More On The Eternal Presence Of The Era For Tarification

Is it unconstitutional for Congress to criminalize taxation evasion (or fifty-fifty to a greater extent than certainly, lying to an F.B.I. agent equally was done yesteryear Martha Stewart)?  The reply is sure aye if, equally a careful lawyer, i notes that the Framers, inward their undoubtedly interplanetary space wisdom, specified the 3 (and solely three) actions that are champaign of written report to criminalization, i.e., counterfeiting, piracy, together with treason.  (Perhaps i tin too defend courts martial together with the jailing of service-oriented miscreants.)  Why powerfulness they own got done this?  Because the Framers were good aware of the powerfulness of the British nation to overreach yesteryear making all sorts of behaviour criminal.  Thus a Constitution devoted to securing “the blessings of liberty” would assure us a minimal nation that was prevented from such overreach.

This is a crazy reading of the Constitution, you lot powerfulness good say, together with you lot could too squall Marshall’s persuasion inward McCulloch inward support.  But, then, James Boyd White (correctly?) described McCulloch equally inward fact “amending” the Constitution rather than necessarily faithfully complying amongst the 1787 version. And, equally a McCulloch fanatic—I taught a class this yesteryear semester inward which nosotros spent a total vii weeks reading all of the persuasion aloud, amongst ample give-and-take along the way—I emphasize that the most of import judgement inward the persuasion is the i inward which “the Great Chief Justice” reminds us that the Constitution, if it is to “endure,” must “be adapted to the diverse crises of human affairs.”  So it is the instance that the altogether “possible” reading of the Constitution that denies the possibility of criminalization of taxation evasion is correctly dismissed equally legal pettifoggery because its implications are but unacceptable for a performance constitutional order.

Or consider the conundrum of who presides over an impeachment trial of the Vice President. The reply is presumably the President of the Senate, given that the Framers specified that the Chief Justice would preside over impeachment of a president, but left everything else to “ordinary procedures.”  There is a problem, of course, that the President of the Senate is the Vice President, together with i powerfulness honor it anomalous for the VP to preside over his ain impeachment.  But, hey, is that whatever to a greater extent than anomalous that allowing a president to pardon whomever he/she wishes, for presumably whatever reasons at all (other, perhaps, than abject bribery), including the possibility of self-pardon?  

So straightaway let’s plough to the champaign of written report of Article V amendments together with the validity of continuing nation ratification of the Equal Rights Amendment, virtually which I own got expressed doubts—and which is defended yesteryear at to the lowest degree 2 really able participants on this venue, amongst reference, particularly inward Rachel Frank’s interesting post, to lawyers similar Walter Dellinger whom I esteem inward the highest possible degree.  Can i defend the proffer that the barebones linguistic communication of Article V prohibits Congress from doing anything other than “proposing” amendments to the Constitution that are on the tabular array permanently?  Sure, inward the same agency that i tin defend the propositions outlined inward a higher identify that Congress is without the powerfulness to criminalize taxation evasion (and almost everything else) together with that a VP tin preside over his ain impeachment trial. From i betoken of view, it is irrelevant that this would supply the Earth for describing our Constitution equally at the really to the lowest degree “stupid,” or fifty-fifty “imbecilic” (See Federalist 15).  As many of you lot know, I do believe that nosotros own got a genuinely stupid Constitution that bears its ain percentage of the responsibleness for creating the year-round seasons of our discontent.  What I honor questionable is embracing interpretations, unless i feels genuinely “compelled” to practice so, equally with, for example, the stupid asset off of inauguration of novel presidents until Jan xx because of the clear together with unequivocal linguistic communication of Amendment 20.  So for me the enquiry is whether i is “compelled” to concord that rumors of the ERA’s expiry inward 1982 were false, that, equally amongst the Russian journalist inward Ukraine, the apparent murder was solely “fake news,” together with the ERA lived to live on ratified 35 years later. 

