Six Answers for Seth Barrett Tillman

I posted recently on Lawprof Seth Barrett Tillman's fun article posing Six Puzzles for Professor Akhil Amar.

Now I see that at The Originalism Blog Lawprof Michael Ramsey has taken up the challenge: My Answers to Seth Barrett Tillman's Six Questions.

Enjoy!

Six Puzzles for Professor Akhil Amar

The always enjoyable and educational Seth Barrett Tillman has a short and fun (but very dense!) new paper out on SSRN for those of you who enjoy Constitutional puzzles: Six Puzzles for Professor Akhil Amar.  Here's the abstract:

The Constitution of 1787 uses a variety of language in regard to "office" and "officer."

It makes use of several variants on "office under the United States," and it also uses "officer of the United States," "office under the Authority of the United States," and, sometimes, just "officer" without any modifying terminology. Why did the Framers make these stylistic choices (if a choice it was)?

(And what was the Constitution referring to in Article VI's obscure "public trust under the United States" language?)

From time to time commentators have suggested answers. One such view was put forward in 1995 by Professors Akhil and Vikram Amar. They opined that each of these categories were indistinguishable: each category referred to Executive Branch and Judicial Branch officers, including the President (and, apparently, the Vice President).

I contest their atextual position.

If you are interested in the "officers" dispute, or if you just want to know where the bodies are buried ... this paper is for you. "Six Puzzles for Professor Akhil Amar." Sometimes the title says all you really need to know.

INTRODUCTION: Dear Professor Amar, Here are six constitutional puzzles for your consideration. I would be very pleased if you responded, but I do not expect you to do so. I am sure you are very busy. Still, many, many people have read your books and articles, and heard your lectures and podcasts. And some of them are almost as smart and prolific (at least, collectively) as you are. So, even if you will not, perhaps, one or more of your many colleagues and students, readers and listeners would like to respond to one or more of these challenges.

Puzzle 1. Does “Officer,” as used in the Succession Clause, Encompass Legislative Officers?
Puzzle 2. Does Impeachment Extend to Former “Officers”?
Puzzle 3. Who are the “Officers of the United States”?
Puzzle 4. Is the President an “Officer of the United States”?
Puzzle 5. Is the Presidency an “Office . . . under the United States”?
Puzzle 6. Is “Officer of the United States” Coextensive with “Office under the United States”

Edmund Randoph's Opinion on the Recess Appointments Clause

As you may have heard, the United States Circuit Court for the District of Columbia recently used originalist analysis to hold that recess appointments that President Obama made to the NLRB violated the Recess Appointments Clause of the Constitution.  All three of the judges on the panel held that the Clause permitted the president to make recess appointments only during inter-session recesses of the Senate.  Two of the three judges also held that the president had the power to make recess appointments only when the vacancy arose during that recess (the third judge found it unnecessary to reach that issue).

For those of you interested in the subject - which should reach the Supremes fairly soon, I would think - I heartily recommend (in addition to the court's opinion), Lawprof Michael B. Rappaport's article The Original Meaning of the Recess Appointments Clause, which discusses both issues at length.

Both the D.C. Circuit and Prof. Rappaport discuss a July 7, 1792 opinion that Attorney General Edmund Randolph delivered to Secretary of State Thomas Jefferson, in which Randolph opined that both the text and the "Spirit" of the Constitution led to the conclusion that the president could not issue a commission during a recess unless the vacancy "happened" - that is, arose - during that recess.  Because I like to see things for myself, I looked around and found that the printed text of Randolph's opinion does not appear to be readily available on the internet.

I did, however, discover that the Library of Congress site does have a copy of Randolph's original handwritten letter to Jefferson.  Because the letter does not seem be available in easily readable form, I have transcribed it (as best I can) for your reading pleasure.  The statute at issue in the opinion is An Act establishing a Mint, and regulating the Coins of the United States, enacted April 2, 1792.  Section 1 of the Act established a "mint for the purpose of national coinage," and provided "that for the well conducting of the business of the said mint" there would be among other officers a "Chief Coiner."

