Constitutional expectations

Michigan Law Review

Volumn 109, Issue 1, 2010, Pages 91-110

  Primus, Richard ^a  

^a UNIVERSITY OF MICHIGAN LAW SCHOOL   (United States)

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[No Author keywords available]

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EID: 77957375702     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (95)

1. Compare Barack Obama Oath of Office, http://www.youtube.com/watch?v=m1Yff-_9MZs (last visited Feb. 14, 2010) (displaying video of inaugural oath on January 20, 2009), with U.S. Const. art. II, § 1, cl. 8 (prescribing text of the oath).
2. Barack Obama Re-Takes Oath of Office, http://www.youtube.com/watch?v=bq_PzWzC7rA (last visited May 16, 2010) (recording of second taking of the oath on January 21, 2009).
3. See, e.g., Nicole Guadiano, Day 1 capped with inauguration do-over for Obama, USA Today, Jan. 23, 2009 ("The oath took 25 seconds-this time without a flaw."); Michael D. Shear, Obama Sworn In Again, With Right Words, Wash. Post, Jan. 22, 2009, at A4; Jeff Zeleny, I Really Do Swear, Faithfully: Obama and Roberts Try Again, N.Y. Times, Jan. 22, 2009, at A1 (describing the second recitation as "flawless"); Anderson Cooper 360 Degrees (CNN television broadcast Jan. 21, 2009).
4. See infra Part II.
5. See District of Columbia House Voting Rights Act of 2009, H.R. 157, 111th Cong. § 2(a) (2009).
6. E.g., The District of Columbia House Voting Rights Act of 2009: Hearing on H.R. 157 Before the Subcomm. on the Constitution, Civil Rights, and Civil Liberties of the H. Comm. on the Judiciary, 111th Cong. 85 (2009) (comments of Professor Jonathan Turley, calling the bill "flagrantly unconstitutional").
7. U.S. Const. art. I, § 2, cl. 1.
8. U.S. Const. art. II, § 1, cl. 8.
9. See Barack Obama Oath of Office, supra note 1; U.S. CONST. art. II, § 1, cl. 8.
10. See, e.g., Joan Biskupic, Oath gives Justice Roberts and Obama some pauses, USA Today, Jan. 21, 2009, at 6A (stating that the "Internet was awash in commentary" after the botched oath).
11. Barack Obama Re-Takes Oath of Office, supra note 2.
12. Steve Benen, Out of an Abundance of Caution, Wash. Monthly, Jan. 22, 2009, http://www.washingtonmonthly.com/archives/individual/2009_01/016551.php (quoting statement of White House General Counsel Greg Craig).
13. Barack Obama Re-Takes Oath of Office, supra note 2.
14. U.S. Const. art. II, § 1, cl. 8.
15. U.S. Const. art. I, § 4, cl. 1.
16. U.S. Const. amend. I ("Congress shall make no law...") (emphasis added).
17. U.S. Const. art. III, § 2, cl. 3.
18. Akhil Amar is a principled exception. See Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1196 (1991) (arguing based on the text of Article III that criminal defendants may not constitutionally waive jury trial, despite established practice to the contrary).
19. See Audio recording: President Johnson Taking the Oath of Office: November 22, 1963 and Beyond, http://www.lbjlib.utexas.edu/johnson/kennedy/Oath%20of%20Office/oath.htm (last visited Feb. 14, 2010) (downloadable audio of President Johnson taking the Oath of Office aboard Air Force One). Recordings and accounts of all other takings of the Inaugural Oath since 1932 are on file with the author.
20. For what it is worth, a few preliminary drafts of Article II at the constitutional convention of 1787 read "I, _____, solemnly swear," suggesting that if the Framers made a choice on this matter, it was against the insertion of names. See 3 The Founders' Constitution 573 (Philip B. Kurland & Ralph Lerner eds., 2000).
21. District of Columbia House Voting Rights Act of 2009, H.R. 157, 111th Cong. § 2(a) (2009).
22. See Hearing on H.R. 157 Before the Subcomm. on the Constitution, Civil Rights, and Civil Liberties, supra note 6, at 84-85 (comments of Professor Jonathan Turley, saying that the continuing disfranchisement of District residents is a "great wrong"); Comm. on Homeland Sec. & Governmental Affairs, Rep. on District of Columbia House Voting Rights Act of 2007, S. Rep. No. 110-123, at 22 (2007) (additional views of Senators Tom Coburn and Ted Stevens) ("The lack of Congressional representation for American citizens living in the District of Columbia is a grave injustice.").
23. See Comm. on Homeland Sec. & Governmental Affairs, supra note 22, at 29.
24. U.S. Senate Roll Call Votes 111th Cong. on Passage of S. 160 As Amended, http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=111&session=1&vote=00073 (last visited Feb. 14, 2010) (recording roll-call vote).
25. Id.
26. See, e.g., George F. Will, In a D.C. State of Mind, Wash. Post, Feb. 5, 2009, at A17.
