Sunday, August 23, 2015

The Flibberdigibbit Clause of the Constitution

Suppose that we all could agree that Congress should annually enact a budget for the operation of the federal government that is "balanced." If you ask Scott Walker, he would tell you the idea is good but that sometimes the vagaries of economies can frustrate budgets and expectations. Still, as we know, many States are bound by State Constitutional Amendments requiring a balanced budget.

So we agree. You, Senator Somebody or Other, and me, Representative Whose It, agree that each will offer a Resolution in our respective chambers of Congress, proposing an amendment to the Constitution that requires that Congress annually to adopt a balanced budget for the income and spending of the federal government. There is just that matter of the wording of the proposed constitutional amendment.

You bring me a draft of yours. It states:
(Hat tip to Representative Bob Goodlatte (R-VA). This draft is the one he offered in the last Congress.)

I too have a draft. It reads:
Flibberdidigit flibberdidigit flibberdidigit flibberdidigit flibberdidigit flibberdidigit flibberdidigit flibberdidigit flibberdidigit flibberdidigit flibberdidigit flibberdidigit flibberdidigit; flibberdidigit flibberdidigit, flibberdidigit flibberdidigit flibberdidigit flibberdidigit flibberdidigit flibberdidigit. Flibberdidigit flibberdidigit flibberdidigit flibberdidigit flibberdidigit flibberdidigit flibberdidigit flibberdidigit flibberdidigit flibberdidigit. Flibberdidigit flibberdidigit flibberdidigit flibberdidigit flibberdidigit flibberdidigit flibberdidigit flibberdidigit flibberdidigit flibberdidigit."
Sensibly, but with great diplomacy, you express the view that my draft may not fully, clearly, and completely communicate the intention that Congress and the federal government must be made to plan to live within a predefined budget and, in fact, actually to live within it.

I find your concern touching and amusing. I explain that I will be conducting hearings, and already have several experts lined up who will testify that my amendment requires a balanced budget in exactly the same manner as does yours. I also reminded him that, when I introduced my amendment, I gave a floor speech in which I stated that my amendment required Congress annually to balance the federal budget. In fact, as I explained to him, during that floor speech, I engaged in a colloquy with another member that went like this:
Representative Insight: Would my learned friend yield for a question?
Representative Whose It: I would gladly yield for a question related to the Resolution just filed at the desk.
Rep. Insight: It is. My question is this: As I read your proposal, it merely repeats the word, "flibberdidigit" over and over. It actually says nothing about budgets, balancing of them, or the duty of Congress to do so. Do I misunderstand?
Rep. Whose It: Indeed my good friend, you do. When I use the word "flibberdidigit" in this proposal, it means precisely that the Congress has a duty to produced a balanced budget and to do so annually.
Rep. Insight: Many who read this text might conclude, as have I, that it says no such thing. Would the gentleman's purpose not be better served by employing more direct language.
Rep. Whose It: I think not. As I have said, this is the meaning and purpose of my proposal, and experts will testify to that end.
In what may, to you, gentle Reader, seem a stunning development, my proposal is approved in sufficient proportions by both Houses of Congress and ratified by a sufficient number of States. It becomes, in fact, the Twenty-Eighth Amendment to the Constitution. In a subsequent term of Congress, during a time when a declaration of war against Awkwardistan is in effect, the Congress adopts a budget that increases revenue (that's a weaselly way of saying that it raises taxes) by adoption of an excise tax on cotton-polyester blend garment imports.

Importers of such garments sue. They argue that a bill for raising revenue, under the Twenty-Eighth Amendment, is invalid unless approved by three-fifths of each House of Congress and that such vote must be by a roll call vote.

In court, a judge is, frankly, taken aback by the importers' arguments. He says, "why this amendment says no such thing. In fact, all it says is "flibberdidigit, flibberdidigit, flibberdidigit" again and again. The importers, of course, provide the judge with a copy of the Congressional Record containing the colloquy with Representative Insight, along with the complete explanation of the Amendment I provided when I introduced the Resolution, along with references to the record of hearings held by the House when it considered the proposal.

Now, put yourself in the position of that judge. You are being asked by a group of importers to find that the federal excise tax on cotton-polyester blend garments violates a provision of the Constitution.

How do you rule? Do you choose (a) or (b):
(a)  The Twenty-Eighth Amendment strips Congress of power to increase revenue without a roll call vote in each Chamber and passage by a vote of three-fifths of each House.  
(b)  The Twenty-Eighth Amendment does not strip Congress of power to increase revenue without a roll call vote in each Chamber and passage by a vote of three-fifths of each House.
So how did you rule? If you selected option (b), then I understand why you might be reading my blogs. If you selected (a), I am wondering why you aren't listening to Mark Levin right now. I mean no disrespect to Mark, but, in fact, he is currently taking exactly the same approach in addressing the question of so-called "Anchor Babies" as a judge would take were his ruling to embody option (a).