As the opinion explains, no Chief Coiner was nominated by the president or approved by the Senate before the Senate recessed on May 8, 1792.  In July Jefferson asked Randolph to provide an opinion on whether President Washington could make a recess appointment to the position.

Although the opinion indicates that there were good reasons why a Chief Coiner could not be nominated before the Senate recessed, it does not explain what those reasons were.  My guess - and it is just a guess - is that the difficulty lay in finding a qualified candidate who could comply with Section 5 of the Act, which required the Chief Coiner to post a bond with the Secretary of the Treasury in the amount of $10,000, "with condition for the faithful and diligent performance of the duties of his office."

Here then is Randolph's opinion.  Emphases are in the original:

The answer of the attorney general of the United States to the question propounded to him by the Secretary of State on the following case

By the constitution, the President shall nominate and by and with the advice and consent of the Senate shall appoint Ambassadors, &c, and all other officers of the United States whose appointments are not therein otherwise provided, and which shall be established by law.  He has also power to fill up vacancies, that may happen during the recess of the Senate, by granting commissions, which shall expire at the end of their next session.

The act establishing a mint directs, that for the well conducting of the business there shall be among other officers a chief Coiner.

This act passed on the 2nd of April 1792 and the Senate which concurred was sitting daily from thence until the 8th of May following.  But the chief Coiner was not nominated during their then sitting, tho' a Director was appointed.

The question is, whether the President can, constitutionally, during  the now recess of the Senate grant to a chief Coiner a Commission which shall expire at the end of their next session

Is there a vacancy in the office of chief Coiner?  An ofice is vacant when no officer is in the exercise of it.  So that it is no less vacant when it has never been filled up, than it is upon the death or resignation of an Incumbent.  The office of Chief Coiner is therefore vacant.

But is it a vacancy which has happened during the recess of the Senate?  It is now the same and no other vacancy, than that, which existed on the 2nd of April 1792.  It commenced therefore on that day or may be said to have happened on that day.

The Spirit of the Constitution favors the participation of the Senate in all appointments.  But as it may be necessary oftentimes to fill up vacancies, when it may be inconvenient to summon the senate a temporary commission may be granted by the President.  This power then is to be considered as an exception to the general participation of the Senate.  It ought too to be interpreted strictly.  For altho' I am well aware, that a chief Coiner for satisfactory reasons could not have been nominated during the last session of the Senate; yet every possible delicacy ought to be observed in transferring power from one order in government to another.  It is true that the Senate may finally disapprove.  But they are not left to a judgment absolutely free, when they are to condemn the appointment of a man actually in Office.  In some instances indeed this must be the case; but it is in them a case of necessity only; as where the Officer has died, or resigned during the recess, or a person appointed during the Session shall not notify his refusal to accept, until the recess.

It may well be asked in what the power of now for the first time granting a temporary commission for this new office is distinguishable in principle from granting a commission to one person in consequence of another who has been approved by the Senate, refusing to accept the first appointment to a new office?  Is not the Vacancy under these circumstances once which has never been filled up and therefore in the same predicament, as the Office of Coiner?  However a refined construction may make the cases approach each other, they are different in their relation to the constitution.  In the one, the Senate have had a full opportunity to shew their sense.  In the other not.  In the one the vacancy was filled up, as far as the President and Senate could go; and the Vacancy may be said to have happened during the Recess in consequence of the Refusal.  In the other, not.

