Taking text and structure seriously: Reflections on free-form method in constitutional interpretation

Harvard Law Review

Volumn 108, Issue 6, 1995, Pages 1223-1303

  Tribe, Laurence H ^a  

^a HARVARD LAW SCHOOL   (United States)

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[No Author keywords available]

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EID: 11944274591     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: 10.2307/1341856     Document Type: Article

References (303)

1. ARTHUR MILLER, DEATH OF A SALESMAN (1949).
2. Franz Kafka, Metamorphosis, in THE METAMORPHOSIS AND OTHER STORIES (Joachim Neugroschel trans., 1993).
3. I now suspect that I was wrong about literary criticism and that, had I stuck it out, I might have seen how that field, too, has externally imposed constraints.
4. Of course I would never equate these fields; the "Q.E.D." that can properly end a mathematical proof knows no precise analogue in any branch of law. See LAURENCE H. TRIBE & MICHAEL C. DORF, ON READING THE CONSTITUTION 96 (1991); Laurence H. Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 HARV. L. REV. 1329, 1331-32 (1971).
5. Of course I would never equate these fields; the "Q.E.D." that can properly end a mathematical proof knows no precise analogue in any branch of law. See LAURENCE H. TRIBE & MICHAEL C. DORF, ON READING THE CONSTITUTION 96 (1991); Laurence H. Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 HARV. L. REV. 1329, 1331-32 (1971).
6. See U.S. CONST, art. I, § 3, cl. 3.
7. See, e.g., PHILIP BOBBITT, CONSTITUTIONAL INTERPRETATION 22 (1991); LAURENCE H. TRIBE, CONSTITUTIONAL CHOICES 3-8 (1985); Symposium on Philip Bobbin's Constitutional Interpretation, 72 TEX. L. REV. 1703 (1994).
8. See, e.g., PHILIP BOBBITT, CONSTITUTIONAL INTERPRETATION 22 (1991); LAURENCE H. TRIBE, CONSTITUTIONAL CHOICES 3-8 (1985); Symposium on Philip Bobbin's Constitutional Interpretation, 72 TEX. L. REV. 1703 (1994).
9. See, e.g., PHILIP BOBBITT, CONSTITUTIONAL INTERPRETATION 22 (1991); LAURENCE H. TRIBE, CONSTITUTIONAL CHOICES 3-8 (1985); Symposium on Philip Bobbin's Constitutional Interpretation, 72 TEX. L. REV. 1703 (1994).
10. Memorandum from Anne-Marie Slaughter, Professor, Harvard Law School, to Professor Laurence H. Tribe 2 n.1 (Feb. 1, 1995) (on file with the Harvard Law School Library). Professor Slaughter describes her analogy as "a version of Kant's argument for the glory and paradox of humankind, the capacity for genuine self-government." Id.
11. See, e.g., MARK TUSHNET, RED, WHITE, AND BLUE: A CRITICAL ANALYSIS OF CONSTITUTIONAL LAW 60-69 (1988). But see Philip Bobbitt, Is Law Politics?, 41 STAN. L. REV. 1233, 1233-37 (1989) (criticizing Tushnet's analysis of various forms of constitutional argument).
12. See, e.g., MARK TUSHNET, RED, WHITE, AND BLUE: A CRITICAL ANALYSIS OF CONSTITUTIONAL LAW 60-69 (1988). But see Philip Bobbitt, Is Law Politics?, 41 STAN. L. REV. 1233, 1233-37 (1989) (criticizing Tushnet's analysis of various forms of constitutional argument).
13. To a lesser extent, the work of Professor Ackerman's prolific and brilliant Yale colleague Akhil Reed Amar has a similarly double effect on me. It fascinates. It can't be ignored. Yet it sometimes raises for me the same doubts that Professor Ackerman's work raises. In the discussion that follows, I indicate several ways in which Professor Amar's approach to constitutional interpretation occasionally shares some of the shortcomings of Professor Ackerman's work. See infra pp. 1240-41, 1245-48, 1289-92.
14. See Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 HARV. L. REV. 799 (1995) (tracing the rise of the congressional-executive agreement in United States diplomacy).
15. In this Article, I shall at times refer to Professor Ackerman where I should properly refer to Professor Golove as well. I do so because their recent article extends arguments that Professor Ackerman has made before, see, e.g., 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 6-7, 266-94 (1991), and because Professor Ackerman and I testified together before the Senate Commerce Committee and presented contrary views on whether it was proper for the Uruguay Round of the General Agreement on Tariffs and Trade (GATT), including the Agreement Establishing the World Trade Organization, Apr. 15, 1994, 33 I.L.M. 1144, to be submitted to both Houses of Congress for simple-majority approval rather than to the Senate for two-thirds approval. See GATT Implementing Legislation: Hearings an S. 2467 Before the Senate Comm. on Commerce, Science, and Transportation, 103d Cong., 2d Sess. 285-339 (1994) [hereinafter GATT Hearings] (statements and testimony of Prof. Laurence H. Tribe and Prof. Bruce Ackerman).
16. In this Article, I shall at times refer to Professor Ackerman where I should properly refer to Professor Golove as well. I do so because their recent article extends arguments that Professor Ackerman has made before, see, e.g., 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 6-7, 266-94 (1991), and because Professor Ackerman and I testified together before the Senate Commerce Committee and presented contrary views on whether it was proper for the Uruguay Round of the General Agreement on Tariffs and Trade (GATT), including the Agreement Establishing the World Trade Organization, Apr. 15, 1994, 33 I.L.M. 1144, to be submitted to both Houses of Congress for simple-majority approval rather than to the Senate for two-thirds approval. See GATT Implementing Legislation: Hearings an S. 2467 Before the Senate Comm. on Commerce, Science, and Transportation, 103d Cong., 2d Sess. 285-339 (1994) [hereinafter GATT Hearings] (statements and testimony of Prof. Laurence H. Tribe and Prof. Bruce Ackerman).
17. The Treaty Clause provides that the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." U.S. CONST. art. II, § 2, cl. 2.
18. This is Professor Ackerman's term for the process or processes by which the American people enact or change their national Constitution - processes that he believes are not necessarily spelled out in Article V or any other foundational text. See Bruce Ackerman, Higher Lawmaking, in RESPONDING TO IMPERFECTION 64-66 (Sanford Levinson ed., 1995) . Nowhere in his Harvard Law Review article does Professor Ackerman use the phrase "higher lawmaking," but it is apparent from his comparison of the shift in international agreement-making in the 1940S with the New Deal "revolution" (which he has elsewhere described as an episode of higher lawmaking) that he regards the two as similar moments of extraordinary constitutional change outside the procedures provided for in Article V. Indeed, he places this article within the "larger project sketched in We the People," Ackerman & Golove, supra note 10, at 804, and identifies the acceptance of the congressional-executive agreement form as one of those "specific historical moments at which [the people] have supported fundamental changes." Id. at 895. Furthermore, he extols the 1945 "compromise" with regard to treatymaking as "a bipartisan alternative to a formal amendment." Id. at 866.
19. This is Professor Ackerman's term for the process or processes by which the American people enact or change their national Constitution - processes that he believes are not necessarily spelled out in Article V or any other foundational text. See Bruce Ackerman, Higher Lawmaking, in RESPONDING TO IMPERFECTION 64-66 (Sanford Levinson ed., 1995) . Nowhere in his Harvard Law Review article does Professor Ackerman use the phrase "higher lawmaking," but it is apparent from his comparison of the shift in international agreement-making in the 1940S with the New Deal "revolution" (which he has elsewhere described as an episode of higher lawmaking) that he regards the two as similar moments of extraordinary constitutional change outside the procedures provided for in Article V. Indeed, he places this article within the "larger project sketched in We the People," Ackerman & Golove, supra note 10, at 804, and identifies the acceptance of the congressional-executive agreement form as one of those "specific historical moments at which [the people] have supported fundamental changes." Id. at 895. Furthermore, he extols the 1945 "compromise" with regard to treatymaking as "a bipartisan alternative to a formal amendment." Id. at 866.
20. This is Professor Ackerman's term for the process or processes by which the American people enact or change their national Constitution - processes that he believes are not necessarily spelled out in Article V or any other foundational text. See Bruce Ackerman, Higher Lawmaking, in RESPONDING TO IMPERFECTION 64-66 (Sanford Levinson ed., 1995) . Nowhere in his Harvard Law Review article does Professor Ackerman use the phrase "higher lawmaking," but it is apparent from his comparison of the shift in international agreement-making in the 1940S with the New Deal "revolution" (which he has elsewhere described as an episode of higher lawmaking) that he regards the two as similar moments of extraordinary constitutional change outside the procedures provided for in Article V. Indeed, he places this article within the "larger project sketched in We the People," Ackerman & Golove, supra note 10, at 804, and identifies the acceptance of the congressional-executive agreement form as one of those "specific historical moments at which [the people] have supported fundamental changes." Id. at 895. Furthermore, he extols the 1945 "compromise" with regard to treatymaking as "a bipartisan alternative to a formal amendment." Id. at 866.
21. Ackerman & Golove, supra note 10, at 802.
22. Id.
23. See GATT Hearings, supra note 11, at 285-339.
24. See Ackerman & Golove, supra note 10, at 916-29.
25. The Senate approved the Uruguay Round of GATT, including the WTO Agreement, by a vote of 76 to 24. See 140 CONG. REC. S15,379 (daily ed. Dec. 1, 1994). Arguably, the difference in process is of constitutional significance regardless of the ultimate vote, but that is a matter I do not explore here.
26. The Senate voted 61 to 38 to approve the North American Free-Trade Agreement Implementation Act, 19 U.S.C. § 3311 (Supp. V 1993). See 139 CONG. REC. S16, 712-13 (daily ed. Nov. 20, 1993).
27. And, at times, those of Professor Amar as well. See supra note 9; infra pp. 1245-48.
28. See, e.g., Ackerman, supra note 13, at 72.
29. Article V requires that constitutional amendments be approved either by the legislatures of three fourths of the states or by conventions in three fourths of the states. See U.S. CONST. art. V. In addition, Congress must "call a Convention for proposing Amendments" if the legislatures of two thirds of the states so request. Id. Finally, Article Vs instructions for amending the Constitution expressly provide that "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate." Id.
30. See Ackerman & Golove, supra note 10, at 909-13.
31. See id. at 803.
32. Id. at 802.
33. Id. at 916.
34. Id. at 870 (describing the views of revisionist historians of the 1940S who defended the use of the congressional-executive agreement). Professors Ackerman and Golove leave little doubt as to their agreement with the revisionists' views of Article V. See id. at 915-16.
35. Professors Ackerman and Golove align themselves with earlier critics who stressed the Senate's institutional interest in maintaining its "monopoly" over treaty approval and who noted the difficulty of persuading two thirds of the Senate, in accordance with Article V, to approve a Proposed constitutional amendment to provide for bicameral approval of treaties. See id. at 870-71.
36. See id. at 909-10.
37. Id. at 861.
38. See id. at 803. It is remarkable that, in confronting the 61-38 vote by which NAFTA passed the Senate, see 139 CONG. REC. S16,712-13 (daily ed. Nov. 20, 1993), Professors Ackerman and Golove are willing to dismiss as "thirty-four isolationist Senators" those whose negative votes they suppose would have prevented NAFTA's ratification as a treaty. See Ackerman & Golove, supra note 10, at 803. Professors Ackerman and Golove appear to assume both that, if the Treaty Clause path had been followed, the NAFTA vote would have been the same and, further, that to vote no along the Treaty path, a Senator would have to have been an "isolationist." The world is more complex than that. Professors Ackerman and Golove, however, place the controversy over the congressional-executive agreement in the context of "a renewed debate between isolationists and internationalists on the need for further engagement in the new world order" and go so far as to suggest that a rejection of a "North American Free Trade Treaty" by the Senate "would have changed the face of American politics," perhaps "catapult[ing]" Ross Perot "to the center of the stage of presidential politics." Id. at 803-04.
39. See 140 CONG. REC. S15,379 (daily ed. Dec. 1, 1994) (Senate WTO vote of 76 to 24); 140 CONG. REC. H11,535-36 (daily ed. Nov. 29, 1994) (House WTO vote of 288 to 146); 139 CONG. REC. S16,712-13 (daily ed. Nov. 20, 1993) (Senate NAFTA vote of 61 to 38); 139 CONG. REC. H10,048 (daily ed. Nov. 17, 1993) (House NAFTA vote of 234 to 200).
40. See 140 CONG. REC. S15,379 (daily ed. Dec. 1, 1994) (Senate WTO vote of 76 to 24); 140 CONG. REC. H11,535-36 (daily ed. Nov. 29, 1994) (House WTO vote of 288 to 146); 139 CONG. REC. S16,712-13 (daily ed. Nov. 20, 1993) (Senate NAFTA vote of 61 to 38); 139 CONG. REC. H10,048 (daily ed. Nov. 17, 1993) (House NAFTA vote of 234 to 200).
41. See 140 CONG. REC. S15,379 (daily ed. Dec. 1, 1994) (Senate WTO vote of 76 to 24); 140 CONG. REC. H11,535-36 (daily ed. Nov. 29, 1994) (House WTO vote of 288 to 146); 139 CONG. REC. S16,712-13 (daily ed. Nov. 20, 1993) (Senate NAFTA vote of 61 to 38); 139 CONG. REC. H10,048 (daily ed. Nov. 17, 1993) (House NAFTA vote of 234 to 200).
42. See 140 CONG. REC. S15,379 (daily ed. Dec. 1, 1994) (Senate WTO vote of 76 to 24); 140 CONG. REC. H11,535-36 (daily ed. Nov. 29, 1994) (House WTO vote of 288 to 146); 139 CONG. REC. S16,712-13 (daily ed. Nov. 20, 1993) (Senate NAFTA vote of 61 to 38); 139 CONG. REC. H10,048 (daily ed. Nov. 17, 1993) (House NAFTA vote of 234 to 200).
43. See Ackerman & Golove, supra note 10, at 808-13.
44. See id. at 811, 913-14.
45. See id. at 913. Professor Ackerman has sought to identify a &four-stage process& for what he views as informal constitutional amendments: (1) a &Constitutional Impasse&; (2) an &Electoral Mandate'& communicated through a national &triggering election&; (3) a resulting &Challenge to Dissenting Institutions& of government; and (4) resolution by a &Switch in Time,& an acquiescence by the challenged institution to the popular mandate for constitutional change. Ackerman, supra note 13, at 77-82 (applying a version of this schema to the ratification of the Fourteenth Amendment and the New Deal demise of Lochner); Ackerman & Golove, supra note 10, at 873-75 (applying this schema to the rise of the congressional-executive agreement). See infra pp. 1282-84.
46. U.S. CONST. art I, § 8, cl. 18.
47. See Ackerman & Golove, supra note 10, at 908-09, 913-14.
48. Professor Suzanna Sherry has expressed the same concern with respect to Professor Ackerman's near-originalist devotion to the New Deal "Founders." As she characterizes the underlying philosophy of Professor Ackerman's argument: &We must retain the legacy of the New Deal - as by modern liberals - not because it is right, but because its founders told us to.& Suzanna Sherry, The Ghost of Liberalism Past, 105 HARV. L. REV. 918, 934 (1992) (reviewing 1 ACKERMAN, supra, note 11).
49. See infra Part IV.
50. See Ackerman & Golove, supra note to, at 917-25. A collection of prominent constitutional and international law scholars joined Professors Ackerman and Golove in a memorandum to congressional leaders in support of Congress's authority to approve the WTO Agreement as a congressional-executive agreement. See Memorandum of Law from Professors Bruce Ackerman, Abram Chayes, Kenneth Dam, Thomas Franck, Charles Fried, David Golove, Louis Henkin, Robert Hudec, John H. Jackson, Harold H. Koh & Myres McDougal to Members of Congress and Executive Branch Officials (Nov. 11, 1994) [hereinafter Memorandum from Law Professors] (on file with the Harvard Law School Library). That memorandum simply summarized several arguments made in the article by Professors Ackerman and Golove and replicated the errors of that article by failing to take into account several important textual and structural arguments in favor of a more exclusive view of the Treaty Clause.
51. See Ackerman & Golove, supra note 10, at 913-14.
52. Miriam Galston & William A. Galston, Reason, Consent, and the U.S. Constitution: Bruce Ackerman's We the People, 104 ETHICS 446, 449, 465-66 (1994). The Galstons keenly question the logic of Professor Ackerman's celebration of popular deliberation, given that "Ackerman imposes no express substantive constraints on the people's deliberative product." Id. at 465 ("[I]f truth is no object, why are thoughtfulness, evidence, production of arguments, public debate, and commitment to the public good important, indeed, essential to higher lawmaking?").
53. Bruce Ackerman, Rooted Cosmopolitanism, 104 ETHICS 516, 531 (1994).
54. See Sanford Levinson, How Many Times Has the United States Constitution Been Amended? (A) < 26; (B) 26; (C) 27; (D) > 27: Accounting for Constitutional Change, in RESPONDING TO IMPERFECTION, supra note 13, at 13, 17-22 (discussing the boundary between constitutional interpretation and constitutional invention).