You see, words do have meaning. Judges do their job when they confine themselves to the meanings of words as they are written, rather than as they wish they were written, or as they might bend them to mean though otherwise written, or as their authors intended that they be written. This isn't the stuff of how many angels can dance on the head of a pin. This is the stuff of whether a law enforcement officer may enter your home without a search warrant, whether a court may allow you to be tried for a crime without the ability to confront your accuser, and whether the government may silence you because it disagrees with your views.

Allow me to explain.
Great disputes and debates throughout our Nation's history have frequently resulted in resort to the Constitution. Entirely unsurprisingly, however, many of those great disputes and those that debated them on both sides of any question alike resorted to the language of the Constitution in defense of their stated positions. A few examples suffice to show that this is typical.

When Thomas Jefferson refused judicial commissions to certain Federalists that had been appointed by Jefferson's 1800 presidential election opponent, then-President John Adams, one of those opponents resorted to the Supreme Court to get an Order compelling Jefferson's administration to cough up the commissions. Problem: the thwarted Federalists filed suit under the Judiciary Act, in which Congress created certain categories of lawsuits that could be originally filed in the Supreme Court, rather than the more typical route of filing in a trial court. Resort to the Constitution revealed that Congress had exceeded the authority granted to it to make statutes regarding the Supreme Court's "original" jurisdiction.

When the Congress sought to find a way forward in a Nation closely divided overly the question of how to temporize the Peculiar Institution of Slavery, the Missouri Compromise prohibited the expansion of slavery into federal territories above a designated parallel. In Dred Scott v. Sandford, in which a slave sought redress against his master for assaulting the slave, the slave's wife and the slave's child. Problem: unless the slave was a citizen of the United States, he could not invoke the court's jurisdiction over his cause in federal court. The Supreme Court, rejecting the idea that blacks could ever be citizens of the United States, also held that it its view of it, the Constitution did not grant to Congress power to regulated slavery in the territories.

When Democrats in the Reconstruction South begin to peel away the post Civil War integrational gains of former slaves, the took a number of legislative steps, embodying discrimination in state law. Some States, for example, passed laws requiring that separate rail cars had to be provided for members of the African race. Problem: the assignment of separate accommodations based on race, or perceived race, obviously conflicted with the new Equal Protection Clause that was adopted as part of the Fourteenth Amendment. The Supreme Court, in Plessy v. Ferguson, concluded that "separate but equal" policies for public accommodations satisfied the Equal Protection Clause of the Constitution.

Many more examples could be provided. Whether the topic is abortion legalization or same sex marriage, resort is always had by judges, lawyers and commentators, to the Constitution. In some ways, it reminds one of the New Testament, in which Jesus said, "you search the Scriptures because in them you hope to find life, but these speak about me." That resort to the Constitution is as it should be.

The problem with a claimed reliance on the Constitution is that, in virtually every epic dispute of this Nation's history, opposing forces have both taken refuge in the Constitution. Remember, the nominee denied his commission by Jefferson argued that Congress had the power to allow the Supreme Court to hear his lawsuit, the anti-slavery forces argued Congress had constitutional power to restrict slavery in the federally administered territories, the equality forces argued that "separate" was not equal.

I suppose we could conclude that the Constitution is a hopelessly confusing document that engenders doubt and uncertainty simply because it is not well-crafted. That, of course, is at least an academic possibility. Another possibility, one that credits the States that ratified the Constitution and its amendments with good faith and fair dealing is that the Constitution is a document of fixed and discoverable meaning. That concept, in turn, embodies one side in one of America's great conflicts in judicial philosophy.

On one side of that philosophic dispute, modern liberal justices view the Constitution as a "living" document, capable of growing and changing with the needs of a growing and changing nation. On the other side of that dispute, conservative justices -- and Presidents like Thomas Jefferson, Abraham Lincoln, and Ronald Reagan -- view the Constitution as a document of fixed meaning, a view sometimes derogatorily called the "hidebound" Constitution. While "living Constitution" philosophy permits the Court to move the Nation toward different ends (e.g., legalization of abortion, legalization of same sex marriage), Justices who hold that the Constitution is, in fact, "hidebound," acknowledge that the Constitution is subject to change by amendment. Their objection is to changing the Constitution by interpretation of judges rather than by ratification of amendments by the States.

"Anchor babies" are much in the news of late.

Many TEA party inclined Americans and many conservatives are talking about recent coverage of the "anchor baby" question because Donald Trump has decried the idea that children born to persons illegally present in the United States have "birth right" citizenship. Notables such as Mark Levin dispute claims of students of the Constitution that the only way to resolve the present circumstance is to amend the Constitution.

Levin, as he should, looks to the Constitution to answer the question whether "Anchor babies" are entitled to birth right citizenship. I, too, look to the Constitution. Yet, we two come to different conclusions in resort to that same Constitution.

Levin concludes, not based on the words in the Constitution, that the Fourteenth Amendment does not grant birthright citizenship to any others than those persons born in the United States whose parents (actually, fathers) did not owe allegiance to a foreign power. Levin's conclusion rests on statements made about the meaning which a proponent of the Fourteenth Amendment stated he intended by language of the Citizenship Clause. To the contrary of Levin's position, I conclude that a child born in the United States is a citizen by birth so long as the mother giving birth to the child is present in the United States for any reason other than that they are on diplomatic service from another nation. Unlike Levin, I do not need to look past the words of the Constitution for hidden meanings, intended meanings, or other hopeful monsters of constitutional construction.

