I've just posted two new papers and a revision of an old one to SSRN. The new ones are Constitutional Truthmakers and Loyal Denominatorism and the Fourteenth Amendment: Normative Defense and Implications. The old one is Loyal Denominatorism and the Fourteenth Amendment: Contemporary Debate and Reconstruction History. The abstracts are long, so I'll put them after the jump.
Constitutional Truthmakers. The abstract:
Many disputes in constitutional theory—in particular, disputes over forms of originalism and non-originalism—would be far clearer if they employed two distinctions that philosophers have drawn repeatedly in dealing with the nature of reality.
First, we should distinguish constitutional epistemology from constitutional ontology. Constitutional epistemology (together with epistemically-freighted constitutional pragmatics) tells us who decides questions of constitutional interpretation: the distribution of interpretive authority between government and citizens, between and within branches of government, and for all of these interpreters, the distribution of such authority over time. It tells us what burdens of proof govern different interpreters’ determinations, and what sorts of evidence might satisfy those burdens. Akin to the Erie/Hanna regime, such “procedural” matters of constitutional epistemology and pragmatics could be changed radically even if the underlying “substance” of constitutional interpretation—what makes claims about the Constitution true or false—stays the same, and vice-versa. Attention to this epistemic-ontological distinction undermines or complicates recent arguments against originalism by Richard Fallon, Daniel Farber, Martin Flaherty, Helen Irving, Andrew Koppelman, Suzanna Sherry, and David Strauss, as well as a classic argument by Justice Jackson, but also raises trouble for arguments for originalism by the late Justice Scalia and Lawrence Solum. Epistemic vices of either a fixed-meaning or a common-law Constitution cannot undermine a constitutional theory’s ontological virtue—if it possesses it—of accurately representing our actual Constitution, and epistemic virtues cannot compensate for the ontological vice of wrongly identifying the Constitution itself.
Second, as a precursor to assessing constitutional theories’ ontological virtues, we should classify forms of originalism or non-originalism based on their constitutional truthmakers. Do they have any at all? Do they have more than one? Pragmatists deny the existence of any truthmaker external to the practice of judging, while pluralists point to more than one. Truthmakerless constitutional theories like those of Judge Posner, Eric Segall or the early Felix Frankfurter cannot vindicate “wrong the day it was decided” (WTDIWD) data from the Court itself, and irreducibly plural constitutional theories like those of Philip Bobbitt cannot vindicate such data in cases where constitutional modes conflict. An integrated constitutional truthmaker like that proposed by the early Richard Fallon, which sets out a criterion for picking winning and losing constitutional arguments then different modes clash, has a distinct ontological advantage over pragmatist or irreducibly plural constitutional theories. Even a theory merely positing an unknown proper commensuration of conflicting constitutional arguments into answers for particular cases—that is, a reducible pluralism—can vindicate WTDIWD data in a way pragmatism and Bobbitism cannot.
Single-truthmaker forms of living constitutionalism are thus ontologically preferable to no-truthmaker or multiple-truthmaker forms. We can then ask (as I do and will do in earlier and future work) whether that single truthmaker matches, or does not match, the “this Constitution” to which Article VI refers, and to which, on a naïve view of our current practices, current officeholders swear an oath.
Loyal Denominatorism and the Fourteenth Amendment: Normative Defense and Implications. The abstract:
This Article and a companion defend a revisionist explanation for the Fourteenth Amendment’s legitimacy. The legitimacy of both the Amendment’s proposal and ratification are imperiled by the exclusion of Southern states from Congress between 1865 and 1868: the exclusion was essential for the Amendment’s two-thirds supermajorities in the House and Senate, and the demand that the South ratify before being represented was essential for the Amendment’s three-fourths supermajority among the states. Congress justified the exclusion of Southern representatives by the suspension of Southern states’ “political relations in the Union” during the war; such suspensions continued until Congress restored them. As the companion paper makes clear, a great many Republicans and other observers applied the same theory to Article V. The right to say no to an amendment—that is, the right to be included in the denominator from which a three-fourths ratification vote was calculated—was restored at the same time as other “political relations in the Union.” On this theory, the Fourteenth Amendment became law on February 12, 1867, when Pennsylvania ratified, bringing ratifications to twenty of the twenty-six represented in Congress.
While its companion explains at great length the historical prevalence of Article V loyal denominatorism during Reconstruction, this Article defends the loyal Article V denominator on the merits and explains several important implications.
