the order is meant to tions in place to prevent President Donald Trump be conveyed as quickly as possible so military of- from ordering a nuclear strike or conducting other ficers can execute a decision that only the president military hostilities as Democrats seek his removal can make. from office. But it is also not as easy as it sounds for a president The stunning revelation came in a letter from the to just launch a strike out of the blue. Gen. John speaker to House Democrats outlining next steps Hyten, now the nation's No. 2 military officer, told following a violent breach of the U.S. Capitol on an audience at a military forum in 2017 that leaders Wednesday by Trump supporters. Pelosi said she would not obey an illegal order and can advise the spoke to Joint Chiefs Chairman Gen. Mark Milley president before launching. about guardrails in place that could prevent "an un- “And if it’s illegal, guess what’s going to happen? stable president" from wielding the military or the I’m going to say, ‘Mr. President, that’s illegal.’ country's nuclear arsenal. And guess what he’s going to do? He’s going to "This morning, I spoke to the Chairman of the Joint say, ‘What would be legal?’ And we’ll come up Chiefs of Staff Mark Milley to discuss available pre- with options, of a mix of capabilities to respond to cautions for preventing an unstable president from whatever the situation is, and that’s the way it initiating military hostilities or accessing the launch works. It’s not that complicated.” codes and ordering a nuclear strike," Pelosi said in "There is no mythical red button. That mythical the letter. button doesn’t exist. That is a Hollywood thing,” "The situation of this unhinged President could not added a senior military official who was not au- be more dangerous, and we must do everything that thorized to speak publicly. “It is a very complicated we can to protect the American people from his un- process. We have legal advisers in the room on balanced assault on our country and our democ- both sides — on the military side and on the civil- racy," she added. ian side. The laws of armed conflict, the law of war, Milley's spokesperson, Col. Dave Butler, said play a big role in this — ethical proportionality and Pelosi initiated the call with the chairman. "He an- all that.” swered her questions regarding the process of nu- One person with direct knowledge of nuclear oper- clear command authority.” ations said Pelosi is sending the wrong message by Numerous Democratic lawmakers have pushed for raising the issue in public. legislation that would limit the president's author- “It makes America look weak and weakness is pro- ity to launch a nuclear strike — including by re- vocative,” said a Defense Department official who quiring additional officials to sign off on a launch advises nuclear commanders. "I don’t think what and making the "no first use of nuclear weapons" Pelosi is doing is helpful." an official U.S. policy. But the official also agreed that her message sig- Some have also warned of Trump's politicization nals a lack of understanding about how the nuclear of the military and expressed concerns ahead of the arsenal is managed and under what conditions it November election that the commander in chief would or could be used in the absence of a direct could use the military, either domestically or inter- threat to the United States from abroad. nationally, in an improper manner with the goal of “The way the nuclear arsenal is employed, it is not influencing the election or staying in power. that easy for a crazy president to go and launch The process to launch a nuclear strike does not pro- nukes,” the official said. “That’s kind of a silly ceed through the typical military decision-making thing to say.”

A senior military official stressed on Friday that the president to talk to the National Military Com- troops have been taught to recognize and disobey mand Center, a sealed packet with a piece of paper illegal orders, particularly those at U.S. Strategic inside called a "biscuit" that contains an authenti- Command, which oversees America’s nuclear ar- cation code to certify that the order is coming from senal. While theoretically Trump could fire any of- the president, and a basic pamphlet of pre-set mili- ficer who refused to obey an illegal order, he would tary responses. The simplicity of the set up is de- be hard-pressed to find another who would imple- signed for the president to make a decision in a ment it, the person said. matter of minutes. “It is important that our oath is to the Constitution, The launch processes are intended to move so not to a person,” the person said. “I’m not saying quickly that there is no second-guessing or cancel- that is easy, but I’m still confident that we would ing an attack once the decision is sent. be able to do it.” Pelosi's letter comes as congressional Democrats, Retired Gen. Colin Powell, a former Joint Chiefs and some Republicans, are seeking Trump's re- chairman, cautioned on Friday against bringing the moval from office — either through action by Vice nuclear codes into the discussion on Trump and his President Mike Pence and the Cabinet or by the final days, insisting that the concerns about a mad- congressional impeachment process — after the man left to his own devices with the launch codes commander in chief incited his supporters to is simply not the way it works. breach the U.S. Capitol. "We've seen him do some crazy things, but let's not The riot led to lawmakers being evacuated, delayed start dragging out things like nuclear codes," he the official certification of President-elect Joe said on NBC's "Today" show before Pelosi made Biden's victory over Trump and resulted in five her announcement. "I was the chairman of the Joint deaths, including a Capitol Police officer. Chiefs of Staff and I can tell you for sure that if Trump's removal by the 25th Amendment is a long something like this ever happened and someone shot, with two Cabinet secretaries tendering their suddenly said, 'We want to use a nuclear weapon,' resignations following the violence at the Capitol. they would never get near it." Democrats are instead readying to act to impeach Nonetheless, such worries are not new. “They said Trump next week. the same things about Ronald Reagan if you go In her letter, Pelosi said she and Senate Minority back and look in the New York Times during the Leader Chuck Schumer had reached out to Pence 1980 campaign,” said the official with knowledge with no response, adding that they "still hope to of nuclear operations. “They were saying almost hear from him as soon as possible with a positive the same exact things.” answer as to whether he and the Cabinet will honor The infrastructure to launch an attack is carried in their oath to the Constitution." a heavy black briefcase, called the "football," that "If the President does not leave office imminently a military aide brings everywhere the president and willingly, the Congress will proceed with our goes. Inside is communications equipment to allow action," she added.

All 10 Living Former Defense Secretaries, Involving the military in election disputes would cross into dangerous territory, Op-Ed, Washington Post, Jan. 3, 2021 As former secretaries of defense, we hold a policy and posture. They can be a moment common view of the solemn obligations of the when the nation is vulnerable to actions by ad- U.S. armed forces and the Defense Depart- versaries seeking to take advantage of the situ- ment. Each of us swore an oath to support and ation. defend the Constitution against all enemies, Given these factors, particularly at a time when foreign and domestic. We did not swear it to an U.S. forces are engaged in active operations individual or a party. around the world, it is all the more imperative American elections and the peaceful transfers that the transition at the Defense Department be of power that result are hallmarks of our de- carried out fully, cooperatively and transpar- mocracy. With one singular and tragic excep- ently. Acting defense secretary Christopher C. tion that cost the lives of more Americans than Miller and his subordinates — political appoin- all of our other wars combined,[1] the United tees, officers and civil servants — are each States has had an unbroken record of such tran- bound by oath, law and precedent to facilitate sitions since 1789, including in times of parti- the entry into office of the incoming admin- san strife, war, epidemics and economic de- istration, and to do so wholeheartedly. They pression. This year should be no exception. must also refrain from any political actions that Our elections have occurred. Recounts and au- undermine the results of the election or hinder dits have been conducted. Appropriate chal- the success of the new team. lenges have been addressed by the courts. Gov- We call upon them, in the strongest terms, to do ernors have certified the results. And the elec- as so many generations of Americans have toral college has voted. The time for question- done before them. This final action is in keeping the results has passed; the time for the for- ing with the highest traditions and profession- mal counting of the electoral college votes, as alism of the U.S. armed forces, and the history prescribed in the Constitution and statute, has of democratic transition in our great country. arrived. Ashton Carter, Dick Cheney, William Cohen, As senior Defense Department leaders have Mark Esper, Robert Gates, Chuck Hagel, noted, “there’s no role for the U.S. military in James Mattis, Leon Panetta, William Perry and determining the outcome of a U.S. election.” Donald Rumsfeld are the 10 living former U.S. Efforts to involve the U.S. armed forces in re- secretaries of defense. solving election disputes would take us into dangerous, unlawful and unconstitutional territory. Civilian and military officials who direct or carry out such measures would be accountable, including potentially facing criminal penalties, for the grave consequences of their actions on our republic. Transitions, which all of us have experienced, are a crucial part of the successful transfer of power. They often occur at times of international uncertainty about U.S. national security

[1] [The Secretaries are referring to the secession of the southern states after Lincoln’s election but before his Electoral College victory was certified in Congress.] 9

Brian C. Kalt, Constitutional Cliffhangers ch. 5 (2012)

Impeaching an Ex-President

11 separation of powers precludes Congress from forcing him to testify under oath about his actions as president. To vindicate its authority, and to hold Martin accountable, the House leadership decides to revive Martin’s impeachment; impeachment trumps Martin’s separation-of-powers argument, and it is beyond the reach of Barker’s pardon. Because he has already left office, though, this “late” impeachment divides the anti-Martin camp. Some question whether Congress has the power to impeach an ex-president. Others don’t worry about the legalities but wonder what the point is. One obvious answer—that it will keep Martin in the news during the upcoming election campaign—turns off millions of voters who would like Congress to do something more productive. Nevertheless, there are still many more angry voters who want to see Martin pilloried. They argue that it is perfectly constitutional to impeach an ex-president, and that it is worthwhile to investigate Martin’s crimes, to disqualify him from ever holding federal office in the future, and to brand him with a mark of shame. The legal question of late impeachment has to be settled before the case can go anywhere. The hottest political issue in the country is now a constitutional-law issue, and the nation’s top politicians—and maybe its top judges—gear up to adjudicate it.

can presidents be impeached even after they have left office? There is no simple constitutional answer. Congress has conducted a late-impeachment trial, but with ambiguous results. Scholarly opinion on the question is divided. There can be only one answer, though; either Congress can impeach and try former presidents or it can’t.1 Unlike in previous chapters, the stakes are relatively low here; we are not talking about two presidents wrestling for control of the White House, or even a president going to prison. Moreover, Congress will rarely want to impeach an ex-president anyway. But contemplating late impeachment gives us insight into the deeper meaning of impeachment in general. As leading impeachment scholar Michael Gerhardt put it, “[i]mpeachment proceedings test every institution with which they come into contact.” The question is bigger than just what happens to Jack Martin. That said, what happens to Jack Martin might matter some day too.2

12 Impeachment Basics

The House of Representatives has “the sole Power” to impeach (accuse) federal executive and judicial officers. The Senate has “the sole Power” to try them, with a two-thirds majority needed to convict, and with the chief justice presiding when the president is on trial. Two sitting presidents—Andrew Johnson and Bill Clinton—have been impeached. Both were acquitted by the Senate.3 The maximum allowable “judgment” upon conviction by the Senate is “removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States.” Criminal prosecution and impeachment are separate—someone who has been impeached is still subject to regular criminal prosecution. Similarly, a presidential pardon can stop or undo a criminal prosecution, but it cannot stop or undo an impeachment.4 The most important constitutional clause touching late impeachability is "SUJDMF** 4FDUJPOi5IF1SFTJEFOU 7JDF1SFTJEFOUBOEBMMDJWJM0GGJDFSTPG the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” The crux of the legal arguments center on this clause—most prominently, on whether “President” refers to the offender at the time of the offense, the time of the impeachment, or both.5 Before getting to the constitutional arguments, this chapter will consider whether (and when) late impeachment might be sensible.

Practical Politics

This is ridiculous. Jack Martin has left office and he’ll never work in this town again. Why are we wasting our time with this pointless case? We’re impeaching a dead horse. —ANTI-IMPEACHMENT SENATOR

We’re not wasting our time. The only thing making this take so long is all the hand-wringing. If we would just get on with it, the whole thing could be done in a few weeks. We already know Jack Martin is guilty as sin, and we know that this is the only chance we have to hold him accountable and to send a message. 13

The alternative would give this crook control over the impeachment process and let him make a further mockery of our government. —PRO-IMPEACHMENT SENATOR

Why would Congress ever want to impeach and try an ex-president? It usually wouldn’t; impeachment proceedings are generally dropped if the target resigns. Whatever the theoretical purposes of impeachment may be, the primary practical purpose has been to remove the target from office, and once removal has been accomplished—by whatever means—there is generally little point in continuing. Moreover, the fact that late impeachment is on shaky legal ground means that the ex-president would have some thumbs on the scale in his favor: to avoid impeachment or conviction, he would need a critical mass that either rejects the accusations against him or concludes that late impeachment is unconstitutional or concludes that it is pointless. There are, however, some factors that could make Congress more likely to pursue a late impeachment. The most important practical consideration is punishment. The maximum constitutional penalty in impeachment cases is removal and disqualification. Removal is required when sitting officers are convicted, but it is moot in late-impeachment cases, which just leaves disqualification.* Admittedly, disqualification from being a federal judge or executive officer† does not sound like much. If someone disgraces himself so

* It is possible that somebody could commit an impeachable offense, leave office, and occupy a different office at the time of the trial, in which case removal might still be on the table. However, as discussed later, there are alternative interpretations of the impeachment power that would allow such cases while barring other late impeachments. † The disqualification penalty probably does not prevent the convict from being elected to Congress, because the Constitution treats “offices under the United States” as distinct from seats in Congress. See, e.g., U.S. Const. art. II, § 1, cl. 2 (“[N]o Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”); id. art. I, § 6, cl. 2 (“[N]o Person holding any Office under the United States, shall be a Member of either House [of Congress] during his Continuance in Office.”). But see Michael J. Gerhardt, The Federal Impeachment Process 60–61 (2d ed. 2000) (implying contrary view); Ronald D. Rotunda, Rethinking Term Limits for Federal Legislators in Light of the Structure of the Constitution, 73 Or. L. Rev. 561, 573 (1994) (stating contrary view). 14

thoroughly that two-thirds of the Senate votes to convict him, his chances of getting back into office are pretty slim anyway, especially for offices that require Senate confirmation. (As discussed later, the Senate has not even bothered to disqualify most of the people it has convicted.) Still, disqualification might sometimes be worthwhile. For instance, the prospect of the ex-president staging a comeback might be likely enough*—and undesir- able enough—to warrant pursuing the late impeachment. Alternatively, the ex-president’s offense might be so heinous that it is appropriate to declare formally to the nation that he is constitutionally unworthy of “honor, trust, or profit.” In another sense, the smaller and more flexible penalties of a late impeachment are an advantage. In a regular presidential impeachment case, removal from office is so momentous and disruptive and potentially disproportionate that senators might decline to convict even an obviously guilty person. But unlike removal, disqualification is never mandatory. In a late-impeachment case, therefore, the punishment could be disqualification, limited disqualification, or even no punishment at all. Because the stakes of the late impeachment would be so much lower, and because the question of punishment could be separated from the question of guilt, it would be comparatively easier for the ex-president’s opponents to move their case forward.6 As an aside, disqualification may not be the only consequence facing an impeached ex-president. When Senator Arlen Specter suggested in February 2001 that ex-president Clinton could be impeached for his questionable last-minute pardons, Specter did not even mention the possibility of disqualifying Clinton from future office. Instead, Specter indicated that if convicted, Clinton could lose things like his pension and his

* President Andrew Johnson was impeached and acquitted by one vote, but he was later elected to the Senate. Secretary of War William Belknap—who was impeached after leaving office and avoided conviction only because he had resigned—had a successful Washington law practice after his impeachment. See Eleanore Bushnell, Crimes, Follies, and Misfortunes: The Federal Impeachment Trials 160, 189 (1992) (describing post-impeachment careers of Johnson and Belknap). Currently, impeached and convicted Judge Alcee Hastings is serving in the House of Representatives. Hastings was not disqualified upon conviction, but disqualification should not apply to election to Congress anyway (a point discussed in the last footnote). 15

government-provided security. Specter was not quite right; federal law provides that a president who is impeached and convicted loses his pension and other benefits, but only if he is impeached while in office. Congress could always change that law, though. In doing so, it would protect the country from malfeasant officers who commit their offenses shortly before leaving office, and it would add teeth to late impeachment, thereby making it more likely to be a worthwhile exercise.7 Another practical consideration is precedent. Impeachment cases not only affect the person being impeached and tried; they also can establish principles that guide future cases. As one congressman put it in a late-impeachment case, the House’s “great object” was “that [the target’s] infamy might be rendered conspicuous, historic, eternal, in order to prevent the occurrence of like offenses in the future.” If the president in question had left office, late impeachment would be the only way to do this successfully.8 Impeachment might also be the only way to pursue certain conduct. In the waning days of George W. Bush’s presidency, some Democrats in Congress made noises about impeaching Bush and his subordinates over torture and surveillance issues arising out of the War on Terror. The Obama administration seemed uninterested in prosecuting any Bush officials, let alone Bush himself. Impeachment would have been a way for Congress to investigate the Bush Administration’s conduct seriously, going a step beyond mere hearings (which Bush more easily might have stiff-armed, citing the separation of powers). The threat to impeach Bush faded after he left office, but there had never been much political support for impeachment even before that. If things had been somewhat different—if the facts had been worse but the new administration still did not want to prosecute, if the Democrats’ electoral victories in Congress had depended more heavily on the support of the vocal pro-impeachment crowd, if strong evidence had emerged that the Bush administration had willfully concealed and misrep- resented material information—this might have been a good fit for late impeachment. Late impeachment will be more attractive to Congress when the ex-president’s actions threaten the impeachment process itself. For instance, a president might thumb his nose at his would-be impeachers, letting them 16 proceed with their case without paying it any mind, and then resigning right before they are about to do something meaningful. Sometimes, Congress would be satisfied with the president’s resignation in such a case and would not continue just to protect its turf. But if the president clearly was resigning just to avoid the harsh light that impeachment would shine on his conduct, or if he quit to avoid conviction and disqualification (imagine him resigning seconds before the sixty-seventh senator voted to convict), Congress would be more likely to assert itself and continue with a late impeachment. Late impeachment could also make sense when the ex-president has been convicted of a crime. This might seem counterintuitive; if the criminal justice system can handle the case, why bother with a cumbersome impeachment? But sometimes it would be worthwhile. A convicted ex-president already would have been found guilty beyond a reasonable doubt, so Congress could piggyback the record developed by the court and perform the impeachment and trial very quickly and cheaply. Another factor that might affect late impeachment is timing. Ideally, all other things being equal, an offense committed near the end of a president’s tenure should be treated the same as one occurring at the beginning. At the beginning, if the president commits an impeachable offense, he can be impeached, removed, disqualified, and prosecuted. Near the end, unless late impeachment is possible, he can only be prosecuted. Thus Congress might want to use the threat of late impeachment as a way to add incentives for presidents to stay honest throughout their terms, and not to cover things up when they go astray. As discussed more later, the main importance of impeachment is seen not in the number of times it has been used, but in the incentives provided by the possibility of its use. Disqualification might not be the biggest incentive in the world, but it’s something. For its part, Congress might be motivated to keep that incentive in place. Counterintuitively, late impeachment might be broached by an ex-presi- EFOUIJNTFMG UPDBMMIJTPQQPOFOUTCMVGG7JDF1SFTJEFOU+PIO$$BMIPVO sought such vindication in 1827, when opponents circulated rumors of his misconduct in an earlier cabinet post. Calhoun appealed to the House as the “grand inquest of the nation” to investigate the accusations; the House did so, and Calhoun was officially cleared. Decades later, former president John Quincy Adams was a member of the House when former secretary of state 17

(and current senator) Daniel Webster faced a similar situation. Adams supported both Webster and the idea of late impeachability, saying, “I hold myself, so long as I have the breath of life in my body, amenable to impeachment by this House for everything I did during the time I held any public office.” Adams claimed that “every officer impeachable by the laws of the country, is as liable, twenty years after his office has expired, as he is whilst he continues in office.”9 Last but not least, party politics could make late impeachment more likely. 7PUFTPOFYFDVUJWFJNQFBDINFOUTUFOEUPUSBDLQBSUZMJOFT5IF)PVTFIBT only impeached three executive officers (Secretary of War William Belknap, and Presidents Andrew Johnson and Bill Clinton), and in all three cases the House was controlled by the party opposed to the president. All three men were acquitted in the Senate, but the closest case—when President Johnson was acquitted by a single vote—occurred at the only time in American history in which the opposition party had a two-thirds majority in the Senate. Notably, though, there have been several times when one party had a majority in the House and a two-thirds majority in the Senate while there were living ex-presidents of the other party. The party balance in Congress matters a lot for impeachment, in other words, and the balance is more likely to favor impeachment after a president has left office than it is when he is still there.10 While late impeachment is usually not worth pursuing, this section has sketched out some factors that could shorten the odds. One could sum it up by saying that late impeachment is most likely when Congress really, really hates the ex-president and sees a political advantage in acting accordingly. In most cases, though, late impeachment just isn’t very likely. But “unlikely” does not mean “unconstitutional”; after all, regular impeachment is very rare as well. These practical considerations are separate from the question covered next: whether late impeachment is legal.11

The Basic Argument Against Late Impeachability

Impeach an ex-president? The Constitution talks about impeaching the president, and Jack Martin isn’t the president anymore. The point of the impeachment process is removal 18

from office, so once someone is out of office, there is nothing left for Congress to do. This is all just politics—a bunch of partisans trying to drum up votes before the election, and abusing the Constitution to do it. —EX-PRESIDENT MARTIN’S SPOKESMAN

Those who believe that late impeachment is unconstitutional rely on a particular reading of Article II, Section 4 of the Constitution. They say that XIFO4FDUJPOMJNJUTJNQFBDINFOUUPiIF1SFTJEFOU 7JDF1SFTJEFOU BOE all civil Officers,” it excludes former occupants of those posts. As one lawyer put it during an actual late-impeachment case: “A half-grown boy reads in a newspaper that the President occupies the White House; if he would understand from that that all Ex-Presidents are in it together he would be considered a very unpromising lad.”12 Also important is that Section 4 makes removal mandatory upon conviction. From this, opponents infer that removability is mandatory for impeachment. Because there is no way to remove an ex-president from office, late impeachability makes no sense. In a broader sense, the removal requirement suggests that impeachment is about protecting the office from a bad person, not punishing that person. Some, like impeachment expert Charles Black, even define impeachable offenses as only those acts that warrant removal. To these people, no proper purpose for impeachment remains once the offender is out of office. Disqualification is possible too, but it isn’t necessary for keeping someone like Jack Martin out; if he somehow clawed his way back into service, he would be an “officer” again and could be impeached at that point.13 These critics sometimes go further and argue that if Article II, Section 4, permitted late impeachment, it would permit impeachment of every person in the world, because late impeachability requires that Section 4’s language of “officers” and “remov[al]” be ignored. That leaves no basis to distinguish between a person who once held office and one who didn’t, since neither is an officer and neither can be removed.14 That’s the simple argument that late impeachability is not just pointless but actually constitutionally inappropriate. The complicated argument emerges in the following pages, in various rebuttals to the arguments on the other side. 19

The Argument for Late Impeachability: Text and Structure

It’s true that the Constitution limits impeachment to officers, but the point is that they are officers at the time they offend, not that they remain officers for the entirety of the lengthy impeachment process. This isn’t about getting Jack Martin out of office, obviously. It’s about checks and balances. The Constitution gives us our impeachment authority so that we can hold presidents accountable for their actions and deter them from bad acts. That is exactly what we are trying to do here. What kind of check on the president would impeachment be if a president can stop us from using it? —HOUSE IMPEACHMENT MANAGER

Proponents of late impeachability have a few arguments of their own, which are more complicated than the arguments on the other side. They can be broken down into two parts: First, the text and structure of the Constitution support late impeachability. Second, history and precedent also favor it.

Text

As seen already, the text of the Constitution specifies several limits on the impeachment power. Article II, Section 4, is generally interpreted as allowing impeachment to reach only “the president, vice president, and all civil officers” (which, to oversimplify, I’ll lump together as “officers”). But knowing that impeachment only applies to “officers” leaves questions about the possible timing of the offense and the possible timing of the impeachment proceedings.15 There are four possible combinations:

Must the offender be in office now? YN Must the offense have occurred Y Conservative Late when the offender was in office? N Protective Radical

The Radical interpretation says that any person can be impeached at any time, because Article II, Section 4, does not purport to define impeachable 20

offenders or offenses. While that is technically true, and while the Radical view has had public proponents, there is ample authority and precedent for reading Article II, Section 4, as the constitutional definition of impeachability. Regardless, impeachments must be “impeachments,” and pursuing a private citizen for a private act would not be an “impeachment.” Some people conflate the Radical interpretation with the Late interpretation and consider the Late interpretation equally untenable. But as the chart here makes clear, the Radical and Late interpretations are distinct.16 The Late, Protective, and Conservative interpretations are more plausible, and this section will only discuss them, not choose between them. Other considerations—structure, history, and precedent—need to be considered too. The Late interpretation limits the timing of the offense, but not the timing of the impeachment. A person can be impeached at any time, as long as he was an officer when he committed the offense. This describes every person ever impeached under the federal system.* The principal benefit of the Late interpretation is that it reinforces the notion that “impeachment” for “high crimes and misdemeanors” is supposed to apply to offenses committed by public officers qua public officers. As The Federalist put it, impeachment is about offenses that “proceed from the misconduct of public men” and that “may with peculiar propriety be denominated POLITICAL.” Thus, it would make sense that the term “officer” refers to the offender at the time of the offense, regardless of what has happened to him in the potentially lengthy stretch of time between the commission of the offense, discovery of it, accusation, debate in the House, impeachment, more debate in the Senate, and judgment.17 The Late interpretation is unconvincing to those who think that “officer” means “officer at the time of impeachment and trial.” It also clashes with

* It is also consistent with how Congress treats its own members. Article I, Section 5, Clause 2, provides that the House and Senate can “punish [their] Members for disorderly Behaviour.” Congress has used this power to discipline members who had already left office. See Brian C. Kalt, The Constitutional Case for the Impeachability of Former Federal Officials: An Analysis of the Law, History, and Practice of Late Impeachment, 6 Tex. Rev. L. & Pol. 13, 92–93 (2001) (discussing Whittemore and Deweese cases). 21

Section 4’s requirement that anyone convicted be removed from office; ex-officers have no office to be removed from. But the other possible penalty, disqualification, still looms for ex-officers. And on its face, the removal requirement does not purport to describe who is impeachable.* Put another way, the Late interpretation sees the removal requirement as protecting offices from bad officers, not protecting bad people from impeachment.18 Some opponents of late impeachability endorse the Protective interpretation, which limits the timing of the impeachment, but not the offense; a person can be impeached regardless of whether he was an officer when he committed the offense as long as he is currently a civil officer. Protective interpreters can be comfortable that “officers” never means “ex-officers,” and that the mandatory removal penalty can always be carried out. Under this view, impeachment is about protecting the office from bad occupants, regardless of when their badness manifested itself. An officer who commits a high crime and leaves office would only face impeachment if he returns to office. Similarly, a private citizen who commits a high crime (the two examples of high crimes in the Constitution—treason and bribery—can both be committed by private citizens) could be impeached if he subsequently enters office. The Protective interpretation is a plausible enough textual reading of Article II, Section 4, even if it ignores all the purposes of impeachment besides removal. The Late and Protective interpretations are not mutually exclusive; one might combine them and allow impeachment if the offender was a civil officer when he committed the offense or he is a civil officer now. Adding

* By analogy, consider the federal law against bribing meat inspectors, which specifies its scope and penalties in a similar way: any inspector or “other officer” with inspection responsibilities who accepts a bribe “shall be deemed guilty of a felony and shall, upon conviction thereof, be summarily discharged from office,” and fined and imprisoned. 21 U.S.C. § 622 (1994). The statute mentions inspectors and officers, not ex-inspectors and ex-officers. It specifies removal from office as a mandatory punishment. But ex-officers can still be prosecuted under the statute as long as they were officers when they offended; even though they cannot be removed from office, other penalties are available. Indeed, former agriculture secretary Mike Espy was indicted under this statute three years after leaving office. See Bill Miller, Espy Acquitted in Gifts Case, Wash. Post, Dec. 3, 1998, at A1 (summarizing chronology of Espy case). He was acquitted, but not because he’d already left. See United States v. Espy, 145 F.3d 1369, 1370–72 (D.C. Cir. 1998) (attaching no legal significance to fact that Espy, as ex-secretary, was no longer subject to removal). 22

this possibility does not tell us whether late impeachment is constitutional, though. The main competitor to the Late interpretation is the Conservative interpretation, which limits the timing of both the offense and the impeachment: a person can only be impeached and tried if he was a civil officer when he committed the offense and is a civil officer now. This describes every person ever impeached and convicted under the federal system.* The Conservative interpretation takes full stock of the word “officer” and of the removal requirement, and respects the contextual notion that impeachment is about public officials qua public officials. That said, it overemphasizes removal just like the Protective interpretation does. Moreover, it opens up a potential textual dilemma: can a president be impeached for something he did in a prior office? A prior term as president? To the extent that such a president is impeachable under the Conservative interpretation, it becomes less tenable to distinguish among it, the Late interpretation, and the Protective interpretation. In all, though, the Conservative interpretation is another plausible reading of the text. It is easy for opponents of late impeachability to argue that, if the Constitution had meant to allow late impeachment, it would have made that point much more clearly. On the other hand, the same can be said about precluding late impeachment. Proponents of late impeachability have a good argument that, at the very least, the constitutional text does not clearly and directly address the proper timing of impeachment, and that there are multiple possible interpretations. With that, it’s time to consult structure, history, and precedent.19

Constitutional Structure

The Constitution’s structure—its internal, recurrent themes and connec- tions—provides more fodder for discussion. Late impeachment is

* As this chapter was being edited, the House impeached and the Senate convicted Judge Thomas Porteous. Article II of Porteous’s impeachment centered on a course of corrupt conduct that began when he was a state judge, though it continued after he CFDBNFBGFEFSBMKVEHF"SUJDMF*7EFBMUXJUIGBMTFTUBUFNFOUT1PSUFPVTNBEFEVSJOH his Senate confirmation proceedings, technically before he was an officer, but inextri- cably linked with his officer status. See H.R. Res. 1031, 111th Cong. (2010). 23

consistent with a deterrence-centered view of impeachment, it makes disqualification a meaningful penalty, and it protects Congress’s control over the process. But it is less consistent with a removal-centered view of impeachment, and it arguably makes too much out of disqualification. First, deterrence. With impeachment, the Constitution gives Congress a powerful check on the president. Impeachment is available to get rid of malfeasing presidents, but it also serves to deter them from doing bad things in the first place. As future Supreme Court justice James Iredell put it during the North Carolina ratifying convention, impeachment “will not only be the means of punishing misconduct, but it will prevent misconduct. A man in public office who knows that there is no tribunal to punish him, may be ready to deviate from his duty; but if he knows there is a tribunal for that purpose, although he may be a man of no principle, the very terror of punishment will perhaps deter him.” Without late impeachment, there is effectively “no tribunal to punish” a president who does bad things late in his term, which makes it more likely that he will “deviate from his duty.”20 By analogy, consider the president’s power to appoint officers, subject to Senate confirmation. The main effect of the Senate confirmation process is not that it leads the Senate to reject nominees—it almost never does that— but rather that it pushes the president to nominate acceptable people in the first place. Imagine the sorts of appointments that presidents might make if Senate confirmation were not required. Now consider impeachment. The House rarely impeaches anyone. But think of the power of the availability of impeachment. Picture a United States in which the president knew that no matter what he did, he would be able to remain in office for four years. It seems obvious that presidents would not always resist the temptation to abuse power—particularly to get reelected—nearly as well in that system as they have in our real one. No president has ever been removed from office through impeachment, but every president has been constrained by the possibility.21 By the same token, late impeachment will rarely be worth pursuing, but its availability can deter presidents from bad acts, especially toward the end of their terms. If impeachment cannot touch an ex-president, then it only provides an incentive to behave early in his term and encourages him to conceal his wrongdoing (which is much easier for him to do while he is still 24

president). By contrast, if presidents can be impeached after leaving office, they will have more incentive to conduct themselves appropriately to the very end. If this incentive is not enough to prevent a president from doing bad things, it still gives Congress the power to pursue him and deter his successors.22 Some say that late impeachment is unnecessary because ex-presidents can be criminally prosecuted in ordinary court. But sitting presidents can face criminal prosecution too (even if, as discussed in Chapter 1, the prosecutors might need to wait until they leave office). The criminal law provides an important deterrent to presidents, which impeachment neither reduces nor increases; prosecutability doesn’t protect sitting presidents from being impeached, so it should not preclude ex-presidents from being impeached either. The next structural issue is disqualification. If removal says, “Get out!” disqualification adds an emphatic and irreversible “And stay out!” The Constitution’s Framers considered it a serious blot to be “sentenced to a perpetual ostracism from the esteem and confidence and honors and emoluments” of the United States without hope of pardon. Later, even a critic of late impeachment conceded that disqualification was a weighty thing, because it made the convict “a living, moving infamy,” and “a moral leper.”23 A critic might argue that disqualification functions mainly as leverage: if removal were the only possible penalty, impeachees would have nothing to lose by fighting impeachment tooth and nail. With disqualification on the table, impeachees have an incentive to resign, dealing themselves a de facto plea bargain down to simple removal—the real point of impeachment, to these critics—and saving Congress significant resources. Sure enough, only three officers have ever been disqualified by the Senate, but dozens of others facing impeachment have resigned.24 But disqualification is either a significant punishment or it isn’t. If it isn’t, then it would not spur these “plea bargains.” If it is a significant punishment, it should not be so easy to evade; without late impeachability, any impeachee can avoid conviction and disqualification simply by resigning at the last moment. Some might fight it out, but those who know that they will be convicted—the worst offenders, ironically—would have every reason to resign and thus would always avoid disqualification.25 25

“Checks and balances” are another structural support for late impeachability. Congress is the grand inquest of the United States, with the explicit power to investigate the conduct of the executive branch outside the confines of the criminal law. Congress can call witnesses and hold hearings, but presidents can stonewall them with relative impunity. By contrast, impeachment guarantees Congress the constitutional power to investigate abuses of the public trust and render a formal verdict on them. The president cannot stop an impeachment—the Constitution precludes him from using the pardon power against them—so it would be strange if he could subvert the process simply by quitting.* Congress has the option of declaring victory and ending proceedings if a target resigns, but that is a far cry from the president having the power to force Congress to stop. Barring late impeachment, one senator marveled in a late-impeachment case, would make the Senate “the only court in Christendom whose jurisdiction . . . depends on the volition of the accused.”26 Some critics of late impeachability concede that an impeachee cannot strip the House or Senate of jurisdiction once the impeachment process has begun, but they insist that any other late impeachment is forbidden. This distinction (which essentially creates a separate interpretive category) makes sense as a matter of institutional design, but it has no basis in the Constitution’s text. If the Constitution really does limit impeachment in the House and trial in the Senate to current, removable “officers,” then the impeachee can end the proceedings any time he chooses by resigning. Opponents of late impeachment might not like that, but if they are limiting their argument to the Constitution’s text, they have to live with it.27 Opponents can move beyond the text, though; there are structural arguments against late impeachability. If impeachment is mainly about removal, for instance, then the Protective interpretation fulfills that objective in the broadest possible way: Congress can remove an unfit president, regardless of when he committed his offense. As Jorge E. Souss put it in 2001: “[A]re we supposed to believe that . . . if George W. Bush robbed a jewelry store on the morning of January 20, a few hours before being sworn in, that he

* Similarly, without late impeachability, the president could subvert impeachments of lower-ranking officers by firing them. 26

would not be subject to impeachment [and removal] for such behavior?” A fair question.28 But there is a more probable problem on the flip side. Suppose a president issued a corrupt pardon a few hours before his successor was inaugu- rated. The Protective interpretation would say that he could not be impeached unless and until he returned to office. What worked for Souss’s jewelry-store owner is cold comfort once one returns to the principal focus of impeachment: public offenses. Unless it was combined with the Late interpretation, the Protective interpretation would do nothing about such an abuse of power, and it might go unpunished. (Abuses of the public trust often are not prosecuted criminally—some because they technically aren’t crimes; others because the president’s successor is unwilling to pursue them. It is no coincidence that neither William Blount nor William Belknap—the two men whom the House has late-impeached—was criminally prosecuted for his offense.)29 As Alexander Hamilton wrote in The Federalist, the very nature of impeachable offenses makes them automatically politicized, so that Congress—not regular prosecutors and judges—is the proper body to take the lead. This is why impeachment is supposed to be limited to high crimes and misdemeanors, a term of art for offenses against the state. By saying that impeachment is for current officers and that anyone else is left to the criminal law alone, the Protective interpretation misses these points. Impeachment draws its institutional reason for being from the nature of the offense, not the nature of the defendant’s employment when the Senate trial date rolls around. That, at least, is what proponents of late impeachability would argue, with some confidence.30 The Late interpretation gets many structural points right. It lets Congress use impeachment to inquire “into the conduct of public men,” however late in the president’s term the offenses occur, and however long he has covered them up. In doing so, it gives the president a more complete incentive to do his job honestly. It takes disqualification seriously. It lets Congress fulfill its constitutional duty to deter, investigate, rule upon, and fully punish high crimes and misdemeanors, regardless of how much the president would like to subvert Congress’s jurisdiction. But there is no certainty here. Anyone who favors different structural considerations—like removal 27

instead of deterrence—can still conclude quite reasonably that late impeachment clashes with the structure of the Constitution.

