Author: Joseph Blocher


A Few Thoughts on the Commerce Clause Analysis

Like Gerard, I’m struggling to see how the Chief Justice’s Commerce Clause analysis (what Justice Ginsburg calls his “essay”) is anything but dicta. It’s entirely likely that I’m missing something, but I’ve repeatedly read the sentence “[i]t is only because the Commerce Clause does not authorize such a command that it is necessary to reach the taxing power question,” and I just don’t understand it. Since the taxing power is enough to uphold the ACA, the question should be whether it’s necessary to reach the Commerce Clause question, not the other way around.

As part of his explanation for the extended Commerce Clause analysis, the Chief Justice says that the law “reads more naturally as a command to buy insurance than a tax.” There are at least a few ways to understand this. One is that the government primarily defended the law on Commerce Clause grounds, and so those must be addressed first. But that isn’t a very satisfying explanation. If a party presents two independently sufficient arguments, apparently relying more heavily on one than the other, the Court doesn’t have to reject the first before reaching the second. To take just one recent example, in McDonald v. Chicago the petitioners argued “primarily” that the Second Amendment should be incorporated through the Privileges or Immunities Clause, and only “[a]s a secondary argument” that the Due Process Clause was sufficient to do the work. (slip op. at 5) The Court nevertheless saw “no need to reconsider” the Slaughterhouse Cases‘ gutting of Privileges or Immunities, (slip op. at 10) and rested its decision on Due Process instead.

Another reading is that the Court must address the most “naturally” appearing constitutional issues before turning to other, more unnatural, questions. But that doesn’t seem to sit well with most canons of constitutional interpretation or statutory construction, not to mention the basic idea of judicial minimalism. I suppose constitutional avoidance works differently in cases where multiple constitutional issues are presented than in cases where constitutional and non-constitutional grounds for decision are apparent. See Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring) (“The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.”) But isn’t the basic idea behind the avoidance canons to … well, avoid deciding constitutional issues?

As far as I can make out, the heart of the Chief Justice’s rationale is that the order in which he decided the issues was necessary, and that the taxing power analysis somehow draws some substantive support from the failure of the Commerce Clause argument. As he says: “Without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction.” So the taxing power analysis wouldn’t have stood on its own, had the government not made the Commerce Clause argument as well? Perhaps I’ve just been staring at this opinion for too long, but I’m genuinely confused.


Should be, and now is …

… reaffirmed?

This is pure speculation — the coin of the realm for at least another day — but if you’re at all familiar with major constitutional cases, I imagine that you probably filled in the word “overruled.” And for good reason — as far as I can tell, that’s the only word the Court has ever used to complete the phrase “should be and now is ….” My admittedly brief search has turned up seven examples, including such luminaries as Darby, Lopez, Seminole Tribe, Lawrence, and Citizens United. (A full list of cites is below the jump.)

Given the Court’s apparent proclivity for using the phrase in major, doctrine-altering constitutional decisions, it might well be making an appearance in the next 24 hours. While our collective thumb-twiddling reaches ever-higher rpm in the lead up to the health care decision, does anybody have an explanation for this odd locution? Does it ever pop up in any other context?

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Ethical Limits on a Market for Sovereign Territory

Let me say again that I am extremely grateful for the thoughtful feedback I’ve gotten from so many of you on the idea of an interstate market for sovereign territory. By floating the idea, I obviously don’t mean to endorse it without qualification, and many of you have raised serious objections in comments or emails. Many are what I think of a legal limits on the market. A greater proportion are what I’ve called “political” reasons, including the general conclusion that the market is inactive because it’s not in anyone’s interest to participate.

But even taken together, those two sets of arguments don’t seem sufficient to explain the total (so far as I can tell) absence of monetary transactions between states for sovereign territory. Would the constitution or politics really prevent the Carolinas from settling their relatively minor border dispute with a cash transfer, as a commenter on my first post suggested? Maybe major sales — stretching California to Lake Erie, as another commenter put it — would be constitutionally or politically infeasible, but what about smaller, marginal adjustments?

