Congress Shall Make No Law

Every twelve seconds, someone on the internet argues that the Constitution means exactly what it says, and that us lawyers muddle it up for the sake of protecting our turf and collecting ill-gotten gain off the backs of hard-working citizens.  While we often can tell who these people are from their tin foil hats , there are some surprising voices joining the choir.

Orin Kerr at  Volokh Conspiracy offered these words:

Our Constitution is not alone the working plan of a great Federation of States under representative government. There is embedded in it also the vital principles of the American system of liberty. That system is based upon certain inalienable freedoms and protections which not even the government may infringe and which we call the Bill of Rights. It does not require a lawyer to interpret those provisions.

former President Herbert Hoover, 1935.
Joining in,  Ilya Somin offers;

Co-blogger Orin Kerr quotes Herbert Hoover’s statement that you don’t have to be a lawyer to understand the Constitution. Interestingly, the Supreme Court agrees. As Justice Owen Roberts put it in a unanimous 1931 decision, “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” This conclusion was reaffirmed by the Court in District of Columbia v. Heller (2008).

The momentum builds, but as Ilya explains,

Many parts of the Constitution really are readily accessible to laypeople. You don’t have to be an expert to understand that the Constitution establishes a system of separation of powers rather than a unitary parliamentary system, that it protects freedom of political speech, that it forbids the establishment of an official religion, that it requires the government to compensate property owners when it condemns their land, and so forth. Even when dealing with relatively simple parts of the Constitution, it may be difficult for nonspecialists to go through decades of accumulated legal precedent interpreting these provisions. But the Constitution is not just what the judges say it is, and even the latter is often constrained by the text, especially when the text is relatively clear.

That’s a rather wild assertion. with some inexplicable internal contradictions.  After all, why would “relatively simple parts” of the Constitution require “decades of accumulated legal precedent interpreting” them?  Either they’re simple or not, and if the former, then no interpretation is needed. Or if it is, then it’s not so simple. You can’t have it both ways.

Let’s test this thesis, using one of the examples Ilya offers as “readily accessible to laypeople,” the Establishment Clause of the First Amendment. It says, in pertinent part:

Congress shall make no law respecting an establishment of religion…

Ten words, no waiting. How hard could that be to understand?  The first five words seem about as clear as they could be, that Congress shall make no law.  We certainly know what Congress is, that domed place in Washington where 535 people spend their time trying to figure out how to make each other look foolish when they aren’t asking for campaign contributions.  Those people “shall,” a mandatory word, leaving no wiggle room, “make no law.”

Obviously, this doesn’t stop a teacher from requiring students to offer a prayer to Buddha before the start of a hard day of education, or a fire department from putting a creche in front of its combination garage/bar, or a judge from sentencing a drunkard to give Catholic confession twice a day for ten years.  Even if we blindly incorporate this clause under the Fourteenth Amendment, none of these actors can be construed under any stretch of language as “Congress,” or lawmakers. Easy, squeezy.

Then comes the second five words, “respecting an establishment of religion.”  Not nearly as clear as the first five, but not all that hard to understand. If we all agree that “respecting” means “with regard to,” the final four becomes fairly clear, right?  They can’t establish, or make official, religion. 

Does this mean one religion? Does this mean they can’t make a law requiring us to believe in, say, one of the top three religions, and rid us of all the squabbling about a bunch of lesser religions? Does it mean they can’t pass a law requiring us to believe in something, putting an end to those commie atheists?

But establishing an official religion is a long cry from passing laws that encourage religion, or facilitate religious good works, or enabling religion to play a critical role in our lives.  After all, Kentucky’s homeland security law makes it a crime not to acknowledge that our security depends on the will of Almighty God. And you can’t walk into the Alabama’s Supreme Court without noticing that  Roy Moore, who refused to remove the 10 Commandments from the courtroom wall, is back on the bench.

And we still have those inexplicable anomalies, the “under God” thrown into the Pledge of Allegiance to differentiate us from the Ruskies, or “in God we trust” in the dollar bill. And they actually came at the hands of Congress.  Figure that out.

