America's Unwritten Constitution: The Precedents and Principles We Live By (94 page)

6
    Cf. Jack M. Balkin,
Living Originalism
(2011), 261–262 (“New amendments may alter the relationships between other parts of the Constitution, sometimes…in quite unexpected ways.…[S]tructural principles might emerge from the constitutional system that no single person or generation intended.”).

7
    For more, see Chapter 10, n. 14 and accompanying text.

8
    It is, of course, logically possible to envision a declaratory amendment that merely restates more clearly a principle already implicit in the Constitution—and, indeed, we encountered a few examples in previous chapters. But almost no one in the 1910s believed that the proposed Woman Suffrage Amendment was merely declaratory of a voting right already implicit in the equal-protection clause. Note that in one of the first post-suffrage Supreme Court cases involving sex discrimination on juries, the Court did make passing reference to the Nineteenth Amendment. See
Fay v. New York
, 332 U.S. 261, 290 (1947).

9
    In 1875, Congress evidently relied on the letter and spirit of the Black Suffrage Amendment to support enforcement legislation affirming the right of blacks to serve equally on juries. Compare U.S. Const. amend. XV (“The right of
citizens of the United States
to vote shall not be denied or abridged by
the United States or by any State on account of race, color, or previous condition of servitude”
) (emphasis added) with the Act of March 1, 1875, ch. 114, sec. 4, 18 Stat. 335, 336 (“no
citizen
…shall be disqualified for service as grand or petit juror in any court
of the United States or of any State, on account of race, color, or previous condition of servitude”
) (emphasis added). For much more elaboration and documentation, see Vikram David Amar, “Jury Service as Political Participation Akin to Voting,”
Cornell LR
80 (1995): 203. See also Amar,
Bill of Rights
, 272–274 & n
^*
; Amar, ACAB
, 400 & n
^*
, 426–428 and accompanying notes; Akhil Reed Amar, “Intratextualism,”
Harvard LR
112(1999): 747, 789.

10
  See Reva B. Siegel, “She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family,”
Harvard LR
115 (2002): 947, 1016–1018.

11
  For details on the changing shape of the vice presidency, see Chapter 10, text accompanying nn. 7, 11. See also Amar, ACAB, 342–343, 437–438, 449–451.

12
  Jo Freeman, “Gender Gaps in Presidential Elections,”
P.S.: Political Science and Politics
32 (1999): 191.

13
  If these separations one day come to be perceived by large numbers of men or women as invidious, then that change in public perception could provide a basis for declaring these now-permissible separations to be unequal and therefore unconstitutional.

14
  On state constitutions, see Dawn C. Nunziato, “Gender Equality: States as Laboratories,”
Virginia LR
80 (1994): 945, 975–977; Beth Gammie, “Note, State ERAs: Problems and Possibilities,”
U of Illinois LR
(1989): 1123, 1125–1126. Not counting various states that clearly or arguably rescinded their prior ratifications, the following thirty states said
yes to the ERA before March 1979 (and thus within the initial seven-year ratification window proposed by Congress): Alaska, California, Colorado, Connecticut, Delaware, Hawaii, Indiana, Iowa, Kansas, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, Texas, Vermont, Washington, West Virginia, Wisconsin, and Wyoming. On the legality of state rescissions and congressional extensions of the ratification window, see
Amar, ACAB
, 455–445, and accompanying notes.

15
  On the anti-dynastic logic of Founding-era age rules, see Amar,
ACAB
, 70–72, 159–164. Briefly, the idea was that in a world without age limits for public service, sons of famous fathers would have an unfair and unrepublican inside track to early election. Age limits would oblige political scions to develop political records of their own before they could win high posts and would give lower-born men of merit time to rise and shine.

16
  Ever since Plato immortalized Socrates (and perhaps earlier), the dialogic form has been a familiar genre to explore questions of law and justice. Modern legal classics using hypothetical dialogue to present the analytic thrust and parry include Henry M. Hart, “The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic,”
Harvard LR
66 (1953): 1362; Bruce A. Ackerman,
Social Justice in the Liberal State
(1980); and Philip Bobbitt,
Constitutional Interpretation
(1991), 111–112. Note that in the movie, Hepburn played “Amanda” (not “Eve”) opposite Tracy’s “Adam.”