The Argument for Late Impeachability: History and Precedent

We need to remember history. In England, late impeachment was the norm; there was a late impeachment going on in Britain at the very moment that the Framers were drafting the Constitution in Philadelphia. In America, several state constitutions preferred or even required late impeachments, and no states forbade them. The Constitution added several specific limits on impeachment, to depart from English and state practice, but it said nothing about preventing late impeachment. At the Constitutional Convention, the big argument was whether to make the president impeachable while in office; being able to impeach him after he was gone went without saying. Most importantly, the House and Senate have already answered this question. The House unanimously impeached the ex-secretary of war in 1876 even though he had already resigned. The Senate seriously debated late impeachability, and voted “yes” on it. The answer is still yes. —HOUSE IMPEACHMENT MANAGER

Impeaching an ex-president is admittedly an odd thing to do, and the possibility doesn’t exactly leap out from the text or structure of the Constitution, as the less-than-conclusive arguments in the last section showed. The strongest arguments for late impeachability are rooted in history and precedent, and while these arguments are not unassailable, the ex-president’s opponents would lean on them heavily.

History

English impeachment is the ultimate foundation of American federal impeachment (the drafters of the Constitution were also influenced by colonial and state experiences, but English impeachment informed those too). English impeachment was essentially a criminal prosecution that went through Parliament instead of the courts. By 1787, though, it was perceived as limited to public offenders or public offenses—cases that “the ordinary 28

magistrate either dare[d] not or [could] not punish.” Most cases were about mismanagement by government officials, or treason by nobles.31 Late impeachment was never problematic in England, because the bounds of impeachment were so expansive. Punishments went so far beyond removal—loss of property and even death were not uncommon— that impeachments were still very weighty matters after the target left office. But even after impeachment penalties became more restrained, late impeachment remained as a sensible option. Impeachment was more about guaranteeing accountability than it was about removing bad men from office; late impeachment exemplified this fact.32 At the time of the constitutional convention, the two most recent British officers to be impeached were Lord Chancellor Macclesfield (impeached and convicted in 1725), and Warren Hastings (governor-general of India, impeached in 1787—shortly before the Constitutional Convention—and acquitted in 1795). Both Macclesfield and Hastings were impeached after UIFZIBEMFGUPGGJDF CVUUIBUGBDUQSPNQUFEOPPCKFDUJPOT7JFXFEGSPN Britain in 1787, late impeachment was not only acceptable, it was the norm.33 In America too, “impeachment” had become a process for the legislature to pursue public offenses by public officials. In contrast to England, American impeachment was more widely practiced, and it developed its own characteristics. Late impeachment was less firmly established in pre- constitutional America than it was in England, but it was known and accepted.34 Twelve states wrote constitutions before the federal Constitution was drafted in 1787. Ten included impeachment provisions, and in all ten, late impeachment was either required, permitted, or not discussed; nowhere was it explicitly forbidden. Four states explicitly allowed or even required late JNQFBDINFOU*O7JSHJOJB UIFHPWFSOPSDPVMEonly be impeached after he left office. (In 1781, ex-governor Thomas Jefferson was subjected to preliminary impeachment proceedings for his conduct in office, though in the end he was not impeached.) Delaware had a similar requirement. In Pennsylvania and 7FSNPOU PGGJDJBMTDPVMECFJNQFBDIFEXIJMFJOPGGJDF PSBGUFSMFBWJOHPGGJDFJG they had resigned. Thus in these states impeachment was designed, at least in part, as a means of ensuring accountability for official action, and not just as a mechanism for removing bad people from office.35 29

'JWFPUIFSTUBUFTXSPUFUIFJSDPOTUJUVUJPOTBGUFS7JSHJOJB %FMBXBSF BOE Pennsylvania and said nothing for or against late impeachment. Given the backdrop—England making late impeachment the norm, and the other states allowing or requiring late impeachment—one would think that these newer constitutions would have said something if they wanted to bar late impeachment. New York invented—and spelled out—the requirements of two-thirds majorities, a special oath for impeachment judges, and a ban on punishments greater than removal and disqualification. South Carolina, Massachusetts, and New Hampshire adopted very similar impeachment provisions, as did the federal Constitution. But while these constitutional drafters added these explicit new restrictions on impeachment, they did not touch late impeachment.36 Delegates came to the Constitutional Convention in 1787 aware of their own state constitutions and precedents, and of English cases like Hastings’s. They discussed impeachment at length and on several separate occasions at the convention. Late impeachability never arose directly, but some discussions provide oblique hints as to the Framers’ understanding of it.37 The working draft of the Constitution had a general impeachment provision that applied to all executive and judicial officers, presumably including the president. The Framers’ main bone of contention was whether the president should be impeachable while in office; they may thus have presupposed that ex-presidents could be impeached. Their debate highlighted the idea that impeachment is about accountability and deterrence (providing “essential security for the good behaviour of the Executive,” as one put it) and not just removability.38 The ratification debates shed little light on late impeachability. For instance, Alexander Hamilton wrote in Federalist 69 that, regarding impeachment, the president “would stand upon no better ground than a governor of New York, and upon worse ground than the governors of 7JSHJOJBBOE%FMBXBSFw XIP BTOPUFEFBSMJFS DPVMEPOMZCFJNQFBDIFEBGUFS they left office). Hamilton may or may not have believed in late impeachability; it is unclear whether the “worse ground” was being removable and late-impeachable, or being removable instead of being late-impeachable.39 Similarly uncertain is a statement from the North Carolina ratification debates. While discussing who exactly could be impeached, delegates 30

worried that state officers and even private citizens might be susceptible to federal impeachment. Governor Samuel Johnston rejected this notion, stating: “Removal from office is the punishment—to which is added future disqualification. How could a man be removed from office who had no office?” Opponents of late impeachability could read Johnston’s interpretation as precluding late impeachment. But Johnston was trying to dispel the notion that state officers or ordinary citizens could be impeached and was not discussing the timing of impeachment trials.40 Both sides would use this (and other) historical evidence, despite the fact that it is vague, oblique, and disputable. Luckily for them, all the other evidence—constitutional text, structure, and precedent—is vague, oblique, and disputable too. But proponents can make a strong case that when the Constitution’s impeachment clauses were drafted, late impeachment was in the air, and while the Constitution conspicuously cast off many features of English and state impeachment practice, late impeachment was not one of them.41

Precedent

Unlike the speculative and inferential arguments featured so far, arguments from precedent are concrete and take the issue of late impeachment head on. Official House precedent, citing the Blount and Belknap cases discussed in the following pages, indicates that the “[a]ccused may be tried after resignation.” Old impeachment cases do not bind future Congresses, but they can carry a lot of weight. Still, none of the precedents are clear enough to be definitive.42 The nation’s first federal impeachment case was a late impeachment. The House hastily impeached Senator William Blount on July 7, 1797. The next day, the Senate expelled Blount for his “high misdemeanor” and adjourned. The House continued work on the case after Blount’s expulsion, approving the actual articles of impeachment much later, and the Senate trial began in December 1798. Blount’s lawyers objected to the fact that he was being tried even though he was no longer in office, but their argument “was easily disposed of, and [they] did not press it.” More successful was their claim that senators are not “officers” subject to impeachment in the first place—after a 31

lengthy debate on the issue, the Senate voted fourteen to eleven to dismiss the case.43 The next precedent*—and the most important one—is the 1876 case of ex–secretary of war William Belknap. Belknap was connected to a kickback scheme involving western trading posts. When the arrangement was uncov- ered by a House committee, Belknap learned that he was about to be impeached. He wanted to avoid the infamy of a national inquest, as well as the penalty of disqualification from future office, so he hurried to President Grant’s office and resigned.44 House members, aware that Belknap had resigned that day, nevertheless decided unanimously to impeach the “late Secretary of War” for offenses committed “while he was in office.” To be sure, the House members were not motivated solely by their lawyerly views of the Constitution; 1876 was an election year. The Democrats had taken over the House in 1874, helped by outrage over corruption in the Republican Grant administration, and they wanted to repeat their success. This pressured congressional Republicans to come out strongly against executive corruption as well.45 Once the case reached the Republican-controlled Senate, however, motives changed. The vote in the House had been a quick, costless way for members of both parties to condemn Belknap, but the Senate had to actually try the case. Belknap’s lawyers argued that Belknap’s resignation deprived the Senate of jurisdiction, and the Senate had to settle that issue before putting Belknap on trial—it debated late impeachability for over a month. The discussion covered every legal and practical point raised in this chapter, and many more. Whatever political motivations informed the final vote, no senator could complain that there hadn’t been a thorough constitutional dialogue.46 In addition to textual and structural arguments, the two sides tussled over precedents and commentaries. Both sides made use of the records of the

* Some claim that Judge West Humphreys, who was impeached and convicted in 1862, was late-impeached. See, e.g., 3 Cong. Rec. 324 (1875) (statement of Rep. Butler). Humphreys had abandoned his judicial post to accept another one in the Confederacy. But he had not actually resigned, and the Senate purported to remove him when it convicted him. See Eleanore Bushnell, Crimes, Follies, and Misfortunes: The Federal Impeachment Trials 115–24 (1992) (describing Humphreys case). 32

Constitutional Convention, the state ratification debates, and Blount’s case. Also prominent was Justice Joseph Story’s Commentaries on the Constitution. Opponents latched onto Story’s arguments against late impeachment almost gleefully. This spurred proponents to cite Story’s caveats and mitiga- tion of his own comments, and to trot out statements in favor of late impeachment from William Rawle and John Quincy Adams.47 In the end, the Senate voted thirty-seven to twenty-nine in favor of late impeachability. Republicans split thirteen to twenty-seven against, while Democrats supported it twenty-four to two. Some might take the near unanimity among Democrats, coupled with the significant support among Republicans, as a sign of the strength of the Belknap precedent. On the other hand, the Senate vote might just have ended up reflecting the same political considerations that had driven the House to impeach Belknap.48 With the jurisdictional question out of the way, the trial proceeded for two more months before Belknap was acquitted. The vote on the closest charge was thirty-seven to twenty-five, five votes shy of the two-thirds majority needed to convict. Of the twenty-five senators voting to acquit, only three said that they thought Belknap was not guilty of an impeachable offense; the other twenty-two based their acquittal votes solely on the fact that Belknap had already left office. So on one hand, the House and Senate specifically voted in favor of late impeachability. On the other hand, Belknap avoided conviction only because his impeachment was late.49 In defense of late impeachability, there is a big difference between the dismissal Belknap sought and the acquittal he got. The trial was an embarrassing ordeal, and it established Belknap’s factual guilt. By deciding only after a full trial to acquit Belknap, the Senate essentially decided that he shouldn’t be convicted, not that he couldn’t be. Bearing this out are several practical factors in the case. If Belknap had presented more of a danger to the Republic—say, if his crime had been more treasonous than venal, or if he had seemed likely to return to federal office—some of the twenty-two senators voting against jurisdiction and conviction might have changed their minds. If everyone had agreed on Belknap’s factual guilt, it would have taken just two senators changing their jurisdictional votes for him to be convicted. Some senators were swayed by the fact that Belknap faced criminal liability with a potential sentence of disqualification; if they had seen the 33

future (Belknap was never prosecuted), they might have changed their votes. What if it hadn’t been an election year? What if the partisan balance in the Senate had been slightly different? What if Belknap had resigned just after the House impeached him rather than just before? With slightly different facts, Belknap’s case could have been a definitive precedent rather than just a tantalizing, muddled one.50 One other Senate precedent is noteworthy. Judge George W. English was impeached in 1926 for tyrannical, corrupt, partial, and abusive conduct on the bench. He resigned six days before his trial was set to begin in the Senate. The House resolved that, in light of the resignation, it “d[id] not desire further to urge the articles of impeachment.” The House managers told the Senate that while they recommended terminating the proceedings, they believed that “the resignation of Judge English in no way affects the right of the Senate, sitting as a court of impeachment, to hear and determine” the charges against English. No senator suggested that it would have been impossible or unconstitutional to proceed; one senator noted, without contradiction, that he wanted it “distinctly understood” that the case was not a precedent against late impeachability. Indeed, nearly everyone acted as though they could have proceeded with the trial. But English was old, his government career was over, and his offenses were relatively mild given the energy that would have been required to pursue them. The Senate dismissed the case, voting seventy to nine.*51 In numerous other cases—the most famous being President Nixon’s— the target of an impeachment inquiry resigned before the House could vote. Besides Belknap’s, the House dropped every one of these cases. This series of cases clearly shows that late impeachment will rarely be deemed worthwhile. But none of these cases reflects a consensus against the power of late impeachment. There is a ready analogy: the vast majority of criminal

* Congress has handled other impeachees’ resignations consistently. One example occurred as this chapter was being edited, when impeached (and convicted felon) Judge Samuel Kent resigned. The House resolved that it did not “desire” to pursue the case, and the Senate dismissed it, agreeing that it was not “useful” to continue. H.R. Res. 661, 111th Cong. (2009); 155 Cong. Rec. S7832–33 (daily ed. July 22, 2009) (Senate dismissal). These careful word choices made clear that Congress simply chose to drop the case, but did not feel legally bound to do so. 34 prosecutions in this country end in guilty pleas, with no trial and with reduced sentences, and with a tremendous savings of resources for prosecutors and courts. Like criminal jury trials, full-blown impeachment proceedings are expensive and cumbersome. Thus, it is no surprise that late impeachment usually isn’t worth the effort once the accused removes himself from office. But just as prosecutors can still take a criminal case to trial even though they usually don’t, the pattern of aborted impeachments does not change the legality of late impeachment.52 Precedent is the best thing proponents of late impeachability have going for them: late impeachment has been done before, and Congress has stuck up for it on other occasions too. Like all the other evidence favoring late impeachability, it is contestable, but in a way that establishes that late impeachment is hard, not that it is unconstitutional.

Don’t Forget the Courts

To all the hurdles—legal and practical—that late impeachment would face in Congress, add the further hurdle it would face in court. For the most part, matters relating to impeachment are off limits to the courts, under the political-question doctrine. In Nixon v. United States, federal judge Walter Nixon challenged the procedures that the Senate used to try him. The Supreme Court ruled that because the Constitution specifically gives the Senate “the sole Power to try all Impeachments,” there was no room for the Court to get involved in the details of Senate trials. In the realm of impeachment, Congress has the first word, the last word, and all the words in between.53 Late impeachability is different, though, because the whole question is whether it is “in the realm of impeachment.” It is thus more analogous to Powell v. McCormack than it is to Nixon. Powell dealt with another area over which the Constitution makes the House and Senate the sole judge: the qualifications of their members. The House ruled that duly elected Representative Adam Clayton Powell, Jr., was unfit, based on alleged corruption, to take his seat in the House. The Supreme Court, however, declared that the House had no power to exclude Powell. The Constitution, the Court ruled, establishes a limited number of specific qualifications: age, citizenship, residency, and loyalty. The House could judge whether a would-be 35

representative met those qualifications, but this did not give the House the power to insert new ones (like non-corruption). The House was supreme within the bounds set by the Constitution, but it could not redraw those bounds.54 The question, then, is whether late impeachment is within the powers granted to Congress in the Constitution. If a late impeachment is properly considered an “impeachment,” or if it seems to be within Congress’s sole power to decide that issue, then late impeachability is a political question and the courts cannot entertain any challenge to it. But if a late impeachment is not a valid impeachment under the Constitution (as non-corruption was not a valid qualification in Powell), then the courts can get involved. (This is somewhat backward—the courts would decide the merits in order to decide whether they can consider the case—but that’s how it goes.) Even if the courts are inclined to defer heavily to Congress’s interpretation of its own impeachment powers, the courts could still step in if they felt that Congress exceeded its bounds. The result is that the foregoing arguments in favor of late impeachability might have to convince the courts as well as Congress.55

Nothing to Worry About

Late impeachment was discussed after President Nixon’s ignominious exit from office, and the question reemerged when President Clinton issued several controversial pardons in his last hours in office (however rare it may be for late impeachment to be worth pursuing, it is less rare for it to be worth considering). The late-impeachment question will never be resolved, though, unless and until Congress actually tries to carry one out.56 As stated at the outset of this chapter, the stakes for this constitutional cliffhanger are relatively low. Some might worry—as I have, elsewhere— that Congress could abuse and overuse late impeachment, especially given that impeachment is not checked by any other powers of any other branches. But the same potential for abuse exists for regular impeachments. In both cases, there is one very powerful check: elections. If it is good in a particular case to impeach an ex-president, then there is nothing to worry about. If it is bad, our worry is tempered by the fact that it would be hard for the

36 impeachment to succeed. If Congress decides (with the courts’ approval) that it can and should go forward with a late impeachment, it becomes a matter between Congress and the voters. In any case, the Republic and the presidency would survive.57 On the flip side, one might argue that late impeachability is so important that there is a different sort of problem here: that late impeachability is not clear enough. It is hard to see this as a problem either, though. To the extent that a president would ever be worried about the possibility of late impeachment, one cannot imagine him breathing easy and saying, “That’s OK, I like my odds.” Theoretically, Congress could concede its power of late impeachment, but a president engaged in an interbranch conflict should never rely on Congress to meekly deny itself power. There is no plausible way to preempt the issue anyway. No court would rule on this question in the absence of an actual case, or possibly even with an actual case. Until a real late impeachment arises, Congress could only offer non-binding or indirect commentary, such as by legislating that officials who have been late-impeached and convicted lose their pensions. This would send a clear signal that Congress favors late impeachability, but it would not bind anyone until and unless an actual late impeachment occurred. The only way to resolve whether late impeachment is constitutional without actually executing one would be to amend the Constitution, and it strains credulity to imagine an amendment like that moving to the top of the national political agenda. Between (1) the members of Congress who would not want to call their impeachment powers into question, (2) the members of Congress and state legislatures who would rank countless other matters much higher on their priority lists, and (3) the opponents of late impeachability who could raise plausible objections, the effort would surely fail. As long as it is a possibility, late impeachment can help to curb potential presidential excesses. At the same time, the uncertainty surrounding late impeachment might curb Congress’s potential excesses too. Unlike the cases in other chapters in this book, it would not be worthwhile for us to “fix” the late-impeachment cliffhanger, even if we could.

37 Constitution of Canada (excerpts) Canada was created by an act of the Parliament of the United Kingdom called the British North America Act, 1867 (now known as the Constitution Act, 1867) uniting the British colonies of the United Province of Canada, Nova Scotia, and New Brunswick. 1 When Canada was created, it was a self-governing British colony. The British North America Act, 1867, codified many constitutional rules for Canada, but major changes to the Constitution could only be made by the United Kingdom Parliament. In 1982, the Charter was enacted as part of Canada's Constitution along with a set of procedures allowing the Constitution to be amended in Canada. The Constitution of Canada includes the Constitution Act, 1867, and the Constitution Act, 1982. It is the supreme law of Canada. It reaffirms Canada's dual legal system and also includes Aborig- inal rights and treaty rights. The Constitution sets out the basic principles of democratic government in Canada when it defines the powers of the three branches of government: • the executive • the legislative • the judiciary The Queen has the executive power in Canada, but in our democratic society the Queen's powers are exercised by constitutional convention on the advice of Ministers who enjoy the confidence of the House of Commons. Together, the Prime Minister and other Ministers form the cabinet, which is responsible to Parliament for government business. Ministers are also responsible for government departments, such as the Department of Finance and the Department of Justice. When we say "the government," we are usually referring to the executive branch. Parliament is the legislative branch of the federal government. Parliament consists of the Queen (who is usually represented by the Governor General), the Senate and the House of Commons. Bills are debated and passed by the Senate and the House of Commons. The Governor General must also give royal assent to a bill in order for it to become a law. By constitutional convention, royal assent is always given to bills passed by the Senate and the House of Commons. Our Constitution also includes provisions relating to the judicial branch of government, composed of judges. The judiciary must interpret and apply the law and the Constitution, and give impartial judgments in all cases, whether they involve public law, such as a criminal case, or private law, such as a dispute over a contract. The Constitution only provides for federally appointed judges. Provincial judges are appointed under provincial laws.

1 From: Department of Justice, Government of Canada, The Canadian Constitution. 38

CONSTITUTION ACT, 1982 PART I: CANADIAN CHARTER OF RIGHTS AND FREEDOMS Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law: GUARANTEE OF RIGHTS AND FREEDOMS RIGHTS AND FREEDOMS IN CANADA 1.- The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. FUNDAMENTAL FREEDOMS 2.- Everyone has the following fundamental freedoms: a. freedom of conscience and religion; b. freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; c. freedom of peaceful assembly; and d. freedom of association. DEMOCRATIC RIGHTS DEMOCRATIC RIGHTS OF CITIZENS 3.- Every citizen of Canada has the right to vote in an election of members of the House of Com- mons or of a legislative assembly and to be qualified for membership therein. MAXIMUM DURATION OF LEGISLATIVE BODIES 4.- (1) No House of Commons and no legislative assembly shall continue for longer than five years from the date fixed for the return of the writs of a general election of its members. Continuation in special circumstances (2) In time of real or apprehended war, invasion or insurrection, a House of Commons may be continued by Parliament and a Legislative assembly may be continued by the legislature beyond five years if such continuation is not opposed by the votes of more than one-third of the members of the House of Commons or the legislative assembly, as the case may be. ANNUAL SITTING OF LEGISLATIVE BODIES 5.- There shall be a sitting of Parliament and of each legislature at least once every twelve months. MOBILITY RIGHTS MOBILITY OF CITIZENS 6.- (1) Every citizen of Canada has the right to enter, remain in and leave Canada.

Rights to move and gain livelihood (2) Every citizen of Canada and every person who has the status of a permanent resident of Can- ada has the right a. to move to and take up residence in any province; and b. to pursue the gaining of a livelihood in any province. Limitation (3) The rights specified in subsection (2) are subject to a. any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present of previous residence; and b. any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social service. Affirmative action programs (4) Subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or eco- nomically disadvantaged if the rate of employment in that province is below the rate of employment in Canada. LEGAL RIGHTS LIFE, LIBERTY AND SECURITY OF PERSON 7.- Everyone has the right to life, liberty and security of the persons and the right not to be deprived thereof except in accordance with the principles of fundamental justice. SEARCH OR SEIZURE 8.- Everyone has the right to be secure against unreasonable search or seizure. DETENTION OR IMPRISONMENT 9.- Everyone has the right not to be arbitrarily detained or imprisoned. ARREST OR DETENTION 10.- Everyone has the right on arrest or detention a. to be informed promptly of the reasons therefor; b. to retain and instruct counsel without delay and to be informed of that right; and c. to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. PROCEEDINGS IN CRIMINAL AND PENAL MATTERS 11.- Any person charged with an offense has the right a. to be informed without unreasonable delay of the specific offense; b. to be tried within a reasonable time;

40 c. not to be compelled to be a witness in proceedings against that person in respect of the offense; d. to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; e. not to be denied reasonable bail without just cause; f. except in the case of an offense under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offense is imprisonment for five years or a more severe punishment; g. not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offense under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations; h. if finally acquitted of the offense, not to be tried for it again and, if finally found guilty and punished for the offense, not to be tried or punished for it again; and i. if found guilty of the offense and if the punishment for the offense has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishement. TREATMENT OR PUNISHMENT 12.- Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. SELF-CRIMINATION 13.- A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence. INTERPRETER 14.- A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter. EQUALITY RIGHTS EQUALITY BEFORE AND UNDER LAW AND EQUAL PROTECTION AND BENEFIT OF LAW 15.- 1. Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, color, religion, sex, age or mental or physical disability. AFFIRMATIVE ACTION PROGRAMS 2. Subsection (1) does not precluce any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. OFFICIAL LANGUAGES OF CANADA 16.- (1) English and French are the official languages of Canada and have equality of status and

equal rights and privileges as to their use in all institution of the Parliament and government of Canada. Official languages of New Brunswick (2) English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the legislature and government of New Brunswick. Advancement of status and use 3. Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French. 16.1- ENGLISH AND FRENCH LINGUISTIC COMMUNITIES IN NEW BRUNSWICK (1) The English linguistic community and the French linguistic community in New Brunswick have equality of status and equal rights and privileges, including the right to distinct educational institutions and such distinct cultural institutions as are necessary for the preservation and promotion of those communities. (2) The role of the legislature and government of New Brunswick to preserve and promote the status, rights and privileges referred to in subsection (1) is affirmed. *(As added by the Constitu- tion Amendment, 1993 (New Brunswick). See SI/93-54) PROCEEDINGS OF PARLIAMENT 17.- 1. Everyone has the right to use English or French in any debates and other proceedings of Parliament. Proceedings of New Brunswick legislature 2. Everyone has the right to use English or French in any debates and other proceedings of the legislature of New Brunswick. PARLIAMENTARY STATUTES AND RECORDS 18.- 1. The statutes, records and journals of Parliament shall be printed and published in English and French and both language versions are equally authoritative. New Brunswick statutes and records 2. The statutes, records and journals of the legislature of New Brunswick shall be printed and published in English and French and both language versions are equally authoritative. PROCEEDINGS IN COURTS ESTABLISHED BY PARLIAMENT 19.- 1. Either English or French may be used by any person in, or in any pleading in or process issuing from, any court established by Parliament. Proceedings in New Brunswick courts 2. Either English or French may be used by any person in, or in any pleading in or process issuing from, any court of New Brunswick. COMMUNICATIONS BY PUBLIC WITH FEDERAL INSTITUTIONS 20.- (1) Any member of the public in Canada has the right to communicate with, and to receive

available services from, any head or central office of an institution of the Parliament or government of Canada in English or French, and has the same right with respect to any other office of any such institution where. a. there is a significant demand for communications with and services from that office in such language; or b. due to the nature of the office, it is reasonable that communications with and services from that office be available in both English and French. Communications by public with New Brunswick institutions (2) Any member of the public in New Brunswick has the right to communicate with, and to receive available services from, any office of an institution of the legislature or government of New Brunswick in English or French. CONTINUATION OF EXISTING CONSTITUTIONAL PROVISIONS 21.- Nothing in sections 16 to 20 abrogates or derogates from any right, privilege or obligation with respect to the English and French languages, or either of them, that exists or is continued by virtue of any other provision of the Constitution of Canada. RIGHTS AND PRIVILEGES PRESERVED 22.- Nothing in sections 16 to 20 abrogates or derogates from any legal or customary right or privilege acquired or enjoyed either before or after the coming into force of this Charter with respect to any language that is not English or French. MINORITY LANGUAGE EDUCATIONAL RIGHTS LANGUAGE OF INSTRUCTION 23.- (1) Citizens of Canada a. whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside, or b. who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province, have the right to have their children receive primary and secondary school instruction in that language in that province. Continuity of language instruction (2) Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary school instruction in the same language. Application where numbers warrant (3) The right of citizens of Canada under subsections (1) and (2) to have their children receive primary and secondary school instruction in the language of the English or French linguistic minority population of a province a. applies wherever in the province the number of children of citizens who have such a right is sufficient to warrant the provision to them out of public funds of minority language instruction; and 43 b. includes, where the number of those children so warrants, the right to have them receive that instruction in minority language educational facilities provided out of public funds. ENFORCEMENT ENFORCEMENT OF GUARANTEED RIGHTS AND FREEDOMS 24.- (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. Exclusion of evidence bringing administration of justice into disrepute (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. GENERAL ABORIGINAL RIGHTS AND FREEDOMS NOT AFFECTED BY CHARTER 25.- The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including a. any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and b. any rights or freedoms that now exist by way of land claims agreements or may be so acquired. *(As Amended by the Constitution Amendment Proclamation, 1983. See SI/84-102) OTHER RIGHTS AND FREEDOMS NOT AFFECTED BY CHARTER 26.- The guarantee in this Charter of certain rights and freedoms shall not be construed as deny- ing the existence of any other rights or freedoms that exist in Canada. MULTICULTURAL HERITAGE 27.- This Charter shall be interpreted in a manner consistent with the preservation and enhance- ment of the multicultural heritage of Canadians. RIGHTS GUARANTEED EQUALLY TO BOTH SEXES 28.- Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons. RIGHTS RESPECTING CERTAIN SCHOOLS PRESERVED 29.- Nothing in this Charter abrogates or derogates from any rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools. APPLICATION TO TERRITORIES AND TERRITORIAL AUTHORITIES 30.- A reference in this Charter to a Province or to the legislative assembly or legislature of a province shall be deemed to include a reference to the Yukon Territory and the Northwest Terri- tories, or to the appropriate legislative authority thereof, as the case may be.

LEGISLATIVE POWERS NOT EXTENDED 31.- Nothing in this Charter extends the legislative powers of any body or authority. APPLICATION OF CHARTER 32.- (1) This Charter applies a. to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and b. to the legislature and government of each province in respect of all matters within the authority of the legislature of each province. Exception (2) Notwithstanding subsection (1), section 15 shall not have effect until three years after this section comes into force. EXCEPTION WHERE EXPRESS DECLARATION 33.- (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter. Operation of exception (2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration. Five year limitation (3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration. Re-enactment (4) Parliament or the legislature of a province may reenact a declaration made under subsection (1). Five year limitation (5) Subsection (3) applies in respect of a re-enactment made under subsection (4). CITATION 34.- This Part may be cited as the Canadian Charter of Rights and Freedoms. PART V: PROCEDURE FOR AMENDING CONSTITUTION OF CANADA

38. (1) An amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by o (a) resolutions of the Senate and House of Commons; and o (b) resolutions of the legislative assemblies of at least two-thirds of the provinces that have, in the aggregate, according to the then latest general census, at least fifty per cent of the population of all the provinces.

(2) An amendment made under subsection (1) that derogates from the legislative powers, the proprietary rights or any other rights or privileges of the legislature or government of a province shall require a resolution supported by a majority of the members of each of the Senate, the House of Commons and the legislative assemblies required under subsection (1). (3) An amendment referred to in subsection (2) shall not have effect in a province the legislative assembly of which has expressed its dissent thereto by resolution supported by a majority of its members prior to the issue of the proclamation to which the amendment relates unless that legislative assembly, subsequently, by resolution supported by a majority of its members, revokes its dissent and authorizes the amendment. (4) A resolution of dissent made for the purposes of subsection (3) may be revoked at any time before or after the issue of the proclamation to which it relates. • 39. (1) A proclamation shall not be issued under subsection 38(1) before the expiration of one year from the adoption of the resolution initiating the amendment procedure thereunder, unless the legislative assembly of each province has previously adopted a resolution of assent or dissent. (2) A proclamation shall not be issued under subsection 38(1) after the expiration of three years from the adoption of the resolution initiating the amendment procedure thereunder. 40. Where an amendment is made under subsection 38(1) that transfers provincial legislative powers relating to education or other cultural matters from provincial legislatures to Parliament, Canada shall provide reasonable compensation to any province to which the amendment does not apply. 41. An amendment to the Constitution of Canada in relation to the following matters may be made by proclamation issued by the Governor General under the Great Seal of Canada only where authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province: • (a) the office of the Queen, the Governor General and the Lieutenant Governor of a province; • (b) the right of a province to a number of members in the House of Commons not less than the number of Senators by which the province is entitled to be represented at the time this Part comes into force; • (c) subject to section 43, the use of the English or the French language; • (d) the composition of the Supreme Court of Canada; and • (e) an amendment to this Part. 42. (1) An amendment to the Constitution of Canada in relation to the following matters may be made only in accordance with subsection 38(1):

o (a) the principle of proportionate representation of the provinces in the House of Commons prescribed by the Constitution of Canada;

o (b) the powers of the Senate and the method of selecting Senators; o (c) the number of members by which a province is entitled to be represented in the Senate and the residence qualifications of Senators;

o (d) subject to paragraph 41(d), the Supreme Court of Canada; 46

o (e) the extension of existing provinces into the territories; and o (f) notwithstanding any other law or practice, the establishment of new provinces. (2) Subsections 38(2) to (4) do not apply in respect of amendments in relation to matters referred to in subsection (1). 43. An amendment to the Constitution of Canada in relation to any provision that applies to one or more, but not all, provinces, including • (a) any alteration to boundaries between provinces, and • (b) any amendment to any provision that relates to the use of the English or the French language within a province, may be made by proclamation issued by the Governor General under the Great Seal of Canada only where so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province to which the amendment applies. 44. Subject to sections 41 and 42, Parliament may exclusively make laws amending the Con- stitution of Canada in relation to the executive government of Canada or the Senate and House of Commons. 45. Subject to section 41, the legislature of each province may exclusively make laws amending the constitution of the province. 46. (1) The procedures for amendment under sections 38, 41, 42 and 43 may be initiated either by the Senate or the House of Commons or by the legislative assembly of a province. (2) A resolution of assent made for the purposes of this Part may be revoked at any time before the issue of a proclamation authorized by it. 47. (1) An amendment to the Constitution of Canada made by proclamation under section 38, 41, 42 or 43 may be made without a resolution of the Senate authorizing the issue of the proclamation if, within one hundred and eighty days after the adoption by the House of Commons of a resolution authorizing its issue, the Senate has not adopted such a resolution and if, at any time after the expiration of that period, the House of Commons again adopts the resolution. (2) Any period when Parliament is prorogued or dissolved shall not be counted in compu- ting the one hundred and eighty day period referred to in subsection (1). 48. The Queen’s Privy Council for Canada shall advise the Governor General to issue a proclamation under this Part forthwith on the adoption of the resolutions required for an amendment made by proclamation under this Part. 49. A constitutional conference composed of the Prime Minister of Canada and the first ministers of the provinces shall be convened by the Prime Minister of Canada within fifteen years after this Part comes into force to review the provisions of this Part. (102)

Constitution of the Republic of South Africa 1996 (excerpts) Chapter 1: Founding Provisions Republic of South Africa 1. The Republic of South Africa is one, sovereign, democratic state founded on the following values: (a) Human dignity, the achievement of equality and the advancement of human rights and freedoms. (b) Non-racialism and non-sexism. (c) Supremacy of the constitution and the rule of law. (d) Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness. Supremacy of Constitution 2. This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled. Citizenship 3. (1) There is a common South African citizenship. (2) All citizens are — (a) equally entitled to the rights, privileges and benefits of citizenship; and (b) equally subject to the duties and responsibilities of citizenship. (3) National legislation must provide for the acquisition, loss and restoration of citizenship. National anthem 4. The national anthem of the Republic is determined by the President by proclamation. National flag 5. The national flag of the Republic is black, gold, green, white, red and blue, as described and sketched in Schedule 1. Languages 6. (1) The official languages of the Republic are Sepedi, Sesotho, Setswana, siSwati, Tshivenda, Xitsonga, Afrikaans, English, isiNdebele, isiXhosa and isiZulu. (2) Recognising the historically diminished use and status of the indigenous languages of our people, the state must take practical and positive measures to elevate the status and advance the use of these languages. (3) (a) The national government and provincial governments may use any particular official languages for the purposes of government, taking into account usage, practicality, expense, regional circumstances and the balance of the needs and preferences of the population as a whole or in the province concerned; but the national government and each provincial government must use at least two official languages. (b) Municipalities must take into account the language usage and preferences of their residents. (4) The national government and provincial governments, by legislative and other measures, must regulate and monitor their use of official languages. Without detracting from the provisions of subsection (2), all official languages must enjoy parity of esteem and must be treated equitably. (5) A Pan South African Language Board established by national legislation must — (a) promote, and create conditions for, the development and use of — (i) all official languages; (ii) the Khoi, Nama and San languages; and (iii) sign language ; and (b) promote and ensure respect for — (i) all languages commonly used by communities in South Africa, including German, Greek, Gujarati, Hindi, Portuguese, Tamil, Telegu and Urdu; and (ii) Arabic, Hebrew, Sanskrit and other languages used for religious purposes in South Africa.

