Saturday, January 22, 2011

West Virginia Weekend: Is the State Itself Unconstitutional?

WV Weekend Logo The recent constitutional controversies that have arisen in West Virginia are particular, but hardly unique.  Similar problems of succession under state constitutions can affect any number of states: recall the situation in New York in the summer of 2009.

However, there is an argument that West Virginia itself is unconstitutional.  The problem is not one of succession but one of secession.  Virginia seceded from the Union in the Spring of 1861; by autumn, a number of western Virginia counties voted to form a new Unionist state.

In their article “Is West Virginia Unconstitutional?,” 90 Cal. L. Rev. 291 (2002), available on ssrn, Vasan Kesavan and Michael Stokes Paulsen (of University of St Thomas School of Law),  confront

the amazingly complicated question of whether West Virginia is lawfully a State of the United States, a question whose answer is more than a quaint historical curiosity, but is surprisingly rich in its implications for constitutional interpretation today.  The constitutionality (or not) of West Virginia is a parable with potentially huge lessons to teach about constitutional “formalism”–strict adherence to the clear structural commands of the Constitution, even when they seem inconvenient or even nonsensical–and about “textualism”–legal interpretation governed by the meaning the language (and punctuation) a legal text would have had to a fully informed speaker or read at the time of its adoption–as a methodology of constitutional interpretation.

Id. at 294.  The argument that West Virginia may not be a state rests on the troublesome language of  Article IV, Section 3, Clause 1 of the U.S. Constitution:

New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The mandate within the second clause - - - that “no new State shall be formed or erected within the Jurisdiction of any other State”– - - appears to flatly prohibit the creation of a new state from within the territory of a preexisting state, irrespective of whether consent is given.  The case of West Virginia, carved out from Virginia, would seem to fall under this prohibition. 

Kesavan and Paulsen's discussion of textualism focuses on the second semicolon of Article IV, Section 3 , which may be more like a comma than a period, or perhaps not.  The meaning of this semicolon is unclear because punctuation use in the Constitution is too imprecise, too non-uniform, and too unclear.  As to the problem of ambiguous modification, the consent proviso may modify the antecedent second clause that relates to the partition of a State, but it may not.  Indeed, the presumption of the last-antecedent canon is that the consent proviso does not modify the antecedent second clause.  The answer is not clear one way or the other, and the last-antecedent canon is not an inflexible rule.

Next, the authors turn to the history, structure, and the so-called “secret drafting history” of the Constitution.  They conclude that “[t]he second-best evidence–the history–better (though imperfectly) supports the interpretation that new States may be formed or erected within the jurisdiction of another State with the appropriate consents. The secret drafting history clearly shows that this interpretation was intended.” Id. at 395.

While in the end there is no clear answer to the assailed statehood of West Virginia, Kesavan and Paulsen build a strong case against such conclusions.

Only if one ascribes presumptive (or more) significance to the semicolon and the last-antecedent canon; leans against the position of both advocates of the Constitution (James Madison) and opponents (Luther Martin); treats as immaterial the construction placed on Article IV, Section 3 by early Congresses; and ignores the records of the Philadelphia Convention suggesting a contrary specific intention and understanding (even if not public) can one conclude that the second clause of Article IV, Section 3 is a flat prohibition on new breakaway States.  One has to work hard to adopt the destructive interpretation, and as we noted earlier, even that interpretation is not conspiracy-proof.  The better conclusion, though by no means an unassailable one, is that new breakaway States are permitted with the appropriate consents, and that West Virginia (and Kentucky, Maine, and to the extent still in doubt, Vermont) are constitutional.


Robert Bastress, West Virginia constitutional law expert and WVU College of Law Professor, summarizes the interesting case of Virginia v. West Virginia, 78 U.S. 39 (1871), a case which arose from a boundary dispute when Virginia was attempting to reclaim two counties–Berkeley and Jefferson–from the clutches of its western neighbor.  Virginia was ultimately unsuccessful in recovering the counties.  Thus,  while West Virginia's statehood issue has never been definitively settled by the U.S. Supreme Court, Bob Bastress writes that the Court “settled, for practical purposes, the statehood issue.” 

Before coming to WVU for a visit as the John T. Copenhaver chair this year, I was only vaguely aware that there were questions regarding the constitutionality of the state's formation.  With those issues seemingly settled, this semester's "West Virginia Weekend" series will highlight other constitutional matters and scholarship.


(with J. Zak Ritchie, WVU College of Law, Class of 2011).

