© Copyright by
Roger P. Abshire
December, 2018 THE PROBLEM OF CONSTITUTIONALIZED DISCRETION
______
A Dissertation
Presented to
The Faculty of the Department
of Political Science
University of Houston
______
In Partial Fulfillment
Of the Requirements for the Degree of
Doctor of Philosophy
______
By
Roger P. Abshire
December, 2018 THE PROBLEM OF CONSTITUTIONALIZED DISCRETION
______Roger P. Abshire
APPROVED:
______Jeremy D. Bailey, Ph.D. Committee Chair
______Jeffrey Church, Ph.D.
______Brandon Rottinghaus, Ph.D.
______George Thomas, Ph.D. Claremont McKenna College
______Antonio D. Tillis, Ph.D. Dean, College of Liberal Arts and Social Sciences Department of Hispanic Studies
ii THE PROBLEM OF CONSTITUTIONALIZED DISCRETION
______
An Abstract of a Dissertation
Presented to
The Faculty of the Department
of Political Science
University of Houston
______
In Partial Fulfillment
Of the Requirements for the Degree of
Doctor of Philosophy
______
By
Roger P. Abshire
December, 2018 ABSTRACT
The predominant goal of this dissertation is to highlight the problem of constitutionalized discretion, and trace the institutional development of legislative rules of procedures, executive clemency, and judicial equity in American constitutionalism. It argues that the framers of the American constitution included specific grants of discretionary power intended to legitimize and codify, in the loosest sense of the term, what were seen as necessary, yet potentially dangerous, government actions. Though the framers were attempting to curtail the exercise of such discretionary actions by constitutionalizing them, they instead undermined the traditional methods by which these discretionary actions were restrained while failing to provide for adequate constitutional replacements.
In support of this argument, this dissertation analyzes a discretionary power from each of the coordinate branches of the federal government which had, prior to constitutional ratification, been a discretionary prerogative within the American political tradition. It utilizes Congress' power to determine its own legislative rules, the President's pardon power, and the equity jurisprudence of the federal courts, and explores each of these mechanisms from their largely unfettered discretionary origins, their subsequent development in enlightenment England and the colonies, through the early state constitutions, and to the federal convention and ratification debates which produced the American constitution. Using this developmental picture, it shows how the American trend to pull necessary state functions into the umbrella of popular government founded on a written constitution lead the framers to undermine their own constitutional project.
iv ACKNOWLEDGEMENTS
The deepest appreciation is due to my committee chair Professor Jeremy D. Bailey, without whom I would have fallen down any number of theoretical rabbit holes. His steadfast patience and focused guidance helped me navigate the process during a particularly trying period of my life, and has created a debt which I will never be able to repay. Additionally, I would like to thank Professor Brandon Rottinghaus and Professor Jeffrey Church for their dedication to my overall academic success and their service on my committee, and Professor
George Thomas for his contributions to my committee and the dissertation project as it moves to the next stage.
I also owe thanks to the entire faculty of the University of Houston Department of
Political Science for nurturing my graduate education in a more encouraging manner that I could have expected, and for the financial support that made my studies possible. Further recognition is due to Professor Robert A. Carp as both a teacher and mentor who facilitated research experience as a student and encouragement as I worked on this dissertation. I am also thankful for the wonderful graduate student colleagues with which I had the pleasure to work and study alongside over the past few years; in particular, the participants of the weekly
TBT meetings and members of the Political Theory Reading Group.
My family has supported me throughout this process and is largely responsible for keeping me sane during the times when I was unable to see a path forward and consistently lost my battles with the blank page. Lastly, I must thank my wife Kristina for often bearing a disproportionate share of our personal trials and serving as an unerring partner in the pursuit
v of my academic goals. I could not have completed this project without her help and my life would be much less fulfilling without her.
vi TABLE OF CONTENTS
Chapter 1 – Constitutional Limitations, A New Dimension, and Constitutionalized Discretion
Page 1
Chapter 2 - Article I: Determining the Rules of its Proceedings
Page 17
Chapter 3 - Article I: The Problem of Legislative Procedural Discretion
Page 46
Chapter 4 - Article II: Reprieves and Pardons for Offenses Against the United States
Page 68
Chapter 5 - Article II: The Problem of Constitutionalized Prerogative
Page 104
Chapter 6 - Article III: The judicial Power shall extend to all Cases, in Law and Equity
Page 131
Chapter 7 - Article III: The Problem of Equity Jurisprudence
Page 167
Chapter 8 - Conclusion
Page 203
References
Page 206
vii LIST OF TABLES
Table 4.1: The Pardon Power in First Post-Revolutionary State Constitutions
Page 79
Table 4.2: The Pardon Power in First State Constitutions After 1788
Page 97
viii To Kristina
ix Chapter 1:
Constitutional Limitations, A New Dimension, and Constitutionalized Discretion
In the Fall of 2013 most American were likely confused by the parliamentary maneuvering in the Senate; several of President Obama's judicial nominations were being held-up by Senate Republicans refusing to agree to even vote on their confirmation, and
Senate Democrats were threatening to change the rules of the Senate in order to force a vote.
Many Americans might have been surprised to learn that the Senate filibuster, while a longstanding practice, was not constitutionally mandated. To think that the filibuster, which had come to be the defining characteristic of the “world's greatest deliberative body”, was merely an artifice of legislative tradition might come as a shock. Aside from making one curious what other common governmental powers and practices might be equally undefined by the Constitution, it makes one wonder why the framers of the Constitution would have given Congress the power to make and break the kind of legislative rules that come to define it. If, as is the common understanding, the founding generation was so concerned with the arbitrary rule of a distant government, why would the framers of the Constitution have constructed, and the subsequent ratification conventions have acquiesced, in the kind of powers that seem to engender so much undefined power?
An underlying principle of the American Founding was that government only had the powers explicitly bestowed upon it by the people. Constitutional drafting and ratification, both in the state and subsequently at the federal level, served as the ultimate articulation of the extent of the authorized powers. The basis for this principle was that a government
1 granted a specific list of powers would be limited to those powers. One problem of a government limited in this way, is that restricting government to an explicit set of powers will inevitably curtail, if not outright eliminate, the ability of that government to address unforeseeable, exigent circumstances. To address this problem, the founding generation explicitly incorporated a number of government powers, some which had traditionally been outside of normal limiting mechanisms, into the constitutional text. This was done in the interest of limiting those powers, in contrast to traditional arrangements, by designating a particular authority that could exercise them and a structure by which these actions might be checked. However, this constitutionalization of traditional discretionary powers has had the opposite effect as American political institutions and norms have developed since the
Founding. Rather than weakening these powers in comparison to their traditional usage, their constitutional status has served to strengthen them by marking their usage with a presumption of legitimacy because they are explicitly sanctioned by the Constitution.
Typically when scholars think about discretion, it is in the contexts of gaps, or “grey areas”, or extra-constitutional versus constitutional power and action. For example, presidency scholars discuss the “vesting clause” or the degree to which statutory language leaves the details to the executive branch; in the case of Congress, it is the necessary and proper clause or legislation more generally; while for the Courts, discussion revolves around judicial review or the federal rules of procedure. The first example for each of the government branches above, is indicative of the type of power not subject to the direct check of another branch, and that has, at least at one time in the history of the Constitution, been of debatable constitutional legitimacy. Each of the latter are typical of powers with an explicit
2 constitutional grant, but are subject to a direct and equally explicit check from a coordinate branch. These two categories are often subject to political and scholarly debate; however, a third category exists which is far less considered but offers substantial insight into the debate on discretion more broadly. This third category is concerned with explicit constitutional powers discretionarily exercised without the limiting factor of a direct check.
Perhaps the most prominently debated manifestation of constitutional discretion arises out of the idea that constitutions are fairly malleable and subject to update and change with the times. Something Jefferson would have decried as “construction” many contemporary scholars have argued is a necessary means for constitutions to address exigent circumstances.
Additionally, scholars have argued that any constitution must, as a matter of definition, supply the necessary means of constitutional self-preservation (see Chapter 5). Other types of discretion are studied in terms of the relationship between institutions formulated by the
Constitution. This area is concerned with questions about how and why the coordinate branches work together or not in the policy-making process, and the type of rules and procedural mechanisms that facilitate this interaction. There is little research, however, on the mechanisms which bestow discretion in ways that are not well regulated by the designed tension between the branches. This is for two reasons; the first, because constitutional power without limits is antithetical to the project of American constitutionalism, and, secondly, because the origins of this category of discretionary powers has not been sufficiently analyzed in a discretionary context.
3 BENEFITS AND LIMITS OF PREDICTABILITY
The early liberal thought of John Locke was of crucial importance to the American founders. Though scholars have argued that “many of the principles and assumptions of
American constitutionalism were operative before Locke published his Second Treatise of
Government” (Lutz 1988, 10-1), many of the founders referenced Locke throughout their writings before, during, and after the founding period. These scholars emphasize the importance of colonial charters and early state constitutions as important sources of
American constitutionalism. Despite these other sources, the Lockean articulation of the ends of government and the means of establishing a government that could achieve those means were invaluable.
Locke's compact theory of popular sovereignty was in direct opposition to Hobbes in form, but very similar in fundamental substance. Both thinkers believed that government was responsible for regulating the interaction between people so that society could function. In its most basic formulation, their theories advanced an argument for a government which could provide predictable outcomes so that citizens could achieve their best lives. While Hobbes, adhering to a much more pessimistic view of human nature, believed that only an absolute sovereign that was inextricably tied to the welfare of the nation could achieve the ends of a commonwealth, Locke charted a different path. Taking a less wretched view of mankind,
Locke believed that men could join together in mutually beneficial compacts which would dictate the role of the state and what powers were delegated to it in order to fulfill that role.
His state of nature puts man in “a State of perfect Freedom to order their Actions, and
4 dispose of their Possessions, and Persons as they think fit, within the bounds of the Law of
Nature, without asking leave, or depending upon the Will of any other Man” (2003, 269), and yet Locke presumes that men, despite their perfect freedom, will come together to form political societies. He does, however, anticipate the question, “If Man in the State of Nature be so free... why will he part with his Freedom?” His short answer to this question is that “the
Enjoyment of it is very uncertain, and constantly exposed to the Invasion of others” (350).
The long answer contains three parts; men want “an establish'd, settled, known Law”, a
“known and indifferent Judge”, and the “Power to back and support” the determination of law (351). It is clear then, that the lack of certainty, or predictability, is a paramount concern within the state of nature and a key reason why political societies are formed in the first place.
Furthermore, men, “being, as has been said, by Nature, all free, equal and independent”, must consent to the forfeiture of their Natural freedoms to a political society
(Locke 2003, 330). Therefore, if man seeks to form political societies to decrease uncertainty, thus increasing predictability, to better order their persons and property, then any compact forming that political society would require provisions which decrease overall uncertainty and increase predictability. Though the assessment of risk and the ability to predict political outcomes is imperfect, both Locke and Hobbes presume that men make such assessments when entering a political society. The primary difference is that for Hobbes, the uncertainty of his state of nature is incalculable, and thus even the most arbitrary directed state would be preferable; Locke, however, foresees the requirement of a much more nuanced determination.
5 To be clear, even Locke understood that no constitution, or compact, could codify all procedures for all cases (Locke 2003, 374-80). However, the procedures for decision making should, when possible, be codified to ensure the predictability that is the basis for constitutional government in the first place. Lockean “prerogative power is not arbitrary in the sense of unaccountable to the people, to be sure, but it is unpredictable” (Mansfield 1989,
189); therefore, it should be limited as much as possible. As mentioned above, the fear resulting from over-specification is that it will render the state unable to fulfill the duties to which it has been charged, but to under specify is to render the state unaccountable and their actions unpredictable. Yet, it does seem curious why American constitutionalism, which borrowed so much from the theories articulated by Locke, left so much of their constitutional order to the discretion of those wielding constitutional power.
The desire to have predictable, consensual government, though just, inevitably runs counter to the limitations of reality; constitutions and laws cannot account for all those actions which might be in the common interest. A substantial portion of constitutional study seeks to find the means to allow for extraconstitutional authority while maintaining both checks on that authority and providing legitimacy to that authority. For Locke, in particular,
“the centrality of prerogative means that... the insufficiency of the politics of law is the central problem of political practice” (Corbett 2009, 6). Similarly, delegates to the Federal
Convention realized that the strict limitations imposed by the Article of Confederation, though perhaps good for the protection of state sovereignty and individual liberty, failed to meet the common interests of the new nation. The Constitution, on the other hand, sought to check the necessary discretionary authority of the coordinate branches of government by
6 making them “connected and blended as to give to each a constitutional control over the others” (Hamilton, Madison, and Jay 1961, 305).
Typically, this is how discretionary government action has been viewed by scholars; as a question of how to deal with the aftermath of some discretionary exercise of power that is either extraconstitutional or extralegal. In the spirit of American constitutional design, this involves the debate as to where the limits of discretionary authority should meet the explicit mandates of a written constitution. The early republic saw each of the branches established by the Constitution push the boundaries of their enumerated powers: Congress' chartering of the First Bank of the United States, Jefferson' execution of the Louisiana Purchase, and the
Supreme Court's finding in Madison v. Marbury that set the precedent for judicial review. In each of these cases the authority and legitimacy of the actions were questionable, but in each case the extraconstitutional beginnings of the action has been legitimized as done in the public interest and the common good.
CONSTITUTIONAL “CONSTRUCTION” AS DISCRETION
The innovation of popular sovereignty, founded on the natural equality of man, served as a precursor to the limited government of modern constitutionalism. Yet, determining the proper limits of government has been elusive. A constitution that provides for few limitations would only engender the type of tyrannical government which prompted revolutionaries to turn to constitutionalism in the first place, while too many limitations
7 would result in an ineffective government that, though unable to wield tyrannical influence, would fail to perform the basic functions required of the state (e.g., the Article of
Confederation). At the most basic level, this is a debate about discretion, and to what extent discretion is present within the Constitution and/or necessary to constitutional effectiveness.
American constitutional revision has been a focus of much scholarly work in recent years. Some of this literature has focused on righting the wrongs generated by constitutional mechanisms crafted over two centuries ago (Levinson 2006, Sabato 2008), while others have instead been more cautious about altering existing constitutional mechanisms in general; this latter group has concerned itself with finding solutions to modern problems within the existing constitutional text. In part, these approaches look toward those portions of the
Constitution which are not precisely written, upon interpretational traditions which have formed since ratification, or the “Implicit Constitution” (Amar 2012).
Among these scholars, Tushnet goes as far as to claim that “because the structure the
Constitution creates for our politics is rather loose, we can workaround its restrictive provisions if we want to – and in doing so actually respect our constitutional heritage” (2010,
151-2). He supports this claim by attempting to demonstrate how a national popular vote for president or fixed terms for Supreme Court justices might be achieved through what he calls
“constitutional workarounds”. The justification for these constitutional workarounds is based primarily on his assertion that formal changes are difficult, that the Constitution is insufficiently definite, and that a little favorable interpretation – assuming a certain degree of citizen buy-in – can achieve many required changes. Furthermore, changes of this nature can be legitimate because “a public that is determined enough to force through a constitutional
8 amendment limiting presidential power ought to have enough influence on its representatives to get them to limit presidential power without a constitutional amendment” (157).
The flaw with Tushnet's logic, as with other similarly disposed scholars, is that the type of informal constitutional change they seek defeats the very purpose of having a constitution in the first place. As Jefferson once warned; “Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction”
(Jefferson 1984, 1140). In other words, the fact that the Constitution is written, rather than unwritten or traditional, is both a means and an end. Constitutional workarounds, the “living constitution” (Strauss 2010), and other mechanisms for generating and applying informal constitutional rules neither embody what it means to have a constitution nor what is means to have rules.
THE CONSTITUTION AND PROCEDURAL RULES
Virtually all scholars now advocate the benefits of rule of law. These advocates tend to emphasize the rule of law as a means of ensuring equality and the protection of community and individual rights. The concept of rule of law is inextricably linked to that of predictability; “even in simpler times uncertainty has been regarded as incompatible with the
Rule of Law” (Scalia 1988, 1179). Procedural rules provide the functional mechanism for rule of law, yet not all procedural rules are created equally; an important distinction between rules of procedure is that of formal and informal rules.
A diverse group of thinkers have offered a number of understandings of constitutions,
9 but for American constitutionalism, and at the root of Lockean compact theory,
“constitutionalism has one essential quality: it is a legal limitation on government; it is the antithesis of arbitrary rule; its opposite is despotic government, the government of will instead of law” (McIlwain 2007, 20). Constitutions dictate what the state can and cannot do, and so for any procedural rule to be of concern for our present purposes, they must be attached to an enumerated power within the Constitution. Powers which have grown out of custom, delegation, and through the overall political development are of less concern here as they could not have formalized procedural rules because they were pseudo-formalized at a later time.
Predictability serves as the antithesis to arbitrary rule, which Locke equates with slavery, and as an important end of political societies, which are formed to avoid the uncertainty of the state of nature. Though Hobbes and Locke disagree about a number of fundamental issues, they are fundamentally making the same basic case for the commonwealth, which is that the state of nature is unpredictable – whether freedom is uncertain or we are in continual fear of violent death – and a primary function of the state is to diminish that unpredictability.
I differentiate formal procedural rules in three ways; 1) enforceability, 2) procedures for establishment and amendment, and 3) process for establishing legitimacy. These characteristic differences fundamentally alter the degree of predictability that we would expect from outcomes resulting from a set of formal versus informal procedural rules. This may be best illustrated by thinking about the opposing characteristics; namely, procedural rules which are not enforceable and can be made or changed by any actor in any manner.
10 Rules of this informal type have functional roles in a variety of venues, particularly in those gaps where formal rules do not apply, and likely provide more certainty than no rules at all, but they provide decidedly less certainty than formal rules.
Rules and laws which are not followed lose not only their own intended effects, but also undermine the effects of other rules and laws. Informal rules exacerbate this problem in that they are frequently unenforceable because they are not codified in a way that is conducive to legal sanctions. Similarly, rules which can be made or changed without some process determined in advance or method for determining consent do not provide predictable circumstances. Constitutions serve as the institutional means to ensure predictable government action. In part, this predictability is facilitated because constitutions confirm that
“every exercise of government power should be subject to important substantive limitations and obligations” (Murphy 2002, 6), and at the same time they guarantee those “substantive limitations and obligations.” While there will always be limits to what can and cannot be predicted about the future, a primary function of constitutional government is to maximize the predictability of government action. In concordance with this aim, constitutions provide for the rule of law, which, when “stripped of all technicalities”, is the idea that “government in all its actions is bound by rules fixed and announced beforehand – rules which make it possible to foresee with fair certainty how the authority will use its coercive powers” (Hayek
2007, 112).
Though the actual decisions about which actions government will pursue are not always explicitly included within a constitution, knowledge of the rules by which the decision alternatives are formulated, judged, and eventually decided upon can convey a great
11 deal of clarity for citizens making short-, medium-, and long-term plans. Constitutional drafters struggle to find a balance between procedurally driven powers and discretionary powers. Even early constitutional thinkers understood that there were limits to the scenarios which could be foreseen and specifically accounted for within constitutions; however, with a robust mechanism for decision making procedures, there is no need to anticipate every possible scenario to maintain an ordered, predictable government.
CONSTITUTIONALIZED DISCRETION
My primary argument is that the Framers of the Constitution conferred upon the national executive, legislative, and judicial authorities a number of inherently discretionary powers, and that these powers were not sufficiently circumscribed within the interrelated checks consistent with other enumerated constitutional powers. In part, this was due to the discretionary nature of these powers as they had existed in the British and colonial constitutional traditions with which the Framers would have been familiar. Discretionary powers were, in these traditions, largely extra-legal actions that functioned as remedies to the limitations of human rationality and foresight. An important Federalist argument for ratification was that only those powers explicitly authorized within the Constitution were legitimate, which raised questions about where to orient such powers in a constitutional system dependent on this argument. The Framers answer was to incorporate these powers explicitly within the Constitution to both legitimize and limit their use.
Research on discretion focuses most heavily on the presidency, but constitutionalized
12 discretion features prominently in each of the federal departments. In the chapters that follow, I analyze powers of constitutionalized discretion from each of the articles that outline the three branches of government; Article I (chapters 2 and 3), Article II (chapters 4 and 5), and Article III (chapters 6 and 7). The first chapter of each section traces the power and corresponding institutions through its development up to, and including, the early republic, and provides evidence to support my argument that the Framers understood these powers as discretionary, but recognized their utility. The second chapters make the case that these powers, once constitutionalized, undermined various constitutional principles of the
Founding, and were institutionally situated in a manner insufficient to prevent abuses and perform all of their salutary purposes.
Legislative Discretionary Procedure
Article I of the Constitution provides each House of Congress with the authority to
“determine the Rules of its Proceedings”, but says little else about legislative rules of procedure. According to Joseph Story, “the humblest assembly of men is understood to possess this power” (1833, 298). Though a mere understanding without any formalization throughout much of the development of standing procedural rules, colonial charters and the post-revolutionary state constitutions experimented with explicit grants of this authority.
There were examples of long-running legislative disputes that, at least at times, hinged on the enforcement of procedural rules, and the Framers, many of whom had extensive legislative experience, would have appreciated the importance of legislative rule in general. Although the Framers did follow the example of some states and write rule-making into the
13 Constitution, they did not add any other guidelines for this process. At the same time many of the principles of American constitutionalism were rapidly developing, legislative institutions lagged behind and some of the old assumptions about how a legislature should function were left in place.
Many Americans would likely assume that a majoritarian legislative system was codified into the Constitution, but the reality is quite different. There is a substantial body of scholarly work on the effects that legislative rules have on legislative outcomes, but there seems to be limited scholarly interest in why Congress was granted carte blanche to formulate rules of procedure in the first place, and how this power fits within the larger constitutional project. In particular, that the legislative rule-making power can be manipulated in ways that can empower chamber leadership and limit the power of the minority party, while at the same time indirectly – or directly – influence the manner in which the executive and judicial branches function or who occupies positions within those branches.
Executive Prerogative of Mercy
The presidential pardon power conveyed in Article II states that “The President... shall have Power to grant Reprieves and Pardons for Offences against the United States”, with the only exception being impeachment. Clemency had been one of the many prerogative powers of the English kings for hundreds of years before the colonies were settled, and throughout the colonial period was employed by proprietary and royal governors alike.
Unlike my other cases, the power to pardon was very widely debated before, during, and
14 after the Constitution was drafted and ratified. In particular, there was a considerably diverse combination of institutional arrangements devised by state constitutional drafters aimed at giving clemency a place within the government; albeit in some cases severely restricted.
Presidential pardons have received more scholarly and public attention during the past few administrations because of the way that clemency has been used to protect their self- interests and people in their political circle (Crouch 2009). President Trump has continued to bring attention to the pardon power by granting clemency to people in the public eye and claiming a plenary power to pardon himself. This increased attention has made the public more aware of the peculiar status which the pardon power claims within the design of the
Constitution, and the potential problems that might arise from the abuse of the pardon power.
These instances highlight the inability of Congress and the Courts to curtail an explicit power conferred on a coequal branch of government.
Judicial Equity Jurisprudence
Finally, I address the Article III extension of the judicial power to cases “in Law and
Equity.” Delegates at the Federal Convention would have been heavily influenced by the
British colonial and early American legal systems, but “broke with prior English and
American practice” (Amar 2005, 210) in their formation of a Supreme Court separate and independent from the upper house of the legislative branch and/or an executive council. The distinction between cases of law and cases of equity were, however, still largely observed as they were in Great Britain. During the Federal Convention of 1787 and the subsequent ratification debates this division was a matter of concern to Anti-federalists who feared that
15 the courts and judges would be undermined if cases at law and cases in equity were adjudicated in the same place and by the same people.
The development of federal jurisprudence and the rules of procedure for all federal courts has largely eroded this distinction. I argue that delegates to both the Federal and State conventions often talked past one another when debating what the future federal court system would look like. Those supporting the Constitution spoke of equity as if it were a purely jurisdictional clarification, and that it was obvious that the federal courts needed to have power over civil cases; while those opposing the Constitution spoke of equity as if it were a matter of jurisprudence, and that judges expected to adjudicate cases using both legal and equitable jurisprudence would eventually lose the ability to differentiate the two judicial methodologies.
16 Chapter 2:
Article I: Determining the Rules of its Proceedings
Condorcet identified in the late Eighteenth Century that the rank-orderings of preferences among members of decision-making bodies can often be cyclical so that no single policy option will be the most preferred over other policy options. He concluded that this paradox of majoritarian decision-making meant that the eventual policy determinations would often hinge on the rules used to coordinate and bound the deliberative process (1785).
Therefore, the rules and procedures used by a legislative body are sometimes as important as the policy preferences of those deliberating and voting on the decision. Contemporary political scientists tend to agree that procedural rules have a effect on legislative outcomes
(Arrow 1963; Shepsle 1979; Riker 1982; Krehbiel 1998), and Condorcet's paradox indicates that the interaction between rules and outcomes is inevitable.
It is hard to imagine that the framers of the Constitution were oblivious to the role that rules and procedures would have on legislative decision-making, and so it becomes quite puzzling that so little attention would have been paid to the matter during the founding era.
Squire's (2012) analysis of legislatures in America show that preceding British institutions provide significant influence on their development. He draws a fairly straight line from
British parliament, the colonial assemblies and early state legislatures, to the rules adopted by congress and the state houses of the early republic. I argue this linear development was inconsistent with the new place of the American legislature within a constitutionally limited government of enumerated powers.
17 This contrast between legislative and constitutional development is largely missed or ignored by scholars, but can partially explain why Congress functions in a manner that often departs from the ideals of the Founding. While legislative institutions prior to independence were subject to the influence and control of an executive empowered to curtail legislative action, the legislatures established by the post-revolutionary state constitutions were no longer offset by a countervailing executive power. These empowered state legislatures began to spark concerns about legislative excesses, the type of excesses that could not be limited by procedural rules that preceded the new institutional arrangements in America and were formulated within the legislative process.
The second clause of Article I, Section 5 of the Constitution states that “Each House may determine the Rules of its Proceedings...”, which gives Congress the unfettered authority to make rules for the legislative decision-making process. This mode of formulating rules is unchanged from the proceedings legislative bodies of England and North America, but unlike those legislative bodies, the American Congress is situated in a different overall political system where, as Madison put it, “the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived” (Hamilton, Madison, and Jay 2003, 311).
ENGLISH LEGISLATIVE RULES IN PARLIAMENT AND THE COLONIES
Parliament continued to develop during the colonial period, especially in light of the persistent political turmoil of the Seventeenth Century, and the colonial assemblies tended to
18 follow the example set by changes in England. Many of the rules of assemblies in the colonies, therefore, were very similar to those of Parliament and new rules and practices adopted by Parliament were often mirrored by rules changes in the colonies. This is despite the very different places within the British Empire that these bodies were situated, and the degree of autonomy enjoyed by them. Given these geographical and political differences, it should be at least somewhat surprising how little the colonies innovated with regards to legislative rules of order and procedures.
National Assemblies of England
The first national assembly in England was the Witenagemot of the Anglo-Saxon period. Running from at least as early as the Seventh Century1 through the reign of Edward the Confessor and even lasting, at least in name, into the post-conquest Norman reformation of English government (Liebermann 1913). Much of what historians know about the
Witenagemot has been pieced together through indirect evidence, such as references to the
Witenagemot on documents purporting to take some action with its sanction. At least in part, this type of historical evidence is based on the premise that the Witenagemot exercised real power rather than as a sort of rubber-stamp for actions of the king (Oleson 1955, 25-34).
Still, according to Liebermann, the Witenagemot is worth attention as “one of the lineal ancestors of the British Parliament” (1913, 1).
However, these early, national legislative bodies did not operate by any documented rules of procedures like those developed later within Parliament. The first significant attempt
1 According to Liebermann (1913, 2-3), the Witenagemot “existed in heathen times” and predated the Roman conquest of the British Isles.
19 to document and formalize the operations of Parliament yielded the Modus Tenendi
Parliamentum, which was written sometime in the late Thirteenth Century (Galbraith 1953).
The accuracy of the description of the workings of Parliament have been questioned by historians, but the idealized characterization of the mode of conducting Parliament does seem to have influenced later codifiers of Parliamentary rules and procedure (Snow 1977). In particular, John Hooker's Order and Usage used much of the same verbiage when describing the rules and procedures followed by the parliaments to which he was elected in the
Sixteenth Century (58). Many of these rules were also included in Thomas Smith's account of the manner of holding parliament in his De Republica Anglorum (1906).
Among the rules and procedures articulated by Hooker and Smith many persisted into the early Republic. Procedures and rules that required members of Parliament to stand uncovered when speaking, avoid speech that might abuse fellow members, be present when in session, and that bills be read three times before being put to a final vote were shared by both accounts of Parliamentary rules and each were featured in sets of rules and procedures articulates by subsequent assemblies in North America. It is important to note that these tracts were descriptive and sought to provide a detailed picture of the way that Parliament operated and not a prescription for how Parliament ought to operate. As such, the consistency between these two sources is understandable, and the degree to which early colonial assemblies closely adhered to these same rules and procedural manners is not a indication that they were following Hooker or Smith but were following Parliament.
20 Assemblies in Colonial North America
Legislative assemblies were common in the British North American colonies. In some cases these assemblies were established by the very colonial charters upon which the colony was founded, and in others the assemblies grew out of exigent circumstances (Squire 2012).
In either case, the early legislative bodies of the colonies generally exercised limited powers, and the laws they enacted were almost always subject to the veto of the governor – especially, royal governors – or the king or Parliament in England (McGovney 1945). It was not until the series of intercolonial wars of the late Seventeenth and early Eighteenth
Centuries that the role of some of the assemblies gained strength in the colonial political system (Greene 1994, 30).2 Along with the aggrandizement of their political power, assemblies further developed formal rules and procedure to match the greater institutionalization of colonial government.
The first colonial assembly was held in Virginia in 1619; however, rather than meeting as a matter of legal course due to language in the colonial charter, an order from the governor, or royal decree, the assembly was called because of the colony's dire economic situation (Squire 2012, 11). Colonial assemblies called for the specific purpose of addressing particular circumstances was not uncommon, and followed the same type of practice of early
English parliaments. Before Parliament gained significant independence, the king would call a parliament with a specific set of charges and dissolve the parliament once they had been addressed. In some ways, the relationship between the colonial governors and the colonial assemblies was similar to the relationship between the English king and parliaments of
2 The degree of political power held by colonial assemblies reached their peak following the last two colonial wars in North America in the mid-Eighteenth Century.
21 centuries past (Diamond 1976, 14). It is likely that the temporary character of early legislative assemblies contributed to the normalization of informal procedures, as standing, formal rules would have been viewed as superfluous.
Still a number of other colonies were obliged to hold general assemblies by their founding charters (Thorpe 1909). Whether formed as a matter of necessity or course, no colonial assemblies were explicitly provided a set of rules or procedures by which to conduct their affairs; which is to say that the calls to form the various colonial assemblies did not also tell them which rules to follow or how to make decisions. However, various tracts that compiled the rules of order for Parliament were in existence during the colonial period, and they were “available to the colonists during the early 1700's, but as early as 1583” (Peterson
1983, 8). Additionally, many of the proprietary colonies that established assemblies used procedural rules similar to those used for corporate decision-making (Greene 1994, 23).
The early rules of order and procedure of the colonial assemblies, therefore, were greatly influenced by, and largely mirrored, the rules of order and procedure used in British parliamentary practice (Greene 1969, 345; Squire 2012, 46). As with the development of rules in general, the development of rules of order and procedure in the colonies gradually became more intricate as the experiences of the individual assemblies gained institutional experience and members experimented. Despite this accretion, even the set of rules for colonial assemblies on the eve of revolution would be considered paltry by more modern standards. For example, the Maryland colonial assembly of the mid-Seventeenth Century had only nine rules (Browne 1883, 215-6) and by the end of the same century the South Carolina
Commons House had adopted a mere eighteen (Salley 1914, 8-10). Many rules from both
22 assemblies were duplicated from the standard practice in Parliament; both required members to stand uncovered when addressing business before the assembly, both required bills be read three times before passage, and both assign to the presiding officer the duty to determine who will speak when two members rise at the same time. Still, there were differences between the rules and procedures of the colonial assemblies which fit their own situations and experiences.
What we know less about is how these rules were formulated. Though scholars concede that “deliberative bodies can scarcely function without procedural rules” (Currie
1997, 9), the record of the formulation thereof is often quite sparse or nonexistent. The evidence seems to point to prior legislative experience and other legislative bodies as being highly influential on which rules would be adopted in any given colonial assembly. We tend to know little about the nitty-gritty deliberation of rules formulation because committees were generally established for the purpose of drafting rules for the body as a whole, and records of the deliberation of such committees often did not survive or were not taken.
However, we do know that these rules, whatever their origin, were generally presented to the legislative body as a committee of the whole, debated, amended, and adopted by the most modest of thresholds and with no particularly heightened ceremony or pomp.
The legal situation of the colonies within the British empire was vastly different from
England, but the governmental hierarchy was similar in important ways. The king exercised executive authority through appointed, royal governors and judges, while colonial assemblies exercised legislative authority with the blessing of the king's prerogative. This similarity
23 between the executive and legislative functions of the state, therefore, resulted in very similar legislative structure and manner. However, the beginning of the Revolutionary war and the advent of new state constitutional governments founded on the principles of an independent
America, altered the arrangement of government power. The new state government assemblies no longer relied upon the blessing of a king or governor to exercise legitimate authority, but now claimed an independent and more powerful place within the context of a government based on popular consent.
LEGISLATIVE RULES IN POST-REVOLUTIONARY AMERICA
Following the Declaration of Independence, in 1779, the newly dubbed State of
Massachusetts called for another convention3 to draft a constitution. Several prominent political figures were present at this convention4, including John Adams who would become the chief author of what became the Massachusetts Constitution of 1780 before returning to his diplomatic duties abroad. This early state Constitution, much like others, made provisions for the state legislature to choose the rules by which it would operate:
The senate shall choose its own president, appoint its own officers, and determine its own rules of proceedings. (Thorpe 1909, 1897)
The house of representatives shall be the judges of the returns, elections, and qualifications of its own members, as pointed out in the constitution; shall choose their own speaker, appoint their own officers, and settle the rules and order of proceeding in their own house. (1899)
Considering that many of the delegates to the Federal Convention of 1787 participated in the 3 The constitutional product of the first convention was rejected by the citizens of Massachusetts. 4 Present at the Massachusetts Constitutional Convention were Samuel Adams, John Hancock, and Nathaniel Gorham, who also served as a Massachusetts delegate to the Federal Convention of 1787 (Journal Convention Constitution Massachusetts 1832, 8-19).
24 crafting of their respective state constitutions, the similarities between various sections and clauses should not be particularly surprising. Yet, we might also have expected a more significant change to the way that legislatures conducted business given the significant political change that occurred when colonial governments under British rule became state governments in open revolt.
Rules of the State Legislatures
At the onset of the American Revolution5 the former colonies established provincial governments and officials of royal rule abandoned the colonies (Diamond 1976, 23; Thorpe
1909, 2452). Many of these provisional governments immediately began to craft constitutions, with eight states drafting and ratifying constitutions in 1776 and two others in
1777.6 Within these constitutions, the trend among the states was a general empowering of state legislatures to the detriment of the executive powers held by governors and executive councils (Kruman 1997, 35-6). Structurally, “when independence was declared, the colonial lower houses became state lower houses with little more than a name change”, and though there was more significant changes to the upper houses and councils, “there was considerable organizational continuity between the colonial-era legislatures and those institutions that succeeded them after the break with Britain” (Squire 2012, 8).