Chapter 2: Bill of Rights Rights 7. (1) This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom. (2) The state must respect, protect, promote and fulfil the rights in the Bill of Rights. 48 (3) The rights in the Bill of Rights are subject to the limitations contained or referred to in section 36, or elsewhere in the Bill. Application 8. (1) The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state. (2) A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right. (3) When applying a provision of the Bill of Rights to a natural or juristic person in terms of subsection (2), a court — (a) in order to give effect to a right in the Bill, must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right; and (b) may develop rules of the common law to limit the right, provided that the limitation is in accordance with section 36(1). (4) A juristic person is entitled to the rights in the Bill of Rights to the extent required by the nature of the rights and the nature of that juristic person. Equality 9. (1) Everyone is equal before the law and has the right to equal protection and benefit of the law. (2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken. (3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. (4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination. (5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair. Human dignity 10. Everyone has inherent dignity and the right to have their dignity respected and protected. Life 11. Everyone has the right to life. Freedom and security of the person 12. (1) Everyone has the right to freedom and security of the person, which includes the right — (a) not to be deprived of freedom arbitrarily or without just cause; (b) not to be detained without trial; (c) to be free from all forms of violence from either public or private sources; (d) not to be tortured in any way; and (e) not to be treated or punished in a cruel, inhuman or degrading way. (2) Everyone has the right to bodily and psychological integrity, which includes the right — (a) to make decisions concerning reproduction; (b) to security in and control over their body; and (c) not to be subjected to medical or scientific experiments without their informed consent. Slavery, servitude and forced labour 13. No one may be subjected to slavery, servitude or forced labour. Privacy 14. Everyone has the right to privacy, which includes the right not to have — (a) their person or home searched; (b) their property searched; (c) their possessions seized; or (d) the privacy of their communications infringed. Freedom of religion, belief and opinion 15. (1) Everyone has the right to freedom of conscience, religion, thought, belief and opinion. 49 (2) Religious observances may be conducted at state or state-aided institutions, provided that — (a) those observances follow rules made by the appropriate public authorities; (b) they are conducted on an equitable basis; and (c) attendance at them is free and voluntary. (3) (a) This section does not prevent legislation recognising — (i) marriages concluded under any tradition, or a system of religious, personal or family law; or (ii) systems of personal and family law under any tradition, or adhered to by persons professing a particular religion. (b) Recognition in terms of paragraph (a) must be consistent with this section and the other provisions of the Constitution. Freedom of expression 16. (1) Everyone has the right to freedom of expression, which includes — (a) freedom of the press and other media; (b) freedom to receive or impart information or ideas; (c) freedom of artistic creativity; and (d) academic freedom and freedom of scientific research. (2) The right in subsection (1) does not extend to — (a) propaganda for war; (b) incitement of imminent violence; or (c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm. Assembly, demonstration, picket and petition 17. Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions. Freedom of association 18. Everyone has the right to freedom of association. Political rights 19. (1) Every citizen is free to make political choices, which includes the right — (a) to form a political party; (b) to participate in the activities of, or recruit members for, a political party; and (c) to campaign for a political party or cause. (2) Every citizen has the right to free, fair and regular elections for any legislative body established in terms of the Constitution. (3) Every adult citizen has the right — (a) to vote in elections for any legislative body established in terms of the Constitution, and to do so in secret; and (b) to stand for public office and, if elected, to hold office. Citizenship 20. No citizen may be deprived of citizenship. Freedom of movement and residence 21. (1) Everyone has the right to freedom of movement. (2) Everyone has the right to leave the Republic. (3) Every citizen has the right to enter, to remain in and to reside anywhere in, the Republic. (4) Every citizen has the right to a passport. Freedom of trade, occupation and profession 22. Every citizen has the right to choose their trade, occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law. Labour relations 23. (1) Everyone has the right to fair labour practices. (2) Every worker has the right — (a) to form and join a trade union; (b) to participate in the activities and programmes of a trade union; and 50 (c) to strike. (3) Every employer has the right — (a) to form and join an employers’ organisation; and (b) to participate in the activities and programmes of an employers’ organisation. (4) Every trade union and every employers’ organisation has the right — (a) to determine its own administration, programmes and activities; (b) to organise; and (c) to form and join a federation. (5) Every trade union, employers’ organisation and employer has the right to engage in collective bargaining. National legislation may be enacted to regulate collective bargaining. To the extent that the legislation may limit a right in this Chapter, the limitation must comply with section 36(1). (6) National legislation may recognise union security arrangements contained in collective agreements. To the extent that the legislation may limit a right in this Chapter, the limitation must comply with section 36(1). Environment 24. Everyone has the right — (a) to an environment that is not harmful to their health or well-being; and (b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that — (i) prevent pollution and ecological degradation; (ii) promote conservation; and (iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development. Property 25. (1) No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property. (2) Property may be expropriated only in terms of law of general application — (a) for a public purpose or in the public interest; and (b) subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court. (3) The amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including — (a) the current use of the property; (b) the history of the acquisition and use of the property; (c) the market value of the property; (d) the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and (e) the purpose of the expropriation. (4) For the purposes of this section — (a) the public interest includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources; and (b) property is not limited to land. (5) The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis. (6) A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress. (7) A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress. (8) No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36(1). 51 (9) Parliament must enact the legislation referred to in subsection (6). Housing 26. (1) Everyone has the right to have access to adequate housing. (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. (3) No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions. Health care, food, water and social security 27. (1) Everyone has the right to have access to — (a) health care services, including reproductive health care; (b) sufficient food and water; and (c) social security, including, if they are unable to support themselves and their dependants, appropriate social assistance. (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights. (3) No one may be refused emergency medical treatment. Children 28. (1) Every child has the right — (a) to a name and a nationality from birth; (b) to family care or parental care, or to appropriate alternative care when removed from the family environment; (c) to basic nutrition, shelter, basic health care services and social services; (d) to be protected from maltreatment, neglect, abuse or degradation; (e) to be protected from exploitative labour practices; (f) not to be required or permitted to perform work or provide services that — (i) are inappropriate for a person of that child’s age; or (ii) place at risk the child’s well-being, education, physical or mental health or spiritual, moral or social development; (g) not to be detained except as a measure of last resort, in which case, in addition to the rights a child enjoys under sections 12 and 35, the child may be detained only for the shortest appropriate period of time, and has the right to be — (i) kept separately from detained persons over the age of 18 years; and (ii) treated in a manner, and kept in conditions, that take account of the child’s age; (h) to have a legal practitioner assigned to the child by the state, and at state expense, in civil proceedings affecting the child, if substantial injustice would otherwise result; and (i) not to be used directly in armed conflict, and to be protected in times of armed conflict. (2) A child’s best interests are of paramount importance in every matter concerning the child. (3) In this section child means a person under the age of 18 years. Education 29. (1) Everyone has the right — (a) to a basic education, including adult basic education; and (b) to further education, which the state, through reasonable measures, must make progressively available and accessible. (2) Everyone has the right to receive education in the official language or languages of their choice in public educational institutions where that education is reasonably practicable. In order to ensure the effective access to, and implementation of, this right, the state must consider all reasonable educational alternatives, including single medium institutions, taking into account — (a) equity; (b) practicability; and (c) the need to redress the results of past racially discriminatory laws and practices. (3) Everyone has the right to establish and maintain, at their own expense, independent educational institutions that — (a) do not discriminate on the basis of race; (b) are registered with the state; and (c) maintain standards that are not inferior to standards at comparable public educational institutions. 52 (4) Subsection (3) does not preclude state subsidies for independent educational institutions. Language and culture 30. Everyone has the right to use the language and to participate in the cultural life of their choice, but no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights. Cultural, religious and linguistic communities 31. (1) Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community — (a) to enjoy their culture, practise their religion and use their language; and (b) to form, join and maintain cultural, religious and linguistic associations and other organs of civil society. (2) The rights in subsection (1) may not be exercised in a manner inconsistent with any provision of the Bill of Rights. Access to information 32. (1) Everyone has the right of access to — (a) any information held by the state; and (b) any information that is held by another person and that is required for the exercise or protection of any rights. (2) National legislation must be enacted to give effect to this right, and may provide for reasonable measures to alleviate the administrative and financial burden on the state. Just administrative action 33. (1) Everyone has the right to administrative action that is lawful, reasonable and procedurally fair. (2) Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons. (3) National legislation must be enacted to give effect to these rights, and must — (a) provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal; (b) impose a duty on the state to give effect to the rights in subsections (1) and (2); and (c) promote an efficient administration. Access to courts 34. Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum. Arrested, detained and accused persons 35. (1) Everyone who is arrested for allegedly committing an offence has the right — (a) to remain silent; (b) to be informed promptly — (i) of the right to remain silent; and (ii) of the consequences of not remaining silent; (c) not to be compelled to make any confession or admission that could be used in evidence against that person; (d) to be brought before a court as soon as reasonably possible, but not later than — (i) 48 hours after the arrest; or (ii) the end of the first court day after the expiry of the 48 hours, if the 48 hours expire outside ordinary court hours or on a day which is not an ordinary court day; (e) at the first court appearance after being arrested, to be charged or to be informed of the reason for the detention to continue, or to be released; and (f) to be released from detention if the interests of justice permit, subject to reasonable conditions. (2) Everyone who is detained, including every sentenced prisoner, has the right — (a) to be informed promptly of the reason for being detained; (b) to choose, and to consult with, a legal practitioner, and to be informed of this right promptly; (c) to have a legal practitioner assigned to the detained person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly; (d) to challenge the lawfulness of the detention in person before a court and, if the detention is unlawful, to be released; (e) to conditions of detention that are consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical 53 treatment; and (f) to communicate with, and be visited by, that person’s — (i) spouse or partner; (ii) next of kin; (iii) chosen religious counsellor; and (iv) chosen medical practitioner. (3) Every accused person has a right to a fair trial, which includes the right — (a) to be informed of the charge with sufficient detail to answer it; (b) to have adequate time and facilities to prepare a defence; (c) to a public trial before an ordinary court; (d) to have their trial begin and conclude without unreasonable delay; (e) to be present when being tried; (f) to choose, and be represented by, a legal practitioner, and to be informed of this right promptly; (g) to have a legal practitioner assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly; (h) to be presumed innocent, to remain silent, and not to testify during the proceedings; (i) to adduce and challenge evidence; (j) not to be compelled to give self-incriminating evidence; (k) to be tried in a language that the accused person understands or, if that is not practicable, to have the proceedings interpreted in that language; (l) not to be convicted for an act or omission that was not an offence under either national or international law at the time it was committed or omitted; (m) not to be tried for an offence in respect of an act or omission for which that person has previously been either acquitted or convicted; (n) to the benefit of the least severe of the prescribed punishments if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and (o) of appeal to, or review by, a higher court. (4) Whenever this section requires information to be given to a person, that information must be given in a language that the person understands. (5) Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice. Limitation of rights 36. (1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including — (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose. (2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights. States of emergency 37. (1) A state of emergency may be declared only in terms of an Act of Parliament, and only when — (a) the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency; and (b) the declaration is necessary to restore peace and order. (2) A declaration of a state of emergency, and any legislation enacted or other action taken in consequence of that declaration, may be effective only — (a) prospectively; and (b) for no more than 21 days from the date of the declaration, unless the National Assembly resolves to extend the declaration. The Assembly may extend a declaration of a state of emergency for no more than three months at a time. The first extension of the state of emergency must be by a resolution adopted with a supporting vote of a majority of the members of the Assembly. Any subsequent extension must be by a resolution adopted with a supporting vote of at least 60 per cent of the 54 members of the Assembly. A resolution in terms of this paragraph may be adopted only following a public debate in the Assembly. (3) Any competent court may decide on the validity of — (a) a declaration of a state of emergency; (b) any extension of a declaration of a state of emergency; or (c) any legislation enacted, or other action taken, in consequence of a declaration of a state of emergency. (4) Any legislation enacted in consequence of a declaration of a state of emergency may derogate from the Bill of Rights only to the extent that — (a) the derogation is strictly required by the emergency; and (b) the legislation — (i) is consistent with the Republic’s obligations under international law applicable to states of emergency; (ii) conforms to subsection (5); and (iii) is published in the national Government Gazette as soon as reasonably possible after being enacted. (5) No Act of Parliament that authorises a declaration of a state of emergency, and no legislation enacted or other action taken in consequence of a declaration, may permit or authorise — (a) indemnifying the state, or any person, in respect of any unlawful act; (b) any derogation from this section; or (c) any derogation from a section mentioned in column 1 of the Table of Non-Derogable Rights, to the extent indicated opposite that section in column 3 of the Table. Table of Non-Derogable Rights

1 2 3 Section Number Section Title Extent to which the right is protected

9 Equality With respect to unfair discrimination solely on the grounds of race, colour, ethnic or social origin, sex religion or language

10 Human Dignity Entirely

11 Life Entirely

12 Freedom and Security of With respect to subsections (1)(d) and (e) and (2)(c). the person

13 Slavery, servitude and With respect to slavery and servitude forced labour

28 Children With respect to: - subsection (1)(d) and (e); - the rights in subparagraphs (i) and (ii) of subsection (1)(g); and - subsection 1(i) in respect of children of 15 years and younger

35 Arrested, detained and With respect to: accused persons - subsections (1)(a), (b) and (c) and (2)(d); - the rights in paragraphs (a) to (o) of subsection (3), excluding paragraph (d) - subsection (4); and - subsection (5) with respect to the exclusion of evidence if the admission of that evidence would render the trial unfair.

(6) Whenever anyone is detained without trial in consequence of a derogation of rights resulting from a declaration of a state of emergency, the following conditions must be observed: (a) An adult family member or friend of the detainee must be contacted as soon as reasonably possible, and informed that the person has been detained. (b) A notice must be published in the national Government Gazette within five days of the person being detained, stating the detainee’s name and place of detention and referring to the emergency measure in terms of which that person has been detained. 55 (c) The detainee must be allowed to choose, and be visited at any reasonable time by, a medical practitioner. (d) The detainee must be allowed to choose, and be visited at any reasonable time by, a legal representative. (e) A court must review the detention as soon as reasonably possible, but no later than 10 days after the date the person was detained, and the court must release the detainee unless it is necessary to continue the detention to restore peace and order. (f) A detainee who is not released in terms of a review under paragraph (e), or who is not released in terms of a review under this paragraph, may apply to a court for a further review of the detention at any time after 10 days have passed since the previous review, and the court must release the detainee unless it is still necessary to continue the detention to restore peace and order. (g) The detainee must be allowed to appear in person before any court considering the detention, to be represented by a legal practitioner at those hearings, and to make representations against continued detention. (h) The state must present written reasons to the court to justify the continued detention of the detainee, and must give a copy of those reasons to the detainee at least two days before the court reviews the detention. (7) If a court releases a detainee, that person may not be detained again on the same grounds unless the state first shows a court good cause for re-detaining that person. (8) Subsections (6) and (7) do not apply to persons who are not South African citizens and who are detained in consequence of an international armed conflict. Instead, the state must comply with the standards binding on the Republic under international humanitarian law in respect of the detention of such persons. Enforcement of rights 38. Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are - (a) anyone acting in their own interest; (b) anyone acting on behalf of another person who cannot act in their own name; (c) anyone acting as a member of, or in the interest of, a group or class of persons; (d) anyone acting in the public interest; and (e) an association acting in the interest of its members. Interpretation of Bill of Rights 39. (1) When interpreting the Bill of Rights, a court, tribunal or forum — (a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom; (b) must consider international law; and (c) may consider foreign law. (2) When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights. (3) The Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill. Chapter 4: Parliament National Legislative Process 73. All Bills 1. Any Bill may be introduced in the National Assembly. 2. Only a Cabinet member or a Deputy Minister, or a member or committee of the National Assem- bly, may introduce a Bill in the Assembly; but only the Cabinet member responsible for national financial matters may introduce the following Bills in the Assembly: a. a Money Bill; or b. a Bill which provides for legislation envisaged in section 214. 3. A Bill referred to in section 76 (3), except a Bill referred to in subsection (2) (a) or (b) of this section, may be introduced in the National Council of Provinces. 56 4. Only a member or committee of the National Council of Provinces may introduce a Bill in the Council. 5. A Bill passed by the National Assembly must be referred to the National Council of Provinces if it must be considered by the Council. A Bill passed by the Council must be referred to the Assembly. 74. Bills amending the Constitution 1. Section 1 and this subsection may be amended by a Bill passed by - a. the National Assembly, with a supporting vote of at least 75 per cent of its members; and b. the National Council of Provinces, with a supporting vote of at least six provinces. 2. Chapter 2 may be amended by a Bill passed by a. the National Assembly, with a supporting vote of at least two thirds of its members; and b. the National Council of Provinces, with a supporting vote of at least six provinces. 3. Any other provision of the Constitution may be amended by a Bill passed a. by the National Assembly, with a supporting vote of at least two thirds of its members; and b. also by the National Council of Provinces, with a supporting vote of at least six provinces, if the amendment i. relates to a matter that affects the Council; ii. alters provincial boundaries, powers, functions or institutions; or iii. amends a provision that deals specifically with a provincial matter. 4. A Bill amending the Constitution may not include provisions other than constitutional amendments and matters connected with the amendments. 5. At least 30 days before a Bill amending the Constitution is introduced in terms of section 73(2), the person or committee intending to introduce the Bill must a. publish in the national Government Gazette , and in accordance with the rules and orders of the National Assembly, particulars of the proposed amendment for public comment; b. submit, in accordance with the rules and orders of the Assembly, those particulars to the provincial legislatures for their views; and c. submit, in accordance with the rules and orders of the National Council of Provinces, those particulars to the Council for a public debate, if the proposed amendment is not an amendment that is required to be passed by the Council. 6. When a Bill amending the Constitution is introduced, the person or committee introducing the Bill must submit any written comments received from the public and the provincial legislatures a. to the Speaker for tabling in the National Assembly; and b. in respect of amendments referred to in subsection (1), (2) or (3)(b), to the Chairperson of the National Council of Provinces for tabling in the Council. 7. A Bill amending the Constitution may not be put to the vote in the National Assembly within 30 days of a. its introduction, if the Assembly is sitting when the Bill is introduced; or b. its tabling in the Assembly, if the Assembly is in recess when the Bill is introduced. 8. If a Bill referred to in subsection (3)(b), or any part of the Bill, concerns only a specific province or provinces, the National Council of Provinces may not pass the Bill or the relevant part unless it has been approved by the legislature or legislatures of the province or provinces concerned. 9. A Bill amending the Constitution that has been passed by the National Assembly and, where applicable, by the National Council of Provinces, must be referred to the President for assent.

Edward Hartnett, A “Uniform and Entire” Constitution; Or, What If Madison Had Won?, 15 CONST. COMM. 251 (1998) James Madison is widely regarded as the father of both the Constitution and the Bill of Rights. Yet the constitution-plus-bill-of-rights that we know today differs in significant ways from what Madison proposed to the First Congress in June of 1789. . . . [This Article] explores what our Constitution might look like if Madison had won on another issue he lost in that first Congress: Madison argued that amendments should be interlineated into the body of the Constitution, but the House of Representatives decided instead to attach amendments as supplements to the Constitu- tion. This Article proceeds in three steps. First, it recounts the debate in the first Congress over the form that amendments to the Constitution would take and Madison’s loss on that issue. Second, it analyzes each of the twenty-seven amendments to the Constitution to determine the form they would take in the Constitution if Madison had prevailed on the issue in the first Congress. Finally, it presents a complete text of what our Constitution would look like if Madison had prevailed. I. THE DEBATE IN THE FIRST CONGRESS When Madison proposed his amendments to the Constitution, he sought to integrate them into the body of the Constitution so as to preserve what he considered the “uniform and entire” system of the Constitution. He proposed that the recognition of popular sovereignty be “prefixed to the constitution,” and that a bar on changes in Congressional compensation from taking effect before an intervening election be “added to the end of the first sentence” in Article I, section 6, clause 1. Similarly, he proposed that the bulk of what we now call the Bill of Rights “be inserted” in Article I, section 9, “between clauses 3 and 4,” and that his suggested additional restrictions on the states “be inserted” in Article I, section 10, “between clauses 1 and 2.” In addition, he proposed “the third clause” in Article III, section 2 “be struck out, and in its place be inserted” a new provision governing jury trials in criminal cases, grand jury indictments, and jury trials in civil cases. Madison’s proposal was referred to a select committee consisting of one representative from each of the eleven states that had, at that point, ratified the Constitution. Although the select committee report differed in some respects from Madison’s original proposal, it followed his lead in proposing that the amendments be incorporated into the body of the Constitution. On August 13, 1789, the House of Representatives, sitting as a committee of the whole, began to debate the report of the select committee. Roger Sherman, a “consistent opponent of a Bill of Rights,” immediately objected that “this is not the proper mode of amending the constitution.” He argued: We ought not to interweave our propositions into the work itself, because it will be destructive of the whole fabric. We might as well endeavor to mix brass, iron and clay, as to incorporate such heterogeneous articles; the one contradictory to the other. Sherman contended that the “absurdity” of amending Madison’s way was demonstrated by comparing it to statutory amendments, asking whether “any Legislature [would] endeavor to introduce into a former act, a subsequent amendment, and let them stand so connected.” Sherman questioned the legitimacy of Madison’s approach, arguing that the constitution is the “act of the people” while the amendments “will be the act of the state governments,” and suggesting that Madison’s approach would be the equivalent of “destroying the whole and establishing a new constitution,” thereby “removing the basis on which we mean to build.” He therefore moved that amendments be added as supplements to the Constitution.

Supporters of Sherman’s motion expressed fear that submitting amendments to the states in the way proposed by Madison would be an attempt to repeal the Constitution, risking “the destruction of the whole,” and argued that Sherman’s supplemental approach would permit “the world [to] discover the perfection of the original, and the superfluity of the amendments.” Moving from weak arguments to fanciful ones, they even argued that “if the amendments are incorporated in the body of the work, it will appear, unless we refer to the archives of congress, that George Wash- ington, and the other worthy characters who composed the convention, signed an instrument which they never had in contemplation.” Madison responded: Form, sir, is always of less importance than the substance; but on this occasion, I admit that form is of some consequence... Now it appears to me, that there is a neatness and propriety in incorporating the amendments into the constitution itself; in that case the system will remain uniform and entire; it will certainly be more simple, when the amendments are interwoven into those parts to which they naturally belong... we shall then be able to determine its meaning without references or comparison; whereas, if they are supplemen tary, its meaning can only be ascertained by a comparison of the two instruments, which will be a very considerable em- barrassment, it will be difficult to ascertain to what parts of the instrument the amendments particularly refer; they will create unfavorable comparisons, whereas if they are placed upon the footing here proposed, they will stand upon as good foundation as the original work. John Vining ridiculed Sherman’s proposal, noting he had once seen an “act entitled an act to amend a supplement to an act entitled an act for altering part of act entitled an act for certain purposes therein mentioned” and that if Sherman’s mode were adopted, “the system would be distorted, and like a careless written letter, have more matter attached to it in a postscript than was contained in the original composition.” Elbridge Gerry confronted directly the suggestion that amendments ratified by state legislatures would not “have the same authority as the original instrument,” and challenged Sherman: “if this is his meaning, let him avow it, and if it is well founded, we may save ourselves the trouble of proceeding in the business” of amendments at all. Egbert Benson, supporting Madison’s approach, correctly noted that the state conventions that ratified the Constitu- tion “had proposed amendments in this very form.” Madison, who had struggled to have the House consider the subject of amendments at all, despaired that if Sherman’s motion were adopted, “we shall so far unhinge the business as to occasion alterations in every article and clause of the report.” Madison certainly seems to have had the better of the argument, and Sherman’s motion was defeated. Less than a week later, on August 19, Sherman renewed his motion to add the amendments to the Constitution by way of supplement rather than by incorporating them into the body. The extant record reports only that a debate occurred “similar to what took place” on August 13; no details of that debate are provided. This time, however, Sherman’s motion carried, with a two- thirds vote in favor. What explains the change? During the intervening week, the House of Representatives was a rather unpleasant place to be. On August 15, the House, again sitting as a committee of the whole, discussed a proposed constitutional amendment that neither Madison nor the select committee supported, an amendment providing for instruction of representatives. During this discussion, Thomas Sumter complained of what he considered undue haste in pressing the constitutional amendments proposed by the

select committee. He stated that he was “obliged to notice” this “somewhat improper” conduct. In this same debate, Aedanus Burke described the amendments proposed by Madison and the select committee as “little better than whip-syllabub, frothy and full of wind, formed only to please the palate,” and compared them to a “tub thrown out to a whale, to secure the freight of the ship and its peaceable voyage,” a common metaphor at the time for a diversionary tactic. Madison “was not willing to be silent after the charges that had been brought,” noting that Sumter and Burke had “insinuated that we are not acting with candor.” He stated, “If I was inclined to make no alteration in the constitution I would bring forward such amendments as were of a dubious cast, in order to have the whole rejected,” thereby insinuating that his opponents were deliberately proposing amendments that had little prospect of being enacted in order to undermine the constitution. Writing on August 15, William Smith stated, “there has been more ill-humour & rudeness displayed today than has existed since the meeting of Congress,” and “to make it worse, the weather is intensely hot.” Later that week, tempers grew so hot that the House saw “the first known instance of congressmen challenging each other to duels.” In the midst of this discord, Madison concluded that it was “absolutely necessary in order to effect any thing to abbreviate debate, and exclude every proposition of a doubtful & unimportant nature.” One of the things that Madison gave up was his favored form of amendment. He explained: It became an unavoidable sacrifice to a few who knew their concurrence to be necessary, to the despatch if not the success of the business, to give up the form by which the amendts. when ratified would have fallen into the body of the Constitution, in favor of the project of adding them by way of appendix to it. While Madison sacrificed on this issue, he was not happy with the result, noting that “it is already apparent... that some ambiguities will be produced by this change, as the question will often arise and sometimes be not easily solved, how far the original text is or is not necessarily superceded, by the supplemental act.” But suppose Madison had not found it necessary to make this sacrifice to “a few” in the overheated environment of August 1789. What would our Constitution look like? II. A MADISONIAN APPROACH TO THE TWENTY-SEVEN AMENDMENTS THE FIRST TEN AMENDMENTS: AVOIDING AMBIGUITY AND PRODUCING A BETTER BILL OF RIGHTS Integrating the first ten amendments into the body of the Constitution is relatively easy because Madison already did most of the work. The First, Second, Third, Fourth, Eighth, and Ninth Amendments belong in Article I, section 9, along with the other explicit limitations on Congres- sional power. The Seventh and Tenth Amendments are also easy to integrate into the text in accordance with Madison’s plan. Madison proposed that the right to a civil jury trial and the prohibition of reexamination of facts tried to a jury, except in accordance with the principles of common law, be included in Article III, section 2. What became the Tenth Amendment, by contrast, was proposed as a separate article, a new Article VII, with the original Article VII renumbered as Article VIII. Although these provisions emerged from Congress somewhat changed from Madi- son’s original proposal, the language of these amendments as ultimately enacted can readily be inserted just where Madison wanted them.

The Fifth and Sixth Amendments are somewhat more difficult to integrate because of the way they were altered in the legislative process. Indeed, it seems likely that these were the amendments Madison had in mind when he wrote that he already saw ambiguities in the relationship between the main body of the Constitution and the appended amendments. Article III of the original Con- stitution guaranteed a jury trial of all crimes (except in cases of impeachment), and guaranteed that the trial be held in the state where the crime was committed, leaving to Congress to decide the place of trial for crimes not committed in any state. In response to complaints that this did not adequately protect a right to a local jury, Madison proposed that this provision of the original Constitution be replaced by a new provision that guaranteed both a jury from the vicinage (except in cases of impeachment and cases in the military) and a grand jury indictment (except in certain extraordinary circum stances), but which let crimes not committed within any county be tried where the laws prescribe. Madison’s proposal also contained other provisions that ultimately found their way into the Fifth and Sixth Amendments. He proposed banning multiple punishments or trials for the same offense, compelled self-incrimination, deprivation of life, liberty, or property without due process, and relinquishment of property without just compensation. He also proposed that the accused in criminal prosecutions have the right to a speedy and public trial, to be informed of the cause and nature of the accusation, and to be confronted with his accusers and witnesses, to have compulsory process, and to have the assistance of counsel. All of these protections were to be inserted in Article I, section 9. Thus, under Madison’s approach, the provisions of both the Fifth and Sixth Amendments would be split up. The grand jury right of the Fifth Amendment and the criminal jury trial right of the Sixth Amendment would be placed in Article III, replacing the less detailed jury trial right originally protected in Article III. The other rights of the Fifth and Sixth Amendments would be placed in Article I, section 9, along with the First, Second, Third, Fourth, Eighth, and Ninth Amendments. Madison’s approach would have eliminated ambiguities in the relationship between Article III, the Fifth Amendment, and the Sixth Amendment. For example, Article III requires a jury trial for all crimes, except in cases of impeachment; the Sixth Amendment, by contrast, repeats the requirement of a jury trial in all criminal prosecutions, but has no impeachment exception. Article III requires that trial take place in the state where the crime was committed, unless the crime was not committed in any state, in which case Congress can direct the place of trial; the Sixth Amendment requires a jury of the state and district where the crime was committed, but makes no provision for crimes that do not occur in any state. The Fifth Amendment’s grand jury requirement has an exception for military cases; the Sixth Amendment’s jury trial requirement does not. Under our Sher- manesque constitution, the courts have been left to puzzle out these problems. If Madison’s approach had prevailed, these problems would likely have been avoided by clear textual statements in Article III. The received wisdom is that “Americans owe to Sherman, who was actually an opponent of amending the Constitution, the existence of a separate group of Amendments known as the Bill of Rights.” Herbert Storing, for example, wrote: Ironically, the result seems to have been exactly the opposite of what Sherman intended, and yet to have gone beyond what Madison wanted. Separate listing of the first ten amendments has elevated rather than weakened their status.

Similarly, Bernard Schwartz has argued that the change from Madison’s approach to Sher- man’s approach “was of the greatest consequence, for it may be doubted that the Bill of Rights itself could have attained its position as the vital center of our constitutional law if its provisions were diluted throughout the Constitution,” and that “paradoxically, it is to Sherman (himself a consistent opponent of a Bill of Rights) that we owe the fact that we have a separate Bill of Rights.” Madison’s proposal, however, would not have produced less significant “scattered protections of individual rights.” It would have, instead, produced a better bill of rights. Consider, first, that the bulk of what we now consider the bill of rights would have appeared immediately after the protection of the Great Writ of habeas corpus and immediately before the prohibition on bills of attainder and ex post facto laws. These constitutional provisions surely belong on a bill of rights - and would have been a part of a Madisonian bill of rights - but are not on our Shermanesque bill of rights. Indeed, ““Federal Farmer,’ the most influential Antifederal pamphleteer, asserted that the Constitution’s ninth and tenth sections of Article I “are no more nor less, than a partial bill of rights.’“ Consider, too, what would not be contained in the Madisonian bill of rights in Article I, section 9, but instead would have been left to Article III: grand jury indictment and jury trial in civil cases. These rights have not been considered sufficiently fundamental to the American scheme of justice by the Supreme Court of the United States to be included in “due process of law.” It is true that jury trial in criminal cases would not have been included in Madison’s bill of rights in Article I, section 9. However, Madison thought this right so basic that he wanted to include it (along with “equal rights of conscience” and “freedom of the press”) in Article I, section 10, as a right to be protected from state infringement as well as federal infringement. On the other hand, while the Supreme Court has concluded that the right to jury trial in criminal cases is fundamental, it is far from clear that this determination by the Court has strengthened rather than weakened the nature of that right. In addition, the Tenth Amendment would not have been in the Madisonian bill of rights in Article I, section 9, but instead would have stood on its own as a separate article. With the Ninth Amendment in the bill of rights and the Tenth Amendment as a separate article of the constitution, it would have been harder to forget that there are unenumerated rights and much harder to “treat the ninth amendment as a colossally bad first draft of the tenth.” There is, concededly, one embarrassing drawback to a Madisonian bill of rights in Article I, section 9: Immediately prior to that bill of rights - or perhaps (sadly) the first such right - is the protection of the slave trade until 1808. But as we shall see shortly, even this drawback can be turned to advantage. Madison’s approach to constitutional amendment has the redeeming virtue of permitting the elimination of such noxious provisions. . . . THE THIRTEENTH AMENDMENT: ELIMINATING EVIL PROVISIONS The Thirteenth Amendment abolished slavery. If it were integrated into the body of the Con- stitution, it would fit comfortably in the Madisonian bill of rights in Article I, section 9. Indeed, since the Thirteenth Amendment renders irrelevant the limitation on Congressional power over the slave trade contained at the beginning of Article I, section 9, the language abolishing slavery can take the place of that evil provision. The result is that what earlier looked like an embarrassing way to begin a bill of rights would be eliminated, and the most basic right - the right to be free from enslavement - would take its place, joining such rights as habeas corpus, free speech, free

exercise of religion, protection against unreasonable searches and seizures, and the prohibition on bills of attainder. Under Madison’s approach to amendments, the limitation on the amendment power to protect the slave trade, as well as the hated fugitive slave clause of Article IV, section 2, would likewise be removed from the Constitution. Madison’s approach to constitutional amendment would also have made it less likely that the framers of the Thirteenth Amendment would have overlooked that the abrogation of slavery, by permitting freed slaves to be counted for allocating seats in Congress and the Electoral College, increased the danger of southern dominance of the national government. “This oversight vastly complicated the already difficult task of Reconstruction.” Incorporating section 2 of the Thirteenth Amendment into the body of the constitution would require an addition to Article I, section 8, which gives Congress the 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 Depart- ment or Officer thereof.” The addition would be a rather straightforward phrase at the end of the sentence: “and to enforce the limitations and obligations imposed by this Constitution.” This addition would simply state explicitly what the Supreme Court had already held to be implicit in the constitution in Prigg v. Pennsylvania, where the Court held that if “the Constitution guarantees the right... the natural inference certainly is, that the national government is clothed with the appropriate authority and functions to enforce it.” The delicious irony is that the right involved in Prigg was the right of a slave owner to the return of his property under the fugitive slave clause. . . . THE SIXTEENTH AMENDMENT: LOOSENING A RESTRAINT ON CONGRESS Article I, section 9 prohibited Congress from imposing a direct tax, except in proportion to the population of each state, creating serious impediments to a national income tax. Moreover, Article V prohibited an amendment of this provision prior to 1808. As noted earlier, these provisions were included in the original constitution to provide cover for the three-fifths ruleof representation, and might have been eliminated by the Reconstruction Congress under a Madisonian approach to constitutional amendment. Under our Shermanesque constitution, however, this did not occur. In order to permit a national income tax, the Sixteenth Amendment was enacted in 1913. Even if these provisions had survived Reconstruction, a Madisonian would not put pages of text between a provision placing a restraint on Congress and another provision loosening that restraint. Instead, the Sixteenth Amendment would be placed in Article I, section 9, as a modification of the restraint on Congressional powers that was being loosened. In addition, under Madison’s approach to constitutional amendment, the expired restriction on amending this provision would have been deleted. . . . THE EIGHTEENTH AND TWENTY-FIRST AMENDMENTS: AVOIDING THE CLUTTER OF ENACT- MENT AND REPEAL The Eighteenth Amendment prohibited intoxicating liquor; the Twenty-First Amendment repealed the Eighteenth Amendment. While thankfully this is the only such event in our history, it could have happened more frequently, and might still. Madison’s approach to constitutional amendment would avoid cluttering the Constitution with amendments and their repeals. Instead, upon repeal, the earlier amendment would simply be stricken out. The Twenty-First Amendment, however, did one thing in addition to repealing the Eighteenth Amendment. It prohibited bringing intoxicating liquor into a state for delivery or use in violation

of the laws of that state. This short provision is the only part of these two amendments that would appear in a Madisonian constitution. As Laurence Tribe has pointed out, the Twenty-First Amendment “actually forbids the private conduct it identifies, rather than conferring power on the States as such” to forbid that conduct. This feature makes placement of the provision in a Madisonian constitution a bit unclear, because our Constitution does not have a section devoted to imposing restrictions on individuals. The only other such constitutional provision is the Thirteenth Amendment’s ban on slavery, but a ban on bringing alcohol into a state hardly seems to belong alongside the abolition of slavery. The better place for this short provision from the Twenty-First Amendment is in Article IV, section 2, along with the other constitutional provisions dealing with those who cross from the border from one state to another. THE TWENTY-SEVENTH AMENDMENT: FULL CIRCLE TO MADISON The Twenty-Seventh Amendment, which prevents Congress from taking advantage of a raise that it gives itself without standing before the people in an intervening election, brings us full circle back to James Madison. For this amendment was one of the original amendments proposed by Madison, approved by Congress, but not ratified by the requisite number of states until 1992. It is easy to decide where it would be inserted into the constitution under Madison’s approach, because Madison himself proposed that it be inserted at “the end of the first sentence” in “Article I[], section 6, clause 1.” III. A UNIFORM AND ENTIRE CONSTITUTION What follows is what our Constitution would look like if Madison’s approach to constitutional amendments had prevailed in the first Congress. For ease in finding additions to the original text, the additions are highlighted; for ease in reading, the deletions are not indicated. The result, I believe, is as Madison predicted, “uniform and entire,” and “certainly... more simple.” It is true that such a uniform and entire Constitution lacks the “archeological feel,” caused by “different historical layers of text.” As a result, the scars of history are less immediately visible. But a constitution is not written for historians or archeologists. It is written as a frame of government for the people of today. As Judge Gibbons has explained: But who elected the Founders? The answer to that question is plain: we did, if anyone did, and each prior generation has before us, and if the Constitution is to remain a form of higher law, each succeeding generation must do so again - for no one else can. Because “the status of the Constitution as law depends upon the political will of a present political community,” it should be understandable, not only by the priestly class of lawyers and judges, but by the people - today’s people - in whose name it is made. The Constitution “was not supposed to be a prolix code. It had been made, and could be unmade at will, by We the People of the United States.” Indeed, if Madison had prevailed, perhaps we would have been less likely to have “lost the powerful and prevailing sense of 200 years ago that the Constitution was the people’s law.” Such popular understanding is particularly important for a bill of rights, considering that for Madison, “The true benefits of a bill of rights were to be found in the realm of public opinion... As greater popular respect for individual and minority rights developed over time... the greater benefit would occur if acceptance of the principles encoded in rights acted to restrain political behavior, tempering improper popular desires before they took the form of unjust legislation.”

There is, finally, an elegant symmetry to such a Madisonian constitution: It begins with a statement that it is made by “we the people,” and ends with a recognition of the reserved powers of “the people.” MADISON’S “UNIFORM AND ENTIRE” CONSTITUTION e the People of the United States, in Order to form a more perfect Union, establish W Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. Article I Section 1. 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. Section 2. The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature. 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. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. The actual Enumeration shall be made within every Term of ten Years, in such Manner as Congress shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty- one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies. The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment. Section 3. The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures. When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen. The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided. The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States. The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. Section 4. The Times, Places and Manner of holding Elections for Senators and Representa- tives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations. The terms of Senators and Representatives shall end at noon on the 3d day of January and the terms of their successors shall then begin. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day. Section 5. Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide. 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. Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal. Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting. Section 6. The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. But no law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened. The members shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office. Section 7. All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills. Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Re- consideration two thirds ofthat House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the Pres- ident within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law. Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Rep- resentatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Represent- atives, according to the Rules and Limitations prescribed in the Case of a Bill. Section 8. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; To borrow Money on the credit of the United States; To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankrupt- cies throughout the United States; To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures; To provide for the Punishment of counterfeiting the Securities and current Coin of the United States; To establish Post Offices and post Roads; To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erec- tion of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; - And 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, and to enforce the limitations and obligations imposed by this Constitution. Section 9. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. No person shall be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. No Bill of Attainder or ex post facto Law shall be passed. No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumer- ation herein before directed to be taken, but the Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration. No Tax or Duty shall be laid on Articles exported from any State. No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another. No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time. No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State. Section 10. 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. 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 the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Im ports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Con- troul of the Congress.