January 22, 2011 in Federalism, History, Interpretation | Permalink | Comments (2) | TrackBack (0)

Thursday, January 20, 2011

Iowa District Judge Pratt Dismisses Challenge to Iowa Judicial Selection

 On November 2, 2010, three Iowa Supreme Court justices stood for retention and were not retained by the voters of Iowa.  This result is widely assumed to be attributable to the campaign against the judges based upon the Iowa Supreme Court's unanimous opinion in Varnum v. Brien holding that a denial of same-sex marriage is unconstitutional under the state constitution. 


Filling those vacancies under the state constitutional process is done by the State Judicial Nominating Commission which accepts applications and create a list of three nominees for each vacancy for the Governor's appointment.  The Commission has 15 members, 7 of whom were appointed and 7 of whom were elected by members of the Iowa Bar, as well as the chair who is the Iowa Supreme Court justice “who is senior in length of service on said court, other than the chief justice."

The gravamen of the complaint is that the plaintiffs, who are not members of the Iowa Bar, are denied their Equal Protection rights and their voting rights because they are excluded from participating in the elections of the elective members of the Commission.

In a 35 page opinion Judge Pratt dismissed the Complaint.  He stated:

At base, Plaintiffs are asking this Court to recognize an entirely new substantive Fourteenth Amendment right.  The Court declines Plaintiffs’ invitation to do so.  It not the business of the federal courts “to create substantive constitutional rights in the name of guaranteeing equal protection of the laws.”  See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 33 (1973).  That is especially true, where, as here, Plaintiffs have failed to provide adequate legal support for their asserted “right to equal participation.”  The Court concludes that Plaintiffs do not have a right, let alone a fundamental right, to “equal participation” in the selection of state court judges—at least not as that “right” is conceptualized by Plaintiffs.

Interestingly, Pratt's language reverberates with the very accusations that were lodged against the unretained Iowa judges - - - creating new substantive rights and essentially being "activist."  The complaint was filed on behalf of four Iowans by James Bopp, Jr.

Judge Pratt's opinion analyzes whether or not the members of the Commission are representative of any constituencies and concludes they are not. His conclusion is straightforward:

Undoubtedly, the right to vote for political representatives is the bedrock of American
democracy.  In this case, however, Plaintiffs are asking the Court to radically expand the scope of this fundamental right beyond all existing precedent and to recognize an entirely new Fourteenth Amendment “right” to greater influence in the selection of judges.  Their claims, therefore, are fatally flawed.  Plaintiffs may prefer that Iowa had a different method of judicial selection, but absent a violation of a clearly-established constitutional right, the people of Iowa are entitled to retain the judicial selection system they chose in 1962.

According to the Iowa Judicial Nominating Commission, more than 60 candidates have filed applications (and supporting materials) for the 3 vacancies.

Relatedly, there have been proposals to impeach the remaining Justices who joined the unanimous opinion in Varnum v. Brien: Press Release from Iowa representative here; Des Moines Register reporting here; NYT editorial here.


January 20, 2011 in Courts and Judging, Current Affairs, Elections and Voting, Equal Protection, Sexual Orientation, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 19, 2011

General Dynamics Argument Sheds Little Light on State Secrets

The Supreme Court yesterday heard oral argument in General Dynamics Corp. v. United States and The Boeing Company v. United States, the consolidated cases arising out of a government contract gone bad and dealing with just a little corner of the state secrets privilege.  We posted on the case here, when the Court agreed to hear it.

Oral argument yesterday did nothing to suggest that the Court intends to say anything about the privilege outside the singular circumstance that gave rise to this case. 

And those circumstances are singular.  The case arose out of a contract for production of the A-12 Avenger, a planned stealth aircraft.  After years of half-starts and failed efforts--the reasons for which are disputed and probably don't matter much here--the Navy finally cancelled the program and terminated the contract for default.  (Under federal contracting rules, a default termination means that the contractors have to pay the government back some of the funds already issued and used under the contract, here $1.35 billion.)  The contractors sued in the Court of Federal Claims (under the Contract Disputes Act) asking that the court change the termination for default to a termination for convenience.  (This would save the contractors from paying back the $1.35 billion and possibly entitle them to an additional $1.2 billion for other costs associated with the termination.)  The contractors based their claim on the argument that the government had "superior knowledge"--here, knowledge of stealth technology that would have helped the contractors produce the A-12 (or would have let the contractors know that the plane was essentially unproduceable).  The government asserted the state secrets privilege, arguing that the contractors couldn't litigate their "superior knowledge" claim without privileged evidence and that the case should be dismissed.  The lower courts ruled in favor of the government.