A final set of answers — inspired, I should say, by my colleague Kim Krawiec and her work on taboo trades — lies in the concept of market inalienability. That is, even if sovereign territory can be “given,” or traded for other territory (as it essentially is, in some border negotiations), it cannot be sold. Again, the question is why.

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Political Ramifications of an Interstate Market for Sovereign Territory

In my last post I tried to sketch some of the major constitutional considerations that would arise if one state were to purchase sovereign territory from another. Those considerations are weighty, to be sure, but they don’t seem sufficient to explain the total lack of an interstate market for sovereign territory. Perhaps part of the explanation lies in politics.

On the one hand, it’s not too hard to imagine some significant political upsides. A simplified Coasean story suggests that territory should be purchased by the state that values it the most, which seems like a good thing. And because a market for sovereign territory would make borders more fluid, it might also open up opportunities for Tiebout-like movement of citizens seeking a more congenial state government. (More precisely, it would permit the government to come to the citizens, rather than the other way around.) This could, in turn, inspire a beneficial competition between states seeking to acquire or retain citizens and valuable territory. Likewise, states that find themselves enmeshed in border disputes could resolve them with side-payments, as private landowners might, or simply find mutually beneficial ways to sell or adjust existing borders.

On the other hand, the political downsides of such a market would also be considerable. Some of those costs are the kind captured by ordinary politics; they could therefore help explain why the market is inactive. Other costs, however, represent potential political failures and might demand some external corrective.

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Constitutional Limits on the Inter-State Market for Sovereign Territory

On Friday, I asked why there seems to be no inter-governmental market for sovereign territory, at least in the United States. Many of the thoughtful comments to the post suggested important political considerations that might prevent the market from clearing, particularly in the international context. I’ll try to address some of those considerations in my next post, but first I want to focus on the domestic context, and specifically on what limits the Constitution might place on inter-state sales of sovereign territory.


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The Market for Sovereign Territory

I’m thrilled to be back at Co-Op, and I look forward to blogging about a few rough ideas that seem to be shaping up as summer research projects. The first of them starts with a story.

Once upon a time, sovereigns bought and sold themselves to one another. Specifically, they purchased sovereign territory. The United States, to take the easiest example, looks the way it does not just because of military conquest, but because of bold real estate deals, including most notably the Adams-Onis Treaty, the Louisiana Purchase, and the Alaska Purchase. Occasionally such sales were tied up with military action, as with the Treaty of Guadalupe Hidalgo, which ended the Mexican-American War, transferred the Mexican Cession, and committed the United States to pay Mexico $15 million “[i]n consideration of the extension acquired.”

Even within the United States, sales of sovereign territory were not unheard of at the time of the Founding. The Constitution’s Enclave Clause specifically refers to the federal government’s power to “purchase[]” and essentially govern “Places” within states. And the states themselves often altered their borders, sometimes for economic reasons. In 1784, for example, North Carolina ceded 29,000,000 acres to the federal government to help pay back the nation’s Revolutionary War debt–a generous but ill-fated gesture that led to the short, unhappy, and largely forgotten life of the State of Franklin.

Somewhere along the way, the market for sovereign territory seems to have dried up, at least as far as I can tell. To be sure, there is still an active market for proprietary interests in public land; the federal government, after all, owns approximately 30% of the nation’s land. But borders–sovereign territory, rather than property–do not seem to be for sale, especially domestically. Why?


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Filibuster Reform

It’s no secret that the past few years have seen a spectacular increase in the use of filibusters, which as currently practiced effectively permit a determined (or even semi-determined) super-minority to stop legislation in the Senate simply by announcing an intention to oppose it. For Senators who want to stop or slow the pace of legislation — as opposed to, for example, pushing alternatives — the filibuster is an especially attractive mechanism, because the cloture process itself is so time-consuming. The message and the medium become pretty closely intertwined.

It’s unsurprising, then, that the Senate is set to consider filibuster reform next week. Since I won’t be here to blog about it, I thought I’d highlight two particularly interesting recent articles on the subject. Both of them, it turns out, have connections to Concurring Opinions.

