Constitutional Dead Letters

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Historians
of Soviet Russia occasionally note that the communist workers' paradise
was originally intended to adhere to a written constitution that
expressly guaranteed freedoms such as speech, press and assembly.
In practice, however, none of the freedoms guaranteed in the Soviet
constitution were recognized in the country's legal system, and
millions of dissenters and suspected dissenters were imprisoned
or killed for disagreeing with the commissars of the state.

The United
States Constitution, by contrast, is thought to be in good
standing
. Yet there are numerous provisions of the U.S. Constitution
that are never enforced. These provisions, analogous to "dead
letters" in the U.S. Postal System, are either totally ignored
by federal judges or given such a narrow construction that they
might as well not exist. As columnist and curmudgeon Joseph Sobran
has
written
, the Supreme Court has, in essence, exercised a "line-item
veto" over the document, totally ignoring provisions that interfere
with the justices' national vision or social objectives.

When the Supreme
Court switched to discretionary certiorari in 1925 (thus
allowing the court to pick and choose its own docket), the Court
paved the way for a highly selective treatment of the Constitution.
While some constitutional provisions (e.g., the First Amendment
and the Fourth Amendment) are routinely accorded Supreme Court consideration,
many others are almost completely ignored.

It can
hardly be a coincidence that all of the dead letters happen to place
limitations on the scope and power of government. In contrast, the
few provisions of the Constitution granting powers to government
have been interpreted expansively. The clause giving Congress power
to regulate interstate commerce, for example, has been interpreted
by the courts to allow Congress to imprison people for acts
that can be linked to either commerce or interstate activities only
by a tenuous series
of conceptual inferences
.

There are
even provisions which were included in the Constitution to limit
government but which have now been interpreted to empower
government. The Takings Clause, which states that no person shall
be deprived of property "without due process of law; nor shall
private property be taken for public use, without just compensation,"
was recently construed by the Supreme Court to give government at
all levels near carte blanche power over all property. In
a 2005 decision entitled Kelo
v. City of New London
, the Court reinterpreted the phrase
"for public use" to mean for whatever use any government
desires — including private use.

Similarly,
the Fifth Amendment Grand Jury clause was placed in the Constitution
in order to limit government but has now been interpreted in a way
that empowers
government
. As the criminal law grew more complicated during
the 1800s, courts began allowing public prosecutors to appear and
discuss cases before grand juries (a practice strictly forbidden
at the time of the Founding). This became embedded in grand jury
practice by the 1900s. Today's Federal Rules of Criminal Procedure
state that prosecutors may be present before grand juries at all
times and prohibit grand jurors from issuing independent presentments.

There is nothing
new about this insidious trend. The Necessary
and Proper
clause was originally intended to bind Congress to
legislating only in ways that were "necessary" to carry
out the few limited powers the national government had been granted.
By the early nineteenth century, however, the Supreme Court had
already interpreted "necessary and proper" to mean only
"proper" — in the eyes of the government. As Jefferson
observed, "[t]he natural progress of things is for liberty
to yield and government to gain ground."

Courts have
increasingly subjected all rights mentioned in the Constitution
to balancing tests, meaning that rights have become mere interests
to be balanced against the (always pressing) interests of government.
Thus, it is asserted that "no rights are absolute" and
that courts may deny the application of a right where "the
Government's regulatory interest in community safety

. . . outweigh[s]
an individual's liberty
interest
." However, the Supreme Court has abandoned any
pretense of balancing tests with regard to governmental powers
(such as those found in the Tax Clause or the Spending Clause),
for which the Constitution's provisions are described as plenary.

Some rights
enshrined in the Constitution are rendered dead by the lack of any
remedy to enforce them. For example, in 1974, the Supreme Court
held that no taxpayer ever has standing to challenge the secret
budget of the CIA
(which clearly violates Article 1's requirement
that "No money shall be drawn from the Treasury, but in Consequence
of Appropriations made by law; and a regular Statement and Account
. . . of all public Money shall be published").

Finally, there
are newly invented "maxims" of law that have crept into
modern jurisprudence by means of pronouncements that they are long-recognized.
One such so-called maxim originated with Justice Stone's "Footnote
Four" in the 1938 case of United
States v. Carolene Products Company
. Justice Stone proclaimed
that most congressional enactments are "presumed constitutional"
and will be struck down only if they blatantly contradict explicit
constitutional protections. Stone's "presumption of validity"
has been cited in dozens if not hundreds of appellate decisions
to turn away constitutional challenges.

As many scholars
have pointed out, this "presumption of constitutionality"
was enunciated nowhere in the many letters and speeches that punctuated
ratification debates in the late 1700s. In fact, Founding-era voices
more than occasionally expressed the opposite opinion. A widely-distributed
editorial by Alexander White, a member of the First U.S. Congress
from Virginia, proclaimed (in opposition to proposals for a bill
of rights) that “In America it is the governors not the governed
that must produce their Bills of Rights: unless they can shew the
charters under which they act, the people will not yield obedience."
Moreover, the Carolene Products presumption of validity can
be said to overrule the plain text of the Ninth Amendment ("The
enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people")
as well as the Tenth Amendment ("The powers not delegated to
the United States by the Constitution . . . are reserved to the
States . . . or to the people").