The contractors argued to the Supreme Court that the government can't both bring a claim (the termination for default) and assert the state secrets privilege.  Such a rule would stack the deck in favor of the government every time.  But this wasn't just a due process and fairness argument; they relied on language in United States v. Reynolds (see pages 34 -36 of General Dynamics's merits brief):

Respondents have cited us to those cases in the criminal field, where it has been held that the Government can invoke its evidentiary privileges only at the price of letting the defendant go free.  The rationale of the criminal cases is that, since the Government which prosecutes an accused also has the duty to see that justice is done, it is unconscionable to allow it to undertake prosecution and then invoke its governmental privileges to deprive the accused of anything which might be material to his defense.  Such rationale has no application in a civil forum, where the Government is not the moving party, but is a defendant only on terms to which it has consented.

Reynolds, 345 U.S. at 12 (emphasis added).  The contractors argued that this language means that the government can't both be a moving party and assert the state secrets privilege in civil litigation.

The oral argument turned mostly on this very narrow issue: Was the government the moving party here?  And this question, in turn, turned on what was the status quo ante--the parties' situations before the courts got involved.  Was the status quo ante no default (in which case the government might more properly be seen as the moving party--"moving" for a termination for default)?  Or was the status quo ante default (in which case the contractors might more properly be seen as the moving party--moving to quash the termination for default)?  (Remember that the government terminated the contract for default before the courts got involved.  The default question went to the Court of Federal Claims under de novo review, however.)

The argument didn't help answer these questions much.  The parties' arguments were predictable and didn't seem to give the Court anything to work with to help it sort the questions out.  This wasn't for the Court's lack of trying: the Justices seemed to ask around these questions in any way they could.  Even when Justice Ginsburg asked Carter Phillips on rebuttal whether there was a "middle way," Phillips only restated his position: go back to the status quo ante, which means before the termination for default.  (Of course, the government argued that the status quo ante was termination for default.  The arguments only restated the questions.)  (Justice Scalia called this the "go away" principle--assume a world where the courts weren't involved, or went away.)

But there were some other concerns that came out.  For example, Justice Breyer pressed the contractors on why their proposed rule wouldn't "not just throw[] a monkey wrench into the gears of government contracting . . . but throw[] the whole monkey."  Justice Breyer was concerned that sophisticated government contractors like these should have foreseen these problems, including the government's state secrets assertion, and should have contracted around them (or avoided the contract altogether).  Adopting their rule would allow contractors terminated for default always to win simply by asserting a "superior knowledge" claim and forcing the government to raise the state secrets privilege (because under their rule this would change the termination for default to a termination for convenience).

But there was a similar concern on the other side.  Thus Justice Kagan asked Acting Solicitor General Neal Katyal whether the government could also assert the state secrets privilege in proving its default claim--a claim in which the government looks more like the movant--and not only on its defense to the contractors' "superior knowledge" claim.  Answer: Yes.  This prompted Justice Kagan to ask for clarification, "because that really does sound like a tails you win, heads you win."  (Justice Scalia similarly observed: "and you are never the moving party.")  Clarification was not satisfying: General Katyal simply argued that the contractors should have contracted around the problem--playing on Justice Breyer's concern.

The extreme results illustrated in these exchanges may have prompted Justice Ginsburg to ask for a "middle way" on rebuttal.  But Phillips's answer only got us back where we started: What was the status quo ante?

Whatever happens in the case, the ruling is likely to be quite narrow--on the application of the state secrets privilege in a civil case where both sides look a little like a moving party. 


January 19, 2011 in Courts and Judging, Jurisdiction of Federal Courts, News, Oral Argument Analysis, State Secrets | Permalink | Comments (0) | TrackBack (0)

West Virginia Supreme Court Orders Special Election

A week after hearing oral argument on the petition for writ of mandamus to order an election for Governor, the state's highest court has granted the petition with respect to the Acting Governor, Earl Ray Tomblin (picured right).  Govtomblin

In the 25 page opinion, the Justices

direct Respondent Tomblin, in fulfilling his role to act as governor during the current vacancy, to forthwith issue a proclamation fixing a time for a new statewide election for governor consistent with W. Va. Const., art. VII, § 16 and W. Va. Code § 3-10-2 (1967).

 The court's syllabus provides its outline of the opinion:

1. “The provisions of the Constitution, the organic and fundamental law of the land, stand upon a higher plane than statutes, and they will as a rule be held mandatory in prescribing the exact and exclusive methods of performing the acts permitted or required.”

2. “Where a provision of a constitution is clear in its terms and of plain interpretation to any ordinary and reasonable mind, it should be applied and not construed.”