Of the ten states drafting constitutions in the first two years of the conflict, only four such constitutions included explicit provisions for the adoption of rules for the legislatures established therein (Thorpe 1909), and all of these provisions granted the rule-making power
5 Massachusetts was operating a provisional government as early as 1774 (Diamond 1976, 23). 6 Connecticut and Rhode Island continued to operate under their colonial charters, with significant amendments, into the Nineteenth Century.
25 entirely to the legislature, and imposed limited other provisions. Of the other procedural provisions explicitly included in the constitutional language of many states was the establishment of explicit quorum thresholds, rules for adjournment, the origin of bills pertaining to taxing and spending, and the manner in which legislation needed the assent of both the lower and upper houses.
The lack of the explicit constitutional authority to craft their own rules of proceeding did not prevent those legislatures from adopting their own rules. The 1776 Constitution of
Pennsylvania, for example, provided no such specific power to its house of representatives, but the representatives of the first session under that Constitution spent two days addressing pressing matters left by its predecessor – especially those pertaining to the nascent conflict with Britain – but before conducting any new business amended the rules of the former house of assembly and adopted nineteen Rules of the House (Journals of the Pennsylvania House
1782, 98). This was done in much the same way that rules were adopted in states with explicit provisions7, and the record does not indicate that any legislature questioned the legitimacy of rules formulation. The ability for legislatures to formulate their own rules of proceeding was certainly taken as a given in most instances, but it does raise the question why so many states felt compelled to grant the power explicitly if such authority went unquestioned as inherent in the nature of a legislative body.
The rules adopted by the state houses were very similar to those of the colonial assemblies, regardless of whether the state constitution provided for their discretionary creation or was silent on the matter (Squire 2012, 93). State governments erected during the
7 For example, After the Delaware Constitution of 1776 was adopted, Delaware's Council adopted four rules on the second day of its inaugural session with not less ease than other states (Minutes of the Delaware Council 1886, 11).
26 revolutionary period suffered from an abundance of urgency and lack of stability. A number of state legislatures did not have the luxury of a safe and stable capital and some delegates were constantly on the move to avoid capture by British forces. Still other states drafted constitutions and established new governments at the prompting of the Continental Congress when it resolved that:
Wheres, it appears absolutely irreconcilable to reason and good Conscience, for the good people of these colonies now to take the oaths and affirmations necessary for the support of any government under the crown of Great Britain, and it is necessary that the exercise of every kind of authority under the said crown should be totally suppressed, and all the powers of government exerted, under the authority of the people of the colonies, for the preservation of internal peace, virtue, and good order, as well as for the defence of their lives, liberties, and properties, against the hostile invasions and cruel depredations of their enemies.” (Journals of the Continental Congress 1906, 358)
This rush to establish governments separate from the existing royal influence resulted in less debate and the continuation of many of the existing mechanisms of government that would fall after the Treaty of Paris afforded the state government more time for deliberation.
Rules of the Constitutional Congresses
The wartime Continental Congresses suffered from many of the same problems facing the state legislatures during that period. It was often on the move and its early iterations were a response to the need for a functioning intercolonial government during a time of great strain. Also like the new state legislatures, the Continental Congress largely followed the model of the colonial assemblies to which its delegates were accustomed.
The First Continental Congress met on Monday, September 5, 1774 at Carpenter's
Hall in Philadelphia, and, after electing a President and Secretary and reading the credentials
27 of the colonial delegations, a motion was made, and seconded, to appoint a committee to
“draw up some rules of conduct to be observed by the Congress in debating and determining questions that come under consideration” (Journals of the Continental Congress 1904, 24).
The motion was debated at length and further debate was postponed until the next day, when it was again debated at length and the appointment of the committee was rejected. Instead, the First Continental Congress adopted four rules of order without the aid of a committee: 1) that “each Colony or Province shall have one Vote”, 2) “that no person shall speak more than twice on the same point”, 3) “that no question shall be determined the day, on which it is agitated and debated, if any one of the Colonies desire the determination to be postponed to another day”, and finally, 4) “that the doors be kept shut during the time of business, and that the members consider themselves under the strongest obligations of honour, to keep proceedings secret, until the majority shall direct them to be made public” (25-6).
The precarious political circumstances of the First Continental Congress might explain the dearth of rules. Though the records indicate that the appointment of a committee to draft rules precipitated a significant debate, the primary point of contention was about the mode of voting in the Congress rather than the utility of a committee. According to the diary of John Adams (1850), when James Duane of New York made the motion for the aforementioned committee Adams asked what rules he “had in his mind”, to which Duane
“mentioned particularly the method of voting, whether it should be by Colonies, or by the poll, or by interests” (365). Upon dividing the question into these two point, whether the committee should be appointed and whether colonies should receive votes “according to the respective importance of each Colony”, both failed (Journals of the Continental Congress
28 1904, 25). The result of the debate being that expansive rules were unnecessary for the operations of the Congress and that each colony ought to have the same voting power as
“The Congress not being possess'd of, or at present able to procure materials for ascertaining the importance of each Colony” (25). Additional details of the debate provided by Adams also indicates that the delegates were mindful of the precedential value that their decision might have on voting schemes in future intercolonial general congresses (Adams 1856, 365-
8).
It was not until the Second Continental Congress that a more substantial set of rules were adopted in July of 1776. The committee to draft such rules was appointed on June 20,
1776 and consisted of Edward Rutledge, Thomas Jefferson, and Robert Treat Paine (Journals of the Continental Congress 1906, 468). Just a few days after the Congress adopted the
Declaration of Independence, on July 10, the report of the committee was presented and laid on the table and included sixteen rules some of which left the particulars – such as the number of members or delegates – open for the determination of the Congress (532-3). The rules, having been further refined after the initial report from the committee, were again put before Congress on July 17, and twelve rules were finally adopted (572-4). These rules closely followed the original report in substance, though the language was refined, and varied little from the type of rules that would have been typical in the colonial assemblies to which the delegates would have been accustomed.
There was nothing innovative about the rules adopted by the Continental Congresses, and so scholars tend to agree that their rules had little effect on the development of subsequent legislative rules of procedure (Squire 2012, 81). The Congress continued to refine
29 its rules periodically throughout the next decade of its operation, with the addition of six rules in 1778 (Journals of the Continental Congress 1908, 534-5) and another dozen in 1781
(Journals of the Continental Congress 1912, 476-82). Additionally, the Committee of States, established by the Article of Confederation to conduct business in the absence of the full
Congress, adopted rules in 1784 that were nearly identical to those Congress adopted in 1781
(Journal of the Continental Congress 1928, 572-577). In each of these instances, the
Constitutional Congress added rules that were already in practice in the various state assemblies at the time, and did not provide for any guidelines for the adoption of future rules.
Despite this lack of innovation, the experience of operating under these rules affected the formulation of future rules. This effect was not a result of innovation within the
Continental Congress, but because the agreed upon procedural rules within the broader context of the Article of Confederation frustrated legislative measures. The ongoing debates pertaining to the Mississippi river demonstrated that the same old rules that were sufficient in the dependent colonial assemblies would be insufficient in an independent national legislature. As we see below, the rules adopted by the first Congress were much more robust and included more restrictions on decorum.
The Mississippi Question
Securing navigation rights to the Mississippi river was a lingering matter of foreign affairs for the burgeoning United States. John Jay, Secretary of Foreign Affairs, negotiated with Spain for years seeking recognition of a right most Americans believed to be conferred in the treaty ending the war with Great Britain. However, Spain was concerned that granting
30 such unfettered access would threaten its own holdings in North American, in part, by making the western territories of the United States economically viable and encouraging additional migration to the Mississippi River valley (Merritt, Green, and Campbell 1991,
121-3). The “Mississippi Question” came to dominate the last years of the Congress under the Article of Confederation, and lead to a number of instances when the rules of debate were ignored and parliamentary wrangling left many of the delegates questioning the viability of the union altogether (134).
On August 25, 1785 Congress amended its instructions to the Secretary of Foreign
Affairs , John Jay, for the negotiation of a treaty with Spain. The new instructions explicitly directed Jay to stipulate in any potential treaty “the rights of the United States to their territorial bounds, and the free Navigation of the Mississippi, from the source to the Ocean”
(Journals of the Continental Congress 1933, 658); additionally, any treaty negotiated by Jay would need to be brought to Congress and obtain approval. This was seen as a necessary limitation on the Secretary that required explicit clarification because the Article of
Confederation stipulated that treaties were among the matters that Congress could engage in only by the assent of nine States. However, both of these requirements, according to Jay, virtually eliminated any chance that Jay could negotiate any sort of treaty with Spain.
Jay petitioned Congress to form a committee for the purposes of overseeing his negotiations and providing any necessary approval on behalf of Congress. While this request was rejected8, years of inaction lead delegates from the Northern states to pursue drastic measures. In order to break the stalemate with Spain and achieve a number of economic
8 Southern delegates with particular interest in the free navigation of the Mississippi, viewed such a move as a way to make an end-run around delegates opposed to relinquishing navigation rights (Eli Merritt, Green, and Campbell 1991, 129).
31 benefits that were barred by the lack of a trade agreement with the European nation something had to be done. A block of delegates from the North again spearheaded a move that amended the instructions issued to Jay. On August 29, 1986, almost exactly a year after they were added, provisions that required Jay to negotiate for free navigation of the
Mississippi and present the treaty to Congress before committing the United States were
“repealed and made void” (Journals of the Continental Congress 1934, 596). This changed the tenor of debate for the remainder of Congress under the Articles of Confederation. What had typically been a cordial legislative environment exploded into one characterized by rancorous debate and the flouting of the rules of decorum and procedure. The fate of navigation rights on the Mississippi continued to absorb much of the business time of
Congress, and procedural wrangling often blocked attempts to revisit the matter along strictly regional voting (Jillson and Wilson 1994, 268-73).
One notable exchange between James Madison and Rufus King on the eve of the
Federal Convention in Philadelphia, highlights the way in which the rules of legislative procedure where used to frustrate the debate and further stall subsequent action. Madison argued on April 25, 1787 that the amended instructions to Jay might “eventually expose the
U.S. to great embarrassments with Spain” if a treaty were concluded that purported to suspend American navigation rights to the Mississippi, and motioned to inform Jay that:
It is the opinion of Congress that the said vote of seven States ought not to be regarded as authorising any suspension of the use of the River Mississippi by the U.S.; and that any expectation thereof which may have been conceived on the part of Spain ought to be repressed. (Journal of the Continental Congress 1936, 736)
Despite the continued debate, most of the delegates realized that no treaty that failed to include navigation rights to the Mississippi had any hope of garnering the requisite support of
32 nine states, and Madison wanted to make that clear to both Jay and Spain. However, this motion lead to a battle over whether the motion was within the bounds of the rules of the
Congress, and whether the rule itself was legitimate.
Following Madison, Rufus King rose to remind Congress that Madison's motion was prohibited because fewer states were present in Congress than when the previous question on the matter was decided, and that the rule was a “prudent one” to prevent the revisiting of a question by an “unsuccessful party” (Journal of the Continental Congress 1936, 737).
Madison conceded the effect of the rule, but expressed surprise that it would be invoked and promptly made a motion to repeal that rule on several grounds. He argued that the rule was flawed for three primary reasons. The first was that the rule functioned as an improper attempt by “one Congress to bind their successors”, which was particularly egregious because it ignored subsequent consensus. Madison used the following example:
12 State were on the floor at the time. 7 were for the previous question. 5 against it. The casting number therefore was but two. Was it not unreasonable that 11 States unanimously of a contrary opinion should be controuled by this small majority when 12 were present; & yet such would be the operation of the rule if 11 States only should at any time happen to be present, altho' they should be unanimous in the case. (737)
Any rule that operated as such was both “impracticable” and “unreasonable” (737).
Secondly, the rule would allow a state to “extricate themselves” from the chamber and effectively block any return to the question. Thirdly, that “the practice of other Assemblies did not reach this case”, but would only apply to “the same assembly & even to the same session” (737).
Though there were at least a few delegates who thought that “the rules of the
Congress for the last year were not in force during the present”, and did not require repeal,
33 the debate quickly turned to whether the votes of seven states to authorize Jay to conclude a treaty with Spain without the approbation of the Congress was constitutionally sanctioned.
Rather than reach any conclusions, votes related to the Mississippi and whether to repeal the rule were postponed. The debates on procedure during April 25th and 26th were the final days of business attended by Madison before leaving New York for Philadelphia to attend the
Federal Convention for altering the federal government. Securing navigation rights to the
Mississippi would not be achieved until 1795, when the international circumstances of Spain, rather than the particular state concerns, changed in favor of American goals.
The revolutionary period largely continued the rules utilized by the colonial assemblies that preceded 1776. While the introduction of state constitutions that founded their authority and legitimacy on the people were adopted by most of the new states, this translated to the limiting of legislative rule-making in only a few narrow areas of legislative activity. However, the nature of the state legislatures, especial as they related to the executive powers of the state, changed dramatically. The move in almost every state to limit executive authority meant that the same legislative schemes that existed in the colonial period no longer had the countervailing tension with governors and judges. While the ability of colonial assemblies to abuse their rule-making practices for reasons contrary to the public interest had been checked by strong, independent royal governors, the stripping of power from state governors left state legislatures rule-making with no institutional restraints. Similarly, the rules of the Continental Congress were largely hold-overs from the legislative bodies with which the delegates were most familiar, and the lack of an executive power left the delegates
34 to wrangle with its own rules on issues of particular consequence to the new nation.
CONGRESS IN THE FEDERAL CONSTITUTION
The Articles of Confederation, as America's first constitution, was doomed, in part, by the rules of procedures that it imposed on the Continental Congress; namely, that many acts of Congress required at least nine of the thirteen states to assent. Among the list of legislative areas that required this more than two-thirds majoritarian threshold were the borrowing against the credit of the United States and appropriating money (Thorpe 1909, 9-
17), which essentially meant that nothing of any substance could be done without a super- majority of support. Seeking a more energetic government, the framers of the new constitution used super-majoritarian thresholds sparingly throughout the new Constitution they drafted in Philadelphia.
Constitutionalizing Congressional Rules in the Federal Convention of 1787
The Federal Convention of 1787 was scheduled to begin its work on May 14th, but a sufficient number of state delegations were not present until eleven days later. On the first day of business, after the various officers of the Convention were elected, a committee was appointed to prepare standing rules and orders.9 When the Convention reconvened for the second day of business, on May 28th, the committee submitted its report that included fifteen rules. Of these rules all were adopted with exception of the rule that would have allowed any member to call for the yeas and nays to be entered into the minutes. The following day, an
9 The members of the committee were George Wythe, Alexander Hamilton, and Charles Pinckney.
35 additional six rules were added, which brought the total number of accepted rules to twenty.
None of these rules was exceptionally different from the rules that were common among the
American state legislatures of the time.
After weeks of debate, the committee of detail reported a draft constitution to the
Convention that consisted of twenty-three articles. The sixth sections of the sixth article read:
“Each House may determine the rules of its proceedings; may punish its members for disorderly behavior; and may expel a member” (Madison 1985, 388). When this section of the draft constitution was under consideration by the committee of the whole, the sole point of debate was the manner by which the houses ought to be able to expel members. The concern was that overbearing majorities might use this authority to expel members of the minority, or leverage such action for legislative gain. As with state constitutional drafters before them, the delegates to the Federal Convention accepted the notion that the houses ought to be able to make their own rules without debate.
But what options did the delegates have? There were five general alternatives; 1) bestow upon the houses of Congress the constitutional authority to continue the informal authority to make their own rules of proceeding, 2) formulate a comprehensive set of rules for Congress within the Constitution – subject to Article V when changes became necessary,
3) establish a process by which Congress could establish its rules (i.e. some special vote threshold for changing rules, explicit principles to guide rule formulation, etc.), 4) institute oversight by another constitutional authority, or 5) make no mention of legislative rule- making and allow for the informal adoption of rules. By far the easiest options for the
Convention were the first and last, but there is no evidence that any alternative to the first
36 was even discussed.
However, as with legislatures in the states, a number of rules were hardwired into the constitutional fabric. Presumably abuse in these areas was a fear based in experience; among them, the Constitution set a definitive quorum, established some rules of adjournment, allowed two-thirds of a house to expel members, and provided the threshold by which the votes of members could be compelled to be entered into the journal. Most of the day-to-day operations of the houses were still left to the members to determine for themselves.
Overall, little is said during the Federal Convention about this significant grant of legislative discretion; though, it is unlikely that the delegates were unaware of the importance of such rule-making authority. Indeed, the rules adopted at the convention, specifically that votes would be determined by state delegations rather by individual delegates, may have had some effect on the outcomes of important constitutional provisions (Carlsen and Heckleman
2016). It is also important to note that the rules for the Convention were drafted and adopted before delegates who would later play important roles in shaping the Constitution had arrived and taken their seat; particularly, Elbridge Gerry and Roger Sherman10.
In light of the Mississippi Question that had embroiled the Continental Congress for years, and turned rather nasty in the months immediately preceding the Federal Convention, it is curious why the matter of legislative rules was not given more consideration. As many of the delegates to the Federal Convention had also served as members of Congress, one would think that the formulation of rules would be of particular concern and importance to the delegates. It is also quite possible that none of the delegates wanted to wade into the deep waters of rules exactly because the matter had proven to be particularly contentious in
10 Gerry arrived the day after the rules were adopted and Sherman took his seat the day after that.
37 Congress. As Madison worried in a letter to Washington, “many of our federal leading men are extremely soured with that has already passed... and in the event of an actual sacrifice of the Misspi. by Congress, will unquestionably go over to the opposite side” (1999, 60).
Perhaps fearing that a lengthy discussion of rules would elicit thoughts of the Mississippi
Question, such discussions were avoided by Constitutional proponents.
Debating Congress in the State Ratifying Conventions
The Constitution drafted by the Federal Convention placed a great deal of power into the hands of Congress, and many understood that it was Congress, not the President, that would be more likely to overpower the other branches of the federal government. This same fear was shared by delegates to the state ratifying conventions, however only scattered references to the rules can be found in the records of the state conventions and these references are to the rules specified in the Constitution rather than to the rule-making power itself. Much like the Federal Convention, state delegates take the power of legislatures to make their own rules as a given.
The state ratifying conventions began, like the Federal Convention, by electing officers to positions typical of legislatures of the time11, and establishing rules for the proceedings of the conventions. In most cases, these rules were drafted by a select committee formed on the first day of business and specifically for that purpose. All but four of the state ratifying conventions12 adopted rules formulated first by a committee and then agreed to by the convention as a whole; the Connecticut records of debate provide no information about 11 Such as President, Clerk, and Door Keeper. 12 There is no record of the debates of the Delaware ratifying convention, but it is likely that delegates forewent defined procedural rules due to the brevity of the debate and unanimous acceptance of the proposed Constitution. (Maggs 2009, 468-9)
38 the rules of the convention while Maryland adopted rules but do not indicate they originated in a committee, and Virginia unceremoniously resolved “[t]hat the rules and orders for conducting business in the House of Delegates, so far as the same may be applicable to the
Convention, be observed therin” (Jensen 1990, 913). Of those conventions adopting rules and recording them in the record, the rules were fairly similar and ranged in number from six to eighteen, with an average number of twelve.
Whether they read and debated the proposed constitution paragraph by paragraph, as a committee of the whole, or if they allowed amendments, could have a significant impact on the final outcome in the convention. Though the Pennsylvania convention planned to go through the Constitution methodically, article-by-article, what happened was a much more precipitous debate that was less about deliberation and more about reaching a quick decision.
Conversely, Federalists in Massachusetts discussed the proposed constitution “clause by clause” so that they “would have time to persuade wavering delegates and to discourage their opponents from proposing amendments” (Maier 2010, 259).
In keeping with the norms of the state legislatures of their experience, delegates did not take the ratifying conventions as an occasion to adopt innovative rules for debate. With few exceptions, conventions quickly adopted rules with little debate and set about the task of debating the Constitution. This lack of concern with the rules for the conventions themselves seems to have translated to an equal lack of concern with the potential rules of Congress.
Few state ratifying conventions specifically mentioned the clause which grants Congress rule-making discretion, and those that do speak merely of the power to punish and expel members.
39 What is notable about both the Federal Convention that drafted the proposed
Constitution and the state ratifying conventions is how little they were concerned about the power of the houses of Congress to make their own rules of proceedings. In light of the turmoil that characterized the legislative body the Constitution was attempting to replace, and presumably remedy, this lack of probity is baffling. Despite the closed door proceedings of the Continental Congress, the disfunction, particularly regarding the Mississippi Question, was fairly well known among the political elites of the day, and yet questions about process within the legislative branch were relegated by concerns about process between the branches and the balance of power between the national and state governments.
LEGISLATIVE RULES IN THE FIRST CONGRESS
Unlike the Article of Confederation, which it replaced, the Constitution of 1787 made no general majoritarian rule for decision-making in Congress13. With the exception of a few super-majoritarian requirements, Congress was provided a blank page upon which to craft whichever rules the houses saw fit and craft laws by whatever means thought prudent. Both houses appointed committees to draft rules for their respective houses, and in both cases these committees included important members that would spearhead important legislative projects early in the new government. The procedural rules eventually accepted by the House and Senate were quite different from one another, and indicate the different type of outlook that Representatives and Senators had on the way that business would be conducted in their 13 Article IX of the Article of Confederation listed a number of activities (i.e. “engage in war”, “enter into treaties or alliances”, “borrow money”) which required the assent of nine States, but also provided that “any other point” (“except for adjourning from day to day”) required the “votes of the majority of the United State in Congress assembled.”
40 separate chambers.
The House of Representatives
The House of Representatives was the first to reach a quorum, on April 1, 1789, and on the next day appointed a committee to “prepare and report such standing rules and orders of proceeding as may be proper to be observed in this House” (Debates and Proceedings in
Congress 1834, 100). The committee consisted of eleven members14 and just a few days after its formation presented its report to the House, which consisted of unnumbered rules organized into four substantive sections; 1) rules pertaining to the duties of the Speaker of the
House, 2) rules of “decorum and debate”, 3) rules on the process for passing bills, and 4) rules for proceeding as a committee of the whole House (102-6). There was little, if any, debate on the rules provided for in the report from the select committee; however, these rules established a number of legislative precedents that would both continue the legislative norms of the time and set the stage for legislative production for generations to come.
These first rules of the House of Representatives somewhat solidified the majoritarian norms in the new federal system. Still the institutional norms of majoritarianism were assumed without being stated, and an explicit statement of what we might think of as
“majority rule” was absent. In the section of rules on the duties of the Speaker, the counting of decisional votes implies a majoritarian threshold by inverse. In stating that if by the
Speaker voting with the minority, an equal split occurs, then “the question shall be lost”
14 Full committee consisted of the following members: Nicholas Gilman of New Hampshire, Elbridge Gerry of Massachusetts, Jeremiah Wadsworth of Connecticut, Elias Boudinot of New Jersey, Thomas Hartley of Pennsylvania, William Smith of Maryland, Richard Bland Lee of Virgina, Thomas Tudor Tucker of South Carolina, James Madison of Virginia, Roger Sherman of Connecticut, and Benjamin Goodhue of Massachusetts.
41 (Debates and Proceedings in Congress 1834, 103), we can assume that the minority would have also lost without the Speakers votes; in other words, that a minority of the votes on a question as well as a tie on a question result in a procedurally negative outcome.
The experiences of the many members in the Continental Congress does appear to have influenced the first rules of the House. The “Decorum and Debate” section is the longest of the rules sections, which may very well be a response to the acrimony that had taken root in the later years of Congress under the Articles of Confederation. The effect of these rules put a great deal of power in the hands of the Speaker, who was charged with deciding points of order and matters of decorum. Though the Speaker's decisions could be appealed to the House by any two members, such an appeal would be decided by the House without debate. Similarly, the rule that so enflamed Madison during the debates on the
Mississippi had been removed, and a rule added as part of a second batch in April of 1789 required attendance unless the member was given leave or was too ill.
The Senate
Despite the fact that the Continental Congress had unanimously agreed to commence proceedings under the new Constitution on the first Wednesday in March of 178915, both houses of Congress were late reaching a quorum and the smaller Senate was even later than the House. Not until April 6th did the the Senate begin to conduct the business of the new
Constitution, and its first order of business was to move toward the certification of the
15 There were a number of votes and significant political wrangling involved in passing the resolution establishing important dates for getting the government started. As the Continental Congress finally resolved, electors were to be appointed by the first Wednesday in January, said electors were to assemble and vote for President on the first Wednesday in February, and that Congress should convene in New York (“the present seat”) on the first Wednesday in March. (Journal of the Continental Congress 1937, 521-3)
42 election of the President of the United States. On the second day, much like the House, a committee was appointed16 to; 1) “prepare rules for the governing of the two Houses in case of conference”, 2) “to take under consideration the manner of electing chaplains”, and 3) “to prepare rules for conducting the business of the Senate” (Debates and Proceedings in
Congress 1834, 18). Also like the House, the Senate elected a number of officers during the first few days of business, which included a Door Keeper, Secretary, and messenger.
The committee produced the Senate rules first, and laid it on the table on April 13, but upon presenting its report on rules for conference and electing chaplains the Senate acted immediately. The rules reported by the committee were not debated until later in the day on
April 15 when a debate presumably occurred, and “some progress” was made (Debates and
Proceedings in Congress 1834, 20), but was not concluded. The following day the report of the committee and a collection of nineteen numbered rules were agreed to by the Senate (20-
1). The smaller size of the chamber likely contributed to the limited number of formal rules, despite its less democratic character (Bickford 1999, 149).
Many of the Senate rules were similar, if not practically identical, to rules adopted by the House. Unlike the House, however, the President of the Senate had unquestionable authority to rule on points of order; the rules provided no avenue for appeal to the chamber17.
The vesting of such powerful authority in a position to which the Vice President, an agent of a competing branch of government, had claim, is somewhat odd. Thomas Jefferson acknowledges the “extensive field of decision” in the preface to his Manual of Parliamentary
16 Full committee consisted of the following members: Oliver Ellsworth of Connecticut, Richard Henry Lee of Virginia, Caleb Strong of Massachusetts, William Maclay of Pennsylvania, and Richard Bassett of Delaware. 17 Senate Presidents could, “if there be a doubt in his mind”, “call for the sense of the Senate”, but presumably he would still make the final decision.
43 Practice (1988), and expresses concern that such discretion if “irregularly exercised, would have a powerful effect on the proceedings and determinations” within the chamber (355).
Neither house breaks substantial new ground in the development of their legislative rules. Though the House did adopt a much larger set of formal rules than was typical for legislative bodies in America, the rules were fairly consistent with the cumulative set of rules of the various state legislatures of the country. The Senate rules focused on basic procedural matters, most of which were the standard operating procedure from the chambers that its members were accustomed to at this point in American legislative development. The implementation of a new constitutional system was not mirrored by anything remotely close to a similar evolutionary change in the manner that the federal legislative branch conducted its internal operations.
CONCLUSION
The incremental development of American legislatures, both before and after the
Revolution, stands in contrast to the much more significant developments in constitutionalism during the founding generation. The informal processes that had allowed legislatures to formulate their own rules for hundreds of years was now inconsistent with the fundamental ideas of the new constitutional scheme. A constitutional government of limited, enumerated powers valued both the products of government as well as the processes of government, and this just didn't fit with the modus operandi of legislatures leading up to the
Federal Convention of 1787.
44 The delegates, perhaps operating from a default position, merely constitutionalized the way the legislatures they knew had always made their rules. This constitutionalization, however consistent with past legislative practice, amounts to a significant grant of discretionary power to Congress. Whereas the rule-making process had been informal, meaning that unsavory rules had no legal protect per se, the new method prescribed by the
Constitution in Article 1, Section 5 granted Congress the power to adopt any procedural rules it liked, and it could do so by whatever process and without any effective check by the other branches of government. Our contemporary experience with the power of rules to shape policy and appointments has accentuated the importance of this discretionary power and the impotence of our constitutional system to do much about it.
45 Chapter 3:
Article I: The Problem of Legislative Procedural Discretion
In recent years, legislative rules in Congress have garnered significant interest. In particular, changes to the long-standing rules regulating cloture in the Senate have peaked interest amongst the political elites, media, and citizenry alike. The so called “nuclear option” has been employed more than once during the past decade to eliminate procedural hurdles in the Senate to facilitate its role in the confirmation of presidential appointments. In these cases, it seems clear that some nominees that would have failed to obtain the consent of the
Senate under the cloture rules in place when they were nominated, but were confirmed after the decisional threshold was reduced. There is some early research that such changes to the confirmation process has an effect on the ideological extremity of judges that assume the federal bench (Abshire and Mallams 2016), and it's quite possible that the same may be true of executive appointees.
Legislative procedural evolution plays an important role in legislative outcomes.
Legislatures are primarily mechanisms for transparent and ordered decision-making, the legitimacy of which is dependent upon not just outcomes but also methods. Shifting legislative rules can make a variety of institutional checks on legislative chicanery weaker than they were likely designed to be. The problems resulting from an abundance of legislative discretion over its own rules of procedure have manifested in different ways, but I argue the source of the problem is founded in the constitutionalization of legislative discretion to make rules.
46 LEGISLATURE AS PROCESS
Representative legislative bodies are a type of decision-making mechanism.
Legislative rules serve as the guidelines by which these mechanisms operate. They create a sort of flow-chart for how the various representations made in the body factor into the way that the body as a whole renders decisions on matters of policy. The Constitution provides the parameters for the subject matters that may be considered by the legislative body, and the rules of the legislature determine the process by which questions that arise within that scope are answered. Though this is perhaps an overly mechanistic conception of the legislative branch, the expectations of modern legislatures make mechanical similarities hard to avoid.
The people vote on representatives, inputs, and expect those representatives to generate laws consistent with some fundamental constitutional principles and public preferences.
Legislative Functionalism
Representative legislatures derive their authority from a mandate to make decisions on matters of law in accordance with the constitution of society. As Locke puts it, the
“Legislative is that which has a right to direct how the Force of the Commonwealth shall be imploy'd for preserving the Community and the Members of it” (2003, 364). At least in part, our expectations about the kind of decision-making procedures exercised by legislative bodies in representative democracies is dependent upon the way that the people view their relationship with those representing them. However, whether one views their representatives as delegates, trustees, etc. (see Pitkin 1967), citizens have expectations not just about the type
47 of laws that will be adopted by their representatives, but also the manner by which they will make decisions about laws. The literature identifies four areas that define legitimate, constitutional legislative decision-making.
Firstly, the process to be used by legislatures to make decisions should be settled and promulgated in advance of any decision-making activities. Legislative acts and the rules that facilitated them form the basis by which the people evaluate their representatives and the overall legislative performance. “The institution of publicly known, regular procedures for collective decision making, and then writing down these procedures, is the most basic form of constitutional government” (Lutz 1988, 15). Perception plays as much of a roll in the significance of legislative performance as the legislative production itself, something that I return to later in this section. Not only does a known legislative procedure allow citizens to evaluate the legislature as a whole, it also allows for the evaluation of individual representatives and the fervor, or lack thereof, with which they advance the particular interests of their constituents.
Secondly, legislative decision-making ought to be consistent. Procedural consistency contributes to transparency and forms the basis of accountability in democratic representation, and so the functionality of a working legislature is enhanced by the adherence to known and settled rules. Which isn't to say that legislative procedure is to be set in stone, unchanging and immune to innovation, but changes to legislative procedure should follow their own set of rules. Consistency of this sort contributes to the third aspect of legislative decision-making, which is the idea that legislative decision-making is an ongoing process.
Laws that run counter to the policy preferences of some are more likely to be palatable when
48 an unambiguous and transparent process is followed and there is the possibility for future alterations (Gutmann and Thompson 2004, 6-7); in other words, the rules don't establish a system by which losing is permanent.
Lastly, the process is constrained by constitutional provisions that, at least to some extent, define the overall scope of the legislative decision-making process. The design of legislative institutions serve as a form of precommitment, and this precommitment establishes many of the parameters within which legislatures function (Elster 2000, 115-46).
Given these considerations, adopting a mechanistic understanding of legislative procedural rules seems natural; however, it is best to think about these considerations as forming an outer bounds within which statesmanship, persuasion, and compromise operate to craft laws.
There is a substantial literature on the effects of institutional design on deliberative democracy and public decision-making, and constitutional framers often spend considerable time debating what institutional designs are most likely to achieve the stated, and unstated, aims of the government to be established (Murphy 2007). Although variability in legislative arrangements are limited only by the imagination of institutional designers, political science has often focused on a number of key components which seem to have the greatest effects on the legislative process. Seminal works in the field have addressed multiple important questions such as the manner in which representatives perform their legislative duties – both as representatives (Pitkin 1967) and policy-makers (Mayhew 2004), and the procedural rules that are used (Fung 2003; Rummens 2011). What theorists, in particular, point out is that the ideal aims of deliberative legislative procedures are not attainable; although deliberative procedures may bring the decision-making of a subset of the people more inline with the
49 population at large, there are a number of factors which create an inevitable mismatch (see
Rummens 2007).
Legislative Self-Definition
Congress is, like any legislative body, a mechanism for decision-making. It is a process by which a subset of the People make decisions in the interest of the common good, presumably, in place of the unwieldy prospect of the People as a whole making such decisions. “Whatever else a national legislature may be, it is a complex of rules, procedures, and specialized internal institutions, such as committees and leadership instruments”
(Schickler 2001, 3). Therefore, if a national legislature has the authority to define its rules, it can essentially define that which characterizes its nature. Even if there may be exogenous limitations to types of decisions that can be made or the area within which conflicts may be decided upon, the ability to craft, alter, and remake the mode of deciding allows for a great degree of self-determination that would undermine those limits.
As I discussed in the previous chapters, the formulation and reconstruction of legislative procedures in American was largely based on the norms of legislatives bodies in the English tradition. Whether legislative bodies were specifically granted the power to alter their procedures or not, they took it upon themselves to craft and alter their rules of procedures as they saw fit. Though the legislative procedures evolved somewhat, especially as American conceptions of representation evolved (see Hyneman and Lutz 1983), rarely were these changes coupled with constitutional revision. If the legislatures of constitutional republics fundamentally exist to make decisions, then the mode of decision-making is at least
50 as important as what they are empowered to make decisions about.
It's important to differentiate between procedural interpretation and procedural construction. The former might be better characterized by the type of judicial interpretation contemporary Americans are likely to be more familiar with, which is typified by a sort of reimagining or varied application of the rules to a particular case or set of cases.18 By procedural reconstruction I an referencing a more formal changing of the rules as written, or understood. Both are, however, unavoidable to the extent that there will inevitably be circumstances that do not fit neatly into the rules and processes formulated in advance.
Perhaps under an ideal situation, such shortcomings could be remedied without any novel interpretations by changing the rules through the predetermined process for doing so. But it's not inconceivable that the same unforeseen circumstances that render normal legislative procedures insufficient would also confound that process.
A basic tenant of republican theory is that “we may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people” (Hamilton, Madison, and Jay 2003, 237). In a constitutional republic, this derivation is a function of popular formulation, which is to say that the constitutional provisions that have secured popular consent define the institutional character of government. For the purposes of the legislative, or decision-making, institutions,
“powers” are defined not solely by the particular things that the institutions can do, but the processes by which they do them. “In effect, a political institution is defined by a set of accepted rules” (Lutz 1999, 50). As such, empowering an institution to define its own rules
18 See Riker (1986) for a detailed review and analysis of several instances of this type of procedural manipulation in the name of parliamentarian gamesmanship.
