Trinity Law School Law Review - Spring 2015

TRINITY LAW REVIEW

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AMERICA’S SECOND REVOLUTION: THE TWO COMPETING LEGAL SCHEMAS IN THE AMERICAN DEMOCRACY Shannon Holzer ..................................................................................... 1 A TALE OF TWO CONSTITUTIONAL ORDERS? DEPARTMENTALISM, JUDICIAL SUPREMACY, AND THE PRESIDENTIAL VETO Bruce Peabody ........................................................................................... 30 PHONE CALLS CREATING LIFELINES FOR PRISONERS AND THEIR FAMILIES: A RETROSPECTIVE CASE STUDY ON THE CAMPAIGN FOR PRISON PHONE JUSTICE IN MINNESOTA Dr. Artika Tyner, Margaret Higgins, Dominika Malisz, Elysia Newton, Natalie Peterson & Shannon West .................................................. 83

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AMERICA’S SECOND REVOLUTION: THE TWO COMPETING SCHEMAS IN THE AMERICAN DEMOCRACY

SHANNON HOLZER

The American founding principles contained in the Declaration of Independence are being replaced. More specifically, many legal scholars, jurists, and politicians act legally and politically from different philosophical assumptions than the assumptions contained in this famous document. It has been argued that to stray from the principles set forth in the Declaration of Independence is to stray from that which makes America, America. David Seville Muzzey writes: To analyze the Declaration of Independence would be as gratuitous a piece of work as to analyze the Ten Commandments. It is the Bible of American democracy.

The equality of all men in the eyes of nature and the law, the inalienable rights of all to life, liberty and the pursuit of happiness, the function of government as a guarantee of those rights, its just power derived from the consent of the governed—these principles on which our republic is founded and from which it will draw its inspiration as long as it lives. Without them it would not be a republic; without them it would not be America.1 This essay will show that America is in a transition from a government founded on the principles of Natural Law (“NL”) with a minimal commitment to deism, to a government founded on a Rawlsiantype social contract theory that is committed to secular reason.

Furthermore, this article will show that the original American constitutional experiment was by and large congenial to religious reasoning, and that many contemporary theorists believe that religious

1

DAVID SAVILLE MUZZEY, THOMAS JEFFERSON 41 (New York Charles Scribner’s Sons, 1918) (Muzzey further wrote that, “[T]he Declaration of Independence is the birth certificate of the American Nation.”). Id. at 45.

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restraint is demanded by a properly functioning liberal democracy.

Natural Law NL theorizes that God has made His will accessible through the created order. Moreover, it is through reason that one discovers NL. NL in this case not only applies to physical objects, but also to morality and the body politic. This idea was not new to Thomas Jefferson and the founders; it is found way back in Aristotle’s works and applied by the mediaeval governments as developed by Thomas Aquinas.2 While theology through special revelation directed man towards his supernatural end, NL directed man towards his temporal end.3 The important feature of NL on which this essay will focus is the concept of the “end.” According to Aristotle and Aquinas, all of the created order has an “end” towards which it is directed. It is through reason that one discovers this. Aristotle writes: Every art and every inquiry, and similarly every action and pursuit, is thought to aim at some good; and for this reason the good has rightly been declared to be that at which all things aim. But a certain difference is found among ends; some are activities, others are products apart from the activities that produce them. Where there are ends apart from the actions, it is the nature of the products to be better than the activities. Now, as there are many actions, arts, and sciences, their ends also are many; the end of the medical art is health, that of shipbuilding a vessel, that of strategy victory, that of economics wealth. But where such arts fall under a single capacity- as bridle-making and the other arts concerned with the equipment of horses fall under the art of riding, and this and every military action under strategy, in the same way other arts fall under yet others- in all of these the ends of the master arts are to be preferred to all the subordinate ends; for it is for the sake of the former that the

2

ERNEST L. FORTIN, CLASSICAL CHRISTIANITY AND THE POLITICAL ORDER: REFLECTIONS ON THE THEOLOGICO-POLITICAL PROBLEM 152-53 (J. Brian Benestad ed., Rowman & Littlefield Publishers, Inc.1996).

3 Id. at 154.

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latter are pursued. It makes no difference whether the activities themselves are the ends of the actions, or something else apart from the activities, as in the case of the sciences just mentioned.4 These ends of which Aristotle speaks are objective. That is to say that they are not created by individuals or states, but that they are discovered through reason. This language found its way into the American Declaration of Independence when Jefferson wrote: That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.5 Many scholars argue that the most influential founding father Thomas Jefferson was a strict separatist who argued for a complete separation of religion and state. Nowhere is this more clear than in Isaac Kramnick and R. Laurence Moore’s book The Godless Constitution, which argues that our nation was framed upon a “godless Constitution and [] godless politics.”6 Yet, Jefferson’s language in both his official and

4

ARISTOTLE, Introduction and Notes by Lesley Brown, THE NICOMACHEAN ETHICS bk. I, at 3 (David Ross trans., Oxford University Press 2009) (1980).

5 THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776) available at http://www.archives.gov/exhibits/charters/declaration_transcript.html.

6 ISAAC KRAMNICK & R. LAWRENCE MOORE, THE GODLESS CONSTITUTION: THE CASE AGAINST RELIGIOUS CORRECTNESS 12 (W.W. Norton & Company, Inc. 1st ed. 1996) (1940). See also R. LAWRENCE MOORE, SELLING GOD: AMERICAN RELIGION IN THE MARKETPLACE OF CULTURE 67 (Oxford University Press 1994) (1940) (“Brief reflections about European history leave us dazed by the various patterns of conflict and accommodation that have marked the interaction between those who have ruled churches and those who have ruled states. The one thing that these historical figures have rarely done, although the formula has been prescribed often enough, is to leave one another alone. The United States was supposed to have learned something from the turmoil of the European past and to have written a Constitution that took politics out of religion and religion out of politics. That sundering proved impossible in the young republic. What emerged were new patterns of church/state interaction that subsequently baffled just

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personal writings is undeniably based on certain religious and metaphysical concepts.7 Throughout his life and career Thomas Jefferson made several important claims that touch on religion: some of these included the existence of God and the founding of laws on religion;8 others were on the role of the clergy and their duty to cultivate rational moral citizens;9 he also spoke of the nature of man;10 and given the aforementioned, he talked of how man should live within society.11 There is no debate over what

about everyone, not least the members of the nation’s Supreme Court. Although the First Amendment to the Constitution banned a national establishment of religion, although Thomas Jefferson recommended a wall between church and state long before the Constitution’s proscription was formally applied to them in the 1940’s, religion and politics in America have remained closely related.”).

7 See MICHAEL NOVAK, ON TWO WINGS: HUMBLE FAITH AND COMMON SENSE AT THE AMERICAN FOUNDING (Encounter Books 2002) (discussing the Jewish and Christian metaphysic that undergirds the American Constitutional Experiment).

8 THE DECLARATION OF INDEPENDENCE, supra note 5. (“When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”).

9 THOMAS JEFFERSON, THE COMPLETE JEFFERSON: LETTER TO THOMAS LAW 1033-34 (Saul K. Padover ed., Duell, Sloan & Pearce, Inc. 1943). (Thomas Jefferson responding to the question. What should be done for those who do not possess the moral sense given

by God?) (“These are the correctives which are supplied by education, and which exercise the functions of the moralist, the preacher, and legislator; and they lead into a course of correct action all those whose disparity is not too profound to be eradicated.”).

10 THOMAS JEFFERSON, THE WORKS OF THOMAS JEFFERSON, VOL. XI: LETTER TO FRANCIS W. GILMER 534-35 (Paul Leicester Ford ed., G.P. Putnam’s Sons 1905) [hereinafter WTJ] (Thomas Jefferson writing about the adoption of Hobbes’ understanding of human nature) (“He promises a future work on morals, in which I lament to see that he will adopt the principles of Hobbes, or humiliation to human nature; that the sense of justice and injustice is not derived from our natural organization, but founded on convention only. I lament this the more, as he is unquestionably the ablest writer living, on abstract subjects. Assuming the fact, that the earth has been created in time, and consequently the dogma of final causes, we yield, of course to this short syllogism. Man was created for social intercourse; but social intercourse cannot be maintained without a sense of justice; then man must have been created with a sense of justice.”).

11 THOMAS JEFFERSON, THE ADAMS-JEFFERSON LETTERS: THE COMPLETE CORRESPONDENCE BETWEEN THOMAS JEFFERSON AND ABIGAIL AND JOHN ADAMS, VOL. II: LETTER TO JOHN ADAMS, 384 (Lester J. Cappon, ed., The Univ. of N. Carolina Press

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Thomas Jefferson wrote; the debate is over what his original audience understood his writings to communicate.

Jefferson’s language suggests that he was not the disinterested bystander in religious matters that many supposed him to be. He openly desired that America would adopt his religious beliefs. In a personal letter to the Reverend James Smith, Jefferson thanked him for tracts on Utilitarianism and stated “I confidently expect that the present generation will see Unitarianism become the general religion of the United States.”12 Jefferson did not abandon his religious convictions when the American colonies revolted.

Thomas Jefferson grounded the American Revolution on the claim that England had violated the natural rights of the American colonies. He claimed that man is “endowed by their Creator with certain unalienable Rights.”13 Jefferson stated that the “Laws of Nature and of Nature’s God entitled [the colonies]” to a “separate and equal station.”14 According to Jefferson, it is the “end” or design of government to “secure these rights.”15 It is with this foundation of “the ends” that he justified the defiance of England. The American Founders justified going to war on the grounds of the natural moral law.16 They further justified abandoning

1959) (Thomas Jefferson writing about Jesus’ precepts being superior to all others) (“We must reduce our volume to the simple evangelists, select, even from them, the very words only of Jesus, paring off the Amphibologisms into which they have been led by forgetting often, or not understanding, what had fallen from him, by giving their own misconceptions as his dicta, and expressing unintelligibly for others what they had not understood themselves. There will be found remaining the most sublime and benevolent code of morals which has ever been offered to man. I have performed this operation for my own use, by cutting verse by verse out of the printed book, and arranging, the matter which is evidently his, and which is as easily distinguishable as diamonds in a dunghill.

The result is an 8vo.[sic] of 46. pages of pure and unsophisticated doctrines, such as were professed and acted on by the unlettered apostles, the Apostolic fathers, and the Christians of the 1st. century.”).

12 THOMAS JEFFERSON, Thomas Jefferson to Reverend James Smith, December 8, 1822, in JEFFERSON OF FREEDOM: WISDOM, ADVICE, AND HINTS ON FREEDOM, DEMOCRACY, AND THE AMERICAN WAY 53 (Skyhorse Publishing 2011).

13 THE DECLARATION OF INDEPENDENCE, supra note 5.

14 Id. ¶ 1.

15 Id. ¶ 2.

16 Id.

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the original American constitution the Articles of Confederation17 by appealing to the NL “in Order to form a more perfect union.”18 The NL is made more apparent in the United States Constitution where the Founders added the Ninth Amendment in order to defend the existence of unwritten natural rights.19 It may seem obvious that the Founders believed in the NL. However, Thomas Jefferson himself had to defend the NL against claims that liberal governments were created on the foundation of a social contract. Jefferson makes this clear in a personal letter to John Adams when he writes: [Destutt de Tracy] adopts the principle of Hobbes, that justice is founded in contract solely. . . . I believe, on the contrary, that it is instinct, and innate, that the moral sense is as much a part of our constitution as that of feeling, seeing, or hearing; as a wise creator must have seen to be necessary in an animal destined to live in society[.]20 Jefferson argued that if mankind was created for social intercourse, then mankind requires a sense of justice.21 From the fact that man is created for social intercourse Jefferson concluded that man was created with a sense of justice.22 Yet, many contemporary jurists, anti-religious advocacy groups, and lawmakers insist that to publically acknowledge God’s existence or to tether any law to Him is at best not sufficient to create laws or have the right to be exempt from them, and at worst is a violation of the First

17

See generally The First Constitution-The Articles of Confederation, THE CHARTERS OF FREEDOM, http://www.archives.gov/exhibits/charters/charters_of_freedom_4.html (last visited Jan. 28, 2015) (“The Articles of Confederation were in force from March 1, 1781, until March 4, 1789, when the present Constitution went into effect.”).

18 U.S. CONST. pmbl. available at http://www.archives.gov/exhibits/charters/constitution.html (last visited Jan. 28, 2015).

19 U.S. CONST. amend. IX (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”).

20 Letter from Thomas Jefferson to John Adams (Oct. 16, 1816), in THE ESSENTIAL THOMAS JEFFERSON 88 (John Dewey, ed., Dover Publications 2008).

21 WTJ, supra note 10, at 535.

22 Id.

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Amendment.23 These detractors’ denials are not merely an issue of First Amendment hermeneutics; they often completely reject NL and the notion that one is publically justified to believe that there is a God who endowed man with rights. With this in mind, legal scholars have offered theories of rights that are not grounded in the God of nature’s law.

Rawls and the Social Contract Whereas Thomas Jefferson embraced the notion that one could know certain religious truths and use them as public justification for establishing governments, John Rawls rejected this notion. This is not so much that Rawls believed religious claims to be false. Instead, Rawls believed that since religious reasoning is not accepted by everybody as good reason, citizens should show restraint when creating coercive legislation. So if rights and duties do exist, how does Rawls explain them?

Unlike John Locke,24 and Thomas Jefferson, Rawls did not describe rights and duties as endowments by the Creator. In his treatment of rights and duties as emerging from the social contract, Rawls writes, “[t]hus we are to imagine that those who engage in social cooperation choose together, in one joint act, the principles which are to assign basic rights and duties and to determine the division of social benefits.”25

23

See Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751, 2805 (2014) (Ginsburg, J., dissenting) (arguing that the religious belief was not enough to avoid participation in the mandate to provide insurance that includes abortifacient forms of birth control). See also Felix v. Bloomfield, 36 F. Supp. 3d 1233, 1254-55 (D.N.M. 2014) (most recent case, in the line of many, holding that the Ten Commandments’ display is unconstitutional).

24 JOHN LOCKE, SECOND TREATISE OF CIVIL GOVERNMENT, CH. 2 § 6 (1690) (last accessed Jan. 17, 2015) available at http://www.constitution.org/jl/2ndtr02.htm (possibly accepting the social contract to preserve existing rights, he grounded these rights in God) (“[F]or men being all the workmanship of one omnipotent, and infinitely wise maker; all the servants of one sovereign master, sent into the world by his order, and about his business; they are his property, whose workmanship they are, made to last during his, not one another's pleasure: and being furnished with like faculties, sharing all in one community of nature, there cannot be supposed any such subordination among us, that may authorize us to destroy one another, as if we were made for one another's uses, as the inferior ranks of creatures are for our's.”).

25 JOHN RAWLS, A THEORY OF JUSTICE 11 (The Belknap Press of Harvard Univ. Press 1971) (1921) [hereinafter TOJ]. See generally JOHN RAWLS, POLITICAL LIBERALISM (Columbia Univ. Press expanded ed. 1995) (1921) (TOJ and Political Liberalism [hereinafter PL] endeavor to accomplish two different things, PL uses the same original

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Again, this is not to say that Rawls’s position requires atheism, it merely leaves religion out of the discussion. Moreover, on this scheme, the belief in God is not a necessary condition for the belief in rights and duties.

Second, Rawls presumes that beyond the “thin theory of the good” individuals and societies determine what the good is for themselves.26 Rawls writes, “[j]ust as each person must decide by rational reflection what constitutes his good, that is, the system of ends which it is rational for him to pursue, so a group of persons must decide once and for all what is to count among them as just and unjust.”27 Rawls’s theory is different from natural law theorists who believe that—even beyond a thin theory of the good—a full theory of the good is a fact of reality that one discovers; it is not something upon which societies or individuals decide for themselves.

Rawls stated that “[t]he original position may be viewed, then, as a procedural interpretation of Kant’s conception of autonomy and the categorical imperative.”28 Rawls asks reasonable people to consider what kind of coercive legislation they would legislate not knowing into what type of situation they would be born. He concluded that reasonable people would try to level the playing field in such a way as to only give an advantage to those who are least well off. Since, according to Rawls, reasonable people would choose this level playing field, citizens should politically operate in liberal democracies in such a way.

position scenario to offer up a “thin theory of the good” to answer for the diversity of comprehensive doctrines in a free society).

26 Id. at 396 (explaining that there is a “thin theory of the good,” from which we arrive at the “full theory of the good.”) (“In contrast with teleological theories, something is good only if it fits into ways of life consistent with the principles of right already on hand. But to establish these principles it is necessary to rely on some notion of goodness, for we need assumptions about the parties’ motives in the original position. Since these assumptions must not jeopardize the prior place of the concept of right, the theory of the good used in arguing for the principles of justice is restricted to the bare essentials. This account of the good I call the thin theory: its purpose is to secure the premises about primary goods required to arrive at the principles of justice. Once this theory is worked out and the primary goods accounted for, we are free to use the principles of justice in the further development of what I shall call the full theory of the good.”).

27 TOJ, supra note 25, at 11.

28 Id. at 256.

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First principles of rights and duties emerge from what Rawls called “original position of equality [that] corresponds to the state of nature in the traditional theory of the social contract.”29 Rawls says that the original position is not an actual situation, and one uses it merely to conceptualize justice.30 From this, Rawls makes use of the concept of the “veil of ignorance.” Members in society attempt to construct principles of justice by imagining starting from the original position. In this case, one assumes that he possesses no knowledge about his place in society. Some of the features that one lacks include: [H]is class position or social status, nor does any one [sic] know his fortune in the distribution of natural assets and abilities, his intelligence, strength, and the like. . . . [t]he parties do not know their conceptions of the good or their special psychological propensities.31 One would also have no knowledge of what religion or culture in which he would be brought up.

From this starting point, it is supposed that one should embrace a form of government that affords oneself the best odds of flourishing. In this scenario, citizens would seek to assign rights and duties. Because of the citizenry’s lack of knowledge concerning their sitz im leben32 added to their desire to flourish, it is believed that rights and duties would be evenly distributed. Rawls argues that “given the circumstances of the original position, the symmetry of everyone’s relations to each other, this initial situation is fair between individuals as moral persons, that is, as rational beings with their own ends and capable . . . of a sense of justice.”33 According to Rawls, one uses the first principles of justice—arrived at from behind the veil of ignorance—“to regulate all subsequent criticism

29

Id. at 12.

Id. 31 Id. 32 “Sitz im leben” is German for “setting in life.” It is usually used in literary studies to determine the historical or sociological context of a given passage. See Douglas A. Knight, The Understanding of “Sitz Im Leben” in Form Criticism, 105, 107 (Vand. U. Divinity Sch. 1974).

33 RAWLS, supra note 25 at 11.

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and reform of institutions.”34 Further, from the conception of justice, members then create a constitution and laws to govern themselves.35 All of this to say, Rawls attempts to construct a means by which a society can assign rights that are just and fair. Rawls writes: The idea of the original position is to set up a fair procedure so that any principles agreed to will be just. The aim is to use the notion of pure procedural justice as a basis of theory. Somehow we must nullify the effects of specific contingencies which put men at odds and tempt them to exploit social and natural circumstances to their own advantage. Now in order to do this I assume that the parties are situated behind a veil of ignorance. They do not know how the various alternatives will affect their own particular case and they are obliged to evaluate principles solely on the basis of general considerations.36 Thus, the veil of ignorance is a thought experiment to reveal to one how he would ensure fair treatment of himself if he could not guarantee the advantages he may actually possess. This fair treatment of oneself also entails the treatment of others as free and equal. This is much like the parent who has the older child split the dessert into two pieces and gives the younger child first choice. Wanting to maximize his dessert eating experience, the older child cuts the dessert as equally as possible.

Third, liberal democracies use public reason to create legislation.

Society founds this legislation on the principles of justice as fairness that were determined from the original position. In order to treat others as free and equal, according to Rawls, one must not coerce his fellow citizens to do anything or refrain from anything—by act of law—unless he can first give acceptable justification for doing so. What did Rawls count as “acceptable justification?” Rawls writes, “our exercise of political power is fully proper only when it is exercised in accordance with a constitution the essentials of which all citizens as free and equal may reasonably be

34

Id. at 12.

Id. 36 Id. at 118.

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expected to endorse in the light of principles and ideals acceptable to their common human reason.”37 That which counts as acceptable justification is referred to as public reason. From this, emerges what is known as “justificatory liberalism.”38 It is from this scheme that people decide how to govern their society. Many Rawlsians exclude religious reasoning in the enactment of coercive legislation or constitutional essentials. One reason for this is that one cannot know from behind the veil of ignorance into what religion he will be born or even if he will be religious at all. Thus, it is argued, society should not ground rights and duties on religious reasoning. This is because not every rational citizen would accept religion as a justifiable foundation. On this point, Rawls writes: [T]he guidelines of inquiry of public reason, as well as its principle of legitimacy, have the same basis as the substantive principles of justice. This means in justice as fairness that the parties in the original position, in adopting principles of justice for the basic structure, must also adopt guidelines and criteria of public reason for applying those norms. The argument for those guidelines, and for the principle of legitimacy, is much the same as, and as strong as, the argument for the principles of justice themselves. In securing the interests of the persons they represent, the parties insist that the application of substantive principles be guided by judgment and inference, reasons and evidence that the persons they represent can reasonably be expected to endorse.39

37

JOHN RAWLS, POLITICAL LIBERALISM 137 (Columbia Univ. Press 1993) (1921) [hereinafter RPL].

38 See STEPHEN MACEDO, NATURAL LAW AND PUBLIC REASON: IN DEFENSE OF LIBERAL PUBLIC REASON: ARE SLAVERY AND ABORTION HARD CASES? 12 (Robert P. George & Christopher Wolfe, eds., Georgetown Univ. Press 2000) [hereinafter DLPR]. “Gerald Gaus has usefully termed this position ‘justificatory liberalism.’” See also GERALD F. GAUS, JUSTIFICATORY LIBERALISM: AN ESSAY ON EPISTEMOLOGY AND POLITICAL THEORY (Oxford Univ. Press 1996). The principle of Justificatory Liberalism (JL) states that governments must justify the enactment of coercive legislation to the citizens it serves.

39 RPL, supra note 37, at 225.

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Most Rawlsians agree that it is not reasonable to expect everybody to endorse religious claims. Because of this unreasonableness, religious restraint may be necessary for liberal democracies to operate well.40 Given that there is a plurality of theistic religions, it is understandable that strict Rawlsians would exclude religious reason of particular religious traditions from public reason. Rawls was familiar with the argument for rights as originating from God. Rawls writes: The naturalness of this condition lies in part in the fact that first principles must be capable of serving as a public charter of a well ordered society in perpetuity. Being unconditional, they always hold (under the circumstances of justice), and the knowledge of them must be open to individuals in any generation. Thus, to understand these principles should not require a knowledge of contingent particulars, and surely not a reference to individuals or associations. Traditionally the most obvious test of this condition is the idea that what is right is that which accords with God’s will. But in fact this doctrine is normally supported by an argument from general principles. For example, Locke held that the fundamental principle of morals is the following: if one person is created by another (in the theological sense), then that person has a duty to comply with the precepts set to him by his creator. This principle is perfectly general and given the nature of the world on Locke’s view, it singles out God as the legitimate moral authority. The generality condition is not violated, although it may appear so at first sight. Next, principles are to be universal in application. They must hold for everyone in virtue of their being moral persons. Thus I assume that each can understand these principles and use them in his deliberations. This imposes an upper bound of sorts on how complex they can be, and on the kinds and number of distinctions they draw.41

40

Id. at 226.