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. Article II Section 1. The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows: Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct a number of electors of President and Vice Presi- dent equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District to perform their duties. The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States. The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; - The President of the Senate shall, in the presence of the Senate and House of Representatives,open all the certificates and the votes shall then be counted; - The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. - The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two- thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them. No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States. No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the Presi- dent more than once. The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of their successors shall then begin. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Con- gress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President. Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress

may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Con- gress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting Presi- dent; otherwise, the President shall resume the powers and duties of his office. Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected. The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them. Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: - “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” Section 2. 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; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment. He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Con- suls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. Section 3. He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Section 4. The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. Article III Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. 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, where the State is plaintiff; - 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, except where a State is sued by a citizen or subject of any foreign state. 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. The trial of all crimes, except in cases of impeachments, and cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger, shall be by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; provided that when the crime is not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reex- amined in any Court of the United States, than according to the rules of the common law. Section 3. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person at- tainted.

Article IV Section 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. Section 2. 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. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. A person charged in any State with Treason, Felony, or other Crime, who shall flee from Jus- tice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited. Section 3. New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress. The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Con- stitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State. Section 4. The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legis- lature, or of the Executive (when the Legislature cannot be convened) against domestic Violence. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on accountof sex. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age. Article V The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, 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; Provided that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. Article VI All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void. 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. The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. Article VII 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.

76 Reference re Secession of Quebec, [1998] 2 S.C.R. 217 [Supreme Court (Canada)] Present: Lamer C.J. and L’Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastar- ache and Binnie JJ. Reference by governor in council THE COURT -- I. Introduction [TRANSLATION] [e]ither this constitutional 1. This Reference requires us to consider mo- power [to give the highest court in the fed- mentous questions that go to the heart of our eration jurisdiction to give advisory opin- system of constitutional government. . . . In ions] is expressly provided for by the Con- our view, it is not possible to answer the ques- stitution, as is the case in India (Constitu- tions that have been put to us without a consid- tion of India, art. 143), or it is not provided eration of a number of underlying principles. for therein and so it simply does not exist. An exploration of the meaning and nature of This is what the Supreme Court of the these underlying principles is not merely of ac- United States has held. . . . ademic interest. On the contrary, such an ex- 13. However, the U.S. Supreme Court did not ploration is of immense practical utility. Only conclude that it was unable to render advisory once those underlying principles have been ex- opinions because no such express power was amined and delineated may a considered re- included in the United States Constitution. sponse to the questions we are required to an- Quite the contrary, it based this conclusion on swer emerge. the express limitation in art. III, § 2 restricting 2. The [first] question[] posed by the Gover- federal court jurisdiction to actual “cases” or nor in Council by way of Order in Council P.C. “controversies”. . . . This section reflects the 1996-1497, dated September 30, 1996, read[s] strict separation of powers in the American fed- as follows: eral constitutional arrangement. Where the “case or controversy” limitation is missing 1. Under the Constitution of Canada, can from their respective state constitutions, some the National Assembly, legislature or gov- American state courts do undertake advisory ernment of Quebec effect the secession of functions (e.g., in at least two states -- Alabama Quebec from Canada unilaterally? . . . and Delaware -- advisory opinions are author- 3. Before turning to Question 1, as a prelimi- ized, in certain circumstances, by statute: see nary matter, it is necessary to deal with the is- Ala. Code 1975 § 12-2-10; Del. Code Ann. tit. sues raised with regard to this Court's reference 10, § 141 (1996 Supp.)). jurisdiction. 14. In addition, the judicial systems in several II. The Preliminary Objections to the European countries (such as Germany, France, Court's Reference Jurisdiction Italy, Spain, Portugal and Belgium) include 4. The amicus curiae argued that s. 101 of the courts dedicated to the review of constitutional Constitution Act, 1867 does not give Parlia- claims; these tribunals do not require a concrete ment the authority to grant this Court the juris- dispute involving individual rights to examine diction provided for in s. 53 of the Supreme the constitutionality of a new law -- an “ab- Court Act, R.S.C., 1985, c. S-26. . . . stract or objective question” is sufficient. . . . The European Court of Justice, the European 8. . . . Section 53 . . . imposes a duty on the Court of Human Rights, and the Inter-Ameri- Court to render advisory opinions. Section 53 can Court of Human Rights also all enjoy ex- is therefore constitutionally valid only if . . . a plicit grants of jurisdiction to render advisory “general court of appeal” may properly under- opinions. . . . There is no plausible basis on take other legal functions, such as the rendering which to conclude that a court is, by its nature, of advisory opinions. . . . inherently precluded from undertaking another 12. The amicus curiae submits that legal function in tandem with its judicial duties.

77 15. Moreover, the Canadian Constitution does contain a comprehensive set of rules and prin- not insist on a strict separation of powers. Par- ciples which are capable of providing an ex- liament and the provincial legislatures may haustive legal framework for our system of properly confer other legal functions on the government. Such principles and rules emerge courts, and may confer certain judicial func- from an understanding of the constitutional text tions on bodies that are not courts. The excep- itself, the historical context, and previous judi- tion to this rule relates only to s. 96 courts. cial interpretations of constitutional meaning. Thus, even though the rendering of advisory In our view, there are four fundamental and or- opinions is quite clearly done outside the ganizing principles of the Constitution which framework of adversarial litigation, and such are relevant to addressing the question before opinions are traditionally obtained by the exec- us (although this enumeration is by no means utive from the law officers of the Crown, there exhaustive): federalism; democracy; constitu- is no constitutional bar to this Court's receipt of tionalism and the rule of law; and respect for jurisdiction to undertake such an advisory role. minorities. The foundation and substance of The legislative grant of reference jurisdiction these principles are addressed in the following found in s. 53 of the Supreme Court Act is paragraphs. We will then turn to their specific therefore constitutionally valid. . . . application to the first reference question be- III. Reference Questions fore us. . . . A. Question 1 48. We think it apparent from even this brief historical review that the evolution of our con- Under the Constitution of Canada, can stitutional arrangements has been characterized the National Assembly, legislature or by adherence to the rule of law, respect for government of Quebec effect the seces- democratic institutions, the accommodation of sion of Quebec from Canada unilater- minorities, insistence that governments adhere ally? to constitutional conduct and a desire for conti- (1) Introduction nuity and stability. We now turn to a discus- 32. As we confirmed in Reference re Objection sion of the general constitutional principles that by Quebec to a Resolution to amend the Con- bear on the present Reference. stitution, [1982] 2 S.C.R. 793, at p. 806, “The (3) Analysis of the Constitutional Princi- Constitution Act, 1982 is now in force. Its le- ples gality is neither challenged nor assailable.” (a) Nature of the Principles The “Constitution of Canada” certainly includes the constitutional texts enumerated in s. 49. What are those underlying principles? Our 52(2) of the Constitution Act, 1982. Although Constitution is primarily a written one, the these texts have a primary place in determining product of 131 years of evolution. Behind the constitutional rules, they are not exhaustive. written word is an historical lineage stretching The Constitution also “embraces unwritten, as back through the ages, which aids in the con- well as written rules”. . . . Finally, the Consti- sideration of the underlying constitutional prin- tution of Canada includes the global system of ciples. These principles inform and sustain the rules and principles which govern the exercise constitutional text: they are the vital unstated of constitutional authority in the whole and in assumptions upon which the text is based. The every part of the Canadian state. following discussion addresses the four foun- dational constitutional principles that are most These supporting principles and rules, germane for resolution of this Reference: fed- which include constitutional conventions and eralism, democracy, constitutionalism and the the workings of Parliament, are a necessary rule of law, and respect for minority rights. part of our Constitution because problems or These defining principles function in symbio- situations may arise which are not expressly sis. No single principle can be defined in iso- dealt with by the text of the Constitution. In lation from the others, nor does any one princi- order to endure over time, a constitution must ple trump or exclude the operation of any other. . . . 77

78 (b) Federalism 61. Democracy is a fundamental value in our 55. It is undisputed that Canada is a federal constitutional law and political culture. While state. . . . it has both an institutional and an individual aspect, the democratic principle was also argued 58. The principle of federalism recognizes the before us in the sense of the supremacy of the diversity of the component parts of Confedera- sovereign will of a people, in this case poten- tion, and the autonomy of provincial govern- tially to be expressed by Quebecers in support ments to develop their societies within their re- of unilateral secession. It is useful to explore spective spheres of jurisdiction. The federal in a summary way these different aspects of the structure of our country also facilitates demo- democratic principle. cratic participation by distributing power to the government thought to be most suited to 62. The principle of democracy has always in- achieving the particular societal objective hav- formed the design of our constitutional struc- ing regard to this diversity. The scheme of the ture, and continues to act as an essential inter- Constitution Act, 1867, it was said in Re the In- pretive consideration to this day. A majority of itiative and Referendum Act, [1919] A.C. 935 this Court in OPSEU v. Ontario, supra, at p. 57, (P.C.), at p. 942, was “not to weld the Provinces confirmed that “the basic structure of our Con- into one, nor to subordinate Provincial Govern- stitution, as established by the Constitution Act, ments to a central authority, but to establish a 1867, contemplates the existence of certain po- central government in which these Provinces litical institutions, including freely elected leg- should be represented, entrusted with exclusive islative bodies at the federal and provincial lev- authority only in affairs in which they had a els”. As is apparent from an earlier line of de- common interest. Subject to this each Province cisions emanating from this Court, . . . the de- was to retain its independence and autonomy mocracy principle can best be understood as a and to be directly under the Crown as its sort of baseline against which the framers of head.” . . . our Constitution, and subsequently, our elected representatives under it, have always operated. The principle of federalism facilitates the It is perhaps for this reason that the principle pursuit of collective goals by cultural and lin- was not explicitly identified in the text of the guistic minorities which form the majority Constitution Act, 1867 itself. To have done so within a particular province. This is the case in might have appeared redundant, even silly, to Quebec, where the majority of the population the framers. As explained in the Provincial is French-speaking, and which possesses a dis- Judges Reference, it is evident that our Consti- tinct culture. This is not merely the result of tution contemplates that Canada shall be a con- chance. The social and demographic reality of stitutional democracy. Yet this merely demon- Quebec explains the existence of the province strates the importance of underlying constitu- of Quebec as a political unit and indeed, was tional principles that are nowhere explicitly de- one of the essential reasons for establishing a scribed in our constitutional texts. The repre- federal structure for the Canadian union in sentative and democratic nature of our political 1867. The experience of both Canada East and institutions was simply assumed. Canada West under the Union Act, 1840 (U.K.), 3-4 Vict., c. 35, had not been satisfac- 63. Democracy is commonly understood as be- tory. The federal structure adopted at Confed- ing a political system of majority rule. It is es- eration enabled French-speaking Canadians to sential to be clear what this means. The evolu- form a numerical majority in the province of tion of our democratic tradition can be traced Quebec, and so exercise the considerable pro- back to the Magna Carta (1215) and before, vincial powers conferred by the Constitution through the long struggle for Parliamentary su- Act, 1867 in such a way as to promote their lan- premacy which culminated in the English Bill guage and culture. It also made provision for of Rights of 1689, the emergence of representa- certain guaranteed representation within the tive political institutions in the colonial era, the federal Parliament itself. . . . development of responsible government in the 19th century, and eventually, the achievement (c) Democracy 78

79 of Confederation itself in 1867. “[T]he Cana- Historically, this Court has interpreted democ- dian tradition”, the majority of this Court held racy to mean the process of representative and in Reference re Provincial Electoral Bounda- responsible government and the right of citi- ries (Sask.), [1991] 2 S.C.R. 158, at p. 186, is zens to participate in the political process as “one of evolutionary democracy moving in un- voters. In addition, the effect of s. 4 of the even steps toward the goal of universal suffrage Charter is to oblige the House of Commons and more effective representation”. Since Con- and the provincial legislatures to hold regular federation, efforts to extend the franchise to elections and to permit citizens to elect repre- those unjustly excluded from participation in sentatives to their political institutions. The our political system — such as women, minor- democratic principle is affirmed with particular ities, and aboriginal peoples — have continued, clarity in that s. 4 is not subject to the notwith- with some success, to the present day. standing power contained in s. 33. 64. Democracy is not simply concerned with 66. It is, of course, true that democracy ex- the process of government. On the contrary, as presses the sovereign will of the people. Yet suggested in Switzman v. Elbling, supra, at p. this expression, too, must be taken in the con- 306, democracy is fundamentally connected to text of the other institutional values we have substantive goals, most importantly, the pro- identified as pertinent to this Reference. The motion of self-government. Democracy ac- relationship between democracy and federal- commodates cultural and group identities: Ref- ism means, for example, that in Canada there erence re Provincial Electoral Boundaries, at may be different and equally legitimate major- p. 188. Put another way, a sovereign people ities in different provinces and territories and at exercises its right to self-government through the federal level. No one majority is more or the democratic process. In considering the less “legitimate” than the others as an expres- scope and purpose of the Charter, the Court in sion of democratic opinion, although, of R. v. Oakes, [1986] 1 S.C.R. 103, articulated course, the consequences will vary with the some of the values inherent in the notion of de- subject matter. A federal system of govern- mocracy (at p. 136): ment enables different provinces to pursue pol- The Court must be guided by the values and icies responsive to the particular concerns and principles essential to a free and democratic interests of people in that province. At the society which I believe to embody, to name same time, Canada as a whole is also a demo- but a few, respect for the inherent dignity of cratic community in which citizens construct the human person, commitment to social and achieve goals on a national scale through a justice and equality, accommodation of a federal government acting within the limits of wide variety of beliefs, respect for cultural its jurisdiction. The function of federalism is and group identity, and faith in social and to enable citizens to participate concurrently in political institutions which enhance the par- different collectivities and to pursue goals at ticipation of individuals and groups in soci- both a provincial and a federal level. ety. 67. The consent of the governed is a value that 65. In institutional terms, democracy means is basic to our understanding of a free and dem- that each of the provincial legislatures and the ocratic society. Yet democracy in any real federal Parliament is elected by popular fran- sense of the word cannot exist without the rule chise. These legislatures, we have said, are “at of law. It is the law that creates the framework the core of the system of representative govern- within which the “sovereign will” is to be as- ment”: New Brunswick Broadcasting, supra, at certained and implemented. To be accorded le- p. 387. In individual terms, the right to vote in gitimacy, democratic institutions must rest, ul- elections to the House of Commons and the timately, on a legal foundation. That is, they provincial legislatures, and to be candidates in must allow for the participation of, and ac- those elections, is guaranteed to “Every citizen countability to, the people, through public in- of Canada” by virtue of s. 3 of the Charter. stitutions created under the Constitution.

80 Equally, however, a system of government can- law vouchsafes to the citizens and residents of not survive through adherence to the law alone. the country a stable, predictable and ordered A political system must also possess legiti- society in which to conduct their affairs. It pro- macy, and in our political culture, that requires vides a shield for individuals from arbitrary an interaction between the rule of law and the state action. democratic principle. The system must be ca- 72. The constitutionalism principle bears con- pable of reflecting the aspirations of the people. siderable similarity to the rule of law, although But there is more. Our law's claim to legiti- they are not identical. The essence of constitu- macy also rests on an appeal to moral values, tionalism in Canada is embodied in s. 52(1) of many of which are imbedded in our constitu- the Constitution Act, 1982, which provides that tional structure. It would be a grave mistake to “[t]he Constitution of Canada is the supreme equate legitimacy with the “sovereign will” or law of Canada, and any law that is inconsistent majority rule alone, to the exclusion of other with the provisions of the Constitution is, to the constitutional values. extent of the inconsistency, of no force or ef- 68. Finally, we highlight that a functioning de- fect.” Simply put, the constitutionalism princi- mocracy requires a continuous process of dis- ple requires that all government action comply cussion. The Constitution mandates govern- with the Constitution. The rule of law principle ment by democratic legislatures, and an execu- requires that all government action must com- tive accountable to them, “resting ultimately on ply with the law, including the Constitution. . . . public opinion reached by discussion and the 73. An understanding of the scope and im- interplay of ideas” (Saumur v. City of Quebec, portance of the principles of the rule of law and supra, at p. 330). At both the federal and pro- constitutionalism is aided by acknowledging vincial level, by its very nature, the need to explicitly why a constitution is entrenched be- build majorities necessitates compromise, ne- yond the reach of simple majority rule. There gotiation, and deliberation. No one has a mo- are three overlapping reasons. nopoly on truth, and our system is predicated on the faith that in the marketplace of ideas, the 74. First, a constitution may provide an added best solutions to public problems will rise to the safeguard for fundamental human rights and in- top. Inevitably, there will be dissenting voices. dividual freedoms which might otherwise be A democratic system of government is commit- susceptible to government interference. Alt- ted to considering those dissenting voices, and hough democratic government is generally so- seeking to acknowledge and address those licitous of those rights, there are occasions voices in the laws by which all in the commu- when the majority will be tempted to ignore nity must live. fundamental rights in order to accomplish collective goals more easily or effectively. Con- 69. The Constitution Act, 1982 gives expres- stitutional entrenchment ensures that those sion to this principle, by conferring a right to rights will be given due regard and protection. initiate constitutional change on each partici- Second, a constitution may seek to ensure that pant in Confederation. In our view, the exist- vulnerable minority groups are endowed with ence of this right imposes a corresponding duty the institutions and rights necessary to maintain on the participants in Confederation to engage and promote their identities against the assimi- in constitutional discussions in order to lative pressures of the majority. And third, a acknowledge and address democratic expres- constitution may provide for a division of po- sions of a desire for change in other provinces. litical power that allocates political power This duty is inherent in the democratic princi- amongst different levels of government. That ple which is a fundamental predicate of our sys- purpose would be defeated if one of those dem- tem of governance. ocratically elected levels of government could (d) Constitutionalism and the Rule of Law usurp the powers of the other simply by exer- 70. The principles of constitutionalism and the cising its legislative power to allocate addi- rule of law lie at the root of our system of gov- tional political power to itself unilaterally. ernment. . . . At its most basic level, the rule of 80

81 75. The argument that the Constitution may be Constitution ensures that minority interests legitimately circumvented by resort to a major- must be addressed before proposed changes ity vote in a province-wide referendum is su- which would affect them may be enacted. perficially persuasive, in large measure be- 78. It might be objected, then, that constitution- cause it seems to appeal to some of the same alism is therefore incompatible with demo- principles that underlie the legitimacy of the cratic government. This would be an erroneous Constitution itself, namely, democracy and view. Constitutionalism facilitates — indeed, self-government. In short, it is suggested that makes possible — a democratic political sys- as the notion of popular sovereignty underlies tem by creating an orderly framework within the legitimacy of our existing constitutional ar- which people may make political decisions. rangements, so the same popular sovereignty Viewed correctly, constitutionalism and the that originally led to the present Constitution rule of law are not in conflict with democracy; must (it is argued) also permit “the people” in rather, they are essential to it. Without that re- their exercise of popular sovereignty to secede lationship, the political will upon which demo- by majority vote alone. However, closer anal- cratic decisions are taken would itself be under- ysis reveals that this argument is unsound, be- mined. cause it misunderstands the meaning of popular sovereignty and the essence of a constitutional (e) Protection of Minorities democracy. 79. The fourth underlying constitutional princi- 76. Canadians have never accepted that ours is ple we address here concerns the protection of a system of simple majority rule. Our principle minorities. There are a number of specific con- of democracy, taken in conjunction with the stitutional provisions protecting minority lan- other constitutional principles discussed here, guage, religion and education rights. . . . In the is richer. Constitutional government is neces- absence of such protection, it was felt that the sarily predicated on the idea that the political minorities in what was then Canada East and representatives of the people of a province have Canada West would be submerged and assimi- the capacity and the power to commit the prov- lated. . . . ince to be bound into the future by the consti- 80. However, we highlight that even though tutional rules being adopted. These rules are those provisions were the product of negotia- “binding” not in the sense of frustrating the will tion and political compromise, that does not of a majority of a province, but as defining the render them unprincipled. Rather, such a con- majority which must be consulted in order to cern reflects a broader principle related to the alter the fundamental balances of political protection of minority rights. Undoubtedly, the power (including the spheres of autonomy three other constitutional principles inform the guaranteed by the principle of federalism), in- scope and operation of the specific provisions dividual rights, and minority rights in our soci- that protect the rights of minorities. . . . ety. Of course, those constitutional rules are 81. The concern of our courts and governments themselves amenable to amendment, but only to protect minorities has been prominent in re- through a process of negotiation which ensures cent years, particularly following the enact- that there is an opportunity for the constitution- ment of the Charter. Undoubtedly, one of the ally defined rights of all the parties to be re- key considerations motivating the enactment of spected and reconciled. the Charter, and the process of constitutional 77. In this way, our belief in democracy may be judicial review that it entails, is the protection harmonized with our belief in constitutional- of minorities. However, it should not be for- ism. Constitutional amendment often requires gotten that the protection of minority rights had some form of substantial consensus precisely a long history before the enactment of the because the content of the underlying princi- Charter. Indeed, the protection of minority ples of our Constitution demand it. By requir- rights was clearly an essential consideration in ing broad support in the form of an “enhanced the design of our constitutional structure even majority” to achieve constitutional change, the 81

82 at the time of Confederation: Although Cana- that they would purport to have a significance da's record of upholding the rights of minorities with respect to international law, does not ne- is not a spotless one, that goal is one towards gate their nature as amendments to the Consti- which Canadians have been striving since Con- tution of Canada. federation, and the process has not been with- 85. The Constitution is the expression of the out successes. The principle of protecting mi- sovereignty of the people of Canada. It lies nority rights continues to exercise influence in within the power of the people of Canada, act- the operation and interpretation of our Consti- ing through their various governments duly tution. . . . elected and recognized under the Constitution, (4) The Operation of the Constitutional to effect whatever constitutional arrangements Principles in the Secession Context are desired within Canadian territory, includ- 83. Secession is the effort of a group or section ing, should it be so desired, the secession of of a state to withdraw itself from the political Quebec from Canada. As this Court held in the and constitutional authority of that state, with a Manitoba Language Rights Reference, supra, view to achieving statehood for a new territo- at p. 745, “[t]he Constitution of a country is a rial unit on the international plane. In a federal statement of the will of the people to be gov- state, secession typically takes the form of a ter- erned in accordance with certain principles ritorial unit seeking to withdraw from the fed- held as fundamental and certain prescriptions eration. Secession is a legal act as much as a restrictive of the powers of the legislature and political one. By the terms of Question 1 of this government”. The manner in which such a po- Reference, we are asked to rule on the legality litical will could be formed and mobilized is a of unilateral secession “[u]nder the Constitu- somewhat speculative exercise, though we are tion of Canada”. This is an appropriate ques- asked to assume the existence of such a politi- tion, as the legality of unilateral secession must cal will for the purpose of answering the ques- be evaluated, at least in the first instance, from tion before us. By the terms of this Reference, the perspective of the domestic legal order of we have been asked to consider whether it the state from which the unit seeks to withdraw. would be constitutional in such a circumstance As we shall see below, it is also argued that in- for the National Assembly, legislature or gov- ternational law is a relevant standard by which ernment of Quebec to effect the secession of the legality of a purported act of secession may Quebec from Canada unilaterally. be measured. 86. The “unilateral” nature of the act is of car- 84. The secession of a province from Canada dinal importance and we must be clear as to must be considered, in legal terms, to require what is understood by this term. In one sense, an amendment to the Constitution, which per- any step towards a constitutional amendment force requires negotiation. The amendments initiated by a single actor on the constitutional necessary to achieve a secession could be radi- stage is “unilateral”. We do not believe that cal and extensive. Some commentators have this is the meaning contemplated by Question suggested that secession could be a change of 1, nor is this the sense in which the term has such a magnitude that it could not be consid- been used in argument before us. Rather, what ered to be merely an amendment to the Consti- is claimed by a right to secede “unilaterally” is tution. We are not persuaded by this conten- the right to effectuate secession without prior tion. It is of course true that the Constitution is negotiations with the other provinces and the silent as to the ability of a province to secede federal government. At issue is not the legality from Confederation but, although the Constitu- of the first step but the legality of the final act tion neither expressly authorizes nor prohibits of purported unilateral secession. The sup- secession, an act of secession would purport to posed juridical basis for such an act is said to alter the governance of Canadian territory in a be a clear expression of democratic will in a manner which undoubtedly is inconsistent with referendum in the province of Quebec. This our current constitutional arrangements. The claim requires us to examine the possible jurid- fact that those changes would be profound, or ical impact, if any, of such a referendum on the 82

83 functioning of our Constitution, and on the eration to seek an amendment to the Constitu- claimed legality of a unilateral act of secession. tion is an obligation on all parties to come to 87. Although the Constitution does not itself the negotiating table. The clear repudiation by address the use of a referendum procedure, and the people of Quebec of the existing constitu- the results of a referendum have no direct role tional order would confer legitimacy on de- or legal effect in our constitutional scheme, a mands for secession, and place an obligation on referendum undoubtedly may provide a demo- the other provinces and the federal government cratic method of ascertaining the views of the to acknowledge and respect that expression of electorate on important political questions on a democratic will by entering into negotiations particular occasion. The democratic principle and conducting them in accordance with the identified above would demand that considera- underlying constitutional principles already ble weight be given to a clear expression by the discussed. people of Quebec of their will to secede from 89. What is the content of this obligation to ne- Canada, even though a referendum, in itself and gotiate? . . . without more, has no direct legal effect, and 95. Refusal of a party to conduct negotiations could not in itself bring about unilateral seces- in a manner consistent with constitutional prin- sion. Our political institutions are premised on ciples and values would seriously put at risk the the democratic principle, and so an expression legitimacy of that party's assertion of its rights, of the democratic will of the people of a prov- and perhaps the negotiation process as a whole. ince carries weight, in that it would confer le- Those who quite legitimately insist upon the gitimacy on the efforts of the government of importance of upholding the rule of law cannot Quebec to initiate the Constitution's amend- at the same time be oblivious to the need to act ment process in order to secede by constitu- in conformity with constitutional principles tional means. In this context, we refer to a and values, and so do their part to contribute to “clear” majority as a qualitative evaluation. the maintenance and promotion of an environ- The referendum result, if it is to be taken as an ment in which the rule of law may flourish. expression of the democratic will, must be free of ambiguity both in terms of the question 96. No one can predict the course that such ne- asked and in terms of the support it achieves. gotiations might take. The possibility that they might not lead to an agreement amongst the 88. The federalism principle, in conjunction parties must be recognized. Negotiations fol- with the democratic principle, dictates that the lowing a referendum vote in favour of seeking clear repudiation of the existing constitutional secession would inevitably address a wide order and the clear expression of the desire to range of issues, many of great import. After pursue secession by the population of a prov- 131 years of Confederation, there exists, inevi- ince would give rise to a reciprocal obligation tably, a high level of integration in economic, on all parties to Confederation to negotiate con- political and social institutions across Canada. stitutional changes to respond to that desire. The vision of those who brought about Confed- The amendment of the Constitution begins with eration was to create a unified country, not a a political process undertaken pursuant to the loose alliance of autonomous provinces. Ac- Constitution itself. In Canada, the initiative for cordingly, while there are regional economic constitutional amendment is the responsibility interests, which sometimes coincide with proof democratically elected representatives of the vincial boundaries, there are also national inter- participants in Confederation. Those repre- ests and enterprises (both public and private) sentatives may, of course, take their cue from a that would face potential dismemberment. referendum, but in legal terms, constitution- There is a national economy and a national making in Canada, as in many countries, is un- debt. Arguments were raised before us regard- dertaken by the democratically elected repre- ing boundary issues. There are linguistic and sentatives of the people. The corollary of a le- cultural minorities, including aboriginal peo- gitimate attempt by one participant in Confed- ples, unevenly distributed across the country who look to the Constitution of Canada for the 83

84 protection of their rights. Of course, secession the questions are political in nature, it is not the would give rise to many issues of great com- role of the judiciary to interpose its own views plexity and difficulty. These would have to be on the different negotiating positions of the resolved within the overall framework of the parties, even were it invited to do so. Rather, it rule of law, thereby assuring Canadians resi- is the obligation of the elected representatives dent in Quebec and elsewhere a measure of sta- to give concrete form to the discharge of their bility in what would likely be a period of con- constitutional obligations which only they and siderable upheaval and uncertainty. Nobody their electors can ultimately assess. The recon- seriously suggests that our national existence, ciliation of the various legitimate constitutional seamless in so many aspects, could be effort- interests outlined above is necessarily commit- lessly separated along what are now the provin- ted to the political rather than the judicial cial boundaries of Quebec. As the Attorney realm, precisely because that reconciliation General of Saskatchewan put it in his oral sub- can only be achieved through the give and take mission: of the negotiation process. Having established A nation is built when the communities that the legal framework, it would be for the demo- comprise it make commitments to it, when cratically elected leadership of the various par- they forego choices and opportunities on ticipants to resolve their differences. . . . behalf of a nation, . . . when the communi- IV. Summary of Conclusions ties that comprise it make compromises, 149. The Reference requires us to consider when they offer each other guarantees, whether Quebec has a right to unilateral seces- when they make transfers and perhaps most sion. . . . [s]ecession of a province “under the pointedly, when they receive from others Constitution” could not be achieved unilater- the benefits of national solidarity. The ally, that is, without principled negotiation with threads of a thousand acts of accommoda- other participants in Confederation within the tion are the fabric of a nation. . . . existing constitutional framework. . . . 97. In the circumstances, negotiations follow- 151. Quebec could not, despite a clear ref- ing such a referendum would undoubtedly be erendum result, purport to invoke a right of difficult. While the negotiators would have to self-determination to dictate the terms of a pro- contemplate the possibility of secession, there posed secession to the other parties to the fed- would be no absolute legal entitlement to it and eration. . . . [Yet the] continued existence and no assumption that an agreement reconciling operation of the Canadian constitutional order all relevant rights and obligations would actu- could not be indifferent to a clear expression of ally be reached. It is foreseeable that even ne- a clear majority of Quebecers that they no gotiations carried out in conformity with the longer wish to remain in Canada. The other underlying constitutional principles could provinces and the federal government would reach an impasse. We need not speculate here have no basis to deny the right of the govern- as to what would then transpire. Under the ment of Quebec to pursue secession, should a Constitution, secession requires that an amend- clear majority of the people of Quebec choose ment be negotiated. . . . that goal, so long as in doing so, Quebec re- 101. If the circumstances giving rise to the spects the rights of others. The negotiations duty to negotiate were to arise, the distinction that followed such a vote would address the po- between the strong defence of legitimate inter- tential act of secession as well as its possible ests and the taking of positions which, in fact, terms should in fact secession proceed. There ignore the legitimate interests of others is one would be no conclusions predetermined by law that also defies legal analysis. The Court would on any issue. Negotiations would need to ad- not have access to all of the information avail- dress the interests of the other provinces, the able to the political actors, and the methods ap- federal government, Quebec and indeed the propriate for the search for truth in a court of rights of all Canadians both within and outside law are ill-suited to getting to the bottom of constitutional negotiations. To the extent that 84

85 Quebec, and specifically the rights of minorities. No one suggests that it would be an easy set of negotiations. . . . 153. The task of the Court has been to clarify the legal framework within which political decisions are to be taken “under the Con- stitution”, not to usurp the prerogatives of the political forces that operate within that framework. The obligations we have identified are binding obligations under the Constitution of Canada. However, it will be for the political actors to determine what constitutes “a clear majority on a clear question” in the circumstances under which a future referendum vote may be taken. Equally, in the event of demonstrated majority support for Quebec secession, the content and process of the negotiations will be for the political actors to settle. The reconciliation of the various legitimate constitutional interests is necessarily committed to the political rather than the judicial realm precisely because that reconciliation can only be achieved through the give and take of political negotiations. To the extent issues addressed in the course of negotiation are political, the courts, appreciating their proper role in the constitutional scheme, would have no supervisory role. . . .

86 Supreme Court Act, R.S.C., 1985, c. S-26. An Act respecting the Supreme Court of Canada

SHORT TITLE 1. This Act may be cited as the Supreme Court Act. THE COURT 3. The court of law and equity in and for Canada now existing under the name of the Supreme Court of Canada is hereby continued under that name, as a general court of appeal for Canada, and as an additional court for the better administration of the laws of Canada, and shall continue to be a court of record. SPECIAL JURISDICTION References by Governor in Council 53. (1) The Governor in Council may refer to the Court for hearing and consideration important questions of law or fact concerning (a) the interpretation of the Constitution Acts; (b) the constitutionality or interpretation of any federal or provincial legislation; (c) the appellate jurisdiction respecting educational matters, by the Constitution Act, 1867, or by any other Act or law vested in the Governor in Council; or (d) the powers of the Parliament of Canada, or of the legislatures of the provinces, or of the respective governments thereof, whether or not the particular power in question has been or is proposed to be exercised. (2) The Governor in Council may refer to the Court for hearing and consideration important questions of law or fact concerning any matter, whether or not in the opinion of the Court ejusdem generis with the enumerations contained in subsection (1), with reference to which the Governor in Council sees fit to submit any such question. (3) Any question concerning any of the matters mentioned in subsections (1) and (2), and referred to the Court by the Governor in Council, shall be conclusively deemed to be an important question. (4) Where a reference is made to the Court under subsection (1) or (2), it is the duty of the Court to hear and consider it and to answer each question so referred, and the Court shall certify to the Governor in Council, for his information, its opinion on each question, with the reasons for each answer, and the opinion shall be pronounced in like manner as in the case of a judgment on an appeal to the Court, and any judges who differ from the opinion of the majority shall in like manner certify their opinions and their reasons. (5) Where the question relates to the constitutional validity of any Act passed by the legislature of any province, or of any provision in any such Act, or in case, for any reason, the government of any province has any special interest in any such question, the attorney general of the province shall be notified of the hearing in order that the attorney general may be heard if he thinks fit. (6) The Court has power to direct that any person interested or, where there is a class of persons interested, any one or more persons as representatives of that class shall be notified of the hearing on any reference under this section, and those persons are entitled to be heard thereon. (7) The Court may, in its discretion, request any counsel to argue the case with respect to any interest that is affected and with respect to which counsel does not appear, and the reasonable expenses thereby oc- casioned may be paid by the Minister of Finance out of any moneys appropriated by Parliament for expenses of litigation.