There aren’t many Americans, lawyers included, who believe the Constitution should be anywhere near as complicated to understand as it is, as our Supremes have made it.  While lawyers may have a leg up in tolerance for judicial tinkering, not because we like it but because we’ve grown inured to it, one would have to be awfully darn bold to think you can walk into court, point to the text, and walk out, secure in the knowledge that your job is done.  And that’s just with a cocktail napkin assessment of the first ten words of the First Amendment, which (as should be obvious) reflects nothing remotely resembling the state of the Establishment Clause in our fine nation.

And there isn’t anyone foolish enough, myself included, to play this game with the Fourth Amendment.

It strikes me that the adoration of the plain language of the Constitution is in direct proportion to whose ox is being gored.  It’s not that the plain words are too deep, complex and sophisticated for mere mortals, though experience informs us that simple is only simple until it’s not.  Arguments like Ilya’s, and the Open Law crowd of academics who believe that you give nonlawyers access to the whole of the law and they will have no problem become overnight legal scholars, feed into a libertarian-ish, populist trend that invites facile, self-serving “understanding” of the law that is used to justify their reaction to whatever beef they have with government.

On the other hand, if you leave the Constitution up to the group of nine to tinker with long enough, who decide to empower themselves with the authority to ignore the words entirely to reach whatever result they prefer, you end up with the Constitution we have today.  As a lawyer who makes arguments based on the Constitution, as interpreted by the Supremes, it’s not entirely clear that leaving it to judges to “interpret” the Constitution works any better than leaving it to the tin foil hat crowd.  Neither has done much for my ox.


20 comments on “Congress Shall Make No Law

  1. David Sugerman

    Interestingly, Andrew Cohen, @CBSAndrew, published a piece today in The Atlantic taking CJ Roberts to task. In McCutheon, an ERISA case argued this week, Roberts apparently skewered the DOJ lawyer for the government’s change in position.

    Roberts was annoyed that it was a political change. Cohen correctly points out that SCOTUS radical shifts on the 1st and 2d Am are mirror images, which is to say politics based on who has ascended.

    In the Exec, that seems appropriate. (“Elections have consequences.”) In judiciary, not so much.

    To your point, and ox goring, the choice between a tin foil hat wearers interpretation vs a politicized, agenda-driven judiciary is a bit like being given a choice between a firing squad and a noose. (And so we walk on, hands jammed in pockets, while whistling a nervous tune.)

  2. SHG

    Andrew Cohen and I seem to be on the same page quite a bit. Sometimes, I have to check to make sure he’s not poaching my stuff for ideas. He’s a shifty character, you know.

  3. Wyrd

    I like your conclusion.

    I interpret your words to mean that there is not simple answer to the problem of interpreting the Constitution. You can’t leave it to the unwashed masses, and you can’t entrust it to the “Supreme Nine”.

    So what are we to do? I guess we’ll just keep on debating.

    Furry cows moo and decompress.

  4. Jimmy Iaccobucci

    You know how you can pretty much justify any behavior by finding a supporting passage in the Bible? A Bible is like 1,000 pages and you can pretty much find anything you want to do in some obscure passage buried in there. That’s how all these “legal arguments” made by judges appear to me. They just determine which person they think should win (most likely the plaintiff/prosecutor, unless the plaintiff is a poor individual), then go back and look for similar cases that support that position out of the millions and millions of pages of established case law. Eventually, since each decision adds even more to the volume of case law, we get ever increasing degrees of freedom for a judge just to do what he pleases. And we get to such perverted notions that “To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;” means the government can control every aspect of any individual’s life wherever they may be and whatever they may be doing. Because in some fantastical way it might affect interstate commerce.

  5. SHG

    I’m fairly liberal with allowing rants from people with a barely superficial grasp of the legal system, as I think it worthwhile for lawyers (this is a law blog, remember) to see and understand what non-lawyers think. That said, it would help if you could do two things. First, try to make it shorter. Bear in mind that brevity is the soul of wit, and I pay for the bandwidth.

    Second, most readers here are criminal defense lawyers, who are pretty darned familiar with both the law and the system. They probably don’t need too much explanation of how the law works.

    While not quite a point, something to remember: This is my soapbox. You are welcome to your own, just not necessarily here.