RAWLS, supra note 25, at 113-14. Whereas, with Locke, the social contract protected one’s rights, for Rawls the social contract creates rights.

41

12

As was mentioned earlier, Rawls grounds rights on the social contract.

Perhaps this is because rights founded on God turn out to require “contingent particulars.” Rawlsians often argue that rights founded on God are not “universal in application,” since there are many reasonable people who do not believe in God. Rawlsians also claim that many are not unreasonable in rejecting certain comprehensive worldviews upon which society may base laws.

This is a different claim than saying one is rational in rejecting a particular worldview; it is merely that one is prima facie reasonable in rejecting certain views of the good. Moreover, because comprehensive worldviews that include religious doctrines are highly disputed, Rawlsians perceive them as outside of public reason. Those who create laws that are outside of public reason—according to many Rawlsians—do so unjustly. It is upon the definition of public reason that much disagreement takes place.

Based on the above three tenants, many legal scholars and judges claim that religionists should use some level of restraint when operating in the public square. Depending on which scholar or judge one consults, there are different levels of restraint that one should exercise. In many cases, political philosophers and judges argue that religious reasoning should play little to no role in public discourse much less legislation.42 These principles most often come to the foreground in literature and court cases dealing with moral legislation and education. The following section will give an example of the use of Rawls to demand a strong version of

42

See PATRICK NEAL, NATURAL LAW AND PUBLIC REASON: POLITICAL LIBERALISM, PUBLIC REASON, AND THE CITIZEN OF FAITH 171-72 (Robert P. George & Christopher Wolfe, eds., Georgetown Univ. Press 2000) (Even Rawls’ critics recognize that he was not as restrictive on religious reasoning as were others who followed in his footsteps.

Patrick Neal writes, “Rawls is generally portrayed, along with Bruce Ackerman and Ronald Dworkin, as supporting the idea that religious discourse has no proper place in the public realm of a liberal democracy. This simple description of his position is not entirely inaccurate, but it is inaccurate in some ways. Rawls’s views on the relation between religion and liberal public reason are highly complex, and also quite qualified and limited in terms of the nature of the restriction they would impose upon religious believers.”). See also FRANCIS BECKWITH, ET AL, FIDES, RATIO ET JURIS: HOW SOME COURTS AND SOME LEGAL THEORISTS MISREPRESENT THE RATIONAL STATUS OF RELIGIOUS BELIEFS, 1 (Paul R. Dehart & Carson Holloway eds., 2014) (Beckwith writes, “Rawls, himself, concedes that many of these comprehensive doctrines, including the religious ones, are reasonable.”).

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religious restraint, and it will challenge the normativity of the Rawlsian approach to public reason.

Religion Morality and the Law Although Rawls believed that some comprehensive doctrines may be reasonable,43 there are some jurists and legal scholars that use his approach to public reason to rule out all religious discourse from the public square. Stephen Macedo defends a position of Rawlsian liberalism that rules out religious input into public reason. Macedo argues that his liberalism consists of both the “commitment to broad guarantees of liberty and equality,” and “a commitment to a practice of public reasonableness.”44 This second part, he suggests, functions practically to inhibit the “veiled attempt[s] by some group to impose their religious views on others through political means.”45 Macedo puts forth the idea that citizens, legislators, and judges all need to practice public reasonableness which he believes “characterizes . . . the best version of the theory and practice of liberal constitutionalism.”46 To do this, Macedo says: [A] fundamental political demand is to convert unthinking habits and practices into reasons, or to revise our practices to accord with reasoned standards, and to seek justification that can be shared by people who disagree reasonably and permanently about their ultimate religious and philosophical ideals.47 According to Macedo, for the religious practitioner to participate as a promoter of public policy, legislator, or judge he must conform to the

43

RAWLS, supra note 38.

DLPR, supra note 38, at 11.

45 Id. at 11-12.

46 Id. at 13.

47 Id. Macedo presupposes that religious beliefs are all without thought. Much ink has been spilled to suggest that this claim is false. He also relies on the incommensurability of religious beliefs. Yet, just as some religious beliefs are incommensurable with other religious beliefs, so too are other beliefs in other doxastic practices. Marxists and Capitalists will incommensurably disagree, even to the point of war. Yet, none of the beliefs contained in either of these systems of thought is considered “unthinking” or outside the realm of public reason.

44

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demands of public reason.48 In order to conform to public reason, the religious practitioner must interpret the Constitution through a Rawlsian type schema. Further, he must offer reasons for public policy that conform to that schema so that the only disagreement is over the appropriate interpretations of Rawlsian liberalism. Macedo insists that “[t]he emphasis on public reasonableness and the centrality of public justification to the liberalism [he] wants to defend helps make sense of why and how we can continue to see the idea of a ‘social contract.’”49 If this is true, then citizens, lawmakers, and judges who support, enact, or concur with legislation that is justified by religious reasons have violated liberal reasonableness. To apply Macedo’s version of liberalism to federal court cases concerning school funding, ethical issues, and school curriculum will yield consistent results. If evenly applied, the results will always be in favor of those in opposition to certain views that are generally held by traditional religious believers. For instance the legislative balance will de facto tip in favor of the pro-choice and same sex marriage positions. This is an ace up the political sleeve; for, one only needs to pull the religion card to nullify his opponent’s legislative agenda.

Another reason Macedo gives for religious restraint is the argument for respect. He writes, “[i]n a liberal society, coercive political arrangements require the support of articulable reasons capable of meeting objections and being fairly applied. This is, in part, because people really do disagree, and because we owe reasonable people the form of respect embodied in public justification.”50 Paul Weithman echoes this principle by stating: For the state to base cooperation and exercise power on terms of cooperation that citizens could not reasonably endorse as free equals is to show them a form of disrespect . . . [r]espect therefore requires that social cooperation be

48

DLPR, supra note 38 (explaining how NL provides a normative understanding of what reasonable people are, and how one should act even in the face of unreasonableness).

49 Id. at 16.

50 STEPHEN MACEDO, LIBERAL VIRTUES: CITIZENSHIP, VIRTUE, AND COMMUNITY IN LIBERAL CONSTITUTIONALISM 249 (Clarendon Press 1990). Macedo presupposes that religious reasons are unable to be articulated, unable to meet objections, cannot be fairly applied, and that they lack respect.

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based on terms citizens can accept on the basis of their common reason.51 Robert Audi shares this sentiment when he writes: I think that sound ethics itself dictates that, out of respect for others as free and dignified individuals, we should always have and be sufficiently motivated by adequate secular reasons for our positions on those matters of law or public policy in which our decisions might significantly restrict human freedom. If you are fully rational and I cannot convince you of my view by arguments framed in the concepts we share as rational beings, then even if mine is the majority view I should not coerce you.52 Very few would deny that one should show respect for his fellow citizens.

The argument over religious restraint is not over whether to respect or not to respect. It is over what respect requires of citizens.

Problems with Respect as a Normative Guide As stated earlier, many scholars believe that out of respect for one’s fellow citizens one must use a certain level of restraint in the types of justifications one uses to create coercive legislation. Though this guiding principle may be applied to several other doxastic practices, it is almost exclusively used in reference to theistic religious beliefs. Yet, if respect for one’s fellow citizens is truly the goal of liberal democracy, then surely this principle should be applied evenly. This means that religious citizens deserve the respect that their non-religious interlocutors demand for themselves.

One problem with the doctrine of religious restraint (“DRR”) is that it is disrespectful of religious reasoning and those who practice it.

Those who defend the DRR often do so on the grounds that religious

51

PAUL J. WEITHMAN ET AL., INTRODUCTION: RELIGION AND THE LIBERALISM OF REASONED RESPECT, in RELIGION AND CONTEMPORARY LIBERALISM 6 (Paul J. Weithman, ed., Univ. of Notre Dame Press 1997).

52 Robert Audi, The Place of Religious Argument in a Free and Democratic Society, 30 SAN DIEGO L. REV. 677, 701 (1993).

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reasoning is somehow an inferior doxastic practice.53 This Rawlsian understanding has trickled down into the courts, and has determine the outcome of many cases. Since Everson v. the Board of Education, the courts have embraced a strict separatist attitude towards religion based on its presumed subjective nature.54 Soon federal judges were speaking with utter disdain for religious beliefs. James Hitchcock writes that federal court judges often spoke with contempt for religious belief; he stated that Justice Robert Jackson “allowed himself to speak of appellants with contempt even as he was voting to uphold their rights[.]”55 Jackson’s disrespect for religious reasoning can be seen in his dissenting opinion in the case Kedroff v. Saint Nicholas Cathedral when he wrote: I shall not undertake to wallow throughout the complex, obscure, and fragmentary details of secular and ecclesiastical history, theology, and canon law in which this case is smothered. To me, whatever the canon law is found to be and whoever is the rightful head of the Moscow patriarchate, I do not think New York law must yield to the authority of a foreign and unfriendly state masquerading as a spiritual institution.56 Hitchcock interpreted Jackson as saying that this discussion is “a morass beneath the notice of rational man.”57 In the case Serbian Orthodox Diocese v. Milivojevich, Justice William Brennan showed that he perceived religion much in the same way as Justice Jackson when he wrote, “[i]ndeed, it is the essence of religious faith that ecclesiastical decisions are to be reached and are to be accepted as matters of faith whether or not rational or measurable by objective criteria.”58 In Wolman v. Walter, Justice Stevens wrote, “[t]he realm of religion … is where knowledge leaves off, and where faith begins.”59

53

MACEDO, supra note 47.

See Everson v. Board of Ed. of Ewing TP., 330 U.S. 1 (1947).

55 JAMES HITCHCOCK, THE SUPREME COURT AND RELIGION IN AMERICAN LIFE: FROM HIGHER LAW TO SECTARIAN SCRUPLES 71 (Robert P. George ed., Princeton Univ. Press 2004).

56 Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 131 (1952).

57 HITCHCOCK, supra note 55.

58 Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 714-15 (1976).

59 Wolman v. Walter, 433 U.S. 229, 264 (1977).

54

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James Hitchcock is not the only scholar to notice the courts’ treatment of religion as irrational. Francis Beckwith wrote an article entitled Must Theology Always Sit in the Back of the Secular Bus,60 which plays off the concept of the “separate but equal” laws that segregated people by race. Just as it was shown that the black race was treated as inferior to the white race, Beckwith argues that religious reasoning is also treated as inferior as compared to secular reasoning. Rather than speak of religious beliefs as though they are outside of a shared public reason, the trend has been to treat religious beliefs as though they are outside of reason altogether.

The second way the doctrine of religious restraint shows disrespect for the religious citizen is that it limits the religious practitioner’s participation as a full-citizen. Yet, limited citizenship is something that the use of public reason is supposed to prevent. The DRR does this is in a way that allows non-religious citizens to vote their full conscience without showing any restraint while demanding that religious citizens withhold voting for any legislation that is genetically connected to religious propositions. As mentioned earlier, according to the DRR, any piece of legislation that is tethered to a religious premise is off limits. Thus, the religious citizen’s voting options are limited to secular options with which she does not agree. The DRR creates a situation where the voter must vote the secularist position by default or abstain from voting altogether.

This severely limits the religious voter’s options, which is reminiscent of Henry Ford’s famous quote, “Any customer can have a car painted any colour that he wants so long as it is black.”61 Third, the doctrine of religious restraint allows secularists to create legislation that is hostile to religious citizens. Any attempt to block hostile legislation may be stifled on the grounds that any attempt to do so is to legislate religion. This happened in both Edwards v. Aguillard,62 and

60

Francis J. Beckwith, Must Theology Always Sit in the Back of the Secular Bus?: The Federal Courts’ View of Religion and Its Status as Knowledge, 24 No. 2 J.L. & RELIGION 547 (2008); See also Shannon Holzer, Religious Reasoning and Due Process of the Law: Why Religious Citizens Have the Burden to Prove the Innocence of Their Reasoning in the Public Square, 56 J. OF CHURCH & STATE (2014), http://jcs.oxfordjournals.org/content/early/2014/03/16/jcs.csu005.full.pdf.

61 HENRY FORD, MY LIFE AND MY WORK 72 (Garden City Publishing Co. 1922).

62 Edwards v. Aguillard, 482 U.S. 578, 639 (1987).

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Epperson v. Arkansas,63 where the principle that a law must have a secular purpose64 was used to block laws that allowed or required creation science to be taught alongside the theory of evolution in order to protect religious beliefs.65 This established the “religious motive test,” which suggests that a law triggers the Establishment Clause if the originator’s motive is to advance religion. The Doctrine of Religious Restraint creates a situation where in theory citizens are unable to even use the law to protect their religious beliefs because their motive is religious.

The above also undermines the Free Exercise Clause in that that religious citizen is limited in how she can vote or participate in society.

The DRR expects religious citizens to set aside their deeply held beliefs for the sake of their compliance with many new laws.66 To make sure that this claim is not speculation about possible future events, several recent laws that have intersected religion serve as examples. First, the recent Patient Protection and Affordable Care Act67 (“ACA”) has placed many religious citizens in the position to either violate portions of their religious beliefs to comply with the law or to risk facing government fines and penalties. One of the more conspicuous cases is Hobby Lobby v.

Sebelius.68 Left unchallenged, the ACA required the owners of businesses to provide health insurance that paid for abortifacients. The ACA also

63

Epperson v. Arkansas, 393 U.S. 97, 102 (1968).

See Lemon v. Kurtzman, 411 U.S. 192, 195 (1971). The Lemon Test was formally introduced in this case concerning the use of state funds to reimburse private religious schools for textbooks. The court devised a three-prong test to determine if the law violated the Establishment Clause. The Lemon three-prong test: first, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, finally, the statute must not foster an excessive government entanglement with religion.

65 See FRANCIS BECKWITH, EDWARDS V. AGUILLARD, 480-81 (Paul Finkelman ed., Taylor & Francis Group 2006).

66 See Frederick Mark Gedicks, Public Life and Hostility Towards Religion, 78 VA. L. REV. 671, 696 (1992) (Gedicks makes the case that the Courts have interpreted both the Establishment Clause and the Free Exercise Clause of the First Amendment in a way that is hostile to religion. Moreover, the doctrine of neutrality alienates religious belief to the private sphere. Gedicks points out that whereas some liberals deny that there is any hostility to religion, others recognize that it exists and believe that hostility towards religion is justified for the sake of the greater democratic society).

67 H.R. 3590, 11TH Cong. § 1(a) (2009), available at http://www.democrts.senate.gov/pdfs/refrom/patient-protection-affrodabel-care-act-aspassed.pdf.

68 Hobby Lobby v. Sebelius, 723 F.3d 1114 (10th Cir. 2013).

64

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demanded the international congregation of Roman Catholic Women known as the Little Sisters of the Poor,69 to set aside their beliefs to abide by the secular law. If these religious citizens actually acquiesced to the demands of the DRR, they would have done so at the expense of their religious convictions.

The above cases, thus far, have fallen in the favor of the religious citizens. However, there are several cases where religious citizens fell prey to hostile secular laws and policies. First, there are two cases concerning education where students were asked to set aside their religious beliefs or face removal from their programs. In 2010, Jennifer Keeton filed suit against Augusta State stating that Augusta State violated her First Amendment rights to free speech and the free exercise of religion by threatening her with expulsion if she does not fulfill requirements contained in a remediation plan intended to get her to change her beliefs.70 This action arose when Keeton expressed her desire to not counsel clients who practiced homosexuality, if that counseling required affirming the lifestyle as moral. Augusta State officials prohibited Keeton from engaging in the program’s clinical practicum until she “participate[d] in a remediation plan addressing what the faculty perceived as deficiencies in [Keeton’s] ‘ability to be a multiculturally competent counselor, particularly with regard to working with . . . (GLBTQ) populations.’”71 The remediation plan included these five requirements: (1) attend at least three workshops which emphasize improving crosscultural communication, developing multicultural competence, or diversity sensitivity training toward working with the GLBTQ population; (2) read at least ten articles in peer-reviewed counseling or psychological journals that pertain to improving counseling effectiveness with the GLBTQ population; (3) work to increase her exposure and interaction with the GLBTQ population by, for instance, attending the Gay Pride Parade in Augusta; (4) familiarize herself with the Association for Lesbian, Gay, Bisexual and Transgender Issues in Counseling

69

Little Sisters of the Poor v. Sabelius, 6 P.3d 1225, 1242 (2013).

Keeton v. Anderson-Wiley, 664 F.3d 865, 871 (11th Cir. 2011).

71 Id. at 867.

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(“ALGBTIC”) Competencies for Counseling Gays and Transgender Clients; and (5) submit a two-page reflection to her advisor every month summarizing what she learned from her research, how her study has influenced her beliefs, and how future clients may benefit from what she has learned.72 Keeton chose not to fulfill this remedial plan and was dismissed from the program.

Julia Ward faced a similar situation at Eastern Michigan State University. Like Keeton, Ward was asked to set aside her beliefs in order to fulfill the school’s curriculum. In granting summary judgment, Judge Sutton commented on why he believed that Keeton’s case was correctly decided. He stated that: [T]he two claimants’ theories of constitutional protection also are miles apart. Keeton insisted on a constitutional right to engage in conversion therapy—that is, if a ‘client discloses that he is gay, it was her intention to tell the client that his behavior is morally wrong and then try to change the client’s behavior.’73 However, for the purpose of this argument, these cases are not “miles apart.” Both Ward and Keeton were informed by a religious source. The court perceives that schools and professional organizations are correct in disallowing religion to inform particular practices such as counseling.

Ward and Keeton acted in accordance to their beliefs, to which the public entities pushed back. The students were both asked to change their beliefs while performing their duties as counselors. While it was settled in Ward’s case that she may refrain from counseling practices that violated their religious beliefs, she could not use these beliefs to inform her counseling.74 In Keeton’s case, she was not given the chance to refrain from counseling homosexual clients. The school tried to coerce her to change her beliefs, and when she did not change she was dismissed.75

72

Id. at 870.

Ward v. Polite, 667 F.3d 727, 741 (6th Cir. 2012).

74 Id. 75 Keeton v. Anderson-Wiley, 664 F.3d 865, 872 (11th Cir. 2011).

73

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More recently, religious citizens have felt the hostility of laws that touch on the nature of marriage. Same-Sex Marriage (“SSM”) legislation has resulted in further demands for religious citizens to put aside their beliefs to abide by the law.76 Religious business owners have been sued on several occasions for refusing to give their services for the purposes of celebrating and affirming same-sex weddings. In Mullins v. Masterpiece Cake Shop,77 a Colorado judge ruled that the baker Jack Philips had violated a Colorado anti-discrimination law by refusing to bake a wedding cake for a same-sex couple because of his religious beliefs. The judge ordered Philips to bake the cake or go to jail. Elane Photography v.

Willcock,78 produced a similar situation when the court ordered Elane Photography to photograph a same-sex wedding ceremony in violation of their religious beliefs. Education and businesses are not the only targets of sexual orientation legislation, those who perform marriage ceremonies and religious leaders themselves are at risk.

Civil marriage commissioners in Canada have faced religious discrimination as a result of sexual orientation legislation.79 According to Bradley Miller, those who refuse to conduct same-sex marriage ceremonies have been required to resign.80 Thus, those who whose religious beliefs get in the way need not apply for this job. Also in Canada, clergy have had their sermons scrutinized by human rights commissions. Moreover, churches have become vulnerable to litigation for refusing to rent out their spaces for same-sex ceremonies.81 Back in the United States, Catholic Charities in Massachusetts was given the choice to start adopting children into same-sex households or cease

76

See Shannon Holzer, Sexual Orientation Laws and Religious Freedom, THE IMAGINATIVE CONSERVATIVE (July 22, 2014), http://www.theimaginativeconservative. org/2014/07/sexual-orientation-laws-religious-freedom.html.

77 Craig v. Masterpiece Cakeshop, Inc., CR 2013-0008 (Admin. Ct., Colo. 2013), available at https://www.aclu.org/sites/default/files/assets/initial_decision_case_ no._cr_2013-0008.pdf (last visited March 11, 2015).

78 Elane Photography, LLC. v. Willock, 309 P.3d 53 (N.M. 2013).

79 See Bradley Miller, Same-Sex Marriage Ten Years On: Lessons from Canada, THE WITHERSPOON INSTITUTE (Nov. 5, 2012), http://www.thepublicdiscourse.com/2012/ 11/6758/.

80 Id. 81 Id.

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adoption all together.82 Catholic Charities chose to cease adoption all together rather than violate its religious beliefs.

Finally, the demand for religious restraint from the argument from respect is justified by reasons that many religious citizens cannot accept.

This criteria of acceptable justification is necessary for respect according to the Rawlsian theory of public justification. Just as religious citizens are expected to give reasons that their secular counterparts can accept, so too does this burden fall upon the secular citizens. The Rawlsian argument from respect does not use reasons religious citizens can accept. Instead, the argument rests on premises that religious citizens typically reject.

Thus, it fails its own criteria. One particular area of contention for religious citizens is the abandonment of Thomas Jefferson’s objective notion of the good.

Subjective Notion of the Good Thomas Jefferson grounded the Declaration of Independence on the Natural Law. He understood that human rights were part of the natural order. Jefferson also wrote: That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, [t]hat whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.83 Jefferson made explicit use of the language of Natural Law. The concept of natural law objectively grounds natural rights and the “telos” or end of government is to protect these things. Muzzey writes: There is no need to introduce Rousseau and the French philosophers of the eighteenth century to explain

82

Colleen Theresa Rutledge, Caught in the Crossfire: How Catholic Charities of Boston was Victim to the Clash Between Gay Rights and Religious Freedom, 15 DUKE J. GENDER L. & POL'Y 297, 299 (2008).