Constitution Act, 1867, Canada, § 101

101. The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada

88 Joseph M. Lynch, NEGOTIATING THE CONSTITUTION: THE EARLIEST DEBATES OVER ORIGINAL INTENT 218-27 (1999) In the beginning was the text of the Con- MARKED, that it seems to have been restitution, but sometimes the text was wrapped served to the people of this country, by in ambiguity. When, for instance, the text of their conduct and example, to decide the Article I, Section 8, Clause 18, says: ‘Con- important question, whether societies of gress shall have power. . . to make all Laws men are really capable or not, of estab- which shall be necessary and proper for car- lishing good government from reflection rying into Execution the foregoing Powers,” and choice, or whether they are forever what do these words mean? Do they mean destined to depend, for their political con- that Congress has the power “to legislate in stitutions, on accident and force. If there all cases for the general interests of the Un- be any truth in the remark, the crisis, at ion, and also in those to which the States are which we are arrived, may with propriety separately incompetent, or in which the har- be regarded as the æra in which that deci- mony of the United States may be interrupted sion is to be made; and a wrong election by the exercise of individual legislation?” Or, of the part we shall act, may, in this view, more narrowly, do they mean that Congress deserve to be considered as the general has merely the incidental power to pass laws misfortune of mankind. carrying into effect the powers already enu- Animated, therefore, by a desire to make merated in Section 8? the Constitution and the new government or- When, following the Constitutional Con- ganized pursuant to it operate successfully, vention, opponents of ratification charged members of the First Congress, in the open- that the sweeping provisions of the Necessary ing days of the very first session, passed a law and Proper Clause would give Congress imposing a uniform oath of allegiance to the broad and indefinite powers, and supporters Constitution on state officers, despite the ab- of ratification denied it, both sides created a sence of a specific power authorizing them major problem for those who, after ratifica- either to provide for the form of such an oath tion, would run the new government. If the or to adopt uniform laws. Some, relying on new government were organized on the basis the Necessary and Proper Clause, ignored of the assurances given during ratification— Madison’s doubts and Gerry’s skepticism that the powers of Congress were limited to concerning congressional power. those enumerated in Section 8—it would not Later in the same session, Congress en- work. If, however, to make it work, members acted a law recognizing the president’s power of the new government went beyond those to remove an incompetent department head, powers, they would lay themselves open to again in the absence of a specific constitu- the accusation that they were repudiating the tional provision authorizing such an enact- position they had taken to secure ratification. ment. Approximately three-fifths of those in In the face of this dilemma, the new govern- the House who voted for the measure again ment might have faltered and the Constitu- relied on the Necessary and Proper Clause, tion might soon have been revealed to be a although Madison, for the others, relied on deeply flawed document. But both in Con- what he termed the implied powers of the gress and in the executive branch, there were presidency under Article II. those who, convinced of their responsibility to show the world that Americans could gov- The desire for an effective government ern themselves, would not allow this to hap- also led Hamilton to propose the establish- pen. For them, the cause of republicanism ment of a national bank. The framers’ deci- was at stake. As Hamilton so eloquently sion, limiting Congress to the adoption of a stated in the opening essay of the Federalist: metallic currency, seemed to him a highly un- realistic provision for an underdeveloped IT HAS BEEN FREQUENTLY RE- country such as the United States of that time. In recommending a national bank, Hamilton 88

cited its several advantages. The paper it Practicality—the desire to make the gov- would issue would serve as a currency, ena- ernment operate efficiently—was also the ba- bling the government more easily to pay the sis for Hamilton’s construction of the provi- principal of its foreign debt and the interest sion for spending for the general welfare in on its foreign and domestic debt to its credi- his report to the House in the Second Con- tors, and make it easier to borrow in times of gress: There are certain needs for the allevi- emergency. In addition, a paper currency ation or advancement of which local re- would enhance trade. sources are inadequate; resort must be had to When Madison challenged the bill estab- the larger revenues of the national govern- lishing the Bank of the United States as be- ment. Even Madison in opposition had to yond the powers of Congress even under the bend to the necessity of spending federal Necessary and Proper Clause, Ames in sup- money in particular cases, for instance, in his port of Hamilton argued that the clause concession to the New England fisheries and should be construed so as to promote “the his support of the Santo Domingo refugees. good of the society, and the ends for which Eventually, the Supreme Court sanctioned the government was adopted.” In his opinion the Hamiltonian thesis in United States v.

to President Washington defending the bill’s Butler . . . constitutionality, Hamilton ingeniously The Federalist defense of the constitu- agreed with Madison that the Necessary and tionality of the Sedition Act in the Fifth Con- Proper Clause merely authorized the enact- gress was also based on practical need: that ment of laws carrying into execution one of of the national government to protect itself the specified powers. However, in his appli- against forceful overthrow and against writ- cation of the clause, as though reasons of ten or spoken incitement to that end. As a practicality carried their own weight, he re- general proposition, the Supreme Court has peated the positions set forth in his initial re- upheld that position rather than the highly un- port: The bill would ensure an adequate realistic Republican argument that the na- money supply, help the government with its tional government lacked the power because debt, enhance trade, etc. it had not been enumerated. The wisdom of Hamilton’s plan became In the circumstances of 1798, however, as evident during the War of 1812. The Bank’s we know, the controversial provisions of the charter expired, a credible national paper cur- Sedition Act—those proscribing writing or rency disappeared, and the United States de- speech that brought the federal government, faulted on its debt. The painful lessons Congress, or the president into disrepute or learned from that experience forced the Re- contempt or excited hatred against them— publican majority in Congress to repent and were administered to suppress political criti- pass a bill chartering the Second Bank of the cism of the administration. As Gallatin in United States—and forced Madison as presi- Congress and Madison in his report to the dent to sign it, in silent acknowledgement Virginia Rouse of Delegates correctly ar- that the presence of such an institution was, gued, such legislation rends to immunize in- after all, necessary and proper. After Chief competent, corrupt, or despotic public offi- Justice Marshall justified the constitutional- cials from criticism and maintain them in of- ity of the law in McCulloch v. Maryland, Jus- fice. In effect, it perpetuates bad, not good, tice Johnson, in his concurring opinion in Os- government. For that reason, although recog- born v. The Bank of the United States, con- nizing the power of the federal government to firmed that the Bank’s ultimate usefulness defend itself, the Supreme Court has held this lay in its ability to float a national paper cur- type of legislation to be contrary to the provi- rency as an effective supplement to the con- sions of the First Amendment. stitutionally mandated but inadequate metal- None of the measures that the Federalists lic currency. adopted, however, could have been enacted 89

into law without the concurrence of George fixing the place to which Congress shall re- Washington. The military leader in the suc- turn following an adjournment. Yet in the cessful revolt from British rule, Washington very first session of the First Congress, when had accepted the presidency to consolidate he supported a bill to fix the permanent seat that victory. As a man of action and an out- of government and remove the temporary standing administrator with a deep commit- seat from New York, Madison assigned the ment to the success of the new government president such a role. He later confirmed that during his presidency, he naturally favored position in the advice he gave to Washington such legislative and executive measures as regarding a contemplated change in the loca- would ensure his administration’s success. tion of the first session of the Third Congress Thus, in the first Congress, he signed both from Philadelphia following an outbreak of Madison’s bill to recognize the president’s yellow fever. power to remove a department head and During the same period Jefferson, while Hamilton’s bill to establish a national bank. serving as Washington’s secretary of state, In the conduct of foreign affairs, Wash- also gave practical advice. Thus, regardless ington’s commanding presence and the wide- of what the Federalist said and what the spread public respect for his person and his framers intended respecting the power of achievements won him a practical latitude of Congress to declare war and the power of the operation, despite the lack of a specific con- Senate to participate in the ratification of a stitutional provision to that effect. In advo- peace treaty, Jefferson admitted that in the cating such a prerogative, Hamilton, acting as circumstances of 1793 the president should Washington’s principal adviser, disregarded not call Congress into special session but both his own prior position in the Federalist should decide himself against honoring the and the argument raised by Madison in his provision in the treaty with France that re- Helvidius essays. quired the United States to go to war against Indeed, during the period under discus- Great Britain. sion, when he had influence in the govern- The Federalist dependence on Washing- ment, even Madison labored under the neces- ton in carrying on the business of government sity to be practical and, like Hamilton, disre- in an efficient manner—albeit in disregard of garded the authority of the Federalist. Thus, the many assurances given in the Federalist while acting as the Federalist leader in the and in the state ratifying conventions regard- House in the first session of the First Con- ing the limited powers of Congress—became gress, he worked for the exclusive presiden- evident on his death. Thereafter, Federalist tial power to remove a department head in the power quickly waned. Jefferson’s election to executive branch, on the ground that other- the presidency in 1800, coinciding with Re- wise the country might be saddled with an of- publican control of the Seventh Congress, es- ficer who intrigued with members of the Sen- tablished a new order of constitutional inter- ate against presidential policies. (This subse- pretation. With Jefferson’s approval, the Vir- quently happened to Madison in his own ad- ginia delegation, the largest in the House and ministration, despite the removal power.) the leader of southern interest, limited the And when Washington asked for his ad- powers of the federal government through the vice or when he was in pursuit of his own leg- routine application of strict construction: islative agenda, Madison, like Hamilton, fol- Congress was to be confined within the strict lowed the dictates of practicality and ignored limits of its specified powers under Article I. the authority of the framers. For example, his Sedgwick’s assessment—that Jefferson’s notes of the proceedings of the Constitutional election would reinstate the principles of the Convention reveal that the framers intended old Confederation—was vindicated. to exclude the president from participating in There were even then, to be sure, limits to the doctrine of strict construction. In certain 90

cases, Republicans, Jefferson and Madison such strict Constructionists as Gallatin and included, had to set aside ideology and be Senator Maclay. practical. Thus Jefferson, having decided that In writing his opinion in McCulloch, the Louisiana Purchase was necessary to se- Marshall was well aware of his fellow Vir- cure the nation’s southern and western bor- ginians’ fiercely held convictions regarding ders, disregarded his scruples and the absence the limits of federal power in general and or of a specific constitutional provision author- the Necessary and Proper Clause in particu- izing the acquisition of territory. Later, to lar. This awareness led him to include in his carry into effect his policy of a trade embargo opinion the statement that the federal govern- upon British shipping, he countenanced a ment was “one of enumerated powers,” scandalously broad construction of the Com- which reinforces the basic premise, still in- merce Clause. Similarly, Madison signed the voked today, that indeed the authority of the bill chartering the Second Bank of the United federal government is limited in scope. States despite his own earlier argument against the constitutionality of the Bank un- But, ultimately, the Madisonian Jefferso- der its first charter. And in his conduct of for- nian thesis—that the powers of Congress and eign policy, President Jefferson frequently the presidency must be strictly construed, that acted without consulting Congress. their powers are confined to those specifically enumerated, that the Necessary and On the whole, however, Jefferson, Madi- Proper Clause is limited in its application to son, and their party followers regarded these the execution of the enumerated powers, and deviations from the strict limits of Articles I that federal spending must be limited to the and II as momentary concessions to neces- purposes set forth in Article I—has been sub- sity, tolerable specific exceptions to their stantially eroded, although not completely set general principles, but not repudiations of the aside. . . . principles themselves. After all, their political success was based on strict construction. Indeed, so tenacious has been adherence This party line was maintained until the Civil to the strict construction thesis that resort to a War. Indeed, Marshall’s 1819 opinion in substantive interpretation of the Necessary McCulloch v. Maryland caused a fury in Vir- and Proper Clause has been almost a matter ginia, not because it upheld the statute estab- of desperation. Instead, in order to create a lishing the Bank—Virginians were willing to government of energy and efficiency, Con- concede this on practical grounds—but be- gress and the Court have preferred to work cause he dared to invoke the Necessary and within what has appeared to be the specific proper Clause and use the Hamiltonian ra- provisions of the Commerce Clause. Thus, in tionale of implied governmental powers. a series of decisions the Court accommodated a broad reading of the Commerce Clause to In private correspondence, Madison enable Congress to legislate in matters it con- aided the purists’ cause with his advocacy of siders in the general interests of the country, an alternate theory of constitutional justifica- and in so doing rendered almost irrelevant the tion of the Second Bank’s charter, amounting requirement that for the federal government to a constitutional validation by stare decisis: to act the commerce must be interstate. . . . However questionable in the beginning, he wrote, congressional establishment of the Today, therefore, in most instances, de- First Bank had been constitutionally legiti- spite Madison and Jefferson, Congress does mated by the public’s general acceptance of have the power to legislate, either under the its operations during the twenty years of its Commerce Clause or the spending power, in charter. He did not add that the reason for its cases in which—to use the language of Gun- acceptance was that despite his and Jeffer- ning Bedford’s resolution in the Constitu- son’s constant political rhetoric as to its inva- tional Convention—the general interests of lidity, its practicality was widely perceived the United States are concerned, the several and appreciated from the beginning, even by states are incompetent to act, or the harmony 91

of the United States may be interrupted by the has construed the Commerce Clause so as to exercise of individual legislation. Congress permit Congress to attend to the necessities has also been held to possess wide legislative of the country. powers under the enforcement provisions of Where no federal power enumerated in the Thirteenth, Fourteenth, and Fifteenth the Constitution has appeared pertinent, Amendments to the Constitution to address where the general interests of the country or problems involving racial discrimination. matters of great importance are at stake, and Those powers, the Court has held, are as where all else has failed—as in the legal ten- broad as those under the Necessary and der and gold clause cases—the Court has Proper Clause, the clause of ultimate reason.. sometimes taken refuge in the wonderfully . . ambiguous language of the Necessary and To return to the question posed at the out- Proper Clause and held the legislation at issue set of this epilogue: When the Committee of to be valid. Detail replaced the Bedford resolution with In all these cases, whether under the the Necessary and Proper Clause and the del- Commerce Clause or the Necessary and egates to the Constitutional Convention ap- Proper Clause, the Supreme Court, custodian proved it, did they intend to deprive Congress of Constitutional Law, deciding for the na- of the power to pass uniform laws? After the tion, has paid little regard to the rules and convention, Madison said that they did. Dur- maxims of strict construction. ing, and after the convention, two of the delegates—George Mason and Elbridge Madison, diligent advocate of strict con- Gerry—said that they did not. Edmund Ran- struction, has been called Father of the Con- dolph equivocated. stitution. After constitutions are written, however, they must be interpreted and made During ratification, Hamilton agreed with to work. It is Hamilton who deserves the title Madison and said in the Federalist that they of Father of Constitutional Law. did. But in his opinion to Washington on the bank bill, he said they did not: “Necessary and proper” should be interpreted so as to further the general interests of the country. His construction of the spending power confirmed his reading of the Necessary and Proper Clause and gutted the heart of Madi- son’s construction of that clause. Others, including Washington, agreed with Hamilton’s later opinion. Elsewhere in the Federalist, Hamilton openly set forth his views concerning the manner in which constitutions should be written and construed: “Nations pay little regard to rules and maxims calculated in their very nature to run counter to the necessities of society. Wise politicians will be cautious about fettering the government with restrictions that cannot be observed.” In our system, it is the Supreme Court that ultimately construes the Constitution. In the twentieth century, in cases where the general interests of the country have been involved and matters of great importance at stake, it 92

Dudgeon v. United Kingdom, 45 Eur. Ct. H.R. (ser. A) (1981), 4 E.H.R.R. 149 (1982) (European Court of Human Rights) 37. ... [Jeffrey Dudgeon] complained that or relationship of the participants involved, and under the law in force in Northern Ireland he is whether or not the participants are consenting. liable to criminal prosecution on account of his It is evident from Mr. Dudgeon’s submissions, homosexual conduct and that he has experi- however, that his complaint was in essence di- enced fear, suffering and psychological distress rected against the fact that capable of valid con- directly caused by the very existence of the sent are criminal offences under the law of laws in question, including fear of harassment Northern Ireland. . . . and blackmail. He further complained that, fol- B. The existence of an interference with an lowing the search of his house in January 1976, Article 8 right he was questioned by the police about certain homosexual activities and that personal papers 41. . . . [T]he maintenance in force of the belonging to him were seized during the search impugned legislation constitutes a continuing and not returned until more than a year later. interference with the applicant’s right to respect for his private life (which includes his He alleged that, in breach of Article 8 of the sexual life) within the meaning of Article 8(1). [European] Convention [on Human Rights, to In the personal circumstances of the applicant, which Britain and thus Northern Ireland is a the very existence of this legislation continu- party], he has thereby suffered, and continues ously and directly affects his private life: either to suffer, an unjustified interference with his he respects the law and refrains from engaging right to respect for his private life. (even in private with consenting male partners) 38. Article 8 provides as follows: in prohibited sexual acts to which he is dis- 1. Everyone has the right to respect for his posed by reason of his homosexual tendencies, private and family life, his home and his or he commits such acts and thereby becomes correspondence. liable to criminal prosecution. 2. There shall be no interference by a pub- It cannot be said that the law in question is lic authority with the exercise of this right a dead letter in this sphere. It was, and still is, except such as is in accordance with the law applied so as to prosecute persons with regard and is necessary in a democratic society in to private consensual homosexual acts involv- the interests of national security, public ing males under 21 years of age. . . . safety or the economic well-being of the Moreover, the police investigation in January country, for the prevention of disorder or 1976 was, in relation to the legislation in ques- crime, for the protection of health or mor- tion, a specific measure of implementation (albeit als, or for the protection of the rights and short of actual prosecution) which directly af- freedoms of others. fected the applicant in the enjoyment of his right 39. Although it is not homosexuality itself to respect for his private life (see § 33, above). As which is prohibited but the particular acts of such, it showed that the threat hanging over him gross indecency between males and buggery, was real. there can be no doubt but that male homosexual C. The existence of a justification for the in- practices whose prohibition is the subject of the terference found by the Court . . . applicant’s complaints come within the scope 43. An interference with the exercise of an of the offences punishable under the impugned Article 8 right will not be compatible with Ar- legislations; it is on that basis that the case has ticle 8(2) unless it is ‘in accordance with the been argued by the Government, the applicant law’, has an aim or aims that is or are legitimate and the Commission. Furthermore, the of- under that paragraph and is ‘necessary in a fences are committed whether the act takes democratic society’ for the aforesaid aim or place in public or in private, whatever the age

aims. generally gross indecency between males and 44. . . . [T]he interference is plainly ‘in ac- buggery whatever the circumstances. It being cordance with the law’ since it results from the accepted that some form of legislation is ‘nec- existence of certain provisions in the 1861 and essary’ to protect particular sections of society 1885 Acts and the common law. as well as the moral ethos of society as a whole, the question in the present case is whether the 45. It next falls to be determined whether contested provisions of the law of Northern Ire- the interference is aimed at ‘the protection of land and their enforcement remain within the . . . morals’ or ‘the protection of the rights and bounds of what, in a democratic society, may freedoms of others’ . . . . be regarded as necessary in order to accomplish 47. . . . [I]t is somewhat artificial in this con- those aims. text to draw a rigid distinction between ‘protec- 50. A number of principles relevant to the tion of the rights and freedoms of others’ and assessment of the ‘necessity’, in a democratic ‘protection of . . . morals’. The latter may imply society’, of a measure taken in furtherance of safeguarding the moral ethos or moral standards an aim that is legitimate under the Convention of a society as a whole, but may also, as the Gov- have been stated by the Court in previous judg- ernment pointed out, cover protection of the ments. moral interests and welfare of a particular section of society, for example schoolchildren. 51. First, ‘necessary’ in this context does Thus, ‘protection of the rights and freedoms of not have the flexibility of such expressions as others’, when meaning the safeguarding of the ‘useful’, ‘reasonable’, or ‘desirable’, but immoral interests and welfare of certain individu- plies the existence of a ‘pressing social need’ als or classes of individuals who are in need of for the interference in question. special protection for reasons such as lack of 52. In the second place, it is for the national maturity, mental disability or state of depend- authorities to make the initial assessment of the ence, amounts to one aspect of ‘protection of . . . pressing social need in each case; accordingly, morals’. The Court will therefore take account a margin of appreciation is left to them. . . . of the two aims on this basis. However, not only the nature of the aim of 48. . . . [T]he cardinal issue arising under the restriction but also the nature of the activi- Article 8 in this case is to what extent, if at all, ties involved will affect the scope of the margin the maintenance in force of the legislation is of appreciation. The present case concerns a ‘necessary in a democratic society’ for these most intimate aspect of private life. Accord- aims. ingly, there must exist particularly serious rea- 49. There can be no denial that some de- sons before interferences on the part of the pub- gree of regulation of male homosexual conduct, lic authorities can be legitimate for the pur- as indeed of other forms of sexual conduct, by poses of Article 8(2). means of the criminal law can be justified as 53. Finally, in Article 8 as in several other ‘necessary in a democratic society’. The over- Articles of the Convention, the notion of ‘ne- all function served by the criminal law in this cessity’ is linked to that of a ‘democratic soci- field is, in the words of the Wolfenden report’to ety’. According to the Court’s case-law, a re- preserve public order and decency [and] to pro- striction on a Convention right cannot be re- tect the citizen from what is offensive or injuri- garded as ‘necessary in a democratic society’ ous’. (two hallmarks of which are tolerance and In practice there is legislation on the matter broadmindedness) unless, amongst other in all the member States of the Council of Eu- things, it is proportionate to the legitimate aim rope, but what distinguishes the law in North- pursued. . . . ern Ireland from that existing in the great ma- 56. . . . [T]he Government drew attention jority of the member-States is that it prohibits to what they described as profound differences

of attitude and public opinion between North- been any public demand for stricter enforce- ern Ireland and Great Britain in relation to ment of the law. questions of morality. Northern Ireland society It cannot be maintained in these circum- was said to be more conservative and to place stances that there is a ‘pressing social need’ to greater emphasis on relgious factors, as was il- make such acts criminal offences, there being lustrated by more restrictive laws even in the no sufficient justification provided by the risk field of heterosexual conduct. . . . of harm to vulnerable sections of society re- The fact that similar measures are not con- quiring protection or by the effects on the pub- sidered necessary in other parts of the United lic. On the issue of proportionality, the Court Kingdom or in other member-States of the considers that such justifications as there are Council of Europe does not mean that they can- for retaining the law in force unamended are not be necessary in Northern Ireland. Where outweighed by the detrimental effects which there are disparate cultural communities resid- the very existence of the legislative provisions ing within the same State, it may well be that in question can have on the life a person of ho- different requirements, both moral and social, mosexual orientation like the applicant. Alt- will face the governing authorities. hough members of the public who regard ho- 57. As the Government correctly submit- mosexuality as immoral may be shocked, of- ted, it follows that the moral climate in North- fended or disturbed by the commission by oth- ern Ireland in sexual matters, in particular as ers of private homosexual acts, this cannot on evidenced by the opposition to the proposed its own warrant the application of penal sanc- legislative change, is one of the matters which tions when it is consenting adults alone who are the national authorities may legitimately take involved. . . . into account in exercising their discretion. . . . To sum up, the restriction imposed on Mr. 60. The Convention right affected by the im- Dudgeon under Northern Ireland law, by rea- pugned legislation protects an essentially private son of its breadth and absolute character, is, manifestation of the human personality. quite apart from the severity of the possible penalties provided for, disproportionate to the As compared with the era when that legis- aims sought to be achieved. lation was enacted, there is now a better understanding, and in consequence an increased tol- For these reasons, THE COURT holds: erance, of homosexual behaviour to the extent 1. by 15 votes to four, that there is a breach that in the great majority of the member-States of Article 8 of the Convention; . . . of the Council of Europe it is no longer considered to be necessary or appropriate to treat homosexual practices of the kind now in question as in themselves a matter to which the sanctions of the criminal law should be applied; the Court cannot overlook the marked changes which have occurred in this regard in the domestic law of the member-States. In Northern Ireland itself, the authorities have refrained in recent years from enforcing the law in respect of private homosexual acts between consenting males over the age of 21 years capable of valid consent. No evidence has been adduced to show that this has been injurious to moral standards in Northern Ireland or that there has

George Lardner, Jr., A Test of The Power To Unpardon, WASH. POST, Jan. 14, 2009 The most important step George W. Bush Government officers whose duty it is to has taken with the presidential pardon prosecute them.” power came last month, when he repudi- Johnson sided with the crooks, granting Ja- ated it. cob and Moses Depuy pardons as “properly On Dec. 23, he granted clemency to a sor- authorized agents” of the government. did Brooklyn developer, Isaac R. Toussie, Three days later, in his first exercise of the who had pleaded guilty to real estate fraud, pardon power, Grant ordered the pardons and when details of the case came to light - “canceled” if the Depuys had not yet been - Bush had acted on the recommendation of released. They had not been, and the pardon the White House counsel, without the papers were returned to the White House. knowledge of the Justice Department’s par- Grant then ordered that since the pardons don attorney -- the president washed his had “not been delivered to, and accepted hands of the situation and withdrew the par- by, the said Jacob and Moses Depuy,” the don one day after signing it. grants were “revoked and withdrawn.” The about-face has sparked questions about The Depuys protested in federal court, ar- whether there was precedent for Bush’s ac- guing that Marbury v. Madison showed that tion and whether it could stand. It’s a debate the pardon was complete once it had been the courts, which have been weighing in on signed by the president and the seal of the the supposedly untouchable pardon power United States affixed. Delivery, in that for more than 150 years, should be happy case, had been held to be a purely ministe- to settle. And if judges have any regard for rial act. That proposition is being echoed history, they will side with Bush. now on behalf of Toussie -- but the same chief justice who ruled in Marbury, John Some presidents have revised pardons and Marshall, repudiated the proposition in re- issued new ones that were more suitable for gard to pardons. In 1833, Marshall held that recipients. Some have voided other pardons a pardon was a deed “to the validity of because the conditions attached to them which delivery is essential and delivery is were not met. To be sure, there is scant not complete without acceptance.” The precedent for Bush’s flat revocation. But judge in the Depuy case recognized that one case is strongly in his favor: these were “directly antagonistic rulings” It involved Ulysses S. Grant’s revocation of by the same justice, but since one came highly suspicious pardons that President long after the other, he said had no choice Andrew Johnson granted on his last day in but to hold that delivery is essential. office to a double-dealing father and son involved in New York City whiskey scandals The Depuys did not appeal, and the ruling in which Johnson himself was, at best, an stood as the only precedent until 1915, unwitting ally. Johnson had even welcomed when the Supreme Court embraced Mar- the father, known as “a notorious black- shall’s doctrine in U.S. v. Burdick, ruling mailer,” to the White House as part of a del- that a New York newspaper editor who had egation of crooks who sought to oust the been given a pardon to force him to testify U.S. attorney in New York on grounds of before a federal grand jury did not have to corruption. The New York Times pro- accept it. The court held that acceptance of tested: “[I]ndividuals accused of crime are a pardon is an admission of guilt and could summoned to Washington for the express not be required of an unwilling recipient. purpose of making charges against the Burdick made Marshall’s widely accepted

pronouncements the law of the land. A sub- counsel Fred Fielding, who didn’t bother sequent ruling made it inapplicable for with the customary Justice Department re- commutations, -- which can be forced upon view. The risks should have been plain a prisoner -- but delivery is still essential for from the scorn sparked by Bill Clinton’s pardons. last-minute pardons. And the usual reviews by the U.S. attorney and the FBI would Unfortunately, the Toussie case under- surely have turned up the enduring resent- scores the clumsy and dangerous ways in ments of the clients Toussie bilked, if not which the pardon power has come to be ad- the financial contributions his family made ministered. A downhill slide began with to Republican causes after his brief prison President Dwight Eisenhower, who was too term. busy, or found it too tiresome, to sign individual warrants for each grant of clemency. Evidently startled by the anger the pardon He instituted the practice of signing “mas- stirred, Bush called it back for review by ter warrants,” lumping a bunch of names to- the pardon attorney. The White House said gether without offering any reason, as the president and Fielding were unaware of many presidents used to do, for the par- the political contributions that raised “the dons. The Justice Department offered no appearance of impropriety” in the decision. objections. So what if Burdick was still the I, for one, am hoping the revocation sticks law? The Office of the Pardon Attorney be- and results in a lawsuit. There have been gan acting as though it were acceptable to telephones throughout government since notify a grantee by phone and to follow up Grover Cleveland’s day, but until Ike came weeks later with a letter. Delivery of an in- along, no one would have dreamed that dividual warrant, even a master warrant making a call or reading a bunch of names with the recipient’s name on it, went out the at a news conference constituted “deliv- window. The recipients, of course, were ery.” It would be interesting to see whether happy to be pardoned. the courts uphold the law or the slovenly habits that have made it so hollow. In Toussie’s case, the president was not happy, just as Grant had not been. The pardon was recommended by White House

The writer, a former Post reporter, is an associate at the Center for the Study of the Pres- idency. He is working on a history of the presidential pardon power.

Brian C. Kalt, Once Pardoned, Always Pardoned, WASH. POST, Jan. 26, 2009 The Jan. 14 op-ed by George Lardner Jr., “A unaware of any in which the pardons had been Test of the Power to Unpardon,” lauded Presi- signed, sealed, communicated and accepted, as dent George W. Bush’s attempt to revoke a par- Toussie’s was. More important, none of them don he granted to New York real estate devel- produced any Supreme Court precedent. The oper Isaac Toussie last month. Lardner argued legal slate for this kind of pardon revocation is that precedent and history back the president’s essentially blank. action and establish that until a pardon has been Lardner does note an 1869 district court delivered, a president can pluck it away. case, In re De Puy, in which a judge ruled that As a law professor who has written on pardons, a pardon must be delivered before it is effec- I have been following and commenting on the tive. But De Puy is easily distinguishable. First, Toussie case as well. My conclusion: Lardner Toussie’s pardon was delivered and accepted. is wrong at nearly every turn. There is no prec- Second, the De Puy pardon was conditional edent sufficient to validate Bush’s revocation upon the payment of a fine, and that condition of Toussie’s pardon. Delivery and acceptance had not yet been fulfilled; Toussie’s pardon are not required to make a pardon effective. was unconditional. Third, and most important, Even if they were, Toussie’s pardon was deliv- the vision of the pardon power in De Puy is in- ered and accepted. consistent with later decisions by higher courts. Modern decisions step away from the old no- Once issued, a pardon is a pardon. That’s that. tion of pardons as “acts of grace.” The Supreme Using pardons, the president of the United Court no longer sees pardons as coming from a States has the power to lift criminal conse- king-like president, who confers a royal deed quences from people. The president does not, (or not) to a loyal subject. Rather, the court has however, have the power to reimpose them uni- established that pardons are unilateral policy laterally, which is what a pardon revocation decisions made by politically accountable ex- would do. As a result, Bush could not -- and did ecutives. not -- argue that he could revoke Toussie’s pardon. Rather, he would have had to establish that In other words, the president issues pardons, Toussie was never really pardoned in the first and the president takes the heat for them if they place. are ill-advised. If that’s going to be a problem for him, he should think it through before he It would be hard to make that case. As presi- signs and seals the thing. The problems with dent, Bush signed and sealed a master warrant Toussie’s pardon -- that his father had been a that included Toussie’s name and stated: “After generous Republican contributor and the con- considering the applications for executive tinued resentment of those he defrauded -- were clemency . . . I hereby grant full and uncondi- knowable before Bush acted. Though George tional pardons to the following named per- W. Bush may wish otherwise, the Constitution sons.” The Justice Department announced the does not provide a “remorse exception” to the pardons to the world. The recipients (or their pardon power. lawyers) were contacted by phone, told that they had been pardoned and accepted the par- The only argument the White House offered is dons. This sounds quite final. that Toussie never received a paper copy of an Lardner wrote that “there is scant precedent for individual warrant from the Office of the Par- Bush’s flat revocation,” which is true. Alt- don Attorney. All indications are that the ad- hough there are several examples (most of them ministration cooked up this theory for this case. quite old) of presidents revoking pardons, I am The master warrant that Bush signed and sealed

did not say that he was ordering the pardon at- Cisneros and, infamously, the financier Marc torney to issue individual pardons on his be- Rich. Because of the volume of Clinton’s last- half. It said that the people on the list were minute pardon jamboree, there was no way to hereby pardoned. When the office called the re- deliver all of the individual warrants before cipients, it didn’t tell them that the pardon was George W. Bush took office. Some of them still in the mail; it told them that they had been par- have not been physically delivered. doned. And they accepted. But as president, Bush never purported to have There is ample precedent against Bush’s theory the power to revoke any of these pardons. here. For instance, when President Jimmy Surely he would have unpardoned Rich if he Carter pardoned the Vietnam draft evaders, could have. And if Bush were right about Isaac they did not get individual pieces of paper. But Toussie, then he could have unpardoned both there is a more recent, and more fitting, exam- him and Rich. But he wasn’t, and he couldn’t. ple: It would be nice if the Supreme Court ruled de- On his way out of office, President Bill Clinton finitively on this point. Ideally, Toussie will pardoned more than a hundred people, includ- take this matter to court. If and when the Su- ing his brother, his longtime associate Susan preme Court takes the case, I am confident that McDougal, former housing secretary Henry it will declare that President Bush was wrong. The writer is an associate professor at Michigan State University College of Law.

The Judiciary Act of 1789, § 25, 1 Stat. 73, 85 Sec. 25. And be it further enacted, That a final judgment or de- Cases in which judgment and decree in any suit, in the highest court of law or equity of a State in crees of the high- which a decision in the suit could be had, where is drawn in est court of a state question the validity of a treaty or statute of, or an authority ex- may be examined by the supreme ercised under the United States, and the decision is against their court, on writ of validity; or where is drawn in question the validity of a statute error. of, or an authority exercised under any State, on the ground of

their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favour of such their validity, or where is drawn in question the construction of any clause of

the constitution, or of a treaty, or statute or, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed by ei-

ther party, under such clause of the said Constitution, treaty, statute or commission, may be re-examined and reversed or af- Proceedings firmed in the Supreme Court of the United States upon a writ of on reversal. error, the citation being signed by the chief justice, or judge or chancellor of the court rendering or passing the judgment or decree complained of; or by a justice or the Supreme Court of the

No writs of United States, in the same manner and under the same regula- error but as tions, and the writ shall have the same effect, as if the judgment above men- or decree complained or had been rendered or passed in a circuit tioned. court, and the proceeding upon the reversal shall also be the same, except that the Supreme Court, instead of remanding the cause for a final decision as before provided, may at their discretion, if the cause shall have been once remanded before, proceed to a final decision of the same, and award execution. But no other error shall be assigned or regarded as a ground of reversal in any such case as aforesaid, than such as appears on the face of the record, and immediately respects the before mentioned questions of validity or construction of the said constitution, treaties, statutes, commissions, or authorities in dispute.

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The Judiciary Act of 1789, § 25, 1 Stat. 73, 85 (color coded) Cases in which Sec. 25. And be it further enacted, That a final judg- judgment and de- crees of the high- ment or decree in any suit, in the highest est court of a state court of law or equity of a State in which a may be examined by the supreme decision in the suit could be had, where is drawn in court, on writ of question the validity of a treaty or statute of, or an authority ex- error.

ercised under the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of

their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favour of such their validity, or where is drawn in question the construction of any clause of

the constitution, or of a treaty, or statute or, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed by ei-

ther party, under such clause of the said Constitution, treaty, statute or commission, may be re-examined and reversed or affirmed in the Supreme Court of

the United States upon a writ of error, the citation being signed by the chief justice, or judge or chancellor of

the court rendering or passing the judgment or decree complained of; or by a justice or the Supreme Court of the United

States, in the same manner and under the same regulations, and

the writ shall have the same effect, as if the judgment or decree complained or had been

rendered or passed in a circuit court, and the

proceeding upon the reversal shall also be the

same, except that the Supreme Court, instead of re- Proceedings on manding the cause for a final decision as before pro- reversal. vided, may at their discretion, if the cause shall have been once remanded before, proceed to a final decision . But no other error shall of the same, and award execution No writs of be assigned or regarded as a ground of reversal in any such case error but as as aforesaid, than such as appears on the face of the record, and above mentioned. immediately respects the before mentioned questions of validity or construction of the said constitution, treaties, statutes, commissions, or authorities in dispute.

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Andrew Jackson, Veto Message, July 10, 1832, reprinted in 3 MESSAGES AND PAPERS OF THE PRESIDENTS 1139-54 (1897) Washington, July 10, 1832 To the Senate: in 1816, decided in its favor. Prior to the pre- The bill “to modify and continue” the act sent Congress, therefore, the precedents drawn entitled “An act to incorporate the subscribers from that source were equal. If we resort to the to the Bank of the United States” was presented States, the expressions of legislative, judicial, to me on the 4th July instant. Having consid- and executive opinions against the bank have ered it with that solemn regard to the principles been probably to those in its favor as 4 to 1. of the Constitution which the day was calcu- There is nothing in precedent, therefore, which, lated to inspire, and come to the conclusion that if its authority were admitted, ought to weigh it ought not to become a law, I herewith return in favor of the act before me. it to the Senate, in which it originated, with my If the opinion of the Supreme Court cov- objections. ered the whole ground of this act, it ought not * * * to control the coordinate authorities of this The present corporate body, denominated Government. The Congress, the Executive, the president, directors, and company of the and the Court must each for itself be guided by Bank of the United States, will have existed at its own opinion of the Constitution. Each pub- the time this act is intended to take effect lic officer who takes an oath to support the twenty years. It enjoys an exclusive privilege Constitution swears that he will support it as he of banking under the authority of the General understands it, and not as it is understood by Government, a monopoly of its favor and sup- others. It is as much the duty of the House of port, and, as a necessary consequence, almost a Representatives, of the Senate, and of the Pres- monopoly of the foreign and domestic ex- ident to decide upon the constitutionality of any change. The powers, privileges, and favors be- bill or resolution which may be presented to stowed upon it in the origin at charter, by in- them for passage or approval as it is of the su- creasing the value of the stock far above its par preme judges when it may be brought before value, operated as a gratuity of many millions them for judicial decision. The opinion of the to the stockholders. judges has no more authority over Congress than the opinion of Congress has over the * * * judges, and on that point the President is inde- It is maintained by the advocates of the pendent of both. The authority of the Supreme bank that its constitutionality in all its features Court must not, therefore, be permitted to con- ought to be considered as settled by precedent trol the Congress or the Executive when acting and by the decision of the Supreme Court. To in their legislative capacities, but to have only this conclusion I can not assent. Mere prece- such influence as the force of their reasoning dent is a dangerous source of authority, and may deserve. should not be regarded as deciding questions of But in the case relied upon the Supreme constitutional power except where the acquies- Court have not decided that all the features of cence of the people and the States can be con- this corporation are compatible with the Con- sidered as well settled. So far from this being stitution. It is true that the court have said that the case on this subject, an argument against the the law incorporating the bank is a constitu- bank might be based on precedent. One Con- tional exercise of power by Congress; but tak- gress, in 1791, decided in favor of a bank; an- ing into view the whole opinion of the court and other, in 1811, decided against it. One Con- the reasoning by which they have come to that gress, in 1815, decided against a bank; another,

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conclusion, I understand them to have decided virtue, every man is equally entitled to protec- that inasmuch as a bank is an appropriate tion by law; but when the laws undertake to add means for carrying into effect the enumerated to these natural and just advantages artificial powers of the General Government, therefore distinctions, to grant titles, gratuities, and ex- the law incorporating it is in accordance with clusive privileges, to make the rich richer and that provision of the Constitution which de- the potent more powerful, the humble members clares that Congress shall have power “to make of society - the farmers, mechanics, and laborer all laws which shall he necessary and proper for - who have neither the time nor the means of carrying those powers into execution.” . . . securing like favors to themselves, have a right . . . A bank is constitutional, but it is the to complain of the injustice of their Govern- province of the Legislature to determine ment. There are no necessary evils in govern- whether this or that particular power, privilege, ment. Its evils exist only in its abuses. If it or exemption is “necessary and proper” to ena- would confine itself to equal protection, and, as ble the bank to discharge its duties to the Gov- Heaven does its rains, shower its favors alike ernment, and from their decision there is no ap- on the high and the low, the rich and the poor, peal to the courts of justice. Under the decision it would be an unqualified blessing. In the act of the Supreme Court, therefore, it is the exclu- before me there seems to be a wide and unnec- sive province of Congress and the President to essary departure from these just principles. decide whether the particular features of this Nor is our Government to be maintained or act are necessary and proper in order to enable our Union preserved by invasions of the rights the bank to perform conveniently and effi- and powers of the several States. In thus at- ciently the public duties assigned to it as a fis- tempting to make our General Government cal agent, and therefore constitutional, or un- strong we make it weak. Its true strength con- necessary and improper, and therefore uncon- sists in leaving individuals and States as much stitutional. as possible to themselves - in making itself felt, Without commenting on the general princi- not in its power, but in its beneficence; not in ple affirmed by the Supreme Court, let us ex- its control, but in its protection; not in binding amine the details of this act in accordance with the States more closely to the center, but leav- the rule of legislative action which they have ing each to move unobstructed in its proper or- laid down. It will be found that many of the bit. . . . powers and privileges conferred on it can not be supposed necessary for the purpose for ANDREW JACKSON. which it is proposed to be created, and are not, therefore, means necessary to attain the end in view, and consequently not justified by the Constitution. * * * It is to be regretted that the rich and powerful too often bend the acts of government to their selfish purposes. Distinctions in society will always exist under every just government. Equality of talents, of education, or of wealth can not be produced by human institutions. In the full enjoyment of the gifts of Heaven and the fruits of superior industry, economy, and

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Congressional Enactments Timeline 1787-1858

Here is a timeline of Congressional enactments and related developments concerning the ge- ographic scope of slavery in the United States. They may help give you a sense of the political situation the Court faced as it considered the Dred Scott case. o 1787: Northwest Ordinance. This was enacted by the Congress under the Articles of Con- federation, before the Constitution was ratified. It provided that the territory north and west of the Ohio River (including Illinois) would be free of slavery:

An Ordinance for the government of the Territory of the United States northwest of the River Ohio.