My primary argue for rejecting this declaration is not becaue I intend the declaration is stupid—Walter Dellinger is incapable of making a stupid argument—but, rather, because it reinforces the stupidity of the Constitution.  Why inward the globe would whatever constitutional designer adopt such a principle? Whatever i thinks of the justiciability of constitutional amendment procedures, wasn’t the Supreme Court clearly right inward suggesting that some cast of “contemporaneous consent” is called for, thus that the placement of fourth dimension limits yesteryear Congress, commencement amongst the 18^thAmendment, is but mutual sense together with non congressional usurpation (as would live on the case, for example, if Congress exactly equally sensibly declared that novel presidents would live on inaugurated on Dec xx instead of waiting until Jan 20)?

It’s true, of course, that Larry Tribe defended the bona fides of the so-called 27^thAmendment, really sent out to the states equally the master copy “second amendment” inward 1789 together with declared ratified a mere 203 years afterward inward 1992.  He did thus on the Earth that Congress inward 1789 had non included a fourth dimension bound together with that “we” weren’t entitled to read i in.  I tin encounter the merits of that argument, though I too intend it absolutely fundamental that no serious adult really believes that the “27^thAmendment” is a genuinely pregnant add-on to the Constitution. It is a sport, together with goose egg more. I’m hesitant to play the “neutral principles” card, but I would inquire you lot to imagine your reaction if a similar amendment proposing, say, that the USA recognized Christianity equally its official religion, had been sent to the states inward 1789 together with were “ratified” inward a similarly stealth physical care for equally the 27^thAmendment inward 1992 or, indeed, 2018.  

But together with thus this is coupled amongst the minute point:  Do states own got a right to rescind?  I confess that I really don’t empathize the declaration that they practice not.  If nosotros believe inward “deliberation together with choice,” why is it the instance that states cede all possibility of time to come “deliberation together with choice” i time they banking concern jibe the “for” component of the amendment ballot, unless i too believes they are permanently stuck amongst a decision not to ratify?  I’m no admirer of Article V; much of the time, I see it equally the unmarried worst characteristic of a Constitution that has many genuinely awful features.  But if nosotros own got that, inward Donald Rumsfeld’s term, we’re stuck amongst the Constitution nosotros own got rather than the i nosotros wishing nosotros had, which includes a crucial role for states inward the ratification process, why would i spend upwardly the possibility of rescission equally unconstitutional?  Maybe you lot intend it is unwise, though I’m non sure why that is necessarily the case, salvage amongst regard to one’s political views virtually detail proposals.  But we’ve already established, presumably, that at that topographic point are a number of unwise features of the Constitution that we’re stuck with, thus i has to come upwardly up amongst a plausible theory equally to why states can’t modify their collective minds.  

Ms. Frank’s distinction betwixt linguistic communication “in the amendment” together with mere “proposals” exterior of the text is interesting, but I’m but non persuaded yesteryear it.  Even Ruth Bader Ginsburg seemed to usage the distinction solely for the proffer that Congress indeed could, equally it did, extent the fourth dimension for ratification from vii to 10 years.  I own got no problem amongst that declaration (though it clearly has no application to the rescission issue), together with it’s fifty-fifty possible that the introduce Congress could all of a abrupt declare that it’s repealing the 1979 extension together with replacing it amongst a novel one. But it hasn’t.  

What I honor remarkable virtually this debate, equally good equally debates about, say, indictability of sitting presidents, self-pardons, together with the like, is that they bring out how deficient the Constitution (and, dare i suggest, the Framers) were inward providing answers to what i powerfulness intend are fundamental questions virtually whatever constitutional gild designed to “endure.”  What nosotros evidently own got is a wildly “indeterminate” Constitution together with the concomitant invitation to “Herculean” lawyers to spin their diverse interpretive webs, mayhap for ultimate determination yesteryear those paragons of legal acuity, 5 justices on the USA Supreme Court.  

I prefer a novel constitutional convention non thus champaign of written report to such ostensibly legal arguments together with devoted to a greater extent than forthrightly to what form of constitution really makes sense inward the 21^stcentury (and, spoiler alert, it isn’t the Constitution nosotros currently alive under!).