The first is Josh Chafetz’s The Unconstitutionality of the Filibuster, 43 Conn. L. Rev. __ (2011), which further develops some of the arguments Josh made earlier this year in his debate with Mike Gerhardt about the filibuster’s constitutionality. That debate was highlighted on Co-Op in April. Josh argues that the filibuster is unconstitutional, at least as currently practiced, and that conscientious Senators (not courts) are obligated to reform it. The second article is Gerard’s Reforming the Filibuster, 105 Nw. U. L. Rev. 1 (2011), which Co-Op readers got a sneak peek of back in March. Gerard argues among other things that the filibuster should be suspensory — that is, that forty-one Senators should be able to delay, but not block, disfavored legislation. Both articles are timely, insightful, and great reads to boot.

That’s it from me — I even resisted the impulse to title this post “The Right of the Senate Not to Pass Laws.” Many thanks to everyone for having me this month, and Happy New Year!


A Mental State Requirement for Asserting Constitutional Rights?

A few days ago I asked about the constitutional provenance of “rights not to,” and got some very thoughtful and probing comments in return. While I was trying to respond to them, it occurred to me that there might be a related issue worth exploring — namely, whether there is or should be a mental state requirement for asserting constitutional rights. If I accidentally or involuntarily speak (perhaps I have a disability that makes it difficult or impossible for me to control myself) and am prosecuted for what I say, can I claim the protection of the First Amendment? If I inadvertently engage in an illegal religious practice (maybe I didn’t know what I was doing, or didn’t know it was a religious practice), can I invoke the Free Exercise Clause? If a gun is planted on my person or property and I’m prosecuted for possessing it, can I challenge the law on Second Amendment grounds?

I imagine that most people’s instinct is to say yes to all of those hypotheticals. That may well be right, but it’s not necessarily obvious: If even an involuntary or unknowing outburst counts as “speech,” then the bounds of the First Amendment are enormously expansive, particularly if involuntary or unknowing non-speech actions count as “expressive conduct.” Maybe the answer is simply that if the government is going to prosecute you for doing something, then fair play demands that you get the same constitutional protections as anyone who does that action voluntarily (and therefore, presumably, more culpably). Or maybe the answer varies with the particular constitutional verb at issue. And even if there is a mental state requirement for asserting constitutional freedoms, the next question would be what the required mental state should be — purposeful, knowing, or what have you.

Obviously these questions are only relevant for constitutional rights that relate to actions, and since we don’t live in a world with many strict liability crimes, they aren’t going to be relevant very often — a person can presumably avoid conviction for an accidental or involuntary act by showing that she lacked the requisite mens rea. But thinking about them may help clarify (or complicate) the relationship between action, intention, and constitutional rights.


Rights Not To

I’m currently working on a paper that explores the possibility of a Second Amendment right not to keep or bear arms in self-defense. If such a right exists, it might call into question the constitutionality of various laws that make it difficult or impossible for people to keep guns out of their homes, off their property, or otherwise out of their constructive possession. But in writing the paper, I’ve been struggling with a broader question: When and why is a constitutional right to do something accompanied by a constitutional right not to do that thing?

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Federalism and the SAGs’ Brief in McDonald

A few weeks ago, before I got caught up with finishing the semester and creating an exam, I wrote up a post exploring the role of State Attorneys General (SAGs) as agents of popular constitutionalism. In it, I asked whether that role is complicated by whatever obligations SAGs have to represent the interests of the states qua states, as opposed to the interests of “the people.” I used the SAGs’ McDonald v. City of Chicago amicus brief as an example, since it argued for incorporation of the Second Amendment and therefore seemingly against the interests of the states, while advocating a right that three-quarters of the American people support. Since I’m presently trying to avoid grading the aforementioned exam, now seems like a perfect time to revisit the first of those premises — namely, that the argument for incorporation in McDonald cannot be justified on the basis of state interests. The SAGs themselves argued that it could, though I have a hard time seeing how.

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