3. “Courts are not concerned with the wisdom or expediencies of constitutional provisions, and the duty of the judiciary is merely to carry out the provisions of the plain language stated in the constitution.”

4. “Words used in a state constitution, as distinguished from any other written law, should be taken in their general and ordinary sense.”

5. “As used in constitutional provisions, the word ‘shall’ is generally used in the imperative or mandatory sense.”

6. “The American constitutional system, under which West Virginia’s government is organized, W. Va. Const. art. 1, § 1, changed substantially the operative theory of sovereignty and identified the sovereign, whose will legitimizes authority, as the people.

7.  Pursuant to W. Va. Const., art. VII, § 16, the period of time in which the duties of the governor shall be performed by a person who was not elected to the office of governor by the people in a statewide election shall not exceed one year.

8. Pursuant to W. Va. Const., art. VII, §16, whenever a vacancy shall occur in the office of governor before the first three years of the term shall have expired, a new statewide election shall be held as soon as practicable and in compliance with the constitutional prescription that the office be assumed by an elected successor within one year of the date when the vacancy occurred.

9. The procedure established in the second paragraph of W. Va. Code § 3-10-2 regarding the holding of a new or special election to fill the vacancy in the office of governor is within the legislative prerogative and does not violate the State Constitution.

10. The Legislature may amend the procedure for providing for a new or special election if it deems it appropriate to do so; provided, however, any new procedure may not conflict with the Constitution which requires that all acts necessary to elect a governor shall be completed within one year of the vacancy in the office. 

The West Virginia Supreme Court of Appeals' unanimous opinion was authored by Justice Brent Benjamin.  Benjamin, of course, was the justice at the center of the controversy in Caperton v. Massey Coal Company, in which the United States Supreme Court decided that due process required Justice Benjamin to recuse himself from the appeal of the $50 million jury verdict although the CEO of the lead defendant had spent $3 million dollars (about 60% of the total contributions) supporting Benjamin's campaign for a seat on the WV court.


January 19, 2011 in Courts and Judging, Due Process (Substantive), Interpretation, Opinion Analysis, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 18, 2011

The Two Faces of Hudson's Commerce Clause

Professor Corey Rayburn Yung (John Marshall, Chicago) wrote earlier this month on St. Louis Today that Judge Hudson (E.D. Va.) hasn't been entirely consistent in his views on the Commerce Clause.

Recall: Judge Hudson ruled last month that the individual health insurance mandate in the federal health care reform legislation exceeded Congress's Commerce Clause authority because it required a positive act (and didn't merely prohibit action)--a popular position among those who argue against the mandate's constitutionality.

But Yung points out that Judge Hudson ruled just over a year earlier that a different federal requirement to act was well within Commerce Clause authority.  That case, U.S. v. Dean, involved the federal Sex Offender Registration and Notification Act (SORNA) and its requirement that sex offenders registered with the comprehensive national registration system that SORNA created--whether or not they cross state lines.  Yung:

In the case of health care reform, opponents have argued that Congress' power extends only to "activities" and that the so-called "mandate" actually punishes people for "inactivity"--failing to purchase health insurance.  In the case of sex-offender registration, a similar "inactivity" is being regulated: failing to register with the government.  Like Hudson, every federal appellate court that has reviewed the federal sex-offender-registration law has found it to be within Congress' powers.

Despite the similarities between the statutes, the more recent opinion by Hudson is radically different from when he reviewed the federal sex-offender-registration statute.  In his opinion regarding the health care law, Judge Hudson wrote that in order to "survive a constitutional challenge, the subject matter must be economic in nature . . . and it must involve activity."

That clear statement of law simply cannot be reconciled with his prior opinion because a failure to register as a sex offender is neither economic nor activity.

Judge Hudson wrote this in Dean:

When evaluating the impact of an activity on interstate commerce, the [Fourth Circuit] commented that "the question is not simply whether one particular offense has a measurable impact upon interstate commerce, but whether the relevant class of acts has such an impact."  With this principle in mind, the Fourth Circuit concluded that "even though the comprehensive federal registration system created by SORNA may implicate a sex offender who does not cross state lines, the potential for recidivism and flight across state lines of all sex offenders is sufficiently real and substantial to be taken as a serious and extensive part of the larger interstate problem, justifying the comprehensive regulation.  The court found further support for its conclusion in the fact that Congress's regulatory scheme would be severely hampered unless all sex offenders were required to register.

As a result of the Fourth Circuit's analysis . . . this Court finds that the registration requirements detailed in [SORNA] are valid under the Commerce Clause. . . .