An analogy has been suggested to one between a Minister to foreign court and the appointment now under consideration.  With much strength it has contended that a Minister may be appointed who, or whose mission was never mentioned to the Senate.  But, mark the peculiar condition of Minister.  The President is allowed by law to spend a limited sum on diplomatic appointments.  No particular courts are designated; but they are consigned [?] by the Constitution to his [?].  The truth then is that independently of congress, or either house the President may at any time during the Recess declare the court and the grade.  But this power would nugatory during the Recess if he could not also name the Person.  How unlike is this example to that of the Coiner, in which the office can be created by congress alone; and in the appointment to which the Senate might have an opportunity, of concurring  at the Session when the law was passed creating it?

My opinion upon the whole is, that the President cannot now grant a temporary commission to a Chief Coiner.

/s/ Edm. Randolph
July 7 1792

The Petitioners in McDonald are "arguing for a revolution"

Law Prof Orin Kerr reported yesterday at Volokh that the petitioners in McDonald v. City of Chicago - the Second Amendment case pending before the Supremes, which presents the issue whether the Second Amendment applies against the states (and their political subdivisions, such as the city) - "filed their merits brief." I haven't read it yet, but Prof. Kerr characterizes the brief as "truly remarkable" in that its primary argument seeks to overturn the Slaughterhouse Cases, an 1873 decision in which the Supremes narrowly construed the Privileges or Immunities Clause:

[The brief] devotes 55 pages to arguing that the Supreme Court should overturn The Slaughterhouse Cases (1873) and embark on a new era of a newly rejuvenated Privileges or Immunities Clause. It then gives a mere seven pages, at the very end of the brief, to applying existing doctrine and arguing that the Second Amendment is incorporated and applies to the states under the Due Process clause. It’s certainly an attention-getting way to brief the case. It’s not just arguing for a win: It’s arguing for a revolution.

The photo at the top depicts a group of freedmen in Richmond, Virginia in April 1865.

History in the Making

The big news in the legal world today is that the Supremes have granted cert in a case called McDonald v. City of Chicago. The issue? Whether the Second Amendment right to bear arms applies against the states (and their political subdivisions):

Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.

The reference to the Privileges or Immunities Clause is fascinating.

Dave Kopel at Volokh recommends a number of articles for background reading here.

Based on the explosion of scholarly articles we got in advance of Heller, I am hopeful that we will be beneficiaries of a like outpouring between now and next June, when McDonald will likely be decided. This time, the articles will focus on Reconstruction and the Reconstruction Congress. John A. Bingham may become the most famous man in America!

Kurt Lash, hurry up with the second part of your article on the Privileges or Immunities Clause!

The Fugitive Slave Act of 1793 13: The Myth Takes A Bite

Our last episode was a while ago, so you may want to start by reviewing earlier posts on Prigg. To make a long story short, when we last visited Justice Joseph Story, he had bought, hook, line and sinker, the myth that southern states would not have joined the Union without a fugitive slave clause that assured them “the complete right and title of ownership in their slaves, as property, in every state in the Union into which they might escape.”

Justice Story’s conclusions as to what the Fugitive Slave Clause meant all flowed from this premise. Justice Story himself made crystal clear that his interpretation of the Clause represented an attempt to “effectuate” the Clause’s “objects” and “manifest purpose” as he understood them:

How, then, are we to interpret the language of the clause? The true answer is, in such a manner as, consistently with the words, shall fully and completely effectuate the whole objects of it. If, by one mode of interpretation, the right must become shadowy and unsubstantial, and without any remedial power adequate to the end, and by another mode, it will attain its just end and secure its manifest purpose, it would seem, upon principles of reasoning, absolutely irresistible, that the latter ought to prevail. No court of justice can be authorized so to construe any clause of the constitution to defeat its obvious ends, when another construction, equally accordant with the words and sense thereof, will enforce and protect them.