83 THE DECLARATION OF INDEPENDENCE, supra note 5.

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Jefferson’s language. “The natural rights of man” was a doctrine as old as the Roman law, and “government by consent of the governed” was the principle for which the “republicans” of the seventeenth century had fought their battle of fourscore years against the Stuart kings.84 More specifically, Jefferson wrote of the concept of Happiness within the context of the Natural Law. While many scholars disagree over what Jefferson meant specifically by the term, most of them agree that Happiness does not include all of one’s whimsical desires. Instead, happiness is derived from virtue. This is the claim that Aristotle made, and it was echoed by Jefferson. Garrett Ward Sheldon writes, “Jefferson’s interest in happiness derives from Aristotle, as it is the subject of book 1 of his Nicomachean Ethics.”85 Specifically, Aristotle writes: Every art and every inquiry, and similarly every action and choice, is thought to aim at some good; and for this reason the good has rightly been declared to be that at which all things aim. But a certain difference is found among ends; some are activities, others are products apart from the activities that produce them. Where there are ends apart from the actions, it is the nature of the products to be better than the activities. Now, as there are many actions, arts, and sciences, their ends also are many; the end of the medical art is health, that of shipbuilding a vessel, that of strategy victory, that of economics wealth.86 For Aristotle the Good is objective in that it is the fulfillment of an object’s telos. This is true for governments as well. Happiness is the highest good, which is itself objective. Aristotle suggests that those who differ, do so with the wise.

Let us resume our inquiry and state, in view of the fact that all knowledge and every pursuit aims at some good, what it is that we say political science aims at and what is the

84

MUZZEY, supra note 1, at 49-50.

GARRETT WARD SHELDON, THE POLITICAL PHILOSOPHY OF THOMAS JEFFERSON 44 (Johns Hopkins Paperbacks ed. 1993) (1991).

86 ARISTOTLE, THE NICOMACHEAN ETHICS bk. I, at 1 (David Ross trans., Oxford Univ.

Press 2009) (c. 384 B.C.E.).

85

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highest of all goods achievable by action. Verbally there is very general agreement; for both the general run of men and people of superior refinement say that it is happiness, and identify living well and doing well with being happy; but with regard to what happiness is they differ, and the many do not give the same account as the wise.87 Jefferson inherited the Aristotelian notion that virtue is neither subjective nor whimsical. Instead, he emphasized the necessity of virtue to the obtainment of happiness. Jefferson articulated this Aristotelian understanding of happiness in his letter to his nephew Peter Carr.

Jefferson writes “Be assiduous in learning, take much exercise for your health, and practice much virtue. Health, learning and virtue, will insure your happiness; they will give you a quiet conscience, private esteem and public honor.”88 The Rawlsian Contractual understanding of the American liberal democracy that assumes the concept of the Good is subjective, along with the principle of respect, suggests that objective religious and moral claims should be sequestered to the realm of the private. Logically, this includes the claim that “all men are created equal.” After all, the claim necessarily implies that there is a God, which is a religious claim. If it is a subjective claim that there is a creator, then it necessarily follows that it is a subjective claim that this creator created all men equal. The logical consequences of consistently applying these principles results in the need to ground rights on a subjective notion of the good. Can a subjective notion of the good adequately ground rights?

Because Rawlsians tend to treat the notion of the good as something subjective there are several ways in which this understanding has affected the contemporary American liberal democracy that run counter to the original government founded on natural law. First, the subjective notion of the good ultimately reduces moral claims to subjective opinions. If the good itself is merely subjective, then all of its applications are also subjective. Thus, to claim that slavery is a violation of the good, on this account, means nothing more than saying one has a

87

Id. at 4.

THOMAS JEFFERSON, Letter to Peter Carr, in THE WRITINGS OF THOMAS JEFFERSON, VOL. VII 44 (Albert Ellery Bergh ed. 1907) (1788).

88

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subjective opinion that slavery is not preferred. The fact that the majority of people in the current American context do think that slavery is immoral does nothing to deny this fact. It takes no effort to imagine a situation where the majority of citizens believe that slavery is morally justified.

America’s practicing of slavery at one time shows that moral opinions do change. The question is to what degree these changes converge upon moral truth. If the good is truly subjective, then there is no objective moral truth; thus, there is no reason why America should have changed its collective opinion. If the good is subjective, then the claim that slavery is wrong would be merely saying “I do not prefer slavery.” Yet, if slavery is truly wrong in an objective sense, then it necessarily follows that the good is not subjective. If there is an objective morality, then Rawlsians are wrong and the American Liberal democracy can debate about such things to obtain the truth about what is objectively good for society.

Second, a subjective notion of the good trivializes current laws that endorse morality based on natural law. Laws concerning natural rights from this view would be reduced to nothing more than a reflection of the personal preferences of the majority of citizens of those who enacted the particular laws at the time. This includes laws that defend rights such as women’s suffrage. Imagine the following argument: (1) It is good that all humans’ right to vote should be preserved, and (2) Women are humans.

(3) Therefore, women’s right to vote should be preserved.

The subjective notion of the good reduces premise (1) to the statement “It is the current majority’s subjective opinion” that all humans’ right to vote should be preserved.

From the NL perspective, it is argued that all humans should have a right to vote, regardless of the majority’s opinion. Yet, the argument that the good is subjective trivializes the argument by taking the statement about an objective good and making it merely a statement about oneself.

Again, if it is objectively true that all it is good that all humans right to vote should be preserved, then the good is not subjective.

Third, if the good is merely subjective, then it grants license to individuals to practice abhorrent behavior. If the good is subjective, then that which is bad is also subjective. Thus, the claim that rape, incest, and pedophilia is reduced to nothing more than statements such as “I do not

26

like rape, incest, or pedophilia.” It is akin to saying “I do not like liver and onions.” The subjective notion of the good does nothing to say that one ought not to like rape, incest, or pedophilia. It simply leaves that up to each individual.

One might argue that the principle of respect would keep the aforementioned treatment of people from happening. Yet, if the subjective notion of the good is taken to its logical conclusion, then there is no objective reason why one should respect his fellow citizens. Demanding respect from behind an imagined veil of ignorance does nothing to make unimagined people from unimagined positions in life respect each other.

People know where they stand in society. If the good is subjective, then there is no objective reason to ask what rights they would assign if they did not know this. To demand one to do so requires there to be an objective good. Yet, that requisite is the very thing that Rawlsians deny.

Thus again, if there is an objective reason to show respect to one’s fellow citizens, it follows that there is an objective notion of the good.

On the other hand, Natural Law offers an objective notion of the good, which in turn grounds rights and law. Thus, to say that rape is wrong would mean that it is wrong whether one believes it to be or not.

To say women’s right to vote is a good that ought to be preserved from natural law would be to take it out of the realm of personal preference into the world of reality. Unfortunately, for many an objective notion of the good comes with some undesirable conclusions.

First, if it is true that the good is not subjective, then there are not only objective rights, but there are also objective duties. This means that if a citizen has a right to do x, then other citizens have a duty to do y.89 For instance, if a citizen has a right to the freedom of speech, then other citizens have an obligation to allow her fellow citizen to practice this right.

If all humans have an objective natural right to life, then all humans have a duty to refrain from killing humans.

The two examples above seem to be rather easily accepted.

However, the claim that all human fetuses are humans, thus they have a

89

NICHOLAS WOLTERSTORFF, JUSTICE: RIGHTS AND WRONGS (2008) (analyzing rights and duties).

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right to life becomes highly controversial. Once morality re-enters the realm of objective truth, then the opposing sides must admit that there is a possibility that they are wrong. If it is objectively true that all humans have a right to life and that all human fetuses are humans, then citizens have an objective duty to erect a government that preserves that right.

If the above is true, then one can no longer say that the pro-life stance is merely a subjective notion of the good that citizens should not push on their fellow citizens. From the natural law position, the prochoice advocate must show either that not all humans objectively have the right to life or that which is in the womb during pregnancy is not objectively a living human. If the pro-choice advocate can do this, then women may have the right to have abortions, which further objectively obligates citizens to tolerate the practice. However, if the fetuses are objectively humans, then it follows that citizens should erect governments that defend the unborns’ right to life. This conclusion is true even if the mother herself does not subjectively believe that the unborn is fully human or has such rights. This truth becomes more uncomfortable in cases of rape and incest. This is because the human right to life objectively extends to all humans, even those who were conceived through immoral acts.

While the notion of being wrong over issues of our deepest moral convictions is unsavory, one can also rest assured that the good is something that objectively exists. Moreover, one is assured that rights and duties are not arbitrary inventions. Finally, Natural Law is also consistent with the Framers’ original language from the position of Natural Law. There is no equivocation when reading the founding documents.

Conclusion One of the implications of the current legal culture is that there are two forms of liberal democracy competing for power in America. One form is understood to be founded upon principles consistent with Natural Law that is consistent with theistic reason. The other form is founded on a secular social contract from behind a veil of ignorance. Both of these communities use the same language of the American Constitution, but they possess two constitutions in meaning. The result of this is political power plays that leave one of the parties marginalized and increasingly voiceless.

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Another implication is that if this paradigmatic struggle is unable to be solved through rational debate, then the parties involved will resort to stronger forms of coercive behavior. This is not to say that there will be a bloody revolution over the privatization of religious reasoning.

However, if hardheadedness prevails, it is possible that interlocutors may forego any attempt at public reason and resort to mere public manipulation for their favorite legislation.

Finally, this implies that the current American situation is not the best liberal democracy it can possibly be. While no liberal democracy will be without disagreement, one where its citizens agree on the rules of the game is much better than one where two games are being played. For America to flourish, especially with religious freedom, its citizens need to stand united under the same form of liberal democracy.

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A TALE OF TWO CONSTITUTIONAL ORDERS? DEPARTMENTALISM, JUDICIAL SUPREMACY, AND THE PRESIDENTIAL VETO BRUCE PEABODY* Introduction Over more than four decades, scholarly interest in constitutional interpretation outside of courts has flourished in law and political science.1 Perhaps the most important intellectual fault line that has emerged in the resulting academic debates concerns the relationship between the constitutional interpretation of nonjudicial officials and the role and power of courts.

A number of more or less discrete intellectual camps have formed on this topic. First, much research portrays the relationship between judicial and nonjudicial review of the Constitution as inherently conflictual, even zero sum.2 For some scholars, the presence of judicial review and judicial supremacy (the claim that courts have ultimate and even exclusive power to engage constitutional questions) threatens to *Professor of Political Science, Fairleigh Dickinson University, Madison, New Jersey, B.A., 1991, Wesleyan University, Ph.D., 2000, University of Texas at Austin. A version of this Article was presented at the 2013 Pacific Northwest Political Science Association.

The author thanks Rachel Donelson of the U.S. Senate Library, Louis Fisher, Howard Katz, Andrew Polsky, and Robert Spitzer for their valuable comments on earlier drafts of this work.

1 See, e.g., SUSAN R. BURGESS, CONTEST FOR CONSTITUTIONAL AUTHORITY: THE ABORTION AND WAR POWERS DEBATES (1992); LOUIS FISHER, CONSTITUTIONAL DIALOGUES: INTERPRETATION AS POLITICAL PROCESS (1988) [hereinafter FISHER, DIALOGUES]; BARRY FRIEDMAN, THE WILL OF THE PEOPLE: HOW PUBLIC OPINION HAS INFLUENCED THE SUPREME COURT AND SHAPED THE MEANING OF THE CONSTITUTION (2009); LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (2004); KEITH E. WHITTINGTON, CONSTITUTIONAL CONSTRUCTION: DIVIDED POWERS AND CONSTITUTIONAL MEANING (2001) [hereinafter, WHITTINGTON, CONSTITUTIONAL CONSTRUCTION]; MARIAH ZEISBERG, WAR POWERS: THE POLITICS OF CONSTITUTIONAL AUTHORITY (2013); Christopher L. Eisgruber, The Most Competent Branches: A Response to Professor Paulsen, 83 GEO. L.J. 347 (1994); Walter F. Murphy, Who Shall Interpret? The Quest for the Ultimate Constitutional Interpreter, 48 REV. POL. 401 (1986).

2 See Matthew Steilen, Collaborative Departmentalism, 61 BUFF. L. REV. 345, 349 (2013) (discussing “zero sum” approaches).

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preclude or at least undermine interpretation by non-court actors.3 Alternatively, others reverse the focus of concern, contending that interpretation by executive and legislative officials (not to mention states and private actors) jeopardizes our independent judiciary and important legal and political values.4 In any event, both sets of thinkers presume an inherent incompatibility between judicial supremacy and constitutional interpretation by members of Congress and presidents. One or the other must yield.

A second group of researchers has a more harmonious or at least compatible conception of the relationship between constitutional interpretation by different government officials. Under this approach, a mix of constitutional analysis by judges, elected leaders, and other political figures is not something to fear or discourage for one of two reasons. In one view, the different departments of government pragmatically accommodate and respond to one another’s different constitutional visions and concerns. As Louis Fisher puts it, most of the potential “collisions” between Congress and presidents on constitutional issues are handled through “accommodations and informal agreements” 5 rather than contentious litigation or political crises. In the same vein, in United States v. AT&T, the Circuit Court for the District of Columbia emphasized that the Constitution’s somewhat ambiguous distributions of power give rise to a “constructive modus vivendi” in which the different interpretations of the branches are vetted and negotiated. As the court elaborated, our constitutional system is premised on a belief

3 KRAMER, supra note 1; MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS (1999); ZEISBERG, supra note 1.

4 MICHAEL J. PERRY, THE CONSTITUTION, THE COURTS, AND HUMAN RIGHTS (1982); Larry Alexander & Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 HARV. L. REV. 1359, 1387 (1997); Scott E. Gant, Judicial Supremacy and Nonjudicial Interpretation of the Constitution, 24 HAST. CONST. L. Q. 359 (1997).

5 Louis Fisher, Separation of Powers: Interpretation Outside the Courts, 18 PEPP. L. REV. 57 (1990) [hereinafter, Fisher, Separation of Powers]. See also LOUIS FISHER, THE POLITICS OF SHARED POWER: CONGRESS AND THE EXECUTIVE (1998). Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 GEO. L.J. 217, 337-40 (1994) (describing when presidents may refrain from independent constitutional interpretation to avoid conflicts with the Supreme Court).

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that where conflicts in scope of authority arose between the coordinate branches, a spirit of dynamic compromise would promote resolution of the dispute in the manner most likely to result in efficient and effective functioning of our governmental system. Under this view, the coordinate branches do not exist in an exclusively adversary relationship to one another when a conflict in authority arises. Rather, each branch should take cognizance of an implicit constitutional mandate to seek optimal accommodation through a realistic evaluation of the needs of the conflicting branches in the particular fact situation.6 In other words, different interpretations over constitutional meaning do not have to give rise to deadlock or a resolution that diminishes the authority of one branch at the expense of another because protracted institutional conflict is typically cut short or avoided altogether.

Still other scholars posit that judicial review and even judicial supremacy can be compatible with “extrajudicial” constitutional interpretation by emphasizing that the resulting institutional conflict is an unavoidable and even necessary part of the American system of separated powers. The venerated constitutional scholar Edward Corwin may have articulated this point of view most succinctly when he said that the Constitution gives rise to an “invitation to struggle” between the different branches of government.7 In this view, therefore, conflict over basic constitutional powers by the branches of government is to be expected. It is a normal byproduct of our “messy” distribution of governing authority.

These basic approaches to the prospect of sharing power to interpret our supreme law (which we might summarize as “zero sum,” “cooperative and accommodational” and “productive conflict”) 6 United States v. AT&T, 567 F. 2d 121, 127 (D.C. Cir. 1977).

7 EDWARD S. CORWIN, THE PRESIDENT: OFFICE AND POWERS, 1787-1984, 171 (4th Revised Edition) (1957). See also GEORGE I. LOVELL, LEGISLATIVE DEFERRALS: STATUTORY AMBIGUITY, JUDICIAL POWER AND AMERICAN DEMOCRACY (2003); Bruce G. Peabody & John D. Nugent, Towards a Unifying Theory of the Separation of Powers, 53 AM. U. L. REV. (2003); Keith E. Whittington & Dan P. Carpenter, Executive Power in American Institutional Development, 1 PERSP. ON POL’Y 495 (2003).

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predominate as both descriptive and normative models. However, in the pages that follow, this Article sketches a new perspective on the relationship between courts, nonjudicial agents, and constitutional interpretation. In the American experience, constitutional interpretation between the branches is neither a battle that is won by one party and lost by the other, nor is it a chorus of richly harmonizing voices (or, to be more fair, an often jarring but ultimately productive set of contentious debates).

Instead, our contemporary picture of constitutional interpretation is a somewhat odd and unplanned historical hybrid. Perhaps the right analogy is a painting or a blueprint, where one image has settled into the foreground but elements of the other bleed through. In short, this Article contends, can better describe, understand, and eventually diagnose problems in our political order by appreciating nonjudicial interpretation as a recurring, constitutionally structured feature of our political system while simultaneously conceding the widespread acceptance of judicial supremacy as a feature of modernity. Stated differently, we can much better account for the nature, incidence, and importance of nonjudicial interpretation by mapping it alongside the rise of claims that the courts have a privileged if not exclusive authority to construe our supreme law.

The argument that follows adapts a particular scholarly paradigm, a “multiple orders” approach that comes out of the historically oriented tradition of “American Political Development.” This move helps identify and evaluate important trends and dynamics in our separation of powers system.8 To ground and test the multiple orders model, I turn to the presidential veto as a historical case study, examining, among other phenomena, references to constitutional arguments, clauses, and values in veto messages from Presidents Washington to Obama.

What are the payoffs of this multiple orders and case study approach? To begin with, it helps us identify and account for patterns in political behavior, especially shifts in the prominence, substance, and meaning of constitutional interpretation by presidents and members of

8 Karen Orren & Stephen Skowronek, Beyond the Iconography of Order: Notes for a “New Institutionalism”, in THE DYNAMICS OF AMERICAN POLITICS: APPROACHES AND INTERPRETATIONS 329-30 (Lawrence C. Dodd & Calvin Jillson eds., 1994).

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Congress in different political eras. This “periodization” of constitutional interpretation outside of courts is a somewhat neglected object of study.9 Second, and related, this study will probe the factors and conditions that explain the frequency, character, and impact of constitutional interpretation by executive and legislative officials. Better assessing these factors can help us foster elements some scholars ascribe to nonjudicial interpretation such as legal and political stability, popular legitimacy and distinctive “governance capacities” of the executive and legislative branches.10 Third, a multiple orders model gives us leverage on contemporary political problems, in part because this orientation assesses the performance of our constitutional politics from a systemic rather than an individual institutional basis.11 Stated somewhat differently, identifying the competing, conflicting “orders” of constitutional interpretation at work in our political order helps us better understand some resulting forms of political dysfunction.

Multiple Orders Theory Two decades ago, Karen Orren and Stephen Skowronek called on scholars of American governing institutions to transcend widely accepted academic theories about how enduring political orders are best conceptualized and described. According to the two researchers, we needed to move from traditional accounts of system development and change in which “normal” political organization is interrupted by “extraordinary politics, where equilibria are upset, norms break down, and new institutions are generated,” eventually leading to a new institutional settlement.12 While Orren and Skowronek’s examples focused on political science paradigms (including critical realignment theory, rational choice, 9 Andrew J. Polsky, No Tool is Perfect: Periodization in the Study of American Political Development, 37 POLITY 523 (2005).

10 See, e.g., FISHER, DIALOGUES supra note 1; JEFFREY K. TULIS, THE RHETORICAL PRESIDENCY (1987); ZEISBERG, supra note 1, at 26; Neal Devins and Louis Fisher, Judicial Exclusivity and Political Instability, 84 VA. L. REV. 83, 104 (1998).

11 JACK M. BALKIN, LIVING ORIGINALISM 3-6 (2011); Peabody & Nugent, supra note 7.

12 Orren & Skowronek, supra note 1, at 316.

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and the imperial presidency narrative), numerous approaches from constitutional law (and legal development more generally) also adhere to this basic equilibrium-disruption-equilibrium cycle. Some of the most famous examples include Bruce Ackerman’s “constitutional moments” approach,13 and Robert McCloskey’s division of Supreme Court history into three major periods, each with its own emerging legal crisis and Court-centered solutions.14 In place of these equilibrium models, Orren and Skowronek’s account of American political life emphasized dissonance and “asymmetry” created by the overlap of the different rules, norms, and institutions form over time to promote their evolving agendas, priorities, and governance perspectives.15 Stated differently, the organization and rules political institutions create at one moment often persist, eventually conflicting with and even contradicting those systems of order they create in other eras. As the authors put it, “pieces held over from earlier patterns [of political life] are part and parcel of the institutional composition” today.16 In this environment, tension, incongruity, and “patterned disorder” (rather than equilibrium) is the “normal” state.17 Orren and Skowronek’s framework can be profitably applied to analyzing the relationship between nonjudicial and judicial constitutional interpretation.18 In particular, they provide a theory for explaining patterns in the competing claims of presidents, members of Congress, and judges in applying our supreme law.19 The “multiple orders” perspective 13 BRUCE ACKERMAN, WE THE PEOPLE VOLUME 1: FOUNDATIONS (1993).

14 ROBERT G. MCCLOSKEY, THE AMERICAN SUPREME COURT (Sanford Levinson ed., 4th ed. 2005).

15 Orren & Skowronek, supra note 1, at 322.

16 Id. 17 Id. at 330.

18 Broadly speaking, this body of research is both empirical and historical (describing and cataloging episodes, circumstances, and periods where executive, legislative, state, and popular actors shape constitutional meaning) as well as normative (typically defending the power and responsibility of political figures and the public to ask and answer basic questions about our supreme law).

19 There are a number of existing “developmental frameworks” that search systematically for historical patterns and tensions in the evolution of nonjudicial

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facilitates our viewing our contemporary system of constitutional interpretation as being built on two competing belief systems about acceptable institutional behavior and authority—systems or orders which have an “impinging, interactive, and contingent character.”20 So what competing schemes of constitutional interpretation form this dynamic picture of where we are today? The first “order” can be traced, among other sources, to the Constitution’s text and early history.

Through numerous provisions, the Constitution structures considerable institutional conflict and overlap around vital governing powers and processes, including the power of constitutional interpretation.21 Richard Neustadt's observation that ours is a “government of separated institutions sharing powers” has been an implicit assumption in many studies of policy formation and implementation.22 But Neustadt's maxim can be extended to core “constitutional” powers as well. In this view, the Constitution attempts to prevent accumulation of power and secure more “positive” goals (like legitimacy) by distributing the “primary” powers of governance—legislative, executive, and judicial functions—in a disorderly manner amongst the three branches of federal government and, to a lesser degree, the states.23 To take one obvious example, while the Constitution and our early political practices assign federal lawmaking power to the U.S. Congress, they also lodge important legislative roles in the executive interpretation of the Constitution. See, e.g., LOUIS FISHER, PRESIDENTIAL WAR POWER (3rd Revised Edition) (2013); FRIEDMAN, supra note 1; DONALD G. MORGAN, CONGRESS AND THE CONSTITUTION: A STUDY OF RESPONSIBILITY (1966); KEITH E. WHITTINGTON, POLITICAL FOUNDATIONS OF JUDICIAL SUPREMACY: THE PRESIDENCY, THE SUPREME COURT, AND CONSTITUTIONAL LEADERSHIP IN U.S. HISTORY (2007), [hereinafter, WHITTINGTON, POLITICAL FOUNDATIONS]; WHITTINGTON, CONSTITUTIONAL CONSTRUCTION, supra note 1.

