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The 14th Amendment and Deference to Congress

I found the posts by Joshua Hawley, John Harrison and Kurt Lash on Congress’s authority to interpret the 14th Amendment to be of interest. My view has long been inclined towards the view that Congress is not owed deference as to its interpretation of the meaning of Section One of the Amendment.  I do agree, however, that Congress may be owed deference as to whether the means it uses to implement section are appropriate under section five. But my understanding is that Hawley believes that Congress should receive deference as to both issues.

While I am therefore sympathetic with the criticisms by Harrison and Lash, I do feel the obligation to note one argument in favor of conferring deference on Congress as to the meaning of Section One.  It has been argued that the Framers’ generation believed that Congress was entitled to deference when interpreting the Constitution.  If that were true, and if that view continued to be held when the 14th Amendment was enacted, then one could argue that Congress also was entitled to deference as to its interpretation of Section One.

I should say  that I am skeptical about the possibility that the Congress enjoyed deference as to it’s interpretation of the Constitution at the time of the Constitution’s enactment.  But I do acknowledge that there is some evidence that would support that  view.

Reader Discussion

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on October 06, 2013 at 00:25:28 am

Mike--

I would profit much from reading the historical case to which you allude in your final paragraph, above. I hope you will find time, at some point, to share it; it raises an interesting and profound question that is, to my knowledge, not well studied at least by mainstream historians. I suspect that producing the scholarship amounts to a non-trivial amount of work, but it is something that I at least would find both interesting and useful.

Well wishes,
Kevin

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Kevin R. Hardwick
on October 06, 2013 at 11:18:20 am

Here is something I posted in response to Mr Harrison for what it is worth:

You assert:
Marshall’s argument rests on an assumption about the difference between judicial and legislative power that is not expressed but that is sound. The essence of judicial power is the final resolution of concrete legal disputes. (yes, but is this not limited to cases in Law and Equity?) Final resolution means that a judgment stands even if the legal conclusion on which it rests is erroneous. Congress has no such power with respect to legal questions, but not because the courts have a special responsibility to interpret the Constitution. Rather, Congress cannot bind others in that fashion because legislative power is not judicial power. Congress’ policy judgments are binding insofar as they are reflected in statutes, but nothing about the power to legislate entails that legal conclusions reached in the process of legislating are authoritative. (Moreover, it does not necessarily follow that such “finality” which may be suitable for ‘law and equity” should be applicable when dealing with legislative actions and the peoples will as expressed through their representatives).
It appears that your argument rests upon the assertion of the “finality” of judicial opinion, irrespective of the validity of the conclusions reached in proffering those opinions while simultaneously denying to the legislative branch a similar deference. Where is such authority granted to the Court?
Let us look at what Hamilton, who, while allowing for Judicial Review, asserted in Federalist 78:
“Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislative declared in its statutes, stands in opposition to that of the people declared in the constitution, the judges ought to be governed by the latter, rather than the former.”
Or Jefferson post Marbury v Madison:
“You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. . . . The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.”
And is that not the very problem we confront today?
We must remember that this was a constitutional structure intended to limit government accretion of power and the consequent loss of the people’s liberty. The people were viewed as the ultimate grantors of governmental power. It must also be remembered that in this scheme, the Legislature was to be the embodiment of the peoples will (one chamber more so than the other). Under such a scheme how can it be that an unelected branch, unaccountable via democratic election, can be seen to be the “Final” arbiter of the peoples Constitution and will.
Your argument may suffice in a strictly “legalistic” sense, but to amend an earlier phrase, (“it is a Constitution we are expounding”), “It is a Representative Republic we are expounding.” Consequently, we need not yield our ultimate power to the “penumbra of emanations” conjured up by clever legal minds.

Also a follow on comment:

An example of where and why the court should stay out of areas other than Fundamental Liberties is the Legal Tender Cases as discussed below:

http://www.libertylawsite.org/liberty-forum/issuing-an-existential-challenge-to-the-federal-reserve/

Now we can safely say that the Court feels it neither needs neither competence NOR authority to decide any old thing it wants!!

take care
gabe

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gabe
on October 07, 2013 at 12:30:27 pm

I am curious also Kevin w/Mike's last sentence in his last paragraph. Evidently, he does have that answer. Hopefully, Mike will give us his thoughts regarding the remark.
Respectfully, John

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John E. Jenkins
on October 08, 2013 at 15:14:54 pm

The scholarship that discusses the argument for deference is not publicly available yet. But there is an old article -- James Bradley Thayer's 1893 Harvard Law Review article, “The Origin and Scope of the American Doctrine of Constitutional Law” (7 Harvard Law Review 129 (1893)) -- that does cite to some early cases suggesting that the Framers might have believed in deference. (Some of the article relies on nonhistorical arguments and I am not referencing that part of the article. Only the reference to historical arguments.)

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Mike Rappaport
on October 08, 2013 at 16:44:36 pm

Mike:
Over at SSRN (see: ssrn-id1678203.pdf) a Mr McConnell argues that positive law passed by a duly empowered legislative body can override those "reserved " natural rights and that the courts have generally upheld these enactments of positive law.
By implication, does this not involve some deference to the legislature?
I know that it is not quite what folks may have had in mind here - but in a very real sense it does involve a constitutional interpretation by the legislature?

Look forwar to the article

take care
gabe

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gabe
on October 09, 2013 at 12:38:35 pm

Gabe, that was an interesting reply to Mr. Harrison. I am working on a response also. In part of your response you mentioned: “Final resolution means that a judgment stands even if the legal conclusion on which it rests is erroneous.” I thought you might like to read something interesting regarding how the court answered at least one piece of their history regarding their ‘final resolution (construction) and erroneous’: Erie R. R. Co. v. Tompkins, 1938, in its reference to Swift v. Tyson. The judgment of the court overturned their one hundred-year construction of Swift v. Tyson by declaring ‘that the construction given to it by the court was erroneous. “The new rule provided that federal courts do not have the power to formulate their own rules of law. The federal courts must apply appropriate federal statutes in diversity cases. When there is no federal law to resolve the question in a lawsuit, they must follow the law of the state that is involved. That includes state statutes and controlling decisions made by the highest court of that state.”
Whether we are historians, scholars, or what have you – we see the federal court(s) randomly over-turning, returning, and revising ‘stare decisis’ cases well settled some many, many, years ago. (which I would be glad to list if one has a notion of inquire.) Respectfully, John

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John E. Jenkins
on October 09, 2013 at 22:14:34 pm

Thank you Mike for that information.
Respectfully, John

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John E. Jenkins

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