What were the clause’s “obvious ends”? Justice Story circled back to restate them in the broadest possible form – a form that dictated the outcome (emphasis added):

The clause manifestly contemplates the existence of a positive, unqualified right on the part of the owner of the slave, which no state law or regulation can in any way qualify, regulate, control or restrain. The slave is not to be discharged from service or labor, in consequence of any state law or regulation. Now, certainly, without indulging in any nicety of criticism upon words, it may fairly and reasonably be said, that any state law or state regulation, which interrupts, limits, delays or postpones the right of the owner to the immediate possession of the slave, and the immediate command of his service and labor, operates, pro tanto, a discharge of the slave therefrom. The question can never be, how much is the slave discharged from; but whether he is discharged from any, by the natural or necessary operation of state laws or state regulations. The question is not one of quantity or degree, but of withholding or controlling the incidents of a positive and absolute right.

Having established that the slaveholder’s right was absolute and immediate, and that the slaveholder had the same right to recover his slave in another state as he had in his own, Justice Story then zeroed in more precisely on what this meant. In his own state, the master had the right of “recaption”, that is, the right to seize and recapture his slave without involving law enforcement or judicial officers, provided it could be accomplished without a breach of the peace:

[T]he clause puts the right to the service or labor upon the same ground, and to the same extent, in every other state as in the state from which the slave escaped, and in which he was held to the service or labor. If this be so, then all the incidents to that right attach also. The owner must, therefore, have the right to seize and repossess the slave, which the local laws of his own state confer upon him, as property; and we all known that right of seizure and recaption is universally acknowledged in all the slave-holding states. . . .

It followed, Justice Story held, that the Constitution conveyed on masters the same right of recaption in free states:

Upon this ground, we have not the slightest hesitation in holding, that under and in virtue of the constitution, the owner of a slave is clothed with entire authority, in every state in the Union, to seize and recapture his slave, whenever he can do it, without any breach of the peace or any illegal violence. In this sense, and to this extent, this clause of the constitution may properly be said to execute itself, and to require no aid from legislation, state or national.

We are only six pages into Justice Story’s 19-page opinion. Although he has (as we shall see in future installments) a good deal more to say, it is important to recognize that, at this point, the game is over as a practical matter. Prigg and his assistants had the right to enter Pennsylvania and seize and repossess Margaret Moran and her children without interference. Pennsylvania was barred from enacting or enforcing any law that “interrupts, limits, delays or postpones” this right. Pennsylvania indicted and convicted Prigg for violating such a law. It is not hard to figure out where this is going.

"She was bleeding profusely from the vaginal area"

If I were a legislator, I am not sure whether I would vote for the death penalty for any crime. There are legitimate reasons to believe that, on balance, life imprisonment in solitary confinement just might be sufficient: the expense and interminable appeals that death penalty cases inevitably generate; the possibility of misidentification.

But the idea that the death penalty is morally inappropriate for certain crimes is not merely ludicrous; it is offensive. Many others will spill volumes of ink over the Supremes' latest death penalty decision. I will let two excerpts speak for themselves. The first, from the majority opinion, is simply a sanitized version of the facts. The second is the beginning of Justice Alito's dissent:

The majority:

When police arrived at [defendant's] home between 9:20 and 9:30 a.m., they found L. H. [defendant's eight year old step daughter] on her bed, wearing a T-shirt and wrapped in a bloody blanket. She was bleeding profusely from the vaginal area. . . . L. H. was transported to the Children’s Hospital. An expert in pediatric forensic medicine testified that L. H.’s injuries were the most severe he had seen from a sexual assault in his four years of practice. A laceration to the left wall of the vagina had separated her cervix from the back of her vagina, causing her rectum to protrude into the vaginal structure. Her entire perineum was torn from the posterior fourchette to the anus. The injuries required emergency surgery.

The dissent:

The Court today holds that the Eighth Amendment categorically prohibits the imposition of the death penalty for the crime of raping a child. This is so, according to the Court, no matter how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator’s prior criminal record may be. The Court provides two reasons for this sweeping conclusion: First, the Court claims to have identified “a national consensus” that the death penalty is never acceptable for the rape of a child; second, the Court concludes, based on its “independent judgment,” that imposing the death penalty for child rape is inconsistent with “ ‘the evolving standards of decency that mark the progress of a maturing society.’ ” Ante, at 8, 15, 16 (citation omitted). Because neither of these justifications is sound, I respectfully dissent.