51 of procedure allows that institution to effectively define itself, which contradicts the premise that the people do the defining in a constitutional republic.
Locke argued that the legislative would be the “Supreme Power” (2003, 357), but that it “cannot assume to its self a power to Rule by extemporary Arbitrary Decrees” but must
“decide the Rights of the Subjects by promulgated standing Laws, and known Authoris'd
Judges” (358). Though explicitly prohibiting arbitrary rule19, Locke does not expound upon this idea, but presumably it means that decisions are bound by some set of rules and judges that are known in advance and also not subject to the arbitrary whim of the legislative authority. If the legislative power was able to change the “promulgated standing Laws” that define the manner of decision-making at will, then that legislative power would be making decisions arbitrarily.
PROCEDURES AS ROADBLOCKS AND WRECKING BALLS
The flexibility of legislative rules raises concerns that interested groups with a degree of political or procedural power within Congress will be able to manipulate or change the procedural rules in such as fashion as to allow them to pass legislation that would otherwise be rejected. There are two scenarios, in particular, that make such procedural manipulation concerning to observers of legislative politics: the first, is that it might allow what Madison called an “interested and overbearing majority” to trample the “rights of the minority party”
(2003, 72), the second is that such manipulation might empower a small minority to
19 Locke states that “no Body can transfer to another more power than he has in himself; and no Body has an absolute Arbitrary Power over himself, or over any other, to destroy his own Life, or take away the Life or Property of another” (2003, 357).
52 dominate a legislative matter indefinitely. One important reason why procedural rules are important is that they ideally seek to find a balance between these two cases; however, if either a legislative majority or minority have too much influence on the rules then the balance can be shifted in their favor.
Scholars (Wawro and Schickler 2006) have pointed to flexibility of legislative rules as an important consideration for the minority party to consider before obstructing majority supported legislation. Since the very procedural rules that could be used by the minority to obstruct were subject to alteration by the majority being obstructed, if an important issue was pushed too far that tool of obstruction could be eliminated. In writing his Manual of
Parliamentary Practice, Jefferson notes that rules of proceedings function as “the only weapons by which the minority can defend themselves” (1988, 357). But he also emphasizes that:
Whether these forms be in all cases the most rational or not, is really not of so great importance. It is much more material that there should be a rule to go by, than what that rule is; that there may be an uniformity of proceeding in business, not subject to the caprice of the Speaker, or captiousness of the members. It is very material that order, decency and regularity, be preserved in a dignified public body. (357)
So even though Jefferson viewed the functionality of rules to be important, specifically to aid a minority in defending itself, the existence and consistency of the rules were still more important. However, American legislative history evinces a much more fluid procedural dynamic than what Jefferson was advocating.
Reed Rules
The rules of the House of Representatives in the 1870s allowed the minority party to
53 delay legislative business for extended periods of time using a variety of tactics. Thomas
Reed, chairman of the Rules Committee, made it his mission to curtail these tactics and began reforming rules through the formal processes. His first order of business was to restrict the filibustering of election disputes, and was able to amend the necessary House rules using the normal legislative rule-making process (Remini 2007, 246). Despite some early success at promoting legislative productivity measures, Reed and the legislative majority was unable to curtail all dilatory measures.
When, in 1889, Reed was elected to the speakership he continued his efforts to improve the efficiency of the House by stacking his old committee with like-minded members and made it clear that he was willing to use whatever means were necessary to continue his reforms. Since the 1st Congress, the determination of a quorum was decided based upon the number of voting members rather than the number of members present. This allowed members to avoid being counted in a quorum call by merely staying silent; creating a “disappearing quorum” and triggering a de facto filibuster of productive legislative business. When the House moved to consider a contested election in 1890, the minority in the House remained silent during the vote; however, following the conclusion of the roll call,
Reed directed the Clerk to record the member present but remaining silent as present for the purposes of determining the quorum. As he began to call out names of silent members, the
House erupted and “bedlam ensued” (Remini 2007, 248). After a series of procedural votes and appeals, the majority held firm behind Reed and the new mode of determining quorums was solidified into procedural norms. Reed has essentially invented “the Speaker's right to regulate how quorums would be counted” (2017, 67).
54 Byrd Reform
The Senate cloture rule was adopted in 1917 in response to a small contingent of eleven Senators filibustering the Armed Ship Bill which was passed by the House and championed by President Wilson in the aftermath of the Zimmerman Note20. After substantial debate, a compromise addition to the Standing Rules of the Senate allowed the Senate to compel an end to debate upon a vote by two-thirds of Senators. This threshold continued to provide a powerful tool for the minority party in the Senate, and it was not long before majorities began to contemplate lowering the threshold from the mark established by the original compromise. In particular, civil rights legislation was largely blocked by cloture- proof filibusters, and a number of small reforms and compromises prevented more direct changes to the number of votes required to invoke cloture(Gold and Gupta 2004, 227-47).
Although there were prominent Senators that had been pushing for a three-fifths cloture threshold for years, all the necessary pieces fell into place in 1975. For the most part, the Senate minority was well aware that the majority was quite unlikely to have support necessary to implement the type of cloture reform that they hoped for. This gave the minority a substantial amount of leverage in the Senate to shape policy, and was able to consistently force legislative compromises. This changed in 1975 as a number of Senators from the liberal bloc started down multiple different avenues of forcing cloture and filibuster reform. The various manipulations of the Senate Standing Rule meant that the members of the Minority had few options of stopping all of the potential reform maneuvers at the same time21. While
20 The Armed Ship Bill would have outfitted the merchant marine fleet with armaments intended to protect them in the event the Germany attacked American shipping. This proposal was a response the the Zimmerman Note which was an intercepted communication from the German Foreign Ministry to the German Ambassador in Mexico advising him that Germany would soon implement unrestricted submarine warfare in the North Atlantic. 21 See Gold and Gupta (2004) for a detailed account of the various concurrent attempts to change the Senate
55 the ultimate outcome was still uncertain, Senator Byrd proposed a compromise to the conservative minority; which essentially was either accept a three-fifths cloture reform or roll the dice and possibly end up with majority cloture.
In both the House and the Senate the rules of legislative procedure have been used by a minority to obstruct the legislative agenda of the majority, and in both chambers the majority has manipulated or disregarded the rules – or the threat thereof – to limit minority obstruction. Despite the Constitution containing guidance on legislative quorums, Speaker
Reed was able to use his position to redefine what constituted a quorum, change the rules of the House, and eliminate what had been an important tool for minority obstruction. This move concentrated additional power into the hands of the Speaker (Schickler 2001, 41), and also had an effect on the ability of the rank-and-file members to pursue their own legislative agendas independently from leadership (Origins and Development of Congress 1976, 108).
After Senate Standing Rule XXII was amended in 1975, the rate at which cloture was invoked, compared to cloture votes, increased from the prior decades (Azari and Smith
2012). That Senate liberals has consistently sought cloture reform for over twenty years serves as both a reminder of how entrenched rules of obstruction can be with a divided majority party and how important the cloture rules were to the legislative goals thereof.
RESTRAINING LEGISLATIVE RULE-MAKING
One possible explanation why the framers failed to take much of an account of
rules by other means.
56 legislative procedures is that they believed that there already existed sufficient institutional restraints on abuses of procedural rule-making. Although Madison admits in the Federalist
Papers that “the tendency of republican governments is to an aggrandization of the legislative at the expense of the other departments” (Hamilton, Madison, and Jay 2003, 312), there are a number of constitutional mechanisms designed to empower the executive and judicial departments to frustrate legislative dominance over the federal government. The most direct of which is the presidential veto power, which features prominently in spatial modeling of legislative behavior. Despite some debate about the constitutional origins of judicial review, the framers seem to have desired that the Courts, at least the Supreme Court, would be able to protect itself from legislative encroachment even as the “least dangerous” with “neither FORCE nor WILL”(464).
In addition to the restraints originating in the coordinate departments, the procedural machinations of Congress are subject to standards of representative accountability and existing legislative rules and norms. For the framers, electoral accountability was a powerful incentive for representative to stay inline with their constituents, both in regard to their policy preferences and expectations of decorum and professionalism; although concerns about policy have typically been much more salient to voters. Institutional inertia can also play a part in upholding norms and discouraging procedural dissent. As legislative rules tend to benefit some subset of the legislative body (e.g. the majority party), there are incentives to maintain the status quo rather than change rules that may have unintended consequences.
57 The Presidential Veto
The unqualified presidential veto was a point of substantial contention during the
Federal Convention. It was, in part, the de facto veto power exercised by Kings and royal governors on laws passed by colonial assemblies that fueled distrust of a powerful executive.
This type of abuse featured prominently in the list of grievances circulated by a number of public figures advocating for independence (e.g., Paine 2008), and in the Declaration of
Independence. However, scholars have argued that the executive veto was intended to protect the president from legislative encroachment and to block patently unconstitutional legislation. It was this formulation that was presented to the public and state ratification delegates by Federalists when the Constitution was under scrutiny.
The chief concern expressed by Hamilton in Federalist 73 was that Congress would interfere with the powers and duties of the president, by using its authority to “reduce him by famine, or tempt him by largesses, to surrender at discretion his judgement to their inclinations” (Hamilton, Madison, and Jay 2003, 439). As such, the presidential veto was defended, in large part, on the grounds that presidents would need the constitutional authority to use the veto as a “shield” (441) against congressional expansion. The inclinations of
Congress throughout the 20th Century have lead to an increase in executive discretion generally (see Fisher 1997), and so much of the attention of contemporary scholarship on the veto power have focused on its ability to serve in the other capacity described by Hamilton; that “it furnishes and additional security against the enaction of improper laws” (441).
The policy implications for the presidential veto were largely minimized by
Federalists and, conversely, accentuated by Antifederalist (see Zuckert and Webb 2009, 126).
58 The debate of the time largely depended on the perceived risk of presidential abuse; with the
Federalist seeing more problems resulting from an unfetter legislative department, while
Antifederalist feared an executive that could block legislative attempts to curtail his discretion. Again in Federalist 73, Hamilton states that “it is evident that there would be greater danger of his not using his power when necessary, then of his using it too often, or too much.
There is ongoing debate as to whether the veto power was intended to be used by presidents to block legislation based solely on policy preferences. Despite this debate, contemporary presidents use their veto power almost exclusively to that end. This reality should make us question the usefulness of the presidential veto to block legislative action that might come about as a result of abnormal or undemocratic legislative procedures. If the presidential veto has largely come to be used as a means of influencing legislative outcomes, then we might only expect a president to veto such legislation if it is both a product of excessive parliamentary maneuvering and contrary to his policy preferences; which likely presents no real difference from legislation that is merely contrary to his policy preference. It seems highly unlikely a president would veto legislation that align with his policy preference even if it did use questionable procedures to get it to his desk.
The Courts
Federal Courts are typically much more susceptible to the powers of Congress, than
Congress is susceptible to the powers of the Courts. The influence that Congress has, as a matter of constitutional authority - as opposed to the actual will to exercise it, on the federal
59 Courts cannot be too strongly emphasized. Congress has substantial control over the jurisdictional and jurisprudential operations of not just the inferior courts but also the
Supreme Court (see Chapter 7). However, Congress has acquiesced to several pronouncements of the Supreme Court that have limited its ability to shape the legislative process, but these instances are limited to congressional attempts to alter constitutionally explicit procedural rules.
The Line Item Veto Act of 1996 was, for all intents and purposes, and attempt by
Congress to alter the fundamental process by which the federal government makes law.
According to the Constitution, “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, and then “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.” The Line Item Veto Act allowed the president to strike individual provisions, or groups of provisions, from legislation and at the same time sign the legislation into law.
Perhaps the most direct challenge to a process of legislative procedure is that of
Nixon v. United State.22 Walter Nixon, the Chief U.S. District Judge of the Southern District of Mississippi, was convicted of perjury and sentenced to five years in prison; however, he would retained his Article III seat – including his judicial salary - until death, resignation, or impeachment. Upon impeachment by the House, the Senate appointed a committee to each evidence in Nixon's case and present a report on its findings to the full Senate.
Based on this report, the full Senate voted to remove Nixon. He challenged his removal on the grounds that the process utilized by the Senate was incongruent with the
22 506 U.S. 224, 1993
60 impeachment process described in the Constitution. In particular, that the entire Senate was required to convene and hold a trial to determine whether he ought to be removed. Upon review, the Supreme Court held that the case was not justiciable as a political question. The
Court's decision said that “while courts possess power to review legislative action that transgresses identifiable textual limits, the word "try" does not provide such a limit on the authority committed to the Senate.” Applied to congress' power to make its own rules, which is quite explicit in the text of the Constitution, we would expect the Courts to show similar deference.
Electoral Consequences
Members of Congress concern themselves, in some cases to a large extent, with their ability to retain their elected positions (Mayhew 2004). Though these priorities may seem contrary to the public interest; the idea that legislative representatives think first to the demands and wishes of their constituents and second to their legislative agendas, might appear more desirable if contrasted with the converse; thinking of their legislative agendas first and the demands and wishes of their constituents second. This “electoral connection”, however, is not likely to be one that is particularly mindful of procedural abnormalities.
Which is to say that it seems unlikely that breaches of traditional rules of process or respectability would have much of an impact on the electoral viability of incumbents.
In large part, the level of political sophistication required to understand changes to the rules of legislative procedure serve as a bulwark against the electoral consequences of changes to the status quo in that arena. Even the widely covered change to Senate
61 confirmation cloture in 2013 (see below), went largely misunderstood, misreported, or underreported by all aspects of the political elite. Even those considered “informed voters” in normal political science terminology would be ill-equipped to ascertain the convoluted process by which rules changes occur. As a result, the evaluation of rules changes by the electorate would likely hinge not on the merit or process of the change itself, but upon the immediate effect of the change. What laws were subsequently passed, who was subsequently confirmed, how did the legislative fruits of the rules change affect them?
The constitutional authority granted to the Houses of Congress to formulate their own rules works to obfuscate rules changes in general. This is because there is no other institution, group, or individual that is required to review or question changes before they take effect. Since rules changes are often negotiated off the legislative clock (neither in committee or on the chamber floor), what the electorate generally gets to see is the end result without any of the debate. What this means is that while large swaths of voters have a limited understanding of legislative procedure in the most transparent times, even those more sophisticated voters will have trouble noticing or understanding procedural rules, and changes thereof, when they may be changed without the public actions of coordinate institutions.
On the whole, the constitutional mechanisms that we might think of as barriers to bad procedural rules changes, or changes at all for that matter, seem to provide a limited degree of restraint. The most important reason for this impotence is the explicit constitutionalization of the power at the Founding. The second is that the powers of government often have a
62 substantial interest in the gains to be made from acquiescence.
COURT NOMINATIONS AND A CONTEMPORARY FAILURE
The de facto rules change of 2013 has become a rather infamous example of shrewd legislative maneuvering. During the 113th Congress, Senate Democrats became frustrated with the slow pace at which some nominations to the Federal Courts and the Executive
Branch were progressing through the Senate's confirmation process. Senator Harry Reid,
Majority Leader, pointed out the delay in confirmation of Secretary of Defense Chuck Hagel, at a time when “our country was at war”23, and the outright filibuster of nominations to the
D.C. Circuit Court of Appeals. Republicans countered that complaints about confirmation delay were largely overblown, likely a move to shift the conversation away from the increasingly unpopular Affordable Care Act, and to ensure that the D.C. Circuit would be staffed with a majority of Democratic appointees that would presumably deny any legal or constitutional challenges to the law.24
What has been for decades referred to as the “nuclear” or “constitutional” option was now to be employed in the Senate chamber. Both terms are somewhat of a misnomer in that the procedural maneuver neither completely destroyed the cloture threshold nor found it's functional origins in the text of the Constitution. At it's core, it takes advantage of a procedural rule that requires a simple majority threshold to functionally overturn a rule that would otherwise require a super-majoritarian threshold. The details of the particular process
23 Quote from the Senate Floor on November 21, 2013 – see page S8414 of 113th Congressional Record. 24 The D.C. Circuit, having jurisdiction over Federal agencies, was likely to hear any constitutional challenges to ObamaCare.
63 by which this was achieved was not widely publicized by either party. Though Republican
Minority Leader Mitch McConnell often repeated the claim that Democrats would “break the rules to change the rules” in their attempt to lower the cloture threshold, few specifics of the process were ever provided. I find this particularly interesting given the reality of the process by which Democratic Senators were able to effectively negate long-standing rules dictating a super-majoritarian cloture threshold.
On November 21st, 2013, both parties in the Senate knew exactly what would happen in the opened hours of the proceedings of the legislative day. The chamber quickly dispensed with pending business and proceeded to the matter of “rules reform”. Senator Reid opened the issue with a speech detailing the reasons for rules reform, and was followed by Senator
McConnell making the case for the status quo. Senator Reid made a motion that the chamber reconsider the nomination of Ann Millett. In response, Senator McConnell made a series of parliamentary inquiries intended to put a number of factual points on the record25. He then moved to adjourn the chamber until the following days, which was followed by a roll call vote that rejected the motion to adjourn (Rollcall Vote No. 240 Ex.). The chamber returned to the motion to reconsider the confirmation of Millett to the federal bench, and roll call vote indicated that the motion was agreed to.
The stage was set for procedural implementation of the “nuclear” option, and Senator
Reid began by raising a point of order “that the vote on cloture under rule XXII for all nominations other than for the Supreme Court of the United States is by majority vote”26.
Senate Standing Rule XXII contained the standard procedure for moving legislation through
25 In particular, that “more than 200 judicial nominations” has been confirmed by the Senate during Obama's terms in office. 26 Quote from the Senate Floor on November 21, 2013 – see page S8417 of 113th Congressional Record.
64 the Senate, and included provisions for cloture which explicitly stated that:
Notwithstanding the provisions of rule II or rule IV27 or any other rule of the Senate, at any time a motion by sixteen Senators, to bring to a close the debate upon any measure, motion, other matter pending before the Senate, or the unfinished business, is presented to the Senate, the Presiding Officer, or clerk at the direction of the Presiding Officer, shall at once state the motion to the Senate, and one hour after the Senate meets on the following calendar day but one, he shall lay the motion before the Senate and direct that the clerk call the roll, and upon the ascertainment that a quorum is present, the Presiding Officer shall, without debate, submit to the Senate by a yea-and-nay vote the question: “is it the sense of the Senate that the debate shall be brought to a close?” And if the question shall be decided in the affirmative by three- fifths of the Senators duly chosen and sword – except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two- thirds of the Senators present and voting – then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of. (emphasis added)
In accordance with Rule XX the Presiding Officer of the chamber – in this case the President pro tempore28 - was empowered to rule on such points of order and effectively serve as the interpretor of the Senate rules. The President pro tempor, therefore, rejected this interpretation of Rule XXII, and did not sustain the point of order raised by Senator Reid.
However, such rulings by the chair of the chamber are subject to an appeal to the members of the Senate, and the appeal was decided upon a majority vote. Senator McConnell again made a series of parliamentary inquiries to add several procedural points on the record29, most importantly that it was McConnell's “understanding that prevailing on appeal... would change
Senate precedent on how nominations are considered in the Senate and effectively change the procedures or application of the Senate's rules” and that the appeal would be decided by a
27 Rule II describes the process for certifying Senators and rule IV outlines the process for commencing a daily session. 28 The head of the Senate in the absence of the Vice-President, and officially held by Democratic Senator Patrick Leahy. 29 The first two involved limitations to postcloture debate time on most confirmation processes, while the third confirmed that “a proposal to change the Senate rules would be fully debatable unless two-thirds of the Senators present and voting voted to invoke cloture”.
65 majority of Senators voting30. Following Senator McConnell's parliamentary inquiries, the appeal of the decision of the Chair was put to a vote and the roll was called.
The decision of the Chair was not upheld, and under the new precedent “the threshold for cloture on nominations, not including those to the Supreme Court of the United States, is now a majority”31. Senator McConnell promptly appealed the precedential ruling of the Chair and called for a vote, which failed to undo what had just been done. In short, Senator Reid, by raising a point of order he knew to be unsubstantiated by the rules, could utilize the adverse, though entirely accurate, ruling of the Chair to establish an interpretation of the rules by appeal to a simple majority of the voting Senate. Under the new precedent of interpretation of rule XXII, the Senate moved to invoke cloture on the pending motion, and a majority of the votes determined that it was the sense of the Senate that debate on Millett be brought to a close. The remainder of the legislative day was largely consumed by speeches from Democrats and Republicans pointing blame at the other side for the de facto change of rule XXII. Democrats were able to invoke cloture on Millett, along a handful of other nominees, and garner the necessary votes for confirm of the nominations soon after the
November 21st rule change.
CONCLUSION
In the midst of the Senate cloture rules change of 2013, then Senate Minority Leader
Mitch McConnell warned the Democratic Senate Majority: “If you want to play games, set yet another precedent that you will no doubt come to regret – I say to my friends on the other
30 Quote from the Senate Floor on November 21, 2013 – see page S8417-8 of 113th Congressional Record. 31 Quote from the Senate Floor on November 21, 2013 – see page S8418 of 113th Congressional Record.
66 side of the aisle, you will regret this, and you may regret it a lot sooner than you think.”32
Following the national elections of 2016, the Republican party commanded unified control of both the political branches of the federal government. Now it was President Trump and
Senate Republicans, lead by McConnell, attempting to nominate and confirm federal judges, and Senate Democrats attempting to slow and obstruct the process. Though the confirmation path for federal District and Appellate judges was now less susceptible to procedural hurdles that could be mustered by the minority party alone, presidential nominations to the Supreme
Court were unaffected by the efforts of Senate Democrats in 2013. However, according to
Shepsle, “rule breaking provides a short-term fix to a procedural dilemma but may have the longer-term consequences of more rule breaking, a diminished legitimacy accorded previous ways of conducting business, and a great deal of self-imposed uncertainty over exactly what game is being played” (2017, 54).
The warnings issued by Republicans were validated just a few years later with the nomination of Neil Gorsuch by President Trump to become an Associate Justice on the
Supreme Court. Using the same procedural loophole, Republicans changed the Senate cloture rule without going through the standard rule-making process. This time, it was the
Republicans who were able to force their nominations onto the Courts. Still there are almost no calls for broader procedural reforms in Congress, and it seems very unlikely that Senate cloture on many presidential nominees will ever go back to any sort of consensus building any time soon.
32 Quote from the Senate Floor on November 21, 2013 – see page S8416 of 113th Congressional Record.
67 Chapter 4:
Article II: Reprieves and Pardons for Offences Against the United States
On December 18th, 2015, Obama granted clemency to a number of drug related offenders as part of the political debate relating to the severity of federal drug crime sentencing and the broader debate on the negative consequences of the war on drugs. This executive action followed similar grants issued during both the Spring and Summer of 2015, and stands in contrast to Obama's overall record of granting a low number of clemency requests. As Crouch (2009) has recently highlighted, the presidential pardon power has steadily declined in use since the turn of the 20th Century, and the past several administrations have all granted controversial clemency requests. These pardons and commutations have been particularly controversial because many have the taint of presidential self-interest and were strategically granted at a time when the president could completely avoid the traditional means of accountability. Some scholars have gone as far as to declare that “presidential pardoning has fallen on hard times” and blamed the timidity of politicians, increased institutionalization, and the “back-door route” as contributing factors (Love 2010, 1169).
Political theorists who have studied American clemency in the past have not acknowledged the importance of the development of American clemency as a constitutional power as opposed to an executive prerogative; a distinction I highlight more completely in the following chapter. The main argument of Crouch's The Presidential Pardon Power
(2009), one of the most recent works on the topic, is “that the clemency power is being abused by these modern presidents, who have used it to protect themselves or their
68 subordinates or to reward supporters” (4). This abuse is predicated on the premise that “a president who uses the clemency power to pursue his own personal interest is acting contrary to what the framers of the Constitution had in mind”; however, Crouch later refers to the pardon power as a “virtually unlimited prerogative”. American constitutionalism eschews the idea of prerogative, and, I argue, it was the constitutionalization of traditional prerogative to power that lead to the type of abuses to which Crouch and other scholars condemn.
The developmental narratives of clemency in America almost invariably follow the similar path laid down by Humbert (1941) in his seminal work on the pardon power. The path is characterized by a review of; clemency in the ancient world33, the emergence of feudal clemency in the wake of the fall of the Roman Empire, the consolidation and subsequent limitation of the royal prerogative of mercy as exercised by the British Crown, spread of royal clemency to the American colonies, and finally the inclusion of the presidential pardon power in the Constitution at the Federal Convention of 178734. Though some minor variation exists; for example, Ruckman (1997) supplies a short summary of the pardon power in state constitutions (252), and Duker (1977) drew upon a number of sources generated during the ratification debates (502-6). What is omitted from consideration is a sufficient analysis of the pardoning mechanisms in the post-revolutionary and post-Federal state constitutions, as well as limited, if any, review of the ratification debates that followed the Federal Convention.
In this chapter I have two goals, to make an argument relating to a developmental trend in early American constitution making and to establish the parameters for the
33 See Moore (1989) for an additional review of ancient clemency. 34 This inevitably includes references to the Federalist Papers; particularly, Hamilton's No. 74.
69 subsequent arguments in Chapter 5. Here, I argue that codifying the pardon power into constitutions became the default solution to the problems of the pardon prerogative as it existed in the English tradition; specifically, that the royal prerogative of clemency was often used as a tool for advancing the self-interest of the King, or his magistrates, and not as a means for benefiting the general welfare or the public good. As such, Americans set about limiting executive clemency, among other government powers, in their early post- revolutionary state constitutions, in the federal Constitution, and in state constitutions after the ratification debates of 1788-9. What developed was a fully constitutional pardon power, as opposed to a prerogative, that American constitutional designers believed would serve the public good.
CLEMENCY IN ENGLAND AND THE BRITISH NORTH AMERICAN COLONIES
Though the Greeks and Romans employed clemency for a variety of reasons and through a variety of methods, the development of clemency in England served as the foundation for the American pardoning power (Kobil 1991, 583-5). Clemency was a part of kingly right at least as early as the Saxon kings of the 6th Century, and maintained a place in the laws of subsequent kings up to, and following, the Conquest of 1066 (Humbert 1941, 9).
In fact, by the 15th Century, “The King's prerogative of pardon was a central element of royal authority, and the exercise of mercy a fundamental quality of kingship” (Powell 1989, 83).
Kings understood the utility to be had from such a power and fought to maintain it throughout English history; at the founding of the British colonies in North America, the
70 King transplanted this power to royal governors while other colonies appropriated the pardoning power into their own governmental designs.
The Royal Prerogative of the King
English kings prized the pardon power as a tool to reward friendly nobles (Moore
1993, 282), fill the ranks of their armies and navies (Powell 1989, 84), protect their bureaucratic officials (Duker 1977, 487-8), resolve uncertainty following revolts against the
Crown (Powell 1989, 133), to “endear the sovereign to his subjects, and contribute more than any thing to root in their hearts that filial affection, and personal loyalty, which are the sure establishment of a prince” (Blackstone 1791, 398), and serve as the means for a more nuanced execution of the laws of the state (Kobil 1991, 579-83). The royal prerogative of mercy performed functions that modern constitutional democracies would likely embrace as well as functions that would likely be rejected. However, it could be argued that each of the aforementioned exercises of clemency served a functional purpose within the constructs of the state, and, when employed benevolently, could come close to generating the type of
“filial affection” that Blackstone wrote about.
However, the pardon power was not an exclusive right of Kings during Europe's feudal period. Most barons exercised some variety of prerogative clemency during this period and the church also commanded some degree of discretion regarding the crude criminal justice systems of the age (Humbert 1941, 9-10). However, when kings began to consolidate their influence over regional vassals, the power to grant pardons and reprieves was seen as an important part of kingly power in exclusivity. Consolidated monarchical
71 power required the cooperation of a large contingent of nobles, and, as mentioned above, clemency was a means of both rewarding and punishing these nobles. Parliamentary action during the 1500s, in particular, helped secure the King's exclusive right to the pardon power.
For some time, this prerogative of English kings was virtually exclusive, until
Parliament “observed that the King often exercised the pardoning power at his caprice”, and passed acts to attempt to reign in the perceived abuses (Humbert 1941, 10). The occasional pardon disagreements between Parliament and the Crown came to a head when King Charles
II pardoned Lord High Treasurer, Thomas Osborne, prior to the impeachment proceedings of
Parliament in 1679. Osborne, at the direction of the King, had entered peace negotiations with France shortly after Parliament had passed various appropriations acts to fund a war with that country. When Parliament got word it brought Osborne to answer for his actions, to which the King himself testified that Osborne was, in fact, acting upon his orders and were merely in compliance with his duties as Lord High Treasurer and not subject to impeachment35. In addition, Charles II informed Parliament that Osborne had received a full pardon for any perceived offenses. According to Duker, this incident was “the greatest constitutional crisis involving the executive power to pardon” and the beginning of the end of the unfettered pardon prerogative for the English legal tradition (1977, 487).
These events prompted Parliament to question the unlimited pardon authority of the
King and resulted in a number of reforms and regulations applied to the prerogative during the following two decades. These acts “prohibited royal clemency in cases in which persons were convicted of causing others to be imprisoned outside England... deprived the Crown of
35 It is important to note that impeachment during this period of English history did not only entail a loss of position, but might also carry, what we might consider, various criminal penalties such as fines or imprisonment.
72 its former power to suspend the operation of a given law or disregard its execution... remov[ed] pardon as a bar to impeachment”, and gave itself the power to approve legislative pardons (Kobil 1991, 587-8). These acts were intended, primarily, to address the King's use of the pardon prerogative to subvert justice or defy legislative will; Parliament did almost nothing to affect the royal prerogative of mercy in its other applications.
Kings still used clemency, with nearly complete autonomy, for many of the functions which had always been important components of the prerogative. Loyal, important aristocrats could still rely upon royal clemency, and, for the right price, the King could be persuaded to bestow his mercy on even the less important nobles. Similarly, Kings still offered clemency to fill their armies and navies and “provide cheap labor for the American colonies” by granting conditional pardons to felons if they would travel to North America to work on plantations (Kobil 1991, 588).
Pardons and Reprieves in the North American Colonies
It was this form of executive clemency that dominated the colonial experiences through the various colonial charters governing many of the North American colonies.
Colonial charters served as the source of authority to governments formed in the colonies they established, or reestablished, and sometimes specifically included a reference to the power to pardon amongst a variety of powers one might expect to be part of a functioning government authority. William Penn, as proprietary grantee of the Province of Pennsylvania, was granted in the 1681 Charter for the Province of Pennsylvania the power to;
...remitt, release, pardon, and abolish whether before Judgement or after all Crimes and Offences whatsoever comitted within the said Countrey against the said Lawes,
73 Treason and wilful and malitious Murder onely excepted, and in those Cases to grant Reprieves, until Our pleasure may bee known therein. (Thorpe 1909, 3038).
Though not every charter included specific grants of the pardon power, still other colonies included various forms of the pardon power in protoconstitutions formulated by subsequent generations.
In particular, colonial charters tended to include nearly identical language, immediately after identifying the entity granting the charter (e.g. the King) and the entity upon which the charter is being bestowed, which granted the grantee the requisite powers to administer the colony. The phrase “to remit, release, pardon and abolish (whether before judgement or after) all crimes and offences whatsoever, against the said laws” are repeated in numerous charters and speak to the ubiquity of the pardon power in early American law and political culture (Thorpe 1909, 2746). Still the King retained his prerogative power by limiting the use of the pardon by royal governors and colonial governments by retaining exclusivity regarding the power to pardon “treason and wilfull murder”, in which cases those with the authority to grant pardons could only grant reprieves until “our [the King's] pleasure may be further known” (1866). Otherwise, the power to pardon was open ended, and could be exercised at the discretion of the governing authority.
During the early colonial period, most of the colonies were operated under proprietary charters, and under these charters the power to pardon was sometimes, though not often, vested in a committee or assembly articulated by the charter or some other group established by the proprietor(s). The pardon power in New Jersey could only “be made use of but by the consent of eighteen of the proprietors or their proxies” (Thorpe 1909, 2578), with the exception of capital offenses requiring all 24 proprietors. The Governor of New Jersey could
74 reprieve persons after conviction with the assent of the four proprietors who served as judges of the Court of Appeals, but had no independent clemency power. Though even some royal charters followed this example. The Connecticut charter of 1662 granted the power to pardon to the General Assembly in conjunction with the Governor and his executive staff; which was mirrored by charters issued to Rhode Island and Providence Plantation (Jensen 1922, 5).
The switch to royal charters issued after the restoration of James II often granted the sole pardoning power to royal governors appointed by, and under the direct control of, the
King. The power of these royal governors was generally broad, and included a number of powers that the colonists, especially during the years immediately preceding the Revolution, felt infringed on their rights as Englishmen (Jefferson 1984, 105-122). Despite the fact that colonies could establish legislative assemblies that generally had broad authority to pass laws, those laws could be altered or set aside at the discretion of the governor. This served as a rather heavy-handed royal presence and did not endear many royal governors to the colonists, particularly in the late colonial period. However, the King's retention of the power to pardon treason and murder facilitated the type of pardon power to which Blackstone referenced when he wrote of the royal prerogative of mercy and it's ability to “endear the sovereign to his subjects” (1791, 398).
What is of particular importance in the charters of this period and in the colonial context, is that the power to pardon, even if limited in some exceptions, was generally considered to be part of executive authority; “It seems quite clear from an examination of the colonial charters that the crown delegated the pardoning power in the colonies, that it was lodged in the hand of the executive authority” (Jensen 1922, 8). The role of the governor in
75 the administration of justice was also an important component of charter grants. In particular, the Charter of Maryland explicitly articulates the pardon power as part of those “Things belonging to the Completion of Justice” (Thorpe 1909, 1680).
ALTERING THE COLONIAL PREROGATIVE IN POST-REVOLUTIONARY STATE
CONSTITUTIONS
The English crown became the focal point for grievances among the American colonies leading up to the Declaration of Independence; much of which speaks to the abuses and oversights of King George II and the resulting need to “dissolve the political bands which have connected” the colonist to the British empire. The multitude of injuries prompted many of the patriot revolutionaries to write “constitutions that enfeebled governors and situated virtually all governmental power in the hand of enlarged legislatures” (Kruman
1997, 4). Therefore, most of the constitutional conventions of the 11 colonies that drafted new constitutions prior to the federal Constitution of 178736 seemed to acknowledge the executive nature of the pardon power but vested it jointly in the executive and legislative bodies.
The utility of the pardon power does not seem to be a point of contention during this period of American constitutional development; but there were some concerns whether the utility outweighed the potential for abuse. Jefferson, in particular, struggled with whether the pardon power ought to be included in Virginia's constitution, and, after some vacillation on
36 Connecticut and Rhode Island both operated under their royal charters, with some modifications, until well into the 19th Century.
76 the topic, ultimately removed all references to the pardon power from the draft constitution he proposed for the state (Bailey 2007, 42-4). That Jefferson would be torn on the matter is understandable given that he viewed John Locke and Algernon Sidney as the best sources on the “general principles of liberty and the rights of man”, and that these two influential figures disagreed on the part which clemency ought to play in government (Jefferson 1984, 479).
While Locke explicitly spoke of the value of pardoning as an executive prerogative (2003,
375), Sidney viewed Parliament as a more legitimate grantor of clemency (1996, 451).