“Art. 6. There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted: Provided, always, That any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labor or service as aforesaid.”

104 o 1803: The Louisiana Purchase. Most of the territory encompassed in the Louisiana Purchase was in fact north and west of the Ohio River. It included what later became Minnesota and Missouri.

o 1818: Illinois admitted as a state. Its constitution forbade slavery. o 1819: Missouri seeks admission as a state. Most of Missouri was north and west of the Ohio River. Would the Northwest Ordinance bar slavery in the new state? . Southern States argued that the Northwest Ordinance applied only to territories the U.S. held in 1787. . Northern States argued that since most of Missouri is north and west of the Ohio River, it should be free. o 1820: The Missouri Compromise (statute): Maine, carved out from Massachusetts, was admitted as a free state, and Missouri as a slave state. In addition, slavery was “forever prohibited” in all federal territories north and west of Missouri. Minnesota was included in the territory as to which slavery was barred. o 1845: Texas admitted to the Union. o 1846-1848: U.S. goes to war against Mexico. . The Wilmot Proviso, approved by the House in 1846 but defeated in the Senate, stipulated that there would be no slavery in the new territories the U.S. planned to seize from Mexico. It was also approved by the House in 1847 and again defeated in the Senate. 105

. In 1848 the Senate declined to make it part of the Treaty of Guadalupe Hidalgo, in which the war was formally concluded and Mexico ceded territory to the U.S. o 1850: The Compromise of 1850 (statute). It forbade the public sale of slaves in the District of Columbia but dramatically strengthened the Fugitive Slave Act and fully federalized its implementation. Geographically (see map below), it also brought Cali- fornia into the Union as free state, adjusted Texas’s borders, and did not expressly forbid slavery in the rest of territories acquired in Mexican War.

o 1854: The Kansas-Nebraska Act. It repealed the Missouri Compromise as to territories west of Missouri, and created the territories of Kansas and Nebraska (see map next page). . It allowed settlers in those territories to decide whether slavery would be permitted in them. . Because Kansas and Nebraska were west of the Missouri River, it had the effect of repealing the Missouri Compromise as to them. . Pro-slavery settlers flocked to Kansas and a mini-civil war broke out between those in favor of and those opposed to slavery. . “Bleeding Kansas” gave major impetus to the formation of the Republican Party. Lincoln expressed his opposition to the Kansas-Nebraska Act in his famous debate with Stephen Douglas, who supported it.

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o 1856-1857: Dred Scott case (heard in 1856, decided in 1857). The Minnesota territory remained governed by the Missouri Compromise. o 1858: Minnesota became a state.

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Dred Scott v. Sandford: Timeline o 1800 (approx.): Dred Scott was born in Virginia. Virginia recognized slavery, and regarded him as enslaved, his master being Peter Blow. o 1830: Blow moved to Missouri. Missouri law recognized slavery, and Scott’s status remained unchanged. o 1832: Blow died. John Emerson, a U.S. Army surgeon, acquired Scott. o 1833/1834: Emerson was summoned by the Army to Illinois, taking Scott. Illinois had been part of the Northwest Territory, and when it became a state its Constitution banned slavery. o 1836: Emerson moved to Fort Snelling in what was then the Wisconsin territory (part of the original Louisiana purchase), and what is now the state of Minnesota, taking Scott. o Scott did not claim freedom in either place. . He may not have realized he could claim freedom. . The legal situation may have been unclear; some free states distinguished between bringing someone in temporarily versus permanently. . Scott married Harriet Robinson, whose status was enslaved, with Lawrence Taliaferro, a justice of the peace and U.S. Indian Agent, recognized as her master. • Despite the territory’s status as free under the Missouri Compromise, at any one time there were about 15-30 enslaved persons at Fort Snelling. The U.S. Army provided extra pay to officers to cover their servants’ expenses, and included slaves within this category. • Taliaferro transferred legal ownership of Robinson to Emerson after the marriage. Typically state laws that recognized slavery did not permit marriage between enslaved persons. o 1838: Emerson was summoned to the South. He left the Scotts behind. The Scotts joined him for a time in Fort Jesup in Louisiana, and then returned to Fort Snelling. o 1840: Emerson, back in Missouri, summoned the Scotts to join him. They did. o 1843: John Emerson died, leaving his widow Irene Emerson. Dred Scott sought to purchase his and his family’s freedom; she rejected his offer. o 1846: The Scotts brought a lawsuit in state court against Irene Emerson, asserting their freedom and the freedom of their children, Eliza and Lizzie. (Eliza had been born in free territory, and Lizzie, in territory that recognized slavery.) They lost but on appeal to the Missouri Supreme Court were granted a retrial. o 1850: On retrial, the court ruled that the Scotts were free. o 1852: The Missouri Supreme Court reversed the trial court verdict. In doing so it overturned several decades of Missouri precedent that supported Scott’s case: • 1807/1824: There were a number of Missouri state court rulings that enslaved persons could sue under a Missouri statute which provided that any person wrongly held in bond- age could petition the appropriate court. • 1824: Winny v. Whitesides (Missouri Supreme Court 1824): If a master took an enslaved person to Illinois and set up residence there, the person would be free under the terms of the 1787 Northwest Ordinance – even upon return to Missouri. This was known as the “once free, always free” doctrine. • 1824-1844: There were a number of successful lawsuits by enslaved persons seeking freedom. This included a ruling in 1836 that a woman who had been enslaved in Missouri and taken to Fort Snelling was free. Lawsuits were possible because enslaved persons had

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relatively good access to legal advice, and some degree of daily autonomy from the practice of masters hiring them out to others. • Mid-1840’s: There were several pro-slavery appointments to the Missouri Supreme Court • 1852: In the Scotts’ case, the Missouri Supreme Court overturned the “once free, always free” doctrine, citing the rise of anti-slavery sentiments in the north. o 1852 (approx..): Irene Emerson transferred ownership of the Scotts to her brother John San- ford, a resident of New York. o 1853: The Scotts filed a lawsuit in federal court against Sanford, invoking diversity jurisdiction. o 1854: The lower court ruled against them. o 1856: Scott appealed to the U.S. Supreme Court. o Feb. 1857: Irene Emerson married Calvin Chaffee, a prominent anti-slavery politician in Massachusetts. Chaffee, seeking to avoid publicity, transferred ownership of the Scotts to Taylor Blow, a son of Peter Blow. o 3/6/1857: Supreme Court ruled against the Scotts. o 5/26/1857: Taylor Blow frees the Scotts. o 9/17/1858: Dred Scott died. o 6/17/1876: Harriet Robinson Scott died.

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Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) Mr. Chief Justice TANEY delivered the find it, according to its true intent and meaning opinion of the court. when it was adopted. There are two leading questions presented by In the opinion of the court, the legislation and the record: histories of the times, and the language used in the Declaration of Independence, show, that 1. Had the Circuit Court of the United States neither the class of persons who had been im- jurisdiction to hear and determine the case ported as slaves, nor their descendants, whether between these parties? they had become free or not, were then [W]hen a plaintiff sues in a court of the United acknowledged as a part of the people, nor in- States, it is necessary that he should show, in tended to be included in the general words used his pleading, that the suit he brings is within the in that memorable instrument. jurisdiction of the court, and that he is entitled It is difficult at this day to realize the state of to sue there. [T]he question to be decided is, public opinion in relation to that unfortunate whether the facts stated in the plea are suffi- race, which prevailed in the civilized and en- cient to show that the plaintiff is not entitled to lightened portions of the world at the time of sue as a citizen in a court of the United States. the Declaration of Independence, and when the The question is simply this: Can a negro, whose Constitution of the United States was framed ancestors were imported into this country, and and adopted. But the public history of every sold as slaves, become a member of the politi- European nation displays it in a manner too cal community formed and brought into exist- plain to be mistaken. ence by the Constitution of the United States, They had for more than a century before been and as such become entitled to all the rights, regarded as beings of an inferior order, and al- and privileges, and immunities, guarantied by together unfit to associate with the white race, that instrument to the citizen? One of which either in social or political relations; and so far rights is the privilege of suing in a court of the inferior, that they had no rights which the white United States in the cases specified in the Con- man was bound to respect; and that the negro stitution. might justly and lawfully be reduced to slavery It will be observed, that the plea applies to that for his benefit. He was bought and sold, and class of persons only whose ancestors were ne- treated as an ordinary article of merchandise groes of the African race, and imported into this and traffic, whenever a profit could be made by country, and sold and held as slaves. The only it. This opinion was at that time fixed and uni- matter in issue before the court, therefore, is, versal in the civilized portion of the white race. whether the descendants of such slaves, when It was regarded as an axiom in morals as well they shall be emancipated, or who are born of as in politics, which no one thought of disput- parents who had become free before their birth, ing, or supposed to be open to dispute; and men are citizens of a State, in the sense in which the in every grade and position in society daily and word citizen is used in the Constitution of the habitually acted upon it in their private pur- United States. suits, as well as in matters of public concern, We think they are not. It is not the province of without doubting for a moment the correctness the court to decide upon the justice or injustice, of this opinion. the policy or impolicy, of these laws. The deci- And in no nation was this opinion more firmly sion of that question belonged to the political fixed or more uniformly acted upon than by the or law-making power; to those who formed the English Government and English people. They sovereignty and framed the Constitution. The not only seized them on the coast of Africa, and duty of the court is, to interpret the instrument sold them or held them in slavery for their own they have framed, with the best lights we can use; but they took them as ordinary articles of obtain on the subject, and to administer it as we merchandise to every country where they could 110

make a profit on them, and were far more ex- impassable barrier was intended to be erected tensively engaged in this commerce than any between the white race and the one which they other nation in the world. had reduced to slavery, and governed as subjects with absolute and despotic power, and The legislation of the different colonies fur- which they then looked upon as so far below nishes positive and indisputable proof of this them in the scale of created beings, that inter- fact. marriages between white persons and negroes The province of Maryland, in 1717, passed a or mulattoes were regarded as unnatural and law declaring ‘that if any free negro or mulatto immoral, and punished as crimes, not only in intermarry with any white woman, or if any the parties, but in the person who joined them white man shall intermarry with any negro or in marriage. And no distinction in this respect mulatto woman, such negro or mulatto shall be- was made between the free negro or mulatto come a slave during life, excepting mulattoes and the slave, but this stigma, of the deepest born of white women, who, for such intermar- degradation, was fixed upon the whole race. riage, shall only become servants for seven The language of the Declaration of Independ- years, to be disposed of as the justices of the ence is equally conclusive. It begins by declar- county court, where such marriage so happens, ing that, ‘when in the course of human events shall think fit; to be applied by them towards it becomes necessary for one people to dissolve the support of a public school within the said the political bands which have connected them county. And any white man or white woman with another, and to assume among the powers who shall intermarry as aforesaid, with any ne- of the earth the separate and equal station to gro or mulatto, such white man or white woman which the laws of nature and nature’s God en- shall become servants during the term of seven title them, a decent respect for the opinions of years, and shall be disposed of by the justices mankind requires that they should declare the as aforesaid, and be applied to the uses afore- causes which impel them to the separation.’ said.’ It then proceeds to say: ‘We hold these truths The other colonial law to which we refer was to be self-evident: that all men are created passed by Massachusetts in 1705. It is entitled equal; that they are endowed by their Creator ‘An act for the better preventing of a spurious with certain unalienable rights; that among and mixed issue,’ &c.; and it provides, that ‘if them is life, liberty, and the pursuit of happi- any negro or mulatto shall presume to smite or ness; that to secure these rights, Governments strike any person of the English or other Chris- are instituted, deriving their just powers from tian nation, such negro or mulatto shall be se- the consent of the governed.’ verely whipped, at the discretion of the justices before whom the offender shall be convicted.’ The general words above quoted would seem We give both of these laws in the words used to embrace the whole human family, and if they by the respective legislative bodies, because were used in a similar instrument at this day the language in which they are framed, as well would be so understood. But it is too clear for as the provisions contained in them, show, too dispute, that the enslaved African race were not plainly to be misunderstood, the degraded con- intended to be included, and formed no part of dition of this unhappy race. They were still in the people who framed and adopted this decla- force when the Revolution began, and are a ration; for if the language, as understood in that faithful index to the state of feeling towards the day, would embrace them, the conduct of the class of persons of whom they speak, and of the distinguished men who framed the Declaration position they occupied throughout the thirteen of Independence would have been utterly and colonies, in the eyes and thoughts of the men flagrantly inconsistent with the principles they who framed the Declaration of Independence asserted; and instead of the sympathy of man- and established the State Constitutions and kind, to which they so confidently appealed, Governments. They show that a perpetual and they would have deserved and received universal rebuke and reprobation. Yet the men who 111

framed this declaration were great men—high mulatto servant, who was found wandering out in literary acquirements—high in their sense of of the town or place to which he belonged, honor, and incapable of asserting principles in- without a written pass such as is therein de- consistent with those on which they were act- scribed, was made liable to be seized by any ing. one, and taken before the next authority to be examined and delivered up to his master—who This state of public opinion had undergone no was required to pay the charge which had ac- change when the Constitution was adopted, as is crued thereby. This law was in full operation equally evident from its provisions and lan- when the Constitution of the United States was guage. adopted, and was not repealed till 1797. So that [T]here are two clauses in the Constitution which up to that time free negroes and mulattoes were point directly and specifically to the negro race as associated with servants and slaves in the po- a separate class of persons, and show clearly that lice regulations established by the laws of the they were not regarded as a portion of the people State. or citizens of the Government then formed. It is sufficient to say, that Chancellor Kent, One of these clauses reserves to each of the whose accuracy and research no one will ques- thirteen States the right to import slaves until tion, states in the sixth edition of his Commen- the year 1808, if it thinks proper. And the im- taries that in no part of the country except portation which it thus sanctions was unques- Maine, did the African race, in point of fact, tionably of persons of the race of which we are participate equally with the whites in the exer- speaking, as the traffic in slaves in the United cise of civil and political rights. States had always been confined to them. And The legislation of the States therefore shows, in by the other provision the States pledge them- a manner not to be mistaken, the inferior and selves to each other to maintain the right of subject condition of that race at the time the property of the master, by delivering up to him Constitution was adopted, and long afterwards, any slave who may have escaped from his ser- throughout the thirteen States by which that in- vice, and be found within their respective terri- strument was framed; and it is hardly consistent tories. [T]hese two provisions show, conclu- with the respect due to these States, to suppose sively, that neither the description of persons that they regarded at that time, as fellow-citi- therein referred to, nor their descendants, were zens and members of the sovereignty, a class of embraced in any of the other provisions of the beings whom they had thus stigmatized; whom, Constitution. as we are bound, out of respect to the State sov- And if we turn to the legislation of the States ereignties, to assume they had deemed it just where slavery had worn out, or measures taken and necessary thus to stigmatize, and upon for its speedy abolition, we shall find the same whom they had impressed such deep and en- opinions and principles equally fixed and during marks of inferiority and degradation; or, equally acted upon. that when they met in convention to form the Thus, Massachusetts, in 1786, passed a law Constitution, they looked upon them as a por- [that] forbids the marriage of any white person tion of their constituents, or designed to include with any negro, Indian, or mulatto, and inflicts them in the provisions so carefully inserted for a penalty of fifty pounds upon any one who the security and protection of the liberties and shall join them in marriage; and declares all rights of their citizens. such marriage absolutely null and void, and de- No one, we presume, supposes that any change grades thus the unhappy issue of the marriage in public opinion or feeling, in relation to this by fixing upon it the stain of bastardy. unfortunate race, in the civilized nations of Eu- So, too, in Connecticut. [In] 1774, it passed an rope or in this country, should induce the court act forbidding the further importation of slaves to give to the words of the Constitution a more into the State. But in the same statute there is liberal construction in their favor than they also a provision by which any negro, Indian, or were intended to bear when the instrument was 112 framed and adopted. Such an argument would The act of Congress, upon which the plaintiff re- be altogether inadmissible in any tribunal lies [the Missouri Compromise, 1820], declares called on to interpret it. If any of its provisions that slavery and involuntary servitude, except as are deemed unjust, there is a mode prescribed a punishment for crime, shall be forever prohib- in the instrument itself by which it may be ited in all that part of the territory ceded by amended; but while it remains unaltered, it France, under the name of Louisiana, which lies must be construed now as it was understood at north of thirty-six degrees thirty minutes north the time of its adoption. It speaks not only in latitude, and not included within the limits of the same words, but with the same meaning and Missouri. And the difficulty which meets us at intent with which it spoke when it came from the threshold of this part of the inquiry is, the hands of its framers, and was voted on and whether Congress was authorized to pass this adopted by the people of the United States. Any law under any of the powers granted to it by the other rule of construction would abrogate the Constitution; for if the authority is not given by judicial character of this court, and make it the that instrument, it is the duty of this court to de- mere reflex of the popular opinion or passion clare it void and inoperative, and incapable of of the day. conferring freedom upon anyone who is held as a slave under the law of any one of the States. And upon a full and careful consideration of the subject, the court is of opinion, that, upon the The counsel for the plaintiff has laid much facts stated in the plea in abatement, Dred Scott stress upon that article in the Constitution was not a citizen of Missouri within the mean- which confers on Congress the power ‘to dis- ing of the Constitution of the United States, and pose of and make all needful rules and regula- not entitled as such to sue in its courts; and, tions respecting the territory or other property consequently, that the Circuit Court had no ju- belonging to the United States;’1 but, in the risdiction of the case, and that the judgment on judgment of the court, [Article IV § 3 cl. 2] has the plea in abatement is erroneous. no bearing on the present controversy, and the power there given, whatever it may be, is con- 2. If the Court had jurisdiction, is the judg- fined, and was intended to be confined, to the ment it has given erroneous or not? territory which at that time belonged to, or was In considering this part of the controversy, two claimed by, the United States, and was within questions arise: 1. Was he, together with his their boundaries as settled by the treaty with family, free in Missouri by reason of the stay in Great Britain, and can have no influence upon the territory of the United States hereinbefore a territory afterwards acquired from a foreign mentioned? And 2. If they were not, is Scott Government. It was a special provision for a himself free by reason of his removal to Rock known and particular territory, and to meet a Island, in the State of Illinois, as stated in the present emergency, and nothing more. above admissions? There is certainly no power given by the Con- [1] We proceed to examine the first question. stitution to the Federal Government to establish [a. The source of Congress’s regulatory author- or maintain colonies bordering on the United ity] States or at a distance, to be ruled and governed at its own pleasure; nor to enlarge its territorial limits in any way, except by the admission of

1 Art. IV § 3 provides: [2] The Congress shall have Power to dispose of [1] New States may be admitted by the Congress and make all needful Rules and Regulations re- into this Union; but no new State shall be formed or specting the Territory or other Property belonging erected within the Jurisdiction of any other State; to the United States; and nothing in this Constitu- nor any State be formed by the Junction of two or tion shall be so construed as to Prejudice any more States, or Parts of States, without the Consent Claims of the United States, or of any particular of the Legislatures of the States concerned as well State. as of the Congress. 113 new States. That power is plainly given; and if jury, nor compel any one to be a witness against a new State is admitted, it needs no further leg- himself in a criminal proceeding. islation by Congress, because the Constitution [T]he rights of private property have been itself defines the relative rights and powers, and guarded with equal care. [T]he fifth amend- duties of the State, and the citizens of the State, ment provides that no person shall be deprived and the Federal Government. But no power is of life, liberty, and property, without due pro- given to acquire a Territory to be held and gov- cess of law. And an act of Congress which de- erned permanently in that character. prives a citizen of the United States of his lib- [Instead], the power to expand the territory of erty or property, merely because he came him- the United States is plainly given [in Art. IV § self or brought his property into a particular 3 cl. 1], to authorize the acquisition of territory, Territory of the United States, and who had not fit for admission at the time, but to be ad- committed no offence against the laws, could mitted as soon as its population and situation hardly be dignified with the name of due pro- would entitle it to admission. [Territory may cess of law. be] acquired to become a State, and not to be It [is argued] that there is a difference between held as a colony and governed by Congress property in a slave and other property, and that with absolute authority. different rules may be applied to it in expound- The power to acquire [under Art. IV § 3 cl. 1] ing the Constitution of the United States. [But] necessarily carries with it the power to preserve as the Constitution recognizes the right of prop- and apply to the purposes for which it was ac- erty of the master in a slave, and makes no dis- quired. The form of government to be estab- tinction between that description of property lished necessarily rested in the discretion of and other property owned by a citizen, no tri- Congress. It was their duty to establish the one bunal, acting under the authority of the United that would be best suited for the protection and States, whether it be legislative, executive, or security of the citizens of the United States, and judicial, has a right to draw such a distinction, other inhabitants who might be authorized to or deny to it the benefit of the provisions and take up their abode there, and that must always guarantees which have been provided for the depend upon the existing condition of the Ter- protection of private property against the en- ritory, as to the number and character of its in- croachments of the Government. habitants, and their situation in the Territory. The right to traffic in it, like an ordinary article [b. Restrictions on Congress’ regulatory author- of merchandise and property, was guarantied to ity] the citizens of the United States, in every State that might desire it, for twenty years. And the [T]he power of Congress over the person or Government in express terms is pledged to pro- property of a citizen can never be a mere dis- tect it in all future time, if the slave escapes cretionary power under our Constitution and from his owner. form of Government, [but are subject to] the rights and privileges of the citizen plainly de- Upon these considerations, it is the opinion of fined by the Constitution itself. the court that the act of Congress which prohibited a citizen from holding and owning prop- For example, no one, we presume, will contend erty of this kind in the territory of the United that Congress can make any law in a Territory States north of the line therein mentioned, is not respecting the establishment of religion, or the warranted by the Constitution, and is therefore free exercise thereof, or abridging the freedom void; and that neither Dred Scott himself, nor of speech or of the press, or the right of the peo- any of his family, were made free by being car- ple of the Territory peaceably to assemble, and ried into this territory; even if they had been to petition the Government for the redress of carried there by the owner, with the intention of grievances. becoming a permanent resident. Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by [2. Under Missouri law, was Scott freed upon 114

his return there, by virtue of having been taken Congress. to Illinios, where slavery was outlawed?] I will now consider the relation which the Fed- As Scott was a slave when taken into the State eral Government bears to slavery in the States. of Illinois by his owner, and was there held as Slavery is emphatically a State institution. In such, and brought back in that character, his the provision respecting the slave trade, in fix- status, as free or slave, depended on the laws of ing the ratio of representation, and providing Missouri, and not of Illinois. for the reclamation of fugitives from labor, slaves were referred to as persons, and in no [W]e are satisfied, upon a careful examination other respect are they considered in the Consti- of all the cases decided in the State courts of tution. [W]e know as a historical fact, that Missouri referred to, that it is now firmly set- James Madison, that great and good man, a tled by the decisions of the highest court in the leading member in the Federal Convention, was State, that Scott and his family upon their return solicitous to guard the language of [the Consti- were not free, but were, by the laws of Mis- tution] so as not to convey the idea that there souri, the property of the defendant; and that could be property in man. the Circuit Court of the United States had no jurisdiction, when, by the laws of the State, the I prefer the lights of Madison, Hamilton, and plaintiff was a slave, and not a citizen. Jay, as a means of construing the Constitution in all its bearings, rather than to look behind Upon the whole, therefore, it is the judgment of that period, into a traffic [in slaves] which is this court, that it appears by the record before now declared to be piracy, and punished with us that the plaintiff in error is not a citizen of death by Christian nations. I do not like to draw Missouri, in the sense in which that word is the sources of our domestic relations from so used in the Constitution; and that the Circuit dark a ground. Our independence was a great Court of the United States, for that reason, had epoch in the history of freedom; and while I ad- no jurisdiction in the case, and could give no mit the Government was not made especially judgment in it. Its judgment for the defendant for the colored race, yet many of them were cit- must, consequently, be reversed, and a mandate izens of the New England States, and exer- issued, directing the suit to be dismissed for cised, the rights of suffrage when the Constitu- want of jurisdiction. tion was adopted, and it was not doubted by any Mr. Justice McLEAN dissenting. intelligent person that its tendencies would Being born under our Constitution and laws, no greatly ameliorate their condition. naturalization is required, as one of foreign Many of the States, on the adoption of the Con- birth, to make him a citizen. The most general stitution, or shortly afterward, took measures to and appropriate definition of the term citizen is abolish slavery within their respective jurisdic- ‘a freeman.’ Being a freeman, and having his tions; and it is a well-known fact that a belief domicil in a State different from that of the de- was cherished by the leading men, South as fendant, he is a citizen within the act of Con- well as North, that the institution of slavery gress, and the courts of the Union are open to would gradually decline, until it would become him. extinct. The increased value of slave labor, in On the question of citizenship, it must be admit- the culture of cotton and sugar, prevented the ted that we have not been very fastidious. Under realization of this expectation. Like all other the late treaty with Mexico, we have made citi- communities and States, the South were influ- zens of all grades, combinations, and colors. enced by what they considered to be their own The same was done in the admission of Louisi- interests. ana and Florida. No one ever doubted, and no But if we are to turn our attention to the dark court ever held, that the people of these Terri- ages of the world, why confine our view to col- tories did not become citizens under the treaty. ored slavery? On the same principles, white They have exercised all the rights of citizens, men were made slaves. All slavery has its without being naturalized under the acts of 115 origin in power, and is against right. colony, of full age, who are worth £50 proclamation money, clear estate.’ Mr. Justice CURTIS dissenting. Did the Constitution of the United States de- To determine whether any free persons, deprive them or their descendants of citizenship? scended from Africans held in slavery, were citizens of the United States under the Confed- I can find nothing in the Constitution which, eration, and consequently at the time of the proprio vigore, deprives of their citizenship adoption of the Constitution of the United any class of persons who were citizens of the States, it is only necessary to know whether any United States at the time of its adoption, or who such persons were citizens of either of the should be native-born citizens of any State after States under the Confederation, at the time of its adoption; nor any power enabling Congress the adoption of the Constitution. to disfranchise persons born on the soil of any State, and entitled to citizenship of such State Of this there can be no doubt. At the time of the by its Constitution and laws. And my opinion ratification of the Articles of Confederation, all is, that, under the Constitution of the United free native-born inhabitants of the States of States, every free person born on the soil of a New Hampshire, Massachusetts, New York, State, who is a citizen of that State by force of New Jersey, and North Carolina, though de- its Constitution or laws, is also a citizen of the scended from African slaves, were not only cit- United States. izens of those States, but such of them as had the other necessary qualifications possessed the [I]t is left to each State to determine what free franchise of electors, on equal terms with other persons, born within its limits, shall be citizens citizens. of such State, and thereby be citizens of the United States. An argument from speculative premises, however well chosen, that the then state of opinion One may confine the right of suffrage to white in the Commonwealth of Massachusetts was male citizens; another may extend it to colored not consistent with the natural rights of people persons and females; one may allow all persons of color who were born on that soil, and that above a prescribed age to convey property and they were not, by the Constitution of 1780 of transact business; another may exclude married that State, admitted to the condition of citizens, women. But whether native-born women, or would be received with surprise by the people persons under age, or under guardianship be- of that State, who know their own political his- cause insane or spendthrifts, be excluded from tory. It is true, beyond all controversy, that per- voting or holding office, or allowed to do so, I sons of color, descended from African slaves, apprehend no one will deny that they are citi- were by that Constitution made citizens of the zens of the United States. State; and such of them as have had the neces- I dissent, therefore, from that part of the opin- sary qualifications, have held and exercised the ion of the majority of the court, in which it is elective franchise, as citizens, from that time to held that a person of African descent cannot be the present. a citizen of the United States. The Constitution of New Hampshire conferred I must [also] dissent both from what I deem [the the elective franchise upon ‘every inhabitant of majority’s] assumption of authority to examine the State having the necessary qualifications,’ the constitutionality of the act of Congress of which color or descent was not one. commonly called the Missouri compromise The Constitution of New York gave the right to act, and the grounds and conclusions an- vote to ‘every male inhabitant, who shall have nounced in their opinion. resided,’ &c.; making no discrimination be- The general question may be stated to be, tween free colored persons and others. whether the plaintiff’s status, as a slave, was so That of New Jersey, to ‘all inhabitants of this changed by his residence within that territory, that he was not a slave in the State of Missouri, 116

at the time this action was brought. the court in that case is in conflict with its previous decisions, with a great weight of judicial [If] the acts of Congress on this subject are authority in other slaveholding States, and with valid, the law of the Territory of Wisconsin, fundamental principles of private international within whose limits the residence of the plain- law. tiff and his wife, and their marriage and the birth of one or both of their children, took But it is further insisted we are bound to follow place, falls under the first category, and is a law this decision. I do not think so. In this case, it is operating directly on the status of the slave. By to be determined what laws of the United States the eighth section of the [Missouri Compro- were in operation in the Territory of Wisconsin, mise], act of March 6, 1820, (3 Stat. at Large, and what was their effect on the status of the 548,) it was enacted that, within this Territory, plaintiff. Upon such a question, not depending ‘slavery and involuntary servitude, otherwise on any statute or local usage, but on principles than in the punishment of crimes, whereof the of universal jurisprudence, this court has re- parties shall have been duly convicted, shall be, peatedly asserted it could not hold itself bound and is hereby, forever prohibited: Provided, al- by the decisions of State courts, however great ways, that any person escaping into the same, respect might be felt for their learning, ability, from whom labor or service is lawfully claimed and impartiality. (See Swift v. Tyson, 16 Pe- in any State or Territory of the United States, ters’s R., 1.) such fugitive may be lawfully reclaimed, and I have thus far assumed, merely for the purpose conveyed to the person claiming his or her la- of the argument, that the laws of the United bor or service, as aforesaid.’ States, respecting slavery in this Territory, By the act of April 20, 1836, (4 Stat. at Large, were constitutionally enacted by Congress. It 10) a Territorial Government, under the name remains to inquire whether they are constitu- of the Territory of Wisconsin [was created, tional and binding laws. with a provision banning slavery and the same The words [in Article IV § 3 cl. 2], ‘territory … proviso as in the Missouri Compomise.] Fort belonging to the United States,’ were not used Snelling was within the Territory of Wisconsin. in the Constitution to describe an abstraction, I must conclude, therefore, that it was the will but to [territories] then existing and belonging of Congress that the state of involuntary servi- to the United States, and other similar subjects tude of a slave, coming into the Territory with which might afterwards be acquired. his master, should cease to exist. It is said this provision has no application to But it is a distinct question, whether the law of any territory save that then belonging to the Missouri recognized and allowed effect to the United States. No reason has been suggested change wrought in the status of the plaintiff, by why any reluctance should have been felt, by force of the laws of the Territory of Wisconsin. the framers of the Constitution, to apply this The laws of the United States, constitutionally provision to all the territory which might be- enacted changed the status of a slave coming long to the United States, or why any distinc- into the Territory of Wisconsin with his master, tion should have been made, founded on the ac- who went thither to reside for an indefinite cidental circumstance of the dates of the ces- length of time, in the performance of his duties sions. as an officer of the United States, and it is in If, then, this clause does contain a power to leg- conformity with the rules of international law islate respecting territory [territory acquired af- that this change of status should be recognized ter 1789, including Wisconsin], what are the everywhere. limits of that power? The Constitution declares But it is insisted that the Supreme Court of Mis- that Congress shall have power to make ‘all souri has settled this case by its decision in needful rules and regulations’ respecting the Scott v. Emerson, (15 Missouri Reports, 576). territory belonging to the United States. There In my judgment, the opinion of the majority of is nothing in the context which qualifies the 117

grant of power. The regulations must be ‘re- very words of the great charter. It existed in specting the territory.’ An enactment that slav- every political community in America in 1787, ery may or may not exist there, is a regulation when the ordinance prohibiting slavery north respecting the territory. and west of the Ohio was passed. [W]hat positive prohibition exists in the Con- And if a prohibition of slavery in a Territory in stitution, which restrained Congress from en- 1820 violated this principle of Magna Charta, acting a law in 1820 to prohibit slavery north of the ordinance of 1787 also violated it; and what thirty-six degrees thirty minutes north latitude? power had, I do not say the Congress of the The only one suggested is that clause in the Confederation alone, but the Legislature of fifth article of the amendments of the Constitu- Virginia, of the Legislature of any or all the tion which declares that no person shall be de- States of the Confederacy, to consent to such a prived of his life, liberty, or property, without violation? I think I may at least say, if the Con- due process of law. gress did then violate Magna Charta by the ordinance, no one discovered that violation. Slavery, being contrary to natural right, is created only by municipal law. This is not only For these reasons, I am of opinion that so much plain in itself, and agreed by all writers on the of the several acts of Congress as prohibited subject, but is inferable from the Constitution, slavery and involuntary servitude within that and has been explicitly declared by this court. part of the Territory of Wisconsin lying north The Constitution refers to slaves as ‘persons of thirty-six degrees thirty minutes north lati- held to service in one State, under the laws tude, and west of the river Mississippi, were thereof.’ Nothing can more clearly describe a constitutional and valid laws. status created by municipal law. In my opinion, the judgment of the Circuit The status of slavery is not necessarily always Court should be reversed, and the cause re- attended with the same powers on the part of manded for a new trial. the master. The master is subject to the supreme power of the State, whose will controls his action towards his slave, and this control must be defined and regulated by the manicipal law. Which conditions shall attend the status of slavery, must depend on the municipal law which creates and upholds it. Is it conceivable that the Constitution has conferred the right on every citizen to become a resident on the territory of the United States with his slaves, and there to hold them as such, but has neither made nor provided for any municipal regulations which are essential to the existence of slavery? It must be remembered that this restriction on the legislative power [“No person … shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation, Am. V] is not preculiar to the Constitution of the United States; it was borrowed from Magna Charta; was brought to America by our ancestors, as part of their inherited liberties, and has existed in all the States, usually in the 118