Dean, 670 F. Supp. 457, 460 (citations omitted, emphasis in original).  (Judge Hudson's refers to the Fourth Circuit case of U.S. v. Gould, which upheld the federal criminal penalty for sex offenders who travel across state lines and fail to register, but which did not directly opine on the federal regulation to register in the first place.  Again: this regulation applies whether or not a sex offender crosses state lines.)

Judge Hudson's analysis above seems to apply with even greater force to the individual mandate.

But more: Judge Hudson went on to write that the Necessary and Proper Clause provided additional support for this conclusion.  And notably he cited no Fourth Circuit case for this part of his opinion, suggesting that he wasn't merely and begrudgingly following the Fourth Circuit's reasoning in Gould but (if there were any doubt) also using his own judgment, thus underscoring the inconsistency with his more recent health reform ruling.


January 18, 2011 in Commerce Clause, Congressional Authority, Courts and Judging, News | Permalink | Comments (0) | TrackBack (0)

Monday, January 17, 2011

Martin Luther King Day

The official government website,, names the day a national day of service.

Picture 1

 Here is King's last speech in 1968, referencing the Constitution including the First Amendment.






January 17, 2011 in Current Affairs, First Amendment, History | Permalink | Comments (0) | TrackBack (0)

Sunday, January 16, 2011

Global Constitutionalism CFP

GLOBAL CONSTITUTIONALISM (Glob-Con), a new journal forthcoming in January 2012, has issued a Call for Papers.

Global Constitutionalism – World of Human Rights, Democracy and the Rule of Law (Glob-Con) seeks to promote a deeper understanding on the foundations, limitations and principles of political order and their dynamics over time on a global scale. The journal is interested in work that refers to constitutionalism as a template for empirical, conceptual or normative research on past, present and future political and legal practices, within and beyond the state. 

Constitutionalism is understood here not as the study of a legal document, but as a reference frame for interdisciplinary research with a particular focus. Constitutionalism in a wide sense is associated with the study of the constitutive elements of legal and political practice that are central for the assessment of its legality or legitimacy. Constitutionalism does not presuppose the existence of a written constitution. It merely presupposes the interplay between social and institutional practices in which claims to legality and, therefore, legitimate authority, and democracy are central. Constitutionalism analyses the role of fundamental norms, the type of actors, and the institutions and procedures through which legal and political decisions are made.  In a more narrow modern sense constitutionalism focuses on the basic ideas relating to justice (such as human rights), procedural fairness and participation (e.g. democracy) and the rule of law as they relate to institutional practices and policies in and beyond the state. 

STILL_LIFE The Journal's editorial board includes Mathias Albert, Richard Bellamy, Seyla Benhabib, Armin V. Bogdandy, John Borrows,  Jutta Brunnée, Michael Byers, Carlos Closa, Gordon Christie, Jean L. Cohen, Grainne de Burca, Avigail Eisenberg, Michelle Everson, Ezzedine Choukri Fishere, Rainer Forst, Friedrich Kratochwil, Jürgen Neyer, Konrad Ng, Nicholas G. Onuf, Robert Post, Susan Rose-Ackerman , Kim Rubenstein, Joanne Scott, Rainer, Schmalz-Bruns, Jo Shaw, Quentin Skinner, Boaventura de Sousa Santos, Stephen Toope, Neil Walker, Jeremy Webber, JHH Weiler and Michael Zürn.  The Editors are Mattias Kumm, New York University, School of Law, USA; Anthony F. Lang Jr, University of St. Andrews, Scotland; Miguel Poiares Maduro, European University Institute, Florence, Italy; James Tully, University of Victoria, Canada (consulting editor); and  Antje Wiener, University of Hamburg, Germany.

GlobCon will review articles up to 15,000 words (including notes and bibliography), although authors will be encouraged to reduce their papers to fewer than 12,000 words before publication. Brevity is encouraged and shorter papers will be advantaged in acceptance decisions. Please include a word count with submission, along with an abstract of approximately 200 words which is not repeated from the paper itself. Please include up to five keywords for the article. Authors should submit both a complete version of the manuscript and an anonymous version, stripped of all identifying references to the author(s) that can be sent to reviewers. The citation style of the submission should either be Chicago or Harvard Style. Please do not use endnotes.

Submissions via email to the journal’s managing assistant:

Sassan Gholiagha,


[image: David Teniers, Stilleben, c. 1645-1650 via].

January 16, 2011 in Comparative Constitutionalism, International, Scholarship, Theory | Permalink | Comments (0) | TrackBack (0)