Ultimately, every post-revolutionary state constitution retained the pardon power in some form. The primary difference between these constitutions is the manner in which they divided the power and responsibility of its execution. In several states, the governor37 could only exercise the pardoning power with the “advice” of an executive council established by the constitution. In others, the governor could not issue pardons in cases of impeachment, treason, or murder, but could grant reprieves until the legislative body of the state could meet and act upon the case. Still other states provided for statutory limitations by allowing the pardon power of the governor to be limited by law. The variety of combinations is rather impressive. This early stage of constitutional experimentation produced various mechanisms to address the pardon power, and provided a substantial source of varied experiences and structures for the delegates to the Federal Convention a decade later.
This diversity can primarily be categorized along three questions; 1) with which constitutional authority should the pardon power be vested, 2) which cases should be subject to pardoning, and 3) when can the pardon power be employed? Each of the states drafted
37 New Hampshire and Pennsylvania gave their chief executives the title of “President”.
77 slightly different answers into their constitutions, but there are some commonalities. Most importantly, is that a majority of states38 required their legislative bodies to assent to some, or all, pardons or allowed the legislature to restrict the governor's pardon power by statute. Post- revolutionary state constitutional drafters made it clear that clemency was not to be a power solely exercised at the discretion of the executive. In those state constitutions that granted the governor the power to pardon, even in conjunction with an executive council, the power to pardon cases of impeachment were almost universally prohibited and in many states murder was also excluded. Finally, most states refused to stipulate that a pardon must wait until after conviction, but tended to empower the Governor to reprieve the convicted until a body with the power to pardon could be assembled.
With which constitutional power should the pardon power be vested?
It is important to note that the revolutionary state constitutions all granted their governors a role in the pardoning power. In rare cases this role was quite limited, but in most cases the Governor had a position of leadership when deciding which persons would be granted a pardon. This typically manifested in language which granted the power to the governor, but with the advice of a council or the legislature of the state. For example, New
Hampshire – one of the first state constitutions – stated that “the power of pardoning offences... shall be in the president by and with the advice of the council” (Thorpe 1909,
2464). In all of the state constitutions drafted during this period the executive pardon power was limited, and some of these limitations regarded the scope of the executive to unilaterally
38 A majority of states writing new constitutions (six): Delaware, Georgia, Maryland, New York, North Carolina, Pennsylvania, South Carolina, and Virginia (Thorpe 1909).
78 grant pardons. The Governor of New York was not empowered to pardon for treason and murder, but could begin the process by granting a reprieve until the Assembly could gather to make a definitive decision regarding clemency. In these states the governor was not able to act alone, but assumed a leadership role in that they began the clemency process by granting reprieves and placing the issue on the legislative agenda (2633).
Though several state constitutions chose a decidedly mixed approach, by vesting the pardon power in both the executive and legislative branches of government, a few states granted the pardon power to the governor alone. Maryland, for example, empowered its governor to "grant reprieves, or pardons for any crime, except in such cases where the law shall otherwise direct” without the concurrence of the Council39 or any other intervening constitutional authority (Thorpe 1909, 1696). Though the General Assembly was empowered to limit the scope of the pardon power by statute, individual pardon decisions were made by the governor. This is perhaps the most comprehensive grant of pardon authority to a state
39 In Maryland, the Council consisted of five Senators, elected by and from within the Assembly, to serve as advisors to the Governor; the Governor required the Council's consent to “embody the militia” (Thorpe 1909, 1696).
79 governor during this constitutional period with the exception of South Carolina, which also granted sole pardon authority to the president/governor.
South Carolina's constitutional history serves as an interesting case regarding executive plenary pardon power prior to the ratification of the Federal Constitution. Firstly, the authorship of the colonial document in place prior to the revolution is widely credited to
Lord Ashley Earl of Shaftesbury, one of the proprietors of the Carolina colony, and John
Locke (Hsueh 2002, Laslett 2003, Armitage 2004). Secondly, the 1776 and 1778
Constitutions provide very broad executive power to the governor. Thirdly, there is no specific mention of the pardon power until the South Carolina Constitution of 1790; two years after the ratification of the Federal Constitution. The Fundamental Constitution of
Carolina, which regulated the governments of both North and South Carolina from 1669 to the Revolution, vested the pardon power in the “palatine's court”40 (Thorpe 1909, 2776).
The State of South Carolina's initial Constitution, promulgate a few months before the
Declaration of Independence, was drafted by its existing legislature and made no explicit mention of the pardon power; however, it did stipulate that the “executive authority be vested in the president and commander-in-chief” (Thorpe 1909, 3247). Though this verbiage is generally considered legally ambiguous, similar language in the Federal Constitution serves as an example, there is evidence that the pardon power was included in this “executive authority” bestowed on the office of the President of the South Carolina. During the first session of the General Assembly, the delegates passed a resolution that expressed a desire on multiple occasions that “His Excellency” the President of South Carolina “issue a
40 The palatine's court consisted of “the palatine and the other seven proprietors” and served as the executive council (Thorpe 1909, 2775-6). A palatine held delegated sovereign authority from the English King and was the oldest among the eight proprietors of the colony.
80 Declaration of Pardon” for several “Crown Officers” so that they may, upon request, be sent to “Europe or the West-Indies” (Salley 1906, 71-2). We can presume that if the General
Assembly, essentially the same provincial congress that adopted the temporary Constitution
(Kruman 1997, 16), had the pardon power at its disposal, then it would not have have asked the President to issue a pardon declaration; it would have done so itself.
Alternatively, a few state constitutions required the governor to consult with an executive council. Massachusetts granted the Governor “the power of pardoning offences... by and with the advice of council” (Thorpe 1909, 1901-2), and, using nearly identical language, New Hampshire41 granted its President “the power of pardoning offences... by and with the advice of council” (2464). In both of these state constitutions the council members were selected by the legislative power within the state; these councils were not merely executive appointees that could rubber-stamp an executive decision. This model of including somewhat indirect legislative involvement on the executive exercise of the pardon power was also used in Pennsylvania and Virgina. No post-revolutionary state constitution vested the pardon power solely in the legislative authority, with the exception of Connecticut and Rhode
Island; however, those two states did not draft new constitutions but revalidated their existing colonial charters with the exception of references to the British Crown (Humbert 1941, 15).
Though many of these early constitutions included the legislature in decisions to pardon in some cases, or required a council selected from among its membership to advise the executive on pardons, the pardon power was still, in large part, an executive power to be vested in an executive authority.
41 Constitution of New Hampshire (1784)
81 Which cases should be subject to pardoning?
The type of plenary pardon power exemplified in the Federal Constitution, and many of the colonial charters, is not to be found in the state constitutions drafted during this period of constitutional experimentation. Though the pardon power was generally granted as an executive power, with some excepts already mentioned, most states included explicit limitations to that power. Most of these restrictions can be traced to the British Parliamentary reforms which occurred following the Osborne affair. Impeachment, murder, and treason were specifically limited in several states, and still others provided for statutory limitations.
Ultimately, the pardon power became a much weaker form of discretionary power in a majority of states; regardless of which constitutional authority was permitted to wield it.
Impeachment was the most common, specifically mentioned exception to the pardon power in the post-revolutionary state constitutions. Even in those states where the legislature had substantial oversight over the executive use of the pardon power, many state governors and presidents were prohibited from granting pardons to those under impeachment by the legislature. Delegates to the provisional assemblies that drafted most of the post- revolutionary state constitutions, especially the attorneys among them, would have been familiar with the Act of Settlement of 1701 which limited the British King's ability to grant pardons in cases of impeachment. The Massachusetts governor, for example, required the assent from a council selected by, and from among, the legislature, but was still expressly granted the pardoning power “except such as persons may be convicted of before the senate by an impeachment of the house” (Thorpe 1909, 1901).
Murder and treason were less common exceptions to the pardon power, though there
82 were two states that paid special constitutional attention to these particularly heinous acts. In those instances when state constitutions made mention of these pardon exceptions, the state constitutional drafters drew the legislature into the clemency process. The 1777 Constitution of New York42 allowed the governor the authority only to “suspend the execution of the sentence” resulting from a conviction for murder and treason “until it shall be reported to the legislature at their subsequent meeting” (Thorpe 1909, 2633). Other than impeachment these were the only other constitutionally specific exceptions to the pardon power.
Perhaps the strongest constitutional limitation to the pardon power was the inclusion of statutory limits. As mentioned above, the Governor of Maryland had sole power to grant pardons and reprieves, however the Maryland Constitution of 1776 also provided for exceptions “in such cases where the law shall otherwise direct” (Thorpe 1909, 1696). The
Maryland legislature could have used this constitutional authority to all but eliminate the
Governor's pardon power via ordinary law. This provision put the legislature in control of the scope of the executive's pardon power, and grants credence to the contention of historians that “the framers of revolutionary state constitutions primarily sought to render the executive impotent and to augment the powers of the legislature” (Kruman 1997, 35).
When can the pardon power be employed?
Only the Massachusetts (Thorpe 1909, 1901) and New Jersey (2596) constitutions mandated that a person must have already been convicted of a crime for them to be eligible for a pardon from the sentence of the crime. The question of timing was otherwise uniformly
42 Pennsylvania had an almost identical process of executive reprieve followed by a legislative decision (Thorpe 1909, 3088-9).
83 decided by state constitutional drafters, in that no such qualification was stipulated. It is possible that those states that provided for exceptions by law could pass subsequent legislation to limit the governor's pardon power as to apply to post-conviction recipients only. However, constitutional drafters outside of these states either didn't question the distinction between pre- and post-conviction clemency or decided that the distinction did not necessitate a constitutional limitation, could be addressed – if necessary – by statutory limitation, or that other constitutional provisions sufficiently checked potential abuses of this type.
Is it also worth mentioning the prevalence of reprieves as part of the broad conception of the pardon power in the states at this time. States that saw fit to disallow the sole executive exercise of the pardon power, did generally allow their governors to reprieve convicted persons. This further highlights the leadership role that executives had, even in states where the overall role of the executive was quite small. Though a reprieve is inherently post- conviction, it did provide the executive with the means of taking immediate action – even if in the post-conviction sense – in instances when he felt clemency was in order. Despite the fact that these actions were subsequently reviewed by a legislature that made the final determination, the reprieve provided the executive with the means of influencing clemency on matters which the state constitutions otherwise excluded from his exclusive domain.
Perhaps the most important development is that American state constitutions established a different notion of executive clemency than what was the norm for the colonists. Executive clemency was a power that could easily be abused and pardons could
84 not be easily checked or rectified after the fact. Despite these concerns, early state conventions determined that the pardon power was important to a functional government, and found a variety of means to allow for clemency. However, clemency had clearly become a tool for the public good; the time when a corrupt king, governor, or other official could use the pardon to their own benefit had passed. The parliamentary reforms, which never quite seemed to manifest in the powers of the royal governors, far removed from Parliament, were implemented in the constitutions drafted by the early states. The idea that executive prerogative was something to be constrained within constitutional provisions grew as executive power became an important characteristic of American constitutionalism.
When the delegates to the Federal Convention of 1787 assembled to discuss the deficiencies of the Articles of Confederation, and ultimately forge a new constitution, this limited, guarded understanding is what came with them from their involvement in state governance. The diversity with which post-revolutionary state constitutions arranged the pardon power (Table 4.1), and the interceding years of experience gave convention delegates a much better understanding of constitutional government than they would have had if not for the varied, post-revolutionary constitutions that were drafted after the Continental Congress
“squelched thoughts of reconciliation” with Britain and ordered all states to form new governments “based on popular authority” (Kruman 1997, 20).
THE PARDONING POWER IN THE FEDERAL CONSTITUTION
By the time the Federal Convention of 1787 was called to address the inadequacies of
85 the Article of Confederation43, most of the states had tried their hand at constitution making.
As mentioned above, framers of the Constitution had several state constitutions with a variety of institutional arrangements to serve as examples during the federal convention. Yet, the delegates to the Federal Convention cobbled together a decidedly different arrangement than any of the states that had drafted post-revolutionary constitutions. The resulting presidential pardon power would be exclusively executive and subject to no direct, institutional oversight.
The subsequent ratification conventions and public debate between Federalist and Anti-
Federalists further outlined the competing theoretical arguments surrounding the implementation of the pardon power.
Debates During the Federal Convention of 1787
Neither the Virginia nor the New Jersey plans proposed in the early stages of the
Convention contained specific language allowing for a presidential pardon power. The first mention of the pardon power is contained within Hamilton's lengthy submission to the debate on June 18th, which included a provision within his “sketch” of the “Executive authority of the United States” to allow for a “Governour... to have the power of pardoning all offences except Treason; which he shall not pardon without the approbation of the Senate” (Madison
1985, 138). Hamilton's pardon power was similar to the pardon power exercised by the New
York Governor under that state's Constitution of 1777, which empowered the Governor “at his discretion, to grant reprieves and pardons to persons convicted of crimes, other than treason or murder, in which he may suspend the execution of the sentence, until it shall be
43 The Article of Confederation did not include the power to pardon. However, it also did not explicitly provide for federal criminal offenses.
86 reported to the legislature at their subsequent meeting” (Thorpe 1909, 2633).44
On July 26th, nearly two months after serious debates began, the delegates approved a final list of resolutions to be sent to the Committee on Detail to “prepare & report the
Constitution” back to the entire delegation on August 6th. The eighth resolutions included the list of powers, responsibilities, and obligations associated with the Executive, and the power to pardon was not among them. In fact, the pardon power was not included in any part of the resolutions passed by the Convention as a Committee of the whole. However, Meigs reports that, on the his draft sent to the Committee on Detail; “Rutledge also interlined, at the end of the powers of the executive, 'The power of pardoning vested in the Executive: his pardon shall not however be pleadable to an impeachment.' In the report of the committee these suggestions were adopted (1900, 216)”. When the delegates came back into convention as scheduled on August 6th, Article X, Sect. 2 included the pardon power among those afforded the President; “He shall have power to grant reprieves and pardons; but his pardon shall not be pleadable in bar of an impeachment” (Madison 1985, 392). With the exception of a few changes to the wording, the pardon power was unchanged throughout the remainder of the debates.
Though virtually unchanged from its initial introduction to the convention to what was eventually submitted for ratification, there were several facets of the pardon power that were discussed. The first challenge to the pardon power, in its originally proposed form, was to include the Senate as a confirmatory body, presumably in a manner similar to appointments. The motion, proposed by Roger Sherman, failed without debate45, although a 44 The exclusion of murder from Hamilton's federal “sketch” is more likely a result of the consideration that murder would likely be a state matter subject to the pardon power of the state governor or president, and not any effort to extend unfettered presidential pardon power to murders. 45 Only the state delegation from Connecticut, Sherman's home state, voted for the motion.
87 subsequent motion to alter the wording of the exception against impeachment was accepted.
Brief in this instance, the question over legislative involvement in the pardon power would resurface at a later date in the convention. The second challenge to the initial proposal came on August 27th when Luther Martin motioned to add the stipulation that pardons may only be granted “after conviction” for the offense. Only the New Jersey Constitution of 1776 and
Massachusetts Constitution of 1780 drafted during the post-revolutionary period had included just such a provision;46 however, the motion was quickly withdrawn on the argument, posited by James Wilson, that “pardon before conviction might be necessary in order to obtain the testimony of accomplices (Madison 1985, 535). Though no further debate on the subject is recorded in Madison's notes, there are substantial debates on the topic in subsequent state constitutional conventions; especially those held during the late 18th and early 19th century (Dinan 2003).
The final draft was presented to the convention on September 12th, and contained the final verbiage for the Constitution; “he shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment” (Madison 1985, 623).
The Constitution was signed and finalized just five days later, but one of the limited topics seeing renewed debate was the presidential pardon power. On September 15th, Edmund
Randolph motioned to add another exception to the pardon power and prohibit the pardoning of treason. A few of the post-revolutionary state constitutions similarly limited their governor's ability to pardon treason without legislative involvement. The fear expressed was that “The President may himself be guilty”47 or that the “Traytors may be his own 46 Maryland, Luther Martin's home state, was not among them. 47 This seems to imply that presidential self-pardon was considered as legitimate during the Federal Convention. If the president were not able to pardon himself, then there would be no reason to be concerned about the president pardoning himself for treason specifically.
88 instruments” (646). The problem, however, seemed to be that the need for pardoning treason was apparent, but that vesting the power in a sole executive or a responsive legislature both seemed unpalatable. In the end, none of the alternatives – no pardon for treason, legislative pardon for treason, or Senate concurrence - were any more appealing than the presidential pardon of treason, and the motion failed by a wide margin.
What little debate was recorded in Madison's notes reveals that the pardon power was deemed an important part of executive power by most of the delegates, if initially forgotten.
Even those delegates who were most concerned by a strong executive were in favor of including federal clemency, though they may have advocated for a more limited pardon power or with more legislative involvement. Also, the debates of the convention show that the delegates saw two primary reasons for the pardon power, both of which have a shared history in the English tradition, to restore order following, or during, insurrections and to aid in the execution of the laws and administration of justice. The more self-interested uses of clemency enjoyed under the royal prerogative and rejected by the late colonial and post- revolutionary American lawmakers did not enter into the debates. Clemency was cemented as a constitutionalized power, and was no longer a privilege of executive office but a duty.
Debates during the Ratification by the States
Following the Federal Convention of 1787, the sparsely debated pardon power entered a new venue of discourse among the competing publications of the Federalist and the
Anti-Federalists. According to Maier, the “public debate of the Constitution began for all practical purposes on October 2, when [Eleazer] Oswald printed a broadside edition of the
89 address of the Pennsylvania Assembly's dissenting minority, then published it again the next day” (2000, 75). Debate on the Constitution became heated early as a few states attempted to become the first to ratify it, and at times resulted in rather unruly conventions that may have hurt the Federalist cause in subsequent state conventions (120-2). The pardon power and its proper place in the new federal government was certainly among the issues addressed by the essayist and convention delegates that took up the task of ratification.
Opponents of the Constitution, and even some supporters, questioned the presidential pardon power for a variety of reason, most notably the inclusion of – or lack of exception to
– treason as a pardonable offense. Yet, the objections concerning the vesting of the pardon power in the executive also questioned the propriety of whether the president should have
“sole power of pardoning” (Jensen 1976, 534), the independence of the executive and how that might affect his use of clemency (635), the president's ability to grant pardons before conviction (2000, 1362), and if the Constitution provided sufficient restraint upon the exercise of the pardon power (2015, 94). While some of these concerns were raised during the Federal Convention, the public debates in the pamphlets and newspapers and the state ratifying conventions provided opportunities for the refinement of old arguments and the introduction of new ones. Discussions of the pardon power rarely involved a single aspect of the pardon power, as the scope of the power is inseparably tied to the means of its execution, and vise versa.
Hamilton, the first proponent of the federal executive pardon power during the
Federal Convention, wrote in defense of the presidential pardon power in Federalist No. 74
(Hamilton, Madison, and Jay 2003, 445-8). In beginning this essay, Hamilton points to the
90 precedents established by the state constitutions to justify the President as commander-in- chief of the army and navy of the United States. As we have seen, the pardon power does not present the same opportunity for an easy justification. Instead, Hamilton argues for both the need of a pardoning power and its placement in the hands of the executive; even though the need for the pardoning power seems to be universally acknowledged, both within the post- revolutionary state constitutions and the debates during 1787 and 1788. As regards the former, he argues that the pardon power will serve two ends that have persisted throughout the development of clemency in America; the first is to aid in the proper administration of justice when the lack of “exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel” (446), and the second is to put down insurrection and, in particular, the necessity of pardoning treason because it “will often be connected with seditions which embrace a large portion of the community, as lately happened in
Massachusetts48” (447). Similarly, vesting the pardon power in the President allows for a more expedient exercise of clemency in times of insurrection when a “well-timed offer of pardon to the insurgents or rebels may restore tranquillity of the commonwealth” (447), and when calling upon the assent of a legislature or council “would frequently be the occasion of letting slip the golden opportunity” (448).
In contrast, critics of the president's power to pardon treason argued that the
“President of the United States has the unrestrained power of granting pardons for treason; which may be sometimes exercised to screen from punishment those whom he had secretly instigated to commit the crime, and thereby prevent a discovery of his own guilt” (Clinton
2010, 141). For some, the pardon power represented a means by which an ambitious and
48 Hamilton here refers to Shays' Rebellion
91 tyrannical president might rise to power. Jensen reports that propagandists of the day utilized an interesting form of criticism during this period; “that of predicting what might appear in future newspapers” (1998, 636). One such article published in this format, and foretelling the capitulation of the democratic forms of the new government to “his Excellency the President of the United States” who takes upon himself the title of “KING OF ALL AMERICA” (636), and prognosticates that in the midst of a future executive coup:
A few Patriots yet dared to advocate the freedom of the people, but they were thrown into prison by state warrants; the grand jurors had courage enough in some States to indict the High Officers of Government, and the petit jurors had firmness enough to convict them; but, the President pardoned his servant, his ministers of justice. (638)
The central concern of this point of opposition is that the pardon power would effectively eliminate the ability of judicial processes to curb a presidential grab for power. This objection is exacerbated because the President “has the power of granting pardons before indictment, or conviction” and “may stop inquiry and prevent detection” of treasonous plots
(1993, 1379).
In the Fall of 1787 William Symmes, Jr. wrote a letter to Capt. Peter Osgood49 in which he observed that “the execution of [the] Laws requires as much prudence as any other department, and [the] pardoning or refusing to pardon offences is a very delicate matter. Yet he has no Council, no assistance, no restraint” (Jensen 1997, 242). It was feared that the lack of a secondary body to confirm and check executive pardons would allow presidents to
“frequently pardon crimes which were advised by himself” (1378-9). This reminded many of abuses of the royal governors who presided over the colonies prior to the Revolution. Most states had addressed concerns related to a sole executive abusing the pardon power in their
49 Both men would become delegates at the Massachusetts ratifying convention.
92 post-revolutionary constitutions by either placing significant restrictions on its use, by requiring consent of an advisory council, or both. The lack of any such provision in the
Constitution concerned many observers and convention delegates alike.
Hamilton attempted to make the case that the pardon power is properly situated solely in the President because of the unitary component of executive energy (Hamilton, Madison, and Jay 2003, 422). In the case of the proper administration of justice, he defends the executives “sole fiat” in the pardoning power because a single executive would be compelled to thoughtful examination by the knowledge that “a fellow-creature” depended on his decision, but that a group of men would “derive confidence from their number” and
“encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency” (446). In a way, Hamilton advocates for a single actor because groupthink will render the pardon power mute in cases that should be serious candidates for clemency. Similarly, vesting the pardon power in the
President allows for a more expedient exercise of clemency in times of insurrection when a
“well-timed offer of pardon to the insurgents or rebels may restore tranquillity of the commonwealth” (447), and calling upon the assent of a legislature or council “would frequently be the occasion of letting slip the golden opportunity” (448). Thomas McKean, in the Pennsylvania ratifying convention, points out that the “President of the United States may be impeached before the Senate and punished for this crimes” should he attempt to abuse the pardon power (Jenson 1976, 540).
Perhaps strangely, Samuel Bryan, writing under the pseudonym Centinel, argued the opposite position but also in disapproval:
93 The President, who would be a mere pageant of state, unless he coincides with the views of the Senate, would either become the head of the aristocratic junto in that body, or its minion... And from his power of granting pardons, he might screen from punishment the most treasonable attempts on the liberties of the people, when instigated by the Senate. (Jensen 1976, 165)
Because the President would be so dependent on the Senate for the consent of appointments and treaties, it is argued that the Senate would be able to control, not only it's own special legislative powers, but also the special executive powers. The close relationship between the
President and the Senate is also highlighted by opponents to the executive pardon power because impeachment is argued to be an empty check; “if he [the President] is guilty of misconduct and impeached for it by the first branch of the Legislature he must be tried in the second” but “The impeachment can rarely come from the second branch, who are his Council and will be under his influence” (2015, 94). Opponents of vesting the pardon power in the executive ague from both side; either the president can wield the pardon power too independently and will abuse it to his own benefit, or the president is too dependent on the
Senate and will abuse it in their favor.
The robust debate on the merits of the Constitution included an extensive examination of the pardon power and its place within a free, republican, and constitutional governmental scheme. Though the debates specifically regarding the pardon power were limited within the
Federal Convention, the state conventions and the public writing on the constitutional question vastly expanded the overall theoretical exploration of the pardon power and the proper role of clemency in the federal government. Though the pardon power was believed to be a necessary and useful power, the particulars regarding how such a power should be
94 exercised lacked universal agreement.
Despite the subsequent ratification of the Constitution in 1788, it is clear that no consensus on the pardon power materializes during this period. There were strong concerns that the presidents would abuse the pardon power to further their own political goals, and that those goals might undermine republican government and antidemocratic institutions; “they will use the power, when they have acquired it, to the purposes of gratifying their own interest and ambition, and it is scarcely possible, in a very large republic, to call them to account for their misconduct, or to prevent their abuse of power” (Zuckert and Webb 2009,
178). It is also surprising how the Constitution provided for a much different pardon power than the post-revolutionary state constitutions that preceded it. Ultimately, opposition to the
Constitution's scheme of allocating the pardon power in the executive failed to spell its doom, and perhaps the most genuine summative response to opposition comes from an anonymous response to George Mason's famous Objections to the Constitution50:
The granting of pardons by the President in cases of treason, the power in the President and Senate of making treaties which are to be regarded as the supreme law of the land, with the possibility of the whole government misconstruing the powers vested in them, granting monopolies, establishing unusual and severe punishments, and finally extending their powers beyond their limits are all raised as substantial objections to the Constitution; although every one of them will lie with equal weight against most of the state governments and indeed any government at all. Must not these, or the like powers, be vested in some man or body of men? May not this power be abused? May not every person you appoint, probably, also become venal, wicked, and oppressive? I answer: Let the people see that they are the only source of power, that their officers of every kind return at fixed periods into the mass of people, that the governors cannot oppress the citizens without subjecting themselves to the like oppression, and that they are amenable to the laws of the community, and I dare answer for the consequences. But should it, contrary to expectation, turn out otherwise, have not the people the staff in their hands? If we must have no
50 George Mason, one of the delegates to the Federal Convention that refused to sign the proposed Constitution, wrote a summary of his objections to the Constitution. The draft was circulated among his colleagues, and printed during the ratification process.
95 government till we can get one that cannot be abused, there is an end of the business at once. If President, Senate, and Congress all conspire to abuse their trust and tyrannize over the people, and there is no other remedy, the good sense and spirit of Americans will bid them to do as they did under the tyranny of Great Britain, cast off the government and try another form more agreeable to their ideas of safety” (Jensen 1978, 159-60).
STATE CONSTITUTIONAL DEVELOPMENT OF THE PARDON POWER
Following the ratification of the Federal Constitution of 1787, the pardon power continued to develop in state constitutional conventions around the nation (Dinan 2003). By
1820, most of the original ratifying states had drafted new constitutions, and nearly a dozen new states drafted their first constitutions (Table 4.2). During this period, each President exercised the pardon power granted to his office by the Constitution. In particular,
Washington (Whiskey Rebellion) and Adams (Fries Rebellion) both issued pardons in response to domestic insurrections, Jefferson pardoned those convicted, or facing conviction, under the Alien and Sedition Acts passed under the Federalist regime that preceded him,
Madison pardoned the “Barataria Pirates” lead by Jean Lafitte51, and Monroe granted nearly as many pardons as all of his predecessors combined (Ruckman 1997). In parallel with some of the most powerful of the ratification era arguments against the federal pardon power, the original 13 states universally excluded impeachment and most excluded pre-conviction pardons; however, newly admitted states tended to follow the federal model rather closely.
51 Jean Lafitte operated out of the Mississippi river delta, and offered aid in the defense of New Orleans during the War of 1812.
96 With which constitutional power should the pardon power be vested?
Although the overall proportion of state constitutions that vested the pardon power solely in the executive increased after the Federal Constitution was ratified, nearly half of states still employed a mixed, or legislative, scheme for the exercise of the pardon power.
New states formed after 1788 were fairly split on the matter, while only two of the original states - North Carolina52 and Pennsylvania – followed the federal model and moved the power to pardon to the executive in their first major constitutional revision. Overall, however, governors saw their role in clemency increase in the early Republic.
Virginia, like many of the original states, imposed an executive council on their chief executive officers as a means to check their ability to act unilaterally. Under the Constitution
52 North Carolina did not draft and adopt a new state constitution until after the Civil War in 1868.
97 of 1776, Virginia's governor was granted the power of “granting reprieves or pardons”, but only with the “advice of the Council of State” (Thorpe 1909, 3817). Also like other states, the Virginia Council of State, though fulfilling a decidedly executive function, was chosen by the House of Assembly largely “from their own members” rather than “the people at large”.
Though the size of the council was decreased in the Virginia Constitution of 1830, from eight to three, the role of the council in executive decision making remained strong. Governors were required to seek the “advice of the council of state” before exercising any
“discretionary power conferred on him by the constitution and laws” (3827). Pennsylvania, unlike Virginia, abandoned the executive council as a check on the executive and vested the pardon power solely at the discretion of the state governor.
During both the Federal Convention and the state ratifying conventions, delegates suggested it might be wise to require the Senate to approve of presidential pardons. Though this potential remedy to concerns of abuse were largely rejected from both Federalists and
Anti-Federalists53, a few states were more receptive to this measure. When Louisiana joined the union and adopted a new constitution in 1812, the framers of that document granted the governor the “power to remit fines and forfeitures, and... to grant reprieves & pardons” but only with the “approbation of the Senate” (Thorpe 1909, 1385). Much of the language and form of the first Louisiana Constitution is very similar to the Federal Constitution, and so this departure from the federal model represents a significant decisions on the part of the drafters.
Which cases should be subject to pardoning?
The most striking change to state clemency was the universal exclusion of 53 Federalist opposed this measure on the grounds that it would limit the executive's ability to act quickly (Particularly Hamilton's arguments relating to a “well-timed offer of pardon” as a means of subduing insurrection) and Anti-Federalists opposed this measure on the grounds that the President and the Senate were already too interconnected.
98 impeachment from the list of pardonable offenses. Though only half of the original state constitutions provided for this exclusion before 1788, they all did so by the time they adopted new constitutions54. All states joining the union before 1820 continued the trend, and excluded impeachment without exception in their new constitutions. The Pennsylvania
Constitution of 1790 granted the governor the “power to remit fines and forfeitures, and grant reprieves and pardons, except in cases of impeachment” (Thorpe 1909, 3095), and the
Virginia Constitution of 1830 stated that its governor “shall have power to... grant reprieves and pardons, except where the prosecution shall have been carried on by the house of delegates” (3826). These two state constitutions provide examples of the typical language used to prevent pardons in cases of impeachment. As new states were admitted to the union and drafted their constitutions, provisions excluding impeachment as a pardonable offense was universal.
Several state constitutions also carved out exceptions for murder and treason. New
York's Constitution of 1821 maintained an exception for treason by allowing the governor to
“suspend the execution of the sentence” until the case could be referred to the legislature55.
Ratification debates over the scope of the pardon power frequently questioned the president's power to pardon in cases of treason, and several states seemed to have addressed these concerns by requiring their state legislatures to review treason cases that might be candidates for clemency. The Kentucky Constitution of 1792 exemplifies the common language; “in cases of treason, he [the Governor] shall have power to grant reprieves until the end of the next session of the general assembly, in whom the power of pardoning shall be vested”
54 The Massachusetts Constitution of 1780, still in use today, excluded impeachment. 55 See Strange 2014 for a more detailed analysis of the the pardon power in New York state constitutional conventions.
99 (Thorpe 1909, 1268).
The Vermont Constitution of 1793 and the Georgia Constitution of 1789 are the two lone states that precluded executive clemency for murder56. In these states cases of murder were treated the same way as treason, in that the criminal sentences could be delayed until the legislative body had an opportunity to act upon the concerns of the Governor. Both states also excluded treason cases, and so murder was listed alongside the same language which provided the exception for those cases. The Georgia Constitution stated that the governor had the power to grant pardons “except for treason and murder, in which cases he may respite the execution, and make a report thereof to the next general assembly, by whom a pardon may be granted” (Thorpe 1909, 788).
When can the pardon power be employed?
Of the post-revolutionary state constitutions adopted prior to the Federal Constitution, only two states provided any limitation to the timing of clemency; however, most of the original states added such a provision after 178857. During the debates on the Federal
Constitution, there was concern that the president would abuse his pardoning power by granting pre-conviction, pre-trial, or pre-investigation clemency to criminal co-conspirators.
South Carolina added the post-conviction caveat to its Constitution of 1790, by granting the governor the “power to grant reprieves and pardons, after conviction... in such manner, on such terms, and under such restrictions as he shall think proper” (Thorpe 1909, 3262).
While the original states adopted provisions to limit pardons to post-conviction
56 Two different state constitutions prevented clemency for murder before 1788; New York and Pennsylvania. 57 Delaware, Maryland, and Virginia are the exceptions.
100 offenses, newly admitted states were less likely to do the same. Though eleven new states joined the Union between 1788 and 1820, only three followed the trend set by the state constitutional conventions of the original states. Tennessee, Ohio, and Illinois were the only new states that limited pardons to post-conviction offenses, and each used virtually identical pardon clauses in their respective constitutions; the fifth section of the second article of the
Tennessee Constitution of 1796 states that “He [the Governor] shall have power to grant reprieve and pardons, after conviction, except in cases of impeachment” (Thorpe 1909,
3417)58. Each of these constitutions are structurally very similar in general, and the fifth section of the article outlining the executive branch all deal with the pardon power.
A new innovation following the ratification of the Federal Constitution was introduced by Maryland and North Carolina. Both states granted the Governor the authority to unilaterally exercise the pardon power, but required him to file a report with the legislature on such actions. Additionally, Maryland mandated an indeterminate period of public notice prior to exercises of executive clemency. The Maryland Constitution of 1851 declares that:
before granting a nolle prosequi, or pardon, he [the Governor] shall give notice, in one or more newspapers, of the application made for it, and of the day on or after which his decision will be given; and in every case in which he exercises this power, he shall report to either Branch of the Legislature, whenever required, the petitions, recommendations and reasons which influenced his decision. (Thorpe 1909, 1788)
Although these variations came after most states had updated their constitutions, Maryland in particular, demonstrates the continued concern prompted by executive clemency.
Many of the common concerns that surfaced during the state ratifying conventions
58 Ohio Constitution of 1802: “He shall have the power to grant reprieves and pardons, after conviction, except in cases of impeachment” (Thorpe 1909, 2904). Illinois Constitution of 1818: “He shall have power to grant reprieves and pardons after conviction, except in cases of impeachment” (Thorpe 1909, 976).
101 were subsequently addressed by delegates to state constitutional conventions drafting new state constitutions. Chief among these, was the concern that executives could use an unrestrained pardon power to conceal their own nefarious deeds or subvert justice. States moved to block governors from pardoning in cases on impeachment, a much lauded component of the Federal Constitution, as well as treason and murder in a few states.
Additionally, more states incorporated the notion that criminal proceeding must be allowed to run their course so that potential conspiracies, especially those potentially involving the executive branch, might be brought to light. The development of clemency in the state constitutions shows that, even after the introduction of a national pardon power, there were no true national consensus on how the pardon power ought to be arranged. To the contrary, the variety with which the states addressed the potential concerns surrounding executive pardon discretion demonstrate that any claims of consensus must be largely limited.
