Recently, I did a podcast interview on Constitutional Amendments and the Presidential Election. The interview, which was conducted by the National Constitutional Center, also featured David Strauss of the University of Chicago. Jeff Rosen, the President of the National Constitution Center and a Professor at George Washington Law School, was the interviewer.
It was an interesting discussion, which focused both on the constitutional amendment process and the impact that Hillary Clinton and Donald Trump might have on constitutional change if they were elected.
It was fun discussing these issues with David Strauss, because his views are so diametrically the opposite of mine. Many nonoriginalists resist being described as living constitutionalists. Strauss embraces it. He takes the opposite position of mine on a whole range of specific issues, which follows from his more general approach.
Strauss believes two main things about constitutional change. First, he claims that the actual practice of constitutional change occurs through judicial decisions and other governmental actions. In fact, he believes that constitutional amendments are largely irrelevant. Second, he believes that constitutional amendments are not generally a good way generally of changing the Constitution. The way that is actually practiced – where judges follow a common law like system – is better.
In two recent posts, I have explored the effects of nonoriginalism in the separation of powers. Here I want to mention several ways in which such nonoriginalism has contributed to the increasing polarization of our society, by permitting the political branches to avoid having to compromise.
First, as I argued in one of these posts, the delegation of legislative authority to the President leads to polarization. Such delegations allow the President to decide on policy rather than having the Congress and the President do so through the passage of laws. In the latter case, compromise would be needed to pass laws, which would lead to less polarization.
Second, the Supreme Court’s updating of the Constitution through nonoriginalist interpretation leads to polarization. With such updating, a majority of the Court can allow one of the political parties or factions to get its way in constitutional law. By contrast, without such updating, constitutional change would require the passage of constitutional amendments, which require compromise to secure the supermajorities necessary to pass them.
In a recent post, I wrote about how allowing the President to initiate war-making did not merely promote more wars, but also caused the Congress to become infantilized, not having an incentive to take responsibility for decisions about war. This problem results from not following the Constitution’s original meaning in the separation of powers area.
A distinct, but similar problem occurs in the area of Congress’s delegation of legislative authority to the executive branch – where once again departures from the original meaning concerning the separation of powers have problematic consequences. Here Congress actually takes the action of delegating legislative authority to the executive, in large part because this allows Congress to avoid political responsibility for the regulatory decisions that the agencies take. These delegations, however, violate the Constitution’s requirement that the Congress make the basic policy decisions.
While most criticisms of nonoriginalism focus on the creation of constitutional rights that do not exist in the document, the failure to follow the original meaning concerning the separation of powers should receive more attention. In particular, the failure of the courts and, in areas where the courts do not typically decide matters, the political branches to enforce the original meaning has had serious harm.
Consider the requirement under the Constitution’s original meaning that Congress authorize American wars (except where the U.S. is attacked). There is a strong case to be made that Constitution’s original meaning imposes this rule. Despite claims of presidents who seek to engage in hostilities without congressional authorization, the Constitution’s original meaning would work well. By contrast, under our existing “constitutional practice,” presidents are usually able to engage in war without congressional authorization, as President Obama did in Libya. And this not only allows presidents to fight wars that the country is not behind, but also undermines the entire system of responsibility that the Constitution establishes in this area.
This might seem like an odd question, but a journalist recently asked me my opinion about the matter. It turns out that Article II of the Constitution refers to the President as a him. For example: “He shall hold his Office during the Term of four Years.” If this “he” meant only a male person, there would be a strong argument that the President had to be a male.
But I believe that this interpretation is mistaken. It is my understanding that the term “he” at the time of the Constitution had multiple meanings or usages. While one of those was to refer to a male person, another was to use the term “he” to mean “he or she.” Under that usage, a female President would be constitutional.
The same issue arises as to members of Congress as well. For example, Article I, section 2, clause 2 provides “No person shall be a Representative who shall not have attained to the Age of twenty-five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.” (Emphasis added.)
There are strong reasons for preferring the “he or she” meaning over the “he” meaning. Most importantly, the Constitution contains explicit qualifications for serving in Congress and in the presidency. These are normally thought to be the exclusive qualifications set by the Constitution. Reading in another qualification – maleness – would thus conflict with the constitutional structure.
Before I was waylaid to discuss the Speaker of the House issue, I had been writing a series of posts on a nonoriginalist interpretation against birthright citizenship. See here (and for two earlier posts here and here. My point has been to show that there is a strong nonoriginalist argument against birthright citizenship (even though the original meaning cuts the other away). Since nonoriginalism is accepted by many as the proper way to interpret the Constitution, these nonoriginalists cannot reject this interpretation as illegitimate.
In a prior post, I set forth an interpretation of “subject to the jurisdiction” of the United States that is different than what I regard as the original meaning. Under this nonoriginalist view, the phrase means subject to the exclusive jurisdiction of the United States. Since the children of parents who are citizens of another country, including illegal immigrants, are subject to the jurisdiction of those countries, those parents and children would not be subject to the jurisdiction of the United States. Interestingly, this interpretation is very similar to those who claim that the term only covers those who do not have allegiance to another nation.
Here I want to offer three nonoriginalists arguments for this interpretation – the type of arguments that are typically made by nonoriginalists. First, there are strong nonoriginalist reasons for not following the original meaning as to birthright citizenship for the children of illegal immigrants. At the time of the 14th Amendment, there was not an illegal immigrant issue, since there were essentially no federal laws restricting immigration. Thus, the Framers of the Amendment were unlikely to have had that issue in mind. Nonoriginalists typically argue that the decisions made by the Framers are more relevant when they addressed the actual issue and less relevant when they failed to anticipate a matter. Thus, the original meaning is not weighty.