America's Unwritten Constitution: The Precedents and Principles We Live By (98 page)

26
  Act of July 23, 1866, 14 Stat. 209; Act of April 10, 1869, 16 Stat. 44.

27
  Likewise, if lower federal court judges today were generally to stop announcing in public the legal reasons supporting their rulings on the merits, this refusal would violate the Article III text as glossed by centuries of practice, even though Article III nowhere specifies that judges must ordinarily make public the reasons for their decisions. Whether or not this norm can be deduced as an implicit background principle of Article III as originally envisioned, today it forms an indispensable element of “judicial Power” as that phrase appears in Article III and has come to be operationalized by actual practice.

28
  For general discussion of the various powers of the chief justice, see Judith Resnik and Lane Dilg, “Responding to a Democratic Deficit: Limiting the Powers and the Term of the Chief Justice of the United States,”
U. of Pennsylvania LR
154 (2006): 1575. Note that while the written Constitution refers to “the Chief Justice,” it describes the other members of the Supreme Court as “Judges” and not “Justices.” It is conventional today to describe all the members of the Supreme Court as “justices” because the Judiciary Act of 1789 used that phrasing and later congressional statutes have followed suit. See Act of Sept. 24, 1789, 1 Stat. 73, sec. 1. Early practice has thus glossed the text on this nice question of title and etiquette.

         
Current federal law authorizes the Supreme Court to sit, in effect, as an agency to promulgate procedural rules that will operate in all federal civil litigation. 28 U.S.C. 2072. Although this power of judges to act outside of cases and controversies and to proceed
in a legislative/administrative fashion might be thought to raise serious separation-of-powers issues, if only the Constitution’s text and its underlying conceptual logic were relevant, the decisive fact is that such rulemaking authority traces back to section 17 of the landmark Judiciary Act of 1789, 1 Stat. 73, 83—a section passed by the First Congress, signed into law by George Washington, and explicitly upheld by Chief Justice Marshall speaking for a unanimous Court in
Wayman v. Southard
, 23 U.S. (10 Wheat.) 1, 43–44 (1825). Here, too, early practice has definitively glossed the text and turned what might otherwise be a hard constitutional question into an easy one.

29
  John Locke,
The Second Treatise of Government
, Thomas P. Peardon, ed. (1952), sec. 96. See Willmoore Kendall,
John Locke and the Doctrine of Majority-Rule
(1959); Bernard Wishy, John Locke and the Spirit
of
’76,”
Political Science Quarterly
73 (1958): 413.

30
  Thomas Jefferson, “Notes on the State of Virginia,” in
Writings
, 3:229–230 (citing Brooke, Hakewell, and Puffendorf);
Farrand’s Records
, 1:198.

31
  On the enactment of ordinary laws by simple majority, see
Federalist
Nos. 22, 58, 62; Jed Rubenfeld, “Rights of Passage: Majority Rule in Congress,”
Duke LJ
46 (1996): 73. On the basic difference between statutes and constitutional amendments, see Bruce Ackerman,
We the People: Foundations
(1991). On the way in which treaty supermajority rules help offset the absence of the House, see
Amar, ACAB
, 190. On the key differences between house exclusion by majority vote and house expulsion by supermajority, see
Powell v. McCormack
, 395 U.S. 496 (1969).

32
  Could Congress enact a statute requiring that no federal law be held unconstitutional unless the court hearing the case is unanimous? If so, were Congress to structure a Court of one hundred members (as the Constitution allows), the Court would have to enforce a federal law even if ninety-nine of the one hundred justices found that law clearly unconstitutional. At this point, judicial review would have effectively been undone by a mere statute. The proper stopping point on the slippery slope is to insist that Congress may pass no law giving any judge who sides against a constitutional claim more weight than a judge who sides with a constitutional claim—a principle implicit in the supremacy clause itself.