  6. Brett Middleton

    If we have only a choice between the tin-foil-hat (TFH) approach and the “living document” approach, which leaves the average mortal with more freedom and less tyranny? How much of the TFH approach is due to simple backlash against the current situation? It seems to me that we would be better served right now by moving more in the TFH direction.

    Obviously there are unavoidable judgment calls that have to be made in applying generic plain text to specific situations, so taking the TFH line doesn’t make everything easy, squeezy. However, I think a little simple logic would demolish your first example regarding teachers, firemen, etc. not being “Congress”. All of the non-congressional actors you named are, nevertheless, agents of the state. In a government of limited, defined powers, none of these agents is free to do anything that is not authorized by the Constitution or by conformant laws passed by Congress. The teacher can’t just say “I’m not Congress so I can make any rule I like regarding prayers to Buddha.” If Congress can’t make a law requiring prayers to Buddha, then the agents of the state are prohibited from taking action as if such a law existed.

    At least according to the ideals behind our republic. A significant part of the problem is that non-congressional actors are unilaterally making their own rules.

  7. SHG

    Woo hoo!!! You’ve fallen into two of my traps at one. What were the chances?

    First, the other end of the spectrum from the TFH approach (I like that a lot, by the way) is not the “living document” approach.  The originalist, or as Scalia and Garner try to spin it, the textualist, approach is every bit as contrary in application and every bit as responsible for the variation from the text as the beloved emanations and penumbras.

    Second, your contention that “simple logic” (isn’t all logic simple?) undercuts nonlegal textual reliance is, as I assume you realize, what the courts have already held, but the problem is that it’s hardly logic (Congress means Congress, and no logical gymnastics can logically make it mean the judiciary or executive, both of which are words with which the founders were familiar and could have included, had that been their intention), but rather a volitional extension to fulfill what we deem to have been the underlying intent of the First Amendment.

    In other words, you find it logical because you believe it’s correct and befitting the ideals of our nation. (I do too, by the way, very much so.)  But logical? No more so than the automobile exception written in disappearing ink in the Fourth.

  8. Bruce Coulson

    Some of the problems stem from a quite understandable frustration with being told (in effect): “You the People, you’re too ignorant and unlettered to truly understand the laws we write and expect you to obey; you’ll just have to take our word for what these words really mean.” Then, as if to add insult to injury, the meanings of those words are subject to change without prior warning. (I realize that this isn’t very close to the reality; but many people see matters this way.)

    Needless to say, people don’t like to be told they’re ignorant and incapable of learning; especially if there may be a grain of truth in that statement. Hence the backlash of stating that the Constitution is a document written in language that anyone can understand.

  9. SHG

    It’s a curious thing that nonlawyers get so bent out of shape about not being able to understand the law. I can’t read an x-ray. I was never trained to do so. I’m good with that. Yet, the law seems different to people, who I guess assume that all that time we spend in law school is largely dedicated to binge drinking and lacivious behavior.

    The truth is, it doesn’t matter whether people are frustrated by it, angered or even infuriated. It’s incredibly dangerous to conduct one’s life according to a set of rules when you don’t know what the rules are. And lawyers are never quite sure, but understand the ambiguity. Nonlawyers are much more certain, but understand even less. So, they can be as wrong as they wanna be, but at least someone is telling them the truth, that they have no clue what the rules are. After that, they’re entitled to screw up. And us lawyers are here to be paid to try to fix what they screwed up.

    It’s a symbiotic relationship. Unhealthy, but symbiotic.

  10. Wrongway1965

    Symbiotic huh.. yeah but thats because everything is now illegal, & sooner or later, I’m gonna get caught in the net of the ‘State vs. Schmucko’.
    Now it’s not only laws, but statutes, ordinances & policies. And a violation of any requires me to hand over cash or time.
    I ‘could’ get a ticket in S.C. for letting my wife drive the car if I wasn’t walking in front of it, waving a red flag & either sounding a ‘horn’ or shooting a gun to alert the surrounding community that a female was driving.
    Isn’t the term ‘Congress’ a body of people setup to make laws & not only the Fed Govt is restricted by this passage ??

  11. SHG

    My use of symbiotic was sarcasm. Your wife’s driving issues, I can’t explain. As to the point of this post, don’t even try. You could hurt yourself.