20 Orren & Skowronek, supra note 1, at 323.

21 See James W. Ceaser, In Defense of Separation of Powers, in SEPARATION OF POWERS—DOES IT STILL WORK? 173 (Robert A. Goldwin & Art Kaufman eds., 1986) at 173; Peabody & Nugent, supra note 7.

22 RICHARD NEUSTADT, PRESIDENTIAL POWER AND THE MODERN PRESIDENTS 29 (1980).

23 Ceaser, supra note 20. See also JOHN AGRESTO, THE SUPREME COURT AND CONSTITUTIONAL DEMOCRACY 165 (1984); FISHER, CONSTITUTIONAL DIALOGUES, supra note 1. This constitutional design reflects a deliberate rejection of a model, adopted by some state constitutions, in which the primary powers of government were tightly partitioned between the three branches, see GARY L. MCDOWELL, CURBING THE COURTS: THE CONSTITUTION AND THE LIMITS OF JUDICIAL POWER 112 (1988).

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branch (such as the veto power and the authority to “recommend” to Congress measures the president judges “necessary and expedient”). With respect to the power to interpret the Constitution, this perspective presumes that presidents, members of Congress, and other nonjudicial officials have both opportunities to shape our supreme law and are vital participants in a constitutional politics in which their core powers, claims to rule, and agendas are informed by their relationship to our Constitution and its powers.24 This approach is widely consonant with such scholarly traditions as Fisher’s “constitutional dialogues,” and what others have identified as “coordinate construction,” “departmentalism,” “governance as dialogue,” or a “relational approach” to understanding how constitutional meaning emerges from the separation of powers.25 This Article is focused on the veto power as a prompt for executive, legislative, and judicial analysis of constitutional meaning and will, therefore, use the term departmentalism to describe this political order—our initial account of who has authority to apply our supreme law to political life.26 For my purposes, “departmentalism” indicates a system of constitutional interpretation in which all three federal branches can legitimately assert some authority to engage constitutional questions without automatically deferring to the purported expertise of another branch. For the moment, the term is intended to be primarily descriptive and analytic: historically, a great deal of the behavior of members of the federal legislative, executive, and judicial branches (as well as other political actors) can be best understood by presuming they were operating under a system of constitutional departmentalism—in which the processes of constitutional interpretation were broadly shared by federal governing departments.27

24 FISHER, CONSTITUTIONAL DIALOGUES, supra note 1, at 3; ZEISBERG, supra note 1, at 18; Eisgruber, supra note 1.

25 MARK C. MILLER, THE VIEW OF THE COURTS FROM THE HILL 5-12 (2009).

26 Departmentalism implies a focus on the “departments” of federal government. In the interests of theoretical and substantive focus, this Article does not generally consider the role of the states and the “people” in interpreting constitutional law.

27 John C. Eastman, Judicial Review of Unenumerated Rights: Does Marbury’s Holding Apply in a Post-Warren Court World? 28 HARV. J. L & PUB. POL’Y 713, 719 (2005); Eisgruber, supra note 1

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Both historically and today, departmentalism exists alongside a second, competing intellectual, political, and historical tradition emphasizing the Constitution as embodying “a written, tangible higher law” and assigning judges and courts a privileged (even “quasi-religious”) position to interpret and protect this “fundamental law.”28 As Robert McCloskey, Larry Kramer, and others have noted, this account of judicial supremacy has been expressed more and less forcefully in different political eras and contexts, and has always been met with some opposition.

Nevertheless, the doctrine has been frequently advocated by leaders, and it became a dominant (though by no means exclusive) idea in the twentieth century—certainly a doctrine that was increasingly defended by courts and even the public and many political elites.29 Indeed, according to Kramer by the 1980s “acceptance of judicial supremacy seemed to become the norm” in American society.30 The argument that follows in this Article chronicles and takes stock of the operation of these two competing, superimposed orders of constitutional interpretation so we can better understand how elected presidents and members of Congress engage (and avoid) constitutional issues. There are, of course, a number of other factors that can help explain the historically variant roles of all three branches of federal government in contributing to constitutional interpretation.31 For example, the increase of the federal judiciary’s strength, independence, and popular 28 MCCLOSKEY, supra note 14, at 6.

29 BURGESS supra note 1; FRIEDMAN, supra note 1.

30 Larry D. Kramer, We the People: Who Has the Last Word on the Constitution? 29 BOS. REV. 15 (2004), available at http://new.bostonreview.net/BR29.1/kramer.html.

31 The growth of the administrative state has induced executive and legislative officials to rely more heavily on courts to interpret statutory and regulatory rules, a dependence that has bolstered not only judicial independence but court authority more generally— even in generally unrelated areas like constitutional law. Many other phenomena (such as our transformed media and communication environment, the expansion of the electorate, and the steady increase in partisanship “in government”) have impacted how we view executive and legislative officials, with indirect impact on their capacity and motivation to engage constitutional questions. Moreover, as Mark Graber has argued, at different historical junctures judicial review and judicial supremacy have been valued for their instrumental role in displacing divisive “cross-cutting” electoral issues. Mark A. Graber, The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary, 7 STUD. AM. POL. DEV. 35, 44 (1993).

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legitimacy over time (measured, among other factors, by its growing use of judicial review and its expanding body of jurisprudence) has given presidents incentives to cite precedent and curry judicial favor, whether they fully subscribe to judicial supremacy or not.32 However, this Article generally leaves these factors aside in order to focus on the impact and explanatory importance of the two rival systems of interpretation identified—“departmentalism” and “judicial supremacy.”

Hypotheses about Nonjudicial Constitutional Interpretation Adopting this “multiple orders” paradigm gives rise to a number of expected results which we can test in any number of different political arenas although, as already indicated, this Article’s primary focus will be on behavior prompted by the presidential veto. The multiple orders approach presumes that while judicial supremacy is a powerful current in American political traditions, it has a contingent, historical character, and it must compete with departmentalism as a countervailing approach. The belief that courts have the final word on all constitutional questions does not “naturally” arise out of the Constitution’s language or our early political traditions, and the doctrine has gone through periods of both ascendance and relative weakness. As indicated, the “departmentalism” model that abrades against judicial supremacy holds that enduring aspects of the Constitution’s text (such as the oath clauses of Articles II and VI) and the interbranch dynamics they create promote constitutional interpretation by all three departments of the federal government. In other words, nonjudicial interpretation is structurally induced by the 32 Indeed, as we will see, some politically embattled presidents, such as Andrew Johnson, made explicit overtures to courts and court opinions in their veto messages.

Further, as noted later, beginning with Nixon, presidents have often cited the Supreme Court’s Pocket Veto Case as authority for their capacity to perform pocket vetoes between congressional sessions and during legislative adjournments within a session. But they have generally ignored other case law which restricts the presidential pocket veto power—suggesting that, in this context, executive deference to court authority is selective, instrumental, and contingent. The Johnson example might lead one to imagine that other presidents associated with what Stephen Skowronek calls a politics of “preemption” (where the president is the leader of a previously dominant party that has fallen out of favor) would also be especially likely to cultivate the judiciary as a political ally, but the record, at least in veto messages, does not obviously sustain this view.

STEPHEN SKOWRONEK, THE POLITICS PRESIDENTS MAKE: LEADERSHIP FROM JOHN ADAMS TO BILL CLINTON (1997).

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Constitution and is therefore a recurring phenomenon, even in the face of claims of judicial supremacy. In navigating basic governing powers, legislative and executive officials will inevitably reference (often procedural) constitutional issues and these will assume a high profile in interbranch debates.

What more specific inferences can we draw (and test) from these broad contentions about our multiple orders of constitutional interpretation? To begin with, we should expect that distinctive presidential (and congressional) discussion of constitutional issues will be frequent, persistent, and will occur in some form regularly, even when the judiciary exercises judicial review or claims that it has a privileged or supreme role in constitutional interpretation. That said, departmentalism should give rise to the most prominent and distinct nonjudicial interpretation under several historical conditions: (1) where acceptance of judicial supremacy is weaker (either because the doctrine is insufficiently established or coming under sustained criticism); (2) where judicial “resolution” of constitutional issues consistently runs counter to prominent party positions or policy agendas; (3) where the legislative and executive branches regularly disagree about constitutional issues (especially major policy disputes with a constitutional dimension), and the courts ignore or give limited treatment to these matters.33 Finally, when departmentalism is expressed with the least attenuation from the competing doctrine of judicial supremacy, one should also anticipate that (4) presidents and members of Congress will have greater opportunities and incentives to assert an independent constitutional voice—that is a view on constitutional subjects that is substantively distinct and reflects the unique perspectives and concerns of legislative and executive officials.

Conversely, executive and legislative expressions about constitutional issues will be diminished and transformed under several conditions: (5) where the strength and acceptance of judicial supremacy is relatively high amongst political elites and the public; (6) when national policy issues without an especially prominent constitutional dimension 33 Interestingly, and as some have alleged about veto usage, references to constitutional argument may be indicators of perceived weakness by presidents—the Constitution may be seen as the ultimate source to attempt to bolster President’s (or a legislator’s) authority. Systematic examination of this question is beyond the scope of this Article.

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rise in political importance, demanding governing officials’ attention.

Even when these issues do have a prominent or obvious constitutional dimension, elected officials are likely to downplay these matters where there is (7) substantial underlying policy agreement between the legislative and political branches (such as during periods of strong “unified” government—where the executive and legislative branches are all controlled by the same party). This consensus diminishes incentives for leaders to engage in constitutional debate in the interests of advancing the policy agenda per se. Elected officials will also be (8) more likely to avoid constitutional issues (and to downplay the nonjudicial role in constitutional interpretation) when these matters are electorally dangerous, especially when they involve “cross-cutting” topics that threaten to disrupt otherwise stable party coalitions.34 Finally, (9) under those circumstances where claims to judicial supremacy are strongest (maintained not just by courts but by the public, presidents, and legislators), nonjudicial constitutional discussions will not only be less prominent but will be substantively distinct: more deferential to and more cognizant of judicial rulings and rules.35 Again, as argued, the multiple orders paradigm assumes that elected officials will continue to wrestle with constitutional questions even when the supremacy doctrine is in ascendance, but these efforts will be dampened, rechanneled, or will assume new forms. Indeed, when elites and the public see courts as the authoritative voice on constitutional questions, federal officials are likely to pursue one of four behaviors when engaging controversies about supreme law: they will either a) “judicialize” constitutional conflicts (attempting to litigate the underlying issues or cast them in legal terms, using the language and decisions of courts); b) shift the discussion of these matters to politically strategic contexts—that is, to circumstances where executive or legislative officials think they hold some advantage; c) ignore or downplay constitutional matters; or d) adopt some (perhaps inconsistent) combination of these moves.

34 Graber, supra note 31.

35 TUSHNET, supra note 3.

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The Presidential Veto as a Case Study In order to test these hypotheses, and, with them, the general analytic power of the multiple orders paradigm, this Article turns to the presidential veto as a sustained historical case study. A number of features of the veto make it a promising instrument for evaluating my claims. The Constitution obligates presidents to articulate reasons for returning legislation, justification that must be acknowledged and recorded by the legislature.36 Vetoes, therefore, represent a formal, direct, and public form of interbranch conflict. In light of these features, one would expect both of these branches to employ a full and representative array of arguments in justifying their respective veto positions. Indeed, for presidents, the act of vetoing legislation is presumptively anti-majoritarian—insofar as it opposes the majority vote of two houses of the legislature. Thus, presidents issuing vetoes have some interest in bolstering their veto decision with the most compelling arguments and sources of authority of their era. For these reasons, the veto promises to be a good barometer of the tone and emphases of presidential-legislative conflict for a given period. This claim is buttressed by the observation that the veto is one of the few formal powers of the presidency, making it a likely platform for delineating the views of the executive branch not only on the specific bill in question, but with respect to a broader set of policy concerns and the perceived role of the presidency in the separation of powers system.37 Besides these observations, the veto is also likely to give rise to basic conflicts about institutional power, including constitutional disputes.

The veto procedure is laid out in Article I (generally restricted to congressional topics and powers), underscoring its status as a disruptive instrument, likely to prompt discussions about its purposes and limits,

36 Upon vetoing a bill, a President must return it with "Objections to that House in which it shall have originated, who shall enter the Objections at large on their journal and proceed to reconsider it." U.S. CONST., art. I, § 7, cl. 2.

37 ROBERT J. SPITZER, THE PRESIDENTIAL VETO: TOUCHSTONE OF THE AMERICAN PRESIDENCY (1988). See also LOUIS FISHER, THE LAW OF THE EXECUTIVE BRANCH: PRESIDENTIAL POWER 168-76 (2014) [hereinafter, FISHER, LAW OF EXECUTIVE BRANCH]; Charles L. Black Jr., Some Thoughts on the Veto, 40 L. & CONTEMP. PROBS 87, 89 (1976).

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along with the scope of presidential and congressional authority more generally.

The veto power also leaves open a number of important procedural questions, such as the precise requirements for a congressional override vote, and what kinds (and what number) of legislative officers are required to “receive� a vetoed bill. These unsettled issues are likely to attract the attention of legislative and executive figures who will seek to fill in the contours of these procedural ambiguities. Moreover, since vetoes and override efforts do not ordinarily provide the occasion for judicial intervention, exercise of the veto power seems to create a particularly fertile medium for independent constitutional commentary by nonjudicial actors.38 These observations inform the three complementary forms of evidence this Article uses for tracing the evolving relationship between nonjudicial constitutional interpretation and judicial supremacy. First, I survey the various rationale provided by presidents in vetoing bills and, to a more limited extent, the reasons cited by Congress in responding to these messages. This first prong of my analysis captures the proportion and profile of different arguments surfaced by members of the executive and legislative branches through the veto process. Second, I delve more deeply into the specific substance of the constitutional analysis offered by nonjudicial officials, examining whether these figures turn to distinctive sources and arguments in forging their constitutional constructions.

Finally, I consider historic changes in how all three branches have framed and addressed ambiguous or contested aspects of the veto process.

Methodology As discussed, the constitutional requirement that presidents provide reasons for vetoing legislation creates a useful public record for gauging the prominence and significance of executive branch interpretation of the Constitution. The first portion of my analysis is based on content analysis of these veto messages from 1792 (when Washington 38 Michael Rosenfeld, Executive Autonomy, Judicial Authority and the Rule of Law: Reflections on Constitutional Interpretation and the Separation of Powers, 15 CARDOZO L. REV. 137, 138 (1993).

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issued the first veto of “An Act for an apportionment of Representatives”) to the present (President Obama’s most recent veto was in January 2010).

The reported results are comprehensive for this period, but are only based on regular (as opposed to pocket) vetoes of public (as opposed to private) bills.

The justifications for excluding pocket vetoes and public bills are distinct. The most compelling reason for not examining pocket vetoes is that their use does not obligate presidents to explain their action. A president is only constitutionally required to provide “Objections” to legislation which is officially returned to “that House in which it shall have originated,” and, by definition, a pocket veto cannot be returned in this manner. While presidents have periodically, and sometimes even consistently, issued memoranda explaining their pocket vetoes, this practice remains discretionary, and has not been employed in a uniform, systematic manner across administrations.39 Moreover, the specialized executive procedures associated with pocket vetoes, and the absence of opportunities for Congress to override these actions support the judgment that they should be analyzed separately from “regular” vetoes.40 A private bill is “legislation intended for the benefit of a specific individual or entity” including private organizations and businesses.41 For a number of presidents, including Cleveland and Franklin Roosevelt, “private vetoes” (especially of pension bills awarded to veterans and their

39 See SPITZER, supra note 37, at 115-16; RICHARD A. WATSON, PRESIDENTIAL VETOES AND PUBLIC POLICY 137 (1993). Presidents from Madison through Andrew Johnson did offer explanations with their pocket vetoes but after the Civil War this practice was curtailed “probably because of the increase in [the] number [of pocket vetoes] . . . and because most of the affected bills involved private pension and related claims.” SPITZER, at 115. In 1934, Franklin Roosevelt renewed the practice of including messages with pocket vetoes.

40 CHARLES J. ZINN, THE VETO POWER OF THE PRESIDENT 29 (1951). Richard Watson’s examination of the content of presidential veto messages also excludes pocket vetoes on the grounds that “presidents might not have been uniform in their use of memoranda of disapproval and that the nature of the informal memoranda might be different from that of official veto messages.” WATSON, supra note 39, at 137.

41 CONGRESSIONAL QUARTERLY, GUIDE TO CONGRESS 614 (6th ed. 2007).

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dependents) dominated their veto activity.42 That said, this Article generally excludes considering vetoes of private bills as sources of nonjudicial interpretation for a number of reasons. To begin with, such measures are unlikely to raise constitutional issues or, individually, be of much political significance. Indeed, vetoes of private bills are usually accompanied by only the briefest of explanations.43 Moreover, the concentration of vetoes of private bills in three administrations (Cleveland, Franklin Roosevelt and Truman were responsible for more than 80% of all private bills vetoed from 1789 to the present) supports the view that including these measures might not be representative of presidential behavior across time. Thus, eliminating vetoes of private bills eliminates a considerable amount of policy “white noise” and focuses our attention on matters of broader public and political interest.44 To obtain a sense of how frequently presidents employed constitutional arguments relative to other reasons for vetoing legislation, I coded each message to reflect whether a bill was vetoed for constitutional reasons, out of administrative and technical concerns, on general fiscal and economic policy grounds, due to other policy considerations, or some combination of these considerations, specific categories derived from Richard Watson’s study of the substantive reasons behind presidential vetoes. Beyond identifying the ostensible reasons presidents vetoed legislation, I also tracked their relative weight by identifying the most 42 As Louis Fisher reports, on “a single day in 1886 President Cleveland received nearly 240 private bills granting new pensions for veterans, increasing their benefits, or restoring old names to the list.” FISHER, LAW OF THE EXECUTIVE BRANCH, supra note 37, at 172.

43 The perceived lack of political importance of individual private bills is suggested by the observation that from 1789 - 1990, only 7 private bills were passed into law over a President's veto. GUIDE TO CONGRESS, supra note 41, at 366.

44 One should note that private bills have only been officially identified by Congress since 1936. Therefore, it is somewhat difficult to distinguish private from public bills prior to this date. In order to ensure that the same category of legislation was being excluded across the centuries, all vetoed bills whose principal object of concern was a particular individual, small group of individuals, or a private organization were not included in my analysis. While this approach was probably overbroad, excluding some legislation that would not be officially classified as a “private” measure, the task of accurately identifying private legislation per se seemed nearly impossible, and, in any event, the approach adopted is justifiable for all the reasons cited in excluding private bills. Interview with Gregory Harness, Head Reference Librarian, Senate Library (Aug. 11-12, 1999).

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important argument surfaced in a veto message, again following the lead of prior scholars. The relative “importance” assigned for a veto justification was based on three factors: (1) where the argument appeared in the message (with the presumption that arguments mentioned earlier would be more important than those mentioned later); (2) the length of the rationale (with the general assumption that longer messages would tend to be more important); and (3) the presence of any explicit terms signifying importance or priority.45 As discussed in greater detail below, I depict the relative importance of different rationale for vetoing bills by identifying the percentage of a president’s total vetoes in which he cited the given reason (administrative, constitutional, economic, policy concerns). This “percentage” approach has the advantage of providing a yardstick across presidencies that shows the relative frequency of different arguments. The disadvantage of this method is that it may seem to diminish or dilute the importance of some justifications when presidents issue a relatively high number of total vetoes. Thus, Andrew Jackson raised constitutional objections in all of his five regular (non-pocket) vetoes—a higher percentage of “constitutional vetoes” than Andrew Johnson (53%). But Johnson actually issued more vetoes for constitutional reasons overall (ten as opposed to Jackson’s five).

This caveat aside, this Article is especially interested in the importance of constitutional arguments relative to other sorts of reasons given for vetoing bills, and for this reason the “percentage” metric seems a defensible measure. In any event, Table 1 depicts the absolute number of regular, non-pocket vetoes issued by presidents (found in the column labeled “Public”) as well as other veto data. As the table reveals, there is considerable variation in the total number of public, non-pocket vetoes cast by different presidents (from 0 to 108).

45 WATSON, supra note 39.

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Table 1: Presidential Vetoes, 1789-2014 President

Public

Private

Pocket

G.Washington J. Adams T. Jefferson J. Madison J. Monroe J. Q. Adams A. Jackson M. V. Buren W. Harrison J. Tyler J. Polk Z. Taylor M. Fillmore F. Pierce J. Buchanan A. Lincoln A. Johnson U. Grant R. Hayes J. Garfield C. Arthur G. Cleveland†B. Harrison W. McKinley T. Roosevelt W. H. Taft W. Wilson W. Harding C. Coolidge H. Hoover F. Roosevelt H. S. Truman D.Eisenhower J. Kennedy L. Johnson R. Nixon G. Ford J. Carter R. Reagan G.H.W. Bush* W. Clinton G. W. Bush B. Obama

2 0 0 4 1 0 5 0 0 6 2 0 0 9 2 2 19 14 11 0 3 33 13 1 14 17 23 4 17 17 108 55 36 3 4 25 45 13 36 29 36 12 2

0 0 0 1 0 0 0 0 0 0 0 0 0 0 2 0 2 31 1 0 1 313 6 5 28 13 10 1 3 4 264 125 37 9 12 1 3 0 3 0 0 0 0

0 0 0 2 0 0 7 1 0 4 1 0 0 0 3 5 8 48 1 0 8 238 25 36 40 9 11 1 30 16 263 70 108 9 14 17 18 18 39 15 1 12 0

Totals

557

929

47

1,078

Total Vetoes 2 0 0 7 1 0 12 1 0 10 3 0 0 9 7 7 29 93 13 0 3 584 44 42 82 39 42 6 50 37 635 250 181 21 30 43 66 31 78 44 37 12 2

2,564

*President G.H.W. Bush and Congress disputed the status of two bills the president claimed were pocket vetoed but Congress claimed were enacted without his signature.

This table excludes these measures. On another occasion, Bush claimed a bill was pocket vetoed, but Congress treated it as a regular veto (on the grounds that it had designated figures to receive and reconsider the measure). For this, and similar disputes, I treat the contested pocket vetoes as regular vetoes. See Presidential Vetoes, 1789-1988 1(1992); Gerhard Peters. “Presidential Vetoes.” The American Presidency Project. Ed. John T. Woolley and Gerhard Peters. Santa Barbara, CA: University of California. 1999-2014, http://www.presidency.ucsb.edu/data/vetoes.php.