         
Two state constitutions have provisions preventing their respective state supreme courts from declaring state legislation unconstitutional unless the court acts by supermajority. In North Dakota, the state constitution authorizes a majority of a quorum of the state supreme court to act for the court in all situations “provided that the supreme court shall not declare a legislative enactment unconstitutional unless at least four [of the five] of the members of the court so decide.” N.D. Const., art. VI, sect. 4. This clause has been understood to apply only when the issue is whether a North Dakota statute violates the state constitution. Thus read, it raises no major federal problem. North Dakota is not obliged to have a state constitution that trumps ordinary state statutes; nor is the state obliged to provide for strong judicial enforcement of its state constitution. The Nebraska Constitution features a similar clause: “A majority of the [state supreme court] members sitting shall have authority to pronounce a decision except in cases involving the constitutionality
of an act of the Legislature. No legislative act shall be held unconstitutional except by the concurrence of five [of the court’s seven] judges.” Nebr. Const., art. V, sect. 2. The Nebraska clause apparently has been held by the state supreme court to apply to cases involving claims that a state statute violates the federal Constitution. See
DeBacker v. Brainard
, 161 N.W. 2d 508 (Neb. 1968),
appeal dismissed
, 396 U.S. 28 (1969);
DeBacker v. Sigler
, 175 N.W. 2d 912, 914 (Neb. 1970) (Spencer, J., dissenting). To the extent that this clause might direct the state’s highest court to affirmatively enforce a state statute despite the fact that a court majority deems the statute contrary to the U.S. Constitution, this clause plainly violates the federal supremacy clause, which specifically addresses state judges and obliges them to prioritize the U.S. Constitution over a mere state statute. No other state follows the North Dakota or Nebraska model. Instead, majority rule generally prevails on state courts. For an excellent discussion, see Evan H. Caminker, “Thayerian Deference to Congress and Supreme Court Supermajority Rule: Lessons from the Past,”
Indiana LJ
78 (2003): 73. For more on the interplay between federal and state constitutional law, see Chapter 12.

33
  For a subtle analysis of how the Court’s majority has ultimately exercised its power to manage and/or dismiss cases docketed by a Court minority, see Richard L. Revesz and Pamela S. Karlan, “Nonmajority Rules and the Supreme Court,”
U. of Pennsylvania LR
136 (1988): 1067.

34
  Although in recent years the House occasionally adopted internal rules requiring supermajority votes in the enactment of certain types of laws—laws raising taxes, for example—leading constitutional scholars have condemned these rules as unconstitutional under Article I, section 7. See Rubenfeld, “Rights of Passage,” 83. Other thoughtful scholars have defended these rules by arguing that each house has always retained the inalienable right to suspend supermajority requirements at any time, and to do so by a simple majority vote—a theory honoring the Constitution’s basic requirement of house majority rule, but relocating the effective locus of this constitutional norm from Article I, section 7, to Article I, section 5. See John O. McGinnis and Michael B. Rappaport, “The Rights of Legislators and the Wrongs of Interpretation: A Further Defense of the Constitutionality of Legislative Supermajority Rules,”
Duke LJ
47 (1997): 327. One noteworthy limit on the agenda-setting power of House leaders and committees is embodied in the device of the discharge petition. Through this theoretically important, if little-used, safety valve, a majority of the entire House—218 members—may bypass committee veto-gates and bring a bill to the floor. For the argument that all House rules are and indeed must be modifiable at all times by a later House majority, see ibid. and
United States v. Ballin
, 144 U.S. 1, 5 (1892).

35
  The specific ways in which the Senate operates as a “continuing body” are complex. Senate bills passed during one congressional term all die at the end of the term and must be repassed in a new Senate, but the same is not true of Senate rules. Rules are thus treated differently from bills. This difference is not spelled out in the written Constitution but instead has formed a notable feature of actual government practice from the Founding
to the present. A structural argument explaining this feature of actual practice might run as follows: When enacting a bill, the Senate is operating in tight bicameral partnership with the House. When the old House dies at the end of its two-year term, all House bills obviously die as well, and the same should hold true bicamerally for Senate bills. But when enacting its internal rules, the Senate is acting in more unicameral fashion and need not coordinate with House practice to the same extent. This reasoning makes sense but goes beyond narrow textualism. Here, then, is yet another example of how America’s written and unwritten Constitutions cohere.