17
  See Balkin,
Living Originalism
, 31.

18
  Charles Francis Adams,
Familiar Letters of John Adams and his Wife Abigail Adams, During the Revolution
(1876), 149–150 (letter of March 31, 1776).

19
  See Amar,
Bill of Rights
, 216–218, 239–241, 245–246, 257 n
^*
, 260–261 & n
^*
, 293–294, 305;
Amar, ACAB
, 393–395, 401; Akhil Reed Amar, “Women and the Constitution,”
Harvard Journal of Law and Public Policy
18 (1995): 465.

1
    Cf.
Federalist
No. 37 (Madison) (“All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications”). See, generally, Caleb Nelson, “Originalism and Interpretive Conventions,”
U. of Chicago LR
70 (2003): 519.

2
    Washington was acutely aware of his unique role and responsibility as a precedent-setter. On May 5, 1789, he wrote as follows to Madison: “As the first of every thing, in our situation will serve to establish a Precedent, it is devoutly wished on my part that these precedents may be fixed on true principles.” Washington,
Writings
, 30:310–311. In a similar vein, Washington noted in a letter of May 17, 1789, to John Adams that “[m]any things, which appear of little importance in themselves and at the beginning, may have great and durable consequences from their having been established at the commencement of a new general government.” Charles Francis Adams, ed.,
The Works of John Adams
(1853), 8:490.

3
    See, e.g.,
Federalist
No. 69.

4
    Only weeks before the opening of the Philadelphia convention, Madison confessed, in a letter to Washington, to having “scarcely ventured as yet to form my own opinion” about the nature and structure of proper federal executive power in an ideal Constitution. Paul H. Smith et. al., eds.,
Letters of Delegates to Congress
, 1774–1789 (1976–2000), 24:231 (Letter of April 16, 1787).

5
    See
Farrand’s Records
, 3:302 (May 5, 1788, letter of Pierce Butler to Weedon Butler) (“[M]any of the members [of the Philadelphia convention] cast their eyes towards General Washington as President; and shaped their Ideas of the Powers to be given to a President, by their opinions of his Virtue”);
Elliot’s Debates
, 1:506 (Oct. 30, 1787, letter from Gouverneur Morris to George Washington) (“[Y]our name to the new Constitution has been of infinite service.…[I]f you had not attended that Convention, and the same paper had been handed out to the world, it would have met with a colder reception, with fewer and weaker advocates, and with more, and more strenuous, opponents. As it is, should the idea prevail that you will not accept the Presidency, it would prove fatal in many parts.”). “[B]e assured,” James Monroe wrote Thomas Jefferson shortly after the Constitution squeaked through the Virginia ratifying convention, Washington’s “influence carried this government.”
DHRC
, 10:1705 (July 12, 1788, letter from Fredericksburg).

6
    It is an interesting question precisely how much of the weight of early executive-branch precedents derives from Washington’s personal authority. Had lightning killed America’s first president moments after he took office—and had virtually all the major practices and precedents that in fact arose under Washington instead arisen under Vice-President-turned-Acting-President John Adams, would these Adams administration precedents have carried the same weight in American history as the real-life Washington administration precedents have in fact carried?

7
    Treaty Between the United States of America and the French Republic, April 30, 1803, 8 Stat. 200;
Sen. Exec. J
, 1:450 (Oct. 20, 1803); Act of Oct. 31, 1803, 2 Stat. 245; Act of Nov. 10, 1803, 2 Stat. 245.

8
    Treaty of Amity, Commerce and Navigation Between his Britannic Majesty and the United States of America, by their President, with the Advice and Consent of their Senate, Nov. 19, 1794, 8 Stat. 116; Additional Article, May 4, 1796, 8 Stat. 130;
Sen. Exec. J
, 1:186 (June 24, 1795); Act of May 6, 1796, 1 Stat. 459.

9
    Unlike a presidential nomination, which cannot be “amended” by the Senate, a presidentially negotiated treaty can be modified by the Senate, subject to approval by the president and by America’s treaty partner(s). This difference helps explain the subtle variance in phraseology in the two adjoining Article II clauses that refer to Senate advice and consent—the first clause addressing treaties and the second, appointments. Thus, the textual variance should not imply the blanket impermissibility of presidential treaty negotiation in the absence of prior consultation with the Senate—a textual reading that has been repudiated by long-standing practice dating back to Washington.