For the second part of my investigation, assessing the nature of constitutional arguments offered by nonjudicial officials, I examined the subset of veto messages in which presidents specifically cited constitutional reasons and then scrutinized their substance—once again looking for historical and other patterns in light of my “multiple orders” hypotheses. This portion of my analysis focused on the following questions, among others: Were the president’s remarks about the Constitution limited to the veto controversy at hand, or did the chief executive use (some) veto messages to offer a broader vision of constitutional politics and the special role of the chief executive? What interpretative modalities did presidents turn to—traditional legal arguments based on constitutional text, structure, framer’s intent, or something else entirely?

In the final major portion of my investigation, considering how questions about the operation and parameters of the veto power were resolved, I examined relevant primary and secondary materials. These ranged from executive branch documents, legal briefs, discussions in the Congressional Globe and Record, pertinent court decisions, and scholarly monographs.46 Veto Messages and Departmentalism Figure 1 provides an overview of the reasons presidents provided in issuing “public,” regular (non-pocket) vetoes, from Washington through Obama. The figure indicates the percentage of a president’s total vetoes in which constitutional concerns, fiscal and economic policy considerations,

46 See SPITZER, supra note 37.

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and other (non-economic, non-fiscal) public policy reasons figured in their veto messages.47 Thus, Figure 1 reflects that over the period of John Tyler’s presidency (1841-1845) half of his regular vetoes referenced constitutional concerns. The figure also shows that Tyler referenced fiscal issues in his veto messages and, less frequently, other policy matters.

Figure 1: Presidential veto messages: Reasons cited for veto (17892014) Note: Presidents who issued no vetoes are not included in the data.

Percent

KEY: Rationale for veto

Figure 2 presents the percentage of a president’s vetoes in which constitutional arguments were the most important reasons cited (again, with “importance” based on the prominence and length of the rationale).

To return to the Tyler example, constitutional arguments were the central reason identified in a third of the vetoes he cast (two out of six).

47 To ease readability, I omitted a fourth category, “administrative concerns” from both figures. I also excluded presidents who issued no regular, public vetoes.

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Year

Figure 2: Presidential veto messages: Percentage of messages in which constitutional reasons were most important reasons cited (17892014) Note: Presidents who issued no vetoes are not included in the data.

Percent

Year

What can we glean from these two figures? At a minimum, they point to an ongoing but somewhat patterned interest by chief executives in tethering veto messages to constitutional issues. Through almost the first hundred years of the republic, constitutional reasons formed a substantial portion of the rationale given by presidents. More specifically, from 1789-1869 (Washington through Andrew Johnson), presidents invoked constitutional claims in roughly three out of five veto messages.

Moreover, in almost half of these vetoes, constitutional analysis served as the featured or sole rationale for a veto.

Aside from these observations, one can also observe that constitutionally oriented vetoes were at the core of some of this period’s most significant policy and institutional disputes, including controversies over the political and legal propriety of “internal improvements,� the

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scope of the president's authority to remove executive officials, the treaty power, the Bank of the United States, and early Reconstruction policy.48 Reviewing these presidential veto messages also illustrates that interactive, iterated, and often protracted legislative-executive constitutional discussions were commonplace during this early span, stretching through Reconstruction. Many presidential veto messages tapped earlier congressional debates and executive statements about the constitutional questions implicated in a contemporary controversy.49 For example, in laying out his reasons for vetoing an infrastructure bill, President James Monroe extensively referenced prior congressional discussions of the constitutionality of federal “internal improvements.”50 Similarly, in his 1854 veto of a bill to provide services for the “Indigent Insane,” President Franklin Pierce argued that the measure was beyond the express or implied powers of the federal government and should, therefore, be left to state action.51 Pierce explicitly considered and rejected constitutional claims made by the measure’s congressional supporters, who contended that the legislation was permissible through the congressional taxing power and the Constitution’s “general welfare” clause.

Early veto messages frequently prompted lengthy congressional floor debates about a chief executive’s specific interpretive claims as well as his more general vision of how constitutional construction and national politics were integrated. In some cases these legislative discussions were specifically linked with override attempts, and at other times they 48 See CORWIN, supra note 7, at 28; CARLTON JACKSON, PRESIDENTIAL VETOES, 17921945 15 (1967); EDWARD CAMPBELL MASON, THE VETO POWER (Albert Bushnell Hart ed., 1890); SPITZER, supra note 37, at 33-39; Eastman, supra note 27, at 721.

49 SPITZER, supra note 37, at 33.

50 Special Message to the House of Representatives Containing the Views of the President of the United States on the Subject of Internal Improvements from James Monroe (May 4, 1822), available at http://www.presidency.ucsb.edu/ws/index.php?pid=66323&st=internal+improvements&s t1 51 Veto Message from Franklin Pierce (May 3, 1854), available at http://www.presidency.ucsb.edu/ws/index.php?pid=67850&st=Pierce&st1=indigent+insa ne.

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prompted congressional efforts to address executive concerns voiced in the veto.52 In short, this initial period of veto messaging shows multiple features consistent with the “constitutional departmentalism” order outlined earlier. As part of their policy, constitutional, and other roles, presidents and legislators engaged constitutional issues, defending their political agendas and claims to power with references to explicit constitutional provisions and often laying out a more general sketch of governance under our supreme law. While presidents and members of Congress sometimes referenced court opinions during this span, on the whole executive and legislative debates about the connection between veto messages and constitutional issues showed relatively little deference to (or interest in) judges or judicial authority on these matters.

As we will see, there are important examples of contemporary presidents who demonstrate notable interest in constitutional issues in vetoing bills, and a number of twentieth century vetoes combined constitutional concerns and major policy debates. But, as Figures 1 and 2 indicate, the period of most sustained and highest-profile interest in “constitutional vetoes” occurred from the early days of the republic to the first few decades after the Civil War. Presidential Vetoes and the Rise of Judicial Supremacy As noted, those advocating for courts to have the final and even exclusive word on constitutional questions have raised their voices since the late eighteenth century. Some of these calls for judicial supremacy quieted after the election of 1800 when Federalist proponents of powerful courts were politically routed.53 But by the 1840s, views consistent with both diffuse constitutionalism and the doctrine of judicial supremacy were “sharing space in American political culture, co-existing in an uncertain and sometimes tense relationship.”54 The “self-inflicted wound” of Dred

52 See, e.g., SPITZER, supra note 37, at 39-49.

53 KRAMER, supra note 1.

54 Id.

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Scott (among other developments) again set back claims that the judiciary should have a monopoly on constitutional questions.

As the post-war Gilded Age unfolded, courts gradually asserted greater power, eventually invalidating a number of Populist and Progressive policies. While political forces (in and out of government) fought back against this judicial tide, their efforts were not as successful as they had been in opposing the Taney Court.55 Even FDR, a popular president pressing his policies at a time of economic desperation, could not convince the nation to go along with his infamous Court-packing scheme.56 But in the resulting “New Deal settlement� the executive and legislative branches continued to take the lead in constitutional questions governing the scope of federal power while delegating important individual rights controversies to judges.57 While this political accommodation reflected the coexistence of constitutional departmentalism and supremacy, it also set the stage for increasingly aggressive assertions of judicial authority beginning in the 1950s.

Figures 1 and 2 help us understand the evolving relationship between the twin orders of constitutional departmentalism and judicial supremacy. Following the Civil War, the desire for postwar stability, and increased national emphasis on economic and fiscal matters (such as ongoing battles over what securities should back U.S. currency, the agricultural depression of the 1880s, and the panic of 1893) played a role in displacing or reducing the profile of constitutional issues in many executive and legislative arenas. We can see this reflected in the decline of constitutional veto messages and the rise of economic and policy vetoes (see Figure 1). The shifting national agenda helped create a space in which courts began to claim greater independence and power so that by the 1920s, they were invalidating state and federal policy at an increasing rate with more than three times as many federal laws invalidated by courts in the 1920s as opposed to the previous decade.58 55 Id. 56 JEFF SHESOL, SUPREME POWER: FRANKLIN ROOSEVELT VS. THE SUPREME COURT (2010).

57 KRAMER, supra note 1.

58 TOM S. CLARK, THE LIMITS OF JUDICIAL INDEPENDENCE (2011).

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As a crude aggregate of these dynamics, one might note that in all veto messages from the Hayes presidency (1876-1880) to the present (2014) only 11% of veto messages included some constitutional reference (compared with 59% previously). Moreover, during this post-Civil War era, constitutional reasons were cited as the most important reason for vetoing bills in only 6% of all veto messages, compared to 45% for the earlier period.59 There are exceptions to these general dynamics, reflecting the continued (if adumbrated) power of the departmentalism doctrine. During the span of presidencies from George H.W. Bush through William Clinton and George W. Bush (1988-2008), constitutional issues were fairly prominent in vetoes—31% of all messages during this time included some reference to constitutional questions, although these were almost never the most important reasons cited for vetoing a bill. In vetoing a funding bill for the National Institute of Health, for example, George H.W. Bush cited “reporting requirements that impair the separation of powers.”60 A number of other vetoes from this time involved disputes about abortion and national security, also triggering presidential objections based on constitutional issues.

Overall, however, throughout a period in which judicial supremacy gained strength as a legal doctrine and political belief, presidents increasingly emphasized public policy and economic concerns in their veto messages.61 The preoccupation of presidents with these policy questions has both promoted and been facilitated by the rise of supremacy.

59 Neal Devins identifies partisan polarization as a major factor contributing to Congress’s declining interest in constitutional questions. Neal Devins, Party Polarization and Congressional Committee Consideration of Constitutional Questions, 105 NW. U. L. REV. 737, 737-38 (2011); Devins, Why Congress Did Not Think About the Constitution When Enacting the Affordable Care Act, 106 NW. U. L. REV. COLLOQUY 261 (2012).

60 Message to the House of Representatives Returning Without Approval the National Institutes of Health Revitalization Amendments of 1992 from George Bush (June 23, 1993), available at http://bush41library.tamu.edu/archives/public-papers/4476.

61 See CORWIN, supra note 7; SPITZER, supra note 36, at 144; WATSON, supra note 40.

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At times, modern presidents have gone out of their way to avoid raising constitutional issues implicated in disputes. In vetoing a bill in 1920 that would have placed control of official governmental publications in the hands of a congressional committee, President Woodrow Wilson claimed the measure threatened to violate the separation of powers by invading “the province of the Executive.”62 Oddly, however, Wilson simultaneously claimed that his veto message did not raise any constitutional question for Congress to consider.63 Again, the suggestion here is not that “departmentalism” was somehow blotted out as courts (and supporters of judicial independence) staked out more forceful and consistent claims about judge’s privileged, if not exclusive, dominion over constitutional decisionmaking. Many of the same constitutional and institutional forces that impelled presidents to engage constitutional questions earlier in our nation’s history remained in place as the order of “judicial supremacy” came into greater force. After all, presidents and members of Congress still had to give meaning and application to constitutional powers, and sort out the ambiguity of many constitutional procedures. But, in the face of shifting (and expanding) electoral, policy, and other demands, not to mention the growing stature and organization of the judiciary, executive and legislative behavior altered, putting constitutional issues into the background in many veto discussions. While the logic and imperatives of the system of constitutional departmentalism remained in place, the resurgent system of judicial supremacy made executive officials more deferential to the authority of judges, and, as we shall see in the next section, altered the very nature of elected officials’ engagement of constitutional questions.

Departmentalism and “Practical Construction” So far, we have a basic profile of the different reasons advanced by presidents in vetoing bills over time, including constitutional arguments.

But what can we say, more specifically, about the content of these constitutional debates—what is distinctive about the nature or substance of 62 STEVEN G. CALABRESI & CHRISTOPHER S. YOO, THE UNITARY EXECUTIVE: PRESIDENTIAL POWER FROM WASHINGTON TO BUSH 256 (2008).

63 Veto of the Child Day Care Bill from Gerald Ford (April 6, 1976), available at http://www.presidency.ucsb.edu/ws/?pid=5806.

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the constitutional analysis offered by executive and legislative officials in the context of discussing vetoes? To begin with, during those periods when constitutional departmentalism principles held sway with relatively weak opposition by judicial supremacy, presidential veto messages employed modes of constitutional analysis distinct from those used by courts.

To be sure, presidential analysis of constitutional issues sometimes employed techniques and modalities we associate with judicial review— including detailed parsing of constitutional text and investigations of the intentions of the Constitution's authors. Thus, in Andrew Johnson’s veto of a bill to “establish a Bureau for the Relief of Freedmen and Refugees” in February 1866, he objected that a “system for the support of indigent persons in the United States was never contemplated by the authors of the Constitution.”64 But throughout the period when departmentalist principles were least tempered or layered by supremacy, nonjudicial constitutional interpretation exhibited distinctive features as well. In contrast with the traditional judicial model emphasizing legal analysis that is somehow outside of politics, and based on interstitial, rights-based, and limited decisions, presidential veto messages, especially in the eighteenth and nineteenth centuries, possessed notable differences. First, they were often informed by overtly political and policy considerations. While the open discussion of these factors would almost certainly be deemed inappropriate in judicial opinions, in the context of veto messages they allowed presidents to claim special insight and expertise. For example, early presidential vetoes treated the purportedly widespread and longstanding consensus surrounding political practices as establishing a presumption of their constitutionality. If a policy, institutional arrangement, or particular understanding of federal power was popular, enduring, and had been explicitly or implicitly approved by the public or prior elected officials (especially previous presidents) it was given an imprimatur of constitutionality that was absent if the issue in question had

64 Veto Message from Andrew Johnson (February 19, 1866), available at http://www.presidency.ucsb.edu/ws/index.php?pid=71977&st=Johnson&st1=Freedmen.

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been controversial or engaged in intermittently.65 In other words, the politically successful operation of a policy counted as a legitimate factor in determining its constitutionality. Carlton Jackson argues that this notion dates to Madison's theory of the “prescriptive process” and Polk and Pierce were among the presidents who made arguments consistent with this approach.66 In addition to using popular and political support and historical longevity as constitutionally relevant factors, nonjudicial interpretation of the Constitution in this period also weighed policy outcomes. As President James Monroe explained in his only veto message, political practice “ought surely to have great weight in fixing the construction” of constitutional powers, “especially where it is acquiesced in by the nation, and produces a manifest and positive good;” as he concluded, a “practical construction, thus supported, shows that it has reason on its side, and is called for by the interests of the Union.”67 Early presidential constitutional analysis was also distinct from judicial interpretation in frequently articulating a vision of the chief executive’s special constitutional role. This occurred in primarily two ways. First, presidents issuing vetoes identified special traits or perspectives they allegedly possessed, linked to their unique constitutional powers or position. This distinct vantage point gave them special purchase and understanding from which to issue vetoes (and often to overcome 65 See, e.g., OFFICE OF THE SEC’Y OF THE SENATE, PRESIDENTIAL VETOES, 1789-1988, 407 (1992). (This approach to interpretation is not exclusively utilized by politicians, of course—it is implicitly relied upon in most judicial examinations of legislative history and explicitly invoked in numerous cases); See, e.g., McCulloch v. Maryland, 17 U.S. 316, 401 (1819) (constitutional questions “if not put at rest by the practice of the government, ought to receive a considerable impression from that practice”); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 589 (1952) (Justice Felix Frankfurter, concurring); Stuart v. Laird, 5 U.S. (1 Cranch) 299, 309 (1803) (“practice and acquiescence under it, for a period of several years, commencing with the organization of the judicial system . . . has fixed the construction” of the Constitution).

66 JACKSON, supra note 48, at 5; Veto Message from James K. Polk (August 3, 1846), available at http://www.presidency.ucsb.edu/ws/index.php?pid=67936=polk&st1=veto; Veto Message from Franklin Pierce (May 3, 1854), available at http://www.presidency.ucsb.edu/ws/index.php?pid=67850&st=pierce&st1=veto.

67 RICHARDSON, supra note 49, at 172 (emphasis added).

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some identified deficiency with the legislature). Thus, a number of presidents claimed a special capacity to speak for the populace as a whole and overcome, as Jackson put it, “interest[s] separate from that of the people.”68 For John Tyler, presidents could lay claim to serving as unique guardians of the “fundamental will of the people” against “infraction by a majority in Congress.”69 In addition to setting out how their position in the separation of powers system gave them singular insight in issuing vetoes, presidents drew on the notion of constitutional role in a second way: they employed it to inform (and justify) their understanding of the veto itself by placing the power in the context of a theory of lawmaking authority.70 A typical but not universal construction of early presidents was to identify lawmaking as the privileged province of a responsible Congress, and therefore to accord congressional legislation general deference unless it “clearly” violated some constitutional provision (in which case it should be vetoed). In 1793, Washington displayed trademark self-consciousness in thinking through these sorts of constraints. As he explained, from motives of respect to the Legislature (and I might add from my interpretation of the Constitution) I give my Signature to many Bills with which my Judgment is at variance… From the nature of the Constitution, I must approve all the parts of a Bill, or reject it in toto. To do the latter can only be Justified upon the clear and obvious ground of propriety; and I never had such confidence in my

68 Veto Message [Of The Re-authorization of Bank of the United States] from Andrew Jackson (July 10, 1832), available at http://www.presidency.ucsb.edu/ws/index.php?pid=67043&st=jackson&st1=separate+fro m+that+of+the+people.

69 Veto Message from John Tyler (September 9, 1841), available at http://www.presidency.ucsb.edu/ws/index.php?pid=67558&st=tyler&st1=fundamental+w ill+of+the+people.

70 CORWIN, supra note 7, at 278.

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own faculty of judging as to be over tenacious of the opinions I may have imbibed in doubtful cases.71 Washington's reticence to veto bills was echoed by many of his successors, who adhered to similarly constrained or “whiggish” views about the profile that presidents should assume vis-à-vis the legislature.72 At various points, Jefferson, Tyler, Polk, Pierce, and others also indicated that the veto had a particular and restricted role consistent with executive deference to congressional action unless it was clearly unconstitutional or otherwise against the “public interest.”73 In his inaugural address, for example, William Henry Harrison expressed his self-identified “conservative” view of the veto power such that it was to be used first to protect “the Constitution from violation;” secondly, to guard “the people from the effects of hasty legislation where their will has been probably disregarded or not well understood;” and thirdly, to prevent conditions which would likely violate “the rights of minorities.”74 Early presidents who proclaimed commitment to constitutional role restraint were at least partly backed up by their performance.75 Indeed, whatever their ultimate reasons, most presidents before the sustained rise of judicial supremacy in the twentieth century, seem to have adhered to a somewhat constrained view of the circumstances under which the veto should be used. From Washington through Grant, presidents

71 GEORGE WASHINGTON, LETTER TO EDMUND PENDLETON, September 23, 1793 in DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS: THE FEDERALIST PERIOD 1789-1801, 32 (University of Chicago Press 1997).

72 SPITZER, supra note 37, at 29.

73 PRESIDENTIAL VETOES, 1789-1988, supra note 63, at 163, 173, 237, 327. See also ZINN, supra note 39, at 34; WATSON, supra note 39, at 14.

74 SPITZER, supra note 37, at 39.

75 See infra Table 1 (illustrating the early presidents most closely associated with a constrained view of the veto, Washington issued 2 total vetoes; Jefferson none; Tyler was responsible for 10 total vetoes; Polk 3; and Pierce 9. Andrew Johnson, on the other hand, issued 29 total vetoes (21 regular and 8 pocket vetoes), but given his extraordinarily combative relationship with Congress, he is, of course, something of an outlier (as evidenced, in part, by having 15 bills overridden—an absolute and percentage record)).

Table 1 SPITZER, supra note 37, at 74.

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exercised only 181 total vetoes, including 78 pocket vetoes, 103 regular vetoes, and 70 regular vetoes of public bills.76 Madison and Jackson represented two more activist exceptions during this span, but in both cases they articulated and defended a different vision of executive responsibility under the Constitution—and the veto’s special part in helping to achieve that vision.77 As we will see later, Jackson also linked his understanding of constitutional role to the aggressive use of the pocket veto. While Jefferson did not issue any vetoes during his two terms, he also intertwined his conception of the veto with an account of the president’s special constitutional role, arguing that the veto served as a constitutional “shield” to protect the president, the judiciary and the states against legislative encroachments.78 Beyond these observations about constitutional role, an additional distinguishing trait of presidential interpretation in this period was its expansiveness. Unlike court judgments that are formally restricted to the case at hand and supposedly based on narrow readings of constitutional issues, early presidents frequently used veto decisions to offer wideranging statements about the intersection of their policy agenda and constitutionalism.79 Their veto messages either set out a president's general constitutional views prospectively, articulating how future policy should conform to that vision, or they retrospectively elaborated upon how a president's existing programs or stated goals reinforced principles or provisions of the Constitution.80 Thus, Polk’s veto of a bill “[m]aking appropriations for the improvement of certain harbors and rivers,” included a warning to Congress that future “internal improvement” bills would be invalidated because the Constitution does not confer “upon the Federal Government the power to construct works of internal improvement within the States, or to appropriate money from the Treasury 76 See infra Table 1; see also SPITZER, supra note 37, at 74.

77 SPITZER, supra note 37, at 74.

78 THOMAS JEFFERSON, WRITINGS, 420-21 (Merrill D. Peterson ed., 1984).

79 FISHER, CONSTITUTIONAL DIALOGUES, supra note 1; CASS R. SUNSTEIN, ONE CASE A TIME: JUDICIAL MINIMALISM ON THE SUPREME COURT (First Harvard University Press 2001) (1999); WHITTINGTON, CONSTITUTIONAL CONSTRUCTION, supra note 1.

80 KEITH WHITTINGTON, POLITICAL FOUNDATIONS OF JUDICIAL SUPREMACY (2007), 5961, 170-183.

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for that purpose.”81 Presidents turned to constitutional argument to legitimate their political agenda and bring into question their opponents’.

A final substantive feature of the presidential veto messages during the era of diffuse constitutionalism is that they often involved an evaluation of degree, that is, an assessment of the probability a measure was unconstitutional. While some bills were rejected on the grounds that they were patently unconstitutional, it was also common for presidents to reject a measure as being of dubious or questionable constitutionality.

Polk exhorted “all the functionaries of the Federal Government” to “abstain from the exercise of all [constitutionally] questionable or doubtful powers.”82 In the summer of 1854, Pierce vetoed a bill providing appropriations for public parks on the grounds that the measure was “of doubtful constitutionality.”83 These weighted assessments of the constitutionality of enrolled bills (that is, bills presented to the president) were relatively commonplace in veto messages, and contrast markedly with the judiciary’s tendency to offer unequivocal constitutional judgment to promote legal settlement and stability.84 In addition to demonstrating distinctive interpretive methods, presidential vetoes during the “departmentalism” era generally did not adhere to precepts of judicial supremacy and, instead, reflected considerable independence vis-à-vis courts and judges. Indeed, throughout the period stretching to the Civil War and Reconstruction, presidential vetoes and resulting interbranch exchanges about constitutionalism 81 Veto Message from James Polk (August 3, 1846), available at http://www.presidency.ucsb.edu/ws/index.php?pid=67936&st=Polk&st1=internal+impro vements 82 Veto Message from Franklin Pierce (August 4, 1854), available at http://www.presidency.ucsb.edu/ws/index.php?pid=67851&st=pierce&st1=of+doubtful+ constitutionality.