27. District of Columbia House Voting Rights Act of 2009, H.R. 157, 111th Cong §§ 3-4 (2009).
28. See id.
29. U.S. Const. art. I, § 2, cl. 3 (emphasis added).
30. See, e.g., Hearing on H.R. 157 Before the Subcomm. on the Constitution, Civil Rights, and Civil Liberties supra note 6, at 21-22 (comments of Professor Jonathan Turley) (noting that the constitutional question simply comes down to the plain meaning of "State" under Article I, § 2).
31. Danny Hakim & Nicholas Confessore, Paterson to Pick a Senator Today, N.Y. Times, Jan. 23, 2009, at A1.
32. Irene Jay Liu & Leigh Hornbeck, Murphy going to Congress, Albany Times Union, Apr. 25, 2009, available at http://www.timesunion.com/ASPStories/story.asp?StoryID=793690.
33. U.S. Const. art. I, § 2, cl. 1 (emphasis added).
34. Id.
35. See, e.g., M'Culloch v. Maryland, 17 U.S. 316, 401-02 (1819) (writing that the fact of the existence of the Bank of the United States counseled construing terms in the Constitution to be compatible with the existence of the Bank, if possible).
36. See generally 1 Bruce Ackerman, We the People: Foundations 105-30 (1991).
37. See generally Richard A. Primus, The American Language of Rights 177-233 (1999).
38. See, e.g., Jack M. Balkin & Reva B. Siegel, Principles, Practices, and Social Movements, 154 U. Pa. L. Rev. 927 (2006).
39. 347 U.S. 483 (1954).
40. See Mary L. Dudziak, Cold War Civil Rights 85-86 (2000).
41. See, e.g., Jules Tygiel, Baseball's Great Experiment: Jackie Robinson and His Legacy 54 (2008).
42. See Jack M. Balkin, What Brown Teaches Us About Constitutional Theory, 90 Va. L. Rev. 1537, 1547 (2004).
43. See Lucas A. Powe, Jr., The Warren Court and American Politics 400 (2000) (describing the incorporation of the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966), into the standard script of the popular television show Dragnet, on which Sergeant Friday was a main character).
44. 539 U.S. 558 (2003) (striking down a law prohibiting sexual conduct between same-sex partners).
45. See, e.g., Steven G. Calabresi & Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 Yale L.J. 541, 551-52 (1994) (maintaining that the sole legitimate means of altering constitutional law is formal constitutional amendment).
46. See, e.g., David A. Strauss, The Irrelevance of Constitutional Amendments, 114 Harv. L. Rev. 1457, 1469-78 (2001) (enumerating examples of constitutional change that have come without formal amendment).
47. See Brown v. Bd. of Educ., 347 U.S. 483 (1954).
48. See Plessy v. Ferguson, 163 U.S. 537 (1896).
49. McDonald v. Chicago, 561 U.S. ___ (2010); District of Columbia v. Heller, 128 S. Ct. 2783 (2008).
50. See Reva B. Siegel, Dead or Alive: Originalism As Popular Constitutionalism in Heller, 122 Harv. L. Rev. 191 (2008).
51. Id. at 196.
52. See Primus, supra note 37.
53. U.S. Const. art. III, § 2, cl. 1.
54. E.g., Guaranty Trust Co. v. York, 326 U.S. 99, 111 (1945) ("Diversity jurisdiction is founded on assurance to non-resident litigants of courts free from susceptibility to potential local bias."). This does not mean that no other rationales for the rule have been advanced. See, e.g., Henry J. Friendly, The Historic Basis of Diversity Jurisdiction, 41 Harv. L. Rev. 483, 495-97 (1928) (arguing that diversity jurisdiction was established to provide parties with access to businessfriendly federal common law and out of concern that state courts might be biased against creditors).
55. 28 U.S.C. § 1332(e) (1940) (stating that for the purposes of diversity jurisdiction, the District of Columbia is to be treated as a state).
56. U.S. Const. art. III, § 2, cl. 1.
57. 337 U.S. 582 (1949).
58. Id. at 604-26 (Rutledge, J., concurring in the judgment, joined by Murphy, J.).
59. Id. at 646-55 (Frankfurter, J., dissenting, joined by Reed, J.).
60. See, e.g., Gil Seinfeld, Article I, Article III, and the Limits of Enumeration, 108 Mich. L. Rev. 1389 (2010).
61. See, e.g., Philip B. Kurland, The Supreme Court and the Attrition of State Power, 10 Stan. L. Rev. 274, 293-94 (1958); Louis H. Pollak, Book Review, 65 Yale L.J. 749, 754 n.20 (1956) (reviewing Robert H. Jackson, The Supreme Court in the American System of Government (1955)).
62. Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582 (plurality opinion of Jackson, J., joined by Black & Burton, JJ.).
63. Id. at 652-53 (Frankfurter, J., dissenting) (denouncing the Court's result as contrary to the language of Article III, the "whole history of the federal judiciary," and sound constitutional policy).