55. That would be a hard point to make as to the agreement approving the WTO. See infra note 156.
56. See GATT Hearings, supra note 11, at 312-14, 324-25, 329 (statement of Prof. Bruce Ackerman).
57. See id. at 285-86, 290-312 (statement of Prof. Laurence H. Tribe). Professors Ackerman and Golove include in their article a lengthy, critical account of my participation in the WTO debate. See Ackerman & Golove, supra note 10, at 917-25. Contrary to the suggestions of Professors Ackerman and Golove, I was not "enlisted" by Senator Jesse Helms and consumer advocate Ralph Nader as part of a concerted "last-minute challenge" to the WTO. Id., at 917. Rather, it was Senator Byrd's thoughtful comments from the floor of the Senate about the possible need to process the WTO Agreement as a treaty that prompted my entry into this debate. See 140 CONG. REC. S8872 (daily ed. July 13, 1994) (statement of Sen. Byrd). And, as I explained at each step of the debate, I was not opposed to the WTO, but only to the manner of its consideration by Congress. Although Professors Ackerman and Golove criticize me for modifying my position during the course of the debate over the WTO, see Ackerman & Golove, supra note 10, at 918, one of the important goals of constitutional debate is to come to more fully reasoned understandings of the Constitution's requirements. At the time of my Senate testimony, although I favored the WTO as a policy matter and had no desire either to see it defeated or to swell the Senate's influence, I could see no way to avoid the conclusion that the agreement creating the WTO and bringing the United States within that body needed to be treated as a treaty. My view then was that the Constitution draws a line between non-treaty international agreements that the President may conclude with bicameral, majority congressional approval and treaties, which require supermajority Senate ratification. Shortly before Congress was to vote, the Office of Legal Counsel of the Department of Justice released a lengthy analysis of my views and advanced new arguments for treating that line as permeable enough to warrant deference to the determination of the President and Congress that a particular agreement (there, the WTO Agreement) falls on the non-treaty side of this line. See Memorandum from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, to Michael Kantor, United States Trade Representative passim (Nov. 22, 1994) [hereinafter Dellinger Memorandum] (on file with the Harvard Law School Library). Still believing that the line in question existed, and thinking that the new Department of Justice analysis deserved careful consideration, I stated publicly my intention to reassess the matter. See Memorandum from Laurence H. Tribe to Sen. George J. Mitchell et al. 1-2 (Nov. 28, 1994) (on file with the Harvard Law School Library). Although some Senators quoted that public statement as an abandonment of my view that the WTO Agreement was indeed a treaty that required a Senate supermajority to become law, see, e.g., 140 CONG. REC. S15,078-79 (daily ed. Nov. 30, 1994) (statements of Sen. Moynihan), that was an incorrect understanding of what I had said. As Part IV of this Article makes clear, my reassessment has led me to conclude that the only line the Constitution draws between non-treaty international agreements and "treaties" is a quite different line from the one on which I had initially focused: it is the line between those agreements the President may conclude with no ex post approval by any legislative body, and those for which supermajority Senate ratification is essential. With regard to that line, not even the Department of Justice urged that the WTO Agreement could be defended as requiring no ex post approval, and I have no doubt that the agreement is a "treaty" under any defensible interpretation of that term. See infra note 156. The category whose boundaries the Department of Justice urged that the President and Congress be given latitude to draw - the category consisting of agreements for which the President needs some form of ex post legislative approval but which he may nonetheless avoid submitting to the Senate for supermajority ratification - is, I have now reluctantly concluded, non-existent: there are no such agreements. This is not to deny, of course, that some agreements between the United States and foreign powers might, under their own terms, be less than self-executing, and might, even after Senate ratification, require congressional legislation to achieve domestic legal effect. Thus, the view advanced here does nothing to limit the powerful and sometimes indispensable role that Congress in general, and the House of Representatives in particular, might play in deciding how or whether to make a treaty fully effective domestically. See infra note 133.
58. See id. at 285-86, 290-312 (statement of Prof. Laurence H. Tribe). Professors Ackerman and Golove include in their article a lengthy, critical account of my participation in the WTO debate. See Ackerman & Golove, supra note 10, at 917-25. Contrary to the suggestions of Professors Ackerman and Golove, I was not "enlisted" by Senator Jesse Helms and consumer advocate Ralph Nader as part of a concerted "last-minute challenge" to the WTO. Id., at 917. Rather, it was Senator Byrd's thoughtful comments from the floor of the Senate about the possible need to process the WTO Agreement as a treaty that prompted my entry into this debate. See 140 CONG. REC. S8872 (daily ed. July 13, 1994) (statement of Sen. Byrd). And, as I explained at each step of the debate, I was not opposed to the WTO, but only to the manner of its consideration by Congress. Although Professors Ackerman and Golove criticize me for modifying my position during the course of the debate over the WTO, see Ackerman & Golove, supra note 10, at 918, one of the important goals of constitutional debate is to come to more fully reasoned understandings of the Constitution's requirements. At the time of my Senate testimony, although I favored the WTO as a policy matter and had no desire either to see it defeated or to swell the Senate's influence, I could see no way to avoid the conclusion that the agreement creating the WTO and bringing the United States within that body needed to be treated as a treaty. My view then was that the Constitution draws a line between non-treaty international agreements that the President may conclude with bicameral, majority congressional approval and treaties, which require supermajority Senate ratification. Shortly before Congress was to vote, the Office of Legal Counsel of the Department of Justice released a lengthy analysis of my views and advanced new arguments for treating that line as permeable enough to warrant deference to the determination of the President and Congress that a particular agreement (there, the WTO Agreement) falls on the non-treaty side of this line. See Memorandum from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, to Michael Kantor, United States Trade Representative passim (Nov. 22, 1994) [hereinafter Dellinger Memorandum] (on file with the Harvard Law School Library). Still believing that the line in question existed, and thinking that the new Department of Justice analysis deserved careful consideration, I stated publicly my intention to reassess the matter. See Memorandum from Laurence H. Tribe to Sen. George J. Mitchell et al. 1-2 (Nov. 28, 1994) (on file with the Harvard Law School Library). Although some Senators quoted that public statement as an abandonment of my view that the WTO Agreement was indeed a treaty that required a Senate supermajority to become law, see, e.g., 140 CONG. REC. S15,078-79 (daily ed. Nov. 30, 1994) (statements of Sen. Moynihan), that was an incorrect understanding of what I had said. As Part IV of this Article makes clear, my reassessment has led me to conclude that the only line the Constitution draws between non-treaty international agreements and "treaties" is a quite different line from the one on which I had initially focused: it is the line between those agreements the President may conclude with no ex post approval by any legislative body, and those for which supermajority Senate ratification is essential. With regard to that line, not even the Department of Justice urged that the WTO Agreement could be defended as requiring no ex post approval, and I have no doubt that the agreement is a "treaty" under any defensible interpretation of that term. See infra note 156. The category whose boundaries the Department of Justice urged that the President and Congress be given latitude to draw - the category consisting of agreements for which the President needs some form of ex post legislative approval but which he may nonetheless avoid submitting to the Senate for supermajority ratification - is, I have now reluctantly concluded, non-existent: there are no such agreements. This is not to deny, of course, that some agreements between the United States and foreign powers might, under their own terms, be less than self-executing, and might, even after Senate ratification, require congressional legislation to achieve domestic legal effect. Thus, the view advanced here does nothing to limit the powerful and sometimes indispensable role that Congress in general, and the House of Representatives in particular, might play in deciding how or whether to make a treaty fully effective domestically. See infra note 133.
59. In this piece I often use the terms "structure" and "architecture" for distinct purposes. I ordinarily use "structure" to refer to the ways that various parts of the Constitution fit together. I ordinarily use "architecture" to describe the framework or shape of the government established by the Constitution.
60. 462 U.S. 919 (1983). In Chadha, the Court invalidated as violative of Article I's bicameralism and presentment requirements a statutory provision whereby a single house of Congress could veto a decision of the Attorney General to suspend deportation of an alien. See id. at 923, 956-59.
61. See LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 4-9, at 245-46 (2d ed. 1988); TRIBE, supra note 6, at 71-74.
62. U.S. CONST. art. II, § 2, cl. 2.
63. Id. art. I, § 6, cl. 2.
64. Cf. Bowsher v. Synar, 478 U.S. 714, 721-27 (1986) (holding unconstitutional a provision of the Balanced Budget and Emergency Deficit Control Act of 1985, 2 U.S.C. § 901 (Supp. III 1985), that reserved to Congress the power to remove the official charged with execution of the Act); id. at 726 ("The structure of the Constitution does not permit Congress to execute the laws; it follows that Congress cannot grant to an officer under its control what it does not possess.").
65. See infra Part IV.B.
66. U.S. CONST. amend. VI (emphasis added).
67. Cf. Barron v. Mayor and City Council of Baltimore, 32 U.S. (7 Pet.) 243, 247 (1833) (holding that the Fifth Amendment right to just compensation for takings of property applies only against the federal government, not against the states). Indeed, the Fifth Amendment's guarantee that "[n]o person shall be . . . deprived of life, liberty, or property, without due process of law," U.S. CONST. amend. V, unlike its Fourteenth Amendment counterpart, nowhere specifies that it applies only to governmental, as opposed to entirely private action. It is the structure and history of the Bill of Rights as a whole that supplies the "state action" (or, more properly here, the federal action) requirement that the text itself often fails to express.
68. See U.S. CONST, art. I, § 9, cl. 2.
69. See id. art. I, § 9, cl. 3.
70. See id. art. I, § 10, cl. 1.
71. This is not to say that, when a provision of the Constitution forbids a particular branch of some level of government from violating a given right, one should automatically assume that only that branch is so limited. The answer to the question which governmental branches are implicitly constrained often requires further analysis of structure and history. Consider two contrasting examples. The First Amendment explicitly limits only Congress, not other branches of the federal government, yet it has been understood to restrict the executive and judicial branches as well. However, the Contract Impairment Clause, which says that "[n]o State shall . . . pass any . . . Law impairing the Obligation of Contracts," id. art. I, § 10, cl. 1, has been interpreted to apply to the enactments of state legislatures, but not to judicial reformulations of contract law. See Tidal Oil Co. v. Flanagan, 263 U.S. 444, 451 (1924).
72. See Ackerman, supra note 13, at 72.
73. See Ackerman & Golove, supra note 10, at 811.
74. See TRIBE, supra note 6, at 29-44.
75. See David R. Dow, The Plain Meaning of Article V, in RESPONDING TO IMPERFECTION, supra note 13, at 127 (arguing that "Article V must be understood as exclusive not precisely because the Framers expected it to be, but because the structure of the government they established depends upon its exclusivity").
76. Hamilton used English rather than Latin: "The expression of one thing is the exclusion of another." THE FEDERALIST No. 83, at 496 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (internal quotation marks omitted).
77. Id. Concerning consultation of the Framers, it should be axiomatic that it is enacted law - whether in the form of a statute or a constitution - that governs, never the unenacted intentions of any lawgiver. To the extent that information about the assumptions, hopes, or fears of those who wrote or ratified a given provision might shed light on the provision's original meaning, such information seems to me worth consulting. But the ultimate question in every case must be what the provision in question means, not what those who favored or opposed it thought Although proponents of interpretation according to "original intent" are sometimes accused of seeking to give binding legal effect to the mere mental states of particular lawmakers, most "originalists" are probably guilty of no such thing. See CHARLES FRIED, ORDER AND LAW 61-67 (1991); Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. REV. 204, 209-17 (1980); H. Jefferson Powell, The Original Understanding of Original Intent, 98 HARV. L. REV. 885, 948 (1985); Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849, 856-65 (1989). Where Professors Ackerman and Golove stand on this fundamental question is not entirely clear. Insofar as the "Constitution" they purport to be interpreting consists of a complex mix of enacted texts and national experiences outside the constitutional text, they appear to give the effect of law to supposed ideas and beliefs nowhere promulgated in any recognizable form. Thus, in a typical passage, they have the following to say about the alleged transformation of the Treaty Clause from an exclusive mode of international agreement-making into the mere option that Professors Ackerman and Golove claim it later became: "The intentions of the Framers have been redeemed - so long as we recognize that the relevant Framers were the Americans who fought the Second World War and not those who fought the Revolution." Ackerman & Golove, supra note 10, at 803. For my part, even if this were demonstrably true, it would be irrelevant.
78. Id. Concerning consultation of the Framers, it should be axiomatic that it is enacted law - whether in the form of a statute or a constitution - that governs, never the unenacted intentions of any lawgiver. To the extent that information about the assumptions, hopes, or fears of those who wrote or ratified a given provision might shed light on the provision's original meaning, such information seems to me worth consulting. But the ultimate question in every case must be what the provision in question means, not what those who favored or opposed it thought Although proponents of interpretation according to "original intent" are sometimes accused of seeking to give binding legal effect to the mere mental states of particular lawmakers, most "originalists" are probably guilty of no such thing. See CHARLES FRIED, ORDER AND LAW 61-67 (1991); Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. REV. 204, 209-17 (1980); H. Jefferson Powell, The Original Understanding of Original Intent, 98 HARV. L. REV. 885, 948 (1985); Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849, 856-65 (1989). Where Professors Ackerman and Golove stand on this fundamental question is not entirely clear. Insofar as the "Constitution" they purport to be interpreting consists of a complex mix of enacted texts and national experiences outside the constitutional text, they appear to give the effect of law to supposed ideas and beliefs nowhere promulgated in any recognizable form. Thus, in a typical passage, they have the following to say about the alleged transformation of the Treaty Clause from an exclusive mode of international agreement-making into the mere option that Professors Ackerman and Golove claim it later became: "The intentions of the Framers have been redeemed - so long as we recognize that the relevant Framers were the Americans who fought the Second World War and not those who fought the Revolution." Ackerman & Golove, supra note 10, at 803. For my part, even if this were demonstrably true, it would be irrelevant.
79. Id. Concerning consultation of the Framers, it should be axiomatic that it is enacted law - whether in the form of a statute or a constitution - that governs, never the unenacted intentions of any lawgiver. To the extent that information about the assumptions, hopes, or fears of those who wrote or ratified a given provision might shed light on the provision's original meaning, such information seems to me worth consulting. But the ultimate question in every case must be what the provision in question means, not what those who favored or opposed it thought Although proponents of interpretation according to "original intent" are sometimes accused of seeking to give binding legal effect to the mere mental states of particular lawmakers, most "originalists" are probably guilty of no such thing. See CHARLES FRIED, ORDER AND LAW 61-67 (1991); Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. REV. 204, 209-17 (1980); H. Jefferson Powell, The Original Understanding of Original Intent, 98 HARV. L. REV. 885, 948 (1985); Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849, 856-65 (1989). Where Professors Ackerman and Golove stand on this fundamental question is not entirely clear. Insofar as the "Constitution" they purport to be interpreting consists of a complex mix of enacted texts and national experiences outside the constitutional text, they appear to give the effect of law to supposed ideas and beliefs nowhere promulgated in any recognizable form. Thus, in a typical passage, they have the following to say about the alleged transformation of the Treaty Clause from an exclusive mode of international agreement-making into the mere option that Professors Ackerman and Golove claim it later became: "The intentions of the Framers have been redeemed - so long as we recognize that the relevant Framers were the Americans who fought the Second World War and not those who fought the Revolution." Ackerman & Golove, supra note 10, at 803. For my part, even if this were demonstrably true, it would be irrelevant.
80. Id. Concerning consultation of the Framers, it should be axiomatic that it is enacted law - whether in the form of a statute or a constitution - that governs, never the unenacted intentions of any lawgiver. To the extent that information about the assumptions, hopes, or fears of those who wrote or ratified a given provision might shed light on the provision's original meaning, such information seems to me worth consulting. But the ultimate question in every case must be what the provision in question means, not what those who favored or opposed it thought Although proponents of interpretation according to "original intent" are sometimes accused of seeking to give binding legal effect to the mere mental states of particular lawmakers, most "originalists" are probably guilty of no such thing. See CHARLES FRIED, ORDER AND LAW 61-67 (1991); Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. REV. 204, 209-17 (1980); H. Jefferson Powell, The Original Understanding of Original Intent, 98 HARV. L. REV. 885, 948 (1985); Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849, 856-65 (1989). Where Professors Ackerman and Golove stand on this fundamental question is not entirely clear. Insofar as the "Constitution" they purport to be interpreting consists of a complex mix of enacted texts and national experiences outside the constitutional text, they appear to give the effect of law to supposed ideas and beliefs nowhere promulgated in any recognizable form. Thus, in a typical passage, they have the following to say about the alleged transformation of the Treaty Clause from an exclusive mode of international agreement-making into the mere option that Professors Ackerman and Golove claim it later became: "The intentions of the Framers have been redeemed - so long as we recognize that the relevant Framers were the Americans who fought the Second World War and not those who fought the Revolution." Ackerman & Golove, supra note 10, at 803. For my part, even if this were demonstrably true, it would be irrelevant.
81. See THE FEDERALIST No. 83, supra note 65, at 496-97. Supporters of a non-exclusive reading of the Treaty Clause are thus mistaken in suggesting that Hamilton considered the canon expressio unius est exclusio alterius to have "no validity as a canon of constitutional construction." Myres S. McDougal & Asher Lans, Treaties and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy (pt. 1), 54 YALE L.J. 181, 237 n.99 (1945) (citing THE FEDERALIST No. 83 (Alexander Hamilton)).
82. See THE FEDERALIST No. 83, supra note 65, at 496-97. Supporters of a non-exclusive reading of the Treaty Clause are thus mistaken in suggesting that Hamilton considered the canon expressio unius est exclusio alterius to have "no validity as a canon of constitutional construction." Myres S. McDougal & Asher Lans, Treaties and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy (pt. 1), 54 YALE L.J. 181, 237 n.99 (1945) (citing THE FEDERALIST No. 83 (Alexander Hamilton)).
83. See THE FEDERALIST No. 83, supra note 65, at 496-97. Supporters of a non-exclusive reading of the Treaty Clause are thus mistaken in suggesting that Hamilton considered the canon expressio unius est exclusio alterius to have "no validity as a canon of constitutional construction." Myres S. McDougal & Asher Lans, Treaties and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy (pt. 1), 54 YALE L.J. 181, 237 n.99 (1945) (citing THE FEDERALIST No. 83 (Alexander Hamilton)).
84. See U.S. CONST. art. I, § 8, cl. 9.
85. See id. art. III, § 2, cl. 3.
86. See THE FEDERALIST No. 83, supra note 65, at 496-97. In the end, of course, the Seventh Amendment was added to provide a guarantee of the right to civil jury trials "[i]n Suits at common law, where the value in controversy shall exceed twenty dollars." U.S. CONST. amend. VII.
87. U.S. CONST. amend. IX.
88. The Tenth Amendment provides: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Id. amend. X. The Ninth and Tenth Amendments should caution us against "penumbral thinking" with respect to grants of national government power. See Alex Kozinski & Eugene Volokh, A Penumbra Too Far, 106 HARV. L. REV. 1639, 1657 (1993) (criticizing Professor Amar's virtually free-form derivation, from the enforcement clause of the Thirteenth Amendment, of government power to override the First Amendment in matters of racist speech, and noting that "penumbral thinking" can just as easily be used "to expand the powers of government" as "to expand individual rights"); see also TRIBE, supra note 6, at 42-44 (discussing the Ninth and Tenth Amendments and the act of construing constitutional silences). Note that Professor Amar's method of reading Article V's procedures as non-exclusive is not as vulnerable to the Tenth Amendment objection as Professor Ackerman's, inasmuch as Professor Amar's method treats the power of extra-Article V amendment as reserved not to the national government, but to "the people." See Akhil R. Amar, The Consent of the Governed: Constitutional Amendment Outside Article V, 94 COLUM. L. REV. 457, 459 (1994); Philip Bobbitt, Reflections Inspired by My Critics, 72 TEX. L. REV. 1869, 1897 (1994). However, insofar as the people are capable of acting rationally only through the medium of national institutions, the difference may be limited.