CONCLUSION
The development of the pardon power, at least in the English tradition, has gone hand-in-hand with the development of constitutionalism. A key function of a constitution is to place “limits on political power” and, in the most general sense, constitutionalism holds that “a defined process of decision making limits government” (Lutz 1988, 14-5). From the
Parliamentary reforms of the late 17th Century, through the Federal Convention of 1787 and subsequent state ratification debates, to the constitutional and institutional changes during the
19th and 20th Century, the executive exercise of clemency has trended toward the more
102 legally, and constitutionally, defined pardon power. However, many of these constitutional and legal methods of demarcating the limits to the constitutional pardon power have failed to curb the type of undesirable clemency to which constitutionalism envisioned as the limitation. Instead, the degradation of, or perhaps the elucidation of weaknesses to, the barriers against abuses of the presidential pardon power have become apparent in recent decades.
What may be less apparent about the development of clemency is that there has been a distinct shift from the type of prerogative enjoyed by monarchs prior to the expansion of constitutional governments to a constitutional power vested in an executive. Pardons, commutations, reprieves, and amnesties were once, in the strict sense of the word, illegal.
The law did not explicitly provide for the setting aside of judicial rulings or sentences, and so when Kings did just that, they were acting extralegally. The abuses of such prerogatives lead to their curtailment, but the utility which clemency provided government remained. As a result, the pardon power, a decidedly legal action in contrast to the “prerogative of mercy”, was incorporated into the constitutions of the American founding.
In large part, the story of the pardon power in American political development is about the attempt to empower the executive authority of a constitutional government to exercise a kingly prerogative within the scope of a limited, predefined constitutional scheme as a vested power. There are two main problems with this attempt; the first, is that attempting to define the scope of desirable prerogative power into a defined and constitutional executive power is inherently impossible, and the second, is that it is an equally absurd proposition to both empower broad discretionary action and limit discretionary action in the same instance.
103 Chapter 5:
Article II: The Problem of Constitutionalized Prerogative
Presidential prerogative has seen a resurgence in scholarly interest in the aftermath of the events of September 11, 2001. Unilateral actions taken to address pressing national security matters have highlighted the usefulness of the unitary, energetic president. This scholarship tends to focus on the ways in which the presidency has expanded the scope of legitimate power through appeals to traditional understandings of prerogative, whether such prerogative is imbued on the president within the text of the Constitution or not. The pardon power, however, has received much less attention in this debate despite the fact that it is one of the only traditional executive prerogatives explicitly included within the written
Constitution. The peculiar status of the pardon power makes it a valuable window for understanding the nature of prerogative and constitutionalized discretion.
Additionally, the pardon power provides a direct link between Lockean prerogative and American constitutionalism. Locke's prerogative is one solution to an inevitable problem posed by all human endeavors; that our works are imperfect and foresight limited. In the context of Lockean constitutionalism, this imperfection and lack of foresight leads to laws which fail to provide for the ends of government in all circumstances. Prerogative is a means by which the government prevails over these shortcomings, and fulfill the ends despite the means. However, the nature of prerogative puts it at odds with another key component of
Lockean constitutionalism - the rule of law. Thus Locke produces a paradox of governance with which political figures and scholars have struggled to reconcile. There is considerable
104 debate whether prerogative, more broadly, is vested in the president by the Constitution, even if the language is much less explicit.
Some scholars have argued that American constitutionalism mitigated the problems of prerogative by formally constitutionalizing it, and thus transforming extraconstitutional prerogative into intraconstitutional discretion. This type of transformation, it is thought, would curtail the abuses of institutionally unrestrained discretion and simultaneously incorporate the useful functionality of prerogative. The pardon power provides explicit evidence of just what happens when discretionary mechanisms are constitutionalized rather than left out of the written constitution as extraconstitutional prerogative. By looking at the pardon power, scholars can evaluate the ramifications of the competing theoretical claims.
In this chapter I argue that Lockean prerogative is best understood as standing outside of the constitution, and that constitutionalizing traditional prerogative actions does not solve the prerogative paradox. Instead, constitutionalized prerogative merely generates a different set of problems, and, in so doing, inhibits the People from fulfilling its proper rule as the ultimate arbiter of what constitutes legitimate government action. I use the development of the pardon power and the failings of its institutional restraints to demonstrate the problems that arise when constitutional framers attempt to provide a remedy for imperfection through broad intraconstitutional discretion.
PREROGATIVE, DISCRETION, AND CONSTITUTIONALISM
Executive prerogative exists in a rather uneasy corner of constitutional thought
105 because, at least at a cursory glance, it seems to be antithetical to the principle of the rule of law which undergirds constitutional government. What adds to this uneasiness is the support for prerogative provided by Locke, from whom much of the constitutional thought of
America's founding draws inspiration. A key argument that I make in this chapter is that
Lockean prerogative is frustrated when situated inside the confines of a written constitution.
In fact, Lockean prerogative must be outside of the the legal framework for it to be prerogative, as opposed to discretion, and that attempts to curtail the bounds of prerogative by constitutionalizing it defeats its purpose; namely, to serve as a means for dealing with unforeseen, usually exigent, circumstances which affect the public good. The tension between the rule of law and the need to sometimes act outside of the law has lead to a series of arguments in America political thought, that have missed the point and resulted in the creation of institutional powers that fail to achieve their ends.
In Locke's Second Treatise of Government he outlines his understanding of executive prerogative, and, somewhat paradoxically, argues that the state will inevitably need the extraconstitutional discretion of an executive to ensure the “publick good” (2003, 375).
Locke makes the earlier claim that the “chief end therefore, of Mens uniting into commonwealths, and putting themselves under Government, is the Preservation of their
Property”, and that the commonwealth achieves this end by providing for “an establish'd, settled, known Law”, a “known and indifferent Judge”, and the “Power... to give it due
Execution” (351); in essence, the protection of property is reliant upon predictable interactions with one's fellow man enforced by the state. Therefore, Locke's
106 extraconstitutional prerogative, is paradoxical because it is inherently unpredictable – “an
Arbitrary Power in some things” (2003, 405) - and, yet, by Locke's admission entirely necessary. Put another way; “one cannot acknowledge the legitimacy of extralegal action without weakening the conviction that legitimate action must accord with the law. Yet Locke does precisely this” (Corbett 2009, 61).
Many scholars have pointed to the inconsistency of Locke's prerogative paradox.
Scigliano, for examples, argues that Locke's description of an extralegal executive prerogative in the Second Treatise on Government is incompatible with his later maxim that
“Where-ever Law ends, Tyranny begins”, and that this is a result of Locke being “ever cautious in matters respecting his safety” (1989, 243). Though a possible explanation, it seems more likely that the seemingly contradictory elements are a result of Locke's struggle to address the underlying paradoxical nature of prerogative. Specifically that it is inadvisable, and likely futile, to attempt to curtail prerogative for the same reasons that it is inadvisable, and likely futile, to attempt to provide the legal means for all possible acts advancing the public interest in all circumstances. Locke's acknowledgement that extraconstitutional actions are necessary does not necessarily contradict his commitment to the rule of law. It does, however, highlight that because the law is limited, the rule of law will therefore be limited. For Locke the rule of law is a means to an end; specifically, the chief end of the preservation of property. To admit that a means to an end is imperfect is not to admit that the end itself is unattainable because of that imperfection.
To this point, there is scholarly debate as to whether Lockean prerogative “derives from the constitution itself” (Feldman, 2008), or whether it is entirely outside of Lockean
107 constitutionalism (e.g. Adler 2012). Neither camp seems to dispute the need for prerogative, or prerogative-type power, but they differ on the source of authority for prerogative. While the constitutionalists generally argue that “any constitution that fails to provide for such prerogative is a constitution that has abdicated its responsibility to provide the powers needed by a government prepared to meet the crises that can rationally be expected” (Pangle 1987), the extraconstitutionalist argue that no constitution can properly outline the necessary boundaries of prerogative power without either granting the executive an incredible degree of discretionary authority, curtailing the executive's ability to respond to unforeseen exigent circumstances, or, perhaps more likely, both (Langston and Lind 1991, Adler 2012).
Ultimately, I find the extraconstitutionalist argument more compelling, in large part, because constitutionalizing prerogative seems likely to be theoretically self-defeating and practically troublesome - as the last section of this chapter highlights. For the constitutionalists, the importance of placing prerogative within the constitutional scheme, even if outside of the legal scheme, is that it maintains the guise of the rule of law; i.e. executive actions may be against or without legal sanctions, but are within constitutional sanctions. In other words, whatever advances the legitimate ends should be thought of as within the scope of legitimate means. What the constitutionalists seem to be doing is merely substituting the constitution in for the ends of the constitution. There is an assumption that a constitution is only a constitution if it is capable of achieving the ends of the political society, and since prerogative is a necessary part of achieving the ends of a political society it must be part of the constitution; though “Locke held that prerogative cannot be contained or measured by the forms of a constitution” (Mattie 2005, 80).
108 Recent scholarship on President Taft (Burns 2017) has highlighted the arguments made by some constitutionalists that the Constitution and laws provide both “broad emergency powers” and a means of limiting presidential actions. Burns' account of Taft's theory also claims that “the president bears primary responsibility for determining what actions are 'proper and necessary' as a means for carrying out his duties” and that the courts have limited authority to review such presidential determinations “unless executive actions directly infringes upon individual rights” (341). However, this theory seems to ignore the extraconstitutionalists argument that says that such an understanding of presidential power merely incentivizes presidents to interpret statutes and the Constitution in a manner that is self-serving (Lobe; 1989, 1406; Mortenson 2014, 62).59
Even if we think about a constitution as an initial instance of consent to the government and its actors, the act of constituting (Ward 2005), then there is still the problem of presumptive consent. By which I mean that if executive prerogative is part of the initial constituting act, then extralegal actions of the executive would be assumed to possess the approval of the people. Yet, the validity of extralegal actions are dependent upon an assessment of their furtherance of the public good, and so each action requires individual instances of, at least tacit, consent to be considered rightful prerogative rather than “an
Arbitrary Power to do things hurtful to the people” (Locke 2003, 377). This factors heavily into the practical concerns posed by constitutionalizing prerogative and executive discretion more broadly. Though the executive possess the “Trust of Prerogative” (405), this “trust” is not to be confused with blind faith. Additionally, Locke warns of the complacency that can
59 Reeves (2011) provides some recent empirical evidence to support the statutory argument; finding that presidential disaster declarations are more likely when such declarations benefit electorally competitive states.
109 blind the people to executive action which fails to meet the standards of prerogative by good princes that are faithful to that trust (377-8).
For Mansfield;
The people will acquiesce in an action of executive prerogative when they see it has done good; if it has not done good, they will limit prerogative or exercise their right of resistance. Locke gives his executive access to the prerogative of bygone kings, with a promise of success, but also with a warning of failure (II.165). He leaves it to the executive to infer that he has no choice but to run a risk. (1989, 203)
Though sound in the Lockean sense, the logic here flounders in an intraconstitutional context. Kleinerman (2007) doubts the public's ability to serve this Lockean role without sufficient institutional support; however, executive discretion - prerogative granted within a written constitution – will undermine the people's ability to properly assess the actions of the executive and removes much of the risk associated with such action. In the absence of publicized executive disclosure of unlawful actions, something akin to the retroactive legislation or electoral judgment Jefferson sought after his own emergency actions (Lobel
1989, 1392-3), it is unclear that abuse will even be noticed.
Furthermore, attempts to constitutionalize prerogative are doomed to fail since “the power of prerogative... is limited only by the public good, and no law can similarly restrain a right of acting without or against the law for that good” (Corbett 2009, 63). Mansfield argues that the “essential characteristic of the modern constitution” is that Lockean constitutionalism provides a manner for incorporating the “extraconstitutional within the constitution” and by the “combination of reason with the necessity that resists reason” (1989, 204); however, this misunderstands Locke's purpose for discussing executive prerogative. Incorporating the extraconstitutional into the constitution is not possible because extraconstitutional
110 prerogative is the solution to the limitations of constitutionalism. Executive power – executive actions which are constitutional – is different from prerogative, and executive power does not provide the sufficient means of securing the public good. Instead, what Locke provides is a way to legitimize prerogative, not through legalism, but through the acquiescence of the people when prerogative is used for good, and “to claim their Right, and limit that Power” when used “to promote an Interest distinct from that of the publick” (Locke
2003, 377).
Locke's prerogative is a critical component of the rule of law, because without it, the law would need to be able to account for all the possible needs of society. As such, the rule of law would have little meaning as the law would be so broad and grant such a great latitude of discretion that almost any state action would be within its confines. For Locke, legitimate state action falls into one of two categories; it is either legal or prerogative. Attempting to eliminate or limit prerogative in advance will likely result in either the destruction of the rule of law (by making the law too broad) or the inability of the state to realize the ends for which it was formed.
The development of the prerogative of mercy highlights the Lockean understanding of prerogative. As Parliament gained political power in England, it sought to curtail kingly prerogative; especially when such prerogative was used to thwart what Parliament thought to be in the public's, or their own members', interests. Meanwhile, the American colonies largely experienced a less restricted prerogative under the colonial charters that regulated their governance. Colonists, therefore, were exposed to the arguments advanced by
Parliament for limiting prerogative - and executive power more broadly – without the power
111 or authority to similarly impose such limitations. When the framers constitutionalized this prerogative as the pardon power, they attempted to limit and define an outer bound for it.
This was a power that was considered necessary, but many feared that it would be readily susceptible to abuse. However, what we see is that this attempt to limit and define prerogative by constitutionalizing it, has resulted in clemency that doesn’t reflect the “public good” reasons for which the pardon power was included in the Constitution. Instead,
America has experienced an expansion of self-serving clemency that enjoys the strong, constitutionally founded defense of an explicitly enumerated presidential power rather than the observant and skeptical reception that executive prerogative would garner.
THE PARDON POWER AS INTRACONSTITUTIONAL DISCRETION
Though many of the delegates to the Federal Convention in 1787 desired a more energetic government, there was also substantial fear that empowering a central government, especially one with a prominent executive figure, would lead to the type of tyranny that they had shed just a decade earlier. This concern is what lead most of the early state constitutional conventions to include much more limited gubernatorial powers and check and frustrate executive power at almost every turn. The federal Constitution was much more willing to embrace the need for executive discretion, but many delegates were nearly as concerned about the passion-driven decision making of the people as they were concerned about the self-interested decision making of an empowered executive. Perhaps without knowing it, the convention delegates crafted a constitution that embraced the need for Lockean prerogative,
112 and attempted to address its paradoxical nature by constitutionalizing some of its manifestations.
The authority to grant pardons is one of the few executive acts of prerogative specifically mentioned by Locke (2003, 375). While much of the scholarship regarding prerogative focuses on the exigent nature of prerogative in light of our America's post 9/11 national security circumstances (see Fatovic 2004, Kleinerman 2007, Rakove 2007, ), the executive pardon is, to some extent, a different type of prerogative. Though Hamilton, and other Federalists60, argued during the ratification period that the president was uniquely situated to utilize the power to bring insurrections to a swift halt by a “well-timed offer of pardon” (2003, 447), the expediency of the pardon power was of only a minor concern and was intended to respond to those seeking an institutional check on the power. The pardon power was more often defended on the grounds that it was necessary to blunt the strict application of the law, and this justification for the pardon power has persisted with more recent assessments of the pardon power (Crouch 2015). At the most fundamental level the pardon power provided a remedy to the same type of problems solved by Lockean prerogative; in particular, that human endeavors were inherently fallible.
Early commentaries on the Constitution, most of which were penned by legal scholars and practitioners, generally pointed to the moderation of the law as the primary function of
60 James Iredell, in the North Carolina ratifying convention, argued that “It may happen that many men, upon plausible pretences, may be seduced into very dangerous measures against their country...” and that “Upon cool reflection, however, they possibly are convinced of their error, and clearly see through the treachery and villany of their leaders. In this situation, if the President possessed the power of pardoning, they probably would throw themselves on the equity of the government, and the whole body be peaceably broken up. Thus, at a critical moment, the President might, perhaps, prevent a civil war” (Elliot 1861, 112)
113 the pardon power61. This was typically the case throughout the development of clemency, and was certainly the most important aspect for Blackstone, Montesquieu, and other writers influential on the founding generation; despite the fact that Blackstone (1791, 397) and
Montesquieu (2011, 94) both considered the pardon power inconsistent with democratic or republican forms of government. Joseph Story echoed many of the arguments of the defenders of the pardon power in his Commentaries (1833), and focused his attention solely on clemency as a means to mitigate and correct for the “imperfection in human legislation”
(548). He also countered the arguments of Blackstone and Montesquieu that the pardon power was inconsistent with the republican form of government, by saying that “it may be boldly asserted” that the pardon power is “peculiarly appropriate, and safe in all free states; because the power can there be guarded by a just responsibility for its exercise” (549). Along these same lines, Rawle argued that “punishments should in all cases be strictly appropriate to the offence and certain in their execution... but the fallibility of human judgement would render an inflexible rule to this effect, too severe for human nature” (2014, 174).
The common thread is that the application of law must be mitigated by something, and that that something cannot be bound by law for the very reason that the law needed to be mitigated in the first place. However, the emphasis on a constitutionally bounded government that can only do that which the constitution explicitly grants it the power to do, left the
American constitutional framers with few practical options. In confronting the Lockean prerogative paradox, the framers situated the pardon power firmly within the boundaries of the Constitution. Though a number of problems with this arrangement were raised during the
Federal and ratifying conventions, the paradox itself was not specifically addressed and the
61 See Strange 2014 for an analysis of the pardon power as a tool for quelling domestic disturbances.
114 pardon power became a broad, intraconstitutional discretionary power of the executive. As such, the exercise and restraint of the pardon power is largely an institutional matter refereed by politics rather than the law.
Yet because discretionary grants of power are inherently open to an expansive interpretation, such authority leads to additional problems through the act of constitutional construction; a problem of particular concern to several leading thinkers of the founding era.
Jefferson feared the expansion of powers through expansive interpretations, and warned of the dangers in an often quoted letter to Wilson Cary Nicholas:
When an instrument admits two constructions, the one safe, the other dangerous, the one precise, the other indefinite, I prefer that which is safe & precise. I had rather ask an enlargement of power from the nation, where it found necessary, than to assume it by a construction which would make our power boundless. Our peculiar security is in possession of a written Constitution. Let us not make it a blank paper by construction. I say the same as to the opinion of those who consider the grant of the treaty making power as boundless. If it is, then we have no Constitution. (1984, 1140)
In part, this is a warning against attempting to fit all acts of government into the confines of the Constitution, and, therefore, claim an inherent legitimacy therefrom62. Political actors have much to gain from claiming their actions are “constitutional” because it gives them both political and legal cover from potential naysayers.
Unfortunately, the solution to the limits of legislative foresight provided in our
Constitution is the inclusion of several instances of intraconstitutional discretion, which lends itself to abuses of construction of the type Jefferson warns about. “As a polity, we have not always adhered to the Constitution. And though new circumstances have often led us to develop constitutional meaning, not every such reconstruction is constitutionally grounded.
62 This fear has driven much of the Vesting Clause debate on whether the Constitution includes a general grant of prerogative power authorizing the president to act in time-sensitive circumstances in the public interest; See Fatovic 2004, Bailey 2004, Adler 2012.
115 Constitutional meaning is not infinitely malleable” (Thomas 2008, 12). Madison, as Thomas argues, seems to agree with Jefferson that falling short of the ideal execution of the
Constitution was a more acceptable course of action than unfounded reconstruction of constitutional meaning. This is highlighted in the Pacificus-Helvidius debates between
Hamilton and Madison on President Washington's neutrality proclamation, in that the chief matter of debate was not the proclamation, but the means by which the proclamation was justified. (Frisch 2007, viii)
Presidential pardons demonstrate this problem of intraconstitutional discretion, and how incorporating mechanisms intended to address the unpredictable into a predictable constitutional structure undermines both the ability of the mechanism to address the unpredictable as well as the constitution's ability to provide for the predictable. Any constitution will inevitably lack the ability to address all possible circumstances, which leaves two possible paths for constitutional designers; 1) they can incorporate wide discretionary powers into the constitution. Or 2) they can provide for that which can be anticipated through constitutional mechanisms as well as a means of adjudicating extraconstitutional actions when the formal constitutional mechanisms are found wanting.
That the people are ultimately tasked as arbiters of prerogative acts influenced the thought of the founders (Fatovic 2004; Rakove 2007), and yet the path requiring a more vigilant citizenry was taken by drafters of the American Constitution63. However, the explicit constitutionalization of the pardon power highlights the inability to legally provide for, and restrain, a power which is designed to work counter to the law or when the law fails.
63 Which is not particularly shocking given that many of the framers placed limited trust in the power of the people to serve as checks on government power.
116 RESTRAINING THE PARDON POWER
When the framers constitutionalized the pardon prerogative, they put their faith in the
Constitution to provide sufficient counter-weight to a broad grant of intraconstitutional discretion to the executive. Throughout the contentious ratification debates, the qualms the anti-federalists had about the executive pardon were assuaged by federalist appeals to the institutional strength of the proposed Constitution. The subsequent development and utilization of the pardon power has, however, skirted the institutional restraints envisioned by the framers, and resulted in presidential uses of clemency for reasons that would likely fail to meet the Lockean criteria for prerogative; namely, that a variety of clemency acts, especially in recent decades, have little, if anything, to do with the public good (Crouch 2009).
The constitutional pardon power has been indirectly affected by a variety of federal changes since its initial formulation, which I categorize into three areas of constitutional and political limitations on the executive; 1) electoral accountability, 2) legislative action, and 3) judicial review. These three areas of constitutional and political limitations consist of a collection of powers and expectations imposed upon other political actors to ensure proper utilization of the pardon power – among other executive powers. Electoral accountability, at the most fundamental level, is the idea that voting citizens have a responsibility to reward, through the ballot box, presidents that use the pardon power in the public interest and punish president that do not; either because they used the pardon power in their self-/special-interest or because they failed to pardon in times when it was in the public interest. Legislative action, perhaps the closest example of a direct check on the presidential pardon power, is
117 exemplified by the House's power to impeach the president for bad pardons, but could also manifest through other legislative powers such as the power of the purse. Lastly, judicial review provides the courts with some power to limit the scope of the presidential pardon power, though the Court has been fairly reluctant to do so.
Electoral Accountability and Institutional Development
At the most fundamental level, the executive and legislative branches established by the Constitution are to be accountable to the people. Though the President and Senate were insulated from direct popular control, the idea of popular accountability was a part of the justification for presidential re-eligibility. Hamilton, in Federalist 72, put it this way:
With a positive duration of considerable extent, I connect the circumstance of re- eligibility. The first is necessary to give to the officer himself the inclination and the resolution to act his part well, and to the community time and leisure to observe the tendency of his measures, and thence to form an experimental estimate of their merits. The last is necessary to enable the people, when they see reason to approve of his conduct, to continue him in his station, in order to prolong the utility of his talents and virtues, and to secure to the government the advantage of permanency in a wise system of administration. (Hamilton, Jay, & Madison 2003, 435).
Presumably, a president's conduct in exercising the pardon power would factor into the people's formulation of approval, and that poor utilization of the pardon power would engender contempt among the people and result in electoral defeat.
Presidential re-eligibility for office was debated on several occasions during the
Federal Convention of 1787, but the conclusions of that body were eventually overridden by
Congress and the state legislatures when they passed and ratified the 22nd Amendment in
1947 and 1951, respectively. There is evidence that term-limited public officials act differently during their “lame duck” period than in other times of their service (Jenkins &
118 Nokken 2008, Franklin 2014), and Crouch attributes many of the controversial pardons of the past several administrations, at least in part, to the ability of Presidents to issue 11th hour pardons with little or no electoral consequences (2009). For example, on the morning of
January 20th, 2001, President Clinton, only hours before George W. Bush assumed the presidency, issued 140 pardons and 36 commutations; included among them were former members of his administration, his half-brother Roger Clinton, and infamous tax evader and fugitive Marc Rich (111-2). Similarly, President Obama controversially commuted the sentences of an additional FALN member and Chelsea Manning, and pardoned General
James Cartwright64.
The overall rate of presidential clemency has declined since the 22nd Amendment, and recent presidential administrations have demonstrated a reluctance to issue pardons early in their term of office65. In fact, President Clinton granted more acts of clemency in his last month of service (218) than he did in his first 95 months in office (178), and issued only 53 pardons during his entire first term (roughly 13% of his total). Similarly, George W. Bush granted 19 pardons during his first term and 170 during his second term66. Presidents Clinton and W. Bush both issued controversial pardons that stirred public discontent, but neither could suffer the electoral consequences of their actions. Despite the trend of increasing clemency throughout the 19th and early 20th Century, there has been a considerable decline in clemency since Reagan (Crouch 2009, 3). Coupled with the vast increase in clemency in
64 Manning was convicted of leaking thousands of classified documents to WikiLeaks while serving in the military as an intelligence analyst. Cartwright plead guilty to divulging classified information to journalists about a virus used by the U.S. Government to target uranium centrifuges used by Iran to refine nuclear materials. 65 Trump has somewhat bucked this trend with a number of controversial first-term pardons; in particular, the pardons of Bush commutation recipient Lewis “Scooter” Libby and the former Arizona Sheriff Joe Arpaio. 66 http://www.justice.gov/pardon/clemency-statistics
119 second terms, compared to first terms, this trend would be particularly alarming for founding era thinkers. Obama has continued this skewed clemency trend by issuing only 23 grants of clemency during his first term, but 1,904 during his second term; the most extreme term differential of any president in history. This is in stark contrast to the early 20th Century, when “pardons were granted frequently and generously at regular intervals over the course of each president's term, with no slow starts and no bunching of grants at the end” (Love 2010,
1186).
The institutionalization of the presidential pardon power has also lead to a disconnect between acts of clemency and popular oversight and electoral consequences. The Secretary of State and the Attorney General shared an advisory role in the pardon power for most of the
19th century, until the entirety of the responsibility was finally transferred to the Department of Justice under the Attorney General by Executive Order in 1893 (Crouch 2009, 21). In
1865 the Office of Pardon Clerk was funded by Congress and in 1891 was renamed the
Office of the Pardon Attorney. However, “the administrative system formalized after the
Department of Justice was established in 1870 made the unruly power part of the more general transformation of the justice system in an administrative state” (Love 2010, 1179).
Despite the high rate of pardons, relative to applications, the number of federal criminal convictions, and the overall population, the institutionalized clemency process was
“extremely efficient” and helped facilitate the presidential pardon power (1182). However, the role of the Pardon Attorney, from a constitutional perspective, is rather unclear.
What is clear, is that “the pardon attorney's role is purely advisory” (Crouch 2009,
21), and the President is free to ignore the recommendations sent to the oval office. The
120 process described by Humbert suggested that though the “President may disapprove the recommendation of the Attorney General”, that such a disapproval is the “exception rather than the rule” (1941, 91). Over time, it is clear that the exception has become far less exceptional. The presumptive role of the Attorney General and Pardon Attorney in exercising the presidential pardon power is to ensure that applications for clemency are properly vetted, as the president does not have the time to investigate every possible application – of which there are thousands every year. But do the specific rules and special offices dedicated to the pardon process perform another role; does the bureaucracy provide a sense of plausible deniability and a presumption of legitimacy to presidential pardons?
Love (2010), in particular, has argued that the “war on crime” has created the circumstances for the decline in the use of executive clemency. Political figures scurried to appear “tough on crime” and avoid adverse labels to the contrary, and the institutional apparatus of the Office of the Pardon Attorney, as well as the overall extensiveness of the executive branch, provided political cover in those cases when pardons and commutations were issued (1195). It would not necessarily be inconsistent for the constitutional presidency to decrease their use of the pardon power as the public began to hold the opinion that the legal system, rather than individual judges and politicians, should determine guilt and punishment. This, perhaps, explains and justifies the declining use of the pardon power, but it does not explain, or justify, the “bunching of grants at the end” which has become the modus operandi of presidential pardoning in recent decades.
121 Legislative Impeachment and Statutory Limits
Congress can generally utilize a variety of powers to check the President and even impose its will on the presidential agenda; however, the pardon power is one of the few enumerated powers granted solely to the President, and Congress has not had a particularly successful track record with intervention. Despite a number of disputes between Congress and the Presidency during and after the Civil War, presidential acts of clemency consistently beat out congressional attempts to frustrate them. The only direct challenge to the presidential pardon power mentioned during the Federal Convention was that Congress could impeach the President if the power was abused; in particular, if the President attempted to shield confederates mutually engaged in treasonous actions against the United States
(Madison 1985, 646). In fact, any other legislative influence on the pardon power was generally dismissed because the House was “governed too much by the passions of the moment”67 and the Senate had already been granted “too much power”68 and presented too great a “danger to liberty” to be combined too often with the powers of the executive.
During the Federal Convention and ratification process, it was argued, by proponents of the Constitution, that impeachment would function as the failsafe to presidential abuses of power. With impeachment in the news, a journalist commented that:
A president’s pardon power is absolute in the sense that no pardon, no matter how reprehensible, can be undone by a court or by legislation. But a president could be impeached for abusing the pardon power (e.g., if the president sold pardons, or inexplicably commuted the sentences of slews of dangerous criminals). (McCarthy 2017)
Though not related to the exercise of the pardon power, the impeachment trial of Andrew
67 Rufus King 68 George Mason
122 Johnson was the closest Congress came to exercising this constitutional check on presidential power. Johnson found himself at odds with the “party that elected him to vice-presidential office” shortly after Lincoln's assassination and his assumption of the presidency (Benedict
1998, 495). Despite sometimes bitter disagreements between the President and Congress over
Reconstruction measures, what eventually provided Johnson's opponents with the ammunition for impeachment was his dismissal of Edwin Stanton as the Secretary of War; more specifically, that the Tenure of Office Act of 1867 expressly required Senate approval for the removal of executive branch officers69 (Berger 1973, 252-296). However, in the end, seven Republican Senators defected and the removal of Johnson failed by a single vote.
Which prompts the question whether impeachment is really the restraining factor that the framers, or contemporary journalist, think it is or ought to be.
Similarly, Congress might be able to use its control of the federal government's purse string to punish a president that fails to act in the nations best interests when exercising the pardon power; the history of presidential show-downs with Congress are replete with examples of this legislative tactic (Rakove 2007; MacDonald 2013). Though a more indirect check on the presidential pardon power, it might be possible for an enflamed Congress to withhold critical funding for executive departments, presidential pet projects, or refuse to pass legislation which is critical to the president's policy agenda. Though there is an inherent collective action problem, a sufficiently egregious abuse of the pardon power could rally enough support to frustrate the president. It is unclear how a president might act in such a scenario; would the president be expected to clear pardons in advance or could the president
69 The articles of impeachment included eleven charges against Johnson; chief among them were the removal of Stanton, the appointment of an interim Secretary of War, and the failure to “faithfully execute” the Tenure of Office Act of 1867 (Rodino 1973)
123 retract a pardon? 70
In the end, neither of these restraints on the presidential pardon power are likely to serve such a purpose. As previously noted, presidents have grown accustomed to saving their potentially controversial pardons until the end of their term, which renders Congressional action fairly mute. While Congress is certainly free to impeach a sitting president, this threat looses all teeth at the end of a president's last term in office; after all, presidents can easily time pardons to leave Congress little opportunity to respond. President Clinton, for example, concealed the true scope of his late-term pardons until his last day in office, and had staffers working non-stop during the final weeks to complete all the bureaucratic documentation to process them (Love 2010, 1197). Even if Congress had been given the names and information pertaining to the eventual pardons in real-time, it would not have had the time to convene an impeachment, and certainly not a trial for removal, before Clinton's time in office would have come to an end.
For the same reason that impeachment fails to provide sufficient restraint, the purse also comes up short. The President's policy agenda has already succeeded or failed by the time any controversial pardons are likely to be announced, and defunding an executive office would punish a new president rather than the offender. It's not above Congress to be petty, but it is also worth noting that a new batch of Senators and Representatives assumed their positions just a few days earlier and have their own constituents and policy agendas to pursue; and institutional resistance is likely not worth the time Congressmen would rather be spending on their own issues, rather than punishing a new administration for the sins of the
70 Presidents have never attempted to retract their own pardon or one granted by a predecessor. While there is precedent for granting conditional pardons, such pardons have been conditional on the actions of the recipient rather than any mind-changing on the part of the presidency.
124 old administration.
Judicial Review and the Courts
The courts have limited the presidential pardon power under very narrow circumstances; when a pardon decision has interfered with the constitutional power of another branch or the constitutional rights of an individual. When the President and Congress clashed over Civil War amnesties, the Supreme Court determined that presidential clemency could not assume the legislative functions of the Taking and Spending Clauses. Later in the
20th Century, the courts ruled that “a pardon cannot require a prisoner to forfeit his constitutional rights unreasonably”71. In short, “since the pardon power was a specific, constitutionally granted prerogative, any limitations on the power could only be located in the Constitution itself” (Crouch 2009, 38). All the while, there is an assumption of presidential acquiescence in judicial rulings and/or that judicial rulings are the indisputable interpretation of the Constitution and its limits. Though some scholars (Adler 1989, in particular) have hinted, based on a number of Supreme Court cases72, that presidential abuses of the pardon power are subject to judicial review, the caselaw of the Court makes clear that its jurisdiction is based on constitutional grounds rather than judgements about whether the acts of clemency are “abuses”.
Congress passed a series of laws during and after the Civil War to deal with the seized possessions of Confederates and to punish them for their disloyalty. One such act, the 1862
Confiscation Act, was utilized to expropriate property owned by Knote which was
71 Hoffa v. Saxbe, 378 F. Supp. 1221 (1974) 72 In particular, Ex parte Grossman 267 U.S. 87 (1925) and Shick v. Reed 419 U.S. 256 (1974)
125 subsequently sold and the proceeds committed to the U.S. Treasury. Knote was the beneficiary of a general presidential amnesty and sued to reclaim the confiscated property73.
Though the Court agreed that Knote was legally pardoned of any disloyalty, they refused to order the return of his property or the value thereof. Even though the presidential clemency was deemed completely within the President's power, the Court noted that the property, or at least the proceeds from the sale of said property, was now under the direct authority of
Congress; “moneys once in the treasury can only be withdrawn by an appropriation by law.”
To allow a pardoned citizen to reclaim property from the Treasury would, in a sense, allow the President to spend money from the treasury, which is a power the Constitution exclusively grants to Congress.
James Hoffa, infamous leader of the Teamsters, was convicted of a variety of crimes, and after serving part of his federal prison sentence he received a conditional presidential pardon commuting his sentence provided that he refrain from any union leadership duties until after 1980. Hoffa challenged the condition placed upon his pardon, and asked the court to invalidate that component of the pardon he had received from President Nixon. The district court that heard his case “established a new constitutional standard for evaluating the appropriateness of a conditional pardon” (Crouch 2009, 39). The test the court devised asked two questions; 1) whether the condition related to the public interest and 2) whether the condition constituted an undue imposition on the constitutional freedoms of the commutation recipient. That a pardon is expected to conform to the public interest, or at least the conditions therein, speaks volumes about the nature of the modern pardon power as interpreted by the courts. Using their new test, the district court decided that the condition
73 Knote v. United States, 95 U.S. 149 (1877)
126 imposed on Hoffa did not unduly restrict his constitutional freedoms, but opened the door to the courts invalidating future pardons that did.