64. See, e.g., Vreven v. Am. Ass'n of Retired Pers., 604 F. Supp. 2d 9, 12 n.3 (D.D.C. 2009) (recognizing diversity jurisdiction in a suit between a Maryland resident and a D.C. corporation).
65. See id.
66. 347 U.S. 483 (1954).
67. Bolling v. Sharpe, 347 U.S. 497 (1954) (holding unconstitutional the racial segregation of public schools in the District of Columbia).
68. U.S. Const. amend. XIV, § 1.
69. See, e.g., Michael W. McConnell, The Fourteenth Amendment: A Second American Revolution or the Logical Culmination of the Tradition?, 25 Loy. L.A. L. Rev. 1159, 1162 n.14 (1992) ("As a matter of judicial statecraft, the imperative in Bolling was clear.").
70. 347 U.S. 497.
71. U.S. Const. amend. V.
72. See, e.g., John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 32 (1980).
73. See Richard A. Primus, Bolling Alone, 104 Colum. L. Rev. 975, 977 & n.7 (2004) (collecting objections to the reasoning of Bolling).
74. U.S. Const. amend. XIV.
75. See, e.g., Hirabayashi v. United States, 320 U.S. 81, 100 (1943) (upholding military curfew for persons of Japanese descent and declaring that the Fifth Amendment contains no Equal Protection Clause); Detroit Bank v. United States, 317 U.S. 329, 337 (1943) (upholding statute giving tax advantage to certain property owners, because "[u]nlike the Fourteenth Amendment, the Fifth contains no equal protection clause and it provides no guaranty against discriminatory legislation by Congress"). This is not to say that the pre-Bolling Court always rejected any suggestion that the federal government was bound by some sort of constitutional equality requirement. After all, any legal system that respects the idea that like cases should be treated alike entails a kind of equality norm. Even before Bolling, therefore, the Court acknowledged some minimal requirement of equality in adjudication. See, e.g., Truax v. Corrigan, 257 U.S. 312, 332 (1921) ("Our whole system of law is predicated on the general fundamental principle of equality of application of the law."). But that norm did virtually none of the work that the Equal Protection Clause would later do. (Consider, after all, that that kind of equality norm was necessarily present in the constitutional system from the beginning, long before the Equal Protection Clause existed.) In the years leading up to Bolling, however, the Court became more solicitous of a thicker equality norm running against the federal government, albeit while still hanging on to the formal proposition that equal protection itself ran only against the states. See, e.g., Hurd v. Hodge, 334 U.S. 24, 35 (1948) (striking down a racially restrictive covenant partly on the grounds that "the public policy of the United States," albeit not the Constitution, imposed an antidiscrimination norm on the federal government); Korematsu v. United States, 323 U.S. 214, 216 (1944) (stating that laws curtailing the civil rights of particular racial groups are subject to rigid scrutiny, but without accepting the idea that the category of constitutionalequal protection applies to the federal government). The timing of this change was not arbitrary; it came just as the confrontation with Nazi Germany and the imperatives of the early Cold War prompted American constitutional decisionmakers to take racial equality more seriously. See Primus, supra note 37, at 187-89.
76. See Ely, supra note 72.
77. See Lawrence Lessig, Understanding Changed Readings: Fidelity and Theory, 47 Stan. L. Rev. 395, 409 (1995).
78. See Ely, supra note 72; Lessig, supra note 77, at 409-10; William N. Eskridge, Jr., Some Effects of Identity-Based Social Movements on Constitutional Law in the Twentieth Century, 100 Mich. L. Rev. 2062, 2365 (2002) (describing Bolling as "universally accepted").
79. On Justice Black as a hard-core textualist, see, for example, Sanford Levinson, Constitutional Faith 31-32 (1988).
80. See Impeachment of Certain U.S. Supreme Court Justices, H.R.J. Res. 100, 1957 Gen. Assem. (Ga. 1957).
81. Nomination of Robert H. Bork to be Associate Justice of the Supreme Court of the United States: Hearings Before the S. Comm. on the Judiciary, 100th Cong. pt. 1, 287-88 (1989).
82. See, e.g., Schneider v. Rusk, 377 U.S. 163, 168 (1964) (asserting, as the Court routinely did before Bolling, that the Fifth Amendment contains no Equal Protection Clause).
83. See Primus, supra note 73, at 989.