89. The Tenth Amendment provides: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Id. amend. X. The Ninth and Tenth Amendments should caution us against "penumbral thinking" with respect to grants of national government power. See Alex Kozinski & Eugene Volokh, A Penumbra Too Far, 106 HARV. L. REV. 1639, 1657 (1993) (criticizing Professor Amar's virtually free-form derivation, from the enforcement clause of the Thirteenth Amendment, of government power to override the First Amendment in matters of racist speech, and noting that "penumbral thinking" can just as easily be used "to expand the powers of government" as "to expand individual rights"); see also TRIBE, supra note 6, at 42-44 (discussing the Ninth and Tenth Amendments and the act of construing constitutional silences). Note that Professor Amar's method of reading Article V's procedures as non-exclusive is not as vulnerable to the Tenth Amendment objection as Professor Ackerman's, inasmuch as Professor Amar's method treats the power of extra-Article V amendment as reserved not to the national government, but to "the people." See Akhil R. Amar, The Consent of the Governed: Constitutional Amendment Outside Article V, 94 COLUM. L. REV. 457, 459 (1994); Philip Bobbitt, Reflections Inspired by My Critics, 72 TEX. L. REV. 1869, 1897 (1994). However, insofar as the people are capable of acting rationally only through the medium of national institutions, the difference may be limited.
90. The Tenth Amendment provides: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Id. amend. X. The Ninth and Tenth Amendments should caution us against "penumbral thinking" with respect to grants of national government power. See Alex Kozinski & Eugene Volokh, A Penumbra Too Far, 106 HARV. L. REV. 1639, 1657 (1993) (criticizing Professor Amar's virtually free-form derivation, from the enforcement clause of the Thirteenth Amendment, of government power to override the First Amendment in matters of racist speech, and noting that "penumbral thinking" can just as easily be used "to expand the powers of government" as "to expand individual rights"); see also TRIBE, supra note 6, at 42-44 (discussing the Ninth and Tenth Amendments and the act of construing constitutional silences). Note that Professor Amar's method of reading Article V's procedures as non-exclusive is not as vulnerable to the Tenth Amendment objection as Professor Ackerman's, inasmuch as Professor Amar's method treats the power of extra-Article V amendment as reserved not to the national government, but to "the people." See Akhil R. Amar, The Consent of the Governed: Constitutional Amendment Outside Article V, 94 COLUM. L. REV. 457, 459 (1994); Philip Bobbitt, Reflections Inspired by My Critics, 72 TEX. L. REV. 1869, 1897 (1994). However, insofar as the people are capable of acting rationally only through the medium of national institutions, the difference may be limited.
91. Indeed, it is hard to imagine that such a provision could have been ratified at any point in our history even by any of the methods, formal or informal, envisioned by either Professor Ackerman or Professor Amar. See Ackerman, supra note 13, at 77-82; Ackerman & Golove, supra note 10, at 875; Amar, supra note 72, at 458-61.
92. See Thomas K. Landry, Ackermanial: Who Are We the People?, 47 U. MIAMI L. REV. 267, 289 n.85 (1992) ( quoting 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787 at 242 n.* (Max Farrand ed., rev. ed. 1966) (quoting one of the Framers as saying, "we would sooner submit to a foreign power, than to [sic] submit to be deprived of an equality of suffrage, in both branches of the legislature, and thereby be thrown under the domination of the large States")).
93. See Thomas K. Landry, Ackermanial: Who Are We the People?, 47 U. MIAMI L. REV. 267, 289 n.85 (1992) ( quoting 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787 at 242 n.* (Max Farrand ed., rev. ed. 1966) (quoting one of the Framers as saying, "we would sooner submit to a foreign power, than to [sic] submit to be deprived of an equality of suffrage, in both branches of the legislature, and thereby be thrown under the domination of the large States")).
94. I seem to have missed this point previously. See TRIBE, supra note 6, at 44 & n.105 (noting the "potential determinacy" of a text's silence).
95. U.S. CONST. art. II, § 2, cl. 2.
96. To see the multiplicity of meanings a provision might have if we only isolate the proper "only" that isn't there, consider the many things that the first part of Article V might mean, depending upon which "only" we happen to find missing: [Only] [t]he Congress, [only] whenever two thirds of both Houses shall deem it necessary, shall [only] propose [only] Amendments [only] to this Constitution, or, [only] on the Application of [only] the Legislatures of two thirds of the several States, shall [only] call [only] a Convention [only] for proposing [only] Amendments, which, [only] in either Case, shall be valid to all Intents and Purposes, [only] as part of this Constitution, [only] when ratified by [only] the Legislatures of three fourths of the several States, or [only] by Conventions in three fourths thereof, [only] as the one or the other Mode of Ratification may be proposed by [only] the Congress . . . . Id. art. V. (providing the Constitution's [only] procedures for amendment). I'm sure that these aren't the only "only"s missing. But I'd better say so explicitly so that I'm not misunderstood.
97. See Amar, supra note 72, at 459.
98. Id. (emphasis in original).
99. Id. (emphasis in original).
100. See U.S. CONST. art. 1, § 6, cl. 1.
101. Akhil R. Amar & Neal K. Katyal, Executive Privileges and Immunities: The Nixon and Clinton Cases, 108 HARV. L. REV. 701, 706 (1995).
102. I think the case is quite strong.
103. Amar & Katyal, supra note 82, at 702.
104. See Ackerman & Golove, supra note 10; Amar & Katyal, supra note 82.
105. See Amar, supra note 72, at 462-87.
106. See infra Part V.C.
107. See infra note 227.
108. Some of the variables in architecture-defining sentences, such as "commerce" in Article I, section 8, Or even "treaty" in Article II, might have some evolutionary potential even if the basic architecture is deemed to have a fixed meaning.
109. This distinction between architectural and aspirational provisions resembles a distinction drawn nearly seven decades ago by Edward Corwin. See Edward Corwin, Judicial Review in Action, 74 U. PA. L. REV. 639, 659-60 (1926) (positing two constitutional canons of construction, the "historical" and the "adaptative").
110. There is no ultimate contradiction between an insistence on reading enabling provisions in a relatively rigid manner and a willingness to treat certain other provisions more loosely. A full explanation of why this is so would be beyond the scope of this Article, and others may be excused for having found some amusement in my "taking up the cudgels for a textualism that the later Black could well be proud of." Sanford Levinson, Authorizing Constitutional Text: On the Purported Twenty-Seventh Amendment, 11 CONST. COMMENT. 101, 105 (1994) (discussing my views of Article V and the 27th Amendment).
111. See U.S. CONST. art. I, § 8, cl. 3.
112. See id. art. II, § 2, cl. 2.
113. See infra p. 1275.
114. Ackerman & Golove, supra note 10, at 920 (emphasis added).
115. TRIBE, supra note 50, § 4-2, at 211; see also LOUIS HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 32 (1972) ("As they have evolved, the foreign relations powers appear not so much 'separated' as fissured, along jagged lines indifferent to classical categories of governmentale power.").
116. See Harold H. Koh, The Fast Track and United States Trade Policy, 18 BROOK. J. INT'L. L. 143, 146 n.7 (1992).
117. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 303 cmt. e (1986) (emphasis added); see also HENKIN, supra note 96, at 175 ("[I]t is now widely accepted that the Congressional-Executive agreement is a complete alternative to a treaty: the President can seek approval of any agreement by joint resolution of both houses of Congress instead of two-thirds of the Senate only" (emphasis added).). Although the Justice Department's Office of Legal Counsel in recent months had seemed to endorse Professor Henkin's view, see Memorandum from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, to Michael Kantor, United States Trade Representative 4 & n.8 (July 29, 1994) (quoting HENKIN, supra note 96, at 175-76), Assistant Attorney General Dellinger has since indicated that his office "do[es] not dispute Professor Tribe's view that some such agreements [with foreign nations] may have to be ratified as treaties." Dellinger Memorandum, supra note 47, at 4 n.13. Of course, the reading of the Treaty Clause advanced by Professors Ackerman and Golove (and by Professor Henkin before them) does not render that provision a complete nullity. The Treaty Clause still provides the President a powerful option by creating a path whereby international agreements - including those that Article I absolutely prohibits the states from entering - may be made and become part of United States law without any involvement by the House of Representatives. Indeed, the Treaty Clause procedure gives the President and the Senate the power to supersede a prior statute without the involvement of the House - to the extent that a treaty may supersede a prior act of congressional legislation.
118. Even many of those who approve of the consensus view have noted that the constitutional underpinnings of the congressional-executive agreement are less than clear. As Professor Henkin has explained: Constitutional doctrine to support Congressional-Executive agreements is not clear or agreed. The Constitution expressly prescribes the treaty procedure and nowhere suggests that another method of making international agreements would do as well. Congress, also, has no authority to negotiate with foreign governments; it can not, then, delegate any to the President. One might say that Congress can join its legislative powers in regard to the subject matter to the President's authority to negotiate with foreign governments, but international agreements are primarily international acts and make domestic law only incidentally. Many agreements, moreover, make no domestic law at all, and some of the agreements authorized or approved by Congress, e.g., for participation in some international organizations, deal with matters that are not within any enumerated power of Congress or even its unenumerated power to legislate in matters relating to foreign affairs. HENKIN, supra note 96, at 174 (footnote omitted).
119. See Ackerman & Golove, supra note 10, at 919-20; p. 1275-76. Earlier defenders of the congressional-executive agreement also sought to align themselves with Chief Justice Marshall's approach to constitutional interpretation. See, e.g., McDougal & Lans, supra note 67, at 213-14, 290-91.
120. Ackerman & Golove, supra note 10, at 920.
121. An analogous view informed the 1971 decision of the European Court of Justice that the European Community's power to enact domestic regulation concerning particular subject matters implied a power to enter international agreements covering the same subjects. See Case 22/70, Commission v. Council, 1971 E.C.R. 263 (1971). This decision has been justly criticized. See, e.g., J.H.H. Weiler, The Transformation of Europe, 100 YALE L.J. 2403, 2416 (1991).
122. See infra Part IV.D.2.
123. See supra Part III.D.
124. See GATT Hearings, supra note 11, at 324-25 (statement of Prof. Bruce Ackerman). Professor Ackerman's participation in the debate over the WTO Agreement leaves little doubt that this is what his theory entails. In his Senate testimony, Professor Ackerman expressly disclaimed knowledge of the terms of the agreement about which he was testifying and declined to address Senators' specific questions about it. See id. at 321.
125. See supra note 98.
126. U.S. CONST. art. I, § 7, cl. 3 (emphasis added). I shall refer to this clause as the "Veto Override Clause."
127. It would be no answer to this problem to assert that the President could simply unilaterally terminate an international agreement to which he or she objected. Although strong arguments may be made that the President's powers under the Treaty Clause imply the power unilaterally to terminate a treaty, the Supreme Court has not definitively ruled on the issue. In Goldwater v. Carter, 444 U.S. 996 (1979), the Court let stand the President's termination of a treaty with Taiwan, but that case does not stand for the proposition that the President may always terminate a treaty; a plurality deemed the matter nonjusticiable, see id. at 1002 (Rehnquist, J., concurring in the judgment), and another Justice found the issue not yet ripe, see id. at 997 (Powell, J., concurring in the judgment). Serious questions might be raised by such unilateral termination if a treaty provided for termination exclusively by other means. But the problem that would be posed by presidential termination of an agreement approved by congressional supermajorities over presidential objection is more difficult. If we suppose that Congress has the power to approve international agreements and that the Veto Override Clause allows this approval power to be exercised by congressional supermajorities over the President's objection, then the question whether the President may terminate an agreement approved by two thirds of both
128. See, e.g., McDougal & Lans, supra note 67, at 186-88.
129. Ackerman & Golove, supra note 10, at 920 (emphasis added).
130. Id.
131. The problem that the Veto Override Clause poses for the congressional-executive agreement cannot be avoided by arguing that because the congressional-executive agreement route is never required, but is only an alternative to the treaty route, the Veto Override Clause does not apply, limited as it is to votes "to Which the Concurrence of the Senate and House of Representatives may be necessary." U.S. CONST. art. I, § 7, cl. wreath poduct siny (emphasis added). Under the theories set forth to justify the congressional-executive agreement, if the Senate has not approved a treaty by supermajority vote, the concurrence of both Houses would be "necessary" for the agreement to be valid.
132. 299 U.S. 304 (1936).
133. Id. at 320.
134. See, e.g., McDougal & Lans, supra note 67, at 203 ("No one today doubts that the President has complete control of the actual conduct of negotiations in the making of all international agreements or that he is the appropriate authority to make final utterance of an agreement as the international obligation of the United States.").
135. Curtiss-Wright, 299 U.S. at 319.
136. Professor Henkin has noted, without endorsing, the possible argument that Congress may not override a presidential veto when it acts under the Necessary and Proper Clause to implement the powers of the President, rather than to implement its own independent powers. See Louis Henkin, The Treaty Makers and the Law Makers: The Law of the Land and Foreign Relations, 107 U. PA. L. REV. 903, 915 n.26 (1959). This notion - that Congress may not override a presidential veto when implementing powers granted to the Executive Branch - has a certain appeal, but it is squarely at odds with the text of the Veto Override Clause. Among other remarkable consequences, this theory would mean that, whenever Congress legislates with respect to the great executive departments, the President would be able to exercise a veto that no congressional supermajority could override. To avoid this result in the field of international relations, the view described by Professor Henkin would have to posit a special rule for congressional legislation dealing with the President's foreign policy activities. But would this mean, for instance, that the President could kill, with a non-overridable veto, any law dealing with, say, the Department of State or the Department of Defense? That these questions have no satisfactory answers shows that the theory could not fly - even if one felt free to disregard its blatant inconsistency with the text of the Veto Override Clause.
137. HENKIN, supra note 96, at 45-46.
138. See Myers v. United States, 272 U.S. 52, 161-64 (1926).
139. See infra Part IV.D.1.
140. McDougal & Lans, supra note 67, at 203 (emphasis added). McDougal and Lans noted this distinction in the 1940S, though without reference to the Veto Override Clause. See id. at 202-03, 209, 211. Where McDougal and Lans did refer to the Veto Override Clause, they did so simply to note that joint resolutions are considered "the law of the land." Id. at 222 n.35 (internal quotation marks omitted).
141. Because the Treaty Clause defines a presidential power to make treaties, it would be reasonable to argue that, even after a Senate supermajority has voted its approval of a treaty, the President may still decide whether or not that treaty should be given effect. This view has wide acceptance. See, e.g., id. at 209, 211; supra note 108.
142. Indeed, commentators specializing in foreign affairs and foreign trade seem to think the question beyond the pale. See supra p. 1250 & n.g8.
143. INS v. Chadha, 462 U.S. 919, 952 (1983) (quoting S. REP. No. 1335, 54th Cong., 2d Sess. 8 (1897)).
144. 17 U.S. (4 Wheat.) 316 (1819).
145. The Fifth Circuit, however, has been so bold of late, leading the Supreme Court to reconsider this Term whether there might in fact be judicially enforceable substantive limits to Congress's Interstate Commerce Clause power. See United States v. Lopez, 2 F.3d 1342, 1367-68 (5th Cir. 1993) (invalidating as beyond Congress's Commerce Clause power a federal criminal statute banning guns near schools), cert, granted, 114 S. Ct. 1536 (1994).
146. The Supreme Court's decision in Chadha spelled doom for hundreds of legislative veto provisions in a wide range of statutes, including provisions of the Trade Act of 1974, 19 U.S.C. §§ 2253(C), 2412(b), 2432, 2437 (1976). See Chadha, 462 U.S. at 967, 1005 (White, J., dissenting).
147. To Professors Ackerman and Golove, the Court's decision in Chadha is like a thorn in the side. The legislative veto, like the congressional-executive agreement, was a "twentieth-century innovation," Ackerman & Golove, supra note 10, at 926, that Congress chose to embody in a series of framework statutes," id. The legislative veto was held to be at odds with Article I, section 7, clause 3, which I have here called the Veto Override Clause. See supra note 107. Professors Ackerman and Golove nevertheless try unsuccessfully to squeeze from Chadha support for their theory of congressional-executive agreements. They note that "[t]he [Chadha] opinion contains many resources for more constructive use. First and foremost is its emphasis on the central importance of Article I in the overall constitutional scheme." Ackerman & Golove, supra note 10, at 926. But the Chadha case concerned the validity of the legislative veto; no generalized Principle flows from the fact that the Court based its decision on Article I - any more than Marbury v. Madison, 5 U.S. (1 Cranch) 135 (1803), stands for "the central importance of Article [III] in the overall constitutional scheme," or Mapp v. Ohio, 367 U.S. 643 (1961), stands for "the central importance of [the Fourth Amendment] in the constitutional scheme." Professors Ackerman and Golove also point to Chadha's "emphasis on the crucial value that deliberation by both Houses and the President plays in the enactment of binding law." Ackerman & Golove, supra note 10, at 926. Chadha, however, supports deliberation by both Houses only where the Constitution establishes bicameral process. It is true that the Court in Chadha invalidated the legislative veto at issue in that case because it failed to comply with the constitutional requirements of bicameralism and presentment. However, Chadha is a testament to the importance of strict adherence to the Constitution's structural commands and to the inability even of frequent and long-continued violations of constitutional requirements to validate such illegality - not a testament to the virtues of bicameralism in those places, including the Treaty Clause, where the Constitution provides for one House to play a special role. Indeed, the Court, acting in the immediate wake of Chadha, promptly invalidated bicameral legislative vetoes. See United States Senate v. FTC, 463 U.S. 1216 (1983); id. at 1218 (White, J., dissenting). What Chadha stands for more than anything else is the importance of fidelity to the complete architecture established by the Constitution's text and structure. If the result in Chadha rested solely on "the intentions of the omniscient Founders of 1787," as Professors Ackerman and Golove suggest, Ackerman & Golove, supra note 10, at 926, then I might join them in their apparent opposition to what that decision really holds. But, as I have explained elsewhere, I regard the result in Chadha to be warranted by important structural considerations. See supra p. 1238.
148. See supra p. 1238.
149. 112 S. Ct. 2408, 2419-23 (1992).