A person who believes that death is a morally unjustified response to such depravity has truly lost his humanity.

How Unusual?

SCOTUS Blog reported Friday that the Supremes have accepted a noteworthy Eighth Amendment (cruel and unusual punishment) case. The question presented in the case, captioned Kennedy v. Louisiana, is "Whether the Eighth Amendment bar on cruel and unusual punishment prohibits capital punishment for the crime of child rape." To see why the case may "put[] the Court's liberals and swing vote Justice Kennedy to the test to see if they actually mean what they say," check out the Crank's great post, Take This Evolving National Consensus and Shove It. See also here.

It's no secret that the Supremes' Eighth Amendment jurisprudence is a car wreck that needs to be scrapped. They might start by taking a look at this interesting article: The Original Meaning of "Unusual": The Eighth Amendment as a Bar to Cruel Innovation.

Impeachment Trivia

I really wish that Dennis Kucinich's moronic bill to impeach Vice President Cheney had passed. Then, we could have watched the Vice President preside over his own impeachment trial! Glenn Reynolds' further musings are here.

The District of Columbia House Voting Rights Act of 2007

Last week, the House of Representatives passed the "District of Columbia House Voting Rights Act of 2007." Among other things, it would grant the District a voting representative in the House.

The proposed legislation is so obviously unconstitutional (see here and here) that it's incomprehensible to me that anyone could think otherwise. Are there serious (or even semi-serious) scholars who contend the legislation is constitutional? If so, who are they? And what do they cite?

Lemmon v. People XIV: Did the Free States Have an Obligation to Respect the Institution of Slavery?

I earlier devoted a number of posts to discussing Lemmon v. People (1860), a decision by the New York Court of Appeals holding that slaves setting foot on New York soil thereby became free, even though brought into the state only temporarily and while in transit with their mistress during an interstate voyage from one slave state to another. (To find these posts, use the "Lemmon v. People" tag on the right side of the page.) I then published a preliminary post setting the stage for a discussion of whether and how the Supreme Court of the United States might have ruled, on appeal, that the Constitution required states at least to permit slaveholders to bring their slaves into free states temporarily and as part of interstate voyages.

The dissenting opinion in the New York Court of Appeals (discussed in several of the earlier posts) provides one possible approach, but I have been struggling to convince myself that the Taney court would have embraced so nationalistic and anti-state's rights an approach. It is certainly true that Taney demonstrated that he was prepared to write extremely nationalistic opinions if that is what it took to defend slavery: see my post on Prigg v. Pennsylvania (again, just use the tag). It is also certainly true that Taney's defense of slavery was so frenzied that it led to intellectual dishonesty and incoherence (see Dred Scott). Even so, the approach taken by the dissenter in Lemmon is based on such a "loose" construction that I keep thinking that it would have given even Roger Taney pause.

The good news is that there may be light at the end of the tunnel. Paul Finkelman's book, An Imperfect Union: Slavery, Federalism, and Comity (Chapel Hill: University of North Carolina Press 1981), reportedly refers to unpublished notes and drafts in Taney's papers that indicate that he was preparing to write a decision holding that "the free states of the Union" had "an obligation . . . to respect the institution of slavery," even within their own borders. I've ordered a copy of Finkelman's book. Hopefully, it will provide some clue as to the reasoning that Taney contemplated using to justify such a holding. If so, I will report and then analyze the reasoning.

References to Finkelman's book and the existence of Taney's notes appear in James McPherson's Battle Cry of Freedom (at 180) and in Chandra Manning's recently-published What This Cruel War Was Over (at 17 and fn.33 at 230). I had hoped to find discussion of Taney's notes, and perhaps the notes themselves, on the web, but I struck out. If anyone has found them on the web or otherwise in publicly-available form, I'd be delighted to hear from you.