         
For the March 1, 1796, presidential promulgation of the Jay Treaty, see
Annals
, 5:48.
For more on this treaty, see Amar,
ACAB
, 192, 564 n. 38. In earlier episodes, the Senate had foreshadowed its acceptance of the principle that the president would decide whether and when to formally ratify a senatorially approved treaty. One episode concerned a consular agreement that had been negotiated with France under the Articles of Confederation in November 1788, and that was presented to the Senate by Washington in July 1789.
Sen. Exec. J
, 1:8–9 (July 29, 1789) (
“Resolved
,…That the Senate do consent to the said convention, and advise the President of the United States to ratify the same”). Other episodes involved treaties made with certain Indian tribes. The Senate used varying verbal formulas in giving its approval. Compare ibid., 28 (Sept. 22, 1789) (
“Resolved
,…That the Senate do advise and consent that the President of the United States ratify the treaty concluded at Fort Harmar”), with ibid., 61–62 (Aug. 12, 1790) (
“Resolved
…That the Senate do consent to the aforesaid treaty, and do advise the President of the United States to ratify the same”), and ibid., 89 (Nov. 10, 1791) (
“Resolved
,…
That
the Senate consent to the aforesaid treaty, and advise the President of the United States to ratify the same”). See also ibid., 116 (March 26, 1792) (
“Resolved
,…That they advise and consent to the stipulation”); ibid., 170 (Jan. 8, 1795)
(
“
Resolved
,…That they do advise and consent to the ratification thereof”); ibid. (Jan. 9, 1795) (
“Resolved
, …
That
they advise and consent to the ratification of the treaty above-mentioned”). The Jay Treaty highlighted Washington’s post-Senate role in a much more visible and high-stakes chapter in American diplomacy, thereby cementing the emerging understanding of American treaty practice. Ibid., 186 (June 24, 1795) (
“Resolved
,…That they do consent to, and advise the President of the United States, to ratify the treaty…, on condition that…).

10
  For structural support for this vision, see Amar,
ACAB
, 63–…”4, 190, 304, 592–593 nn. 37–38; Amar,
Bill of Rights
, 102, 344 n. 85. See also Chapter 11. For exceptions to this general structural principle in situations involving contempt of Congress or contempt of court, see Chapter 9.

11
  Act of June 5, 1794, 1 Stat. 381. Note that the earlier Judiciary Act of 1789 had not specified any elements of criminal misconduct or delimited the extent of permissible criminal punishment in its bland section 11 language empowering federal circuit courts to adjudicate various “crimes and offenses cognizable under the authority of the United States” (1 Stat. 73, 78–79). This section is thus best read at face value; it did not itself create criminal liability or delegate the power to do so to federal courts, but rather, merely conferred jurisdiction over crimes defined elsewhere in the federal criminal code.

12
  It has been suggested that the Constitution was designed not to equate the “principal Officer in each of the executive Departments” with “the Heads of Departments,” but rather, to contradistinguish these two categories. Lawrence Lessig and Cass R. Sunstein, “The President and the Administration,”
Columbia LR
94 (1994): 1, 35–38. There is strong reason to doubt this suggestion. The terse text links the two descriptions via the word “Departments,” which in context clearly means
executive
departments in both phrases. (The two phrases appear in consecutive sentences in the Article outlining executive power. Nowhere does the Constitution itself speak of the “legislative department” or
the “judicial department.”) No major ratification speaker or essayist sharply contradistinguished “heads” from principal officers” or clearly suggested that these two clauses in Article II referred to dif” erent categories. Both Federalists and Anti-Federalists generally used the terms interchangeably in the great debate of 1787–1788. See, e.g., “The Federal Farmer (XIV),” in
Storing’s Anti-Fed
., 2:308; see also Steven G. Calabresi and Saikrishna B. Prakash, “The President’s Power to Execute the Laws,”
Yale LJ
104 (1994): 541, 626–634 & n. 393, 647–654. One major ratification pamphlet—authored by Oliver Ellsworth, who would later serve as the nation’s third chief justice—is particularly notable. Paraphrasing the opinions clause, Ellsworth substituted the words “heads of the departments” for the words “principal officer in each of the executive departments.” “Letters of a Landholder (VI),” in Ford,
Essays
, 163. America’s first chief justice, John Jay, did virtually the same thing in a landmark 1793 communication to the Washington administration on behalf of the entire Supreme Court. (For more details of this correspondence, see infra n. 22).