150. See infra note 161.
151. See infra pp. 1268-69.
152. This is not to suggest, however, that the Treaty Clause power is not itself subject to structural limitations. The Treaty Clause procedure is legitimate only for international agreements fairly related to foreign relations. See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW or THE UNITED STATES § 302 reporters' note 2 (1986) (noting that the requirement that a treaty be related to foreign relations "may well be implied in the word 'treaty' or 'agreement'"). The President and the Senate could not, for example, create a fully operating national health care system in the United States by treaty with Canada, although establishment of a joint, binational health care system by a treaty followed by implementing legislation would presumably be possible. The notion that structural considerations may limit what the President and Senate may achieve by treaty was the basis of the Court's inquiry in the leading case on the treaty power, Missouri v. Holland, 252 U.S. 416 (1920): "whether . . . some invisible radiation from the general terms of the Tenth Amendment" prohibited the treaty in question in that case. Id. at 433-34. Although the Court found no such prohibition there, it has long recognized that: The treaty power . . . is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent. De Geofroy v. Riggs, 133 U.S. 258, 267 (1890). There would seem to be limits to how far a treaty can go in achieving certain kinds of self-executing changes in United States law. The House of Representatives, for example, has a special constitutional role to play in raising revenue. See U.S. CONST, art. I, § 7, cl. 1 ("All Bills for raising Revenue shall originate in the House of Representatives. . . ."). The President could not enter into a self-executing treaty that would directly impose taxes on United States citizens or draw funds from the public treasury. See id. art. I, § 9, cl. 7 ("No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law . . . ."). Although these clauses constrain the self-executing nature of treaties, they do not provide sound support for avoiding the Treaty Clause by involving the House in the non-legislative task of approving international agreements. Professors Ackerman and Golove are simply wrong in stating that the Origination Clause, art I, § 7, cl. I, "makes House participation especially appropriate" in approving major trade agreements, see Ackerman & Golove, supra note 10, at 923, for the necessary involvement of the House of Representatives or Congress as a whole in implementing a treaty cannot support the conclusion that one might as well replace the Senate's supermajority with a bicameral majority in the process of approving a treaty. Non sequitur.
153. See Ackerman & Golove, supra note 10, at 919-22.
154. THE FEDERALIST No. 75, at 450-51 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
155. Indeed, the Supremacy Clause provides a bit of further textual evidence that these are distinct constitutional categories, for the Supremacy Clause separately mentions "the Laws of the United States which shall be made in Pursuance [of the Constitution]; and all Treaties made, or which shall be made, under the Authority of the United States." U.S. CONST, art. VI, cl. 2. There is another possible indication that the treaty-making power, including the power to approve treaties, is not properly considered "legislative": Article I, section I provides that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." Although all legislative power is vested in these two Houses, the Treaty Clause gives the President and the Senate the power to enter into treaties. (This argument rests on reading "herein" to refer to Articles I through VII, rather than just to Article I.)
156. Ackerman & Golove, supra note 10, at 920.
157. See, e.g., Dellinger Memorandum, supra note 47, at 9-10. It is interesting that Professors Ackerman and Golove, who wish to uphold a congressional role in the approval of international agreements, should fail even to mention this practice, which began seven decades before the rise of the congressional-executive agreement in the 1940S. Perhaps they chose not to draw attention to this congressional practice because it does not enhance their depiction of 1945 as a radical break with the past and a moment of constitutional transformation.
158. Before 1871, the United States governed and conducted affairs with Native American tribes both by legislation and by Senate-ratified treaties. See FELIX S. COHEN'S HANDBOOK OF FEDERAL INDIAN LAW 108 (Rennard Strickland ed., 3d ed. 1982). In 1871, the practice of making Senate-ratified treaties with Native American tribes came to an end. See id. at 105-07. To secure a guaranteed voice in Native American affairs, the House refused to appropriate funds for new treaties with Native American tribes, and the Senate thereupon capitulated to a legislative provision that effectively ended the making of treaties with Indian nations. See Antoine v. Washington, 420 U.S. 194, 202 (1975); FELIX S. COHEN'S HANDBOOK OF FEDERAL INDIAN LAW, supra, at 106-07. Congress declared that "no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty." Act of March 3, 1871, 16 Stat. 544, 566 (codified at 25 U.S.C. § 71 (1988)). After 1871, Congress regulated affairs with Native American tribes both by legislating and by bicamerally ratifying agreements negotiated by the Executive Branch. See Antoine, 420 U.S. at 203; FELIX S. COHEN'S HANDBOOK OF FEDERAL INDIAN LAW, supra, at 107, 127-28.
159. Before 1871, the United States governed and conducted affairs with Native American tribes both by legislation and by Senate-ratified treaties. See FELIX S. COHEN'S HANDBOOK OF FEDERAL INDIAN LAW 108 (Rennard Strickland ed., 3d ed. 1982). In 1871, the practice of making Senate-ratified treaties with Native American tribes came to an end. See id. at 105-07. To secure a guaranteed voice in Native American affairs, the House refused to appropriate funds for new treaties with Native American tribes, and the Senate thereupon capitulated to a legislative provision that effectively ended the making of treaties with Indian nations. See Antoine v. Washington, 420 U.S. 194, 202 (1975); FELIX S. COHEN'S HANDBOOK OF FEDERAL INDIAN LAW, supra, at 106-07. Congress declared that "no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty." Act of March 3, 1871, 16 Stat. 544, 566 (codified at 25 U.S.C. § 71 (1988)). After 1871, Congress regulated affairs with Native American tribes both by legislating and by bicamerally ratifying agreements negotiated by the Executive Branch. See Antoine, 420 U.S. at 203; FELIX S. COHEN'S HANDBOOK OF FEDERAL INDIAN LAW, supra, at 107, 127-28.
160. Before 1871, the United States governed and conducted affairs with Native American tribes both by legislation and by Senate-ratified treaties. See FELIX S. COHEN'S HANDBOOK OF FEDERAL INDIAN LAW 108 (Rennard Strickland ed., 3d ed. 1982). In 1871, the practice of making Senate-ratified treaties with Native American tribes came to an end. See id. at 105-07. To secure a guaranteed voice in Native American affairs, the House refused to appropriate funds for new treaties with Native American tribes, and the Senate thereupon capitulated to a legislative provision that effectively ended the making of treaties with Indian nations. See Antoine v. Washington, 420 U.S. 194, 202 (1975); FELIX S. COHEN'S HANDBOOK OF FEDERAL INDIAN LAW, supra, at 106-07. Congress declared that "no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty." Act of March 3, 1871, 16 Stat. 544, 566 (codified at 25 U.S.C. § 71 (1988)). After 1871, Congress regulated affairs with Native American tribes both by legislating and by bicamerally ratifying agreements negotiated by the Executive Branch. See Antoine, 420 U.S. at 203; FELIX S. COHEN'S HANDBOOK OF FEDERAL INDIAN LAW, supra, at 107, 127-28.
161. Antoine, 420 U.S. at 203. Congress's broad legislative power over Native American affairs is based upon the Indian Commerce Clause, U.S. CONST, art. I, § 8, cl. 3; the Property Clause, id. art. IV, § 3, cl. 2; the grant of authority over the admission of new states, id. art. IV, § 3, cl. 1; the grant of authority to make expenditures for the general welfare, id. art. I, § 8, cl. 1; and the provisions of Article I dealing with congressional war powers, see id. art. I, § 8, cls. 1, 11, 12, 15-17. See FELIX S. COHEN'S HANDBOOK OF FEDERAL INDIAN LAW, supra note 139, at 207-12.
162. See, e.g, Antoine, 420 U.S. at 204 ("Congress could constitutionally have terminated the northern half of the Colville Indian Reservation on the terms and conditions in the 1891 Agreement, even if that Agreement had never been made" (citation omitted).).
163. Professor Henkin has expressed a different view. See Henkin, supra note 117, at 920-21 (asserting "that the foreign affairs power of Congress . . . can support enactment of virtually any provision contained in any treaty in the history of the United States").
164. See Morton v. Mancari, 417 U.S. 535, 551 (1974) (noting both "the unique legal status of Indian tribes under federal law" and "the plenary power of Congress . . . to legislate on behalf of federally recognized Indian tribes").
165. I save for another day the question of the constitutionality of the 1871 Act that put an end to the practice of making Senate-ratified treaties with Native American tribes. Congress, of course, has no power to strip the President and the Senate of a constitutionally delegated power. If the President and the Senate have the constitutional power to enter treaties with Native American tribes, then the 1871 Act, in my view, can be constitutional only as an exercise of congressional power to define which groups qualify as Native American tribes. Because the 1871 Act preserves the validity of pre-1871 treaties, see 25 U.S.C. § 71 (1988), there is room to question whether the statute truly represents a congressional determination of tribal status. Consequently, were the Senate today to ratify by supermajority vote a treaty negotiated by the President with a Native American tribe, it is hard to imagine that such action would be subject to legitimate attack based on the 1871 ban on such treaties. This would probably be true even apart from the doctrine that, as between an Act of Congress and a conflicting treaty, the last in time prevails. See Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U.S. 581, 600 (1889); Edye v. Robertson (The Head Money Cases), 112 U.S. 580, 599 (1884).
166. See supra note 66.
167. James Madison, Speech to the House of Representatives (1791), reprinted in PAUL BREST & SANFORD LEVINSON, PROCESSES OF CONSTITUTIONAL DECISIONMAKING 10, 13 (3d ed. 1992). To be sure, Madison made this statement decades before Chief Justice Marshall announced his broad reading of the Necessary and Proper Clause in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). Nevertheless, the question whether an act is legislative to begin with is distinct from the question at issue in McCulloch - the reach of the clearly legislative power of Congress. In Professor Ackerman's Senate testimony and in a memorandum to 30 executive branch officials and members of Congress that was joined by 10 other law professors, Professor Ackerman seriously misrepresented a statement by James Madison as suggesting that the text of the Constitution "empowers the Congress to confirm Executive Agreements under Article one." Memorandum from Law Professors, supra note 40, at 2. Professor Ackerman and the professors who joined him cited as support a 1796 statement by James Madison that "nothing more was necessary on this point than to observe that the Constitution had as expressly and exclusively vested in Congress the power of making laws, as it had invested in the President and Senate the power of making treaties." Id. at 2; GATT Hearings, supra note 11, at 313 (statement of Prof. Bruce Ackerman). But Madison's statement concerned only the question whether the House of Representatives had a responsibility to pass legislation implementing the Jay Treaty, not whether the House had a role to play in the treaty's adoption. See Ackerman & Golove, supra note 10, at 812.
168. James Madison, Speech to the House of Representatives (1791), reprinted in PAUL BREST & SANFORD LEVINSON, PROCESSES OF CONSTITUTIONAL DECISIONMAKING 10, 13 (3d ed. 1992). To be sure, Madison made this statement decades before Chief Justice Marshall announced his broad reading of the Necessary and Proper Clause in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). Nevertheless, the question whether an act is legislative to begin with is distinct from the question at issue in McCulloch - the reach of the clearly legislative power of Congress. In Professor Ackerman's Senate testimony and in a memorandum to 30 executive branch officials and members of Congress that was joined by 10 other law professors, Professor Ackerman seriously misrepresented a statement by James Madison as suggesting that the text of the Constitution "empowers the Congress to confirm Executive Agreements under Article one." Memorandum from Law Professors, supra note 40, at 2. Professor Ackerman and the professors who joined him cited as support a 1796 statement by James Madison that "nothing more was necessary on this point than to observe that the Constitution had as expressly and exclusively vested in Congress the power of making laws, as it had invested in the President and Senate the power of making treaties." Id. at 2; GATT Hearings, supra note 11, at 313 (statement of Prof. Bruce Ackerman). But Madison's statement concerned only the question whether the House of Representatives had a responsibility to pass legislation implementing the Jay Treaty, not whether the House had a role to play in the treaty's adoption. See Ackerman & Golove, supra note 10, at 812.
169. See Ackerman & Golove, supra note 10, at 815, 817.
170. Congress does have a role to play in approving or authorizing non-treaty agreements between states and foreign governments. See infra Part IV.C.5.
171. See United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936) (identifying the power to make non-treaty international agreements as a power "inherently inseparable from the conception of nationality" (citation omitted)); B. Altman & Co. v. United States, 224 U.S. 583, 600-01 (1912).
172. U.S. CONST, art I, § 10, cl. 1.
173. Id. art. I, § 10, cl. 3.
174. Indeed, what the Framers saw as the defining distinctions among agreements, compacts, treaties, alliances, and confederations was lost even on the generation that followed the Framers. See United States Steel Corp. v. Multistate Tax Comm'n, 434 U.S. 452, 460-64 (1978).
175. See GATT Hearings, supra note 11, at 329 (testimony of Prof. Bruce Ackerman).
176. The correlation will not be exact, for Article I and the Supremacy Clause impose certain constraints on the states that are not placed on the President. But, in general, the features of an agreement between a state and a foreign country that would qualify it as a "treaty" under the Constitution are the same features that would make an otherwise identical agreement between the United States and that foreign country a "treaty" that, if negotiated by the President under Article II, would require Senate ratification.
177. See Ackerman & Golove, supra note 10, at 922.
178. See GATT Hearings, supra note 11, at 302-11 (statement of Prof. Laurence H. Tribe). The WTO Agreement certainly should have been processed as a treaty. In approving its participation in the WTO, the United States committed itself to "ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided" in the Uruguay Round agreements. Agreement Establishing the World Trade Organization, art. XVI, ¶ 4, Apr. 15, 1994, 33 I.L.M. 1144, 1152 [hereinafter WTO Agreement]. The agreement also calls for state and local measures to comply with Uruguay Round obligations. See id., Annex 1B, art. I, 33 I.L.M. at 1169. The WTO Agreement establishes an elaborate dispute resolution mechanism that includes a Dispute Settlement Body and an Appellate Body. See id., Annex 2, arts. 2, 17, 33 I.L.M. at 1226, 1236. Were any national, state, or local measure found to violate United States obligations under the Uruguay Round, the United States would be bound by that finding unless it could persuade the parties to the relevant agreement to overturn the adverse decision by consensus. If a violation were found and the United States were unable to work out terms for suitable compensation to the complaining member nation, then the United States would either have to accept trade sanctions or change the offending law. See id., Annex 2, art. 22, 33 I.L.M. at 1239-41. If the offending law were a state law, Congress could simply accept the imposition of trade sanctions, or the state could agree to change the law, or Congress could preempt the offending state law, or, under the implementing legislation, the United States could challenge the state law in federal court. See Uruguay Round Agreements Act, Pub. L. No. 103-465, § 102, 1995 U.S.C.C.A.N. (108 Stat.) 4809, 4815-19 (Dec. 8, 1994). These possibilities impose upon states considerable new burdens and vulnerabilities, which are exacerbated by the secretive dispute resolution procedures of the WTO. Although the final version of the implementing legislation provided some last-minute protections for the states and provided for the United States' possible withdrawal from the WTO if a United States panel determines that the results of the dispute settlement process repeatedly work to the unfair disadvantage of United States interests, see id. § 125, 1995 U.S.C.C.A.N. (108 Stat.) at 4833-34, participation in the WTO places substantial new burdens on state and national sovereignty. To say that an agreement that establishes such a World Trade Organization does not require processing as a treaty is to suggest a general rule regarding the Treaty Clause: trade agreements need not comply. See GATT Hearings, supra note 11, at 302-11 (statement of Prof. Laurence H. Tribe).
179. See GATT Hearings, supra note 11, at 302-11 (statement of Prof. Laurence H. Tribe). The WTO Agreement certainly should have been processed as a treaty. In approving its participation in the WTO, the United States committed itself to "ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided" in the Uruguay Round agreements. Agreement Establishing the World Trade Organization, art. XVI, ¶ 4, Apr. 15, 1994, 33 I.L.M. 1144, 1152 [hereinafter WTO Agreement]. The agreement also calls for state and local measures to comply with Uruguay Round obligations. See id., Annex 1B, art. I, 33 I.L.M. at 1169. The WTO Agreement establishes an elaborate dispute resolution mechanism that includes a Dispute Settlement Body and an Appellate Body. See id., Annex 2, arts. 2, 17, 33 I.L.M. at 1226, 1236. Were any national, state, or local measure found to violate United States obligations under the Uruguay Round, the United States would be bound by that finding unless it could persuade the parties to the relevant agreement to overturn the adverse decision by consensus. If a violation were found and the United States were unable to work out terms for suitable compensation to the complaining member nation, then the United States would either have to accept trade sanctions or change the offending law. See id., Annex 2, art. 22, 33 I.L.M. at 1239-41. If the offending law were a state law, Congress could simply accept the imposition of trade sanctions, or the state could agree to change the law, or Congress could preempt the offending state law, or, under the implementing legislation, the United States could challenge the state law in federal court. See Uruguay Round Agreements Act, Pub. L. No. 103-465, § 102, 1995 U.S.C.C.A.N. (108 Stat.) 4809, 4815-19 (Dec. 8, 1994). These possibilities impose upon states considerable new burdens and vulnerabilities, which are exacerbated by the secretive dispute resolution procedures of the WTO. Although the final version of the implementing legislation provided some last-minute protections for the states and provided for the United States' possible withdrawal from the WTO if a United States panel determines that the results of the dispute settlement process repeatedly work to the unfair disadvantage of United States interests, see id. § 125, 1995 U.S.C.C.A.N. (108 Stat.) at 4833-34, participation in the WTO places substantial new burdens on state and national sovereignty. To say that an agreement that establishes such a World Trade Organization does not require processing as a treaty is to suggest a general rule regarding the Treaty Clause: trade agreements need not comply. See GATT Hearings, supra note 11, at 302-11 (statement of Prof. Laurence H. Tribe).
180. See Letter from Anne-Marie Slaughter, Professor, Harvard Law School, to Sen. Ernest F. Hollings 2-10 (Oct. 18, 1994), reprinted in GATT Hearings, supra note 11, at 286-90.
181. Id. at 3-4, reprinted in GATT Hearings, supra note 11, at 287.
182. Id. at 4-5, reprinted in GATT Hearings, supra note 11, at 287.
183. James Madison argued that this would be the case with treaty commitments but for the Treaty Clause of Article U. See Levinson, supra note 44, at 16 & n. 10; supra p. 1264.
184. See United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 315-16 (1936) ("The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs.").
185. See infra note 165.
186. U.S. CONST. art. II, § 1, cl. 1.
187. Id. art. I, § 1 (emphasis added).
188. Alexander Hamilton drew attention to this difference between the grants of power in Articles I and II and argued that the President's authority is not limited to enumerated powers in the way that Congress's authority is. I am inclined to accept Hamilton's widely accepted reading of these grants of power. See also Myers v. United States, 272 U.S. 52, 118 (1926) (noting that "[t]he executive power was given in general terms," not as a list of enumerated powers). Nevertheless, many have taken exception to Hamilton's interpretation of the grant of executive power, beginning with James Madison and extending to modern scholars of international law. See HENKIN, supra note 96, at 42-44 & nn.9-17; Edward S. Corwin, The Steel Seizure Case: A Judicial Brick Without Straw, 53 COLUM. L. REV. 53, 53-55 (1953).
189. Cf. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (noting "the power to make such international agreements as do not constitute treaties in the constitutional sense"); id. at 319 (noting the President's unique role in negotiation, which "Congress itself is powerless to invade").
190. Because the powers of the purse are reposed in Congress, see supra note 133, the President could not effectuate such a tax increase under his own steam.