Federal Power to Tax

As I read Robin Einhorn's American Taxation, American Slavery, I realize I have only the dimmest understanding of what taxes and duties the Constitution originally authorized the federal government to lay, other than a uniform import duty. This post is simply my attempt to lay out, for my own use, the relevant provisions, what they seem to say and suggest, and issues about which I need to think about and on which I need to focus on (see my post from earlier today, "The world in which we live in").

Article I, Section 8 of the Constitution provides:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises . . .; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Article I, Section 9 originally provided in relevant part:

No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.

The phrase "unless in Proportion to the Census or Enumeration herein before directed to be taken" was a reference to Article I, Section 2, which provided in relevant part:

. . . [D]irect Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

Putting these provision together:

A. The federal govenment had the power to lay and collect "Duties," "Imposts" and "Excises," provided they were "Uniform throughout the United States."

Questions:

1. Presumably, the "Uniformity" requirment was another way of expressing the limitation contained in Article I, Section 9, to the effect that "No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another."

2. Did the "Uniformity" requirement impose any other limitations? If so, what?

B. The federal government had the power to lay and collect "Taxes." If those "Taxes" were "direct Taxes" (and a "capitation Tax" was a species of "direct Tax"), then those taxes had to be apportioned among the States based on population (as modified by the Three-Fifths Clause).

Questions

1. What is a "direct Tax"?

2. What is a "capitation Tax"? Is it the same as a poll tax, that is, a flat tax per person?

3. Are "direct Taxes" subject to other limitations?

C. Because the federal government had the power to lay and collect "Taxes," presumably it had the power to lay and collect "Taxes" that were not "direct Taxes."

Questions

1. Is this correct?

2. Could the federal government lay any "Tax," whatever its form? (I recognize that there were a handful of specifically-mentioned taxes that the federal government was forbidden to lay, such as taxes on exports, and taxes on imported slaves over $10 per slave.)

3. Does this mean that if a "Tax" was not a "direct Tax," then it was not subject to the limitation of uniformity (because it was not a "duty," "impost" or "excise"), and it was also not subject to the limitation of "apportionment among the several States" (because it was not a "direct Tax")?

4. Does this mean that if a "Tax" was not a "direct Tax," then it was not subject to any limitations at all (provided it was laid for a proper purpose)?

Some hints, all per Einhorn, at 160-61:

Hylton v. United States (1796) involved a federal tax on pleasure carriages. "The Court ruled that the carriage tax was not a direct tax because an apportionment would produce absurd results." Assume, for example, that an apportionment indicated that $55,000 of the tax should come from Delaware and $71,000 from Georgia. Resident of Delaware, with 15 carriages per 1,000 population, would owe $0.73 per carriage. Residents of Georgia, with 2 carriages per 1,000 population, would owe $5.69 per carriage.

Thus, the Court ruled that the carriage tax could not possibly be a "direct tax" under the Constitution: "As all direct taxes must be apportioned, it is evident that the Constitution contemplated none as direct but such as could be apportioned." The justices added that only a land tax or a poll tax definitely would count as a direct tax under the Constitution.

In Pollock v. Farmers' Loan and Trust Co. (1895), the Court held that

[i]ncome taxes were "direct taxes" and therefore had to be apportioned by population. The Court was not proposing that income taxes be evied in accordance with [Einhorn's] table 1 [at 159]. It was saying that because the income tax was a direct tax that could not be apportioned, the Constitution prohibited Congress from levying it.

I'm not sure I get it. The income tax could be apportioned; the problem is that the apportionment would have produced an absurd result.

Are There Two Sets of Constitutional Amendments?

Here's something I don't get. Can the same constitutional amendment mean one thing when applied to the federal government and another when applied to the states?