The courts have been fairly reluctant to override presidential pardons. In more recent decades, the pardon decisions of States have been more likely to undergo court scrutiny, but even in those cases the Supreme Court has made its guarded position rather clear; “pardon and commutation decisions have not traditionally been the business of courts; as such, they are rarely, if ever, appropriate subjects for judicial review.”74 It is possible that a new judicial limitation on the presidential pardon power is on the horizon following the Court's decision in Ohio Adult Parole Authority v. Woodard75, in which a certain degree of due process was constitutionally expected with regard to the processing of pardon requests; however, this decision was limited to a state exercise of clemency, and more specifically a state which provides for the regulation of the pardon power by law.76
What is noticeably absent from the case law are cases based on the prudential use of the pardon power. The courts are not empowered, and have not taken it upon themselves, to review questionable presidential pardons that go against the kind of public uses for which the pardon power was presumably created. Crouch identifies several particularly questionable pardons from the past few presidential administrations (2009, 101-26), and none of these pardon cases were reviewed by any court77. But we wouldn't expect the court to review these pardons since the President has, constitutionally speaking, broad discretionary authority to
74 Connecticut Board of Pardons v. Dumschat, 452 U.S. 458 (1981) 75 523 U.S. 272 (1998) 76 Ohio Constitution of 1851 states, in Article III, Section 11, that “The governor shall have power, after conviction, to grant reprieves, commutations, and pardons, for all crimes and offences, except treason and cases of impeachment, upon such conditions as the governor may think proper; subject, however, to such regulations, as to the manner of applying for commutations and pardons, as may be prescribed by law.” 77 The House did pass a non-binding resolution opposing Bill Clinton's commutation of several former members of FALN.
127 grant clemency for any reason.
As the pardon power has changed over the past two centuries, many of the institutional mechanisms intended to constrain the pardon power have shown to be rather ineffective in curbing the types of pardons that opponents of ratification had feared. In particular, these opponents argued that presidents would pardon members of their own administrations to hide their own involvement in criminal wrongdoing. Whether such presidential wrongdoing has occurred is somewhat speculative, but it is a matter of record that administration officials have received presidential clemency before and after criminal convictions. Additionally, no president has been removed from office or suffered in legislative effectiveness as a result of these pardons.
CONCLUSION
The evolution of executive clemency from a kingly prerogative power to a constitutional grant of executive power was an understandable response to the excesses, whether real or merely perceived, of an imperialist monarch. Though the early colonial government allowed for a more traditional prerogative approach to clemency, subsequent reevaluation of governing mechanisms lead to a more restrained executive clemency and ultimately to the attempted constitutionalization of clemency in the federal Constitution and beyond. Unfortunately, the mechanisms that were put in place to check the presidential pardon power have proven inadequate, and subsequent constitutional and institutional changes have further eroded these checks.
By including clemency as a discretionary power within the Constitution, rather than
128 as an extraconstitutional prerogative, the delegates limited the risk that any executive might undertake by granting clemency; while this might be acceptable to the extent that presidential pardons can be desirable, the constitutionalization of the pardon power imbues upon the execution of the pardon power a sense of inherent correctness. In other words, the
Constitution removes some of the risk of exercising this instance of discretionary power, but the institutionalization of the pardon power– along with the twenty-second amendment – removes the remainder. Presidents, especially during the twilight of their term in office, are free to abuse their discretionary pardon power with no recourse for the coordinate branches of government or the people. The judgement of individual acts of clemency become much more about how they fit into the constitutional framework rather than whether they are granted in the public interest. “Prerogative and Executive discretion must ultimately be tested against the standard of reason and the public good” (Kelly 2007, 121).
If executive clemency is desirable, then a constitution should embrace Lockean prerogative and either reject the presidential pardon power as a mechanism of intraconstitutional discretion, or create a limited pardon power consisting of a formal, institutionalized component and leave the president to make the extraconstitutional decisions to pardon when such a grant would truly be in the public interest. The institutionalized component would provide for enforceable, legislative prerequisites for executive clemency to facilitate the pardon power in those instances that can be anticipated as beneficial to the public good. This would be different from the institutionalization within the Executive
Branch that currently exists through the Office of the Pardon Attorney; which is neither binding nor a prerequisite to presidential action. For all other circumstances, a president
129 would have to act outside the constitution to grant clemency and be subject to the heightened scrutiny and risk associated with such a decisions.
130 Chapter 6:
Article III: The judicial Power shall extend to all Cases, in Law and Equity
Of the three branches of government established by the U.S. Constitution, the judicial is the most lacking in detail. Much of the structure of the courts are left to the legislative branch to determine by ordinary law. As to function, the Constitution extended the power of the federal courts to cases of both law and equity, which is an important break with the legal traditions of England and many of the American colonies and states. Although equity had a long developmental history which the legal community of the time would have been familiar with, the combination of the cognizance of both law and equity cases into single courts was somewhat new; formally exhibited in only a few colonies and states prior to 1788.
Since the Common law courts were to apply the law, and law could not be faithfully applied to all cases to provide just remedies, the monarch was tasked with the duty to provide recourse in those cases. As the Common law became more refined through the accretion of precedent and procedural rules, equity did the same through a different system of equity courts; the former based on laws articulated by Parliament and traditions established by the
Common law courts, the later based on the king's prerogative authority alongside a sense for predictability and conscience.
Equity and law were generally housed in different colonial or state courts in a similar fashion to Britain. Even as equity and Chancery courts were viewed with increasing disfavor, colonial, and later state, courts generally had some cognizance of case types typically adjudicated in equity courts, even if not according to equity jurisprudence. Colonies and
131 states needed to provide venues for adjudicating equity cases78, but did not generally favor the discretionary manner in which equity cases were decided. As a result, colonial and state governments attempted to split equity jurisdiction from equity jurisprudence, and grant courts of law cognizance of equity cases.
Scholars tend to focus their analysis of the merger of law and equity on the practical concerns of the time. Almost no attention is paid to the underlying authority which supported the discretionary nature of equity jurisprudence. While Hoffer acknowledges that “The discretion that the chancellor had under the English rules... were troublesome to an American revolutionary leadership struggling against the unchecked discretion of Parliament” (1990,
94), his position, as I will argue, tends to fall into the same trap that describes the debates on equity in the state ratifying conventions. Specifically, that there is an important distinction between equity jurisprudence and equity jurisdiction, and that the practical considerations which supported the merger of law and equity were largely based on jurisdiction while those that criticized the merger were largely based on concerns over equity jurisprudence.
Additionally, Hoffer argues that “if serious constitutional objections to reestablishment of equity courts... were widespread, they would have deterred state lawmakers from reconstituting equity courts long before the framers met in Philadelphia”
(Hoffer 1990, 99). However, this would only be supportable if court structures remained unaltered or equity courts became more prevalent despite the constitutional revolution of the
1770s and 1780s. Yet, as I show, states significantly altered the way that they structured their equity courts, some increasing and some decreasing the degree to which law and equity were
78 Though not intended to be exhaustive, Hamilton, in Federalist No. 80, lists “fraud, accident, trust, or hardship” as examples of common cases, or subject matters, which would require a court with equity jurisdiction (Hamilton, Madison, and Jay 2003, 479).
132 practiced jointly within the states. Hoffer describes this variability, but then inexplicably concludes that the lack of universality is a sign that the federal merger of equity was a wholly desirable outcome.
The dissolution of equity as a discretionary tool of the executive presented states with a dilemma. Whereas equity in the British tradition was founded on monarchical responsibility, when the colonies separated from Britain and embraced popular sovereignty, this foundation for equity was no longer viable. What the variability of state equity schemes instead demonstrates is that the states were unsure where to vest equity authority within the broader structure of government and allocation of powers. Equity is, after all, a very useful tool for administering justice in an imperfect world, and we can acknowledge the potential problems of equity courts while still supporting their implementation.
Using the debates from the Federal Convention, the state ratifying conventions, as well as various sources of public debate, I show how expanding the scope of federal courts to matters of equity was contested on a variety of important theoretical and practical grounds. In particular, that the merger of equity and Common law jurisprudence would furnish judges with the authority to remake the Constitution, through their decisions, in accordance with their own sense of reason and conscience. This objection, along with others, was based, primarily, on concerns that equity would provide judges with a degree of incontestable discretion that would be dangerous for the Republic.
I argue that this attempt to simultaneously merge law and equity jurisdiction while at the same time keeping their corresponding jurisprudence separate created a linguistic disconnect during the critical period when the Constitution was drafted in the Federal
133 Convention and ratified in the state conventions. Additionally, that the merger of law and equity jurisdiction lead to the merger of their corresponding jurisprudence in a much more significant manner than the British legal tradition had done before and scholars acknowledge.
This confusion about equity followed by the developmental merger of previously distinctive jurisprudences, resulted in a broad intraconstitutional discretionary power bestowed upon the judiciary.
THE EVOLUTION OF ENGLISH CHANCERY COURTS
The legal history of the British Isles, and by proxy of Great Britain, has been a somewhat neglected topic of historical evaluation because legal historians and general historians tend to have distinctly separate interests and because British history tends to be treated in an “anglocentric” manner (Tompson 2000, 1). However, it is clear that the legal history of England and the British Isles begins, as with many cultures, with an oral tradition, and because the Romans tended to form an amalgamated legal system in conjunction with local custom, practice, and oral tradition. With the fall of the Roman empire, the Anglo-
Saxons became the first to provide for written laws (Baker 1990, 2). However, the first formalized court system designed to adjudicate the law came after the Norman invasion in
1066 (Hanbury and Yardley 1979, 18). The consolidation of power was facilitated, in part, by the centralization of the courts, the establishment of royal justice, and the development of the common law in opposition to the civil law of the Justinian tradition.
134 From the First Courts to the Royal Courts
Prior to the Norman invasion, and the introduction of centralized courts, “the local courts, of the shires and hundreds, were supreme in their own spheres” (Hanbury and
Yardley 1979, 18). These courts did not operate in the same way as modern courts, instead they exercised much more than the local judicial function. The shire courts operated more like local assemblies comprised of representatives of the elite in local society; nobility, clergy, law enforcement, and other landholders. Sheriffs, as the chief enforcer of law, generally presided over these courts with the help of the local bishop (Tompson 2000, 4).
These courts operated on the basis of “communal justice” and “custom”, and, in large part, did not rely upon a law handed down by a ruler or lord; such laws were not in existence
(Baker 1990, 9). Instead, each of the subdivisions (Shire, hundreds, tithings, boroughs, etc.) of what is now England exercised judicial power relatively independent from the monarch and one another.
According to Baker, even before the Norman invasion, the “theory that justice is a prerogative of the Crown was beginning to have some foundation in fact, though it was not yet expressed in words” (1990, 11). As England became a more unified kingdom and the body of written Anglo-Saxon laws expanded, the administration of courts became a more uniform, if still quite eclectic, endeavor. In 1066, William brought a more refined concept of feudalism and transformed the “rudimentary” courts of the Anglo-Saxons into a powerful administrative tool for a strong, increasingly concentrated monarch. As before, the courts of this period were centers for all government authority in their respective geographical regions, and exercised legislative and executive power alongside the judicial.
135 The procedural practices within these courts varied extensively during this period of
English history, but through the introduction of a series of new legal writs utilized by the various courts of Henry II, uniformity at the upper echelons of the royal courts expanded.
Accordingly, the legal domain of the sheriffs and reeves began to feel the weight of royal oversight as Henry “adopted and perfected the system of traveling commissioners” originally established by William (Handbury and Yardley 1979, 28). The once universally accepted practices of trial by compurgation79, trial by combat, and trial by ordeal were curtailed, and, in many cases, outright replaced with trial by jury. Similarly, criminal acts, previously thought of as wrongs against individuals, “to be atoned for, in blood or in money” (23), became wrongs against the State as breaches of the King's Peace. As such, serious crimes were no longer to be heard before local courts, but would fall within the jurisdiction of the curia regis.
During this period of significant procedural and jurisdictional change, three courts functioned; the court of Common Pleas (disputes between the king's subjects), the King's
Bench (legal matters concerning the Crown), and the Exchequer (legal matters of revenue).
One such court rather different from either of the above80, established under the reign of
Henry II in 1178, consisted of five judges and served as the final arbiter on legal questions.
For the first time, England had a court in the modern sense; a court which exercised only a judicial function and sat at a fixed location rather than following the king as part of his retinue. “The establishment of a stationary royal court, functioning independently of the
79 Trial by compurgation was, according to Cantor, “organized lying”. Also called “oath-helping”, the defendant would swear on the Bible or a holy relic that he was innocent, and would then rely upon “oath helpers” to swear in a similar fashion that the defendants oath was 'clean' (1997, 62). 80 Whether this court established was part of the King's Bench or of the Common Pleas has been a controversy of English legal history. The current prevailing view of scholars is that it was neither, but was “one of Henry II's experiments with the judicial system” (Baker 1990, 21).
136 king's personal presence, marks the origin of the traditional judicial system of England”
(Baker 1990, 21). This was in contrast to the circuit81 system which was the primary provider of the king's justice in counties far from the typical seat of government in London or did not fall in short distance to the king's traveling.
The expansion of the royal courts inevitably limited the jurisdiction and importance of traditional courts. Though these local courts still served their purpose for the serfs and peasants, disputes within the gentry and baronial classes and high crimes were primarily adjudicated in the assizes by the thirteenth-century. The centralization of the judicial function lead to a more uniform system of both the application of the king's laws and the manner in which courts operated.
The Court of Chancery
One of the primary responsibilities of the kings of England, and later of Britain, was to ensure the equal and proper execution of justice. Running parallel to this was the notion that all Englishmen were entitled, by birth, to the protection of their life, liberty, and property by due process of law (Baker 1990, 112). The Common law courts were the bastion of this
“due process”, and the Common law, as a procedural doctrine of the courts, was viewed as synonymous with due process; in other words, due process meant being subject to the courts of Common law and none other. However, the king retained his mandate to ensure an equitable and right justice, and so the question of what to do when the courts at Common law failed to provide remedies which resulted in equal and right justice prevailed.
As the Common law developed, and the precedents and rules of procedure and
81 Also referred to as the eyres or assizes of the royal courts.
137 judicial decision making became more routinized in the royal courts, more litigants felt that the law, for one reason or another, failed to provide an adequate remedy or failed to take into account all relevant, extenuating circumstances to their case. As precedent served to limit the legal discretion of judges and the procedural rules of writs and evidence limited remedies and just outcomes, litigants sought an alternative mode of satisfaction. Relying, at least in part, on the duty of the king to provide equal and right justice, litigants petitioned the king directly for relief. The king would generally refer these petitions to members of his curia regis for consideration, and over time the minister most likely to receive the petitions was the
Chancellor (Abraham 1975, 15).
The Court of Chancery, as an institutionalized court, was not established until the late fourteenth-century or early fifteenth-century, but as early as the twelfth-century the
Chancellor maintained clerks to adjudicate the petitions seeking the monarchs relief (Cantor
1997, 131). The early procedures of this adjudicative process involved few formalities other than an initial subpoena to compel the attendance of relevant parties to appear before the
Chancery (Baker 1990, 119). The Chancellor in his capacity as head of the Chancery, was acting in the interest of conscience rather than law. As such, the goal was not to ascertain the legal aspects of the case, as a court of Common law might, but to tease out the relevant facts of the case. In this sense, the Chancery operated much more like a jury determining fact than a judge determining rule and law.
Equity became the term used to refer to the type of conscience-based jurisprudence exercised by the Chancery. Though the term equity was not a new invention of the English
Common law, “what was new was its application to the extraordinary jurisprudence of the
138 chancellor, for which it seemed an especially apt term when it came to be seen as distinct from Common law (Baker 1990, 122). The acknowledgment of the limits of law to accommodate the variability of human activity and a means to facilitate that variability was reportedly a component of the Common law in Glanville's early year books. In Lord Kames' treatise on equity, he highlights that “one operation of equity, universally acknowledged, is, to remedy imperfections in the common law, which sometimes is defective, and sometimes exceeds just bounds” (Home 2014, 17).
The central debate among English legal theorists throughout the development of equity courts had little to do with the value that courts of equity added to the pursuit of justice, but whether, in order to check discretion, equity courts ought to be distinct from the
Common Law Courts. Francis Bacon, Lord High Chancellor under James I, “advocated a rigid separation between courts of the law and courts of equity” (McDowell 1982, 5-6).
While stating that “there is no law under heaven which is not supplied with equity”, he distinguishes between legal systems that “have law and equity mixed in the same court, which is the worse” and those that “have it distinguished in several courts, which is the better” (Bacon 1803, 274). Writing little more than a generation later Henry Home, Lord
Kames, argued that the essential inseparability of law and equity meant that no such distinction was necessary or prudent. Instead, he advocated for the formalization of generally applicable rules for equity courts so that “though a particular case may require the interposition of equity to correct a wrong or supply a defect; yet the judge ought not to interpose, unless he can found his decree upon some rule that is equally applicable to all cases of the kind” (Home 2014, 27).
139 The nature of equity or conscience adjudication was essentially ad hoc for the first few hundred years; however, the prevailing reliance upon standing rules and precedent eventually crept into the Chancery as they dominated the Common law courts. The equity courts of England were not the same as the equity courts of the civil law courts of the
Justinian tradition. The Chancery was not empowered to “to suspend and change law, so that justice was done. Common law would never recognize such an audacious principle” (Cantor
1997, 249). Yet, the machinery of the Courts of Chancery moved notoriously slow, and could result in significant costs to litigants; much more so than the Common law courts.
The theoretical battle between Bacon and Lord Kames was somewhat decided by the popularity of Blackstone's Commentaries. Blackstone echoed the sentiments of Lord Kames, and added further conviction to the position that equity was an essential quality of all law and so inseparable from it. According to Blackstone, “Equity then, in it's true and genuine meaning, is the soul and spirit of the law... equity is synonymous to justice... but the very terms of a court of equity, and a court of law, as contrasted to each other, are apt to confound and mislead us” (1791, 429). Courts of equity and courts of law, though separated in the
English legal system of Blackstone, essentially adjudicated cases in the same manner, with the only difference being the type of cases falling under their respective jurisdictions. Both courts of equity and law were “founded on the same principles of justice and positive law; but varied by different usages in the forms and mode of their proceedings” (434)
The Royal Courts developed alongside the Common law for much of medieval and modern English legal history. The key components of Common law jurisprudence; trail by
140 jury, stare decisis, and royal writs, provided an arguably different legal system which served as a coveted inheritance of all Englishmen and a foundation, or at least as inspiration, for the
American judiciary. The supplemental function of equity jurisdiction in the Court of
Chancery, an arguably necessary development given the limitations of written law and standing procedures, also influenced the American legal system and augmented the Common law with additional flexibility.
COLONIAL COURTS, COMMON LAW, AND CHANCERY
The degree to which the British Common law courts influenced the colonial courts of
North America is a matter of scholarly debate (Stoebuck 1968). Early scholars, such as
Joseph Story, argued that the colonial courts merely borrowed bits and pieces of the structure of the Common law courts as they were useful and “applicable to their situation”82, while others argued that there was virtually no influence (Reinsch 1907), or that the colonial courts are best understood as being modeled after the customary courts of England83 (Goebel 1931).
Despite these disagreements, there seems to be some agreement that the influence of the
British Common law increased in the early- and mid-eighteenth-century. In part, this seems to be a result of the increased royal control exerted over the colonies, but also because the lawyers practicing in the colonies became more professionalized. Most relevant to this chapter is the way that equity in the colonies developed along a path distinct from Britain.
82 Van Ness v. Pacard, 27 U.S. 137 83 During the seventeenth-century, the royal courts were primarily only within reach of the gentry and aristocratic elements of British society; many of the early immigrants, therefore, would have only been familiar with the legal processes of the non-royal – not common law – courts.
141 Colonial Charters and The First Colonial Courts
In the early period of the British North American colonies, the development of the mechanisms of government was largely left to the governors and charter holders to sort out on their own. However, “the British Government claimed the sole power to create courts”, and so most early colonial courts were either created through royal executive action or specifically within the grant of charter itself (Surrency 1967, 253). In many of these cases the judicial functions were carried out directly by the governors; sometimes with the assistance of their councils. This maintained the arrangement by which the executive and judicial functions operated within the the same sphere of government.
The 1662 Charter of Connecticut empowered the proprietors, chief among them John
Winthrop, Jr., “to erect and make such Judicatories, for the hearing, and determining of all
Actions, Causes, Matters, and Things happening within the said Colony, or Plantation, and which shall be in Dispute” so long as those determinations are made according to “reasonable
Laws, Statutes, Ordinances, Directions, and Instructions, not Contrary to the Laws of this
Realm of England” (Thorpe 1909, 533). However, the establishment of such a judiciary was not required, and many colonial authorities retained all the powers of government and delegated only those administrative functions relating to the day-to-day operations of the colony.
Early iterations of dedicated judicial officers were best illustrated by the limited, local jurisdictions of the various justices of the peace which held court by the appointment of the assemblies of the colonial governments (Surrency 1967, 258). When eventually the governors and assemblies gave up their general trial jurisdiction, they often maintained a sort
142 of appellate jurisdiction. By the turn of the eighteenth-century, only the assemblies of the
New England colonies maintained any judicial role (259); while the governor in most colonies had some appellate responsibility, usually as part of the General Court or executive council specifically tasked with supervisory responsibilities. This was particularly prominent in the late colonial period as royal governors could intervene, on behalf of the Crown, in matter of the colonial courts or the colonial assemblies.
The organization of the colonial courts shared only a token resemblance to the courts of England. While there were several courts in England clearly demarcated by specific jurisdictions, the courts in the colonies were primarily centralized without any jurisdictional limitations. The only courts of general jurisdiction usually sat at the seat of colonial government, while the justices of the peace exercised jurisdiction over non-capital criminal and value-capped civil cases within their respective regional boundaries. However, the colonial court systems, especially before the consolidation of royal colonial control, varied greatly.
The Common Law in the Colonies
Though most charters allowed for the formation of judicial institutions, they all limited the types of laws which could be enforced by those institutions. As with the
Connecticut charter quoted above, the Charter of Carolina from 1665 stated that “laws be consonant to reason, and as near as may be conveniently, agreeable to the laws and customs of this our realm of England” (Thorpe 1909, 2764). Some scholars have viewed this language, and similar clauses in colonial charters, as the explicit attempt to export the British
143 Common law to the North American colonies; however, it is worth noting that “no charter stated expressly that the system of courts was to be patterned after that in England nor that the rules of law of the common-law courts or of any named courts were to be the rules of decision” (Stoebuck 1968, 396). While Stoebuck takes this to mean that these charter passages were only intended to limit the colonial assemblies, the language in several charters is located in paragraphs or sections specifically addressing the matter of a judiciary or the administration of justice; even if similar language is also applied to the actions of the colonial assembly.
In the early-eighteenth-century, as the colonies grew in economic and strategic importance, the British government began to take a greater interest in the operations of the colonial judicial system. At the same time, colonists began to make demands based upon their rights as Englishmen, which frequently involved references to the Common law. The
Common law, for many, was characterized by jury trails and a degree of due process in judicial proceedings; as such, pleas for the statutory protection of the Common law generally came with complaints against the perceived overreach of a colonial government (Stoebuck
1968, 410). There was also an uptick in the number of cases within the colonial courts which cited English caselaw as authorities in judicial decisions, despite the fact that few judges were trained in England (411).
Chancery Courts in the Colonies
The transformation of the colonial courts followed a path similar to the courts of
England; from a judicial model which relied heavily upon the executive powers of the
144 monarch to one that depended upon precedent, statutory law, and formalized procedure. Also like in England, some colonies established their own chancery courts. As the king was charged with ensuring that the law provide for right justice and delegated the responsibility for addressing legal concerns of equity to his chancellor, some royal governors of the colonies also took upon themselves the responsibility of creating and presiding over courts of equity (Surrency 1967, 271). Most such courts were short-lived, and still other chancery courts were blocked by the British Government or failed to gain consensus in the colonial government. Aside from New York, New Jersey, Maryland, and South Carolina, chancery courts in the colonies were either never established or quickly folded.
The Chancery Courts in England had existed for several centuries by the time the colonies were established, and yet separate chancery courts never became a prominent fixture of the North American colonial legal system. One possible explanation is that “many colonists distrusted separate equity courts. Equity represented uncontrolled discretion and needless delay and expense” (Subrin 1987, 926). The colonists placed a premium on the judgement of juries, and the colonial governments empowered them to render decisions on a wider variety of legal cases than was typical in England. This dedication to the value of trial by jury can perhaps be illustrated best by its inclusion in the list of grievances against the
Crown in the Declaration of Independence84.
In England, the Courts of Chancery were notorious for their cost and delay. Since bills of Chancery were direct appeals to the Chancellor, both an important clerical and political figure in England, only the wealthy and influential were likely to be successful in
84 “The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world... For depriving use in many cases, of the benefits of Trial by Jury...”
145 suits brought before the Chancery. As such, most of the classes from which the colonists originated would not have been personally familiar with the equity procedures of the
Chancery. Also, since the law profession in the early colonies lacked English trained attorneys until the eighteenth-century, there would have been much less practical knowledge of the operations of the English Courts of Chancery (Katcher 2006).
The chancery courts that were in operation for a significant period of time were not without their controversies. Each of these chancery courts were either completely dominated by a royal governor or other official, either as the sole authority or the presiding member of a council, serving at the pleasure of the Crown. Even though “courts of chancery were not popular, some sentiment existed for their creation as gaps in the jurisdiction of the common law courts became apparent” (Surrency 1967, 274). The utility of equity, as a part of
Common law jurisprudence, was not seriously questioned. The problems largely stemmed from abuse, or perceived abuse, against the colonists by the royal governors and other officials of the Crown.
The source of authority for equity and common law courts became more intertwined in the colonies. Limited need for, and lack of resources to support, a comprehensive two-path court system made such a merger necessary to some extent. Though royal governors and the king still provided the source of authority for most equity actions, those actions were increasingly heard in the same courts that heard cases at common law. Judges tasked with rendering common law decision about common law cases were also expected to make equity judgements about equity suits. The former under the banner of the common-law, based on precedent and laws from the colonial assemblies, and the later as agents of the governors and,
146 ultimately, the king. Even with an expanded role for juries, the much more blurred line between judges making decisions using equity jurisprudence and common law jurisprudence generated concern that would continue to surface whenever structural changes were proposed.
COURTS OF CHANCERY AND EQUITY IN POST-REVOLUTIONARY STATE
CONSTITUTIONS
The movement to disentangle the courts from the Crown had made significant strides in Britain, but colonial courts still owed their existence to the king. As such, some of the animosity aimed at the king during the Revolutionary War also landed on the colonial court system. While much of this criticism focused on the mode in which judges were compensated and appointed, i.e. judicial independence, other components of the colonial judiciaries also received attention for reform. As mentioned above, only a very small number of colonies maintained a separate chancery court for any significant period of time, but the manner in which the colonial government addressed the matter of equity and chancery courts in their initial state constitutions was much more varied than prior experience might indicate.
Most of the new state constitutions drafted at the onset of the Revolutionary War, many on the advise of the Continental Congress, left out many of the details of a working court system. In some cases, the constitutional basis for any court can only be implied by the constitutional grant of power to either the executive or legislative branch of the state government to appoint a number judges to various benches. For example, the 1776
147 Constitution of North Carolina mentions the courts only to outline how judges and clerks are to be appointed (Thorpe 1909, 2791), that they cannot hold a seat in either house of the legislature or a position in the executive council (2792), that they may be impeached (2798), and that they must be adequately compensated, without diminution, during office (2792 and
2798). In this case, we only know that a court with equity cognizance is part of the understanding of the body that drafted the constitution because it specifically states that “the
General Assembly shall, by joint ballot of both houses, appoint Judges of the Supreme Court of Law and Equity” (2791). The structure of the courts seemed less of a concern to the newly minted states fighting a war with Britain, and most references throughout these constitution focus on establishing the extent of legislative and executive control over the courts rather than tinkering with the form or function that already existed.
Equity Jurisdiction and Authority
Still, eight of the eleven colonies drafting new constitutions as states make specific references to either courts of chancery or equity85, and these constitutions grant equity or chancery jurisdiction to a wide range of courts. The supreme court of Pennsylvania, along with other inferior courts, was granted “powers of a court of chancery” in addition to “the powers usually exercised by such courts” (Thorpe 1909, 3088). As such, the courts of
Pennsylvania, both the supreme court and the courts of Common pleas, were constitutionally authorized to exercise the jurisprudence of both law and equity. This was the broadest grant of judicial authority in the early state constitutions, and may explain the extensive debate on
85 Connecticut and Rhode Island continue to operate under their colonial charters until 1818 and 1842, respectively.
148 the topic of equity in the Pennsylvania ratifying convention for the Federal Constitution; more than in most other state ratifying conventions.
Chancery and equity cases were also to be heard in various inferior courts, such as justices of the peace or Common pleas, and in specifically titled chancery courts. Maryland's
Constitution of 1776 created a variety of courts, including a Court of Chancery, all the appeals from which would feed to a “Court of Appeals” (Thorpe 1909, 1700). Like a few other states, Maryland retained the position of a Chancellor, who served as the head of the
Courts of Chancery and was appointed by the governor to serve in good behavior. Unique in two ways, Georgia specifically prescribed the continuation of its equity court and styled it as a “court of conscience” (784).
Several of the states with explicit equity jurisdiction established either an executive council or official that would hear ultimate appeals in cases of equity or chancery. Delaware established a “court of appeals”, comprising the president and six other appointed members, to hear appeals “in matters of law and equity” (Thorpe 1909, 562). The constitution does not, however, establish any lower courts of chancery or equity. In South Carolina, the vice- president and privy council were empowered by the state's 1776 constitution to “exercise the powers of a court of chancery” (3246), with the state's 1778 constitution changing the name of the vice-president to the lieutenant-governor (3254).
Presumably, the post-revolutionary constitutions of South Carolina, like that of
Pennsylvania, were conferring a means of judicial review rather than just a jurisdictional caseload; the distinction between the powers of a court of chancery and matters of a court of chancery is important. As Chafee points out, there were several ways that the “common law”
149 and equity could be understood in the colonial period leading up to the time when states were drafting their first constitutions (1996, 60).86 Certain cases and matters of disputes were considered within the realm of equity or chancery jurisdiction. As mentioned earlier, in
Britain equity jurisprudence in these types of cases had reached a developmental point where even the application of equity had become largely bound by precedent and standing rules. In contrast, the powers of equity bestowed by these state constitutions would likely have been referring to the type of case-by-case judicial discretion that characterized early equity jurisprudence in Britain.
Limitations on Equity
While most states provided for impeachment as a check on the operation of state courts and the behavior of judges, several states specifically allowed for additional legislative limitations on the judiciary or equity jurisdiction and jurisprudence more precisely. An example of the former is Massachusetts, where the legislature had “full power and authority to erect and constitute judicatories and courts of record, or other courts” (Thorpe 1909,
1894). In other words, the overall judicial scheme of the state was left entirely to the determination of the state legislature. As to the later, Delaware allowed its “courts of common pleas and orphan's courts” to hold “inferior courts of chancery... unless the legislature shall otherwise direct” (562). So while the legislature in states like Massachusetts possessed almost complete control over the judicial functions of the state, which included chancery and equity courts, other state constitutions granted limiting powers to their
86 Chafee identifies “at least” four meanings; 1) a “legal system”, 2) the set of all law common to England, 3) “unwritten law in contrast with legislation”, and 4) the “distinction between equity, applied in the Court of Chancery, and the law, applied in the Courts of Common Pleas, King's Bench, and Exchequer.” (1996, 60)
150 legislatures only for certain aspects of the judiciary.
Placing the ability to make limiting – or expanding – determinations relating to equity in the hands of the state legislatures was not uncommon in the post-revolutionary state constitution; however, Georgia and Pennsylvania included much more specific jurisdictional limitations. What was an extension of jurisdiction at the time, the Georgia court of conscience could only hear cases “not amounting to more than ten pounds” (Thorpe 1909,
784). In addition to a general grant of legislative power to expand equity and “such other powers as may be found necessary”, Pennsylvania provided a list of actions to which judicial equity would be extended; “perpetuating testimony, obtaining evidence from places not within this state, and the care of the persons and estates of those who are non compotes mentis” (3088).
State Departure from British Equity
The struggle to find a place for equity in the American legal system continued into this period. While the colonies largely rejected the administration of equity by the executive power, the post-revolutionary state constitutions struggled to find a better place for it.
Though equity jurisprudence developed alongside, yet separate from, common law jurisprudence in Britain, equity jurisprudence was gradually being merged with law courts during the shift to a separate and distinct judicial power independent from the executive and legislative. While the utility of equity remained, the basis of equity in the British legal tradition, namely the monarch's conscience, was not consistent with the political ideas of
151 post-revolutionary America.
What emerged was a new distinction between equity jurisdiction and equity jurisprudence. Though this distinction become more apparent during the debates over the
Federal Constitution, the early signs of this dissection of equity began in small degrees in the manner in which colonial courts operated and the schemes used by post-revolutionary state constitutions to include equity jurisdiction while limiting or eliminating equity jurisprudence.
Juries were empowered to decide on a much larger range of both factual and legal matters, which curtailed the opportunity for judges, utilizing the provincial forms of equity jurisprudence, to decide cases which typically fell within the jurisdiction of chancery courts in Britain. This colonial and state tradition of expanded jury action would lead to one of the most contentiously debated components of the federal judiciary in the state ratifying conventions of 1787 and 1778; only to be resolved by what would become the Seventh
Amendment.
EQUITY IN THE FEDERAL CONSTITUTION
The Article of Confederation made no allowances for any standing courts or broad judicial power. The judicial powers of the federal government established in the Constitution of 1787 were, in large part, a new component of federal power which made many American nervous. The extension of the judicial authority to cases in both law and equity, though discussed sparingly during the Federal Convention of 1787, was a contentious topic in several of the state ratifying conventions and the war of words which surrounded them.
152 Though the Constitution was eventually ratified by the requisite number of states, the concerns about equity jurisprudence remained largely unaddressed by the supporters of the
Constitution.
Debates from The Federal Convention of 1787
Neither the Virginia nor the New Jersey plans included any provision that would extend the powers of the national/federal judiciary to cases of equity. In fact, no references to the Common law or equity were made until after the committee of detail reported the first draft of the proposed Constitution on August 6th. The 16th resolution provided to the committee of detail stated “That the jurisdiction of the national judiciary shall extend to cases arising under laws passed by the general legislature; and to such other questions as involve the national peace and harmony” (Madison 1985, 383)87, and the draft prepared by the committee of detail stated in Article XI that “The Jurisdiction of the Supreme Court shall extend to all cases arising under laws passed by the Legislature of the United States” (393).
When Article XI was taken up on August 27th, William S. Johnson provided the first suggestion, “that the judicial power ought to extend to equity as well as law” (Madison 1985,
536). Although George Read “objected to vesting these powers in the same Court”, the article was accepted as amended. Read's objection would resurface during the state ratification process, but the Federal Convention did not delve into the matter of separating equity from law jurisdiction. We can presume that both Johnson and Read had some understanding of what it might mean to broaden the jurisdiction of the federal courts to cases
87 The reference to the “national peace and harmony” could be interpreted a number of ways, but I am inclined to think that it is about the adjudication of treaties and the law of nations rather than a reference to equity.
153 in equity. Both were accomplished attorneys; Johnson was a former judge on Connecticut's colonial supreme court, and Read was a former Delaware attorney general under the Crown.
After the committee of style presented a new draft of the Constitution on September
12th, Hugh Williams observed that the proposed Constitution lacked a provision for juries in
“Civil cases and suggested the necessity of it” (Madison 1985, 630). To which, Nathaniel
Gorham, responded, somewhat curiously, that it would “not be possible to discriminate equity cases from those in which juries are proper” and that “the Representatives of the people may be safely trusted in this matter.” The presumption being that Civil cases which are properly decided upon the basis of equity jurisprudence are not consistent with jury trails, and that Civil cases can be divided by those which are properly adjudicated as equity cases and those that are not.