191. U.S. CONST. art. I, § 9, cl. 8.
192. See id. art. I, § 10, cl. 2.
193. Id. art. I, § 10, cl. 3. Congress is also given certain powers outside Article I - for example, to regulate public records, see id. art. IV, § 1; to admit new states or consent to the formation of new states from other states or parts thereof, see id. art. IV, § 3, cl. 1; to "make all needful Rules and Regulations respecting the Territory or other Property" of the United States, id. art. IV, § 3, cl. 2; and to propose constitutional amendments, see id. art. V.
194. See supra pp. 1265-66.
195. Professors Ackerman and Golove have made bizarre use of the Compact Clause in their effort to find textual support for their view that Congress has a role - though not mentioned anywhere in the Constitution - to play in the approval of agreements between the United States and foreign nations. Indeed, they seem to have applied the maxim expressio unius est inclusio atterius to the Compact Clause. In a letter to President Clinton, Professors Ackerman and Golove defended Congress's role in the ratification of international agreements. In a section of their letter entitled "Text," they led with the argument: [The Constitution] does not grant the Senate a constitutional monopoly over international agreements. It explicitly contemplates cases in which both Houses of Congress supervise the process of agreement-making. Consider the clause which expressly forbids the states from entering "any Agreement or Compact with another State, or with a foreign Power" unless they receive "the Consent of Congress." Letter from Bruce Ackerman, Professor, Yale Law School, and David Golove, Professor, University of Arizona College of Law to President William Clinton 1 (Sept. 21, 1994) (on file with the Harvard Law School Library). Professor Ackerman and Professor Golove seemed to invoke the Compact Clause to suggest that Congress could approve agreements between the United States and foreign nations. There is an intuitive appeal to the idea that, if Congress can approve the states' agreements with foreign nations - presumably even an agreement involving all 50 states - then Congress should likewise be able to approve agreements negotiated by the President on behalf of the United States as a whole. Nevertheless, what seems intuitively best may not be constitutionally provided. One can be puzzled that the Framers did not give Congress the power to approve at least some kinds of agreements made by the President with foreign nations - a power that I, too, once assumed must somehow exist. See supra note 47. But a puzzle does not constitute a source of congressional authority within a constitutional framework that treats Congress as having only those powers delegated to it by the document. Consider further that, as a direct result of the text of the Compact Clause and the Veto Override Clause, congressional supermajority approval suffices for states to enter certain international agreements - but never treaties - even against the wishes of the President. This renders all the more remarkable a constitutional interpretation that would allow Congress to make what amount to treaties over presidential veto.
196. Ackerman & Golove, supra note 10, at 921 n.514 (emphasis added).
197. But see GATT Hearings, supra note 11, at 329 (testimony of Prof. Bruce Ackerman) (noting that the Constitution's ban on state treaties "does not touch the question of what the proper construction of Article I is").
198. See supra pp. 1265-69. Of course, the Treaty Clause of Article II would also seem to make a "treaty" out of any agreement approved in accordance with the Treaty Clause's terms, even if the President would not have actually needed Senate supermajority approval of the agreement.
199. See, e.g., Weiss v. United States, 114 S. Ct. 752, 764 (1994) (Souter, J., concurring); Morrison v. Olson, 487 U.S. 654, 670-71 (1988); id. at 715, 723 (Scalia, J., dissenting); Buckley v. Valeo, 424 U.S. 1, 132 (1976).
200. See Weiss, 114 S. Ct. at 767-68 (Souter, J., concurring).
201. See supra Part III.B.
202. See Freytag v. Commissioner, 501 U.S. 868, 880 (1991) ("Neither Congress nor the Executive can agree to waive this structural protection [of the Appointments Clause]. . . . The structural interests protected by the Appointments Clause are not those of any one Branch of government but of the entire Republic."). This principle applies equally to the Appointments Clause's neighbor, the Treaty Clause. This interpretation of clause 2 finds support in Justice Souter's concurring opinion in Weiss, in which the Supreme Court upheld the current procedure for appointing military judges. Insisting that the appointment of principal officers requires the consent of the Senate, Justice Souter emphasized that the Senate may not abdicate its constitutionally provided role in the appointments Process, for the protections afforded by the Appointments Clause's structure belong to the entire country, not merely to the Senate. See Weiss, 114 S. Ct. at 766 (Souter, J., concurring). As Justice Souter noted, when the Constitution provides a structural framework for particular government decisions, that framework must be followed. Id. at 764.
203. Ackerman & Golove, supra note 10, at 924 n.517.
204. See id. I have never suggested that the Appointments Clause provides a fail-safe proof of the exclusivity of the Treaty Clause procedure. Rather, I contend only that it is essential to the project of constitutional construction to consider how different parts of the Constitution fit together. Professor Ackerman has attempted to get enormous mileage out of the absence of the word "only" both in Article V and in the Treaty Clause. He should thus be prepared to explain why the absence of the word "only" in a clause such as the Appointments Clause - which he never suggests creates an optional procedure for the confirmation of principal officers - should not carry the same significance that the absence of the word "only" carries earlier in the same sentence, in the Treaty Clause. I regard it as a wiser course in constitutional interpretation to begin with the presumption that those provisions of the Constitution that call into being the very architecture of our government provide specific and exclusive instructions, not mere options. See supra Parts III.B. and III.C.
205. The counterarguments offered by Professors Ackerman and Golove are deeply flawed. They suggest that the Appointment Clause's supposedly explicit restriction on congressional power with respect to appointments - what they label the "unmistakable language" of exclusivity in the Appointments Clause - might be seen as indicating that the Constitution is explicit wherever it intends to limit congressional power. See Ackerman & Golove, supra note 10, at 923 n.517. This argument is particularly odd, for the Appointments Clause provides no more "unmistakable language" of exclusivity than does the Treaty Clause. Professors Ackerman and Golove also counter that, because the Appointments Clause expressly distinguishes between principal and inferior officers while the Treaty Clause only mentions treaties, there must be no distinction between treaties and other types of international agreements - those that perhaps need not comply with the Treaty Clause requirements. See id. This is downright silly. The Appointments Clause mentions both principal and inferior officers only because it makes separate provision for the appointment of each type. Indeed, the Appointments Clause explicitly provides for the appointments of "all other Officers of the United States, whose Appointments are not herein otherwise provided for." U.S. CONST, art. II, § 2, cl. 2 (emphasis added). The Treaty Clause, by contrast, makes no effort to provide for the approval of all types of international agreements. Rather, it provides only for approval of treaties.
206. See supra p. 1224.
207. See U.S. CONST, art. I, § 3, cl. 3.
208. See supra pp. 1272-73.
209. See e.g., Ackerman & Golove, supra note 10, at 913-14.
210. 5 U.S. (1 Cranch) 137 (1803).
211. See U.S. CONST, art. III, § 2, cl. 2; William W. Van Alstyne, A Critical Guide to Marbury v. Madison, 1969 DUKE L.J. 1, 30-33 (discussing this point).
212. Although Marbury (1803) preceded McCulloch (1819), the Necessary and Proper Clause was there for use by Marshall even in 1803, and the holding of Marbury surely remains good law.
213. See, for example, the Memorandum from Law Professors cited above in note 40, which offers only a sparse treatment of textual and structural concerns.
214. See Ackerman & Golove, supra note 10, at 861-62.
215. See supra p. 1230.
216. See supra note 18.
217. Professors Ackerman and Golove describe the Trade Act of 1974, Pub. L. No. 93-618, 88 Stat. 1978 (1975), with its provision for "fast-track" processing of international agreements, as "one of the great successes of modern American government." Ackerman & Golove, supra note 10, at 906. On a practical level, the jury may still be out on that claim. The then-Chairman of the Senate Commerce Committee expressed doubt about Professor Ackerman's description of the process that produced the Uruguay Round of GATT as "the result of many years of fruitful collaboration between Congress and the Executive [that] should serve as a constitutional exemplar for future decisionmaking." GATT Hearings, supra note 11, at 323-24 (statement of Sen. Ernest F. Hollings) (complaining about "freebie[s]" in the Uruguay Round and noting "we cannot amend it, we cannot read it, we cannot discuss it, we cannot debate it"). As a matter of constitutional law, it seems plain that the Trade Act of 1974 or any similar legislation cannot give Congress approval power it would not otherwise have.
218. See GATT Hearings, supra note 11, at 290-312 (statement of Prof. Laurence H. Tribe); supra note 156. I do not consider the specific terms of any other agreement in the limited space available to me here, and accordingly I offer no definitive assessments of other significant international agreements, such as NAFTA and our trade agreements with Israel and Canada. An analysis of those agreements might suggest that much of what they accomplish - such as the setting of tariff rates - would not so affect state or national sovereignty as to require Treaty Clause Procedures. I invite other scholars both to consider my arguments about the constraints on Congress's Article I powers and to apply these arguments to specific international agreements.
219. See id. at 315 (statement of Prof. Bruce Ackerman).
220. Letter from Bruce Ackerman and David Golove to President William Clinton, supra note 172, at 3.
221. Field v. Clark, 143 U.S. 649, 683 (1892).
222. INS v. Chadha, 462 U.S. 919, 944-45 (1983) (emphasis added).
223. U.S. CONST. art. I, § 2, cl. 5; id. art. I, § 3, cl. 6.
224. See supra note 35; Ackerman, supra note 13, at 77-82; Ackerman & Golove, supra note 10, at 909-13.
225. Ackerman & Golove, supra note 10, at 913.
226. Id.
227. See id. at 883-89, 913.
228. Id. at 912.
229. Id.
230. The International Monetary Fund and the International Bank for Reconstruction and Development, or World Bank, are specialized agencies of the United Nations. The World Bank was established to provide financial support for long-term economic development projects; the International Monetary Fund was designed primarily to provide member nations with temporary assistance in making foreign payments. See GIUSEPPE SCHIAVONE, INTERNATIONAL ORGANIZATIONS 133-34, 155 (3d ed. 1993).
231. See Ackerman & Golove, supra note 10, at 911-13.
232. Id. at 913.
233. Professor Ackerman seems to have been far too creative about what, if anything, the people authorized in the election of 1944. Cf. Frederick Schauer, Deliberating About Deliberation, 90 MICH. L. REV. 1187, 1196 (1992) (reviewing 1 ACKERMAN, supra note 11) (describing as "strained" Professor Ackerman's "interpretation of what the people were actually talking about in 1787, 1791, 1866, or 1937"). Did the people truly wish to abandon an exclusive reading of the Treaty Clause, or did they simply wish to see the establishment of a lasting peace? Indeed, perhaps Professor Ackerman has read the moment all wrong and the events in the 1940s should be seen as providing popular ratification of the United Nations Charter rather than popular approval of the congressional-executive agreement form. If, as Professor Ackerman has argued, We the People can amend the Constitution outside Article V, then should there not also be ways for "We the People" to take the lesser steps of approving a Treaty ourselves or of adopting legislation outside Article I? Professor Ackerman's distinction between ordinary politics and constitutional politics seems too artificial to explain what the people may accomplish outside the procedures specified in the Constitution. After all, the people could easily be more mobilized around an international agreement that would restore peace after a bitter war than they would be with respect to a change in the constitutionally mandated procedure for entering international agreements. Why, then, should not some combination of impasse, electoral mandate, and Senate acquiescence suffice to approve a treaty - much as Professor Ackerman has argued they justify circumventing the amendment process delineated in Article V? See Ackerman, supra note 13, at 78-79. Furthermore, what if this is all that the People intended in the elections of 1944 - not necessarily to change the meaning of the Treaty Clause, but just to approve the particular agreements that were then or would be soon pending, such as the United Nations Charter and the Bretton Woods Agreement? Under Professor Ackerman's dualism, the People are not very involved in ordinary politics, See 1 ACKERMAN, supra note 11, at 230-31, 234-35. Thus, even if the people in 1945 did mean simply to approve these specific agreements, but subsequent leaders all mistook this limited mandate as a call for the general use of congressional-executive agreements, under Professor Ackerman's theory the people should have raised little or no protest because each subsequent individual international agreement would have appeared to be about only ordinary politics. Consequently, the People should be expected to have gone about their business with little regard for what their representatives were doing. A limited mandate to disregard the Treaty Clause just once could thereby mushroom into Professor Ackerman's vision of the all-powerful congressional-executive agreement. The far sounder view is that, in our republican form of government, a general election provides no mandate for specific reform that can be seen as providing legal validation of that reform.
234. Cf. Korematsu v. United States, 323 U.S. 214, 244-48 (1944) (Jackson, J., dissenting) (arguing that the Court should at least have avoided giving its blessing to the relocation of Americans of Japanese descent even if the Court felt bound not to interfere with the executive orders at issue).
235. See infra Part V.C.
236. Ackerman & Golove, supra note 10, at 924.
237. Id. at 929. Actually, the issues whether and why to follow the choices of a prior generation - especially when those choices are not enshrined in constitutional text - are far more complicated than this flag-waving sermon suggests. See, e.g., Don Herzog, Democratic Credentials, 104 ETHICS 467, 473-75 (1994).
238. 1 ACKERMAN, supra note 11, at 5.
239. Michael W. McConnell, The Forgotten Constitutional Moment, 11 CONST. COMMENTARY 115, 115 (1994). Professor McConnell notes that, although "[s]ometimes theory derives from history," at other times "history trips up theory, when events stubbornly refuse to conform to the theory we have laid out." Id. Professor McConnell has cogently illustrated the malleability of Professor Ackerman's theory of constitutional moments by demonstrating that the end of Reconstruction fits the criteria spelled out by Professor Ackerman for a constitutional moment. See id. at 122-40. Thus, Professor McConnell suggests that the elections of 1874 and 1876, combined with the Compromise of 1877 and the Supreme Court's decisions in a string of cases culminating in Plessy v. Ferguson, 163 U.S. 537 (1896), could be seen as casting constitutional legitimacy upon Jim Crow if we were to accept Professor Ackerman's credo that popular movements can grant constitutional status to something other than an amendment processed in accordance with Article V. See McConnell, supra, at 122-40.
240. Physics is a field, in contrast, in which scholars hope that theories developed to explain extraordinary phenomena such as black holes will actually be part of a unified scientific theory that can explain "lesser" physical phenomena. See KIP S. THORNE, BLACK HOLES AND TIME WARPS 84-86 (1994). The science of Einstein is, after all, capable of explaining those things that Newton's more limited theory can also explain.
241. See 1 ACKERMAN, supra note 11, at 6-7.
242. Ackerman, supra note 13, at 69. Professor Ackerman contends that Article VII of the 1787 Constitution, which provides that ratification of the Constitution by "the Conventions of nine States shall be sufficient for the Establishment of this Constitution," U.S. CONST. art. VII, violates the requirement in Article XIII of the 1781 Articles of Confederation that any change in the Articles be confirmed by the legislatures of all 13 states, see ART. OF CONFED. art XIII. See 1 ACKERMAN, supra note 11, at 168; Ackerman, supra note 13, at 68-69. In Professor Ackerman's words, "[i]f the Federalists had played the game defined by these rules, their Constitution never would have been ratified." Id. at 68.
243. Ackerman, supra note 13, at 69.
244. Compare id. at 68-69 (depicting the Constitution's adoption as a violation of the Articles of Confederation and as an example of an "unconventional" but legitimate process of institutional change) with Amar, supra note 72, at 462-94 (arguing for the legality of the Constitution's adoption and for the constitutional right of the people to amend the Constitution outside Article V).
245. See Amar, supra note 72, at 462 & nn.12-13, 463 & n.14, 464-69. Professor Amar argues that there was no illegality in the method of the Constitution's adoption, because the Articles of Confederation had lost their legally binding character and because the people of the states had reserved their sovereignty in their state constitutions and so could consent to a fundamental restructuring of the legal order. See id. at 457-58, 469-75; see also Akhil R. Amar, Philadelphia Revisited: Amending the Constitution Outside Article V, 55 U. CHI. L. REV. 1043, 1047-76 (1988) (putting forth an earlier set of arguments for the nonexclusivity of Article V). Professor Amar argues that the Articles of Confederation, properly viewed as a treaty among independent sovereign states, was no longer binding, as a result of what James Madison identified as "numerous [and] notorious" violations of those Articles. Amar, supra note 72, at 465-66 (quoting 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 315 (Max Farrand ed., rev. ed. 1937)) . Professor Amar concludes that, "under well-established legal principles in 1787, these material breaches freed each compacting party - each state - to disregard the pact, if it so chose." Id. at 465. But see 1 ACKERMAN, supra note 11, at 41 n.4 (criticizing and rejecting Professor Amar's case for the legality of the Constitution's ratification); Bruce A. Ackerman, The Storrs Lectures: Discovering the Constitution, 93 YALE L.J. 1013, 1058 (1984) (labeling the Constitution's ratification "plainly illegal"); Bruce Ackerman & Neal K. Katyal, Our Unconventional Founding, 62 U. CHI. L. REV. (forthcoming Apr. 1993) (providing an historical response to Professor Amar's claims). As the debate between Professors Ackerman and Amar illustrates, whether inconsistency with Article XIII of the Articles of Confederation amounts to illegality depends upon what one views as the relevant preexisting law: the Articles of Confederation, or international law principles linking the perpetuity of treaties with their inviolate observation.
246. See Amar, supra note 72, at 462 & nn.12-13, 463 & n.14, 464-69. Professor Amar argues that there was no illegality in the method of the Constitution's adoption, because the Articles of Confederation had lost their legally binding character and because the people of the states had reserved their sovereignty in their state constitutions and so could consent to a fundamental restructuring of the legal order. See id. at 457-58, 469-75; see also Akhil R. Amar, Philadelphia Revisited: Amending the Constitution Outside Article V, 55 U. CHI. L. REV. 1043, 1047-76 (1988) (putting forth an earlier set of arguments for the nonexclusivity of Article V). Professor Amar argues that the Articles of Confederation, properly viewed as a treaty among independent sovereign states, was no longer binding, as a result of what James Madison identified as "numerous [and] notorious" violations of those Articles. Amar, supra note 72, at 465-66 (quoting 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 315 (Max Farrand ed., rev. ed. 1937)) . Professor Amar concludes that, "under well-established legal principles in 1787, these material breaches freed each compacting party - each state - to disregard the pact, if it so chose." Id. at 465. But see 1 ACKERMAN, supra note 11, at 41 n.4 (criticizing and rejecting Professor Amar's case for the legality of the Constitution's ratification); Bruce A. Ackerman, The Storrs Lectures: Discovering the Constitution, 93 YALE L.J. 1013, 1058 (1984) (labeling the Constitution's ratification "plainly illegal"); Bruce Ackerman & Neal K. Katyal, Our Unconventional Founding, 62 U. CHI. L. REV. (forthcoming Apr. 1993) (providing an historical response to Professor Amar's claims). As the debate between Professors Ackerman and Amar illustrates, whether inconsistency with Article XIII of the Articles of Confederation amounts to illegality depends upon what one views as the relevant preexisting law: the Articles of Confederation, or international law principles linking the perpetuity of treaties with their inviolate observation.