A list of
other recently invented "maxims" would include (1) Justice
Robert H. Jackson's proclamation in 1949 that the Constitution is
not a "suicide
pact"
(i.e., it should never be interpreted to mean the
government is not always in control), and (2) the doctrine of "harmless
error" (invented in 1967 in Chapman
v. California
) by which an appellate court may concede a
constitutional violation but uphold a criminal conviction by proclaiming
that the defendant would have been convicted even if the Constitution
had been followed. There are also insidious doctrines such as "sovereign
immunity"
(which allows government agents to escape liability
for illegal acts — on the ground that they are with the government)
and the "state
secrets"
doctrine (which deprives citizens of any redress
by the assertion that proof of a constitutional violation would
expose intelligence sources or methods), which are found nowhere
in the text or the original understanding of the Constitution.

Of course,
liberty dies incrementally, and the leviathanic government we see
today took generations to bring about. It has been largely forgotten
that the prohibition of intrastate liquor sales in the early twentieth
century required a constitutional amendment (the Eighteenth) because
policymakers and judges recognized that Congress had no constitutional
authority to regulate intrastate sales of any commodity. The Supreme
Court even wrote in a 1932 decision that "sales of [ ] forbidden
drugs qua sales" was "a matter entirely beyond
the authority of Congress
." The recent Gonzales
v. Raich
decision (upholding federal drugs laws as trumping
California's medical marijuana protections) highlights the fact
that recent generations of Supreme Court justices have amended the
Constitution without formal process.

A list
of constitutional dead letters follows below. I honestly don't know
what weight to give some of the Bush Administration's "unitary
executive"
practices such as its warrantless domestic eavesdropping
and treatment of detainees at Guantanamo Bay, which amount to complete
abdications of the procedural rights laid out in the 4th,
5th, 6th and 8th Amendments. (If
such matters are considered, it becomes arguable that the entirety
of the Bill of Rights is a dead letter even if some of the rights
are partially recognized for some people.) The list enumerated below,
to paraphrase the dead-lettered Ninth Amendment, should not be considered
all-inclusive, and there are, no doubt, other dead-lettered constitutional
provisions I have neglected to identify.

  • The
    House origination clause, Art. 1, 7
    , requiring that all
    "Bills for raising Revenue shall originate in the House
    of Representatives," has been rendered a dead letter by
    neglect. As Congressman Ron Paul has pointed out, the 2008 bank
    bailout bill with all its tax implications was deliberately
    introduced in the Senate after House members rejected it — a
    plain violation of this clause. Similar practices have gone
    on for many years.

  • The
    congressional declaration of war clause, Art. 1, 8
    . No
    "war" in the constitutional sense has been declared
    since 1941, although the executive branch has engaged in numerous
    undeclared wars and military escapades around the globe.

  • The
    public accounting clause Art. 1, 10
    : As already discussed,
    the secret budget of the CIA is in plain conflict with Article
    I of the Constitution ("No money shall be drawn from the
    Treasury, but in Consequence of Appropriations made by law;
    and a regular Statement and Account of the Receipts and Expenditures
    of all public Money shall be published from time to time").

  • The
    Legal Tender Clause, Art. 1, 10,
    prohibiting states from
    making "any Thing but gold and silver Coin a Tender in
    Payment of Debts." The application of the Federal Reserve
    Act and many other statutes and executive orders are in plain
    violation of this clause. State and Federal governments demand
    and provide payment in paper currencies that are unbacked by
    any precious metals.

  • The
    prohibition against bills of attainder, Art. 1, 10
    — which
    was supposed to ensure that no one could ever be punished by
    the legislature — has been addressed only four times by the
    Supreme Court. Congress regularly enacts new laws placing extrajudicial
    punishments on various groups (felons, convicted sex offenders,
    disfavored corporations such as Wal-Mart, and even entire industries
    (e.g., "Big Tobacco")).

  • The
    Contract Clause, Art. 1, 10,
    prohibiting states from impairing
    contractual obligations. Long dead and buried. Today the federal
    courts uphold wage, work, production, pricing, licensing and
    advertising regulations of every manner, irrespective of the
    Contract Clause.

  • The
    Second Amendment right to bear arms
    . Despite the recent
    Heller decision (which issued a "landmark"
    ruling that the Amendment protects an individual right), there
    are still thousands of felons and other persons in federal prison
    for the mere possession of firearms. No defendant has ever been
    released from prison or cleared of gun charges in federal court
    on account of judges recognizing the right to bear arms. The
    gist of the Heller decision is that the Amendment protects
    a "reasonable" right to bear government-approved arms
    so long as you are government-approved. Of course, such a limited
    and conditional reading of the Second Amendment renders it a
    dead letter. The leaders of the American Revolution were themselves
    accused (and some convicted) felons, and several were notorious
    criminals (e.g., John Hancock, an accused tax evader and smuggler;
    John Paul Jones, a twice-indicted murderer who adopted his name
    as an alias to avoid arrest).