In furtherance of that, both Elbridge Gerry and George Mason concede the point that juries should not be guaranteed in equity cases, but that though “The jury cases can not be specified. A general principle laid down on this and some other points would be sufficient”
(Madison 1985, 630). Mason proposes that a Bill of Rights be employed to achieve this end, to which Gerry concurred. The motion to create a committee to prepare a Bill of Rights was rejected by all delegations that voted.
Debates from the State Ratification Conventions
Although the Federal Convention spent little time debating the merits of extending equity to the federal judiciary, the matter received considerably more attention in the state ratifying conventions. Chief among the concerns were that federal courts equipped with
154 equity would favor the rich over the poor, jeopardize the finality of jury determinations of fact – and the benefits of juries more broadly, and threaten the fundamental nature of the
Common law. The debates of the state conventions and the political writing about the
Constitution point to an important disconnect between the wording drafted by the Federal
Convention and the meaning interpreted by the people tasked with ratifying them. Although not uncommon in political parlance, the discourse of Federalists and Anti-Federalists frequently talk past each other almost as if debating different topics altogether.
Opponents of the Constitution often expressed concerns over the expense and inconvenience of a federal court system which would either sit at the national capital or infrequently ride circuit. An essay published by “A Democratic Federalist”, questioned whether it would be possible for a “supreme continental court” of “at most five or six judges” to travel even greater distances than state supreme court judges in order to “try facts by juries of the vicinage” (Jensen 1976, 195). However, the extension of the court's cognizance to cases in equity may justify additional concerns as the proceedings of the Courts of Chancery in Britain were notoriously slow and costly. In the Dissent of the Minority of the
Pennsylvania ratifying convention, those opposing the Constitution argued that:
The rich and wealthy suitors would eagerly lay hold of the infinite mazes, perplexities, and delays, which a court of chancery, with the appellate powers of the supreme court in fact as well as law would furnish him with, and thus the poor man being plunged in the bottomless pit of legal discussion would drop his demand in despair. (630)
And also that;
The lengthly proceedings of the civil law courts in the chancery of England, and in the courts of Scotland and France, are such that few men of moderate fortune can endure the expense of; the poor man must therefore submit to the wealthy. Length of
155 purse will too often prevail against right and justice. (633)
Proponents of the Constitution countered that the federal courts would only hear those cases involving federal matters, and that the vast majority of such cases would be “between inhabitants of different states, who will, in all probability, be men of property, merchants or great landholders, and not poor men” (Jensen 2008, 1394-5).
That the Supreme Court would have appellate jurisdiction “both as to Law and Fact” and the judicial power in cases of equity led many to fear that jury determinations of fact could be overturned during the appeals process. A pamphlet published in New York argued that “If the court, upon appeals, are to determine both the law and the fact, there is no room for a jury, and the right of trial in this mode is taken away” (Jensen 2005, 961). Similarly,
Patrick Henry in the Virginia ratifying convention, stated that he believed the Supreme
Courts determinations of fact were not limited to equity cases and that “The words are expressly against it. Nothing can be more clear and incontestible. This will in its operation destroy the trial by jury. The verdict of an impartial jury will be reversed by Judges unacquainted with the circumstances.” (2008, 1420).
It is in response to concerns about the protection of juries that Congress is hailed to be the guardian; defenders of the Constitution argued that the appellate jurisdiction of the
Supreme Court is subject to "such Exceptions, and under such Regulations as the Congress shall make.” In response to Patrick Henry's concerns, John Marshall88 asked “Why not leave it to Congress?”, and saw no necessity in “discriminating between the three cases of chancery, admiralty, and common law” or any reason why Congress would infringe upon the rights of the citizenry (Jensen 2008, 1433). The question whether Congress was capable of,
88 The future Chief Justice of The Supreme Court.
156 or should be trusted to, regulate so much of the operations of the judicial department was a fairly common concern throughout the state ratifying conventions.
As mentioned above, the protections of the Common law and the Common law courts were viewed as integral components of the People's inherited rights. The civil law tradition based on the European continent was, therefore, seen as the antithesis of the Common law, and most aspects of it were considered dangerous to liberty. Opponents of the Constitution were quick to point to the extension of the judicial power to equity cases as a sign that the common law was under attack by those wishing to impose the civil law. John Smilie, in the
Pennsylvania convention, rather bluntly stated that he doubted “whether there has not been an intention to substitute the civil law instead of the common law.” (Jensen 1976, 521). In response, James Wilson, by pointing out that Blackstone outlines the place of appellate jurisdiction in English common law, “in the very volume” quoted by Smilie, in “a chapter entitled “Of Proceeding in the Nature of Appeals” (575). As to function, Cincinnatus chastised “they who applaud the practice of the civil law courts” for having “seen very little of such practice not to know that it is liable to infinite fraud, corruption, and oppression”
(Jensen 2003, 259).
During the state ratifying process objections were raised that mirrored those during the Federal Convention. While the potential impact of equity on trial by jury was mentioned time and again, several antifederalists attempted to draw attention to the potential problem of consolidating equity and law in the same courts and judges. Federal Farmer reasoned that “It is a very dangerous thing to vest in the same judge power to decide on the law, and also general powers in equity” because the law will not serve to limit their decisions when they
157 can rely on equity to render the desired result (Zuckert and Webb 2009, 44). Similarly,
William Grayson, speaking in the Virginia ratifying convention, observed that the
Constitution would establish a single Supreme Court that would have jurisdiction in
“chancery, admiralty, common peas, and exchequer... criminal... and all cases depending on the law of nations” and that “One set of Judges ought not to have this power” (Jensen 1993,
1445).
In response, Hamilton argued that “there is hardly a subject of litigation between individuals... which would render the matter an object of equitable rather than of legal jurisdiction” (2003, 478-9). At the heart of Hamilton's case is the “necessity of an equitable jurisdiction in the federal courts”, and that it would be impossible to have a functioning judiciary without cognizances of equity jurisdiction. This, however, doesn't address the material point of the critics of the Constitution, which is primarily about the combination of court procedures and judicial decision-making processes. Hamilton does acknowledge these differences in Federalist No. 83, but only in response to complaints that juries would not be guaranteed in civil cases. Here he concedes that “great advantages result from the separation of the equity from the law jurisdiction”, but primarily because such cases should not be
“committed to juries” (504). At no point does he address the primary critique, which is that the combination of federal cases at law and cases of equity would result in judges subverting the law, and juries, in cases at law by utilizing equity jurisprudence.
What was absent from the Constitution's state convention defenders, were any arguments based on the merits of equity jurisprudence as a solution to the rigidity of
158 Common law practice. Instead, equity was defended on the basis of pragmatism; specifically, that the Supreme Court would require the use of equity jurisprudence in cases within its purview and that it would be difficult to curtail the scope of equity to the necessary legal cases. Along these lines Brutus89 uses the inability to provide for specific limitations on equity not as its strength but as its weakness:
The judicial are not only to decide questions arising upon the meaning of the constitution in law, but also in equity... By this they are empowered, to explain the constitution according to the reasoning spirit of it, without being confined to the words or letter... “From this method of interpreting laws (says Blackstone) by the reason of them, arises what we call equity”; which is thus defined by Grotius, “the correction of that, wherein the law, by reasons of its universality, is deficient”; for since in laws all cases cannot be foreseen, or expressed, it is necessary, that when the decrees of the law cannot be applied to particular cases, there should some where be a power vested of defining those circumstances, which had they been foreseen the legislator would have expressed... The same learned author [Blackstone] observes, “That equity, thus depending essentially upon each individual case, there can be no established rules and fixed principles of equity laid down, without destroying its very essence, and reducing it to a positive law”... They will give the sense of every article of the constitution, that may from time to time come before them. And in their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. (Zuckert and Webb 2009, 236)
EQUITY IN FEDERAL AND STATE COURTS DURING THE EARLY REPUBLIC
The Federal Constitution's dearth of specificity regarding the composition of the federal courts meant that the First congress would need to draft substantial legislation to outline most of the framework for a functional court system. The Judiciary Act of 1789
89 Most likely either John Yates, a delegate to the Federal Convention and the state ratifying convention of New York, or Melancton Smith, another delegate to the state ratifying convention of New York (see Introduction to Zuckert and Webb 2009).
159 would become this framework, and, rather than following the models established by known judicial systems in Britain or the states, Congress forged a radical construction of the federal courts (Ritz 1990). Alongside the amendments of the Bill of Rights, many of the practical concerns that the Anti-Federalists had about the equity and appellate jurisdiction were addressed by the first Congress. The states continued to refine the procedural and jurisdictional matters of equity in the courts following the initial formulation of the federal courts by Congress.
The Judiciary Act of 1789
What modern scholars refer to as the Judiciary Act of 1789 was actually titled “An
Act to establish the Judicial Courts of the United States”; a distinction that, according to Ritz, is an anachronistic nomenclature that conceals some of the significance of the act (1990, 3).
In particular, our contemporary label diminishes the significance of the separation of the judiciary from the other branches of government. This was by no means unimportant, and constituted a new, and innovative degree of independence for the judiciary. In Congress, the debate on how to establish the federal courts also involved addressing the question of equity jurisdiction and equity process.
Oliver Ellsworth was arguably the primary architect of the federal judiciary and also
“an opponent of equity” (Holt 1989, 1501); however, fellow members of the committee that drafted the Judiciary Act of 1789 were proponents of a much stronger equity component to the federal judiciary. William Samuel Johnson was the chief advocate of this position90, and
90 Note that it was Johnson who first proposed in the Federal Convention that the power of the federal judiciary should include equity.
160 “argued for unfettered equity jurisdiction in the federal courts” (Hoffer 1990, 102). The compromise draft of the Judiciary Act that made its way out of the committee did eventually provide for expansive equity jurisdiction, but also provided rules for defining acceptable equity cases and the mode of their adjudication (McDowell 1982, 7).
The subsequent Process Regulation Act of 1792 further solidified the paper boundary between legal and equity pleadings. Though the Process Act stipulate that there were to be two distinct sets of rules, the rules to be used for equity cases were left to the courts to decide. In the short term, the equity courts utilized the rules of chancery in the state where the particular court was located, when available, but the matter was anything but consistent.
A number of cases arose during the first decades of the Republic in which the decisions impacted the processes that were to be used in equity cases. In Robinson v. Campbell91, the opinion of the court specifically stated that equitable remedies should be understood
“according to the principles of common law and, equity, as distinguished and defined in that country from which we derive our knowledge of those principles.” Still, cases argued in th federal courts comprised a limited amount of the total equity cases in the United States, and much of the development in federal equity did not begin until the 20th century (which I address in Chapter 7).
State Constitutional Development of Equity
A number of states drafted new constitutions within a decade of the ratification of the
Federal Constitution. Some of these were newly admitted states, but five of the original states also updated their constitutions during this period. By 1820, the vast majority of the states
91 16 U.S. 212 (1818)
161 were operating under constitutions drafted after the adoption of the the Federal Constitution, and all but three states by 184592. Despite a few oddities, the language in these documents do not vary widely from the constitutions they replace or the national Constitution upon which many are clearly modeled.
The most common trend is the inclusion of legislative discretion in the formation of state courts and their jurisdictions. Of the twenty-four states that joined the Union by 182093, sixteen state constitutions granted the legislature some degree of discretion to shape the number, hierarchy, and/or jurisdiction of the state courts. For states newly joining the Union, it was typical for these constitutions to create a supreme court, and sometimes a circuit or justices of the peace, and then leave other details to the legislature. The Constitution of
Kentucky, adopted after splitting from Virginia, declared that:
The judicial power of this commonwealth, both as to matters of law and equity, shall be vested in one supreme court, which shall be styled the court of appeals, and in such inferior courts as the legislature may from time to time ordain and establish. (Thorpe 1909, 1270)
This became a common model for subsequent new state constitutions. Tennessee a few years later, in 1796, provided in its Constitution that;
The judicial power of the State shall be vested in such superior and inferior courts of law and equity as the legislature shall, from time to time, direct and establish. (3419) and the Constitution of Ohio stated that:
The judicial power of this State, both as to matters of law and equity, shall be vested in a supreme court, in courts of common pleas for each county, in justices of the peace, and in such other courts as the legislature may, from time to time, establish.
92 The Massachusetts Constitution of 1780 is still in effect; Maryland and North Carolina did not write new constitutions until 1851 and 1868, respectively. 93 The states as of 1820 were as follows: Connecticut, Delaware, Georgia, Maryland, Massachusetts, New Hampshire, New Jersey, New York, North Carolina, Pennsylvania, Rhode Island, South Carolina, Virginia, Vermont, Kentucky, Tennessee, Ohio, Louisiana, Indiana, Mississippi, Illinois, Alabama, Maine, and Missouri.
162 (2905)
In each of these constitutions, and others, the phrasing can almost certainly find its origins in a combination of the first sentence of Article III. Section I. and the first clause of Article III.
Section II. of the Federal Constitution94.
Only a few states retained constitutional references to chancery courts; Delaware,
Vermont, New Jersey, and Missouri. The Constitution of the State of Vermont merely authorized the legislature to “erect a Court of Chancery” if, and when, they believed one to be “expedient and necessary” (Thorpe 1909, 3765). The state Constitutions of New Jersey
(2608) and Missouri (2159) provided for similarly explicit chancery courts headed by a chancellor; however, Missouri amended its Constitution just two years later, in 1822, and therein abolished the office of the chancellor, extended chancery jurisdiction to the supreme and circuit courts, and gave the legislature complete discretion relating to chancery courts by stating that it “may establish a court or courts of chancery, and... prescribe the jurisdiction, powers, and duties thereof” (2169).
Delaware was the most notable exception in this group because it was the only state to act upon the concern, expressed both during the Federal Convention95 and the state ratifying conventions, that objected to the powers of equity and law being exercised by the same judges. The Delaware Constitution of 1792 proclaimed that “the equity jurisdiction heretofore exercised by the judges of the court of common pleas shall be separated from the
94 The first sentence of Article III. Section I. reads, “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”, and the first clause of Article III. Section II. reads, “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”. 95 George Read raised this objection during the Federal Convention, as mentioned in an earlier section; he was a delegate from Delaware.
163 common-law jurisdiction, and vested in a chancellor, who shall hold courts of chancery in the several counties of this State” (Thorpe 1909, 576). There was a clear constitutional effort to draw a distinct line between equity and Common law jurisdictions.96 In addition, an amendment passed after the promulgation of the Constitution, put the chancellor in a position to preside over the “orphans' court” and to exercise its equity jurisdiction except “as to the adjusting and settling executors, administrators, and guardians' accounts” (581).
Though the question of whether to combine courts of equity and courts of law was mostly settled for federal courts, not all states seemed to have been convinced that such a merger was ideal. The state constitutions drafted after the vigorous debates of the ratifying conventions resulted in a variety of schemes by which equity courts were incorporated into the state judiciaries. A legal system which merged law and equity was not, as some scholars have argued (Hoffer 1990), the consensus view during the early republic. Instead, the scheme was the predominant view of the delegates to the Federal Convention, settled upon with limited debate, and not sufficiently provocative to derail ratification. The continued experimentation in the states demonstrates that there were still concerns about which government authority to vest with judicial equity and the discretionary power that accompanied it.
96 See Hartnett, Maurice A. 1992. “The History of the Delaware Court of Chancery” in The Business Lawyer Vol. 48, No. 1: 367-72. for commentary on the history and utility of Delaware's separate equity courts.
164 CONCLUSION
The evolution of equity in English common law grew out of the limitations of lawmaking and the duty of the king to provide equal and right justice to his subjects. As the number of cases which fell through the Common law cracks grew, the counselors of the king, primarily the Chancellor, were overwhelmed. The Chancery Courts were established to handle this need, but the influence of the Common law upon equity law created a developmental path which, in part, undermined the purpose of the Courts of Chancery.
Despite the origins of equity as a solution to disputes with no legal precedent or remedy, standard rules, remedies, and precedents developed in the equity courts very similarly to the way they had in the Common law courts.
Although the manner in which the Common law, and its equity component, traversed the Atlantic and migrated to the American colonies is a debated topic, equity jurisprudence and jurisdiction were arguably parts of colonial courts before and after the extension of royal control in colonies. When the colonies transitioned to states and began crafting their own constitutions, the anxiety and conflict about equity was evident in the various ways that state courts were organized. States acted differently to balance the drawbacks of equity jurisprudence with the need to accommodate the inelasticity of the Common law.
With the lack of standing, national courts and a varied approach to this balance of law, the Federal Constitution formally merged equity and law into a single federal judiciary.
Though some states had laid the groundwork for such an arrangement, most states either had separate chancery courts or did not formally sanction equity in any court. What is further
165 highlighted during the founding period is that debate on the topic of equity is often incoherent because there does not seem to be a standing lexicon for discussing the differences between equity jurisprudence, the manner in which judges reach decisions based on conscience or reason, and equity jurisdiction, the type of cases for which a remedy is not provided by law.
It is, therefore, difficult to speak of the development of equity courts from the late colonial to early republic, both as to jurisdiction and jurisprudence, as a single stream. This is particularly true when one considers that courts were granted cognizance of cases in both law and equity at the same time, while, presumably, expected to separate legal and equity jurisprudence depending on the type of case before the court. In other words, the same judges were expected to adjudicate cases in law solely on Common law jurisprudence, or at least the
American version of that law-based jurisprudence, and eschew their ability as judges to render decisions based on equity jurisprudence and vice versa.
The result of the convergence of law and equity development in the federal courts, as prescribed by the Constitution, is that a great deal of discretionary authority is vested in the judiciary. Though scholars have previously pointed to the problems of judicial discretion under the rules of equity jurisprudence and its integration with Common law jurisprudence, these accounts do not adequately address the underlying theoretical foundation. Specifically, that equity, at least in the English tradition, began as an executive prerogative and duty to do justice, but the addition of equity to the judiciary transfer this prerogative power to a governmental department with a different mandate; to interpret the law.
166 Chapter 7:
Article III: The Problem of Equity Jurisprudence
Prior to the era of judicial independence, the courts were an arm of the executive power. Immediately preceding the constitutional period, this meant that monarchs served as the source of authority for courts and judges. In England, regardless of whether a judge presided over a court at common law or a court of equity, under the Chancellor, the power of these courts to hear cases and issue rulings flowed from the monarch. There were some exceptions to this, as the House of Lords did function much like a final court of appeals for the common law courts, but the king was responsible for the day-to-day management and functionality of these courts and, much like in the U.S. today, relied upon the executive power of the king to enforce such appeals decisions.
When the American founding, influenced heavily by Montesquieu, established an independent judiciary no longer directly dependent upon the executive or legislative powers for its authority, the foundations of the equity courts, at least in the English tradition, were shaken. Equity courts were essentially formal proceedings which relied on the King’s duty to do justice when no other remedies were available. Much like executive prerogative, equity courts were a mechanism for finding solutions outside the written law and legal precedent, and relied upon a similar justification; namely that the rigid and exclusive application of the law was an insufficient means to the just ends of government.
This lead to an unresolved question for the American colonies and early republic; how do we incorporate equity into a government limited by a written constitution? As the
167 previous chapter shows, there were a variety of constitutional solutions tried throughout the colonies and states, and the Federal Constitution eventually resolved to incorporate equity into the same courts which adjudicated cases at law. There were, essentially, three options for the framers; 1) leave equity in the executive as a form of prerogative or discretionary power,
2) establish a separate, distinct equity court system as part of the judiciary, or 3) combine common law and equity jurisdictions into a single court system. The first option, was never widely considered, as the consensus view was that the executive powers ought to be curtailed, and so the primary debate revolved around the second and third options. It was this same dilemma, however, which fueled an earlier debate between competing jurists in
England during a previous generation.
Francis Bacon, perhaps more commonly known for his extensive philosophical inquires in the fields of science and theology, was the Attorney General and Lord High
Chancellor of England for a brief period during the reign of James I and wrote several legal tracts. As the leading figure of the Chancery courts, Bacon advocated a strong position that equity and common law jurisprudence were fundamentally different and ought to be exercised by different courts. This was contrasted with the legal thought of Sir Edward Coke and Lord Kames who wrote that the jurisprudential distinction between equity and the common law was “a chimerical idea” (McDowell 1982, 6).
Picking up this debate during the post-Revolutionary American surge in constitution- making, the founding generation relied heavily upon the 17th Century debates between competing legal minds. However, the American situation was significantly different than the arguments from this earlier debates. The newfound independence of the judiciary
168 fundamentally changed the way that courts, both of equity and common law, operated and from where they drew their authority. What was essentially an executive tool for correcting the law, was now vested in a new branch of government with an altogether different governmental role. The American judiciary, established to be the stalwart protector of the rule of law, was empowered with the tools to work around, if not subvert, the rule of law.
The consequences of judicial equity were, in some cases, solved by the constitutionalization of equity, but new problems took their place. In this chapter, I argue that
America’s constitutional framers failed to recognize the substantive difference between equity within an executive court system and equity within an independent judiciary. This undermined their constitutional design of the judicial branch, and the subsequently formed federal court system, and left the mechanisms intended to restrain the courts unsuited to the task. The insufficient restraints on judicial equity, conferred an intraconstitutional discretionary power on judges that would not stay within the jurisdictional boundaries of traditional equity cases but would bleed into all types of judicial decisions as the federal rules of procedures developed.
EQUITY IN LAW
Equity, broadly speaking, is the idea that there ought to be a way for magistrates, as expositors of the law, to address the inherent limitations of the law. This became an even more pressing matter when the law became a collection of written proscriptions and prescriptions, rather than a collection of informal rules, traditions, or executive edicts that
169 could be implemented on an ad hoc basis. In short, the move toward a foundation in the rule of law made the limitations of the law a problem for those charged with implementation.
Aristotle developed an early conception of equity as a means for addressing the shortcomings of law-making; the most prominent of which are the need for laws to be generalizations, the inability of lawmakers to anticipate technological, cultural, and political changes in society- at-large, and what we might think of as legal rigidity.
As such, when the law is explicitly enforced, justice may often be sacrificed for the rule of law; this, however, is self-defeating, as the law in general, and the rule of law in particular, is supposed to facilitate justice. For Aristotle, this made the development of a principle of legal equity essential to the ultimate aims of the state (2012, 112). As subsequent legal thinkers have refined equity, the goal has been to address the tension between the object of law and the limitations of law. This tension was further aggravated by the expansion of the rule of law, which calls into question the legitimacy of equitable exposition of the law. In other words, if a nation is to be ruled by laws, and not by men, then how can we support equity? The constitutionalization of equity became the solution to relieve this new tension by making equity a part of the formal, written law.
Shortcomings of the Law
Our modern legal and political parlances tend to refer to the limitations of the law collectively as “gaps in the law”, which takes its lead from the Aristotelian formulation
(Shiner 1994, 1247), but only tells a part of the story. That laws are inherently generalizations with a public goal in mind does mean that there will inevitably be specific
170 situations that do not fit neatly within the precepts of the law. Legislation and policy are also often reactive (Citation?), and so even if we could formulate a law that accommodates all possible scenarios, the resulting law would be merely a snapshot of a particular place and time and unable to adjust to changing geopolitical, cultural, and technological circumstances.
Often, gaps in the law occur because of the lack of specificity in the language of the laws. This can be because more specificity might make the application of the law so cumbersome as to defeat the intended effects of the law. Aristotle speaks of gaps in the law in terms of a form of unwritten law, and the adjudication thereof in the context of fairness – which he says is “justice that goes beyond the written law”. Furthermore, He states that these gaps are a result of “the intent of the legislators” but are also unintended as “when something escapes their notice” (1991, 105). For Aristotle, equity97 is “a correction of the legally just”, in the sense that when “it is necessary to speak generally, but concerning some matters it is not possible to speak correctly, the law takes what is for the most part the case, but without being ignorant of the error involved in so doing” (2012, 112). Which is to say that legislators know, or at least should know, that the the laws they make will not accommodate justice in all cases, and that, therefore, the just thing to do is adjudicate some cases contrary to the law.
Attempting to anticipate all possible applications of the law, and codify accordingly, would be both futile and self-defeating – this is one reason why judges are necessary in the first place. As Aristotle put it, “a lifetime would not suffice to enumerate the possibilities”, and so laws must be made “to take account only of most possibilities” (1991, 105; emphasis added). This sentiment is echoed by Locke when he concedes that legislators are not “able to
97 Aristotle's term epieikes tends to be translated as “equity” or “fairness”. Some scholars argue that the distinction hinges on the expansiveness of epieikes; in that it encompases both civil and criminal matters.
171 foresee, and provide, by laws, for all, that may be useful to the Community” (2003, 374), and continues into the American founding. James Madison, in Federalist 37, agued that “the experience of ages, with the continued and combined labors of the most enlightened legislators and jurists, has been equally unsuccessful in delineating the several objects and limits of different codes of laws” (Hamilton, Madison, and Jay 2003, 224). He blames the shortcomings of new laws on both the “imperfection of the human faculties” and “the use of words to express ideas”; of the later, he elaborates by positing that “no language is so copious as to supply words and phrases for every complex idea” (225). That the law cannot anticipate all areas that may need legal formulation, or articulate all that can be anticipated, is even more apparent when one considers the rapid technological development of the computer age.
Additionally, legislation can be administered in a manner that is contrary to the intent of the legislator by the rigid adherence thereto.98 This rigidity is often a byproduct of an abundance of specificity, where the application of the law to certain cases is mandated but not just. This form of legal shortcoming is featured prominently in prior chapters on executive clemency, but is relevant here as well. In much the same way that governors and presidents may grant pardons and commute sentences in cases where the “severity” of the
“criminal code” would “wear a countenance too sanguinary and cruel” (Hamilton, Madison, and Jay 2003, 446), the courts, specifically the courts of equity, exercise discretion to temper the outcomes that would result from a strict adherence to the law.
The shortcomings of the law presented here highlight the precarious nature of the
98 That the executive power of the state may misapply the law, either intentionally or not, is an obvious problem that has less to do with the law itself rather than governance in general.
172 written law and the difficulty of balancing specificity and generality; an endeavor which will inevitably miss some sort of “Goldilock's” position, and require some correction to preserve the law itself and see justice done. Equity, from its Aristotelian conception as “justice that goes beyond the written law” (1991, 105), is essentially the understanding that the perfection of the law is unattainable and, therefore, that the law must, as a matter of definition, include some conception of equitable resolution.
Equity as Solution
In England, equity developed in conjunction with the common law, in large part, to address the above shortcomings. The public debate in the U.S. regarding mandatory sentences, where judges reluctantly condemn petty defendants to lengthy periods of incarceration, is, at least in part, a debate about the merits of judicial equity; where the impetus for such mandatory minimums was the perception that judges were utilizing their discretion to unjustly curtail sentences for some crimes. The years of experience with these types of sentencing mandates seems to have demonstrated the value of judicial discretion and equity-type adjudication. According to some scholars (Carrese 2003), this example of moderating of the law is one of the most important functions of the judiciary. Perhaps more commonly referenced as a reason for equity jurisprudence, is the function that equity and equity courts have performed in the provision of remedies when the law would otherwise remain impotent.
In the early days of judging, discretion was tempered almost exclusively by tradition and the sovereign. Before the predominance of the written law, judges adjudicated cases
173 based on reason, precedent, and their individual senses of justice. Yet, the development of the common law courts and the expansion of parliamentary laws in England left some plaintiffs without standing to bring their grievances before a common law court. A complicated system of writs limited the actions that could be heard, and the remedies provided, by the common law courts. The informal process of appealing directly to the king for justice is essentially the same type of Aristotelian appeal for justice beyond the written law. The formal equity courts of the Chancery spawned a new venue for relief in a variety of cases that were largely neglected by parliament.
We might be tempted to ask whether such cases would have eventually been addressed by acts of parliament if the chancery courts had not emerged to provide remedies; however, this misses the heart of the legal problem. The class of cases typically falling under equity jurisdiction rather than common law jurisdiction were not relegated due to parliamentary neglect, but because no standard mode of adjudicating these cases evolved within the common law tradition and parliament – or any legislative body for that matter – was not equipped to articulate distinctive laws about the subject matter of equity cases.
Aristotle put it this way;
The equitable is instead a correction of the legally just. The cause of this is that all law is general, but concerning some matters it is not possible to speak correctly in a general way. In those cases, then, in which it is necessary to speak generally, but concerning some matters it is not possible to speak correctly, the law takes what is for the most part the case, but without being ignorant of the error involved in so doing. And the law is no less correct for all that: the error resides not in the law or in the lawgiver but in the nature of the matter at hand. For such is simply the stuff of which actions are made.” (2012, 112)
In the early days of equity jurisprudence, the ad hoc manner by which Chancellors and their clerks, as well as other members of the curia regis that received such petitions, rendered
174 decisions fit the needs of the petitioners and served to rectify the injustices generated by the lack of remedies available to the courts at common law.
The equity courts began to take a much more distinct evolutionary track as the common law courts became more rigid (McDowell 1982, 24), and a primary debate among legal scholars was whether the equity courts could properly exercise a sort of appellate jurisdiction over cases decided in the courts of common law. This debate was inextricably linked to the question whether equity courts and the common law courts ought to be separate and distinct institutions. On the one hand, Sir Edward Coke argued that equity was an essential component of the judicial function, and so was employed by judges of the common law courts with equal force and legitimacy as the judges of the chancery (see Corwin 2008), while on the other hand, Sir Francis Bacon argued the opposite, that the discretionary nature of equity jurisprudence ought to remain separate from the common law courts and that equity courts ought to exercise the means of providing equitable relief in cases when the common law courts, due to precedent or statute, fail to provide justice. However, both sides of this debate agreed that a key functional role for equity jurisprudence was to discretionarily diminish the severity of the law.
Lord Kames, in general agreement with Coke, wrote in his Principles of Equity
(2014) that “one operation of equity, universally acknowledged, is, to remedy imperfections in the common law, which sometimes is defective, and sometimes exceeds just bounds” (17).
Thomas Hobbes, in general agreement with Bacon, argued that “the Intention of the
Legislator is alwayes supposed to be Equity: For it were a great contumely for a Judge to think otherwise of the Soveraigne. He ought therefore, if the Word of the Law doe not fully
175 authorise a reasonable Sentence, to supply it with the Law of Nature (1985, 326). In both cases, equity serves as the jurisprudential means of bending judicial outcomes to conform with what is just, and, particularly for Hobbes, to protect the innocent from becoming entangled in the intricacies of the written law.
Later in this chapter I will return to the debate over the structure and supremacy of equity courts, but the “universally acknowledged” utility of equity as a remedy to the shortcomings of the law and as a way for judges to intervene “to correct the oppression of common law” (Kames 2014, 236-7), is worth noting here given the differences between many of these scholars on other matters of law. For centuries, equitable relief from the written and common laws, both in England and on the continent, was the primary mode of addressing inherent legislative deficiencies. However, this arrangement would face new challenges in the new governmental structures pioneered by American constitutionalism.
American Constitutionalization
The American constitution established a fundamental law that transcended the ordinary laws of Congress, or of the state legislatures, and took precedent over the common law. This formalized, legal hierarchy was not a new conception, “but the idea of making this higher law explicit and enforceable by putting it on paper... was for the first time put into practice by the Revolutionary colonists” (Hayek 2011, 266). Codifying commitments to ideals such as “natural rights”, “natural law”, and/or “reason” in a form that could be referenced by all from a single documentary source was a departure from the governmental norms that had preceded the Constitution. Despite various written documents considered part
176 of the British “constitution”99, claims of parliamentary sovereignty meant that no British law was immune to alteration during the normal course of parliamentary business. Contrary to parliamentary sovereignty, the shift to popular sovereignty supplied a more robust rule of law deriving its legitimacy directly from the people, through ratification, rather than through a legislative body that constitutional precommitments were presumably intended to limit.
Equity jurisprudence, therefore, presented a problem for the framers of the American constitution, because one of the original purposes of the Constitution was as “a means for upholding the liberal commitment to the rule of law” (Graber 2013, 60). The rule of law being the functional means by which individuals maintain their freedom despite their membership in a political society. As Locke articulated:
The Liberty of Man, in Society, is to be under no other Legislative Power, but that established, by consent, in the Common-wealth, nor under the Dominion of any Will, or Restraint of any Law, but what the Legislative shall enact, according to the Trust put in it... Freedom of Men under Government, is, to have a standing Rule to live by,common to every one of the Society, and made by the Legislative Power erected in it... (2003, 283-4)
The distinctly legislative nature of equity jurisprudence coupled with the common law adherence to the principle of stare decisis meant that citizens would be subject to a nebulous subset of judge-made “laws” not formulated by the legitimate legislative power.
Although the framers of the Constitution were more comfortable with a mixed distribution of powers between the branches of government, the judiciary's role in legislation was arguably one merely of the negative sort. Which is to say that the federal courts, as
Hamilton argued in Federalist 78, had a crucial role in ensuring the limitations of the
Constitution by acting independently to “declare all acts contrary to the manifest tenor of the
99 Included among the documents generally included in such a description at the time of the American Revolution were the Magna Carta (1215) and the Declaration of Rights (1689).
177 Constitution void” (2003, 465). Many found the idea that federal courts would exercise a negative on laws contrary to the Constitution troubling enough, but the idea that the Courts would formulate its own body of equity law elicited a number of vociferous objections and ominous warnings100.
The American constitutional tradition of a limited government dictates that only that which is specifically authorized by the constitution is constitutional, and only that which is constitutional is lawful. Therefore, the only way to maintain a system of constitutionally limited government while maintaining the functionality of equity is to grant such discretion explicitly within the constitutional grant of power. Given that many of the framers subscribed to the legal theory that equity was a component part of the common law tradition (Hoffer
1990, Crow 2017), in the sense that all judges exercised a form of equity jurisprudence as justice (Blackstone 1893, 429), the natural domain of such a grant would be the judiciary.
Additionally, when we consider that the most cited political thinker was Montesquieu, and that Montesquieu developed a substantial theory of judicial moderation (Carrese 2003), it should not surprise scholars that equity was set firmly in the judicial department.
However, this scheme neglects the implications of such a grant of discretionary power, and never answers the burning question; does such a grant of equity jurisprudence conform to the type of rule of law otherwise established by a limited constitutional government? In other words, if we consider equity as a means of judicial rulings outside the law, then can it every truly be inside the law? This tension between equity as the ultimate expression of legal justice when all other avenues fall short, and the rule of law as the guarantee of justice in a limited constitutional government was not solved by the
100See Chapter 6.
178 constitutionalization of equity jurisprudence in Article III. Instead, the tension was exacerbated by the constitutionalization of such a discretionary chasm coded explicitly within a constitutional frame intended to limit these very types of powers.
EQUITY AND JUDICIAL INDEPENDENCE
The division of the judicial functions of the state from the executive functions of the state was a gradual development of English constitutionalism. Despite the functional divisions proposed by Locke in the Second Treatise on Government and the practical praise bestowed on England by Montesquieu in The Spirit of the Laws, the courts were still largely a dependent organ of the crown at the end of the 18th Century. The infamous Star Chamber, largely a court of political persecution, had only been dissolved a little over a century prior to the American Revolution, and the dependence of judges on the more political, and thus more potentially tyrannical, powers of the state was a significant concern of the founding generation. The differences in the structure and distribution of powers, and their sources of authority, in England and those established by the new American Constitution were significant, and these differences resulted in an even more consequential effect on the theoretical foundations and practical implementation of equity.