Mark Levin knows better than to use the reasoning he has employed here. Frankly, that he does use it suggests that he has no good legal grounding for his assertions. I, like Mark, am a constitutionalist. I am an adherent of the "hidebound" Constitution. I have an established record of commentary and argument that much of the social engineering accomplished through the judiciary results precisely from resort to the wobbly and floppy, "living Constitution" of Justices such as Brennan, Marshall, Breyer, and Ginsburg. So, I refuse to simply defer to Levin simply by virtue of his having a microphone.

Mark has committed an obvious error of construction.

The link included above shows the erroneous methodology of his reasoning.
First, the Congress that proposed the Fourteenth Amendment to the States also enacted the Civil Rights Act of 1866. That is, the exact same session of Congress enacted the statute and proposed the Amendment. 
Second, the statute included this language: "That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States[.]" 
Third, Senator Jacob Howard, who proposed the Citizenship Clause language of the Fourteenth Amendment, "will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States." 
Fourth, consequently, the Citizenship Clause does not extend birthright citizenship to those persons born in the United States to parents not legally present in the United States.
The error is right there. The 1866 Civil Rights Amendment granted citizenship to "all persons born in the United States and not subject to any foreign power[.]" The Fourteenth Amendment grants citizenship to "all persons born or naturalized in the United States, and subject to the jurisdiction thereof." The exact same Congress crafted both provisions. The exact same Congress contemplated the passage of both provisions. The exact same Congress -- with respect to the 1866 Civil Rights Act -- re-considered its passage of the Act when President Andrew Johnson vetoed the legislation, when each chamber voted to override Johnson's veto.

Yet that exact same Congress chose to employ two completely different formulations of language. Ask yourself: does "no" mean "yes?" Does "yes" mean "no?" Do you use "yes" when you mean "no?" I realize these question belong in a discussion of the problem of college campus sexual assault awareness. Nevertheless, you get the point. Why do we accept Levin's argument that a Senator that intended (and I admit his words stating his intent) a certain result and pursued it through the use of a known and familiar phrase, "not subject to any foreign power" in the statute immediately turned around and used completely different language in the constitutional proposal?

So, riddle me this BatLevin, if the Congress knew how to write these words, "not subject to any foreign power," why did the very same Congress write the words, "and subject to the jurisdiction thereof" to accomplish the exact same result as obtained directly and clearly by the former language.

In fact, courts employ rules of construction for the purpose of comprehending the meaning of, and making application of, statutes and constitutions. One of those rules accepts as a principle that when drafters use language to accomplish some purpose in one place, but do not use the same language in another place, the difference in language does, in fact, signal an intended difference in the effect of the words.

Suppose you and I were in a business relationship. I make and sell widgets to you. You sell my widgets to the public. Our contract states that the pricing of widgets sold to you by me shall be $ 1.00 each, when ordered in a single order, in quantities fewer than 100, $ 0.90 each, when ordered in a single order, in quantities of 101-200, and $ 0.80 each, when ordered in a single order, in quantities of 201 or more. Based on the contract, you regularly place orders for 100 widgets, month in and month out. At the end of the year, you will have ordered 1200 widgets for sale to the public. Doing quick math, you realize that, had you ordered 1200 widgets at one time, you would have spent $ 960.00, whereas, ordering them piecemeal in quantities of 100, you spent $ 1200.00.  You sue for return of the $ 240.00 difference between your actual outlay, and your costs had you ordered all the widgets at once.

You might argue that you had intended that pricing be based on total quantity ordered during the year.

I would argue that your intention had to be understood in light of the words actually employed in our written agreement.

We would both, of course, look to the terms of the contract to resolve the dispute.

No court acting in accord with settled principles of contract law would accept your argument. Your claim would be denied. If you intend a certain result, you will use language you have demonstrated the ability to use to communicate the result you intended. The question is not even a close one. To win, you would have to have purchased the judge.

Levin's argument is indistinguishable.

You see, there is no "flibberdidigit" clause in the Constitution. Certainly, the Citizenship Clause is not such a clause. It is a provision of defined and understood meaning. Its meaning is one that was communicated by the use of words of settled and accepted meanings at the time of their use. Levin asks to much of We the People in asking us to accept the words of a Senate sponsor of a constitutional amendment, rather than the words of that amendment.

* * * * *
I realize that many who read these words will be disappointed in finding my conclusion to be that the citizenship by birthright is a constitutional fact. The fact that this is so, however, does not mean that it must remain so. Of course, the Constitution may be amended. Perhaps it should be amended. But what should not happen, what happens all too frequently and often without sufficiently rigorous opposition, is that the Constitution be amended by pretense and artifice rather than by the means the Constitution itself sets forth in Article V.

If we are to deny newly born children birthright citizenship, then we should do so, not by modeling modernist judges who read absent meanings into text. Rather, we should bear true faith and allegiance to the Constitution and amend its provisions by amendment.