83 Third Annual Message from Franklin Pierce (December 31, 1855), available at http://www.presidency.ucsb.edu/ws/index.php?pid=29496&st=Pierce&st1=doubtful+con stitionality 84 See Alexander & Schauer, supra note 4. (explaining in contrast, judges generally face an obligation to identify specific winners and losers in adversarial court proceedings, and therefore do not have the option of identifying governmental action as being of only dubious constitutional status. In other words, their assessments of constitutionality tend to be more binary.)

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exhibited independent attitudes towards the authority of courts on constitutional matters. Presidential vetoes from this era seldom referred to a privileged constitutional role for courts or the binding power of the judiciary’s constitutional precedent. When courts were mentioned, presidents typically drew upon judicial glosses on constitutional issues as a valuable but not decisive source of authority.85 Presidents and legislators were at least as likely to invoke other nonjudicial figures and precedents in applying the Constitution to enrolled bills. In other words, when presidents and legislators appealed to court rulings relevant to veto disputes, these were usually offered as simply one component of a broader set of pertinent arguments.

Thus, in Jackson’s veto of the re-chartering of the Bank of the United States, the President defended the authority of both the executive and legislative branch to craft its own understandings of constitutional meaning.86 As he concluded, it was just as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution…as it is of the supreme judges when it may be brought before them for judicial decision.87 Jackson’s message was a particularly bold and important statement of his administration’s ambitions, such that Stephen Skowronek has called

85 See, e.g., Veto Message from Franklin Pierce (December 30, 1854) available at http://www.presidency.ucsb.edu/ws/index.php?pid=67852&st=Pierce&st1=imperfect (in which President Pierce referenced an “imperfect” answer to the question before him “furnished by the acts of Congress and the decisions of the Supreme Court of the United States defining the constitutional limits of the maritime jurisdiction of the General Government”).

86 PAUL BREST & SANFORD LEVINSON, PROCESSES OF CONSTITUTIONAL DECISION MAKING 49-50 (1992).

87 PRESIDENTIAL VETOES, 1789-1988, supra note 65; Veto Message Of The Reauthorization of Bank of the United States from Andrew Jackson (July 10, 1832), available at http://www.presidency.ucsb.edu/ws/index.php?pid=67043&st=Jackson&st1=bank

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it a “regime-builder’s manifesto.”88 But as a statement of independence with respect to the courts and constitutional interpretation, it was by no means unique.

The Changing Face of Nonjudicial Interpretation: The Emergence of Subordinate Construction So far we have been able to identify, in broad strokes, an initial period of nonjudicial constitutional interpretation, stretching into the aftermath of the Civil War. Over this span, presidents and members of Congress behaved consistent with the precepts of departmentalism, including their deployment of independent, “practical construction” (as Monroe put it) of the Constitution. Some shift away from a constitutional emphasis in veto messages is attributable to the new imperatives of the Civil War and its immediate aftershocks, as Table 1 implicitly reveals.

The rise of “private vetoes” targeting war pensions and veteran relief under Grant (and the later explosion of this phenomenon during the Cleveland, Franklin Roosevelt, and Truman administrations) points to the increasingly pragmatic, fiscal orientation of the post-war nation, and signals an agenda shift from the broad, constitutional articulation of earlier presidents to more mundane and pressing administrative concerns.

As the nineteenth century gave way to the twentieth, presidential veto messages increasingly emphasized policy issues and other disputes accompanying the rapid economic and demographic expansion of the nation and the corresponding rise of new sectional and party cleavages.

Some of these developments supported court power and independence, and, eventually, growing assertions of judicial supremacy.

Consistent with this shift, we find not only a diminution in the frequency of constitutional vetoes, but also a change in their content.

Following the period in which constitutional vetoes were distinctive, sustained and independent, presidential messages later became rather cursory, vague and simplistic—and, therefore, somewhat resistant to further application (or challenge) by members of Congress and subsequent executives. For example, in an April 1976 veto, President Ford objected 88 Stephen Skowronek, Presidential Leadership in Political Time, in THE PRESIDENCY AND THE POLITICAL SYSTEM 94 (Michael Nelson, ed., 1984).

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that provisions of the enrolled bill before him were “Constitutionally objectionable,” without providing further elaboration.89 President Ronald Reagan’s veto of a “Treasury, Postal Service and General Government Appropriations” bill in 1985 cited “constitutional concerns” raised by one section of the bill that related to “presidential appointments,” but provided no further elaboration of these constitutional objections.90 Similarly, a 1995 Clinton veto of an Appropriations bill rejected “inappropriate restrictive language” in the measure, including terms “limiting the conduct of U.S. diplomatic relations with Vietnam, that I believe infringe on Presidential prerogatives.”91 No suggestions were made about the nature of the president’s prerogatives or how to correct the constitutional infirmity. President George W. Bush’s message regarding the “Food, Conservation, and Energy Act of 2008” identified “serious constitutional concerns” as one of the reasons for issuing his veto, while providing no additional explanation.92 In part, this trend towards brevity (and often ambiguity and obscurity) in contemporary veto references to the Constitution can be 89 Veto of the Hatch Act Amendments Bill from Gerald R. Ford (April 12, 1976),

http://www.presidency.ucsb.edu/ws/?pid=5839. (noting that during the 28 years between the beginning of Eisenhower's administration through the end of the Carter presidency, 59% of the bills vetoed on constitutional grounds were directed against either “coming into agreement”). See, e.g., Veto of S. 327 from LBJ (June 5, 1965) (explaining advised by “legislative veto” devices included in legislation (the former requiring executive officials to obtain Congressional committee support before taking executive action and the latter allowing Congress to “veto” executive action by a one or two house resolution)) (This rather narrow focus suggests that during this period nonjudicial examination of constitutional questions in the veto context was not only reduced in quantity and importance, but also scope).

90 Message to the House of Representatives Returning Without Approval the Treasury Department, Postal Service, and Certain Independent Agencies Appropriations Bill from Ronald Regan (November 15, 1985), available at http://www.presidency.ucsb.edu/ws/?pid=38078.

91 Message to the House of Representatives Returning Without Approval the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1996 from William J. Clinton (December 19, 1995), available at http://www.presidency.ucsb.edu/ws/?pid=50919.

92 Message to the House of Representatives Returning Without Approval the "Food, Conservation, and Energy Act of 2008" from George W. Bush (June 18, 2008), available at http://www.presidency.ucsb.edu/ws/?pid=77514

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attributed to the growth of the administrative state and, with it, the increased complexity of executive branch decisionmaking.93 Overall, the modern veto process is more formal and pluralistic than in the past, providing regular opportunities for agency heads and other executive branch figures to comment on enrolled bills and weigh in on whether or not they should be vetoed.94 One effect of this is to make vetoes less a repository of presidents’ broad agenda (including their vision of constitutional authority and corresponding policy program), and more the outcome of bureaucratic process. Thus, presidential veto messages have increasingly referenced specialized advisers and reports in assessing and discussing vetoes, although these accounts rarely identify the particular portions of an expert’s report that the president deems vital to the veto decision. In vetoing the 1928 “National Defense Act,” for example, President Calvin Coolidge noted that he had “been advised by the Attorney General that this bill is unconstitutional because it takes away from the executive branch” the “power and duty to make appointments to and removals from posts into Federal service;” but, Coolidge did not include the Attorney General's opinion with his veto message.95 Even when presidents included advisory memos about constitutional questions with vetoed bills, these memos were themselves often curtailed or informal. Thus, at least in veto messages, executive branch constitutional argument was frequently muddled even when it was invoked. As noted, this has made it difficult for congressional officials to identify, scrutinize and engage constitutional objections when they are raised.

In addition, as we move from the post-Civil War period into the twentieth century, constitutional veto messages began to show greater deference to the judiciary than in the past. In 1913, for example, President William Howard Taft justified his veto of a bill “[d]ivesting intoxicating liquors of their interstate commerce character” on the grounds that the 93 In other contexts, such as opinions rendered by the Office of Legal Counsel, executive branch constitutional arguments are often lengthy and detailed of course.

94 Richard Neustadt, Presidency and Legislation: The Growth of Central Clearance, 48 AM. POL. SCI. REV. 641 (1954).

95 Veto of H.R. 8550 from Calvin Coolidge, 69 CONG. REC. 7411 (1928) (proposing to amend the National Defense Act).

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measure impinged upon the U.S. Constitution's interstate commerce clause—immediately (if somewhat allusively) referencing “expression[s] of the Supreme Court on the general subject.”96 Even when the executive branch provided greater elaboration of the constitutional reasons for vetoing a bill, they were often based, either explicitly or implicitly, on rulings, legal reasoning and analytic categories developed by judges (but deemed supportive of the administration’s position). These appeals to sympathetic court decisions supported judicial authority and in some cases provided indirect support for judicial supremacy.

President Rutherford Hayes’s 1880 veto of a bill seeking to create “deputy marshals” to protect voters from election fraud and intimidation is an early example of this emerging deference and growing acceptance of judicial supremacy.97 Hayes’s constitutional objections to the bill were based on his reading of Supreme Court precedent, and, as a consequence, his veto expressed the importance of enforcing the Court’s prior opinions.

As Hayes explained, “the bill before me proceeds upon a construction of the Constitution as to the powers of the National Government which is in direct conflict with the judgment of the highest judicial tribunal of our country.”98 The law therefore, had to be struck down.

A number of early twentieth century examples are similarly instructive. In 1909, President Theodore Roosevelt vetoed a bill which authorized the Secretary of the Navy to “mitigate or remit” the loss of citizenship rights to individuals who deserted the navy in wartime.99 96 Quoted in THE YEAR BOOK OF THE UNITED STATES BREWERS' ASSOCIATION 7 (1914).

97 PRESIDENTIAL VETOES, 1789-1988, supra note 65, at 441. See, generally, KRAMER, supra note 1; Rachel E. Barkow, More Supreme than Court—The Fall of the Political Question Doctrine and the Rise of Judicial Supremacy, 102 COL. L. REV. 237 (2002); Eastman, supra note 27, at 716.

98 Veto Message from Rutherford B. Hayes (June 15, 1880), available at http://www.presidency.ucsb.edu/ws/?pid=68553.

99 Veto of S. 5473 from Theodore Roosevelt (amending section 1998 of the Revised Statutes of the United States and to authorize the Secretary of the Navy in certain cases to mitigate or remit the loss of rights of citizenship imposed by law upon deserters from naval service), PRESIDENTIAL VETOES, 1789-1988, supra note 65, at 199.

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Roosevelt argued that the measure impinged upon the President's constitutional power under Article II, section 2 “to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”100 But instead of developing his own account of pardoning power, and explaining why it could not be delegated to a military official under the authority of the Commander in Chief, Roosevelt (somewhat inaccurately) cited the Supreme Court decision Ex parte Garland, holding that the pardoning power could not be exercised by anyone other than the president.101 A somewhat different form of deference to the courts was exhibited by Gerald Ford in his 1976 veto of a measure exempting members of Congress from local income taxes.102 The president argued that the bill was not necessary to address the constitutional “infirmity” of taxing Members, arguing that, if concerned, “Congress may present the issue to the courts for resolution.”103 In a similar vein, President Clinton vetoed a bill prohibiting federal funding for abortions on the grounds that he was advised by the Department of Justice that there was a “substantial risk” it would “be held unconstitutional” by courts when “applied to female prison inmates.”104 Interbranch veto discussions present additional evidence that members of Congress were starting to share the executive’s growing support for judicial authority and interpretive supremacy. Most 100 U.S.CONST. art. II, sec. 2.

101 Roosevelt referred in his veto message to In re Garland, instead of Ex Parte Garland, 71 U.S. 333 (1866).

102 Veto of a Bill To Exempt Congressmen From Local Income Taxes From Gerald Ford (Aug. 3, 1976), available at http://www.presidency.ucsb.edu/ws/?pid=6256.

103 Veto of a Bill To Exempt Congressmen From Local Income Taxes from Gerald Ford (August 3, 1976), available at http://www.presidency.ucsb.edu/ws/?pid=6256.

104 The prevalence of contemporary presidential veto messages referencing court authority and judicial precedent need not be an indicator of the rise of judicial supremacy per se. Presidents vetoing bills have some incentive to seek the imprimatur of judicial authority to buttress their political legitimacy even if they are not wholly committed to the doctrine of judicial supremacy. The overall picture, however, including executive deference to the courts, and the elision of executive constitutional interpretation in veto messages, suggests the rise of judicial supremacy.

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congressional override votes from this later era bypassed constitutional matters, even when constitutional issues were identified in the president’s veto messages. Thus, the Senate’s override discussions of Nixon's veto of the Communications Act contained not a single mention of constitutional or First Amendment issues in over 40 pages of debate—on a measure that limited the amount of funds candidates could spend on radio and television. Other congressional discussions triggered by vetoes made direct overtures to judicial supremacy and urged executive as well as legislative deference to the constitutional views of courts. In one such expression, Representative Nathan Kendall (R-IA) spoke out against presidents who claimed the “pretext” of having constitutional reasons for vetoing a bill.105 If a law is of “uncertain” constitutionality Rep. Kendall said, “there is a suitable tribunal organized and maintained” to look at the issue, a body “before whose arbitrament [sic] every patriotic citizen of the Republic submits with absolute unreserve.”106 As he concluded, if a law “offends against the organic law of the land, let the Supreme Court so declare.”107 As noted already, when members of Congress demonstrated some interest in debating constitutional issues raised by vetoes, these efforts were sometimes frustrated by the brevity or generality of the president’s constitutional rationale. Thus, when President Nixon vetoed a bill providing grants to rural water and sewer programs, he sought to deflect criticism of his action by claiming that a report written by his Attorney General raised a “grave constitutional question” about the bill’s intrusion upon the president's Article II authority.108 Congressional leaders attempted to secure the report, which was not included with Nixon’s veto.

As Congressman (not yet Speaker) Thomas Foley (D-WA) indicated, “repeated requests” to obtain the document had been met with silence. 109

105 49 CONG. REC. 4442 (1913).

106 Id. 107 Id. 108 Veto of the Rural Water and Sewer Grant Program Bill from Richard Nixon (April 5, 1973), available at http://www.presidency.ucsb.edu/ws/?pid=3795&st=vetp&st1=.

109 119 CONG. REC. 11682 (1973).

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“If such a written opinion exists,” Foley concluded, “the Department of Justice does not acknowledge it.”110 Fixing the Parameters of the Veto Power during the Order of Departmentalism The formal rationale accompanying presidential vetoes helps to sketch a picture of the frequency, prominence, and distinctive qualities of nonjudicial constitutional interpretation throughout the late eighteenth and much of the nineteenth century. Before the consistent rise of claims to judicial supremacy, executive and legislative figures assumed primary responsibility for surfacing and addressing important questions about the veto process through unilateral constitutional construction as well as more dynamic and contentious interbranch activity.111 Vetoes have also raised basic procedural issues since their first use.

Among other matters, these include the question of “reconsideration,” that is, the conditions under which Congress can attempt to override presidential vetoes.112 The Constitution specifies that a president must return a vetoed bill to the house that originated it, which “shall [then] enter the Objections at large on their Journal, and proceed to reconsider it.”113 But does reconsideration entail debate, an actual override vote, or simply some formal acknowledgement of the president's action and objections?

What, if any, time limitation does the Constitution place upon the reconsideration process? Can, for example, a vetoed bill be overridden during any part of a congressional session? Can Congress reconsider a bill by sending it to one of its constituent parts (such as a committee), or a proxy, or must the entire house examine the vetoed measure prior to an override vote?

For a long span of history, these sorts of problems were generally discussed within Congress, and then resolved through a number of

110 Id. 111 SPITZER, supra note 37, at 17.

112 FISHER, LAW OF EXECUTIVE BRANCH, supra note 37, at 173-176.

113 U.S. CONST. art. I, sec. 7.

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different internal legislative practices.114 On some occasions, Congress settled these issues through specific rulings by legislative leaders and floor votes to corroborate their decisions. For example, Congress ultimately claimed that the Constitution's requirement of a “two thirds” vote for an override referred to a quorum in each house, and not the entire Congress.

In addition to this rather formal parliamentary process, Congress addressed questions about the veto process through incrementally adopted legislative practices that sometimes evolved into more or less formal rules that were reexamined in light of changes in congressional priorities or political context.115 Thus, over time, Congress held that veto reconsideration did not need to take place immediately, since rushing the debate and vote would impinge upon the quality and thoroughness of the override process and inhibit Congress’s management of its own affairs.

In addition to these largely internal legislative discussions, other aspects of the process triggered more contentious interbranch debate. For example, after Andrew Jackson employed a pocket veto following a congressional recess, lawmakers objected that his behavior was “arbitrary and unconstitutional.”116 According to these critics, the president had known about their congressional adjournment in advance, and been given sufficient time to deliberate on the bill. Thus, he should have returned the bill with a signature or a veto message before Congress went out of session. Jackson vigorously defended his use of the pocket veto, and employed it five more times during his presidency, opening the door for its greater use in the future.

114 JACKSON, supra note 85, at 6-7.

115 CURRIE, supra note 71, at 115; JOSEPH E. KALLENBACH, THE AMERICAN CHIEF EXECUTIVE: THE PRESIDENCY AND THE GOVERNORSHIP 348 (1966).

116 MASON, supra note 48, at 113. While the phrase does not appear in the Constitution, pocket vetoes occur when a Congressional adjournment or recess ostensibly prevents a President from engaging in the normal veto process and returning a vetoed bill to the house that first passed it, since that house is not in session. Congressional adjournments can occur within a congressional session, between sessions, or at the very end of a Congress and they may take place sine die, without a day fixed for reconvening, or "to a day certain" with a motion or resolution which sets the next time for a meeting.

According to Article I, Section 7 of the Constitution, neither house can adjourn without the consent of the other for more than three days.

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Despite increased reliance on the pocket veto following Jackson, presidents remained aware of, and somewhat sensitive to, ongoing congressional objections regarding its use. Thus, until 1867, presidents limited their use of pocket vetoes to adjournments at the end of a congressional session (intercession adjournments) or to the end of an entire two-year Congress.117 The first intrasession veto was “the product of historical accident” during the Johnson administration, but it became a precedent which legitimated its subsequent use in the twentieth century.118 As late as 1860, however, President Buchanan felt sufficiently defensive about his use of a pocket veto that he explained that the power was needed to prevent a president from being rushed into considering legislation and thereby deprived “of the exercise of his constitutional discretion and convert[ed]…into a mere register of the decrees of Congress.”

In short, then, the somewhat complex contours of the veto power were initially filled out through unilateral constructions and interbranch debates in both the legislative and executive branches. In 1876, when President Grant attempted to call back a pair of vetoes as “premature,” Congress considered and rejected his request (even though, of course, a majority of Congress had supported the measures). The Senate objected that Grant was trying to create a new constitutional power to withdraw vetoes and held that lawmakers needed to set a clear precedent against this “improper practice” by formally declaring the president's recall request invalid and without “legal value” as one Senator exclaimed.119 When, five months later, Grant attempted another “recall” veto, he was again rebuffed.120 117 Robert Spitzer, Growing Executive Power: The Strange Case of the “Protective Return” Pocket Veto, 42 PRES. STUD. Q. 637 (2012) (hereinafter, Spitzer, Growing Executive Power).

118 Id. at 642. Only 6 of the 351 pocket vetoes exercised from Washington's presidency through Cleveland's second term were intrasession vetoes (three by Johnson; one by Harrison, two by Cleveland). The average length of these six intrasession adjournments during which pocket vetoes were used was 27 days (median: 14). Overall, the average length of intrasession adjournments during which pocket vetoes were used was 37 days (median: 35) from 1789 - 1974.

119 PRESIDENTIAL VETOES, 1789-1988, supra note 65, at 403. See JACKSON, supra note 48, at 133; MASON, supra note 48, at 55-6.

120 MASON, supra note 48, at 119.

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Judicializing the Veto Process The presence and impact of judicial supremacy—operating alongside “constitutional departmentalism” principles—is apparent in examining how contemporary presidents and members of Congress wrestle with disputes about the operation of the veto power. Just as in the past, the contemporary veto process continues to raise questions about the power’s parameters, especially in attempting to understand how the pocket veto works.121 In addressing these and other procedural questions, executive and legislative officials have continued to offer different and competing understandings of the veto’s proper purposes and procedures.

But in contrast with an earlier era of American politics, these differing views about the veto have tended to be aired, developed, and resolved with the judiciary (and specific court decisions) as an essential reference point. While the federal bench handed down only a single decision (Hollingsworth v. Virginia) with a major impact on the veto prior to the turn of the nineteenth century, subsequently, lawmakers litigated a series of issues about the veto process, beginning with La Abra Silver Mining Co. v. United States (1899).122 For example, throughout the nineteenth century legislative and executive officials shared the view that a president who wished to approve a bill had to provide his or her signature before Congress went out of session. According to the common construction, without this signature the Constitution's pocket veto provisions came into effect, and the enrolled bill was considered vetoed.

As a result, on the last day of a legislative session, presidents invariably traveled to the Capitol to approve favored legislation.123 In its La Abra ruling, however, the Supreme Court set aside prior political practice and

121 The constitutional issues surfaced in contemporary veto disputes include the following: What constitutes a constitutional “adjournment,” allowing Presidents to use the pocket veto? Can Presidents approve bills after such adjournments? Can congressional officials or proxies, as opposed to legislators themselves, participate in some aspects of the veto process?

122 Hollingsworth v.Virginia, 3 US 378 (1798); La Abra Silver Mining Co. v. United States, 175 U.S. 423 (1899).

123 SPITZER, supra note 37, at 109; ZINN, supra note 40, at 19; Fisher, Separation of Powers, supra note 5, at 68.

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decided that presidents could sign legislation within ten days of its presentment, whether or not Congress was still in session.124 The judiciary's increased involvement in the veto process obviously reflects not only judges' greater confidence in entering interbranch disputes about constitutional powers, but also legislative and executive officials’ willingness to present these questions before the bench and accept judicial authority.125 One should note that the judiciary’s modern efforts to fill in the contours of the veto power have often accepted precedents and understandings set by the elected branches.126 Thus, in Missouri Pac. Ry. Co. v. Sawyer, the Court accepted Congress’s longstanding decision that the constitutional veto required two-thirds of a quorum for an override (rather than two-thirds of the entire body).127 In a similar vein, in 1932 the Court handed down Edwards v. United States, in which it accepted the opinions of a number of Attorneys General that a President could sign a bill after the initial adjournment of a Congress.128 Notwithstanding these examples, the judicialization of the veto process has sometimes altered longstanding political practices and arguably cut against well-settled legislative and executive understandings respecting the veto's purposes and proper procedure. Moreover, the Court’s fidelity to or deviation from past executive and legislative constructions of the veto process does not alter the status of judicial supremacy per se.

