Whatever liberals don’t like is unconstitutional

From the filibuster to originalist interpretation of the Constitution, liberal scholars increasingly insist that their point of view is privileged, even when it changes, and even when they’re making up the facts and obfuscating themselves.  Translation:  Whatever positions liberals hold at the moment are the only viable positions, everyone else is either lying, misinformed, or insane.

I understand I’m painting with a rather broad brush here, but two recent legal theories floated by liberals seem to suggest their position on any issue is the de facto constitutional standard, regardless of precedent, the Founders intent, common sense, or their past position on these issues.  The two issues in question are unrelated:  The filibuster and the emerging conservative legal theory of nondelegation, more on that in a moment.

First, the filibuster.  According to Erwin Chemerinksy and Burt Neuborne writing for the Los Angeles Times, the over 150 year old Senate institution is, in fact, unconstitutional.  Even if you set aside how they suddenly arrived at this decision after Democrats heavily relied on the filibuster under the previous two Republican presidents, how is it remotely possible that a procedure first invoked in 1837, one that has survived a Civil War, two world wars, pandemics, financial crises, and more, is now suddenly forbidden under the Constitution?  Has every Senator who swore to uphold the Constitution during this period breaking their oath every time they supported the practice?

They are basing their claims on the principle of “equal representation in voting.”  “Under the 60-vote rule, 41 senators representing about a third of the population can outweigh 59 senators representing two-thirds. This situation surely violates the principle of equal representation in voting — for example, the ‘one person, one vote’ rule that the Supreme Court long ago applied to state legislative and congressional districts.”

Of course, simply saying “surely” violates doesn’t make it so, and we’re left with little more than strong words with nothing to back them up.  First, the structure of our government as established is a representative republic.  The Senate is conceived as representing the states themselves, states which have legal standing and rights under the terms of the Constitution, meaning they are as equal as the people.  The “one person, one vote” principle applies to the process of electing representatives, not what the representatives do in office or the rules they choose to conduct the People’s business

In this case, each citizen in each state gets one vote for the Senator of their choice, and the process is equal within every state.  The authors, of course, know this.  They proceed to note that “Everyone agrees that the text of the Constitution does not allow for simply giving California more senators than Wyoming. Nor can the Senate’s lack of representative fairness be cured by adopting internal Senate voting rules. But that does not mean the Senate has authority to create even more unfairness than already exists.”

Once again, it’s tough to make sense of this:  If the Constitution supports what they are characterizing as a “lack of representative fairness” in its conception, then how can the “one person, one vote” principle apply in the way they expect it to?  That principle doesn’t exist in the Constitution proper, the authors are tacitly admitting it themselves by acknowledging there is an inherent lack of fairness in the system to begin with.  The Founders likely wouldn’t see it that way, however:  They were well aware the states had different populations and intentionally set up the Senate to represent the states, purposely giving the smaller states an equal voice in the government; they even considered a proportional representation and rejected it.  Further, how do they then make the jump from the Senate has the authority to be unfair, but not that unfair?

They believe this reasoning rests in the Constitution only specifically identifying a few cases where the super majority threshold is required.  Article I “sets forth supermajority votes in the Senate only in narrowly defined cases like ratifying treaties, overturning presidential vetoes and convicting impeached officials. The strong implication is that, unless the action falls into these narrow exceptions, the Senate should operate by majority rule. Article I says nothing about a general supermajority requirement for the enactment of all legislation in the Senate.”

This is where they might be on firmer Constitutional grounds, but even then the situation is far murkier than they present it.  Article I says nothing about a majority being required for anything, the only claims it makes are regarding a two third majority for impeachments and that the Vice President can cast a vote if the rest of the body is “equally divided.”  Section 5 mentions that a “majority” is required as a quorum to conduct official business, but says nothing about majority votes.  It further says that “Each House may determine the rules of its proceedings.”

Section 7 notes that “Every bill shall have passed the House or Representatives and the Senate,” but again makes no claim about what passage entails.  It does note that a two third majority is required to override a Presidential Veto.  Otherwise, no mention is made of a simple majority or other kind of vote.  In short, it is possible to see the simple majority as implied, but certainly not strongly so, and there are other clauses such as each House making its own rules that more strongly imply the Senate can conduct its business as it wants.

There is another problem with the “strong implication” principle, however.  Namely, would either  Mr. Chemerinksy and Mr. Neuborne apply that standard to other matters of Constitutionality?  For example, it is strongly implied that the “general welfare” clause only applies to the enumerated powers.  The preamble to the Constitution states, “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

The Constitution then proceeds to lay out the specific powers, implying that the preamble should only apply to those powers.   The general welfare principle, however, has been interpreted far more broadly in the past century.  Today, the clause has come to mean something distinct from the enumerated powers, a more general tax and spending power that could be used to promote the general welfare.  This is how we arrive at Obamacare.  Are they willing to strike that down as well based on their own arguments?

What about early voting and absentee ballots?  The Constitution clearly states how the President is elected, “The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.”  Is it not strongly implied that all voting must be on the same day?