The loyal-denominator intellectual cocktail has four parts: one part linguistics, two parts law of war, and one part separation of war power, each ingredient subject to surprisingly little real controversy. (a) The linguistic ingredient is tacit quantifier domain restriction. Language users always presuppose some domain of application for their words, almost always both non-universal and tacit. The presupposition that states with power in the Union are not engaged in war against the Union is quite similar in kind to the sorts of presupposition discussed by all careful thinkers about language (ancient, contemporaneous with the Founding, modern, or anywhere in between). (b) The first law-of-war ingredient applies this linguistic theory to war. Agreements that make a “tacit supposition of peace,” as Vattel put it, are suspended during a war between the contracting parties or constituent parts. (c) The second law-of-war ingredient concerns the end of war, or jus post bellum: victorious parties in armed conflict may demand not only formal external surrender, but reliable submission, from their opponents. (d) Finally, Congress’s power to “declare War,” i.e., the power to declare that a state of war exists, obviously includes the power to delay the establishment of a condition of peace by declaring that a state of war still exists. The Tennessee Readmission Act of 1866 and Reconstruction Act of 1867 made very clear that Congress did not yet regard the South to be in a state of peace. Congress was not required to spell out the application to Article V.
The adoption of this view is important for several reasons. (a) First, in line with the first Federalist Paper’s vision of our constitutional-adoption process, it allows us to see the Fourteenth Amendment as the genuine result of federally-structured “reflection and choice” at the time of Reconstruction rather than “accident and force.” If we limit the Article V “We the People” to loyal states, we need neither nationalize it, like Ackerman, nor make it intergenerational, like Colby, nor allow it to be subject to coercion, like Harrison and Amar. (b) Second, recognizing the centrality of jus post bellum issues to the legitimacy of the Amendment at the time of its very adoption can help us better understand the failure to follow through on enforcement of the Amendment in the South. The Fourteenth Amendment was and is the object of the South’s submission, not a joint expression of the unimpaired “equal sovereignty” of all states. (c) Third, we see the importance of context to the inference of tacit restrictions for interpretation, something originalists and textualists have recently been accused of neglecting. (d) Fourth, to the extent that, like McDonald v. Chicago, we think rights prevalent at the time of adoption are critical, the North in 1867, not the nation in 1868, should control us, and the regional skew to state-constitutional gun rights during Reconstruction undermines McDonald’s claim to consensus.
Loyal Denominatorism and the Fourteenth Amendment: Contemporary Debate and Reconstruction History (part of OWIP5 in 2014). The abstract:
The Fourteenth Amendment is rightly regarded as the jewel of our Constitution. No clear consensus has ever emerged, however, on exactly why it is a legitimate part of our Constitution. The exclusion of Southern representatives from Congress from December 1865 to the summer of 1868 raises problems for the Fourteenth Amendment’s compliance with both of Article V’s requirements for constitutional amendments. Republicans (a) proposed the Amendment by two-thirds of each house in 1866 only by excluding Southern representatives, and (b) ratified the Amendment by three-fourths of the states only by demanding ratification in 1867 as the price of readmission.
Scholars like Bruce Ackerman, John Harrison, Akhil Amar, and most recently Thomas Colby have proposed a wide variety of conflicting ways to handle these two problems: the nationalization, formalization, democratization, and intergeneralization of We the People, respectively. Ackerman hails Reconstruction as the death of the federally-structured Article V process; Harrison views it as the formally-lawful evasion of Article V’s intended restriction; Amar views it as the imposition of more democratic political norms in the name of republican government; Colby views it as only legitimate if taken to include later acts like Brown and Roe.
This Article and a companion defend a view they all consider but too-briefly reject. The “loyal denominator” view holds that the disloyal South’s powers under Articles I and V (and II and IV)—including the power to be part of the Article V denominator—were suspended upon secession and remained suspended until the Union’s military victory was sufficiently secure in the view of Congress that a state of peace could be restored. Given a loyal Article V denominator, the Fourteenth Amendment became law on February 12, 1867. We should therefore understand the text as the expression of meaning uttered by the loyal North, not as jointly uttered by the loyal North and the defeated South.
This Article sets out the issues regarding Fourteenth Amendment legitimacy, explains how a loyal denominator can resolve them, and canvasses expressions of the theory during Reconstruction. A companion article defends loyal denominatorism on the merits—based on linguistic theory, the law of war, and the separation of war power—and considers implications.
The latter two will be essential reading for anyone planning a proper 150th-anniversary party for the Fourteenth Amendment on February 12. Please send me comments!
Posted at 2:47 PM