Robert Barnes & Anne E. Kornblut, It’s Obama vs. the Supreme Court, Round 2, Over Campaign Finance Ruling, WASH. POST, March 11, 2010 President Obama and the Supreme Court have The court ruled 5 to 4 in January that corpora- waded again into unfamiliar and strikingly per- tions and unions have a First Amendment right sonal territory. to use their general treasuries and profits to spend freely on political ads for and against When Chief Justice John G. Roberts Jr. told specific candidates. The court overturned its law students in Alabama on Tuesday that the own precedents and federal law in the decision, timing of Obama’s criticism of the court during which was hailed by conservatives and a few the State of the Union address was “very trou- liberals as a victory for free political speech, bling,” the White House pounced. It shot back and was denounced by Obama, who said in his with a new denouncement of the court’s ruling State of the Union address that it would lead to that allowed a more active campaign role for elections being “bankrolled by America’s most corporations and unions. powerful interests.” On Wednesday, Senate Democrats followed up Obama’s blunt criticism, while six black-robed with pointed criticism of Roberts, and at a hear- justices sat at the front of the House chamber, ing on the decision, a leading Democrat said the set off a round of public debate about whether American public had “rightfully recoiled” from he was both wrong and rude, or whether Justice the ruling. Samuel A. Alito Jr. violated judicial custom by The heated rhetoric has cast the normally clois- silently mouthing “not true” while the president tered workings of the court into a very public was speaking. spotlight. Democrats hope to make the decision Presidential historians said that while other in Citizens United v. Federal Election Commis- presidents have criticized Supreme Court decision part of their strategy to portray the con- sions or called upon Congress to remedy them, servative justices as more protective of corpo- Obama’s was the most pointed and direct criti- rate interests than of average Americans. cism in a State of the Union address since Pres- A Democratic strategist who works with the ident Franklin D. Roosevelt took on the court White House said the fight is a good one for for blocking his programs. Obama, helping lay the groundwork for the next Supreme Court opening. “Most Ameri- An issue of ‘decorum’ cans have no idea what the Supreme Court does Round 2 began Tuesday, when Roberts spoke or how it impacts their lives,” the strategist at the University of Alabama law school. He said. “This decision makes it crystal clear.” did not mention Citizens United in his speech and declined to answer a question about criti- Senate Judiciary Committee Chairman Patrick cism of the ruling. J. Leahy (D-Vt.) opened the hearing on the ruling Wednesday by declaring that “the Citizens But when asked whether the State of the Union United decision turns the idea of government address was the “proper venue” in which to of, by and for the people on its head.” The com- “chide” the Supreme Court, Roberts did not mittee’s ranking Republican, Jeff Sessions hesitate. (Ala.), countered that Obama and Democrats “First of all, anybody can criticize the Supreme are mischaracterizing the ruling for political Court without any qualm,” he said, adding that gain. “some people, I think, have an obligation to “There has been too much alarmist rhetoric that criticize what we do, given their office, if they has been flying around since this decision,” think we’ve done something wrong.” Sessions said, advising his colleagues not to He continued: “On the other hand, there is the “misrepresent the nature of the decision or im- issue of the setting, the circumstances and the pugn the integrity of the justices.” decorum. The image of having the members of one branch of government standing up, literally 119

surrounding the Supreme Court, cheering and a partisan fight with the court. Yet they hollering while the court -- according to the re- acknowledged that a debate over campaign fi- quirements of protocol -- has to sit there ex- nance fed into Obama’s central campaign pressionless, I think is very troubling.” promise of transparency and reform. “This is really about the president’s change agenda,” a The White House struck back quickly -- not at White House official said. Roberts’s point, but at the decision. “What is troubling is that this decision opened the flood- “This is the functioning of democracy at its gates for corporations and special interests to highest,” the official said. “People disagree, pour money into elections -- drowning out the they discuss, they debate.” voices of average Americans,” White House Administration officials did not question press secretary Robert Gibbs said in a state- whether Roberts’s comments were appropriate, ment. “The president has long been committed noting that he had replied to a question. to reducing the undue influence of special interests and their lobbyists over government. But the fracas is the kind the justices usually That is why he spoke out to condemn the deci- like to avoid. Justice Clarence Thomas told a sion.” Florida law school audience last month that the controversy reinforced his decision to skip the ‘People disagree’ State of the Union address. “One of the conse- White House officials said the debate helps un- quences is now the court becomes part of the derscore differences between the president and conversation, if you want to call it that,” he the conservative court and puts into relief what said. “. . . It’s just an example of why I don’t will be at stake when there is another opening go.” on the bench. There is speculation that Justice Roberts, who has attended the event since join- John Paul Stevens, who turns 90 next month, ing the court in 2005, indicated at the Alabama will retire at the end of this term. event that he may now agree with Thomas. At a time when the administration is struggling “To the extent the State of the Union has de- to prove that it can work across political lines generated into a political pep rally, I’m not sure on a health-care overhaul and other matters, why we’re there,” he said. Obama officials insisted they were not seeking

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Amita Kelly, McConnell: Blocking Supreme Court Nomination ‘About a Principle, Not a Person’, NPR.org, March 16, 2016 Senate Majority Leader Mitch McConnell ple decide. The Senate will appropriately re- vowed again Wednesday to block President visit the matter when it considers the qualifica- Obama’s Supreme Court nomination, saying tions of the nominee the next president nomi- the American people should have a “voice” in nates, whoever that might be,” McConnell said. the process. “It is a president’s constitutional right to nominate a Supreme Court justice, and it is the Senate’s constitutional right to act as a check on a president and withhold its consent,” McConnell said on the Senate floor following the president’s nomination of U.S. Court of Appeals Judge Merrick Garland. In his remarks earlier in the day, President Obama had called for the Senate to put politics aside and confirm Garland. Obama praised Garland’s collegiality and ability to build consensus, saying “he’s shown a rare ability to bring together odd couples.” A Supreme Court nomination, Obama said, is “supposed to be above politics, it has to be, and should stay that way.” McConnell’s comments came after a pledge he made last month that the Senate would take no action on the nomination, setting the stage for a political fight. McConnell said Wednesday that the “the decision the Senate made weeks ago remains about a principle, not a person.” “It seems clear President Obama made this nomination not, not with the intent of seeing the nominee confirmed, but in order to politicize it for purposes of the election,” McConnell said. “I believe the overwhelming view of the Republican Conference in the Senate is that this nomination should not be filled, this vacancy should not be filled by this lame duck president,” McConnell said. “The American people are perfectly capable of having their say on this issue, so let’s give them a voice. Let’s let the American peo-

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Editorial, The Stolen Supreme Court Seat, N.Y. Times, 12/24/16 Soon after his inauguration next The people spoke when they re-elected month, President-elect Donald Trump will Mr. Obama in 2012, entrusting him to nominate someone to the Supreme Court, choose new members for the court. And which has been hamstrung by a vacancy the Senate has had no problem consider- since the death of Justice Antonin Scalia ing, and usually confirming, election-year in February. There will be public debates nominees in the past. about the nominee’s credentials, past rec- Of course, Supreme Court appoint- ord, judicial philosophy and temperament. ments have always been political, and the There will be Senate hearings and a vote. court’s ideological center has shifted back No matter how it plays out, Americans and forth over time. But the Senate has must remember one thing above all: The given nominees full consideration and a person who gets confirmed will sit in a vote even when the party in power has op- stolen seat. posed a president’s choice. That is, until It was stolen from Barack Obama, a this year, when Republicans claimed that twice-elected president who fulfilled his though the Constitution calls for the Sen- constitutional duty more than nine months ate’s ”advice and consent,” senators ago by nominating Merrick Garland, a aren’t obligated to do anything. This is a highly qualified and widely respected fed- bad-faith reading of that clause, even if eral appellate judge. there is no clear way to force a vote. It certainly obliterates a well-established politi- It was stolen by top Senate Republi- cal norm that makes a functioning judicial cans, who broke with longstanding tradi- branch possible. . . . tion and refused to consider any nominee Mr. Obama might send them, because This particular norm is of paramount they wanted to preserve the court’s con- importance because the court’s institu- servative majority. The main perpetrators tional legitimacy depends on its perceived of the theft were Mitch McConnell, the separation from the elected branches — a majority leader, and Charles Grassley, fragile concept in the best of times. By ty- chairman of the Judiciary Committee. But ing the latest appointment directly to the virtually all Republican senators were ac- outcome of the election, Mr. McConnell complices; only two supported holding and his allies took a torch to that idea — hearings. an outrageous gambit that, to nearly everyone’s shock, has paid off. But while Re- The Republican party line — that it publicans may be celebrating now, the was an election year, so the American damage they have inflicted on the confir- people should have a “voice” in the selec- mation process, and on the court as an in- tion of the next justice — was a patent lie. stitution, may be irreversible.

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Ilya Shapiro, The Senate Should Refuse to Confirm All of Hillary Clinton’s Judicial Nominees, The Federalist.com, Oct. 26, 2016 When Sen. John McCain said last During the battle over the current vacancy, week that he would work to block any Su- some senators have said they’ve fulfilled their preme Court nominee a president Hillary Clin- duty by giving President Obama the advice that ton would name, it raised some eyebrows. Re- they simply won’t confirm anyone. (Also, why publican senators pledged not to take up any hold farcical hearings that would be even more nominee to fill the late Justice Antonin Scalia’s Kabuki theatre than what we’ve come to ex- seat until after the election, but that stance ex- pect?) The voters seem to have evaluated this pires January 20 (regardless of any lame-duck position and found it acceptable, although of machinations). course the GOP may lose its Senate majority When Senate Majority Leader Mitch for other reasons. McConnell announced the #NoHearingNoVote Similarly, if a majority of senators refused position, he argued that, given the nation’s po- to confirm anyone to any offices, or larization and that the next justice could swing pass any legislation whatsoever, that’s their the balance of the Supreme Court, this election- prerogative. As a matter of constitutional law, year vacancy should be filled by the people’s the Senate is fully within its powers to let the choice. Supreme Court die out, literally. I’m not sure It was a principled position, but a contro- such a position is politically tenable—barring versial and risky one. Yet McConnell’s calcu- some extraordinary circumstance like over- lus has been borne out. Not only has his caucus whelming public opinion against the legiti- stuck with it, but it seems the voters concerned macy of the sitting president—but it’s defi- about Republican “obstruction” wouldn’t vote nitely constitutional. GOP anyway. Senate Judiciary Committee But that’s not what McCain meant. He’s Chairman Charles Grassley of Iowa has faced not a lawyer and indeed walked back his com- the brunt of the “do your job” attack and is pull- ments, saying through a spokeswoman that ing away in the polls—regardless of the nega- while “Hillary Clinton has a clear record of tive Donald Trump effect. supporting liberal judicial nominees,” he would But the McCain volley, launched while “thoroughly examine the record of any Su- campaigning for embattled Pennsylvania Sen. preme Court nominee . . . and vote for or Pat Toomey, is something new: are Republi- against that individual based on their qualifica- cans really planning to keep that seat empty for tions as he has done throughout his career.” four (even eight) years if Clinton wins? (Pre- Reading between the lines, he expects to reject sumably this would be in a scenario where they Clinton’s nominees because they’re too pro- keep the Senate; Democrats would surely get gressive, but he’ll certainly make sure of that rid of the filibuster if it came to that.) Doesn’t fact before voting that way. that expose their motivations as purely partisan Utah Sen. Mike Lee said much the same regardless of their high-minded rhetoric? thing at a debate earlier this month. He explained there’s no difference between a so- The Constitution Allows It called “moderate” like current Scalia replace- Well, let’s get one thing out of the way first: ment nominee Merrick Garland and whomever the Constitution is completely silent on all this. else a President Clinton would pick. “Not a sin- It’s the president’s job to nominate and the Sen- gle Democratic nominee to the U.S. Supreme ate’s to provide “advice and consent,” but Court since [Byron White, nominated by Pres- there’s no further textual explication.

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ident Kennedy in 1962] has voted inde- to the powerful”—like some black-robed com- pendently,” he detailed, which is why he’s munity organizers—is far more damning than been skeptical of President Obama’s nominees. her nonsensical positions on Heller (Second Amendment) or Citizens United (declining to People Elect Senators to Represent Them, punish producers of a movie criticizing Hillary Too Indeed, Hillary Clinton herself said at the Clinton). last presidential debate that the Supreme Court Should senators rubber-stamp judicial is meant to answer questions like “What kind nominees of that ilk, who care not about the law of country are we going to be? What kind of but rather hew to particular policies, out of a opportunities will we provide for our citizens?” sense of tradition or deference to the executive? Well, gee, if those are the questions you ask, of I simply can’t blame politicians who follow course you’ll end up with super-legislators, their convictions. If you truly believe that a par- presumably in ideological agreement with the ticular nominee would wreak havoc on Amer- president appointing them. If you want the ju- ica, why not do everything you can to stop him? diciary determining public policy, of course I imagine this is what senators Obama and you’d think that Supreme Court justices should Clinton were doing when they voted to filibus- “represent all of us.” ter Judge Samuel Alito. While I think they were But that goes against the rule of law and the hopelessly misguided in their assessment of idea of a judge as neutral arbiter, doing his or Justice Alito and his legal views, I don’t fault her best to apply the law to the facts at issue. them for pursuing an agenda they believed in. As Supreme Court Chief Justice John Roberts So when you get past the gotcha headlines, explained at his confirmation hearings, the lit- breathless reportage, and Inauguration Day, if tle guy should win when the law favors him, Hillary Clinton is president it would be com- and the big corporation should win when the pletely decent, honorable, and in keeping with law goes that way. the Senate’s constitutional duty to vote against Clinton’s admission that her nominees essentially every judicial nominee she names. would “be in the grand tradition of standing up

Ilya Shapiro is a senior contributor to The Federalist. He is a senior fellow in Constitutional Studies at the Cato Institute and Editor-in-Chief of the Cato Supreme Court Review. Follow him on Twitter, @ishapiro.

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Kim Janssen, Posner Says ‘Highly Politicized’ Supreme Court Should Grow to 19 Justices, CHICAGO TRIBUNE, Aug. 1, 2017 Chicago’s favorite smarty pants judge says the gales during the talk. Posner, who was ap- Supreme Court should have 19 members, not 9. pointed by President Ronald Reagan, said no Whoever could U.S. Appellate Court president since Herbert Hoover has appointed a Judge Richard Posner have in mind to fill the Supreme Court justice who “was not in either extra spots? his personal or his political interest.” Probably not himself – he thinks all judges “The modern presidents don’t think that way, should retire at 80. but if the Supreme Court was much larger, they might say, ‘Well, OK ... we have 19 justices, 12 ”Mediocre and highly politicized,” was the of them are highly politicized, but we have opinion the 78-year-old jurist gave of the jus- these extra 7 seats, so we’ll appoint them on the tices who sit in D.C. during a recent talk at the basis of quality,’ and that would make a big dif- University of Chicago. ference.” “We have a very crappy judicial system.” Posner, who has a book on the federal judiciary Posner — the most highly cited legal scholar of out this month, also lamented that the current the 20th century, according to the Journal of court is dominated by “extremely reactionary Legal Studies judges appointed by Bush, mainly” but — repeated his acknowledged that his ideas to improve the complaint that court were “quixotic.” politicians are It isn’t his first complaint about the Supreme more concerned Court. In October he said the court with appointing had ”reached a nadir” and was “awful.” “tokens” such as women or And earlier this month he said in a conversation Hispanic jus- published by Slate that there should be “man-

tices, and with datory retirement for all judges at a fixed age, would-be justices’ politics than they are with probably 80,” adding that appointment to the merit. Supreme Court should not be limited to lawyers because brilliant businessmen, politicians “If you had 19 members you would inevitably or teachers could rely on “brilliant law clerks have more diversity,” he told Prof. Luigi Zin- for the legal technicalities” and “most of the technicalities are antiquated crap,” anyway.

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Burgess Everett & Elana Schor, McConnell’s laser focus on transforming the judiciary, Politico, 10/17/18 A handful of Republican senators did some- the Fourth Circuit for perhaps 40 or 50 years thing unusual on Wednesday: With the Senate given her youth. not even in session, and no Democrats in sight, McConnell’s pace of filling federal court seats they convened the Judiciary Committee to ad- has been eye-popping, especially on the pow- vance a half-dozen of Donald Trump’s judicial erful appellate circuits. Addressing the con- nominees. servative Heritage Foundation on Tuesday For Republicans, there’s nothing that matters night, McConnell touted 29 circuit court judges more. They aren’t pitching a big visionary confirmed since Trump took office, which he agenda to persuade voters to return them to described as a record pace “in any administra- power next year — there’s only passing mention in history.” That’s 16 percent of the 179 tion in the midterms of repealing Obamacare, appeals court seats. … and little talk of making Trump’s border wall a The Kentucky Republican pledged Tuesday reality. It’s all about the judiciary. night to continue two more years of work on his Senate Majority Leader Mitch McConnell has confirmation agenda if the GOP keeps the Sen- given every indication that his primary focus ate. It’s a mission, set in motion by his 2016 — through Election Day and, assuming Repub- decision to bottle up Merrick Garland’s Su- licans still control the Senate, in the two years preme Court nomination, that is looking easy to to follow, will be the ongoing reshaping of the carry out. courts. To transform the courts, Republicans need the “I love the tax bill and a lot of the other things presidency and 50 GOP votes in the Senate we did. But I think lifetime appointments — given the recent evisceration of the filibuster on not only to the Supreme Court but to the circuit nominees. With 51 seats and a generous Senate courts — are the way you have the longest last- map laid out before them, there’s an easy ing impact on the country,” McConnell said in roadmap for the GOP to continue clawing back an interview this month. “The president and his the more than 300 lifetime confirmations that team have sent up, in my view, excellent Democrats oversaw during Barack Obama’s judges, and we’ve had the unity we’ve needed presidency. … to get them confirmed.” “A president is entitled to nominate people,” That could mean a 2019 that looks a lot like Sen. John Kennedy (R-La.) said on Wednes- the scene Wednesday: Reporters asking sena- day, adding that he “would support legislation tors about unrelated issues outside the Senate that says if the president, no matter who the Judiciary Committee, while inside the GOP president is, nominates somebody in the exec- continues barreling ahead with confirming a utive branch or judicial branch, the Senate’s got parade of younger conservative judges like 36- 90 days to vote yea or nay. That’s what we’re year-old Allison Rushing, who could serve on paid to do.”

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Zach Beauchamp, The Supreme Court’s legitimacy crisis is here, Vox, Oct. 6, 2018 By engineering the confirmation of Brett Ka- vealed a “potential bias” that could be a prob- vanaugh to the Supreme Court, Senate Major- lem. And more than 2,400 law professors ity Leader Mitch McConnell has won a tremen- signed a letter expressing their view that Ka- dous partisan victory — but at the cost of tre- vanaugh “did not display the impartiality and mendous damage to the Court itself. judicial temperament” to sit on the Court. The Supreme Court’s legitimacy depends on Kavanaugh seems to have sensed that his per- most Americans viewing it as above the parti- formance may have been damaging: He wrote san fray, an institution whose decisions are an op-ed that appeared Thursday in the Wall driven by legal reasoning, not by the justices’ Street Journal acknowledging that he was “too partisan leanings. emotional at times” during the hearing, and asserting that he “will keep an open mind in every In confirming Kavanaugh, with a razor- case.” thin partisan majority no less, the Republican Senate may well end up eroding that public But his partisan testimony was consistent with faith. Kavanaugh’s fiery and nakedly partisan a career spent in the Republican trenches testimony in front of the Senate Judiciary Com- against Democrats: He worked for Ken Starr’s mittee during the September 27 hearing re- investigation into the Monica Lewinsky scan- vealed a justice who was less an ”impartial ar- dal, and then for President George W. Bush af- biter” of the law and more a partisan creature ter that. Now he becomes the conservative ma- who would take his political grudges to the Su- jority’s fifth vote after a bitter confirmation bat- preme Court. tle and an FBI investigation that Democrats believe was a whitewash. He joins the Supreme In that hearing, he blamed the sexual assault al- Court trailed by allegations of sexual assault legations against him on a left-wing conspir- (which he has denied) and accusations from acy: a “calculated and orchestrated political hit, some liberals that he lied under oath. fueled with apparent pent-up anger about Pres- ident Trump and the 2016 election.” He The system depends on everyone having faith claimed, without evidence, that Democrats in the Supreme Court adjudicating partisan dis- were going after him to get “revenge on behalf putes; confirming Kavanaugh, who is the most of the Clintons,” with the support of “millions unpopular Supreme Court nominee ever to be of dollars in money from outside, left-wing op- approved by the Senate, could theoretically position groups.” He was defiant, even down- collapse this consensus. right rude, toward the Democratic senators who The Kavanaugh confirmation fight “directly asked him questions — interrupting Sen. Amy links the Court to the direct political process,” Klobuchar, whose father is in recovery from al- says Michael Nelson, a professor at Penn State. cohol addiction, to ask if she had ever blacked “That’s the sort of thing that’s kryptonite for out from overconsumption. the Court.” His performance was so alarming that The Court’s legitimacy problem the American Bar Association, which had given him its stamp of approval, on Friday an- When scholars talk about the Supreme Court’s nounced that it was reopening its evaluation of “legitimacy,” they are talking about something Kavanaugh in light of his “temperament.” Re- more fundamental than job approval or whether tired Justice John Paul Stevens was also taken the public agrees with the Court’s ruling in a aback, saying Kavanaugh’s performance re- specific case. They’re talking about the people’s faith in the very idea of the Supreme

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Court: the notion that it should be the final arbiter on political questions, the ultimate interpreter of the Constitution, insulated from parti- sanship and politics. This kind of basic faith in the Court’s mission is essential to its functioning. Liberal democracy is, in theory, premised on the idea that you can only govern with the consent of the governed. There’s an inherent tension between this vision and unelected judges setting law through rulings, one resolved only if the public believes that the Court is a legitimate decision-making body. A 2005 Annenberg survey found that the Su- preme Court is significantly more trusted than the other two branches of the federal govern- “The way the literature sees it now, it would ment, and that 75 percent of Americans believe “the Supreme Court can usually be trusted to take a lot to shake people’s faith in the Court,” make decisions that are right for the country as says Sara Benesh, an expert on the Court at the a whole.” University of Wisconsin Milwaukee. Much of that faith in the Court still endures. There’s a debate among scholars about A 2018 Annenberg poll, for example, found whether a series of unpopular rulings alone that 73 percent of Americans disagreed with the could damage the Court’s legitimacy in the idea that “if the Supreme Court started making public’s eyes, and genuine uncertainty about a lot of rulings that most Americans disagreed just how insulated the Court is from public with, it might be better to do away with the opinion. It could be the case that the Court’s le- Court altogether.” gitimacy is relatively secure — or that it’s a few bad decisions away from collapsing, poten- On other measures, however, public faith in the tially precipitating a crisis in which political ac- courts is in modest decline. An annual Gallup tors start to ignore Court decisions. poll of public confidence in American institutions shows that the percentage of Americans But whether or not academics think controver- who have a “great deal” or “quite a lot” of con- sial decisions are enough to destroy faith in the fidence in the Court has been mired in the 30s Court, they agree that the ultimate issue in de- for much of the past decade; in the 1990s, that termining the Court’s legitimacy is whether it figure routinely reached the 40s and 50s [see appears to be above politics. This appears to be chart, “Confidence in the Supreme Court,” at part of the calculation behind Chief Justice right column]. John Roberts’s decision to uphold the Afforda- ble Care Act: He was deeply worried about the Political scientists generally do not see this as Court being perceived as simply a partisan Re- evidence that the Court is losing fundamental publican actor. legitimacy. While the public may be less happy with the Court’s performance, or possibly less “This is the real risk to the Court’s legitimacy,” likely to trust it to do the right thing, they still Rebecca Gill, a political scientist at the Univer- generally do not think its role in the system has sity of Nevada Las Vegas, says of Kavanaugh’s been cast into immediate jeopardy. confirmation. “It’s not the idea that the Court

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makes political decisions — it’s the idea that them — blasting Democrats in an unprecedent- the Court is just another partisan institution.” edly partisan speech — will likely mar his rep- When the Court loses its legitimacy, it has con- utation, and thus the Court. crete consequences. The Supreme Court has no “[The hearing] was ugly and partisan, which is way to actually enforce its edicts. It relies on exactly what could do damage to the institu- compliance and enforcement from the other tion,” Benesh tells me. “Pushing this nomina- branches and local governments. If the public tion through after that cannot be positive for the doesn’t broadly believe in the Court’s role in Court.” the system at a very basic level, political actors The increased polarization of American poli- might be tempted to ignore it. tics will make the hit to the Court’s legitimacy This has happened before. In 1832, President worse than even past events, like the Clarence Andrew Jackson refused to implement Su- Thomas-Anita Hill hearings or Bush v. Gore. preme Court rulings upholding the rights of the Over the past several decades, the political par- Cherokee tribe; after Brown v. Board of Educa- ties have sorted into more unified liberal and tion, Southern states employed “massive re- conservative blocs. The decline of conservative sistance” tactics to block Court-mandated de- Democrats and liberal Republicans, and segregation. We could now be entering yet an- the linking of partisan identity with social iden- other period of crisis. tities like race and religion, has made partisan- The liberal turn against the Court ship the most powerful force in American democracy. Since 2016, Senate Majority Leader Mitch McConnell has used scorched-earth tactics to The result has been an across-the-board decline seize control of the Supreme Court. When An- in faith in neutral institutions. Everything is be- tonin Scalia died in 2016, McConnell infa- ing seen through a polarized lens — not just the mously refused to even consider President political branches but executive agencies and Obama’s replacement nominee, Merrick Gar- even federal law enforcement as well. There’s land, until after the 2016 election. There was no a growing trend in Americans identifying the principled rationale for this: The reason was quality of institutions with how well those in- that Garland is a moderate liberal and would stitutions serve their partisan ends — a trend have tipped the Court from a 5-4 conservative the Court has been (relatively) insulated from, majority to a 5-4 liberal one. but one that it’s likely to get looped into now. McConnell got his way, of course, and then Experimental evidence suggests this is a fairly President Donald Trump appointed staunch plausible outcome. Boston University’s Dino conservative Neil Gorsuch to the Court instead Christenson and David Glick conducted an ex- of Garland. Now, longtime Republican opera- periment that showed some people evidence tive Kavanaugh has been confirmed over that the Court’s ruling upholding Obamacare heated liberal objections, which have not sub- was politically motivated while withholding sided (to say the least): 76 percent of Demo- the same material from another group. The re- crats believe Christine Blasey Ford’s allega- sult: Conservatives who were given material tions that Kavanaugh sexually assaulted her, showing that the ruling was political viewed according to a Marist poll released on October the Court as significantly less legitimate com- 3. pared to even other conservatives in the control group. The sexual assault allegations were bad enough for the Court’s legitimacy on their own. But the The more the Court becomes the center of par- tack Kavanaugh chose to employ defending tisan conflict, in short, the more people are

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likely to see it through a partisan lens. And that Court that already has a justice (Clarence process is already happening, albeit in a some- Thomas) who has been accused of sexual har- what unequal fashion: Democrats seem to be assment and, more recently, groping a female more likely to be skeptical of the Court than attorney at a dinner party. This, in and of itself, Republicans. would likely damage the perception of the This stems from what legal scholars Joseph Court in the #MeToo era (at least among Dem- Fishkin and David Pozen call “asymmetric ocrats and people on the broader left). constitutional hardball”: the fact that Republi- But when you combine that with the fact that cans have broken the informal rules of politics this Court could plausibly overturn Roe v. and constitutional practice far more than Dem- Wade in the coming years — the most cher- ocrats have in the past several decades. ished victory of the American feminist move- The Merrick Garland saga is the most promi- ment — you have yet another reason to worry nent example of this. It’s not the only one, but about a Supreme Court legitimacy crisis. from my conversations with liberals, it appears Almost immediately after Kennedy announced to have been something of a breaking point. Re- his retirement, prominent liberals and leftists publican senators blocking an Obama appoin- started calling for the next Democratic Con- tee, for obviously partisan reasons, convinced gress to pack the Court — meaning expanding many Democrats that there are no impartial its membership from nine to 11 (or more) to norms surrounding the Court. create a new liberal majority. Kavanaugh on Now you have Kavanaugh rammed through de- the Court, and the 5-4 rulings on charged topics spite the cloud of sexual assault allegations, af- that might ensue, will likely intensify such ter an FBI investigation that Democrats (cor- calls. rectly) believe was too limited to help adjudi- We are about to enter a new era in the Supreme cate the truth of the allegations against the now- Court’s life, one in which a significant portion justice. of the population will view its decisions as fun- The Supreme Court’s newest justice is a man damentally illegitimate. It’s part of the baleful who remains accused of sexual assault, nomi- legacy that Donald Trump and Mitch nated by a president who himself has been ac- McConnell will leave us with us long after cused of several sexual assaults, to serve on a they’re gone.

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Ian Samuel, Kavanaugh will be on the US supreme court for life. Here’s how we fight back, The Guardian, Oct. 9, 2018 Brett Kavanaugh has been confirmed, and he met – swiftly – by serious and sober realists, all will serve as a justice on the supreme court for of whom who are eager to explain the reasons the rest of his life. This event assures rightwing that this cannot possibly work. Their arguments dominance of the court for a generation – or so tend to take one of a few forms. we are told. After all, at 53, he is not even the First, they say, this idea is counterproductive. youngest conservative: Justice Neil Gorsuch is If the Democrats pack the courts, Republicans 51. The chief justice, who has been there for will retaliate by packing the courts even more than a decade, is only 63. Justice Ruth Ba- more when next they are in power. (“It’s time,” der Ginsburg, by contrast, is 85, and Justice these people assure you, “for some game the- Stephen Breyer is 80. We are in, it seems, for ory.”) That is, if the left expands the court’s decades of misery for labor unions, voting membership to 15, then the Republicans will rights, regulation of businesses and all the rest. expand it to 17, or 19, when they are in power Or are we? The logic behind this “lost for a next. And that makes sense until you remem- generation” stuff is simple enough. There are ber: didn’t the Republicans already adjust the nine seats on the supreme court. All of its mem- size of the court (shrinking it to eight, by refus- bers serve for life. The five-justice conserva- ing to consider Judge Merrick Garland’s nomi- tive majority is quite young and seems healthy. nation) when they had the power to do it? Given all that, Kavanaugh’s confirmation is the And if, in a decade, the right did further expand final nail in the coffin, isn’t it? the court and take back control of it … how Sign up to receive the latest US opinion pieces would that leave the left in any position that’s every weekday worse than now? This objection (“what if they retaliate?!”) feels, in present circumstances, a The ray of hope, if there is one, lies in contra- bit like worrying that if the Allies invade Nor- diction of the first of those premises. Nothing mandy, the Nazis will shoot at them. It’s not in the constitution fixes the number of supreme wrong, exactly, but it seems bereft of some of court seats at nine. The size of the court is set the essential context. by legislation, and has varied over time. We started with six. We’ve gone as high as 10 Another objection is more romantic. Court- (when Abraham Lincoln was president, and packing, some worry, would destroy the legiti- Congress worried about a reactionary supreme macy of the supreme court as a non-partisan in- court invalidating his wartime measures). Only stitution – it would say farewell to the court as recently, Republicans held the court to eight a forum where neutral principles, rather than members for a year in the wake of Antonin ideology, governs. Whereas the game theorists Scalia’s death. of the prior objection are mostly annoying, this objection is almost sad: what can one say to it So, then, the next time the left has some politi- but “Oh, honey?” cal power, why not just expand the size of the supreme court and add another handful of jus- Every well-socialized adult must decide for tices? Make Brett Kavanaugh a gifted and en- him- or herself the decision that represents, for ergetic member of a 10-to-5 minority. Don’t them, the definitive refutation of this School- get mad, in other words: get even. house Rock vision of the American judiciary. This is called “court-packing”. And although it Young socialists just coming of age will prob- enjoys a long and distinguished history in ably choose Janus v AFSCME – the culmina- America, anyone who suggests it today will be tion of a calculated, six-year political hit on public-sector labor unions. Elder Democrats

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can rally around their disdain for Shelby county above politics, then the Rubicon was crossed – (which invalidated a major portion of the Vot- however one counts – quite some time ago. ing Rights Act) or Citizens United (which Alea iacta est. paved the way for unlimited corporate spend- At bottom, though, opponents of court-packing ing in elections). The truly wizened might re- have a burden to supply a superior alternative. mind us all of Bush v Gore (which … well, you The court is firmly in the grips of young con- know that one). servatives who will serve for decades. What is But this is not a coming-of-age experience lim- to be done? Writing more persuasive briefs is ited to the left: even conservatives are eager to not a hopeful strategy. Term limits don’t even explain how Obergefell v Hodges (which rec- begin to solve the problem. Accepting defeat is ognized a constitutional right to same-sex mar- a non-starter. And so although court-packing is riage) or Roe v Wade (which … well, again, deservedly controversial, its skeptics on the left you know) or a dozen other decisions prove the must nonetheless answer a question to which court is an institution dedicated to the advance- they have yet to supply a convincing answer: ment of elite liberal victories in the culture Do you have a better idea? wars. The point is: if the legitimacy of the supreme court depends on it being an institution

Ian Samuel is an associate professor of law at Indiana University Bloomington’s Maurer school of law. He is also the co-host of@FirstMondaysFM

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David B. Rivkin Jr. and Lee A. Casey, Democrats Abandon the Constitution, Wall St. J., Oct. 15, 2018 Brett Kavanaugh’s appointment to the Su- Constitution—which spells out the amendment preme Court has sparked a firestorm of outrage procedure—provides that “no State, without its and recrimination on the left. Some attacks Consent, shall be deprived of its equal Suffrage seem aimed at intimidating the justices into in the Senate.” That means an amendment supporting progressive causes. “The Court changing the structure of the Senate would re- must now prove—through its work—that it is quire ratification by all 50 states. worthy of the nation’s trust,” Eric Holder, Pres- • Judicial independence. Commentators who ident Obama’s attorney general, tweeted Oct. disapprove of the Supreme Court’s composi- 6. tion have urged, as one law professor put it, Yet the attacks go beyond ideology. Detractors “shrinking the power of the courts to overrun of Justice Kavanaugh and President Trump are our citizens’ democratic decisions.” Some sug- denouncing the Constitution itself and the core gest limiting and staggering the justices’ terms elements of America’s governmental structure: so that a vacancy would come up every other year, ensuring that the court follows the elec- • The Electoral College. Mr. Trump’s oppo- tion returns. That could be achieved via consti- nents claim he is an illegitimate president be- tutional amendment, but it would go against the cause Hillary Clinton “won the popular vote.” Framers’ wisdom. As Hamilton wrote in Fed- One commentator even asked “what kind of na- eralist No. 78, life tenure for judges is “the best tion allows the loser of a national election to expedient which can be devised in any govern- become president.” The complaint that the ment, to secure a steady, upright and impartial Electoral College is undemocratic is nothing administration of the laws.” new. The Framers designed it that way. They created a republican form of government, not a Some of Justice Kavanaugh’s detractors have pure democracy, and adopted various antima- demanded that if Democrats take the House joritarian measures to keep the “demos” in next month, they open an investigation into the check. sex-crime allegations Senate Democrats failed to substantiate. But although Congress has The Electoral College could be eliminated by wide oversight powers with respect to the ex- amending the Constitution. But proposing an ecutive branch, it has no such oversight author- amendment requires two-thirds votes in both ity over the judiciary. The only way the House houses of Congress, and the legislatures of can legitimately investigate a sitting judge is in three-fourths, or 38, of the states would have to an impeachment proceeding. ratify it. And Justice Kavanaugh cannot be impeached • The Senate. The complaint here is that the 50 for conduct before his promotion to the Su- senators who voted in Justice Kavanaugh’s fa- preme Court. Article III provides that judges vor “represent” fewer people than the 48 who “hold their Offices during good Behavior,” so voted against him. But senators repre- that a judge can be removed only for “high sent states, not people. Crimes and Misdemeanors” committed during Equal Senate representation for the states was his term in office. a key part of the Connecticut Compromise, along with House seats apportioned by popula- That puts inquiry into allegations about Justice tion. The compromise persuaded large and Kavanaugh’s conduct as a teenager and young small states alike to accept the new Constitu- adult well outside Congress’s investigative au- tion. It was so fundamental that Article V of the thority, along with any claims that he misled the Judiciary Committee. Such claims could be

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reviewed only as part of a criminal investiga- establishes a Supreme Court; it does not say tion by federal prosecutors based on a referral how many justices it should have. Congress has from the Senate, the only body that may decide altered the number of justices by statute several whether his testimony contained “material” times, most recently in the Circuit Judges Act misrepresentations. For the House to inquire of 1869, which expanded the court from seven into this matter would impermissibly encroach members to nine. But this would require a pres- on the Senate’s advice-and-consent power. ident and House and Senate majorities willing to go down this path, likely at considerable po- Michael Barone has observed that “all proce- litical cost. In other words, progressives would dural arguments are insincere.” Those who have to win elections. And if they did that, now complain about the undemocratic nature they’d be able to change the court without mak- of the Electoral College and the Senate were ing it bigger. quite content when their party seemed to have a lock on the former and held a large majority The anger and disappointment of Justice Ka- in the latter. And it is the Supreme Court’s vanaugh’s opponents is understandable, as countermajoritarian character that made possi- would be that of his supporters if the vote had ble the decisions, such as Roe v. gone the other way. They are perfectly entitled Wade and Obergefell v. Hodges, that progres- to pursue political remedies, including using sives now fear are at risk of being overturned his appointment as a campaign issue. They also or pared back. are entitled to pursue amendments to the Con- stitution that would make our system of gov- There’s one thing the left could do to make the ernment more responsive to the popular will. Supreme Court more liberal without amending What they cannot do is overturn the Connecti- the Constitution. Some have suggested a return cut Compromise guaranteeing each state equal to Franklin D. Roosevelt’s “court packing” representation in the Senate, or launch uncon- plan, which sought to expand the court to as stitutional investigations or impeachment of a many as 15 justices. Nothing in the Constitu- sitting Supreme Court justice. The Constitution tion prevents Congress from expanding the Su- protects all of us, even Supreme Court justices. preme Court’s membership. Article III merely Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush.