247. See Amar, supra note 72, at 462 & nn.12-13, 463 & n.14, 464-69. Professor Amar argues that there was no illegality in the method of the Constitution's adoption, because the Articles of Confederation had lost their legally binding character and because the people of the states had reserved their sovereignty in their state constitutions and so could consent to a fundamental restructuring of the legal order. See id. at 457-58, 469-75; see also Akhil R. Amar, Philadelphia Revisited: Amending the Constitution Outside Article V, 55 U. CHI. L. REV. 1043, 1047-76 (1988) (putting forth an earlier set of arguments for the nonexclusivity of Article V). Professor Amar argues that the Articles of Confederation, properly viewed as a treaty among independent sovereign states, was no longer binding, as a result of what James Madison identified as "numerous [and] notorious" violations of those Articles. Amar, supra note 72, at 465-66 (quoting 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 315 (Max Farrand ed., rev. ed. 1937)) . Professor Amar concludes that, "under well-established legal principles in 1787, these material breaches freed each compacting party - each state - to disregard the pact, if it so chose." Id. at 465. But see 1 ACKERMAN, supra note 11, at 41 n.4 (criticizing and rejecting Professor Amar's case for the legality of the Constitution's ratification); Bruce A. Ackerman, The Storrs Lectures: Discovering the Constitution, 93 YALE L.J. 1013, 1058 (1984) (labeling the Constitution's ratification "plainly illegal"); Bruce Ackerman & Neal K. Katyal, Our Unconventional Founding, 62 U. CHI. L. REV. (forthcoming Apr. 1993) (providing an historical response to Professor Amar's claims). As the debate between Professors Ackerman and Amar illustrates, whether inconsistency with Article XIII of the Articles of Confederation amounts to illegality depends upon what one views as the relevant preexisting law: the Articles of Confederation, or international law principles linking the perpetuity of treaties with their inviolate observation.
248. See Amar, supra note 72, at 462 & nn.12-13, 463 & n.14, 464-69. Professor Amar argues that there was no illegality in the method of the Constitution's adoption, because the Articles of Confederation had lost their legally binding character and because the people of the states had reserved their sovereignty in their state constitutions and so could consent to a fundamental restructuring of the legal order. See id. at 457-58, 469-75; see also Akhil R. Amar, Philadelphia Revisited: Amending the Constitution Outside
249. See Amar, supra note 72, at 487-94.
250. See supra Part III.B.
251. See John M. Rogers & Robert E. Molzon, Some Lessons About the Law From Self-Referential Problems in Mathematics, 90 MICH. L. REV. 992, 1005-06 (1992) (analyzing the need to "step outside of the system" to answer meta-questions about constitutional amendability). This problem is not unique to the law. Cf. DOUGLAS R. HOFSTADTER, GÖDEL, ESCHER, BACH 20-21 (1979) (presenting several classic puzzles of self-reference). Hofstadter presents as one example of a problem of self-reference the "Grelling's paradox." See id. Suppose that we decide to divide the universe of adjectives into two types, those that describe themselves (for example, "pentasyllabic" and "awkwardnessful") and those that do not (for example, "bisyllabic" and "edible"). In which group does the adjective "non-selfdescriptive" belong? Think about it for a while and you will see that the answer is "neither." See id. This paradox is first cousin to the famous "Russell's paradox," which illustrates the well-known problems that can arise from trying to make sets contain themselves. See id. at 20. The mathematician Kurt Gödel showed that no finite, consistent axiomatic system can provide for the proof of its own consistency. See id. at 17-18, 24. Trying to show that legal systems establish their own legality can similarly lead to unresolvable problems. See also Frederick Schauer, Amending the Presuppositions of a Constitution, in RESPONDING TO IMPERFECTION, supra, note 13, at 145, 145 ("Constitutions establish the grounds for constitutionality and unconstitutionality, and in so doing they simply cannot themselves be either constitutional or unconstitutional.").
252. See John M. Rogers & Robert E. Molzon, Some Lessons About the Law From Self-Referential Problems in Mathematics, 90 MICH. L. REV. 992, 1005-06 (1992) (analyzing the need to "step outside of the system" to answer meta-questions about constitutional amendability). This problem is not unique to the law. Cf. DOUGLAS R. HOFSTADTER, GÖDEL, ESCHER, BACH 20-21 (1979) (presenting several classic puzzles of self-reference). Hofstadter presents as one example of a problem of self-reference the "Grelling's paradox." See id. Suppose that we decide to divide the universe of adjectives into two types, those that describe themselves (for example, "pentasyllabic" and "awkwardnessful") and those that do not (for example, "bisyllabic" and "edible"). In which group does the adjective "non-selfdescriptive" belong? Think about it for a while and you will see that the answer is "neither." See id. This paradox is first cousin to the famous "Russell's paradox," which illustrates the well-known problems that can arise from trying to make sets contain themselves. See id. at 20. The mathematician Kurt Gödel showed that no finite, consistent axiomatic system can provide for the proof of its own consistency. See id. at 17-18, 24. Trying to show that legal systems establish their own legality can similarly lead to unresolvable problems. See also Frederick Schauer, Amending the Presuppositions of a Constitution, in RESPONDING TO IMPERFECTION, supra, note 13, at 145, 145 ("Constitutions establish the grounds for constitutionality and unconstitutionality, and in so doing they simply cannot themselves be either constitutional or unconstitutional.").
253. See John M. Rogers & Robert E. Molzon, Some Lessons About the Law From Self-Referential Problems in Mathematics, 90 MICH. L. REV. 992, 1005-06 (1992) (analyzing the need to "step outside of the system" to answer meta-questions about constitutional amendability). This problem is not unique to the law. Cf. DOUGLAS R. HOFSTADTER, GÖDEL, ESCHER, BACH 20-21 (1979) (presenting several classic puzzles of self-reference). Hofstadter presents as one example of a problem of self-reference the "Grelling's paradox." See id. Suppose that we decide to divide the universe of adjectives into two types, those that describe themselves (for example, "pentasyllabic" and "awkwardnessful") and those that do not (for example, "bisyllabic" and "edible"). In which group does the adjective "non-selfdescriptive" belong? Think about it for a while and you will see that the answer is "neither." See id. This paradox is first cousin to the famous "Russell's paradox," which illustrates the well-known problems that can arise from trying to make sets contain themselves. See id. at 20. The mathematician Kurt Gödel showed that no finite, consistent axiomatic system can provide for the proof of its own consistency. See id. at 17-18, 24. Trying to show that legal systems establish their own legality can similarly lead to unresolvable problems. See also Frederick Schauer, Amending the Presuppositions of a Constitution, in RESPONDING TO IMPERFECTION, supra, note 13, at 145, 145 ("Constitutions establish the grounds for constitutionality and unconstitutionality, and in so doing they simply cannot themselves be either constitutional or unconstitutional.").
254. See LUDWIG WITTGENSTEIN, ON CERTAINTY § 200, at 27e (G.E.M. Anscombe & G.H. von Wright eds. & Denis Paul & G.E.M. Anscombe trans., 1969).
255. See H.L.A. Hart's discussion of rules of recognition by which we can identify what is a law in H.L.A. HART, THE CONCEPT OF LAW 97-114 (1961). Frederick Schauer rightly notes that, with respect to what makes rules of recognition themselves valid, "the ultimate rule of recognition is a. matter of social fact" and need not be a "rule." Schauer, supra note 225, at 150 (emphasis omitted). For Professor Schauer, "[t]he ultimate source of law . . . is better described as the practice by which it is determined that some things are to count as law and some things are not." Id. at 150-51. Professor Schauer concludes that whether the practices of citizens and public officials have in fact effected a constitutional amendment outside the Constitution's own provisions or amendment is "a question of social and political fact and not a question of law." Id. at 161. My view of Article V as providing the only methods of amendment that meet the Constitution's own requirements is consistent with Professor Schauer's point. I take exception, however, to the arguments of Professors Amar and Ackerman that the text of the Constitution is rightly seen as itself allowing alternative modes of amendment and the suggestion that the legality or illegality of the Constitution's adoption speaks to Article V's exclusivity as a matter of constitutional law.
256. David Dow draws a useful distinction between the power to change a government and the legal right to do so, and suggests correctly that the Constitution speaks only to the latter. See Dow, supra note 64, at 117, 123-25, 136-39; see also Kent Greenawalt, Dualism and Its Status, 104 ETHICS 480, 484 (1994) (noting that attempts to change the Constitution might be "considered justified in political morality" though in excess of "legal authority").
257. Indeed, even if one follows Professor Amar and finds the 1787 Constitution's ratification to be lawful because the states under the Articles of Confederation had retained their independent sovereignty and because sovereignty within the states rested with the people, the ratification of the Constitution - given the exclusion of women, slaves, Native Americans, and the propertyless - never was a genuine exercise of truly popular sovereignty. See Laurence H. Tribe, Federal Judicial Power and the "Consent" of the Governed, in THE UNITED STATES CONSTITUTION: ROOTS, RIGHTS, AND RESPONSIBILITIES 207, 209 (A.E. Dick Howard ed., 1992). Because particular groups were excluded from political participation in the ratification and amendment of the Constitution, "consent is an ultimately illusory source of legitimacy for the enterprise of constitutional interpretation." Id. Professor Sherry has suggested that the Founding and Reconstruction might not even meet Professor Ackerman's requirement that a constitutional moment of higher lawmaking involve more deliberation than mere ordinary politics. Professor Sherry writes that there may be historical evidence that "although certain mobilized elites pushed through their proposals, general popular participation may have been no wider or deeper than usual." Sherry, supra note 38, at 928 n.31; see also Bobbitt supra note 72, at 1899 (noting that the Framers and ratifiers of the Constitution did not envision a public actively involved in politics, but "were sensitive to [majoritarianism's] dangers and erected many barriers to majorities").
258. See Ackerman, supra note 13, at 72-80.
259. See ERIC FONER, RECONSTRUCTION: AMERICA'S UNFINISHED REVOLUTION, 1863-1877, at 276 (1988) . Although lawyers may not have given adequate attention to those "irregularities," historians took note decades ago. See, e.g., JOSEPH B. JAMES, THE FRAMING OF THE FOURTEENTH AMENDMENT 174-76 (1965); William W. Fisher III, The Defects of Dualism, 59 U. CHI. L. REV. 955, 962 & n.12 (1992) (reviewing 1 ACKERMAN, supra note 11) (citing J.G. RANDALL & DAVID DONALD, THE CIVIL WAR AND RECONSTRUCTION 633-37 (2d ed. 1961)).
260. See ERIC FONER, RECONSTRUCTION: AMERICA'S UNFINISHED REVOLUTION, 1863-1877, at 276 (1988) . Although lawyers may not have given adequate attention to those "irregularities," historians took note decades ago. See, e.g., JOSEPH B. JAMES, THE FRAMING OF THE FOURTEENTH AMENDMENT 174-76 (1965); William W. Fisher III, The Defects of Dualism, 59 U. CHI. L. REV. 955, 962 & n.12 (1992) (reviewing 1 ACKERMAN, supra note 11) (citing J.G. RANDALL & DAVID DONALD, THE CIVIL WAR AND RECONSTRUCTION 633-37 (2d ed. 1961)).
261. See ERIC FONER, RECONSTRUCTION: AMERICA'S UNFINISHED REVOLUTION, 1863-1877, at 276 (1988) . Although lawyers may not have given adequate attention to those "irregularities," historians took note decades ago. See, e.g., JOSEPH B. JAMES, THE FRAMING OF THE FOURTEENTH AMENDMENT 174-76 (1965); William W. Fisher III, The Defects of Dualism, 59 U. CHI. L. REV. 955, 962 & n.12 (1992) (reviewing 1 ACKERMAN, supra note 11) (citing J.G. RANDALL & DAVID DONALD, THE CIVIL WAR AND RECONSTRUCTION 633-37 (2d ed. 1961)).
262. See ERIC FONER, RECONSTRUCTION: AMERICA'S UNFINISHED REVOLUTION, 1863-1877, at 276 (1988) . Although lawyers may not have given adequate attention to those "irregularities," historians took note decades ago. See, e.g., JOSEPH B. JAMES, THE FRAMING OF THE FOURTEENTH AMENDMENT 174-76 (1965); William W. Fisher III, The Defects of Dualism, 59 U. CHI. L. REV. 955, 962 & n.12 (1992) (reviewing 1 ACKERMAN, supra note 11) (citing J.G. RANDALL & DAVID DONALD, THE CIVIL WAR AND RECONSTRUCTION 633-37 (2d ed. 1961)).
263. Ackerman, supra note 13, at 73. As I write this piece, the second volume of Professor Ackerman's series, We the People: Transformations, remains unpublished. Professor Ackerman has promised that in this second volume he will explain in detail his understanding of the events surrounding the ratification of the Fourteenth Amendment and the significance of those events for constitutional theory. See id.
264. See id. at 77-78.
265. Id. at 78. Professor Ackerman seems far too impatient with state-centered forms of national decisionmaking. Like Professor Amar, he has sought to sidestep the state-centered amendatory process of Article V. Professors Ackerman and Golove also seem unconcerned with the Treaty Clause's commitment of decisionmaking to the Senate, the only legislative body that represents the states equally. See Ackerman & Golove, supra note 10, at 870-71. But the congressional elections of 1994, which yielded a Congress that seems likely to be committed to a devolution of power to the states, may serve in part to validate the earlier observation of Thomas Landry that "the continued demand by the People of the States for local sovereignty cannot be ignored. The case for national popular sovereignty for amendments is hard to make when we nave not abandoned the principles of equal state representation in the Senate and limited national powers." Landry, supra note 74, at 288-89, (reviewing 1 ACKERMAN, supra note 11) (citation omitted). The national majority does not always rule under our constitutional form of government, for on many matters the nation is not authorized to express its will independently of the states. Our Constitution's architecture contains no mechanism through which the nation's people act directly as an unmediated collectivity. See id. at 288 n.84 (countering Professor Amar's challenge to the concept of state sovereignty in Akhil R. Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1426-27, 1519-20 (1987)).
266. Professor Robert Lipkin shares this view: [T]hough the Fourteenth Amendment was ratified in an atypical manner, it would be foolish to canonize this event by making it an exemplar of future informal amendments. Nothing should follow from these extraordinary circumstances, certainly not a change in the procedure for Amending [sic] the Constitution. Robert J. Lipkin, Can American Constitutional Law Be Postmodern?, 42 BUFF. L. REV. 317, 352 n.102 (1994). It is also doubtful that Reconstruction Republicans saw themselves as creating a new method for constitutional amendment. See Greenawalt, supra note 228, at 487. As Thomas Landry notes, the very determination of the Reconstruction Congress to force the South to ratify the Fourteenth Amendment through Article V procedures suggests that it is improper to read the history of the Fourteenth Amendment as license to circumvent Article V. See Landry, supra note 74, at 285.
267. Ackerman, supra note 13, at 78.
268. Id. at 73.
269. Lochner v. New York, 198 U.S. 45, 53 (1905) (invalidating state maximum-hours legislation for bakers under the "liberty" prong of the Due Process Clause of the Fourteenth Amendment).
270. See Ackerman, supra note 13, at 82.
271. As Chief Justice Marshall noted in his great opinion in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 406 (1819), the omission of the word "expressly" from the Tenth Amendment was designed to avoid "the embarrassments resulting from the insertion of this word in the articles of confederation." Id. This deletion, along with the text of the Necessary and Proper Clause, showed that the federal government has powers implied by the Constitution's express delegations. For the view that McCulloch's interpretation was nonetheless so radical as to be an amendment in disguise, see JAMES B. WHITE, WHEN WORDS LOSE THEIR MEANING 263 (1984).
272. See, e.g., Hammer v. Dagenhart, 247 U.S. 251, 275-76 (1918).
273. Even then I would question the propriety of demanding an amendment simply to effectuate what was, after all, only a correction in a temporary course of judicial interpretatio.
274. See Hammer, 247 U.S. at 275-76.
275. See West Coast Hotel Co. v. Parrish, 300 U.S. 379, 398-400 (1937) (upholding Washington's minimum wage legislation). There were two significant changes in Supreme Court jurisprudence in 1937 that, hand in hand, cleared the way for much economic legislation by both Congress and the States. The Court not only signed on to a broad interpretation of the Commerce Clause, see, e.g., NLRB v. Jones & Laughlin, 301 U.S. 1, 34-41 (1937), which enabled Congress to pass wide-reaching economic legislation, but also retreated from Lochnerian restrictions on the permissibility of government infringements on freedom of contract, see West Coast Hotel Co., 300 U.S. at 391-93.
276. Professor Ackerman describes the Lochner-displacing opinions of the New Deal Court as "the functional equivalent of formal constitutional amendments," Ackerman, supra note 13, at 82, and claims that their effects will be undone, if at all, only by "a higher lawmaking process comparable to the one led by President Roosevelt in the 1930S." Id. Behind his language is the suggestion that any other avenue of change, such as a course-reversing Court opinion, would somehow be illegitimate - regardless of the legal merits.