84. See Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975). The possibility of some daylight between the two Amendments' versions of equal protection remained articulable for a bit longer, as some Justices suggested that Congress might have more leeway than states to implement race-conscious affirmative action. See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 490 (1989) (opinion of O'Connor, J., joined by Rehnquist, C.J., and White, J.). By the 1990s, however, the Court settled on the view that equal protection is the same across the board, whether against the federal government or the states. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).
85. U.S. Const. art. I, § 2, cl. 1.
86. U.S. Const. art. I, § 2, cl. 2 (emphasis added).
87. See supra Part III.
88. K.N. Llewellyn, The Constitution as an Institution, 34 Colum. L. Rev. 1, 10 (1934).
89. See U.S. Senate Roll Call Votes 111th Cong. on Passage of S. 160 As Amended, supra note 24 (including among the yea votes Republican Senators Susan Collins, Orrin Hatch, Richard Lugar, Olympia Snowe, Arlen Specter, and George Voinovich).
90. See Kenneth Starr & Patricia M. Wald, Congress Has the Authority to Do Right by D.C., Wash. Post, Sept. 17, 2006, at B8 (arguing that Congress may and should give the District of Columbia a voting seat in the House of Representatives).
91. See The Colbert Report (Comedy Central television broadcast Feb. 20, 2009) (featuring as guest District of Columbia Representative Eleanor Holmes Norton, making the argument that American fairness requires letting District residents vote).
92. Nonjusticiability could come in the form of either concluding that no plaintiff had standing to challenge the law or determining under the political question doctrine that, within broad parameters, a decision to broaden the electorate represented in Congress is the province of Congress itself. Either way, one benefit of the judiciary's declining to weigh in on the matter would be that enfranchising the District of Columbia would not force courts to confront the question of whether other presently unrepresented American jurisdictions must also have voting seats in the House of Representatives. Many people who recognize the injustice of disfranchising the District of Columbia's half-million residents worry that acknowledging a principle that would cure that problem would also require representation for Guam, the Virgin Islands, and all other American-Flag jurisdictions. Some of these territories are tiny, and the idea of giving each one its own Representatives might seem absurd. Nor can the problem be sensibly solved by grouping all the residual jurisdictions together into a "miscellaneous territories" district, given the enormous diversity of the political situations of the relevant populations. Fear of entering this swamp may persuade some people that the wiser course is simply not to enfranchise the District of Columbia in the first place: a Court that ruled on constitutional grounds that American citizens in the District of Columbia must be permitted to elect a voting member of the House of Representatives would either have to endorse the same principle for these other territories or else explain why not. This problem only presents itself, however, if the courts were to rule affirmatively that District residents are constitutionally entitled to voting representation. If instead the courts declared the issue nonjusticiable, the problem would not arise. The question of whether to extend the franchise would be left with Congress, and Congress would be free to extend the principle or not as it judged appropriate.
93. As noted in the previous footnote, a Court persuaded of the wisdom of not passing on the constitutionality of the Act might conclude that no plaintiff had standing to challenge the law. But standing doctrine being what it is, it is at least equally easy to imagine a Court convinced of the law's unconstitutionality finding that some plaintiff did have standing to bring a constitutional challenge.
94. See District of Columbia House Voting Rights Act of 2009, Title II - Second Amendment Enforcement Act. The semiautomatic weapon ban still stands after District of Columbia v. Heller, 128 S. Ct. 2783 (2008), which struck down a ban on the use of handguns and other firearms commonly used for self-defense in the home.
95. Compare S. Amdt. 575 to S. 160, Feb. 25, 2009 (introduced by Senator Ensign and cosponsored by Senators Vitter, Coburn, DeMint, Burr, Wicker, Thune, Grassley, Risch, Inhofe, Bennett, Enzi, Chambliss, Isakson, Crapo, Cornyn, Brownback, Corker, Martinez, Murkowski, Graham, Roberts, and Barrasso), with U.S. Senate Roll Call Votes 111th Cong. on Passage of S. 160 As Amended, supra note 24 (recording Senate roll-call vote on District of Columbia House Voting Rights Act of 2009).