I use the Second Amendment only because it makes for a vivid and easily-understood example. Assume that the original understanding of the Second Amendment was that it did not create an individual right to bear arms (for convenience, I'll refer to the opposite of an individual rights model, a "militia model"). Assume further -- and I think that the legislative history clearly shows this to be the case -- that, in passing the Fourteenth Amendment, the 39th Congress believed that the Second Amendment did create an individual right to bear arms, and intended that the States should be barred from from infringing that individual right.

Logically, you would then have, in effect, two Second Amendments, or at least two versions of the Second Amendment. The first, applicable directly to the federal government, would convey no individual right to bear arms. The second, applicable to the States via the Privileges or Immunities Clause of the Fourteenth Amendment, would convey an individual right. In other words, the federal government would be free to restrict an individual's right to bear arms, but the States would not be free to do so.

Many constitutional scholars, however, seem to contend that the "revised" meaning of the original understanding would somehow also be applied back against the federal government. I don't have the book at hand, but I distinctly recall Akhil Amar making such an argument in his book on the Bill of Rights (or perhaps it was America's Constitution). I distinctly recall it because I remember repeatedly rereading the passage in which he made the argument -- it was utterly incomprehensible. He might have used a phrase such as "reverse incorporation" (although perhaps I saw that phrase elsewhere). (When I get ahold of the book, I'll post the quote.)

There's probably a vast body of legal literature on the topic. I just don't know it.

Lemmon v. People XII

It's been a while. As you may recall, dissenting New York Court of Appeals Judge Thomas W. Clerke had concluded that, pursuant to the Constitution, "the citizens of any one State have a right of passage through the territory of another, peaceably, for business or pleasure; and the latter acquires no right over such person or his property."

He then turned to the question whether slaves were "property" under the rule he laid out. He answered in the affirmative, essentially arguing that the Constitution recognized slaves as property:

"[C]an any one State insist, under the federal compact, in reference to the rights of the citizens of any other State, that there is no such thing as the right of such citizens, in their own States, to the service and labor of any person. This is property; and whether the person is held to service and labor for a limited period, or for life, it matters not; it is still property -- recognized as an existing institution by the people who framed the present Constitution . . .."

Judge Clerke conceded that slavery was "a local institution," but found this no impediment to his conclusion:

"And what was the result of those convictions and deliberations [at the Constitutional Convention]? Undoubtedly, that while slavery should be deemed a local institution, depending upon the power of each State to determine what persons should share in the civil and political rights of the community the right is fully recognized in the Constitution, that any of the States may continue and allow the right of property in the labor and service of slaves."

Finally, Judge Clerke rejected the suggestion that the slaveholders' right was "founded merely on comity." The right to passage might be granted voluntarily under international law, but the Consititution cemented the right:

"The right yielded by what is termed comity under the law of nations, ripens, in necessary accordance with the declared purpose and tenor of the Constitution of the United States, into a conventional obligation, essential to its contemplated and thorough operation as an instrument of federative and national government."

Stephen Breyer Says "Ouch!" Again

Having been kicked around very nicely by Judge McConnell, Justice Breyer now gets politely trashed one more, this time by Judge Richard A. Posner. Here's a sample:

"The bricolage [that Justice Breyer has assembled] is as ingenious as it is complex, but the curious consequence of such ecclecticism is that it puts the judge in approximately the position he would occupy if had no constitutional theory. For couldn't Justice Breyer pull a stick out of his bundle to justify any decision that he wanted to reach? It's not as if the sticks have different weights; each is available to tip the balance in a particular case."

Judge Posner's review, "Justice Breyer Thows Down the Gauntlet," 115 Yale Law Journal 1699 (May 2006), may be accessed here.

Update and Mea Culpa: I should have credited Maimon Schwarzschild's post at The Right Coast for leading me to Judge Posner's article, which Professor Schwarzschild calls "politely devastating." In addition, I see that Professor Mike Rappaport has also posted an entry at The Right Coast in which he administers a few more kicks.