Of course neither Chemerinksy or Neuborne would agree with these positions, making it obvious that their objective is nakedly political.  They are liberals and want more liberal legislation to pass.  In fact, they believe that Vice President Kamala Harris can declare it unconstitutional herself.  Judicial Review, however, is the prerogative of the Supreme Court, and surely both of the authors no there is virtually no chance the courts are going to get involved in the day to day business of an equal branch of government.

The filibuster is not the only target of liberals ire.  Last week, Columbia Law Review published a “scholarly” article on Delegation at the Founding.  In it, Julian Davis Mortenson and Nicholas Bagley claim that the conservative legal theory of nondelegation has no basis in history, none.  For those unfamiliar, the nondelegation doctrine holds that certain aspects of the administrative state are unconstitutional.  Adherents to the doctrine believe that Congress is not empowered to create an autonomous body like the Environmental Protection Agency that issues regulations with the force of law without a vote in Congress or signature by the President.

The question is whether this doctrine is grounded in the thinking of the Founders, meaning is the nondelegation doctrine an originalist position?  Mr. Mortensen and Mr. Bagley put it this way in an interview with Slate.com, “You can be an originalist or you can be committed to the nondelegation doctrine. But you can’t be both.”  In other words, conservatives are either lying or obfuscating when they claim nondelegation is an originalist interpretation, meaning the Founders would be fine with the EPA and OSHA and all of the other bodies that make up the executive branch.

Is this fair?

Personally, I don’t think so, but I admit this is much more shaky ground than the filibuster.  It is true that the Constitution delegates a lot of things, from the rules that govern Congress to the makeup of the President’s cabinet to the size of the Supreme Court.  At the same time, the Constitution is pretty clear on the powers reserved to the respective bodies and only those bodies.  For example, it explicitly states that “The Congress shall have the Power To Lay and Collect Taxes, Duties, Imposts, and Excises.”  It also clearly states that Congress has the power “To make all Laws which shall be necessary and proper,” and describes the process for making laws.  These powers are not shared by any other body and are expressly reserved for Congress.

The nondelegation doctrine is built on these assumptions, outlined clearly in the Constitution.  The idea is pretty simple:  Only Congress can pass laws and set taxes, but the modern regulatory regime does exactly that, merely calling them regulations and fines.  No taxation without representation turned upside down.  Think of it this way, could Congress create a body that delegates all the powers of Congress?  Or create a body that delegates the powers of the Supreme Court or Executive Branch?

I don’t even think Mr. Mortensen and Mr. Bagley would make that claim, hence the doctrine of nondelegation is at least partially supported by the Founders.  In addition, from the originalist perspective, it’s fair to consider what kind of government the Founders imagined.  Given that Thomas Jefferson was complaining about bureaucracy at the State Department when it numbered less than 40 employees, it’s pretty fair to think they couldn’t imagine anything like the modern regulatory state with millions of Federal employees, much like they couldn’t imagine modern technology.

It’s also interesting to note that Mr. Mortensen and Mr. Bagley base at least some of their thinking on the idea that the nondelegation doctrine didn’t appear until 1935. “Nondelegation is a judicially created doctrine that has had exactly one year of actual existence, 1935, over the 2½ centuries of the American republic.”  Surely, they understand this is a straw man if ever there was one:  The executive branch didn’t contain anything resembling a modern, delegated agency prior to the New Deal, meaning there was no need for any doctrine about them.  It would be thirty more years after the New Deal to have anything resembling the current structure.

Why would anyone have a doctrine about it before then?  There was no need to even ask the question given the agencies in question would not exist for a hundred fifty years after the Founding.

They persist from there, insisting that “if nondelegation was a thing, you should expect to find direct evidence of it” from the Founders, but again the Founding government was tiny compared to what we have today.  It’s reasonable to assume they didn’t talk about it simply because they didn’t imagine it, and they believed the system of enumerated powers was clear as to who was responsible for what.  Mr. Mortensen and Mr. Bagley reject this position, claiming that proponents of nondelegation believe the “fact that it has ‘vesting clauses,’ which vest power in the different branches of government, changed everything,” but “If that were true, you’d think the founders might have said so at some point during the writing and ratification of the Constitution, which had highly learned debates about its meaning.”

Again, this is more than a little logical leap.  If they were vesting powers in certain bodies, why would they bother debating whether that body could simply invest those powers in something else?  Should they also have debated whether that second-tier body could vest it’s powers in yet a third body?

In my opinion at least, it seems clear that the concept of vested powers as detailed by the Founders requires those powers to only be vested in one place and precludes them from being transferable.  This takes on special meaning when they added the 10th amendment, reserving powers for the states.  If the Founders were nothing else, they were very clear about where power resides and it seems pretty logical to conclude they would not have agreed that Congress could delegate its law and tax power however they wanted.

Either way, I’m willing to concede this is a grey area, subject to debate, but that’s not what they’re claiming:  They’re claiming that conservatives are intentionally lying and that the nondelegation doctrine has no basis in the Founding.  That’s a stretch, an obviously politically motivated stretch, same as the nonsense about the filibuster being unconstitutional.

Why am I surprised?  Actually, I’m not:  It’s been true for a while now, whatever positions liberals hold at the moment are the only viable positions, everyone else is either lying, misinformed, or insane.