277. In fact, I am inclined to agree with Professor Ackerman's more recent view that Lockner and Griswold v. Connecticut, 381 U.S. 479 (1965), have much in common. See Ackerman, supra note 43, at 524 (crediting Jennifer Nedelsky for this broad insight). In both cases, the Supreme Court spoke as though it were protecting a state of nature rather than recognizing that it was giving priority to one particular set of legal arrangements over another, whether the economic contract or the marriage contract
278. I mean this proposition purely as a description of current constitutional doctrine, rather than as an endorsement of the underlying textual interpretation at issue. In fact, despite my own prior efforts to justify the doctrine of "substantive due process" - the doctrine that certain government deprivations of life, liberty, or property might be condemned as violative of "due process of law" because of the substantive content of the rule the government is applying, and regardless of the procedures by which the rule is applied to particular persons - I am far from committed to the preservation of that entire doctrine. Dean Ely's stylish denunciation of the very notion of substantive due process as an oxymoron, rather like "green pastel redness", see JOHN H. ELY, DEMOCRACY AND DISTRUST 18 (1980), goes a bit far, but his basic linguistic point has great force. See also Henry P. Monaghan, Our Perfect Constitution, 56 N.Y.U. L. REV. 353, 353-60 (1981); id. at 356 (criticizing the "due substance school of judicial review"). Yet it is unclear why a purely linguistic analysis should be decisive - particularly for those like Professor Monaghan, who stress the importance of interpreting all constitutional text in accord with its "original meaning." See, e.g., id. at 396; Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, Tanner Lectures at Princeton University (Mar. 8, 1995). From the perspective of such "originalists", it should make all the difference that the historical evidence points strongly toward the conclusion that, at least by 1868 even if not in 1791, any state legislature voting to ratify a constitutional rule banning government deprivations of "life, liberty, or property, without due process of law" would have understood that ban as having substantive as well as procedural content, given that era's premise that, to qualify as "law," an enactment would have to meet substantive requirements of rationality, non-oppressiveness, and evenhandedness. By 1855, the Supreme Court was certainly writing as though such a requirement were implicit in the Due Process Clause of the Fifth Amendment. Thus, in Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 276 (1855), the Court observed that due process "is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave congress free to make any process 'due process of law,' by its mere will." By the time the Supreme Court, in its infamous decision in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856), treated the Fifth Amendment's Due Process Clause as imposing substantive limits on congressional legislation, even if the Court was departing from the understanding as of 1791, it was building on a considerable body of prior judicial and extra-judicial writing that treated the requirement of due process of law as mandating not only fair procedure in the application of legal rules, but also acceptable substance in their content. Although the Fourteenth Amendment of course overruled certain key aspects of Dred Scott - principally its holding that slaves, former slaves, and their descendants could not be citizens for federal purposes - there is no evidence that the Fourteenth Amendment was understood by anyone to be overruling Dred Scott's structural premise that not every formally proper legislative enactment meets the constitutional definition of "law." Accordingly, the Supreme Court probably reflected the understanding at the time the Fourteenth Amendment was ratified, and in the decades following, when, in 1884, it analogized due process to Magna Carta's "guaranties against the oppressions and usurpations" of government power. Hurtado v. California, 110 U.S. 516, 531 (1884). It was in Hurtado that the Court elaborated: Law is something more than mere will exerted as an act of power. . . . [Law thus excludes] as not due process of law, acts of attainder, bills of pains and penalties, acts of confiscation . . . and other similar special, partial and arbitrary exertions of power under the forms of legislation. Arbitrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law, whether manifested as the decree of a personal monarch or of an impersonal multitude. Id. at 535-36 (emphasis added). For those who insist that constitutional provisions be interpreted the way they were understood at the time they were ratified, it thus appears that the Fourteenth Amendment's requirement of due process of law, even if not the parallel requirement of the Fifth Amendment, compelled more than the procedural fairness that the words connote to the modern ear.
279. I mean this proposition purely as a description of current constitutional doctrine, rather than as an endorsement of the underlying textual interpretation at issue. In fact, despite my own prior efforts to justify the doctrine of "substantive due process" - the doctrine that certain government deprivations of life, liberty, or property might be condemned as violative of "due process of law" because of the substantive content of the rule the government is applying, and regardless of the procedures by which the rule is applied to particular persons - I am far from committed to the preservation of that entire doctrine. Dean Ely's stylish denunciation of the very notion of substantive due process as an oxymoron, rather like "green pastel redness", see JOHN H. ELY, DEMOCRACY AND DISTRUST 18 (1980), goes a bit far, but his basic linguistic point has great force. See also Henry P. Monaghan, Our Perfect Constitution, 56 N.Y.U. L. REV. 353, 353-60 (1981); id. at 356 (criticizing the "due substance school of judicial review"). Yet it is unclear why a purely linguistic analysis should be decisive - particularly for those like Professor Monaghan, who stress the importance of interpreting all constitutional text in accord with its "original meaning." See, e.g., id. at 396; Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, Tanner Lectures at Princeton University (Mar. 8, 1995). From the perspective of such "originalists", it should make all the difference that the historical evidence points strongly toward the conclusion that, at least by 1868 even if not in 1791, any state legislature voting to ratify a constitutional rule banning government deprivations of "life, liberty, or property, without due process of law" would have understood that ban as having substantive as well as procedural content, given that era's premise that, to qualify as "law," an enactment would have to meet substantive requirements of rationality, non-oppressiveness, and evenhandedness. By 1855, the Supreme Court was certainly writing as though such a requirement were implicit in the Due Process Clause of the Fifth Amendment. Thus, in Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 276 (1855), the Court observed that due process "is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave congress free to make any process 'due process of law,' by its mere will." By the time the Supreme Court, in its infamous decision in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856), treated the Fifth Amendment's Due Process Clause as imposing substantive limits on congressional legislation, even if the Court was departing from the understanding as of 1791, it was building on a considerable body of prior judicial and extra-judicial writing that treated the requirement of due process of law as mandating not only fair procedure in the application of legal rules, but also acceptable substance in their content. Although the Fourteenth Amendment of course overruled certain key aspects of Dred Scott - principally its holding that slaves, former slaves, and their descendants could not be citizens for federal purposes - there is no evidence that the Fourteenth Amendment was understood by anyone to be overruling Dred Scott's structural premise that not every formally proper legislative enactment meets the constitutional definition of "law." Accordingly, the Supreme Court probably reflected the understanding at the time the Fourteenth Amendment was ratified, and in the decades following, when, in 1884, it analogized due process to Magna Carta's "guaranties against the oppressions and usurpations" of government power. Hurtado v. California, 110 U.S. 516, 531 (1884). It was in Hurtado that the Court elaborated: Law is something more than mere will exerted as an act of power. . . . [Law thus excludes] as not due process of law, acts of attainder, bills of pains and penalties, acts of confiscation . . . and other similar special, partial and arbitrary exertions of power under the forms of legislation. Arbitrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law, whether manifested as the decree of a personal monarch or of an impersonal multitude. Id. at 535-36 (emphasis added). For those who insist that constitutional provisions be interpreted the way they were understood at the time they were ratified, it thus appears that the Fourteenth Amendment's requirement of due process of law, even if not the parallel requirement of the Fifth Amendment, compelled more than the procedural fairness that the words connote to the modern ear.
280. I mean this proposition purely as a description of current constitutional doctrine, rather than as an endorsement of the underlying textual interpretation at issue. In fact, despite my own prior efforts to justify the doctrine of "substantive due process" - the doctrine that certain government deprivations of life, liberty, or property might be condemned as violative of "due process of law" because of the substantive content of the rule the government is applying, and regardless of the procedures by which the rule is applied to particular persons - I am far from committed to the preservation of that entire doctrine. Dean Ely's stylish denunciation of the very notion of substantive due process as an oxymoron, rather like "green pastel redness", see JOHN H. ELY, DEMOCRACY AND DISTRUST 18 (1980), goes a bit far, but his basic linguistic point has great force. See also Henry P. Monaghan, Our Perfect Constitution, 56 N.Y.U. L. REV. 353, 353-60 (1981); id. at 356 (criticizing the "due substance school of judicial review"). Yet it is unclear why a purely linguistic analysis should be decisive - particularly for those like Professor Monaghan, who stress the importance of interpreting all constitutional text in accord with its "original meaning." See, e.g., id. at 396; Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, Tanner Lectures at Princeton University (Mar. 8, 1995). From the perspective of such "originalists", it should make all the difference that the historical evidence points strongly toward the conclusion that, at least by 1868 even if not in 1791, any state legislature voting to ratify a constitutional rule banning government deprivations of "life, liberty, or property, without due process of law" would have understood that ban as having substantive as well as procedural content, given that era's premise that, to qualify as "law," an enactment would have to meet substantive requirements of rationality, non-oppressiveness, and evenhandedness. By 1855, the Supreme Court was certainly writing as though such a requirement were implicit in the Due Process Clause of the Fifth Amendment. Thus, in Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 276 (1855), the Court observed that due process "is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave congress free to make any process 'due process of law,' by its mere will." By the time the Supreme Court, in its infamous decision in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856), treated the Fifth Amendment's Due Process Clause as imposing substantive limits on congressional legislation, even if the Court was departing from the understanding as of 1791, it was building on a considerable body of prior judicial and extra-judicial writing that treated the requirement of due process of law as mandating not only fair procedure in the application of legal rules, but also acceptable substance in their content. Although the Fourteenth Amendment of course overruled certain key aspects of Dred Scott - principally its holding that slaves, former slaves, and their descendants could not be citizens for federal purposes - there is no evidence that the Fourteenth Amendment was understood by anyone to be overruling Dred Scott's structural premise that not every formally proper legislative enactment meets the constitutional definition of "law." Accordingly, the Supreme Court probably reflected the understanding at the time the Fourteenth Amendment was ratified, and in the decades following, when, in 1884, it analogized due process to Magna Carta's "guaranties against the oppressions and usurpations" of government power. Hurtado v. California, 110 U.S. 516, 531 (1884). It was in Hurtado that the Court elaborated: Law is something more than mere will exerted as an act of power. . . . [Law thus excludes] as not due process of law, acts of attainder, bills of pains and penalties, acts of confiscation . . . and other similar special, partial and arbitrary exertions of power under the forms of legislation. Arbitrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law, whether manifested as the decree of a personal monarch or of an impersonal multitude. Id. at 535-36 (emphasis added). For those who insist that constitutional provisions be interpreted the way they were understood at the time they were ratified, it thus appears that the Fourteenth Amendment's requirement of due process of law, even if not the parallel requirement of the Fifth Amendment, compelled more than the procedural fairness that the words connote to the modern ear.
281. I mean this proposition purely as a description of current constitutional doctrine, rather than as an endorsement of the underlying textual interpretation at issue. In fact, despite my own prior efforts to justify the doctrine of "substantive due process" - the doctrine that certain government deprivations of life, liberty, or property might be condemned as violative of "due process of law" because of the substantive content of the rule the government is applying, and regardless of the procedures by which the rule is applied to particular persons - I am far from committed to the preservation of that entire doctrine. Dean Ely's stylish denunciation of the very notion of substantive due process as an oxymoron, rather like "green pastel redness", see JOHN H. ELY, DEMOCRACY AND DISTRUST 18 (1980), goes a bit far, but his basic linguistic point has great force. See also Henry P. Monaghan, Our Perfect Constitution, 56 N.Y.U. L. REV. 353, 353-60 (1981); id. at 356 (criticizing the "due substance school of judicial review"). Yet it is unclear why a purely linguistic analysis should be decisive - particularly for those like Professor Monaghan, who stress the importance of interpreting all constitutional text in accord with its "original meaning." See, e.g., id. at 396; Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, Tanner Lectures at Princeton University (Mar. 8, 1995). From the perspective of such "originalists", it should make all the difference that the historical evidence points strongly toward the conclusion that, at least by 1868 even if not in 1791, any state legislature voting to ratify a constitutional rule banning government deprivations of "life, liberty, or property, without due process of law" would have understood that ban as having substantive as well as procedural content, given that era's premise that, to qualify as "law," an enactment would have to meet substantive requirements of rationality, non-oppressiveness, and evenhandedness. By 1855, the Supreme Court was certainly writing as though such a requirement were implicit in the Due Process Clause of the Fifth Amendment. Thus, in Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 276 (1855), the Court observed that due process "is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave congress free to make any process 'due process of law,' by its mere will." By the time the Supreme Court, in its infamous decision in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856), treated the Fifth Amendment's Due Process Clause as imposing substantive limits on congressional legislation, even if the Court was departing from the understanding as of 1791, it was building on a considerable body of prior judicial and extra-judicial writing that treated the requirement of due process of law as mandating not only fair procedure in the application of legal rules, but also acceptable substance in their content. Although the Fourteenth Amendment of course overruled certain key aspects of Dred Scott - principally its holding that slaves, former slaves, and their descendants could not be citizens for federal purposes - there is no evidence that the Fourteenth Amendment was understood by anyone to be overruling Dred Scott's structural premise that not every formally proper legislative enactment meets the constitutional definition of "law." Accordingly, the Supreme Court probably reflected the understanding at the time the Fourteenth Amendment was ratified, and in the decades following, when, in 1884, it analogized due process to Magna Carta's "guaranties against the oppressions and usurpations" of government power. Hurtado v. California, 110 U.S. 516, 531 (1884). It was in Hurtado that the Court elaborated: Law is something more than mere will exerted as an act of power. . . . [Law thus excludes] as not due process of law, acts of attainder, bills of pains and penalties, acts of confiscation . . . and other similar special, partial and arbitrary exertions of power under the forms of legislation. Arbitrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law, whether manifested as the decree of a personal monarch or of an impersonal multitude. Id. at 535-36 (emphasis added). For those who insist that constitutional provisions be interpreted the way they were understood at the time they were ratified, it thus appears that the Fourteenth Amendment's requirement of due process of law, even if not the parallel requirement of the Fifth Amendment, compelled more than the procedural fairness that the words connote to the modern ear.
282. If I didn't know better, I would assume that Professor Ackerman was just trying to be provocative when making his climactic argument that the New Deal represents an informal amendment that both explains and legitimates the two most important substantive rights-protecting decisions of the post-1937 Supreme Court. See Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965) (establishing a right for married couples to use contraceptives); Brown v. Board of Educ., 347 U.S. 483, 495 (1954) (finding school segregation unconstitutional). I find entirely unconvincing Professor Ackerman's attempt to recast the Court's determinations in those cases - that decisions about intimate sexual and reproductive matters are presumptively private and that official segregation of the races denies equal protection - as corollaries of the interpretive shifts authored by the New Deal Court. See 1 ACKERMAN, supra note 11, at 131-62. Rather, the legitimacy of the Brown decision rests far more straightforwardly on the only defensible reading of the Equal Protection Clause, see Charles L. Black, Jr., The Lawfulness of the Segregation Decisions, 69 YALE L.J. 421, 421 (1960), a reading that was correct (but neglected) in 1896, when the Court erroneously decided Plessy v. Ferguson, 163 U.S. 537 (1896), four decades before the constitutional shift of 1937. See Plessy, 163 U.S. at 552-64 (Harlan, J., dissenting). Likewise, Griswold stands for the proposition that there are some personal matters that only a tyrannical state can purport to control - a libertarian proposition that the Supreme Court misapplied in Lochner and that is as old as the Republic. See Charles L. Black, Jr., On Reading and Using the Ninth Amendment, in THE HUMANE IMAGINATION 186, 196-200 (1986); Louis M. Seidman, Public Principle and Private Choice: The Uneasy Case for a Boundary Maintenance Theory of Constitutional Law, 96 YALE L.J. 1006, 1030-31 (1987). Professor Ackerman's effort to attribute the legitimacy of these two rulings to the 1937 upheaval and thus to underscore the alleged status of 1937 as an informal amendment makes far too much of that admittedly seminal advance in our constitutional history. Professor Ackerman's descriptions of Brown and Griswold are part of his overall depiction of tie Supreme Court as preservationist - as implementing the will of the people even in the Court's most dramatic decisions. Professor Ackerman sees the Brown decision as an "interpretive synthesis" of Reconstruction and New Deal principles, see 1 ACKERMAN, supra note 11, at 142-50, and he describes Griswold as a synthesis of Founding and New Deal principles, see id. at 150-58. But see Landry, supra note 74, at 287 n.83 (noting that, if "both Brown and Griswold owe their constitutional force to the New Deal," then "the amendatory fraud perpetrated on the People (and the States) during the New Deal is of immense and perhaps immeasurable proportions"). For a broad criticism of Professor Ackerman's preservationist account of Brown and Griswold, see Jennifer Nedelsky, The Puzzle and Demands of Modern Constitutionalism, 104 ETHICS 500, 503-12 (1994). Professor William Fisher has criticized as historically inaccurate Professor Ackerman's efforts to portray other landmark decisions, such as Lochner and Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856), as preservationist. See Fisher, supra note 231, at 967-72. For example, far from preserving the principles of the Framers, Chief Justice Taney's decision in Dred Scott clearly departed from the understandings of the Framers that blacks could be state citizens, that Congress had broad powers over the territories, and that the Due Process Clause was about procedure. See id. at 968-70. In short, contrary to Professor Ackerman's preservationist portrait, "'Taney constructed his own peculiar version of American history to serve his judicial purpose." Id. at 970 (quoting DON E. FEHRENBACHER, THE DRED SCOTT CASE 370 (1978)).
283. If I didn't know better, I would assume that Professor Ackerman was just trying to be provocative when making his climactic argument that the New Deal represents an informal amendment that both explains and legitimates the two most important substantive rights-protecting decisions of the post-1937 Supreme Court. See Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965) (establishing a right for married couples to use contraceptives); Brown v. Board of Educ., 347 U.S. 483, 495 (1954) (finding school segregation unconstitutional). I find entirely unconvincing Professor Ackerman's attempt to recast the Court's determinations in those cases - that decisions about intimate sexual and reproductive matters are presumptively private and that official segregation of the races denies equal protection - as corollaries of the interpretive shifts authored by the New Deal Court. See 1 ACKERMAN, supra note 11, at 131-62. Rather, the legitimacy of the Brown decision rests far more straightforwardly on the only defensible reading of the Equal Protection Clause, see Charles L. Black, Jr., The Lawfulness of the Segregation Decisions, 69 YALE L.J. 421, 421 (1960), a reading that was correct (but neglected) in 1896, when the Court erroneously decided Plessy v. Ferguson, 163 U.S. 537 (1896), four decades before the constitutional shift of 1937. See Plessy, 163 U.S. at 552-64 (Harlan, J., dissenting). Likewise, Griswold stands for the proposition that there are some personal matters that only a tyrannical state can purport to control - a libertarian proposition that the Supreme Court misapplied in Lochner and that is as old as the Republic. See Charles L. Black, Jr., On Reading and Using the Ninth Amendment, in THE HUMANE IMAGINATION 186, 196-200 (1986); Louis M. Seidman, Public Principle and Private Choice: The Uneasy Case for a Boundary Maintenance Theory of Constitutional Law, 96 YALE L.J. 1006, 1030-31 (1987). Professor Ackerman's effort to attribute the legitimacy of these two rulings to the 1937 upheaval and thus to underscore the alleged status of 1937 as an informal amendment makes far too much of that admittedly seminal advance in our constitutional history. Professor Ackerman's descriptions of Brown and Griswold are part of his overall depiction of tie Supreme Court as preservationist - as implementing the will of the people even in the Court's most dramatic decisions. Professor Ackerman sees the Brown decision as an "interpretive synthesis" of Reconstruction and New Deal principles, see 1 ACKERMAN, supra note 11, at 142-50, and he describes Griswold as a synthesis of Founding and New Deal principles, see id. at 150-58. But see Landry, supra note 74, at 287 n.83 (noting that, if "both Brown and Griswold owe their constitutional force to the New Deal," then "the amendatory fraud perpetrated on the People (and the States) during the New Deal is of immense and perhaps immeasurable proportions"). For a broad criticism of Professor Ackerman's preservationist account of Brown and Griswold, see Jennifer Nedelsky, The Puzzle and Demands of Modern Constitutionalism, 104 ETHICS 500, 503-12 (1994). Professor William Fisher has criticized as historically inaccurate Professor Ackerman's efforts to portray other landmark decisions, such as Lochner and Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856), as preservationist. See Fisher, supra note 231, at 967-72. For example, far from preserving the principles of the Framers, Chief Justice Taney's decision in Dred Scott clearly departed from the understandings of the Framers that blacks could be state citizens, that Congress had broad powers over the territories, and that the Due Process Clause was about procedure. See id. at 968-70. In short, contrary to Professor Ackerman's preservationist portrait, "'Taney constructed his own peculiar version of American history to serve his judicial purpose." Id. at 970 (quoting DON E. FEHRENBACHER, THE DRED SCOTT CASE 370 (1978)).