         
A further example comes from House practice. Until each new House adopts rules for proceeding, which procedural rules apply? The terse text does not say. Customary usage fills in this textual gap with…customary usage. Thus, the House tradition has been to follow “general parliamentary law” in its opening moments—law derived from customary Anglo-American parliamentary practices. (Between 1860 and 1890, a contrary, quasi-senatorial approach emerged in which the rules of the prior—defunct—House were said to apply in the new House until superseded.) For details, see Aaron-Andrew Bruhl, “Burying the Continuing Body Theory,” 1411 & n. 19.

36
  Thus, although the Senate need not reenact its standing rules every two years—as the House has generally felt it must—the Senate, like the House, must be free to repeal any standing rule and must be free to do so by simple majority vote.

37
  According to Senate Rule 22—I swear I am not making up this number!—a motion to end debate “shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn—except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting.”

38
  On majority rule as the obvious command of Article I, section 7, see Rubenfeld, “Rights of Passage.” On majority rule as the obvious command of Article I, section 5, see McGinnis and Rappaport, “The Rights of Legislators.”

39
  For a wise reminder that practices do not typically interpret and contextualize themselves, and that different opinions are apt to exist about how best to interpret a practice, see Jerry L. Mashaw, “Governmental Practice and Presidential Direction: Lessons from the Antebellum Republic?,”
Willamette LR
45 (2009): 659, 663.

40
  
Sen. J
, 1:13 (April 16, 1789).

41
  See Richard R. Beeman, “Unlimited Debate in the Senate, the First Phase,”
Political Science Quarterly
83 (1968): 419; Sarah S. Binder and Steven S. Smith,
Politics or Principle? Filibustering in the United States Senate
(1997).

42
  Franklin L. Burdette,
Filibustering in the Senate
(1965), 39. See also Beeman, “Unlimited Debate”; David R. Mayhew, “Supermajority Rule in the U.S. Senate,”
PS: Political Science and Politics
36 (2003): 31 (for most of its history, the Senate never “had any anti-majoritarian barrier as concrete, as decisive, or as consequential as today’s rule of 60”).

43
  For discussion of the 1975 rulings, see John C. Roberts, “Majority Voting in Congress: Further Notes on the Constitutionality of the Senate Cloture Rule,”
Journal of Law and Politics
20 (2004): 505, 516–517. For a contrasting account claiming the existence of a clear senatorial pattern rejecting prototypes of the nuclear option, see Michael J. Gerhardt,
The Constitutionality of the Filibuster,”
Constitutional Commentary
21 (2004): 445, 476–478. Gerhardt’s own narrative, however, provides evidence that the Senate has in fact flip-flopped on the key issue. For an illuminating account of the strong senatorial and vice-presidential support for the nuclear/constitutional option for much of the past century, and a sophisticated discussion of how the strong threat of the nuclear/constitutional option has repeatedly operated to win filibuster reforms that formally followed the catch-22 voting rules laid down by previous Senates, see Martin B. Gold and Dimple Gupta, “The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to Overcome the Filibuster,”
Harvard Journal of Law & Public Policy
28 (2004): 205. For the early twenty-first-century Republicans’ argument for the nuclear option, see John Cornyn, “Our Broken Judicial Confirmation Process and the Need for Filibuster Reform,”
Harvard Journal of Law & Public Policy
27 (2003): 181; Orrin G. Hatch, “Judicial Nomination Filibuster Cause and Cure,”
Utah LR
(2005): 803.

44
  For a qualification and clarification of my claim about House practice, see supra n. 34. Note that the majority-rule principle operates slightly differently for each half of Congress. In the House, new rules are affirmatively adopted by majority vote at the start of every new congressional term. In the Senate, the old rules need not be adopted by majority vote at the start, but must be repealable by majority rule. Under an alternative characterization, the old Senate’s rules do lapse at the end of each Congress, just like the old House’s rules, but the new Senate need not formally vote to readopt the old Senate rules at the outset of a new Congress. Instead, the new Senate may implicitly readopt the old Senate rules simply by acting in conformity with them. On this view, the new Senate at the beginning of its session may, in House fashion, adopt a wholly new set of rules, and may do so by following “general parliamentary law”—which enables a simple majority to end debate—until these new rules are adopted. See Gold and Gupta, “The Constitutional Option,” 220–222 (explaining this theory—an early version of the constitutional option—as put forth by Senator Thomas J. Walsh in 1917). On the role of “general parliamentary law” in jumpstarting the new House, see supra n. 35.