Interestingly, despite the judiciary’s efforts to resolve legislativeexecutive disagreements about when the pocket veto can be issued (by insisting, for example, that Congress can designate agencies and agents to receive vetoes even when the Congress as a whole, or one house, is out of 124 La Abra Silver Mining Co. v. United States; see also LOUIS FISHER, CONSTITUTIONAL CONFLICTS BETWEEN CONGRESS AND THE PRESIDENT (2014); LAURENCE TRIBE, AMERICAN CONSTITUTIONAL LAW 265 (1988).

125 See, generally, WHITTINGTON, POLITICAL FOUNDATIONS, supra note 19.

126 FISHER, LAW OF THE EXECUTIVE BRANCH, supra note 37.

127 Missouri Pac. Ry. Co. v. Sawyer, 248 U.S. 276 (1919).

128 See also Eber Bros. Wine & Liquor Corporation v. United States, 337 F.2d 624 (Ct. Cl. 1964), cert. denied, 380 U.S. 950 (1965). See generally, FISHER, LAW OF THE EXECUTIVE BRANCH, supra note 37, at 175.

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session), many contemporary presidents have tried to circumvent these rulings, at times by emphasizing some opinions while ignoring other judicial and political precedents. Thus, Presidents George H.W. Bush, Clinton, and George W. Bush all tried to issue “pocket vetoes” even when Congress had designated a clerk to receive White House communications—a “routine” mechanism that had been approved by court decisions and been used in thousands of instances during long weekends, vacations and other congressional recesses.129 Overall, presidents since the 1970s have relied heavily on a reading of the Pocket Veto Case that justifies an expansive pocket veto—setting aside portions of the opinion that do not comport with this view, and overlooking contrary case law, historical practices, and the counter claims of members of Congress.

In addition to interpreting case law selectively, presidents have also applied the pocket veto in ways that suggest both partial deference to court rulings and independent judgments about constitutional issues. Here we see departmentalism and judicial supremacy impinging upon and interacting with one another in ways that otherwise render executive behavior inconsistent if not incoherent. Beginning with Ford, presidents have issued “protective return” pocket vetoes, declaring that they were issuing pocket vetoes but then, simultaneously, returning the bill to the house that originally passed the measure.130 These forms of pocket veto use have been weakly justified by presidents without supporting historical precedent or judicial rulings. At the same time, they have been challenged in only a limited way by the legislature: Congress simply treats these actions as regular vetoes, an outcome that leaves their constitutional status unsettled and even curiously irrelevant.131 On one hand, some of these episodes suggest the limits of judicial supremacy, and the extent to which enduring elements of the system of 129 Robert Spitzer, Op-Ed., The ‘Pocket-Veto’ Peril, L.A. Times, Jan. 8, 2008, http:// articles.latimes.com/2008/jan/08/opinion/oe-spitzer8 [hereinafter, Spitzer, The ‘PocketVeto’ Peril]; See also FISHER, LAW OF THE EXECUTIVE BRANCH, supra note 37, at 181185; Spitzer, Growing Executive Power, supra note 117; Robert J. Spitzer, The “Protective Return” Pocket Veto: Presidential Aggrandizement of Constitutional Power, 31 PRES. STUD. Q. 721 (2001).

130 Spitzer, Growing Executive Power, supra note 117, at 652.

131 Spitzer, ‘Pocket Veto Peril,’ supra note 129.

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“constitutional departmentalism” still trigger ongoing legislative-executive disputes about governing powers. On the other hand, the ways in which these disputes are (un)resolved point to the power of the “multiple orders” approach—where nonjudicial interpretation fueled by departmentalism is transmuted (and arguably distorted) by the imperfect hegemony of judicial supremacy. In this context, executive and legislative officials patch together a constitutional modus operandi from seemingly incompatible, inconsistent legal and political sources.132 Consider the following example. In a December 2007 “Memorandum of Disapproval” President George W. Bush invoked the provisions of “Article I, section 7, clause 2 of the Constitution” and his “constitutional power to ‘pocket veto’ bills” in contending that the House’s adjournment allowed him to pocket veto the National Defense Authorization Act.133 Bush additionally defended his action by citing “The Pocket Veto Case.” At the same time, he sent his objections (as he would with a regular veto) to the clerk of the House to “avoid unnecessary litigation…and to leave no doubt that the bill is being vetoed.” In other words, even an act that seemed to represent some independent constitutional decisionmaking by the president was still couched in terms deferential to courts—explicitly referencing The Pocket Veto Case and indirectly recognizing past decisions which permitted Congress to designate proxies to avoid pocket vetoes (which the House had done in this case through its clerk). Bush’s “protective return”—claiming the Defense Authorization bill was pocket vetoed while also returning it to the originating house (with an explanation) represented a confusing mix of Supreme Court precedent, selective adherence to constitutional language, and rather raw executive assertions of authority. The result leaves us with “a hybrid pocket veto process that can only give the executive more veto power than the Constitution, or common sense, would allow.”134 132 The mixed and arguably inconsistent attitudes of members of Congress with respect to their constitutional responsibilities and how much they should defer to the judiciary on questions about our supreme law can be seen in two surveys of the legislature conducted in 1959 and 1999. See Bruce G. Peabody, Congressional Constitutional Interpretation and the Courts: A Preliminary Inquiry into Legislative Attitudes, 1959-2001, 29 LAW & SOC. INQ. 127 (2004).

133 Spitzer, Growing Executive Power, supra note 117, at 649.

134 Id. at 62; see also FISHER, LAW OF EXECUTIVE BRANCH, supra note 37, at 181.

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Two (Impinging) Orders of Constitutional Interpretation What picture emerges from this narrative about the presidential veto and nonjudicial constitutional interpretation? Constitutional discussions, during a period stretching from the Constitution’s ratification to the Civil War era were frequently at the core of both veto messages and related interbranch policy debates. Over this span, executive and legislative constitutional constructions had an independent character in the sense that they were not automatically deferential to judicial opinion and authority, and employed distinct interpretive modalities such as appeals to popular opinion and the expansive constitutional visions of chief executives. Eighteenth and nineteenth century executive-legislative disputes about the veto process show the variety of ways in which questions about the power were engaged, resolved, and sometimes revisited through nonjudicial rules, precedents, and interbranch understanding.

As the nineteenth century gave way to the twentieth, and as judicial supremacy emerged as a sustained and serious competitor to departmentalism, constitutional veto messages became less politically prominent and important than in the past. From presidents Washington through Andrew Johnson, constitutional arguments featured in almost three of every five vetoes of public bills; subsequently just over one in ten bills were vetoed on these grounds. Moreover, the distinctive features and forms of executive branch interpretation have been replaced with messages often deferential to the authority of courts, at times emulating or attempting to anticipate court rulings on constitutional matters, and in other instances selectively “picking and choosing� case law to bolster a specific agenda (such as promoting an expansive pocket veto power).

Constitutional issues triggered by the veto process tend to surface today in ways and contexts unlikely to lead to prominent, sustained, public, interbranch discussion and conflict. Where once vetoes placed a range of substantive and procedural constitutional matters into the foreground of American politics, today similar problems are often framed in ways that diminish their political salience, sometimes by being cast in the rather specialized language and forums of courts, and at other times by referencing (often elliptically) the reports or conclusions of legal experts within the executive branch (rather than offering a systematic, coherent 76

view of constitutional meaning). Executive branch references to constitutional issues are sometimes insufficiently detailed to provoke any detailed or meaningful response from Congress. Stated differently, today’s veto message is not a freestanding statement of constitutional vision—in a way that it sometimes was in the nineteenth century.

As indicated, this Article does not claim that we can or should draw stark or clean historical divisions between the orders of “departmentalism” and “judicial supremacy.” Defenders of judges’ special capacity to engage and settle constitutional questions have been prominent since before constitutional ratification, and throughout our history numerous executive and legislative officials have deferred to court rulings, interpretive methods, and authority. At the same time, even with the rise of judicial supremacy and its full flourishing in the latter half of the twentieth century, contemporary executive and legislative officials still engage in constitutional analysis and offer constitutional judgments that are sometimes at odds with those made by judges.135 But these observations are consistent with the “multiple orders” approach at the core of this scholarship. Indeed, it would be surprising, in a system of separated powers as fractured and diffuse as our own, if “judicial supremacy” described more than a partial political reality. The more important point is to note that the ways in which executive and legislative officials engage constitutional questions has transformed in an environment where constitutional departmentalism competes with and abrades against the assumptions of a now robust and widely accepted doctrine of judicial supremacy.

Contributions and Further Research This Article is based on a single case study of constitutional politics. Therefore, whatever conclusions we might draw are necessarily preliminary and bracketed. Nevertheless, even the limited project set out here makes a number of contributions to existing debates. To begin with, to scholars skeptical about the effects of nonjudicial interpretation, including its purported impact on legal stability, the record marked by the 135 Peabody, supra note 132.

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veto gives an important counterexample. Over an extended span, executive veto messages (and legislative responses to the same) provided informed, politically sensitive, “practical constructions” of constitutional provisions and processes without obviously inducing confusion or instability to the rule of law and constitutional authority.

Other scholars have made similar sorts of observations about the capacity of nonjudicial officials to engage constitutional questions in a serious and conscientious manner, and have identified specific political benefits that such coordinate construction can promote.136 But this Article also points to several problem often missed by those calling for greater engagement of constitutional issues outside of courts. Constitutional interpretation by nonjudicial officials has a dynamic and evolutionary character that has not always been appreciated—presidential and executive analysis of our supreme law can assume a number of different substantive forms. This observation reminds us that we should not automatically use judicial and legal reasoning as the standard for evaluating the quality and impact of constitutional interpretation outside of courts.137 But it also underscores the need for scholars to use greater clarity in identifying precisely what forms of nonjudicial interpretation they are studying (and advocating).

Beyond these claims, this study can help identify and reflect on political problems arising from the “patterned disorder” created by our layering of multiple orders of constitutional interpretation. Generally speaking, we might imagine it to be problematic that a political system premised on departmentalism has been partly displaced by judicial supremacy, but without any corresponding amendment to the underlying constitutional structure.138 Our constitutional system of separated powers 136 CURRIE, supra note 71; FISHER, DIALOGUES, supra note 1; ZEISBERG, WAR POWERS, supra note 1.

137 Keith Whittington, Reconstructing the Federal Judiciary: The Chase Impeachment and the Constitution, 9 STUD. AM. POL. DEV. 55, 57 (1995).

138 This argument is somewhat reminiscent of Mann and Ornstein’s contention that our republic has experienced a rise of parliamentary style (divisive, homogenous) parties without any corresponding changes to our constitutional structure premised on the separation of powers and collaborative, heterogeneous parties. THOMAS E. MANN & NORMAN J. ORNSTEIN, IT’S EVEN WORSE THAN IT LOOKS: HOW THE AMERICAN CONSTITUTIONAL SYSTEM COLLIDED WITH THE NEW POLITICS OF EXTREMISM (2012).

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helps leaders (and voters) identify preeminent political tasks and goals.139 But this Article contends that the doctrine of departmentalism has been partly supplanted by judicial supremacy, and that these two “orders” frequently collide and combine in inconsistent ways. At a minimum, these developments leave us with confusing guidelines for assessing the performance of our federal leaders, not to mention the overall performance and health of the political order.

In addition to these observations, the dynamics laid out here raise the possibility that important political powers and processes that presume or require departmentalism to operate are being compromised or transformed in an era of judicial supremacy. The veto itself is only one of many elements of the separation of powers that serve as interactive, iterative, public, mechanisms for airing (and resolving) political disputes.

Arguably, without independent nonjudicial constitutional analysis as a part of these operations, our system of separated powers operates in unintended and perhaps dysfunctional ways.140 As Robert Spitzer and others have noted, the veto, for example, is not merely a negative, checking instrument. It was designed to serve as a creative, revisionary power, enabling presidents to impact the legislative process with their particular institutional concerns (such as national security) and perspectives (such as their relative institutional unity).141 To the extent that the veto had faded as a prompt for advancing the unique institutional and constitutional visions of the executive and legislative branches, important “positive” goals of the separation of powers may no longer be served as effectively.142 Among other consequences, these developments may cramp our understanding of the nature and application of constitutional values, diminish the authority and legitimacy of our supreme law, and allow courts to wade into

139 See Martin Diamond, The Federalist, in HISTORY OF POLITICAL PHILOSOPHY 659, 673 (Leo Strauss & Joseph Cropsey, eds., 1987), (“Separation of powers gives…a framework within which to press the people to seek wisdom and virtue in their rulers…[presenting] the executive and judiciary (and the Senate) as having, so to speak, a list of job specifications, qualities which are necessary to the performance of the functions and which approximate wisdom and virtue”).

140 Peabody & Nugent, supra note 7.

141 SPITZER, supra note 37.

142 Peabody & Nugent, supra note 7, at 22.

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substantive areas where they are not well-equipped to resolve disputes and forge remedies.143 These developments should not be overstated. Presidents (and legislators) still advance constitutional arguments as part of the veto process and, more to the point, they pursue many other (perhaps more effective) ways of shaping constitutional law through, for example, judicial appointments, litigation, interest group and grassroots mobilization, and legislation.144 Again, the persistence of departmentalism as a tradition of American politics and a feature of our Constitution’s design makes these continuing efforts unsurprising.

But this contemporary toolbox for influencing constitutional law does not replace older forms of constitutional conflict framing, articulation, and resolution promoted by instruments such as the veto.

First, much of today’s nonjudicial interpretation is court-centered—either adopting court language, principles, categories, and representations of constitutional history as a kind of default or as a specific strategy to help executive or legislative interests prevail in litigation. But such moves restrict the ways we think about constitutional law (as noted earlier, courts would tend to reject constitutional arguments that intertwine legal and political judgments) and curb the reach of the Constitution—since courts refuse to enter into some dispute areas (most famously “political questions”). More broadly, as Neal Devins and Louis Fisher have argued, the “absolutism” of judicial supremacy combined with judges’ focus on resolving individual, adversarial conflicts (and announcing “winner-takeall” outcomes) works against the incrementalism, compromise, and inclusiveness we normally associate with the separation of powers.145 In addition to these points, many of the alternate means presidents use today for advancing their views about the Constitution are more 143 DONALD L. HOROWITZ, THE COURTS AND SOCIAL POLICY (1977); MCCLOSKEY, supra note 14, at 13; TUSHNET, supra note 3.

144 LAWRENCE BAUM, THE SUPREME COURT (2013); STEVEN M. TELES, THE RISE OF THE CONSERVATIVE LEGAL MOVEMENT: THE BATTLE FOR CONTROL OF THE LAW (2010).

145 NEAL DEVINS & LOUIS FISHER, THE DEMOCRATIC CONSTITUTION 235 (2004); see, generally, CHARLES CAMERON, VETO BARGAINING: PRESIDENTS AND THE POLITICS OF NEGATIVE POWER (2000).

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informal and ambiguous (veto threats and the “protective return” pocket veto), and less likely to put these issues in the public eye (most litigation) or trigger ongoing discussions with the legislative branch.146 Thus, many presidents eschew constitutional vetoes in favor of so-called signing statements, in which they simultaneously enact a bill into law while identifying purportedly unconstitutional provisions the administration will not enforce.147 But a signing statement rarely occasions a systematic response from Congress (which, after all, gets to have at least part of its preferred policy enacted into law) while a veto structures and encourages legislative reaction (insofar as the Constitution’s veto provisions mandate that Congress enter the president’s “Objections” and “reconsider” them).

In other words, the shift from vetoes to other means of advancing constitutional positions reduces opportunities for creating a “constructive modus vivendi” between the branches in which the intertwining of major institutional operations can help form partnership and cooperation.148 Additional research can develop our sense of whether the dynamics observed in this project are widespread, and help to refine our judgments about whether these developments are indeed politically troublesome. More work and additional case studies would establish whether the changes noted here have analogs in other areas of political life and, if so, if they follow a similar “periodization” pattern.

146 See CAMERON, supra note 145, at 178-202; SPITZER, supra note 37, at 100-103.

147 See CHRISTOPHER MAY, PRESIDENTIAL DEFIANCE OF "UNCONSTITUTIONAL" LAWS: REVIVING THE ROYAL PREROGATIVE (1998); Christopher S. Kelley and Bryan Marshall, Going it Alone: The Politics of the Constitutional Signing Statement, 91 SOC. SCI. Q 168 (2010); Christopher S. Kelley and Bryan Marshall, Assessing Presidential Power: Signing Statements and Veto Threats as Coordinated Strategies, 37 AM. POL. RES. 508 (2009).

148 Cf. ZEISBERG, supra note 1; Peabody & Nugent, supra note 7. It is interesting to note in this context Michael Bailey and Forrest Maltzman’s contention that after a period of deferring to Congress on legal grounds, the Supreme Court of the United States became increasingly strategic after the 1980s, the period that Larry Kramer associates with the modern entrenchment of judicial supremacy. In other words, there is tantalizing evidence that the rise of judicial supremacy may have altered the power dynamics of the separation of powers. See, respectively, MICHAEL A. BAILEY & FORREST MALTZMAN, THE CONSTRAINED COURT (2011) and KRAMER, supra note 1.

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Finally, even if we determine that independent executive and legislative constitutional interpretation is a public good, and identify historical circumstances where it has thrived, we need additional theorizing and study to determine how or whether we can recapture this behavior. This last problem is particularly thorny (and perhaps hopelessly elusive) given our dramatically changed political and legal environment.

As argued throughout this piece, departmentalism principles have not disappeared from our constitutional order today, but they operate in fundamentally different ways given not only the entrenchment of judicial supremacy but any number of other features of today’s political order such as the rise of the permanent campaign and increased partisanship.149 It remains an open question whether the kinds of nonjudicial interpretation (and related institutional practices) seen in our early history can still be evoked.

149 David Fontana & Donald Braman, Judicial Backlash or Just Backlash? Evidence from a National Experiment, 112 COL. L. REV. 731 (2012).

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PHONE CALLS CREATING LIFELINES FOR PRISONERS AND THEIR FAMILIES: A RETROSPECTIVE CASE STUDY ON THE CAMPAIGN FOR PRISON PHONE JUSTICE IN MINNESOTA DR. ARTIKA TYNER, MARGARET HIGGNS, DOMINIKA MALISZ, ELYSIA NEWTON, NATALIE PETERSON, AND SHANNON WEST Abstract: This article explores the impact of telephone communications on prisoners and their families. Families across the nation face the burden of choosing between remaining in contact with their incarcerated loved ones and meeting their basic budgetary needs due to the high cost of a prison phone call. This article seeks to critically examine this phenomenon and its impacts on families and children. Through the application of qualitative research, it provides a glimpse into lived experiences of those impacted by the high costs of prison phone calls.

Keywords: prison phone justice, civil rights, human rights, community organizing, public policy advocacy, social justice, children and families, reintegration/re-entry, mass incarceration

Prison phone justice. The term itself may not signify much at first glance; however, prison phone justice is a pressing civil and human rights issue. “Prison phone justice” broadly refers to the high costs of phone calls that are made to and from prisoners and their families.1 Phone companies charge exorbitant rates due to a bidding process that occurs between several competing companies and prisons. When a phone company enters into a contract with a prison system, the company provides commissions to the respective prison. These commissions serve as incentives to pass on the high costs of prison phone calls to prisoners and their families. The ensuing cost of phone calls creates tremendous barriers for these family members to remain in contact with their incarcerated loved ones. Families must often bear the burden of choosing between accepting a loved one’s call from prison and meeting basic budgetary needs.

1

“Phone rates in prison do not reflect the cost of service. To the contrary, telephone companies have put in place commissions and call-markups that increase the cost of calls to and from prison by 60 percent.” Natalie Peterson, Dr. Artika R. Tyner & Shannon West, Dollars and Sense: The Case for Prison Phone Justice, INSIGHT NEWS (March 8, 2013, 14:14), http://www.insightnews.com/news/10405-dollars-and-sense-the-case-forprison-phone-justice (last visited December 15, 2013).

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The Campaign for Prison Phone Justice (“Campaign”) is fighting for change and striving to provide equal access to affordable phone calls for all prisoners. Research has demonstrated that regular communication between prisoners and their loved ones reduces recidivism and promotes successful re-entry. Therefore, fair rates on phone calls will help to promote strong families and safe communities.

Background Across the United States, prisoners are incarcerated an average of 100 miles from their families, making phone calls the only feasible form of contact for many.2 Therefore, the prison phone call industry needs additional regulation. Most states are under commission-based contracts with phone service providers; these contracts provide commissions to the state and drastically increase the cost of regular phone contact.

Minnesota’s contract with Global Tel*Link generates 49% in commissions ($1.44 million dollars).3 The average cost for three 15 minutes collect phone calls per week in Minnesota would amount to $19.35 for intrastate calls.4 It is vital for prisoners to maintain routine contact with their families and communities in order for them to thrive upon their release.

Staying in contact with a support system, such as family members, has shown to decrease the likelihood of recidivism. This support network is essential in successfully reintegrating prisoners into society by helping to meet their basic needs, such as obtaining shelter, and strengthening connections that assist in successfully completing parole. 5 While prisoners

2

Nancy G Lavigne ET AL., Broken Bonds: Understanding and Addressing the Needs of Children with Incarcerated Parents, URBAN INSTITUTE JUSTICE POLICY CENTER 4 (Feb. 2008), http://www.urban.org/UploadedPDF/411616_incarcerated_parents.pdf (last visited January 29, 2015).

3 John E. Dannenberg, Nationwide PLN Survey Examines Prison Phone Contracts, Kickbacks, PRISON LEGAL NEWS, 17 (Apr. 2011), available at https://www.prisonlegalnews.org/includes/_public/_issues/pln_2011/04pln11.pdf.

4 Phone rates extrapolated from Prison Phone Justice, https://www.prisonphonejustice.org/state/2012/MN/ (last visited Jan. 29, 2015).

5 Creasie Finne Hairston, Family Ties During Imprisonment: Do They Influence Future Criminal Activity? 52 FED PROBATION 48, 49-50 (1988) [hereinafter Hairston, Family Ties During Imprisonment] (containing an overview of studies on family contact and recidivism).

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and loved ones suffer the emotional toll of decreased contact with their loved ones, children are often the silent victims. Currently, there are over 15,000 children with at least one incarcerated parent in Minnesota.6 These children often exhibit emotional issues such as social withdrawal and behavioral problems at school. The best way to mitigate these issues is through maintaining regular contact between the parent and child during the incarceration period.7 This Article examines the impact of the high costs of prison phone calls by discussing the experiences of several men who have served sentences of varying lengths in different Midwestern prisons. Part I introduces the research questions: how contact or a lack of contact impacts prisoners, the prison system, and prisoners’ loved ones. Part II outlines the qualitative research framework of the case study that informed the methodological approach of the survey research and listening session. Part III compiles the results of the survey while Part IV provides the data derived from the listening session. Part V explores other issues that demonstrate the necessity of having access to affordable prison phone calls. Finally, Part VI offers recommendations for policy change in Minnesota.