284. If I didn't know better, I would assume that Professor Ackerman was just trying to be provocative when making his climactic argument that the New Deal represents an informal amendment that both explains and legitimates the two most important substantive rights-protecting decisions of the post-1937 Supreme Court. See Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965) (establishing a right for married couples to use contraceptives); Brown v. Board of Educ., 347 U.S. 483, 495 (1954) (finding school segregation unconstitutional). I find entirely unconvincing Professor Ackerman's attempt to recast the Court's determinations in those cases - that decisions about intimate sexual and reproductive matters are presumptively private and that official segregation of the races denies equal protection - as corollaries of the interpretive shifts authored by the New Deal Court. See 1 ACKERMAN, supra note 11, at 131-62. Rather, the legitimacy of the Brown decision rests far more straightforwardly on the only defensible reading of the Equal Protection Clause, see Charles L. Black, Jr., The Lawfulness of the Segregation Decisions, 69 YALE L.J. 421, 421 (1960), a reading that was correct (but neglected) in 1896, when the Court erroneously decided Plessy v. Ferguson, 163 U.S. 537 (1896), four decades before the constitutional shift of 1937. See Plessy, 163 U.S. at 552-64 (Harlan, J., dissenting). Likewise, Griswold stands for the proposition that there are some personal matters that only a tyrannical state can purport to control - a libertarian proposition that the Supreme Court misapplied in Lochner and that is as old as the Republic. See Charles L. Black, Jr., On Reading and Using the Ninth Amendment, in THE HUMANE IMAGINATION 186, 196-200 (1986); Louis M. Seidman, Public Principle and Private Choice: The Uneasy Case for a Boundary Maintenance Theory of Constitutional Law, 96 YALE L.J. 1006, 1030-31 (1987). Professor Ackerman's effort to attribute the legitimacy of these two rulings to the 1937 upheaval and thus to underscore the alleged status of 1937 as an informal amendment makes far too much of that admittedly seminal advance in our constitutional history. Professor Ackerman's descriptions of Brown and Griswold are part of his overall depiction of tie Supreme Court as preservationist - as implementing the will of the people even in the Court's most dramatic decisions. Professor Ackerman sees the Brown decision as an "interpretive synthesis" of Reconstruction and New Deal principles, see 1 ACKERMAN, supra note 11, at 142-50, and he describes Griswold as a synthesis of Founding and New Deal principles, see id. at 150-58. But see Landry, supra note 74, at 287 n.83 (noting that, if "both Brown and Griswold owe their constitutional force to the New Deal," then "the amendatory fraud perpetrated on the People (and the States) during the New Deal is of immense and perhaps immeasurable proportions"). For a broad criticism of Professor Ackerman's preservationist account of Brown and Griswold, see Jennifer Nedelsky, The Puzzle and Demands of Modern Constitutionalism, 104 ETHICS 500, 503-12 (1994). Professor William Fisher has criticized as historically inaccurate Professor Ackerman's efforts to portray other landmark decisions, such as Lochner and Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856), as preservationist. See Fisher, supra note 231, at 967-72. For example, far from preserving the principles of the Framers, Chief Justice Taney's decision in Dred Scott clearly departed from the understandings of the Framers that blacks could be state citizens, that Congress had broad powers over the territories, and that the Due Process Clause was about procedure. See id. at 968-70. In short, contrary to Professor Ackerman's preservationist portrait, "'Taney constructed his own peculiar version of American history to serve his judicial purpose." Id. at 970 (quoting DON E. FEHRENBACHER, THE DRED SCOTT CASE 370 (1978)).
285. If I didn't know better, I would assume that Professor Ackerman was just trying to be provocative when making his climactic argument that the New Deal represents an informal amendment that both explains and legitimates the two most important substantive rights-protecting decisions of the post-1937 Supreme Court. See Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965) (establishing a right for married couples to use contraceptives); Brown v. Board of Educ., 347 U.S. 483, 495 (1954) (finding school segregation unconstitutional). I find entirely unconvincing Professor Ackerman's attempt to recast the Court's determinations in those cases - that decisions about intimate sexual and reproductive matters are presumptively private and that official segregation of the races denies equal protection - as corollaries of the interpretive shifts authored by the New Deal Court. See 1 ACKERMAN, supra note 11, at 131-62. Rather, the legitimacy of the Brown decision rests far more straightforwardly on the only defensible reading of the Equal Protection Clause, see Charles L. Black, Jr., The Lawfulness of the Segregation Decisions, 69 YALE L.J. 421, 421 (1960), a reading that was correct (but neglected) in 1896, when the Court erroneously decided Plessy v. Ferguson, 163 U.S. 537 (1896), four decades before the constitutional shift of 1937. See Plessy, 163 U.S. at 552-64 (Harlan, J., dissenting). Likewise, Griswold stands for the proposition that there are some personal matters that only a tyrannical state can purport to control - a libertarian proposition that the Supreme Court misapplied in Lochner and that is as old as the Republic. See Charles L. Black, Jr., On Reading and Using the Ninth Amendment, in THE HUMANE IMAGINATION 186, 196-200 (1986); Louis M. Seidman, Public Principle and Private Choice: The Uneasy Case for a Boundary Maintenance Theory of Constitutional Law, 96 YALE L.J. 1006, 1030-31 (1987). Professor Ackerman's effort to attribute the legitimacy of these two rulings to the 1937 upheaval and thus to underscore the alleged status of 1937 as an informal amendment makes far too much of that admittedly seminal advance in our constitutional history. Professor Ackerman's descriptions of Brown and Griswold are part of his overall depiction of tie Supreme Court as preservationist - as implementing the will of the people even in the Court's most dramatic decisions. Professor Ackerman sees the Brown decision as an "interpretive synthesis" of Reconstruction and New Deal principles, see 1 ACKERMAN, supra note 11, at 142-50, and he describes Griswold as a synthesis of Founding and New Deal principles, see id. at 150-58. But see Landry, supra note 74, at 287 n.83 (noting that, if "both Brown and Griswold owe their constitutional force to the New Deal," then "the amendatory fraud perpetrated on the People (and the States) during the New Deal is of immense and perhaps immeasurable proportions"). For a broad criticism of Professor Ackerman's preservationist account of Brown and Griswold, see Jennifer Nedelsky, The Puzzle and Demands of Modern Constitutionalism, 104 ETHICS 500, 503-12 (1994). Professor William Fisher has criticized as historically inaccurate Professor Ackerman's efforts to portray other landmark decisions, such as Lochner and Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856), as preservationist. See Fisher, supra note 231, at 967-72. For example, far from preserving the principles of the Framers, Chief Justice Taney's decision in Dred Scott clearly departed from the understandings of the Framers that blacks could be state citizens, that Congress had broad powers over the territories, and that the Due Process Clause was about procedure. See id. at 968-70. In short, contrary to Professor Ackerman's preservationist portrait, "'Taney constructed his own peculiar version of American history to serve his judicial purpose." Id. at 970 (quoting DON E. FEHRENBACHER, THE DRED SCOTT CASE 370 (1978)).
286. If I didn't know better, I would assume that Professor Ackerman was just trying to be provocative when making his climactic argument that the New Deal represents an informal amendment that both explains and legitimates the two most important substantive rights-protecting decisions of the post-1937 Supreme Court. See Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965) (establishing a right for married couples to use contraceptives); Brown v. Board of Educ., 347 U.S. 483, 495 (1954) (finding school segregation unconstitutional). I find entirely unconvincing Professor Ackerman's attempt to recast the Court's determinations in those cases - that decisions about intimate sexual and reproductive matters are presumptively private and that official segregation of the races denies equal protection - as corollaries of the interpretive shifts authored by the New Deal Court. See 1 ACKERMAN, supra note 11, at 131-62. Rather, the legitimacy of the Brown decision rests far more straightforwardly on the only defensible reading of the Equal Protection Clause, see Charles L. Black, Jr., The Lawfulness of the Segregation Decisions, 69 YALE L.J. 421, 421 (1960), a reading that was correct (but neglected) in 1896, when the Court erroneously decided Plessy v. Ferguson, 163 U.S. 537 (1896), four decades before the constitutional shift of 1937. See Plessy, 163 U.S. at 552-64 (Harlan, J., dissenting). Likewise, Griswold stands for the proposition that there are some personal matters that only a tyrannical state can purport to control - a libertarian proposition that the Supreme Court misapplied in Lochner and that is as old as the Republic. See Charles L. Black, Jr., On Reading and Using the Ninth Amendment, in THE HUMANE IMAGINATION 186, 196-200 (1986); Louis M. Seidman, Public Principle and Private Choice: The Uneasy Case for a Boundary Maintenance Theory of Constitutional Law, 96 YALE L.J. 1006, 1030-31 (1987). Professor Ackerman's effort to attribute the legitimacy of these two rulings to the 1937 upheaval and thus to underscore the alleged status of 1937 as an informal amendment makes far too much of that admittedly seminal advance in our constitutional history. Professor Ackerman's descriptions of Brown and Griswold are part of his overall depiction of tie Supreme Court as preservationist - as implementing the will of the people even in the Court's most dramatic decisions. Professor Ackerman sees the Brown decision as an "interpretive synthesis" of Reconstruction and New Deal principles, see 1 ACKERMAN, supra note 11, at 142-50, and he describes Griswold as a synthesis of Founding and New Deal principles, see id. at 150-58. But see Landry, supra note 74, at 287 n.83 (noting that, if "both Brown and Griswold owe their constitutional force to the New Deal," then "the amendatory fraud perpetrated on the People (and the States) during the New Deal is of immense and perhaps immeasurable proportions"). For a broad criticism of Professor Ackerman's preservationist account of Brown and Griswold, see Jennifer Nedelsky, The Puzzle and Demands of Modern Constitutionalism, 104 ETHICS 500, 503-12 (1994). Professor William Fisher has criticized as historically inaccurate Professor Ackerman's efforts to portray other landmark decisions, such as Lochner and Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856), as preservationist. See Fisher, supra note 231, at 967-72. For example, far from preserving the principles of the Framers, Chief Justice Taney's decision in Dred Scott clearly departed from the understandings of the Framers that blacks could be state citizens, that Congress had broad powers over the territories, and that the Due Process Clause was about procedure. See id. at 968-70. In short, contrary to Professor Ackerman's preservationist portrait, "'Taney constructed his own peculiar version of American history to serve his judicial purpose." Id. at 970 (quoting DON E. FEHRENBACHER, THE DRED SCOTT CASE 370 (1978)).
287. See Ackerman & Golove, supra note 10, at 873, 909-13.
288. One almost wonders whether the clock has not struck yet a fourteenth chime. After all, the political earthquake represented by the ascendancy of the Republican Party to the control of both Houses of Congress in November 1994 for the first time in 40 years can hardly be ignored by someone with Professor Ackerman's views. Yet, when the newly composed House of Representatives took the comparatively modest step, under the clause permitting each House to set its own rules, see U.S. CONST, art. I, § 5, cl. 2, of requiring that any increase in income tax rates, before it is deemed to have passed the House, must receive a three-fifths majority, see H. R. RULE XXI, Professor Ackerman first opined that this was certainly unconstitutional (despite the Constitution's silence on this precise point), see Bruce Ackerman, Gingrich vs. the Constitution, N.Y. TIMES, Dec. 10, 1994, at 23, and then launched a lawsuit on behalf of some members of the House of Representatives seeking a judicial declaration that his view is correct. See Jerry Gray, Congressional Roundup: Taxes; Legal Challenge tooting Rule, N. Y. TIMES, Feb. 9, 1995. at A18, Assuming that the judiciary overlooks the obvious ripeness and political question problems posed by the suit, should the court in which the suit is pending evaluate the merits of the claim by asking whether yet another "constitutional moment" is upon us? I would hope not.
289. One almost wonders whether the clock has not struck yet a fourteenth chime. After all, the political earthquake represented by the ascendancy of the Republican Party to the control of both Houses of Congress in November 1994 for the first time in 40 years can hardly be ignored by someone with Professor Ackerman's views. Yet, when the newly composed House of Representatives took the comparatively modest step, under the clause permitting each House to set its own rules, see U.S. CONST, art. I, § 5, cl. 2, of requiring that any increase in income tax rates, before it is deemed to have passed the House, must receive a three-fifths majority, see H. R. RULE XXI, Professor Ackerman first opined that this was certainly unconstitutional (despite the Constitution's silence on this precise point), see Bruce Ackerman, Gingrich vs. the Constitution, N.Y. TIMES, Dec. 10, 1994, at 23, and then launched a lawsuit on behalf of some members of the House of Representatives seeking a judicial declaration that his view is correct. See Jerry Gray, Congressional Roundup: Taxes; Legal Challenge tooting Rule, N. Y. TIMES, Feb. 9, 1995. at A18, Assuming that the judiciary overlooks the obvious ripeness and political question problems posed by the suit, should the court in which the suit is pending evaluate the merits of the claim by asking whether yet another "constitutional moment" is upon us? I would hope not.
290. See Ackerman & Golove, supra note 10, at 889-96.
291. See supra Part V.B.2.
292. See Ackerman & Golove, supra note 10, at 889-91.
293. See id. at 889.
294. See id., at 892-93.
295. The academy, naturally, was divided on the constitutional question. Compare, e.g., Edwin Borchard, Shall the Executive Agreement Replace the Treaty?, 53 YALE L.J. 664, 666-67 (1944) (arguing for an exclusive view of the Treaty Clause); Edwin Borchard, Treaties and Executive Agreements - a Reply, 54 YALE L.J. 616, 616 (1945) (same); Herbert W. Briggs, The UNRRA Agreement and Congress, 38 AM. J. INT'L L. 650, 651 (1944) (same) with EDWARD S. CORWIN, THE CONSTITUTION AND WORLD ORGANIZATION 31-54 (1944) (making the case for the congressional-executive agreement form); McDougal & Lans, supra note 67, at 186-88 (same); Myres S. McDougal & Asher Lans, Treaties and Congressional-Executive or Presidential Agreements: Interchangeable instruments
296. The academy, naturally, was divided on the constitutional question. Compare, e.g., Edwin Borchard, Shall the Executive Agreement Replace the Treaty?, 53 YALE L.J. 664, 666-67 (1944) (arguing for an exclusive view of the Treaty Clause); Edwin Borchard, Treaties and Executive Agreements - a Reply, 54 YALE L.J. 616, 616 (1945) (same); Herbert W. Briggs, The UNRRA Agreement and Congress, 38 AM. J. INT'L L. 650, 651 (1944) (same) with EDWARD S. CORWIN, THE CONSTITUTION AND WORLD ORGANIZATION 31-54 (1944) (making the case for the congressional-executive agreement form); McDougal & Lans, supra note 67, at 186-88 (same); Myres S. McDougal & Asher Lans, Treaties and Congressional-Executive or Presidential Agreements: Interchangeable instruments of National Policy (pt. 2), 54 YALE L.J. 534, 615 (1945) (same).
297. The academy, naturally, was divided on the constitutional question. Compare, e.g., Edwin Borchard, Shall the Executive Agreement Replace the Treaty?, 53 YALE L.J. 664, 666-67 (1944) (arguing for an exclusive view of the Treaty Clause); Edwin Borchard, Treaties and Executive Agreements - a Reply, 54 YALE L.J. 616, 616 (1945) (same); Herbert W. Briggs, The UNRRA Agreement and Congress, 38 AM. J. INT'L L. 650, 651 (1944) (same) with EDWARD S. CORWIN, THE CONSTITUTION AND WORLD ORGANIZATION 31-54 (1944) (making the case for the congressional-executive agreement form); McDougal & Lans, supra note 67, at 186-88 (same); Myres S. McDougal & Asher Lans, Treaties and Congressional-Executive or Presidential Agreements: Interchangeable instruments of National Policy (pt. 2), 54 YALE L.J. 534, 615 (1945) (same).
298. The academy, naturally, was divided on the constitutional question. Compare, e.g., Edwin Borchard, Shall the Executive Agreement Replace the Treaty?, 53 YALE L.J. 664, 666-67 (1944) (arguing for an exclusive view of the Treaty Clause); Edwin Borchard, Treaties and Executive Agreements - a Reply, 54 YALE L.J. 616, 616 (1945) (same); Herbert W. Briggs, The UNRRA Agreement and Congress, 38 AM. J. INT'L L. 650, 651 (1944) (same) with EDWARD S. CORWIN, THE CONSTITUTION AND WORLD ORGANIZATION 31-54 (1944) (making the case for the congressional-executive agreement form); McDougal & Lans, supra note 67, at 186-88 (same); Myres S. McDougal & Asher Lans, Treaties and Congressional-Executive or Presidential Agreements: Interchangeable instruments of National Policy (pt. 2), 54 YALE L.J. 534, 615 (1945) (same).
299. The academy, naturally, was divided on the constitutional question. Compare, e.g., Edwin Borchard, Shall the Executive Agreement Replace the Treaty?, 53 YALE L.J. 664, 666-67 (1944) (arguing for an exclusive view of the Treaty Clause); Edwin Borchard, Treaties and Executive Agreements - a Reply, 54 YALE L.J. 616, 616 (1945) (same); Herbert W. Briggs, The UNRRA Agreement and Congress, 38 AM. J. INT'L L. 650, 651 (1944) (same) with EDWARD S. CORWIN, THE CONSTITUTION AND WORLD ORGANIZATION 31-54 (1944) (making the case for the congressional-executive agreement form); McDougal & Lans, supra note 67, at 186-88 (same); Myres S. McDougal & Asher Lans, Treaties and Congressional-Executive or Presidential Agreements: Interchangeable instruments of National Policy (pt. 2), 54 YALE L.J. 534, 615 (1945) (same).
300. Ackerman & Golove, supra note 10, at 916.
301. John H. Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920, 949 (1973).
302. See id. ("[I]f [a principle] lacks connection with any value the Constitution marks as SPecial, it is not a constitutional principle and the Court has no business imposing it").
303. See TRIBE, supra note 50, § 15-10, at 1347-49; Laurence H. Tribe, The Puzzling Persistence of Process-Based Constitutional Theories, 89 YALE L.J. 1063 passim (1980).