  • The
    Fifth Amendment Grand Jury clause
    . While federal grand juries
    do still exist, they are now wholly subject to the control of
    federal prosecutors — the very persons the Clause was intended
    to limit. The grand juries known to the Framers were civilian
    institutions that acted independently of prosecutors, could
    investigate prosecutors, and could indict prosecutors. Today,
    prosecutors dispense all evidence, witnesses and testimony to
    the grand jurors, who then retire to a deliberation room to
    vote on whether to approve the prosecutors' wishes. (A "no"
    vote will just mean that the prosecutors will coerce another
    grand jury to vote on the same case.)

  • The
    Fifth Amendment Double Jeopardy clause
    . Today, the federal
    government commonly charges defendants who have been previously
    charged with essentially the same offense in state court (and
    vice versa). This usually happens after an acquittal or a "light"
    sentence in the first prosecution. Because Congress has federalized
    almost every state crime over the past four decades (something
    the Founders could never have imagined), federal and state prosecutors
    are able to get two bites at the apple despite the double jeopardy
    clause.

  • The
    Sixth Amendment right to jury trial in criminal cases
    . My
    inclusion of this one may puzzle some readers, because thousands
    of jury trials take place in American courtrooms annually. But
    the right to jury trial has been stripped for the vast majority
    of criminal prosecutions. Supreme Court rulings beginning in
    the late 1800s confined this right to cases of "serious"
    rather than "petty" crimes (i.e., punishable by less
    than six months' imprisonment). This distinction exists nowhere
    in constitutional text, which explicitly guarantees a jury trial
    "[i]n all criminal prosecutions " and for "all
    crimes." The change has allowed government to impose its
    will on the populace with far greater efficiency. Justices Black
    and Douglas observed
    in a 1970
    concurrence that their colleagues on the Supreme
    Court had effectively amended the Constitution by applying a
    balancing test and that "[t]hose who wrote and adopted
    our Constitution and Bill of Rights engaged in all the balancing
    necessary. They decided that the value of a jury trial far outweighed
    its costs for " all crimes" and "[i]n all criminal
    prosecutions."

  • Of course,
    plea bargains have replaced jury trials in most "serious"
    cases, allowing government to prosecute and imprison a far higher
    proportion of the American population than the Framers could
    have anticipated. And even where defendants take their charges
    to trial, they are tried before emasculated juries that are
    ordered to follow the judges' interpretations of the Constitution
    and the laws. The Founders would have condemned this wholesale
    takeover of juries by modern judges.

  • The
    Sixth Amendment vicinage clause
    (requiring an "impartial
    jury of the State and district wherein the crime shall have
    been committed"). In practice today, most federal court
    proceedings have been centralized into the largest urban areas
    of each federal court district, leaving rural defendants in
    many cases to face trials before urban juries drawn from jury
    districts that do not include the scene(s) of the alleged offense(s).

  • The
    Seventh Amendment right to jury trial in civil cases
    where
    the amount in controversy exceeds twenty dollars ($20). The
    eternal drive of government officials at every level to collect
    petty duties, traffic and parking tickets, fees and other tributes
    has necessitated that they circumvent the plain language of
    the Seventh Amendment. Today the Seventh Amendment is one of
    three articles in the Bill of Rights not incorporated into state
    court practice by the Fourteenth Amendment. Even in federal
    courts, the civil remedies mandated by the Seventh Amendment
    are painted into an extremely narrow corner.

  • The
    Ninth Amendment protection of other "rights retained by
    the people."
    As already discussed, this important provision,
    insisted upon by the Anti-Federalists in 1791, has been dead-lettered
    by a combination of judicial doctrines, maxims and sophistries
    that in essence leave the people with few or no reserved rights.

  • The
    Tenth Amendment.
    At the heart of the Supreme Court's dead
    letter file is the abandonment of federalism in order to create
    a centralized regime run from Washington. Under the Founders'
    intent, of course, each state was to retain its own sovereignty
    while the federal government was to act as the states' mutual
    delegate in matters of foreign and interstate affairs. The absence
    of this rule in the pre-amendment Constitution precipitated
    massive resistance across the colonies. Yet today the federal
    courts regard the Tenth Amendment as a quaint "truism"
    — a mere statement that the States get to keep whatever jurisdiction
    is not overtaken by the federal government.

  • The
    Fourteenth Amendment Privileges and Immunities clause,
    which
    was intended to require states to recognize legal rights recognized
    by the federal government and other states, was mostly dead-lettered
    in 1873 in The
    Slaughterhouse Cases
    , in which the Supreme Court held
    the provision applied primarily to freed slaves. In recent decades,
    courts have looked to the Fourteenth Amendment Due Process clause
    to replace the dead-lettered Privileges and Immunities clause.

  • The
    Twenty-Seventh Amendment
    , which requires that “No law varying
    the compensation for the services of the Senators and Representatives
    shall take effect until an election of Representatives shall
    have intervened,” has been rendered
    a dead letter
    by means of the Supreme Court's "standing"
    jurisprudence.

November
12, 2008

Dr. Roger
Roots, J.D., Ph.D. [send him
mail
] is an attorney and criminologist from the state of Montana.

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