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Gabby Orr, ‘We will not be betrayed again’: Trump’s SCOTUS list hits a new roadblock, Politico, July 27, 2020 To give disgruntled conservatives a dash of While the president is hot to promote his Su- hope after crushing Supreme Court losses on preme Court list this fall – believing it will abortion and LGBTQ protections this summer, boost Republican turnout and remind religious President Donald Trump made a promise: He conservatives what’s at stake as the nation’s would unveil a new list of reliably conservative culture wars flare — aides and outside advisers jurists before presidential debate season kicked have become increasingly divided over its con- into high gear. tent and length. The standoff stems from recent concerns about Chief Justice John Roberts and “I will only choose from this list,” he pledged Justice Neil Gorsuch — two Republican-ap- in a tweet last month, describing it as “more pointed members of the high court who ap- important than ever” amid threats he and his palled party officials and conservative court supporters perceive against religious liberty, watchers with their respective roles in two re- gun ownership and abortion restrictions. cent cases: one striking down a Louisiana law that would have dramatically curtailed abortion access, the other extending workplace discrimination protections to LGBTQ Americans. Some want Trump to trim his list of potential Supreme Court candidates by half or more — ditching those with limited records from which to judge the consistency of their judicial philosophy and blocking fresh appointees to the federal court system from being added. Among the names they said Trump should keep are Judges Amul Thapar and Raymond Kethledge on the 6th U.S. Circuit Court of Appeals, both of whom have been on the federal bench for more The president’s tweet caught top White House than a decade, and Judge Amy Coney Barrett aides and conservative legal figures off guard. But they quickly mobilized to review the exist- on the 7th U.S. Circuit Court of Appeals, a ing 25 names and decide who should remain in Catholic mother of seven who is widely contention, who should be removed and who revered among social conservatives despite her limited judicial record. might qualify as an acceptable addition. One month into the process, answering those ques- Two Republicans close to the White House tions has twisted some of Trump’s team into Counsel’s Office, which continually vets po- knots as the election quickly approaches. tential judicial nominees, said Barrett should remain on the president’s list, but that Trump

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should resist calls to add more fresh faces from “One thing I’m very excited about is seeing his record-setting list of appointees. some of the new up-and-coming judges that President Trump put on the appellate bench, “There are few new judges who are very good who are beginning to create that record so we and could be added to the list, but the main understand their decisions, qualify for the Su- thing that needs to happen is to cut the list way preme Court list,” Severino said. down by removing anyone who has not been proven to be a rock-ribbed conservative,” said Frustrations among GOP base voters with the a third Republican close to the White House. outcome of recent Supreme Court rulings, and “The whole purpose of the list is to give hard- division over identifying new candidates for fu- line conservatives a guarantee that we will not ture vacancies, are unlikely to stop Trump from be betrayed again.” campaigning on his judicial appointments this fall. Contributing to the angst among his sup- “If the president wants to keep social conserva- porters — which Trump is quietly tapping into tives, he needs to put out a much shorter list of — was the announcement this month that Jus- the people who would actually receive real con- tice Ruth Bader Ginsburg is undergoing chem- sideration for a vacancy in the next year.… A otherapy due to a recurrence of cancer. Gins- long list of 20 promising but unproven judges burg, the Supreme Court’s 87-year-old liberal just isn’t good enough,” this person added. firebrand, said she remains able to work “full But other prominent players in the conservative steam” following the diagnosis. legal movement think an expanded list will Those encouraging the White House to expand only help the president if he wins reelection. Trump’s Supreme Court list come September Should vacancies arise, they have privately ar- have circulated three Trump appointees — gued that a larger, more diverse pool is prefer- Kyle Duncan, Andy Oldham and Elizabeth able to a short list of older candidates. “Lisa” Branch — as names they would like to They also cite Gorsuch’s majority opinion see added. All three appellate court judges were in Bostock v. Clayton County — the landmark confirmed by the Senate in 2018. Others say LGBTQ ruling in mid-June — as evidence that it’s not the list that needs to be changed, but the long records and prolific legal opinions aren’t process of evaluating candidates before they’re always predictive of preferred outcomes. even placed under serious consideration. “The problem with Bostock is that Gorsuch de- One of the more vocal critics of the current for- parted from a very clear record. He had 10 mat, Sen. Josh Hawley (R-Mo.), told POLIT- years on the appellate courts,” said Carrie Sev- ICO last month he wasn’t “wild” about the erino, policy director and chief counsel of the president releasing a new list before the No- Judicial Crisis Network, a conservative advo- vember election: “I don’t love the idea of just cacy group. doing over what we have been doing in the Severino, who has described Gorsuch’s opin- past… When it comes to this whole process, we ion in Bostock as “an unprecedented betrayal,” have to ask ourselves, is this vetting process, is said she expects the president's updated list will this really working?” omit older candidates previously identified as The idea to release a new list caught fire inside potential nominees and maintain a similar the White House after the chief justice, Rob- length. Substantive changes to the vetting pro- erts, became the tie-breaking vote to block the cess — including more specific questions about Trump administration from immediately end- a candidate’s judicial philosophy — would ing the Deferred Action for Childhood Arrivals likely occur if a vacancy arose during a second Program, known as DACA, that has for years Trump term, she added. shielded young undocumented immigrants from deportation.

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After a string of losses that upset conservative evangelicals in his base, the president viewed the key immigration ruling as a threat to his bond with non-religious Republicans as well, according to a person familiar with his think- ing. “He was always open to updating the list, but finally felt this was the right moment to do so,” this person said, noting that Trump’s 2020 opponent, former Vice President Joe Biden, has not yet committed to releasing his own list of potential Supreme Court nominees by a certain date. Biden recently said his campaign was “putting together a list of African American women who are qualified and have the experience to be on the court,” but would not release their names “until we go further down the line in vetting them.”

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Allen v. Wright, 468 U.S. 737 (1984) [Parents of black children attending public derived directly from the Constitution. A plaintiff schools in districts undergoing desegregation must allege personal injury fairly traceable to the brought nationwide class action alleging that In- defendant’s allegedly unlawful conduct and ternal Revenue Service had not adopted suffi- likely to be redressed by the requested relief. cient standards and procedures to fulfill its obli- Like the prudential component, the constitu- gation to deny tax-exempt status to racially dis- tional component of standing doctrine incorpo- criminatory private schools. In Bob Jones Uni- rates concepts concededly not susceptible of pre- versity v. United States, 461 U.S. 574 (1983), the cise definition. The injury alleged must be, for Court had held that the governing statute disqual- example, “distinct and palpable,” and not “ab- ified such schools from receiving tax-exempt sta- stract” or “conjectural” or “hypothetical.”. The tus as “charities.” injury must be “fairly” traceable to the chal- [According to the parents, the failure to carry out lenged action, and relief from the injury must be the statutory mandate (1) amounted to federal “likely” to follow from a favorable decision. support for segregated schools and (2) fostered These terms cannot be defined so as to make ap- the organization and expansion of such schools, plication of the constitutional standing require- thus interfering with the efforts of federal agen- ment a mechanical exercise. cies and courts to bring about desegregation in public school districts that had been segregated More important, the law of Art. III standing is in the past. The parents did not allege that they built on a single basic idea—the idea of separa- had applied to the private schools in question but tion of powers. It is this fact which makes possi- claimed instead the IRS’s unlawful activities had ble the gradual clarification of the law through harmed their children attending schools that were judicial application. undergoing or might undergo desegregation. Determining standing in a particular case may be They claimed that by failing to deny the exemp- facilitated by clarifying principles or even clear tion, the IRS subsidized discriminatory private rules developed in prior cases. Typically, how- schools and thus decreased the likelihood that de- ever, the standing inquiry requires careful judi- segregation plans would be effective. Respond- cial examination of a complaint’s allegations to ents sought declaratory and injunctive relief re- ascertain whether the particular plaintiff is enti- quiring the IRS to issue guidelines so as to deny tled to an adjudication of the particular claims as- tax exemptions to al private schools that discrim- serted. Is the injury too abstract, or otherwise not inate on the basis of race. The court of appeals appropriate, to be considered judicially cogniza- held in their favor.] ble? Is the line of causation between the illegal Justice O’CONNOR delivered the opinion of the conduct and injury too attenuated? Is the prospect Court. of obtaining relief from the injury as a result of a favorable ruling too speculative? Standing doctrine embraces several judicially Respondents allege two injuries in their com- self-imposed limits on the exercise of federal ju- plaint to support their standing to bring this law- risdiction, such as the general prohibition on a lit- suit. First, they say that they are harmed directly igant’s raising another person’s legal rights, the by the mere fact of Government financial aid to rule barring adjudication of generalized griev- discriminatory private schools. Second, they say ances more appropriately addressed in the repre- that the federal tax exemptions to racially dis- sentative branches, and the requirement that a criminatory private schools in their communities plaintiff’s complaint fall within the zone of inter- impair their ability to have their public schools ests protected by the law invoked. The require- desegregated. ment of standing, however, has a core component

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Respondents’ first claim of injury can be inter- Maine. Recognition of standing in such circum- preted in two ways. It might be a claim simply to stances would transform the federal courts into have the Government avoid the violation of law “no more than a vehicle for the vindication of the alleged in respondents’ complaint. Alternatively, value interests of concerned bystanders.” it might be a claim of stigmatic injury, or deni- It is in their complaint’s second claim of injury gration, suffered by all members of a racial group that respondents allege harm to a concrete, per- when the Government discriminates on the basis 20 sonal interest that can support standing in some of race. Under neither interpretation is this circumstances. The injury they identify—their claim of injury judicially cognizable. children’s diminished ability to receive an educa- This Court has repeatedly held that an asserted tion in a racially integrated school—is, beyond right to have the Government act in accordance any doubt, not only judicially cognizable but, as with law is not sufficient, standing alone, to con- shown by cases from Brown v. Board of Educa- fer jurisdiction on a federal court. In Valley tion, 347 U.S. 483 (1954), to Bob Jones Univer- Forge Christian College v. Americans United for sity v. United States, 461 U.S. 574 (1983), one of Separation of Church and State, Inc. 454 U.S. the most serious injuries recognized in our legal 464 (1982), we rejected a claim of standing to system. Despite the constitutional importance of challenge a Government conveyance of property curing the injury alleged by respondents, how- to a religious institution. Insofar as the plaintiffs ever, the federal judiciary may not redress it un- relied simply on “ ‘their shared individuated less standing requirements are met. In this case, right’ ” to a Government that made no law re- respondents’ second claim of injury cannot sup- specting an establishment of religion, we held port standing because the injury alleged is not that plaintiffs had not alleged a judicially cog- fairly traceable to the Government conduct re- nizable injury. spondents challenge as unlawful. Neither do they have standing to litigate their The illegal conduct challenged by respondents is claims based on the stigmatizing injury often the IRS’s grant of tax exemptions to some ra- caused by racial discrimination. There can be no cially discriminatory schools. The line of causa- doubt that this sort of noneconomic injury is one tion between that conduct and desegregation of of the most serious consequences of discrimina- respondents’ schools is attenuated at best. From tory government action and is sufficient in some the perspective of the IRS, the injury to respond- circumstances to support standing. Our cases ents is highly indirect and “results from the inde- make clear, however, that such injury accords a pendent action of some third party not before the basis for standing only to “those persons who are court,” Simon v. Eastern Kentucky Welfare personally denied equal treatment” by the chal- Rights Org., 426 U.S., at 42. lenged discriminatory conduct, ibid. The diminished ability of respondents’ children If the abstract stigmatic injury were cognizable, to receive a desegregated education would be standing would extend nationwide to all mem- fairly traceable to unlawful IRS grants of tax ex- bers of the particular racial groups against which emptions only if there were enough racially dis- the Government was alleged to be discriminating criminatory private schools receiving tax exemp- by its grant of a tax exemption to a racially dis- tions in respondents’ communities for with- criminatory school, regardless of the location of drawal of those exemptions to make an apprecia- that school. All such persons could claim the ble difference in public school integration. Re- same sort of abstract stigmatic injury respondents spondents have made no such allegation. It is, assert in their first claim of injury. A black person first, uncertain how many racially discriminatory in Hawaii could challenge the grant of a tax ex- private schools are in fact receiving tax exemp- emption to a racially discriminatory school in tions. Moreover, it is entirely speculative

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whether withdrawal of a tax exemption from any but the particular programs agencies establish to particular school would lead the school to change carry out their legal obligations. Such suits, even its policies. It is just as speculative whether any when premised on allegations of several in- given parent of a child attending such a private stances of violations of law, are rarely if ever ap- school would decide to transfer the child to pub- propriate for federal-court adjudication. lic school as a result of any changes in educa- Carried to its logical end, [respondents’] ap- tional or financial policy made by the private proach would have the federal courts as virtually school once it was threatened with loss of tax-ex- continuing monitors of the wisdom and sound- empt status. It is also pure speculation whether, ness of Executive action; such a role is appropri- in a particular community, a large enough num- ate for the Congress acting through its commit- ber of the numerous relevant school officials and tees and the ‘power of the purse’; it is not the role parents would reach decisions that collectively of the judiciary, absent actual present or immedi- would have a significant impact on the racial ately threatened injury resulting from unlawful composition of the public schools. governmental action.” The links in the chain of causation between the The same concern for the proper role of the fed- challenged Government conduct and the asserted eral courts is reflected in cases like Rizzo v. injury are far too weak for the chain as a whole Goode, 423 U.S. 362 (1976): “When a plaintiff to sustain respondents’ standing. In Simon v. seeks to enjoin the activity of a government Eastern Kentucky Welfare Rights Org., the Court agency, even within a unitary court system, his held that standing to challenge a Government case must contend with ‘the well-established rule grant of a tax exemption to hospitals could not be that the Government has traditionally been founded on the asserted connection between the granted the widest latitude in the * “dispatch of grant of tax-exempt status and the hospitals’ pol- its own internal affairs.” icy concerning the provision of medical services to indigents. The causal connection depended on When transported into the Art. III context, that the decisions hospitals would make in response principle, grounded as it is in the idea of separa- to withdrawal of tax-exempt status, and those de- tion of powers, counsels against recognizing cisions were sufficiently uncertain to break the standing in a case brought, not to enforce specific chain of causation between the plaintiffs’ injury legal obligations whose violation works a direct and the challenged Government action. The harm, but to seek a restructuring of the apparatus chain of causation is even weaker in this case. It established by the Executive Branch to fulfill its involves numerous third parties (officials of ra- legal duties. The Constitution, after all, assigns to cially discriminatory schools receiving tax ex- the Executive Branch, and not to the Judicial emptions and the parents of children attending Branch, the duty to “take Care that the Laws be such schools) who may not even exist in respond- faithfully executed.” U.S. Const., Art. II, § 3. We ents’ communities and whose independent deci- could not recognize respondents’ standing in this sions may not collectively have a significant ef- case without running afoul of that structural prin- fect on the ability of public school students to re- ciple. ceive a desegregated education. The judgment of the Court of Appeals is accord- The idea of separation of powers that underlies ingly reversed, and the injunction issued by that standing doctrine explains why our cases pre- court is vacated. clude the conclusion that respondents’ alleged injury “fairly can be traced to the challenged ac- It is so ordered. tion” of the IRS. That conclusion would pave the Justice MARSHALL took no part in the decision way generally for suits challenging, not specifi- of these cases. cally identifiable Government violations of law, 140

Justice BRENNAN, dissenting. that the withdrawal of the treatment would “dis- courage” them, and hence promote the process of Viewed in light of the injuries they claim, the re- desegregation.2 spondents have alleged a direct causal relationship between the Government action they chal- We have held that when a subsidy makes a given lenge and the injury they suffer: their inability to activity more or less expensive, injury can be receive an education in a racially integrated fairly traced to the subsidy for purposes of stand- school is directly and adversely affected by the ing analysis because of the resulting increase or tax-exempt status granted by the IRS to racially decrease in the ability to engage in the activity. discriminatory schools in their respective school This causation analysis is nothing more than a re- districts. Common sense alone would recognize statement of elementary economics: when some- that the elimination of tax-exempt status for ra- thing becomes more expensive, less of it will be cially discriminatory private schools would serve purchased. to lessen the impact that those institutions have in defeating efforts to desegregate the public Considerations of tax policy, economics, and schools. pure logic all confirm the conclusion that re- More than one commentator has noted that the spondents’ injury in fact is fairly traceable to the causation component of the Court’s standing in- Government’s allegedly wrongful conduct. The quiry is no more than a poor disguise for the Court therefore is forced to introduce the concept Court’s view of the merits of the underlying of “separation of powers” into its analysis. The claims. The Court today does nothing to avoid Court writes that the separation of powers “ex- that criticism. plains why our cases preclude the conclusion” that respondents’ injury is fairly traceable to the What is most disturbing about today’s decision, conduct they challenge. therefore, is not the standing analysis applied, but the indifference evidenced by the Court to the The Court could mean one of three things by its detrimental effects that racially segregated invocation of the separation of powers. First, it schools, supported by tax-exempt status from the could simply be expressing the idea that if the Federal Government, have on the respondents’ plaintiff lacks Art. III standing to bring a lawsuit, attempt to obtain an education in a racially inte- then there is no “case or controversy” within the grated school system. I cannot join such indiffer- meaning of Art. III and hence the matter is not ence, and would give the respondents a chance to within the area of responsibility assigned to the prove their case on the merits. Judiciary by the Constitution. While there can be no quarrel with this proposition, in itself it pro- Justice STEVENS, with whom Justice vides no guidance for determining if the injury BLACKMUN joins, dissenting. respondents have alleged is fairly traceable to the In final analysis, the wrong respondents allege conduct they have challenged. that the Government has committed is to subsi- Second, the Court could be saying that it will re- dize the exodus of white children from schools quire a more direct causal connection when it is that would otherwise be racially integrated. The troubled by the separation of powers implications critical question in these cases, therefore, is of the case before it. That approach confuses the whether respondents have alleged that the Gov- * standing doctrine with the justiciability of the is- ernment has created that kind of subsidy. sues that respondents seek to raise. The purpose If the granting of preferential tax treatment would of the standing inquiry is to measure the plain- “encourage” private segregated schools to con- tiff’s stake in the outcome, not whether a court duct their “charitable” activities, it must follow has the authority to provide it with the outcome it seeks. The strength of the plaintiff’s interest in 141

the outcome has nothing to do with whether the methods used by the Executive to enforce the relief it seeks would intrude upon the preroga- law, citizens were accorded standing to challenge tives of other branches of government; the possi- a pattern of police misconduct that violated the bility that the relief might be inappropriate does constitutional constraints on law enforcement ac- not lessen the plaintiff’s stake in obtaining that tivities in Allee v. Medrano, 416 U.S. 802 (1974). relief. If a plaintiff presents a nonjusticiable is- Here, respondents contend that the IRS is violat- sue, or seeks relief that a court may not award, ing a specific constitutional limitation on its en- then its complaint should be dismissed for those forcement discretion. There is a solid basis for reasons, and not because the plaintiff lacks a that contention. In Norwood, we wrote: “A stake in obtaining that relief and hence has no State’s constitutional obligation requires it to standing.9 Imposing an undefined * but clearly steer clear, not only of operating the old dual sys- more rigorous standard for redressability for rea- tem of racially segregated schools, but also of sons unrelated to the causal nexus between the giving significant aid to institutions that practice injury and the challenged conduct can only en- racial or other invidious discrimination.” courage undisciplined, ad hoc litigation, a result Deciding whether the Treasury has violated a that would be avoided if the Court straight-for- specific legal limitation on its enforcement dis- wardly considered the justiciability of the issues cretion does not intrude upon the prerogatives of respondents seek to raise, rather than using those 10 the Executive, for in so deciding we are merely issues to obfuscate standing analysis. saying “what the law is.” Surely the question Third, the Court could be saying that it will not whether the Constitution or the Code limits en- treat as legally cognizable injuries that stem from forcement discretion is one within the Judiciary’s an administrative decision concerning how en- competence, and I do not believe that the ques- forcement resources will be allocated. This tion whether the law, as enunciated in Gilmore, surely is an important point. Respondents do seek Norwood, and Bob Jones, imposes such an obli- to restructure the IRS’s mechanisms for enforc- gation upon the IRS is so insubstantial that re- ing the legal requirement that discriminatory in- spondents’ attempt to raise it should be defeated stitutions not receive tax-exempt status. Such re- for lack of subject-matter jurisdiction on the structuring would dramatically affect the way in ground that it infringes the Executive’s preroga- which the IRS exercises its prosecutorial discre- tives. tion. The Executive requires latitude to decide n short, I would deal with the question of the le- how best to enforce the law, and in general the gal limitations on the IRS’s enforcement discre- Court may well be correct that the exercise of that tion on its merits, rather than by making the un- discretion, especially in the tax context, is untenable assumption * that the granting of prefer- challengeable. ential tax treatment to segregated schools does However, as the Court also recognizes, this prin- not make those schools more attractive to white ciple does not apply when suit is brought “to en- students and hence does not inhibit the process of force specific legal obligations whose violation desegregation. I respectfully dissent. works a direct harm,” ante, at 3330. For example, despite the fact that they were challenging the

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The War Powers Resolution, 50 U.S.C. §§ 1541-1548 § 1541. Purpose and policy (a) Congressional declaration. It is the purpose of this joint resolution [50 USCS §§ 1541 et seq.] to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations. (b) Congressional legislative power under necessary and proper clause. Under article I, section 8, of the Constitution, it is specifically provided that the Congress shall have the power to make all laws necessary and proper for carrying into execution, not only its own powers but also all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof. (c) Presidential executive power as Commander-in-Chief; limitation. The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces. § 1542. Consultation; initial and regular consultations The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations. § 1543. Reporting requirement (a) Written report; time of submission; circumstances necessitating submission; information reported. In the absence of a declaration of war, in any case in which United States Armed Forces are introduced-- (1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances; (2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or (3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation; the President shall submit within 48 hours to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report, in writing, setting forth-- (A) the circumstances necessitating the introduction of United States Armed Forces; (B) the constitutional and legislative authority under which such introduction took place; and (C) the estimated scope and duration of the hostilities or involvement.

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(b) Other information reported. The President shall provide such other information as the Congress may request in the fulfillment of its constitutional responsibilities with respect to committing the Nation to war and to the use of United States Armed Forces abroad. (c) Periodic reports; semiannual requirement. Whenever United States Armed Forces are introduced into hostilities or into any situation described in subsection (a) of this section, the President shall, so long as such armed forces continue to be engaged in such hostilities or situation, report to the Congress periodically on the status of such hostilities or situation as well as on the scope and duration of such hostilities or situation, but in no event shall he report to the Congress less often than once every six months. § 1544. Congressional action (a) Transmittal of report and referral to Congressional Committees; joint request for convening Congress. Each report submitted pursuant to section 4(a)(1) [50 USCS § 1543(a)(1)] shall be transmitted to the Speaker of the House of Representatives and to the President pro tempore of the Senate on the same calendar day. Each report so transmitted shall be referred to the Committee on Foreign Affairs of the House of Representatives and to the Committee on Foreign Relations of the Senate for appropriate action. If, when the report is transmitted, the Congress has adjourned sine die or has adjourned for any period in excess of three calendar days, the Speaker of the House of Representatives and the President pro tempore of the Senate, if they deem it advisable (or if peti- tioned by at least 30 percent of the membership of their respective Houses) shall jointly request the President to convene Congress in order that it may consider the report and take appropriate action pursuant to this section. (b) Termination of use of United States Armed Forces; exceptions; extension period. Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1) [50 USCS § 1543(a)(1)], whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces. (c) Concurrent resolution for removal by President of United States Armed Forces. Notwithstand- ing subsection (b), at any time that United States Armed Forces are engaged in hostilities outside the territory of the United States, its possession and territories without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs by concurrent resolution. § 1545. Congressional priority procedures for joint resolution or bill (a) Time requirement; referral to Congressional committee; single report. Any joint resolution or bill introduced pursuant to section 5(b) [50 USCS § 1544(b)] at least thirty calendar days before the expiration of the sixty-day period specified in such section shall be referred to the Committee on Foreign Affairs of the House of Representatives or the Committee on Foreign Relations of the

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Senate, as the case may be, and such committee shall report one such joint resolution or bill, together with its recommendations, not later than twenty-four calendar days before the expiration of the sixty-day period specified in such section, unless such House shall otherwise determine by the yeas and nays. (b) Pending business; vote. Any joint resolution or bill so reported shall become the pending business of the House in question (in the case of the Senate the time for debate shall be equally divided between the proponents and the opponents), and shall be voted on within three calendar days thereafter, unless such House shall otherwise determine by yeas and nays. (c) Referral to other House committee. Such a joint resolution or bill passed by one House shall be referred to the committee of the other House named in subsection (a) and shall be reported out not later than fourteen calendar days before the expiration of the sixty-day period specified in section 5(b) [50 USCS § 1544(b)]. The joint resolution or bill so reported shall become the pending business of the House in question and shall be voted on within three calendar days after it has been reported, unless such House shall otherwise determine by yeas and nays. (d) Disagreement between Houses. In the case of any disagreement between the two Houses of Congress with respect to a joint resolution or bill passed by both Houses, conferees shall be promptly appointed and the committee of conference shall make and file a report with respect to such resolution or bill not later than four calendar days before the expiration of the sixty-day period specified in section 5(b) [50 USCS § 1544(b)]. In the event the conferees are unable to agree within 48 hours, they shall report back to their respective Houses in disagreement. Notwithstanding any rule in either House concerning the printing of conference reports in the Record or concerning any delay in the consideration of such reports, such report shall be acted on by both Houses not later than the expiration of such sixty-day period. § 1546. Congressional priority procedures for concurrent resolution (a) Referral to Congressional committee; single report. Any concurrent resolution introduced pursuant to section 5(c) [50 USCS § 1544(c)] shall be referred to the Committee on Foreign Affairs of the House of Representatives or the Committee on Foreign Relations of the Senate, as the case may be, and one such concurrent resolution shall be reported out by such committee together with its recommendations within fifteen calendar days, unless such House shall otherwise determine by the yeas and nays. (b) Pending business; vote. Any concurrent resolution so reported shall become the pending business of the House in question (in the case of the Senate the time for debate shall be equally divided between the proponents and the opponents) and shall be voted on within three calendar days thereafter, unless such House shall otherwise determine by yeas and nays. (c) Referral to other House committee. Such a concurrent resolution passed by one House shall be referred to the committee of the other House named in subsection (a) and shall be reported out by such committee together with its recommendations within fifteen calendar days and shall thereupon become the pending business of such House and shall be voted upon within three calendar days, unless such House shall otherwise determine by yeas and nays. (d) Disagreement between Houses. In the case of any disagreement between the two Houses of Congress with respect to a concurrent resolution passed by both Houses, conferees shall be promptly appointed and the committee of conference shall make and file a report with respect to such concurrent resolution within six calendar days after the legislation is referred to the committee

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of conference. Notwithstanding any rule in either House concerning the printing of conference reports in the Record or concerning any delay in the consideration of such reports, such report shall be acted on by both Houses not later than six calendar days after the conference report is filed. In the event the conferees are unable to agree within 48 hours, they shall report back to their respective Houses in disagreement. § 1546a. Expedited procedures for certain joint resolutions and bills Any joint resolution or bill introduced in either House which requires the removal of United States Armed Forces engaged in hostilities outside the territory of the United States, its possessions and territories, without a declaration of war or specific statutory authorization shall be considered in accordance with the procedures of section 601(b) of the International Security Assistance and Arms Export Control Act of 1976 [unclassified], except that any such resolution or bill shall be amendable. If such a joint resolution or bill should be vetoed by the President, the time for debate in consideration of the veto message on such measure shall be limited to twenty hours in the Senate and in the House shall be determined in accordance with the Rules of the House. § 1547. Interpretation of joint resolution (a) Inferences from any law or treaty. Authority to introduce United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred-- (1) from any provision of law (whether or not in effect before the date of the enactment of this joint resolution [enacted Nov. 7, 1973]), including any provision contained in any appropriation Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities or into such situations and states that it is intended to constitute specific statutory authorization within the meaning of this joint resolution; or (2) from any treaty heretofore or hereafter ratified unless such treaty is implemented by legislation specifically authorizing the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this joint resolution. (b) Joint headquarters operations of high-level military commands. Nothing in this joint resolution [50 USCS §§ 1541 et seq.] shall be construed to require any further specific statutory authorization to permit members of United States Armed Forces to participate jointly with members of the armed forces of one or more foreign countries in the headquarters operations of high-level military commands which were established prior to the date of enactment of this joint resolution [enacted Nov. 7, 1973] and pursuant to the United Nations Charter or any treaty ratified by the United States prior to such date. (c) Introduction of United States Armed Forces. For purposes of this joint resolution [50 USCS §§ 1541 et seq.], the term "introduction of United States Armed Forces" includes the assignment of members of such armed forces to command, coordinate, participate in the movement of, or accom- pany the regular or irregular military forces of any foreign country or government when such military forces are engaged, or there exists an imminent threat that such forces will become engaged, in hostilities. (d) Constitutional authorities or existing treaties unaffected; construction against grant of Presi- dential authority respecting use of United States Armed Forces. Nothing in this joint resolution [50 USCS §§ 1541 et seq.]--

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(1) is intended to alter the constitutional authority of the Congress or of the President, or the provisions of existing treaties; or (2) shall be construed as granting any authority to the President with respect to the introduction of United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances which authority he would not have had in the absence of this joint resolution. § 1548. Separability of provisions If any provision of this joint resolution [50 USCS §§ 1541 et seq.] or the application thereof to any person or circumstance is held invalid, the remainder of the joint resolution and the application of such provision to any other person or circumstance shall not be affected thereby.

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To prohibit the conduct of a first-use nuclear strike absent a declaration of war by Congress, H. R. 669, 115th Cong., 1st Sess. ______IN THE HOUSE OF REPRESENTATIVES January 24, 2017 Mr. Ted Lieu of California (for himself, Mr. McGovern, Mr. Garamendi, Ms. Clarke of New York, Mr. Blumenauer, Mr. Grijalva, Mr. Pocan, Ms. Lee, and Mr. Welch) introduced the following bill; which was referred to the Committee on Foreign Affairs A BILL To prohibit the conduct of a first-use nuclear strike absent a declaration of war by Con- gress. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the “Restricting First Use of Nuclear Weapons Act of 2017”. SEC. 2. FINDINGS AND DECLARATION OF POLICY. (a) Findings.--Congress finds the following: (1) The Constitution gives Congress the sole power to declare war. (2) The framers of the Constitution understood that the monumental decision to go to war, which can result in massive death and the destruction of civilized society, must be made by the representatives of the people and not by a single person. (3) As stated by section 2(c) of the War Powers Resolution (Public Law 93-148; 50 U.S.C. 1541), “the constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces”. (4) Nuclear weapons are uniquely powerful weapons that have the capability to instantly kill millions of people, create long-term health and environmental consequences throughout the world, directly undermine global peace, and put the United States at existential risk from retaliatory nuclear strikes. (5) By any definition of war, a first-use nuclear strike from the United States would constitute a major act of war. (6) A first-use nuclear strike conducted absent a declaration of war by Congress would violate the Constitution. (b) Declaration of Policy.--It is the policy of the United States that no first-use nuclear strike should be conducted absent a declaration of war by Congress. SEC. 3. PROHIBITION ON CONDUCT OF FIRST-USE NUCLEAR STRIKES. (a) Prohibition.--Notwithstanding any other provision of law, the President may not use the Armed Forces of the United States to conduct a first-use nuclear strike unless such

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strike is conducted pursuant to a declaration of war by Congress that expressly authorizes such strike. (b) First-Use Nuclear Strike Defined.--In this section, the term “first-use nuclear strike” means an attack using nuclear weapons against an enemy that is conducted without the President determining that the enemy has first launched a nuclear strike against the United States or an ally of the United States.

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Charlie Savage, Can the President Be Indicted? A Long-Hidden Legal Memo Says Yes, N.Y. TIMES, July 22, 2017 significantly less extensively than the Starr of- WASHINGTON — A newfound memo from fice memo. Kenneth W. Starr’s independent counsel inves- In the end, both Mr. Jaworski and Mr. Starr let tigation into President Bill Clinton sheds fresh congressional impeachment proceedings play light on a constitutional puzzle that is taking on out and did not try to indict the presidents while mounting significance amid the Trump-Russia they remained in office. Mr. Starr, who had de- inquiry: Can a sitting president be indicted? cided he could indict Mr. Clinton, said in a re- The 56-page memo, locked in the National Ar- cent interview that he had concluded the more chives for nearly two decades and obtained by prudent and appropriate course was simply re- The New York Times under the Freedom of In- ferring the matter to Congress for potential im- formation Act, amounts to the most thorough peachment. government-commissioned analysis rejecting As Robert S. Mueller III, the special counsel in a generally held view that presidents are im- the latest inquiry, investigates the Trump cam- mune from prosecution while in office. paign’s dealings with Russia and whether Pres- “It is proper, constitutional, and legal for a fed- ident Trump obstructed justice, the newly un- eral grand jury to indict a sitting president for earthed Starr office memo raises the possibility serious criminal acts that are not part of, and are that Mr. Mueller may have more options than contrary to, the president’s official duties,” the most commentators have assumed. Here is an Starr office memo concludes. “In this country, explanation of the debate and what the Starr of- no one, even President Clinton, is above the fice memo has to say. law.” Why do some argue presidents are immune? Mr. Starr assigned Ronald Rotunda, a promi- Nothing in the Constitution or federal statutes nent conservative professor of constitutional says that sitting presidents are immune from law and ethics whom Mr. Starr hired as a con- prosecution, and no court has ruled that they sultant on his legal team, to write the memo in have any such shield. But proponents of the spring 1998 after deputies advised him that theory that Mr. Trump is nevertheless immune they had gathered enough evidence to ask a for now from indictment cited the Constitu- grand jury to indict Mr. Clinton, the memo tion’s “structural principles,” in the words of a shows. memo written in September 1973 by Robert G. Other prosecutors working for Mr. Starr devel- Dixon Jr., then the head of the Justice Depart- oped a draft indictment of Mr. Clinton, which ment’s Office of Legal Counsel. The Times has also requested be made public. This argument boils down to practicalities of The National Archives has not processed that governance: The stigma of being indicted and file to determine whether it is exempt from dis- the burden of a trial would unduly interfere closure under grand-jury secrecy rules. with a president’s ability to carry out his duties, In 1974, the Watergate special counsel, Leon preventing the executive branch “from accom- Jaworski, had also received a memo from his plishing its constitutional functions” in a way staff saying he could indict the president, in that that cannot “be justified by an overriding instance Richard M. Nixon, while he was in of- need,” Mr. Dixon wrote. fice, and later made that case in a court brief. In October 1973, Mr. Nixon’s solicitor gen- Those documents, however, explore the topic eral, Robert H. Bork, submitted a court brief that similarly argued for an “inference”

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that the Constitution makes sitting presidents What has the Supreme Court said? immune from indictment and trial. And in The Supreme Court has never addressed the 2000, Randolph D. Moss, the head of the Of- question of whether a sitting president can be fice of Legal Counsel under Mr. Clinton, re- indicted and tried. But in a landmark 1997 rul- viewed the Justice Department’s 1973 opinions ing, Clinton v. Jones, it permitted a lawsuit and reaffirmed their conclusion. against Mr. Clinton for unofficial actions — ac- What was the Starr office’s stance? cusations of misconduct before he became president — to proceed while he was in office. In laying out his case, Mr. Rotunda played down arguments that permitting a president to In his 2000 memo, Mr. Moss dismissed this rul- be indicted would cripple the executive branch. ing, emphasizing that the burdens of being a Instead, he placed greater emphasis on immun- criminal defendant were greater than the bur- ity issues that the Nixon — and, later, Clinton dens of being sued by a private litigant. But in — legal teams dismissed. the Starr office memo, Mr. Rotunda deemed the ruling far more significant for the criminal Among them, he noted that the Constitution’s question. speech-or-debate clause explicitly grants limited immunity to lawmakers for certain actions. “If public policy and the Constitution allow a “If the framers of our Constitution wanted to private litigant to sue a sitting president for acts create a special immunity for the president,” he that are not part of the president’s official du- argued, “they could have written the relevant ties (and are outside the outer perimeter of clause.” those duties), and that is what Clinton v. Jones squarely held,” he wrote, “then one would He also wrote that the 25th Amendment, which think that an indictment is constitutional be- allows for temporary replacement of a presi- cause the public interest in criminal cases is dent who has become unable to carry out the greater.” duties of the office, created a mechanism that would keep the executive branch from becom- Could Mueller go where no prosecutor has ing incapacitated if the president was on trial. before? And he noted that if indictments had to wait un- Even if Mr. Mueller were to uncover sufficient til a president’s term was up, some crimes evidence to indict Mr. Trump, decide that the would become untriable — such as those where legal arguments in the Starr office memo were the statute of limitations had run out. That correct and conclude that he wanted to ask a could happen for crimes that do not rise to an grand jury for an indictment while Mr. Trump impeachable offense, he wrote, citing the ex- is president — all big ifs — yet another uncer- ample of a president who punches an irritating tainty would loom: whether he must accept the heckler. Office of Legal Counsel’s analysis, even if he disagreed with it. “No one would suggest that the president should be removed from office simply because The Justice Department’s regulations give Mr. of that assault,” he wrote. “Yet the president Mueller, as a special counsel, greater autonomy has no right to assault hecklers. If there is no than an ordinary prosecutor, but still say he recourse against the president, if he cannot be must follow its “rules, regulations, procedures, prosecuted for violating the criminal laws, he practices and policies.” They also permit Dep- will be above the law.” uty Attorney General Rod J. Rosenstein to overrule Mr. Mueller if he tries to take a step that Mr. Rosenstein deems contrary to such practices.

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There is no guiding precedent about whether “I would be surprised if Mueller indicted the Office of Legal Counsel memos would fall into president for the same prudential reasons that that category, or if a special counsel is free to swayed Starr,” Mr. Mariotti said. “But the reach his own legal judgments. But as Mr. specter that he might do that could have an im- Mueller’s office investigates, the ambiguity pact on things. If I were on the president’s about the rules could influence calculations in team, I would say, ‘I don’t think it’s likely that the Trump camp about how much to cooperate he would, but it’s possible,’ depending on what and how much to fight, said Renato Mariotti, a the facts are.” former federal prosecutor turned defense lawyer.

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