  12. Brett Middleton

    Your first question is easy. As a humble toiler in the vineyards of science with some expertise in statistics, I can confidently predict that the chances are astronomically high of my falling into a lawyer’s traps. Even if the lawyer is not from Philadelphia.

    I confess that you got me on the first one. I can see where “original intent” has led us into some places we should never have gone. A two-dimensional interpretation spectrum limits our thinking as badly as the left-right political spectrum inhibits political thought, and I plead guilty to falling into that trap.

    I don’t quite follow your second point, however. The Constitution gives the legislative power to Congress and only to Congress. The Bill of Rights emphasizes certain limits on the use of that power. But the other branches are given no power to make any law at all, so it would be redundant to highlight their inability to make a specific law. What reason would the founders have had to include them?

    It goes without saying that I am not permitted to drive on Market Street if I am not permitted to drive at all, whereas those with general permission to drive may be prohibited from driving on certain streets. To use a somewhat-tortured analogy, the rights in the Bill of Rights are the private property of the people and the states, and Congress is forbidden to drive on their property. The other branches have no license to drive at all, so why would it be necessary to point out specific restrictions?

    The Executive is charged with the duty of executing the laws passed by Congress. If Congress cannot pass a certain law, how can the Executive execute it without operating outside the law? I don’t see how that reasoning exceeds the bounds of logic. It looks like basic deduction to me: All branches of government must act within the law, Congress makes the laws, therefore no action is permitted by any agent of the government if Congress has not or cannot make a particular law. Limiting legislative authority automatically restrains all branches of government. Or it should, if the Constitution hadn’t already gone out the window.

  13. SHG

    You’re getting hung up on the “make no law” language. The founders gave each of the branches powers, and those powers serve to impact the citizenry in their own way. So the First Amendment could have included “make no law, interpret no rule of law, issue no executive mandate,” or better still, “no branch of the Government of the United States shall…” Yet they chose not to.

  14. John Neff

    Purposive action on the part of Congress can lead to unanticipated outcomes.

    Or Congress screwed up!

    The non-lawyer thinks that is a bad thing but the lawyer thinks it is a good thing. Seems to me that is an unbridgeable gap.

  15. Bruce Coulson

    The law is different because we expect (well, hope at least) everyone to follow the rules. There’s an adage to the effect that everyone SHOULD know the laws, because not knowing them won’t protect you. And then people are told ‘well, you can’t really know the laws; but you have to follow them anyway’.

    Now, most people can follow the basics of common law; although they may be fuzzy on the difference between a burglary and aggravated burglary, they know that stealing, assault, murder, vandalism, etc. are illegal in some way. And they don’t see why other laws shouldn’t be as easy to understand. If they have to obey the laws, they should at least know the basics of what not to do?

    No, non-lawyers assume that attorneys spend all of their time in law school intensively studying, being humilated by instructors, and eschewing any fun; so that after they get their degree, THEN they can indulge in binge drinking and lascivious behavior on the money their clients pay them. What else would you do with those multi-million dollar fees all attorneys get for passing the bar? 🙂

  16. SHG

    The bad news about those million dollar fees is that we only get them about once a week. How are we supposed to keep up the mansion like that?

    More seriously, the adage is “ignorance of the law is no excuse,” and it was a fine adage when crimes were malum in se, like murder or robbery, things that anyone capable of breathing knew were wrong. But now, with thousands of malum prohibitum (not inherent wrongs, but wrongs because we decided to make them wrong) crimes clogging the books, the adage no longer makes any sense.  But we lawyers love our platitudes.

    Having a bit of experience dealing with nice folks accused of crimes, I have to disabuse you of one notion: people have no clue what the law requires of them.  If anything, they’ve got a bunch of nonsensical mush in their heads that is absolutely, positively, absurdly wrong. And this is the basis for how they conduct their lives.

    It’s a wonder that everyone isn’t in prison.

  17. Wrongway1965

    And the sarcasm continues..
    the point of my wifes’ driving issues was that that law was passed in 1915, & it’s still on the books.. no court would buy it of course but I could still be charged with it..As far as hurting myself, it’s only my brain that hurts & who needs that ??


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