I. PURPOSE OF RESEARCH As part of the Community Justice Project’s vigorous efforts to reform the prison phone call system in the state of Minnesota, we sought to gain a fuller understanding of how the current phone call rates impact prisoners and their loved ones. Knowing the numbers and statistical data is one thing, but we were determined to understand prison phone justice on an individual level in order to make the data come to life. In order to do this, we conducted a listening session with members of the Power of People Leadership Institute. The Power of People Leadership Institute members, or POP guys, are a diverse group of men who were incarcerated in various midwestern prisons. Our experiences with these men expanded

6

Families with Incarcerated Parents Fact Sheet, MINNESOTA SECOND CHANCE COALITION (Feb. 2010), available at http://www.mnsecondchancecoalition.org/pdf/FamiliesOfIncarcerated.pdf [hereinafter Families with Incarcerated Parents].

7 Lavigne, supra note 3.

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our knowledge pertaining to the negative impact of high phone call rates on prisoners, their loved ones, and the community.

II. RESEARCH METHODOLOGY This research study is informed by the principles of qualitative research. Qualitative research provides a methodological framework for exploring the questions of how contact or a lack of contact impacts prisoners, the prison system and prisoners’ loved ones as well.

To further our understanding of these issues, we first held a casual, introductory meeting to get to know the members of the Power of People Leadership Institute. After becoming acquainted with the group and listening to their experiences, we returned two weeks later to conduct a listening session. We began the session with the distribution of a survey (see Appendix). This survey aided us in compiling basic demographic information of the group. Fourteen group members participated in the survey. Subsequently, we facilitated a discussion related to the impact of phone contact with loved ones from a list of prepared questions. These questions were based on our prior research on prison phone issues and the stories we heard in our initial introductory meeting. We recorded the responses from the two-hour discussion, in which twenty-two members participated. This compilation includes the insightful information we gathered from the first meeting, the survey, and the listening session.

III. SURVEY: DEMOGRAPHIC OVERVIEW AND REFLECTIONS ON THE IMPACT OF PRISON PHONE CALLS A. Demographic Information The demographic backgrounds of the listening session participants were diverse in categories ranging from age to length of incarceration.

The following section includes an overview of the participants’ backgrounds and their general feedback related to the impact of prison phone calls on prisoners and their families.

Age: At the time of the listening session, all of the participants were between the ages of 21 and 65.

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Race/Ethnicity: The majority of the survey participants (64 percent) were African American. Whites, Asian Americans, and American Indians were also represented within the group.

Gender: All participants were male.

Zip Code: The participants came from a variety of Minnesota zip codes. The most frequently referenced zip code was 55411 (Minneapolis) and the second most was 55104 (St. Paul).

Location of Incarceration: The participants had been incarcerated in a variety of prisons in the Midwest with several participants listing multiple prisons due to transfers.

Age at Beginning of Incarceration: Most of the participants were between the ages of 21-26 or 36-45 at the time of their first incarceration. All of the participants were younger than 56 at the time of their first incarceration.

How long incarcerated: The length of incarceration varied from less than one year to more than ten years.

Loved ones with whom the prisoners attempted to stay in touch: Many of the participants indicated that they tried to stay in touch with multiple people during their incarceration. Commonly listed relations included children, significant others, parents, grandparents, aunts, uncles, cousins, support network, and friends. The majority maintained a special desire to stay in touch with their parents and children.

Distance from loved ones: During their incarceration, the participants were between 0 to 300 miles from their loved ones. The average distance was 100 miles.

Contact by telephone: All participants used the telephone to stay in touch with loved ones during their incarceration.

Times a Month/Phone: Several participants reported only having telephone contact once or twice a month with loved ones. However, a sizeable portion were able to utilize telephone contact eight or more times with a few having daily or every other day phone contact.

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Telephone Costs: Participants indicated that costs of local and long distance calls ranged from under $5 to $20.

Average Length of Phone Calls: The majority of the participants stated the average length of their phone calls ranged between 11-15 minutes.

B. Reflections on the impact of telephone communication for prisoners The second half of the survey focused on the participants’ reflections regarding the impact of the high cost of prison phone calls and the frequency with which they were able to remain in contact with their loved ones. Participants were asked several questions including: if they were able to contact loved ones as often as they wanted, if phone contact was limited, the reason for the limitation, whether they received any benefits from frequent communication with their loved ones, and what those benefits were. Participants were then asked to indicate if they agreed with the following statement: “The cost of prison phone calls made it hard to remain in contact with my loved ones while I was incarcerated.”

Contact as much as wanted: An overwhelming majority (78 percent) of the participants said they did not have as much phone contact as they would have desired. Only two of the fourteen survey participants were satisfied with their amount of contact.

Why contact was limited: The two main reasons the participants gave regarding their limited contact included: 1) issues with affording the costs of the phone calls based on their prison wages; and 2) financial burdens on their families forcing loved ones to deny the calls. Several participants also noted that they used letters to supplement the phone contact that they were able to achieve.

Statement about cost making it difficult to remain in contact: Most of the participants strongly agreed with the previously mentioned statement, several agreed, one was neutral and one disagreed.

Benefits of remaining in contact: §

“You feel like a person, not an object.”

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§ § § §

“Support, letting your family know that you are okay and not to worry.”

“I lost a family member and needed my family love during a hard and trying time.”

“Being able to talk with the people who know you the most and the ability to feel loved.”

“If you nurture a plant, it grows. If you comfort a loved one incarcerated, it encourages his awareness of being loved.”

IV. LISTENING SESSION RESULTS A. Impact of Telephone Contact and Costs on Prisoners and the Prison System The anecdotes shared at the listening session illustrated the impact of telephone contact on the emotional health of prisoners, as well as their access to resources critical to physical health and successful completion of parole/probation. In addition to the negative psychological and physical costs to the prisoners, limited phone contact and high phone rates create a financial burden on the state through the creation of security problems, the extension of sentences, and the increase of recidivism. i. Emotional Impact of Prison Phone Calls Several of the men spoke about phone contact as the best preventative measure against the despondency many prisoners feel. As one young man phrased it, “When you are on the inside, you start to feel like nobody cares about you” (emphasis in original). Staying in touch with loved ones through telephone communication allowed prisoners to retain some measure of hope. One member of the group described the telephone as “[their] lifeline” to everything outside of the prison. Another member summarized the importance of phone contact by stating, “Hearing that voice that says they love you is your lifeline.” Yet another young man described his connection to the outside as important as a “fistful of gold.”

Because contact to the outside is so vital, its absence is not only strongly felt but also painfully realized. Lack of phone contact takes a decided toll on the emotional health of those who are incarcerated.

Without contact from the outside, members reported feelings of despair,

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anger, and “me against the world” attitudes. Prisoners who do not have much contact with others outside of prison experience heightened feelings of despair and anger. Participants noted that the lack of phone contact proves especially taxing for younger prisoners, who have been raised on email and cell phones and are unable to fill that void through letter writing.

Many members of the group noted that adjustment to prison life can be especially difficult for men in their teens and twenties. The lack of meaningful contact could thus play a drastic role for younger prisoners during their adjustment to prison.

One young man shared a story that supported this notion. The man was incarcerated at age nineteen and had received little family contact during that time. He described how he became more and more “animalistic” during his incarceration. The lack of contact had such an impact on him that, upon his release, he felt he could no longer connect to the outside world. He committed another offense a few months later so that he could go back to the environment he knew. Another group member saw a similar situation occur to another prisoner. He recalled watching the progression of behavioral changes of a younger inmate who was adjusting to a lack of contact with the outside world. The young man took to walking around the prison, fists clenched and full of rage.

Multiple members expressed concern that many of those in prison have difficulty reading and writing. This leaves telephone calls as the only feasible means of communication for many.8 Though one of the older group members expressed a preference for letters, a strong connection between illiteracy and generational dependence on other means of communication results in less letter-writing. Many prisoners rely on phone calls as their only reliable means to stay in touch with those they love.

Lack of contact may also directly affect the disintegration of a prisoner’s role in his family, which can heighten his already precarious emotional state. Two members of the group described how members of their families had passed away during their period of incarceration.

Unfortunately, they did not learn of the deaths until months—sometimes

8

In the United States adult prison system, "70 percent of prisoners fall into the lowest two levels of reading proficiency (National Institute for Literacy, 1998)," https://www2.ed.gov/pubs/startearly/intro.html (last visited Jan. 29, 2015).

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years—later. One member narrated the pain he experienced when he was unable to remain in contact with his great-grandmother, who had raised him. While he was incarcerated, she suffered an illness that ended her life.

Other group members found it difficult to explain their problems with maintaining consistent contact to loved ones outside of the prison.

Children especially had a difficult time understanding why the phone calls were such a financial burden. The members recalled that many of their loved ones perceived the lack of contact as a sign that their incarcerated loved one no longer cared about them. The deterioration of a prisoner’s relationships with his or her family and other loved ones can prove to have a substantial impact on his ability to access resources and to transition successfully to life on the outside. This creates barriers to establishing community connections, obtaining housing, and securing employment. ii. Impact of Telephone Contact on Reintegration and Recidivism Maintaining relationships through regular contact can also be critical to how well a prisoner fares upon release. Studies have shown that maintaining contact with an outside support system, such as loved ones and family members, decreases the likelihood of recidivism for prisoners.9 These contacts help prisoners successfully reintegrate into society by meeting their basic needs, such as obtaining shelter, and strengthening their community connections. A Florida study examined the experiences of 7,000 Florida state prisoners and found that more frequent contact with loved ones drastically reduced their rates of recidivism. 10 Furthermore, even those who did reoffend took a longer time to do so if they had more frequent contact with their outside support system while incarcerated.

Phone calls are one of the most accessible ways for friends and families to remain connected, especially in light of the generational and literacyrelated barriers.11 One group member, with the agreement of several others, described the transition period when leaving incarceration. He explained it

9

Hairston, Family Ties During Imprisonment, supra note 6.

MINN. DEP’T OF CORR., THE EFFECTS OF PRISON VISITATION ON OFFENDER RECIDIVISM, 8-9 (2011), available at http://www.doc.state.mn.us/pages/files/largefiles/Publications/11-11MNPrisonVisitationStudy.pdf.

11 Hairston, supra note 6, at 49–50.

10

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as a time of heightened vulnerability and uncertainty. There is a crucial need to make arrangements and, without these solid plans, a person can easily head down a path of crime. Multiple members explained that the relationships they had nurtured during their incarceration through regular phone contact helped them to arrange housing and provided a support system upon release.

Additionally, with the two different kinds of release (personal recognizance and standard release), there are different rules regarding post-release accommodations. For personal recognizance, a prisoner will not be allowed to leave until he has arranged housing that meets with the approval of the parole board. If a prisoner is unable to find approved housing, he will remain in prison for an undetermined amount of time, at continued expense to taxpayers. One member mentioned how his friend spent an extra four months in prison while trying to find housing suitable for approval by the parole board. Another described how he had remained in prison for a full year beyond when he first became eligible for personal recognizance discharge. Contact with loved ones is equally important in standard release as in personal recognizance. One member expressed distress over his recently released nephew who lost contact with those who might have provided for him after his release. This was a direct result of the nephew’s inability to afford phone calls and his difficulties in scheduling calls with loved ones during the times that he had access to a telephone. When the nephew was released, he spent all of his discharge money on hotel fees, even though he had loved ones who could have helped him. The nephew has now run out of funds and the group member concluded that his nephew had probably already fallen in with a bad crowd.

In comparison, another member professed that, through months of regular phone contact he was able to rebuild relationships with friends, which resulted in a secure place to live upon his release. He stated that without this steady connection, he would not have had any feasible options for a place to stay upon his release. Phone contact proves essential for those making a smooth transition back into their communities and building a record of success.

The participants’ experiences in transitioning from prison life back into society display that lack of telephone contact can: 1) create barriers to reintegrating into one’s community and family; 2) raise costs to the state

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by extending the incarceration of those eligible for personal recognizance discharge due to one’s inability to arrange housing; and 3) increase the chance of recidivism for those on standard release who are unable to find a stable home. Telephone communication not only improves the emotional well-being of prisoners, but also eases the fiscal burden of incarceration.

B. Impact on Loved Ones In addition to the effects phone contact has on prisoners, family members and loved ones are also affected by a lack of phone contact. For instance, children are often the silent victims of their parents’ incarceration. There are over 15,000 children with at least one incarcerated parent in Minnesota.12 Numerous studies have shown that children of incarcerated parents are more likely to be socially withdrawn and to have a variety of issues both at home and at school.13 The same studies have shown that the best way to mitigate these challenges is to allow a parent and child to maintain contact during the incarceration period.14 Unfortunately, the high cost of phone calls makes it difficult for many loved ones to stay in touch, resulting in strained relationships and difficult budgetary concerns for prisoners and their loved ones. i. Impact on Adult Relatives A common theme among the listening session participants, in discussing the impact of telephone contact upon their incarceration and transition periods, was the hardships they faced while maintaining or reestablishing relationships with their loved ones. One man, who was incarcerated for 23 years, explained the strain of his incarceration. During his time in prison, the man had limited contact with his great-grandmother, his wife, and his two young children. His great-grandmother especially suffered from the amount of limited contact; she had very little communication with her great-grandson and suffered from severe illness toward the end of her life. Another relative in the man’s family strongly believed that his lack of contact with her had worsened her condition. The man’s wife also had a difficult time understanding all of the obstacles that

12

Families with Incarcerated Parents, supra note 7.

Lavigne, supra note 3, at 7-10.

14 Id. at 10-12.

13

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he had to overcome to have more telephone contact. This misunderstanding created a strain on their marriage.

Two other members expressed how hard it was to make budgetary decisions relating to the costs of phone calls and to explain those choices to their loved ones. One man was supposed to call his ailing grandmother on a Tuesday morning, but delayed the call because he needed to purchase basic necessities from the commissary/canteen. When he called at the end of the week, he was devastated to find that his grandmother had passed away on the day he was supposed to call. He had missed his last opportunity to speak with her. As he recalled the incident years later, he still felt guilty over the choice he made and wished that the high costs had not created a barrier to saying good-bye to an important person in his life.

Another member recounted how he had to choose between making calls to his girlfriend and attaining basic needs such as soap. Even harder was explaining the situation to his girlfriend who did not understand why he was forced to make difficult budgetary decisions that limited his contact with her.

Yet another member was currently working through the incarceration issues of his younger brother. Although his brother was struggling with his incarceration and yearning for family contact, the member was unable to afford the collect charges. He was eventually forced to tell his wife that if she continued to accept the charges, they would be forced to make budgetary sacrifices that would negatively impact their lives.

The cycle of incarceration and its effects on loved ones continues for many of the men in the group. When asked how many of the men now have an incarcerated child or grandchild, 25 percent raised their hand. One man conveyed guilt regarding his lack of money and his consequent inability to accept phone calls from his incarcerated sibling. Another member described how he was preparing to help his nephew upon his nephew’s release, but could not afford to accept his nephew’s collect calls.

The member explained how it was impossible for him to prepare for his nephew’s release and support his transition back home. The two had completely lost contact. ii. Impact on Children and Other Younger Relatives

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Many group members also spoke about the struggles they faced with maintaining contact with their children and younger siblings. One described his strong feelings of guilt over becoming the stereotypical absent father while he was incarcerated. He had to make the difficult decision between putting food in his stomach and reestablishing a relationship with his children upon release. Another man recalled how he had to save all of his prison wages for a new pair of shower shoes, because the standard-issue ones were too small for his feet. He developed a severe case of athlete’s foot that pained him when he had to wear the small shoes.

The man was forced to skip several phone calls to save for the shoes. His family later told him that his lack of phone contact made them feel abandoned and unloved.

One of the men expressed his concern about the hardships young children face from a strained relationship with a parent they rarely see or hear from. Another added that the lack of contact causes children “a lot of grief and pain.” One potent story came from a man who had two sons born shortly before his incarceration. One of his sons lived within the local call area while contact with the other required a long distance phone call. The man could afford much more contact with the local son, but not with the other child, because of the difference in cost between local and long distance calls. To this day, the man has a much stronger relationship with the son he kept in touch with more frequently. He attributes the strained relationship with the son who lived the furthest distance directly to the high cost of prison phone calls.

One man who was incarcerated when his son was still young felt a sense of detachment with his son due to the long period without contact.

When he finally did establish phone contact with his son, he was so overwhelmed with emotion that he would hang up whenever his son asked him for something. Many members that were unable to have regular phone contact expressed how challenging it was to reconnect with their children after their release. By the time the fathers were released from prison they often found that their children’s “hearts [had] hardened” from a lack of frequent, meaningful contact.

Participants further described the challenge of remaining in contact with other younger relatives, such as siblings and nieces and nephews.

One man explained how his school-aged siblings struggled with his

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incarceration. Without being able to talk to one another, his siblings were unable to understand his situation. Throughout his incarceration, the man lacked the ability to continue to have an active role in their lives. The sibling’s reactions ranged from anger, to depression, to confusion and brought lasting problems to their relationships.

The members’ examples of how lack of contact has negatively impacted their loved ones demonstrates that the high rates of phone calls serve as another layer of punishment for the prisoner, as well as for those that play an important role in the prisoner’s life. Numerous studies have assessed the impact of parental incarceration and the resulting absence on the lives of children. These negative effects create financial burdens to the state through referrals to the child welfare system, school system, and later on in the prison system.15 The current high costs of phone calls threaten both the well-being of prisoner’s families and the state.

V. OTHER CONSIDERATIONS The high rates of telephone calls impact not only the relationships between prisoners and their families, but also affect other areas of their lives, ranging from access to necessary medical care to consumer protection.

A. Security Issues The significance of telephone contact to the lives of prisoners can make telephone access a major security issue in prisons. Members shared that fights often erupt around the telephone, as prisoners desperate for a few minutes of contact become enraged when other prisoners stay on the phone beyond an allotted amount of time. One member described how several prisoners would purposefully cause fights or create other security problems, hoping they would get transferred to facilities where they could place local (and therefore cheaper) calls to their loved ones. The tremendous value of contact to the outside also makes phone calls a kind of currency, with many men trading meals for phone calls. This value further translates into a serious security risk, as many prisoners try to steal others’ Personal Identification Numbers in order to use someone else’s

15

Lavigne, supra note 3, at 7-12.

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funds to make their own calls. The smuggling of cell phones into prison facilities also poses a heightened security risk.17 Therefore, lack of access to phone calls can create even greater animosity and lead to more violence within the prison population.

B. Access to Legal and Medical Services In addition to emotional support, prisoners often rely on their contacts from the outside, such as family, friends, and their community, for other forms of assistance. One such example of this stems from the challenges prisoners face in trying to seek and maintain legal services.

One member of the group described spending $3,700 on phone calls to coordinate his appeal. That spending included costs associated with contacting his attorney—contact that was crucial to engage in fact investigation and gather evidence. The current rates for phone calls create enormous obstacles to prisoners’ abilities to attend to their own legal issues. The high rates of calls place a burden on the state by driving up the cost of representation for public defenders acting on behalf of incarcerated defendants.16 Some public defenders spend more than $100,000 a year accepting collect calls from prisoners.

Multiple members of the group described the importance of contacts on the outside for securing necessary medical services. One young man had a plate in his head, which had become infected and required immediate surgery. For an extended period of time, prison health professionals refused to provide the needed treatment and the man’s condition continued to deteriorate. Finally, his girlfriend was able to exert enough pressure on various Department of Corrections officers to ensure the prisoner received the surgery he needed to replace the plate and quell the infection. If the prisoner had not been able to contact his girlfriend through telephone calls and update her on his condition, his situation may have proved fatal. Another group member explained how his son helped him get necessary medical attention for his back. Another described how his uncle became seriously ill in prison but could not afford the calls essential to maintaining the relationships necessary to rally the requisite

16

Erin Fitzgerald, Cell 'Block' Silence: Why Contraband Cellular Telephone Use in Prisons Warrants Federal Legislation to Allow Jamming Technology, 2010 WIS. L. REV. 1269, 1269 (2010).

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support to secure his medical release. The uncle passed away in prison, just a few days after finally receiving surgery.

C. Consumer Issues Aside from their dissatisfaction with the exorbitant phone call rates, many prisoners and their loved ones experienced other frustrations with the actual telephone service provided in prisons. Several group members agreed that the services left much to be desired; members described frequent dropped calls, a deteriorating connection in the last minutes of a call, and an arbitrary blocking of numbers. These claims are substantiated by the consumer complaints page for Minnesota’s sole provider of prison phone services, Global Tel*Link. Global Tel*Link’s complaint page contains dozens of grievances surrounding these issues, in addition to complaints of poor customer service and erroneous charges.17 Thus, the current contract between the state of Minnesota and Global Tel*Link not only disadvantages prisoners and their families by driving up the cost of calls but also by providing them with substandard service with no other options for phone calls services.

VI. RECOMMENDATIONS FOR CHANGE There are currently multiple ways to improve the prison phone situation in Minnesota. All of these involve eliminating or reducing the commission-based contract system, in which phone companies offer a commission to the state from the profits on each call. This serves to drive up the price of calls between companies competing for the state prison phone contract. Eliminating or reducing these commissions has drastically reduced the rates of calls in twelve other states, including New York and California.18 To achieve justice in the prison phone systems, efforts must be focused on both the interstate and intrastate remedies. Interstate calls fall under the auspices of the Federal Communications Commission (FCC). Recently, the FCC voted 2-1 to reform interstate phone rate

17

Global Tel*Link, Consumer Complaints and Reviews, CONSUMER AFFAIRS, http://www.consumeraffairs.com/cell_phones/global_tel_link.html (last visited Nov. 28, 2012).

18 Dannenberg, supra note 4, at 17.

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policies.19 The recent FCC ruling will aid in ensuring that the costs of prison phone calls are fair and reasonable. Prison phone call rates will be capped at 21 cents per minute for debit or prepaid cards, and 25 cents per minute for collect calls.20 This ruling will create access to affordable prison phone calls for millions of family members to remain in contact with their incarcerated loved ones across the nation.

However, there is still a need for reform at the local level (in Minnesota state prisons and county jails) to address the high costs of intrastate calls. Minnesota advocates and their national allies are working together to raise awareness and promote policy reform with the goal of promoting strong families and safe communities.

19

Dr. Artika R. Tyner, A long time coming: The future of prison phone justice reform, INSIGHT NEWS (Sep. 3, 2013, 11:24AM), http://www.insightnews.com/news/11239-along-time-coming-the-future-of-prison-phone-justice-reform (last visited December 15, 2013).

20 Andrea Jones, Prison Reform Advocates Speak Up for the Voiceless, ROLLING STONE, Aug. 19, 2013, http://www.rollingstone.com/politics/news/prison-reform-advocatesspeak-up-for-the-voiceless-20130819 (last visited December 14, 2013).

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