Equity under the Crown
Monarchs long enjoyed a claim of legitimacy based on divine right. Even as absolute monarchies waned across Europe and various powers were curtailed and reallocated to more
179 representative bodies, this primary source of authority remained the same. In other words, the divine right of kings may have no longer justified a universal deference to the king, as articulated by someone like Filmer (1680), but it still justified the significant powers that were retained. In the aftermath of the Glorious Revolution, royal claims of absolute authority were shattered by the English Bill of Rights of 1689. Still, the king exercised a significant political authority and was bound by a range of obligations and duties that could be traced back to developments of the Anglo-Saxon periods beginning in the 7th Century (Lambert
2017).
These duties had long been defined by the “three promises” of the English monarch's coronation oath, which quite explicitly states that the king has an obligation to 1) “secure... the church of God and all Christian people”, 2) “forbid rapacity to his subjects”, and 3)
“cause all judgements to be given with equity and mercy” (Bracton 1968, 304)101; in other words, kings had the duty to maintain the Faith, keep the peace, and ensure justice. The common law courts developed as a response to the later duty, and the king's bench and the assizes formed to offer an uniform justice to all of the king's subjects. However, the purpose of these courts was to administer the law, common and later statutory, in furtherance of the king's duty to provide justice. As a result, when these courts failed to provide justice, even – perhaps especially – when judges were upholding the law, the king was still duty bound to act.
The collection of cases not conducive to common-law jurisprudence came to be adjudicated by the Courts of Chancery. This distinction became more important as robust
101Though the coronation oath changed over time, the most substantive changes related to the first promise. For further reading on the evolution of the English coronation oath see Richardson 1949.
180 precedents evolved in the the common-law courts, and the equity courts of the Chancery assumed a distinct role from the common-law courts. Despite the arguments of legal scholars, such as Coke, Kames, and Blackstone, the charge of the Chancery Courts was de facto, if not de jure, different in principle and practice. While the common-law courts were charged with adjudicating cases based on precedent and the law, the Courts of Chancery were charged with servicing justice.
Though Blackstone argued that “the parity of law and reason” governed both types of
English courts, and that the “essential difference” was “the mode of proof, the mode of trial, and the mode of relief”, he neglects the foundation of authority upon which each rested independent of the other (1893, 436). The modes that he goes on the describe are important, because the different processes highlight a difference in goal and a different source of authority. By the time Blackstone was writing, the mid-18th Century, the common-law courts had gained a substantial degree of independence from the king, as judges became much more dependent on parliament for the promulgation of acts of law and their own established precedents, and less reliant on the king for their bench.102 This was not mirrored in the
Chancery, which continued to exist as an arm of the king as an administrative apparatus of the Chancellor. So while, as Blackstone argues, common-law and chancery courts were both concerned with justice and reason, the common-law courts were also concerned with the dictates of parliament and the laws that parliament passed while the chancery courts had a more singular design and purpose.
102The Act of Settlement of 1701 provided judicial tenure during good behavior
181 Equity under the Constitution
Article III of the Constitution delegated the judicial power to the Supreme Court and any inferior courts created by Congress. The Constitution itself derived its authority from the
People of the United States, who established the judiciary as a commitment to the rule of law.
Constitutional provisions establishing the judiciary as an independent branch were intended to “increase legal stability” and lead to “material prosperity, beneficial international relations, and peaceful cooperation” (Graber 2013, 46). The predictability provided by the rule of law facilitates the ability for citizens to order their lives knowing the potential legal consequences of their decisions.
John Marshall concisely described the role of the federal courts in his landmark decisions in Marbury v. Madison as “emphatically the province and duty of the Judicial
Department to say what the law is.” Despite disputes as to the supremacy of the Courts' decisions relating to constitutional questions, that the courts were charged with the task of interpreting the laws of Congress and applying them to cases and controversies was not largely disputed. The expected role of the federal courts after ratification was largely the same as they had been before ratification. The courts served the function of providing, as
Locke articulated the need nearly a century earlier, for a “known and indifferent judge, with
Authority to determine all differences according to the established Law” (2003 351).
The lack of procedural and functional specifics in the Constitution has frustrated the courts themselves and scholars since the founding. Yet, I would argue there is more articulated by Article III than is often identified. Although Bickel states that the Constitution does not “purport to tell the Court how to decide cases” (1962, 5), if we think about what
182 expanding the “judicial Power” to cases “in Law and Equity” means – particularly what it would have meant in 1787 – it would seem that the Constitution does tell the Court how to decide cases. By stipulating that the Courts have cognizance of cases at law and cases at equity by explicitly mentioning both, the framers say something very different than if they had stated that the the “judicial Power shall extend to All Cases” and left it at that. The explicit differentiation of cases at law and cases at equity indicate a more significant jurisprudential distinction in the the mode of adjudication than a blanket statement of universal jurisdiction for “All Cases” would have indicated.
Equity in Tension
Thomas Paine argued in his Rights of Man that though it has been “customary to consider government under three distinct general heads. The legislative, the executive, and the judicial...” that if we “permit our judgement to act unincumbered by the habit of multiplied terms, we can perceive no more than two... that of legislating or enacting laws, and that of executing or administering them” (2008, 252). For a famous firebrand of the
American revolutionary period, his position here is surprisingly English and likely surprising for those more familiar with his criticism of monarchical tyranny. It does, however, highlight an important distinction between the division of authority and duties bestowed upon the judicial system in England and the federal courts established by the American Constitution.
Fundamental to this distinction is that while English courts exercised an “administering” role along the “executing” role of the king, American courts administered the law separately from and, at times, contrary to the executive power.
183 The joint duty of the crown to both execute and administer the law provides a comfortable place for equity, because equity is found in between discretionary execution and administration of the law. This structural niche is significant, in part, because the English king had common-law standing for a variety of prerogative powers that stood outside of typical judicial functions. Though the common-law courts were limited to adjudicating cases based on what the law said, equity courts had jurisdiction over all that the law did not say.
The potentially more expansive jurisdictional role of equity courts, however, was curbed by its more limited independence.
Under the American Constitution, however, the judiciary's charge to “say what the law is”, does not comport with the function of equity, which is to say what the law is not.
Additionally, the joint law and equity function of the federal courts, particularly as a merged court system, was not subject to the same type of varied independence characterized by
England. The explicit endowment of the judicial power in a supreme court that included both law and equity forged a fundamentally different arrangement. The structural merger, later solidified procedurally, of law and equity into an altogether independent judiciary was a break with the way that the much greater discretionary nature of equity jurisprudence was limited prior to the Constitution.
PROCEDURAL CODIFICATION AND EQUITY
The Federalist usually defended the extension of the judicial power to cases in equity on the grounds that federal courts were inevitably need to have cognizance of equity cases.
184 However, the constitution does not define what an equity case is, and “no statute enacted by
Congress has defined what a 'case in equity' is” (Maloy 2007, 641). Congress has also mostly avoided providing specific procedural guidance for the manner by which the federal courts ought to adjudicate such cases. As I mention in the previous chapter, the first method for determining equity procedure relied on the state of venue and then moved to a reliance of rules of procedure promulgated by the courts themselves. Over time, both the jurisdictional limits to equity and the procedural distinction between cases at law and equity have degraded.
Field's Code and the Enabling Act
The jurisdictional and jurisprudential uncertainty of equity in the federal courts prompted Joseph Story to write two of the most, if not the most, influential works on
American equity law; his Commentaries on Equity Jurisprudence (published in two volumes in 1835 and 1836) and Commentaries on Equity Pleadings (published in 1838). In these works Story sought to educate his profession and “preserve as much of the older natural-law tradition as possible... and combat the growing trust in legal positivism” (McDowell 1982,
85). Legal positivism was, in part, a movement focused on the codification of legal decision- making and processes influenced by the legal philosophy of Jeremy Bentham (Alfange
1969). As influential as these works were, they did not halt the trend toward increased codification, and in 1848 New York adopted the Field Code of Civil Procedure that greatly increased the degree to which court operations became standardized.
The Field Code of Civil Procedure effectively “merged law and equity” in a way that
185 neither the Constitution nor congressional action had done before (Subrin 1987, 932). Much of the motivation behind the codification movement was to simplify the legal process in general, and “weed out” those practices based on “needless technicality that prevented the simple and inexpensive application of the law” (933). Although the Chancery Courts in
England were in decline, and would cease to exist in the 1870s, the procedural norms for the court as they were practiced in a earlier time are particularly appealing if simplification and the elimination of technicality is the aim of reform. As the Field Code was either adopted by states across the nation or existing codes were updated to resemble it, the jurisdictional differences quickly faded but the procedural rules were largely still an amalgamation of both common law and equity practices. On the whole, the Field Code sought to reform the common law rather than destroy it.
The continuation of common law procedures were again under siege a few decades later, as a new group of reformers sought to remake the federal rules. In the early 1900s the
American Bar Association began a concerted effort to get a Rules Enabling Act passed through Congress which would allow the Supreme Court to formulate and promulgate a uniform set of rules for all federal courts (Burbank 1982, 1024). After legislative success in
1934, the Advisory Committee that drafted rules were promptly adopted by the Supreme
Court, and these rules were dominated by procedural norms with origins in equity proceedings. As a result, “the Federal Rules were the antithesis of the common law and the
Field Code. Through the Federal Rules, equity had swallowed common law” (Subrin 1987,
974).
186 Brown v. Board of Education
The Supreme Court case of Brown v. Board of Education, is often used as an example of an expansive equity undertaking by the court. Most legal scholars agree that the decision of the Court to declare in Brown that statutory racial segregation violated the legal principles of the Equal Protection Clause of the 14th Amendment, but the equity issue of debate is in regards to the remedy employed by the Court. There was clear precedent for the Court to enjoin the enforcement of school segregation laws, but the further order to actively desegregate schools “abandoned the entire tradition of American equity jurisprudence”
(McDowell 1982, 109-10).
The blending of both an equitable and legal determination partly explains the expansive use of equity jurisprudence, because the equitable relief – especially in a case such as Brown – is dependent upon a legal ruling. It is arguable that Brown would have been afforded a legal remedy in a court at law, and, therefore, would have been outside the jurisdiction of a distinct court of equity. The legal determination that state school segregation laws were unconstitutional and inoperable would have been an available legal remedy in a court of law. As one of the most important principles of traditional equity courts is that only those cases which are not afforded a remedy under law should be heard in equity, the Brown case would not have been able to benefit form an equitable remedy. However, even if it had been determined that the legal remedy was insufficient, as had sometimes been the test for equity eligibility, equitable remedies “were never intended to be used to grant broad remedies to entire social classes”.
187 More recent Supreme Court cases have struggled with the expansion of equitable relief, more specifically with permanent, nation-wide injunctions. Some recent scholars have argued that the trend is toward a limiting of these types of equitable relief (see Bray 2015), but a now common refrain in dissenting and concurring opinions are complaints about these very judicial tools. For example, Justice Thomas' concurring opinion in Trump v. Hawaii103 spent much of his efforts railing against universal, or nation-wide, injunctions, calling them
“legally and historically dubious”. In addition, Thomas argued that “as a general rule,
American courts of equity did not provide relief beyond the parties to the case”, but it is clear that such an expansion of equitable remedies has become an accepted part of the American legal framework. The merger, or triumph, of equitable procedures are bolstered by legal determinations and the trend of Congress to extend equitable relief to more and more statutes.
RESTRAINGING JUDICIAL EQUITY
Generally speaking, equity is subject to no more constitutional restraints than other functions of the federal courts. The mechanisms put in place to guard against judicial discretion were a hotly contested issue during all stages of the drafting and ratification of the
Constitution, and I argue that these mechanisms have proven largely ineffective at serving as a long-term restraint on judicial equity in particular. The emphasis on an independent judiciary naturally limited the avenues for the political branches to control judges; however, a number of mechanisms do, at least on paper, allow for Congress, the President, and the
103Trump v. Hawaii, 585 U.S. ____ (2018)
188 people to have an impact on the workings of the federal bench. The appointment process, legislative impeachment, flexible appellate jurisdiction, and court procedures and norms, when robustly exercised or observed, all serve as means for restraining the judiciary, but which have largely been neglected.
Appointment and Confirmation
The judges of the federal courts were designed to be insulated from popular influence, but the political branches were put in the position to select these judges. Ideally, judges serving with life tenure in a coordinate branch of government would be apolitical actors making decisions based on the law. The appointment and confirmation process was intended to be the primary way of ensuring that federal judges conformed to that ideal, and were sufficiently free from partisan entanglement, of good moral character, and legally, intellectually, and professionally competent to be judges. Judicial independence serves as an indirect check on the equity powers of the federal courts because, rather than overturning or curtailing equity decisions made on the bench, the goal of the appointment process is to install judges that will render equity decisions that do not need to be overturned or curtailed.
In the years since the ratification, the formal process for appointing and confirming federal judges has remained fundamentally the same, though a number of important informal procedures and guidelines have altered the manner in which the formal process has been conducted and undermined the idealistic results envisioned by the framers.
The appointment and confirmation process was intended to produce federal judges who were paradoxically both independent and accountable. Finding the right balance
189 between these two competing interests consumed a significant portion of the debate in the
Federal Convention dedicated to the judiciary. When the Virginia Plan was introduced on
May 29th, 1787 the ninth resolution proposed the creation of a national judiciary, but neglected to include the means for the selection of judges to preside in the national courts, and it was not until this resolution came up for debate on June 13th that the Federal
Convention proposed the first mode of judicial selection. Charles Pinckney and Roger
Sherman proposed that the judges of the “one supreme tribunal” be “appointed by the national Legislature” (Madison 1985, 112). This proposal was promptly countered by
Madison, who argued that that the legislature as a whole was and “incompetent [Judge] of the requisite qualifications” and subject to excessive “partialities”, and proposed, instead, that
“the appointment should be made by the Senate” (112-3). Pinckney and Sherman withdrew their motion and Madison's suggestion that appointment be made by the Senate was agreed to nem. con.
Two days later William Paterson introduced the New Jersey Plan, which called for judges to be “appointed by the Executive” (Madison 1985, 120). Although it was Madison's suggestion, that the Senate appoint judges, that was included in the initial resolutions of the convention (150), the differences between the New Jersey and Virginia Plans would be debated later in the convention and revealed a great deal about the aims of, and the fears associated with, the appointment process. This debate primarily occurred in two parts, on
July 18th and July 21st, and focused on the competency of the appointing authority, the
“attachments” that might be formed by the various appointment processes, and whether judges would come from sufficiently diffuse parts and interests of the nation. Despite a
190 number of motions to alter the appointment of judges, none garnered sufficient support, and the mode proposed by the initial resolution was not changed.
Ultimately, the framer's wanted to divide the power of judicial appointments, to ensure that federal judges would not be singularly beholden to political actors (Seymour
2004, 692). This was a recurring theme of debate in the state ratifying conventions, and an important component of the “diffusion of offices” envisioned in Madisonian constitutionalism (Thomas 2008, 17-8). In part, the framers feared judicial dependence on the executive because the appointment of judges has always been a royal prerogative in England.
Judges served at the pleasure of the kings that appointed them until the 1701 Act of
Settlement and could lose their seats upon the assumption of a new king that refused to renew their patents until 1760, at which time seats were guaranteed by statute (Baker 1990, 192).
Though the executive, according to Hamilton, was intended to be the “principle agent” in
“the business of appointments” (2003, 394), the power to appoint judges was shared with the
Senate.
Very early in American political history, however, the Federalists showed how the creation and appointment of ideologically minded judges could be a means of maintaining power in the face of electoral defeat. As such, the appointment process has served as a way for members of the political branches to establish “a legacy that far outlasts his of her time in office” (Seymour 2004, 691). This tactic was exemplified early in the Republic with the formation and appointment of dozens of new federal judgeships at the eleventh hour of the
Adams administration. The last-minute signatures of President Adams certifying the commissions of solidly Federalist judges to newly created posts infuriated the incoming
191 Jefferson administration and the newly minted government of the Democratic-Republicans.
The refusal to seat judges for which the commissions had not been physically delivered served as the basis for Marbury v. Madison and years of tension between the life-tenured
Federalist judges and the Jeffersonians (Urofsky 2006, 116).
Despite the early providence of political battles over judicial appointments, several factors of the appointment process have exacerbated these battles in recent years. The competing arguments of contemporary politicians involved in contentious appointment proceedings are often similar to arguments made during the convention debates of 1787 and
1788. During the 107th Congress, for example, President Bush and Republicans often argued that his circuit court nominees were eminently qualified in the law, while Senate Democrats argued that the nominees were overly political (Holmes and Savchak 2003). Arguably, the
Constitution was intended to seat judges that were both qualified and sufficiently apolitical, but the process doesn't seem to work this way in light of the development of party politics. In particular, early assessments of changes to the Senate's internal rules of procedure indicate an affect on the ideological partisanship of federal judges; an effect which is highly dependent on party affiliation of the president and the median member of the Senate .
Legislative Impeachment
Federal judges who abuse their equity powers are subject to impeachment by
Congress. Although arguably the most blunt, impeachment serves as one of the most constitutionally grounded methods of restraining judges. The balance between the benefits of judicial independence gained from life-tenure and protected compensation on the one hand
192 and judicial responsibility and accountability on the other, did not escape debate during the the ratification proceedings. Hamilton argued that judges were “liable to be impeached for malconduct”, and that it was the “only provision.. consistent with the necessary independence of the judicial character, and is the only one which we find in our own
Constitution in respect to our own judges” (Hamilton, Madison, and Jay 2003, 472-3).
However, very few judges have been impeached by the House and even fewer have been removed and/or disqualified from future federal service by the Senate, and those judges who have faced impeachment and removal have generally been charged with articles of impeachment based on actions taken while off the bench.104
The first federal judge impeached by the House of Representatives, and second overall, was a federal District Court judge in New Hampshire named John Pickering. Though
Pickering was “one of New Hampshire's most distinguished citizens” (Turner 1949, 487), by the turn of the 19th Century he was no longer the man he had been in his prime. He was a strong Federalist, and so, despite his obvious mental decline, was propped up by those not wishing to have his position on the bench filled by a Jeffersonian Republican. However, in
October of 1802, Pickering attempted to preside over a trial while thoroughly intoxicated, and abandoned all generally accepted court protocols and made a series of impromptu rulings
(489-90). Of the four article of impeachment crafted by the House of Representatives and forwarded to the Senate, the first three dealt primarily with Pickering's judicial decisions while the fourth pertained to his “profane and indecent manner” on the bench (High Crimes and Misdemeanors 1974, 33). The Senate convicted Pickering on all four articles and
104Even the cases when judges were accused of taking bribes or associating with litigants or attorneys with cases before their courts, were not accused of making any specific ruling which were unlawful or unwarranted as a result of the contact.
193 removed him from the bench, but the example of Pickering is hardly the rule for judicial impeachment. Although Pickering was removed from office, it would have been difficult to see how the Senate could have refused to remove a federal judge so far beyond the pale.
Serving as the new baseline for judicial impeachment, it would seem reasonable that the next Jeffersonian judge to be targeted for impeachment would be just a likely to be removed. Though missing the utter lack of judicial decorum, and questionable mental state, exhibited by Pickering, the judicial behavior of Associate Supreme Court Justice Samuel
Chase would seem nearly as damning. Justice Chase was a devout Federalist, and developed a reputation as a strong defender of President Adams and strident opponent of the
Jeffersonian-Republicans. Going so far as to personally convene a grand jury to indict a
Virginia man who had penned a book critical of President Adams (Casto 1995, 166). It was the subsequent trial of this Virginian, James Thompson Callender105, that provided the grounds for the bulk of the articles of impeachment. According to the articles, the Associate
Justice sat a juror who had admittedly pre-judged the guilt of the accused, refused to allow the testimony of an important defense witness without just cause, treated the defense in a manner unbecoming a federal judge106, refused bail contrary to law, and presided over both the grand jury court and the trial court contrary to law107.
105Callender authored the pamphlet The Prospect Before Us in 1800 which was vociferously critical of President Adams, and was charged under the Seditious Act of 1798. This Act was one of the focal points of opposition for the Jeffersonian-Republicans. 106The articles of impeachment listed five: 1) Chase required defense council to provide a written list of all intended questions for a defense witness, 2) Chase refused to postpone the trial for a defense witness despite a properly filed request and the witnesses “utmost diligence” to attend, 3) Chase used “unusual, rude, and contemptuous expressions” to address the defense during the proceedings of the trial and insinuated the guilt of the defendant, 4) Chase repeatedly and “vexatious[ly]” interrupted defense counsel during the trial, and 5) Chase's overt bias for conviction of the defendant. 107The Judiciary Act of 1789 stipulated that “the laws of the several states... shall be regarded as rules of decision in trials at common law”, and so the articles refer to Chase violating Virginia's common law procedures.
194 Despite the charges, Chase is acquitted, and his counsel relied almost exclusively on the defense that federal judges could only be impeached for an offense which could garner a criminal indictment (Van Tassel and Finkelman 1999, 102). Although the legal, rather than political, understanding of impeachment seems to have prevailed, there are a number of alternative explanation for the acquittal of Chase (Bailey 2008, 578-9). The impeachment of
Pickering and Chase were both arguably partisan endeavors by Jeffersonians to cull
Federalists from the judiciary, but they resulted in very different outcomes. While the glaring differences between the two men make the outcomes understandable, one result of the Chase acquittal seems to be a strengthening of judicial independence more broadly (Perlin 2010,
785). This added independence frustrated many, and, in particular, lead Jefferson to call impeachment a “farce” (1984, 1175), and “not even a scare-crow” (1426). Although several more federal judges have been impeached in the subsequent 200 years, none have been specifically impeached for erroneous judicial decisions.
At least part of the argument for the acquittal of Chase was that the House and Senate should not attempt to impeach and remove federal judges solely because of legal error. Doing so, it was argued, would essentially establish the Senate as a de facto court of appeals.
However, if the precedent of Chase, and practice since, has excluded legal error and non indictable offenses from impeachment, does impeachment really serve as the check on judicial power? If this legalist understanding of impeachment predominates competing theories, whether right or wrong, wouldn't this, in fact, preclude equitable jurisprudential decisions from the type of activity subject to impeachment? Ultimately, the disuse of judicial impeachment indicates that it does not provide the type of limitations of judicial discretion
195 that proponents of the Constitution seem to have argued during ratification.
Congressional Authority to Regulate Jurisdiction
The appellate jurisdiction of the Supreme Court and all jurisdiction of the inferior courts are subject to the regulations of Congress. Scholars have long debated whether this power of Congress has any meaningful limitations or whether Congress has plenary power to set the jurisdiction of the federal courts not stipulated by within the Constitution and whether such limitations are to be enforced by the courts themselves. The architect of the federal courts and third Supreme Court Chief Justice, Oliver Ellsworth, conceded the jurisdictional regulatory power of Congress early in the Court's history when he wrote, as part of the
Courts decision in Wiscart v. Dauchy108, that:
The Constitution, distributing the judicial power of the United States, vests in the Supreme Court, an original as well as an appellate jurisdiction. The original jurisdiction, however, is confined to cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party. In all other cases, only an appellate jurisdiction is given to the court; and even the appellate jurisdiction is, likewise, qualified; inasmuch as it is given "with such exceptions, and under such regulations, as the Congress shall make." Here then, is the ground, and the only ground, on which we can sustain an appeal. If Congress has provided no rule to regulate our proceedings, we cannot exercise an appellate jurisdiction; and if the rule is provided, we cannot depart from it. The question, therefore, on the constitutional point of an appellate jurisdiction, is simply, whether Congress has established any rule for regulating its exercise?
This case speaks directly to a case in equity, and demonstrates that Congress can, at least in some disputed areas limit the jurisdiction, if not the jurisprudence, of the federal courts.
Legal scholars that question the plenary power of Congress to limit the jurisdiction of the federal courts generally make a similar set of arguments.109 Firstly, that Congress cannot
1083 U.S. 321 109A notable exception is McKinley (2011), who argues that the Fourteenth Amendment serves as an explicit
196 strip jurisdiction if doing so would 1) make it so that “a constitutional right would be made unavailable”, 2) undermine the separation of powers by gutting the “effectiveness of the judicial branch of government”, or 3) “require an improper result in a pending controversy”
(Jones 1994, 1894-5). In each of these scenarios, however, the case law is rather sparse (see
Rice 1982), and nothing in the plain language of the Constitution seems to inhibit Congress.
However, even if these modest limitations were to be enforced by the Courts and observed by
Congress, the ability of Congress to place restrictions on the jurisdiction of the federal judiciary is still quite expansive.
Yet, there are few examples of Congress exercising this power as a way to curtail judicial discretion. The general consensus is that when Congress has passed new regulations on federal court jurisdiction, it has done so to prevent a proper administration of the law; which is to say that Congress expects federal judges to abide by the law, and that is what they do not want. The prime example is Ex parte McCardle110, in which the habeas corpus jurisdiction of the Supreme Court was curtailed in direct response to a specific case that
Congress believed would lead the Court to invalidate the Military Reconstruction Act of
1867. It was presumed that if the habeas case for McCardle, a polemicist of reconstruction, were reviewed by the Supreme Court that Congress' legislative agenda pertaining to reconstruction would be in jeopardy. That the motives of Congress were so clear and the
Supreme Court acquiesced anyway says a great deal about the precedent for judicial deference in this area of the Legislative branch's constitutional authority.
What we see more often is Congressional expansion of the Court's jurisdiction and
constitutional limit on Congress' authority to make shrink federal court jurisdiction in a number of important areas of the law. 11074 U.S. 506
197 discretion. Perhaps the most important action along these lines is the Judges' Bill111, which limited the types of cases for which the Supreme Court had mandatory appellate jurisdiction.
Paradoxically, competing visions of the role that the federal courts should play lead to overwhelming support for the bill. Those who wanted to expand the influence of the Court supported the implementation of discretionary jurisdiction because it would “extend federal judicial power”, while others viewed discretionary jurisdiction as a means of “trimming and focusing federal judicial power on fewer matters” (Brogden 2017, 18). With the exception of the Supreme Court's original jurisdiction, all vestiges of mandatory appellate jurisdiction have been stripped away.
Juries, Precedents, and Procedure
The previous mechanisms of restrained discussed in this section could be categorized as restrains from without, which is to say that they represent the methods available to the other branches of government for providing accountability to the judicial functions of the federal courts. In addition to these, there are a number of internal mechanisms, some formal and some informal, that also limit discretionary equity jurisprudence; juries, precedents, and federal rules of procedure. Though the evidence suggests that these internal, largely self- imposed, limitations on equity are rather ineffective, they merit a brief discussion because they were referenced during the drafting and ratification debates at the founding and do provide a structure for a sort of self-restraint.
The people's check on judicial power, juries were substantially expanded during the
American colonial period, and the subsequent states continued this trend well into the new
111The nicknames for the Judiciary Act of 1925
198 Republic. That the Constitution did not provide for juries in non-criminal cases was a ubiquitous point of contention in the state ratifying debates, and directly lead to the adoption and ratification of the Seventh Amendment. However, the incorporation of juries in federal equity cases were a different matter that received somewhat less attention, but was notably omitted from the guarantee of the Seventh Amendment. This might be even more curious as several states had embraced equity juries during the expansion of juries more broadly (Blinka
2005, 36).
Hamilton was prominent among those opposing juries in equity cases, and he presented his argument for his position in Federalist No. 83. His primary argument against equity juries was that equity cases were too legally complex for juries of laymen, and that they “require often such long, deliberate, and critical investigation as would be impracticable to men called from their occupations, and obliged to decide before they were permitted to return to them” (Hamilton, Madison, and Jay 2003, 504). Arguments like these, often championed by prominent men with legal training, carried the political debate, and no guarantee of juries in equity suits was established. However, juries may play some role in restraining the ability of judges presiding over cases at law from straying into the jurisprudence of equity.
English equity jurisprudence developed its own set of precedents that began to limit the ability of Chancery courts to perform their role of providing specialized justice in special cases. Conformity to precedent is what made the common law courts predictable and efficient, but the same type of conformity undermines the aims of equity courts. It is inevitable that judges would develop certain heuristics to enable them to adjudicate cases
199 more efficiently; however, the judiciary's commitment to stare decisis should not be overestimated. Though judges often do conform to precedent, there is no explicit prohibition against judges articulating some differentiating principle and claiming to be adjudicating a case in new legal territory.
The more informal manner of equity jurisprudence lends itself to a less rigid application of stare decisis, and makes it more difficult for observers to tell the difference.
That being said, some scholars argue that what is thought of as a the more rigid application within the common law is still quite flexible to the adept student of the law versed in “the art, or the game” of “distinguishing” (Scalia 1997, 9). Distinguishing is essentially the determination of the judge as to the breadth of applicability of the holdings of a potential precedent, and the common law developed through this process. In part, distinguishing precedents from the case before a judge is dependent on the particulars of the case, and so a fundamental difference between cases at law and cases at equity is that there is a presumption of distinguishability in the later type of cases that does not exist in the former.
The watershed point for congressional control over judicial procedures came when
Congress passed the Rules Enabling Act in 1934. The Enabling Act bestowed on the
Supreme Court the authority to “promulgate rules of procedure in civil actions at law”
(Burbank 1982, 1024), so long as “Such rules shall not abridge, enlarge or modify any substantive right”112; and in so passing, Congress largely relinquished it's role in defining the processes and procedures of the federal courts. Though this deference has been questioned in the aftermath of Congress' suspension of changes to the Federal Rules of Evidence proposed in 1973, many of the rules changes were clearly affecting substantive rights and beyond the
11228 U.S.C. § 2072
200 purview of the Enabling Act to begin with (Staszak 2010, 177).
To date, Congress has not reclaimed its constitutional authority to regulate federal procedures in any meaningful way113, and since 1934 equity procedural rules have come to dominate the Federal Rules of Civil Procedure (Subrin 1987). As such, I consider the procedural rules of the federal courts to be largely a restraint from within rather than from without. Though Congress has become more interested in the federal rules of procedure over the past few decades, the bulk of the rules, specifically their equity influence, are dominated by the Courts themselves. The realization that these rules go beyond simply what is “purely procedural” has lead both Congress and the Courts to leave a great deal of discretion imbedded in the rules (Staszak 2010, 188-9).
Life tenure, the toothlessness of impeachment, and the appointment process work in tandem to incentivize the political branches to leave discretionary power in the hands of the judiciary. Though somewhat of a double-edged sword, wide federal court jurisdiction provides the partisan and ideological judges of a party the tools to maintain a semblance of resistance against the political branches when the political winds change. Therefore, those mechanisms which were arguably intended to limit the discretion of federal judges, have largely been ineffective. The expansion of rules autonomy, in particular, has allowed the
Courts to alter many of the fundamental organizational norms of legal institutions at the ratification of the Constitution, and, in so doing, empower a judiciary of merged equity jurisdiction and jurisprudence to exercise the kind of more extensive discretionary latitude
113Which is to say Congress has merely enforced the limitations built into the Enabling Act, rather than reclaiming the responsibility to promulgate the rules themselves.
201 that was feared by constitutional opponents.
CONCLUSION
The discretionary nature of equity jurisprudence that preceded the written constitutional trends of the 19th and 20th Centuries was largely consistent with the forms of government and politics of their time and place. Which is to say that the shortcomings of the law were overcome by way of a similar discretionary manner that the laws themselves were crafted and administered. In part, the extent to which the formal and informal modes of governing were largely driven by discretion is what prompted the constitutional revolution.
However, many of the informal and discretionary solutions to lasting political problems were inconsistent with new constitutionalism.
The constitutionalization of legal equity generated new problems for a this new system of governance. The solution to an abundance of discretion and power seemed to be limited constitutional government and the rule of law. However, courts of equity found themselves on unstable ground as the American states started to tackle the problems of the old institutions. The balancing of foundational concerns such as the rule of law with those of good governance and justice is difficult. Incorporating equity into the Constitution was viewed as a means of limiting equity; instead, the development of the federal judiciary has expanded the procedural, jurisdictional, and jurisprudential role of equity throughout the courts, and created persistent problems for American constitutionalism.
202 Chapter 8:
Conclusion
There will inevitably be circumstances for which constitutionally limited governments have no power to address, but for which government action will be more desirable than the absence of government action. Each nation, therefore, must find a way to empower the state to pursue the ends for which it was created and at the same time provide for some means of accommodating the unpredictable. The framers of the Constitution, with the assent of the people of the founding generation, addressed this issue by incorporating mechanisms with extensive flexibility into the Constitution, but with an assortment of institutional and political checks on the exercise of that flexibility. These mechanisms were the prominent tools within the British tradition for dealing with exigent circumstances, and were familiar to Americans both before and after the Revolution. For many of the framers, the emphasis that was placed on having a government of enumerated powers necessitated the constitutionalization of these mechanisms in order that their inevitable use might be limited by the institutional apparatus the Constitution created.
The problem with these mechanisms is that they do not fit well into the broader scheme of inter-branch tension and they are not consistent with fundamental constitutional principles. While these powers could potentially be arranged in a manner that is faithful to the system of checks and balances that Madison talks about in Federalist No. 51 (Hamilton,
Madison, Jay 2003, 317-322), the framers did not do this and it is likely that such an arrangement would undermine the very utility they bring to the national government. Many
203 states, for example, have developed a shared pardon power that functions well enough for offenders against state laws, but the lack of direct checks on the presidential pardon power were made for specific functional reasons. Over time, the indirect, general checks in place to curb executive abuses have proven insufficient.
I have argued that these indirect checks are undermined by the fact that these powers are explicitly granted to a specific constitutional entity. Is a president ever going to be impeached for exercising the enumerated executive power of granting pardons or reprieves?114 Will any law passed by Congress and signed by the president be overturned by the Courts because the internal procedural rules were bent, changed, or ignored? Does it seem likely that a Supreme Court Justice will be impeached for deciding a case at law using equity reasoning? The preceding chapters furnish evidence that such enumerated powers are often afforded substantial deference by both the coordinate branches of government and the people. Over time this deference has lead to abuse and political outcomes that were likely not anticipated by proponents of the Constitution.115
As the cases covered in the earlier chapters show, the powers and institutions from which the framers selected had developed substantially since their inception in English political and legal history; however, that developmental trend slowed substantially at the very moment that the constitutional thought of Americans took a punctuated leap ahead. The distinctive courts of common pleas and chancery, with correspondingly distinct sources of authority and legitimacy, were consistent with the institutional division of sovereignty in 18th
Century Britain. The more substantially independent judiciary of American constitutionalism
114A case could be made that a self-pardon would do the trick, but it seems likely that such a president would be on his way out regardless of his decision to self-pardon. 115Though some Anti-Federalists concerns turned out looking eerily prescient.
204 was inconsistent with this same division. The list of useful yet inconsistent institutional organizations left the framers of the Constitution with limited options. While the states provided a variety of institutional experiences, the record indicates that the utility of a power was more important than qualms about changing constitutional ideals.
Despite the substantial scholarly focus on the degree to which constitutional provisions are to be interpreted, the problem of constitutionalized discretion provides a much more direct way of looking at the debate. If we were to accept that constitutional provisions were open to expansive interpretation116, then constitutional provisions would be very similar in practice to the powers I have analyzed in the preceding chapters. Which is to say that the constitutional checks put in place by the framers would be undermined and that abuses would benefit from the same type of presumption of constitutional sanction.
116Think of the “living constitution” and “unwritten constitution” lines of thought espoused by Strauss (2010), Tushnet (2010), or Amar (2012).
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