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separation of powers in practice

Separation of Powers in Practice
TOM CAMPBELL
Stanford Law and Politics
an imprint of stanford university press
stanford, california
2004

Stanford University Press
Stanford, California
www.sup.org
© 2004 by the Board of Trustees of the Leland Stanford Junior University.
All rights reserved.
Library of Congress Cataloging-in-Publication Data
Campbell, Thomas, 1952–
Separation of powers in practice / Tom Campbell.
p. cm.
Includes bibliographical references and index.
ISBN 0-8047-4736-9 (alk. paper)—ISBN 0-8047-5027-0 (pbk : alk. paper)
1. Separation of powers—United States. 2. Separation of powers—United
States—Cases. I. Title.
KF4565.C36 2004
342.73'044—dc22 2004006012
Printed in the United States of America on acid-free, archival-quality paper.
Original Printing 2004
Last figure below indicates year of this printing:
13 12 11 10 09 08 07 06 05 04
Designed and typeset at Stanford University Press in 10/12.5 Palatino.

I dedicate this book to my wife, Susanne, and to my parents,
Marie Campbell and Judge William J. Campbell, chief judge of the
United States District Court for the Northern District of Illinois.

Preface ix
1. Introduction 1
Part 1. Structural Features of the Separation of Powers
2. Synopsis of the Advantages of the Separate Branches
of Government 19
3. Rules of the Legislative Process 29
4. Statutory Construction: The Courts Review the Work
of the Legislature 51
5. Stare Decisis: The Self-Imposed Constraint by the
Judicial Branch Not Shared by the Other Branches 68
Part 2. Case Illustrations of the Separation of Powers
6. The Proper Roles of Government: The Case of
Obnoxious Speech 87
7. The Exclusionary Rule: When Is a Matter Constitutional,
When Is It Only Policy? 101
8. Affirmative Action: The Use of Race by Government 120
9. The Fiesta Bowl: Unintended Consequences of Judicial
and Legislative Activism 133
Contents

10. Defining Constitutional Rights: Roe v. Wade 143
11. The Civil Rights Act of 1992: The Burden of Proof as a
Judicial Function Used to Achieve a Legislative Result 159
12. Two Statutes, a Hundred Years Apart: When Court
Interpretation Changes between and after Two
Separate Legislative Acts 172
13. When the Supreme Court Does Not Do Its Job:
The Second Amendment 178
14. Methods of Solving Disputes between (and within) the
Branches of Government 185
15. Another Method of Solving Interbranch Disputes:
Legislators Going to Court to Sue the Executive Branch 193
Index 223
viii Contents

Preface
this book consists of a series of case studies and essays illustrat-
ing clashes between the branches of the American government. The
separation of power between the three branches of federal government,
and between federal and state authority, allows each level of govern-
ment to apply advantages unique to itself. The arrogation of power by
a branch in a manner crossing over those divisions exposes the com-
parative disadvantages of the arrogating branch and calls for vigorous
resistance by the branch upon which the encroachment has occurred.
Such encroachments are more common than the comparative silence of
the branches would indicate, as a result of which, comparative advan-
tages of the branches have been distorted and lost.
I do not advocate any specific policy outcome in any topic. In the ex-
amples developed in this text, I do, strongly, advocate that the Court
stick to interpreting the intent of Congress and the vindication of con-
stitutional principle; that Congress spend its time determining and up-
holding the policy preferences of the people, while not forgetting that
its members, too, are bound by an oath to uphold and defend the Con-
stitution; and that the president utilize the flexibility of the executive
branch to fit statutory and administrative law to practical circum-
stances, while ceasing to encroach on the powers explicitly given to
Congress, as in declaring war. The federal government, as an entity,
needs to recognize the plenary power vested in the states, reaching, for
example, the issue of life’s beginning and end, as well as the specific
powers reserved to the states under the Constitution, including regu-
lating militia. I reach these conclusions independent of the policy out-

come that I or any reader might prefer, asking only whether resort to a
particular branch or level of government is more appropriate than re-
sort to a different branch, from the point of view of the inherent struc-
tural advantages of each. If that is the case, then it is my hope that the
branch inappropriately engaged will desist, or that, if necessary, the
other branches or levels of government will be able to force it to desist,
in order that the matter be resolved through the apportionment of re-
sponsibilities intended by the Constitution and most consistent with
the abilities of each branch.
I was on leave of absence from my position as professor of law at
Stanford University to serve as a U.S. congressman from 1989 to 1993,
as a California state senator from 1993 to 1995, and, again, as a con-
gressman from 1995 to 2001. I commenced preparing these materials
while I was a professor of law at Stanford, and I completed the manu-
script while dean of the Haas School of Business at the University of
California at Berkeley. The examples are drawn from issues with which
I personally dealt while in public office.
Over the years I taught courses in this subject area, my law students
at Stanford Law School and my college students at Stanford in Wash-
ington, D.C., provided me many valuable insights. I was also privileged
to have many excellent research assistants who helped with the prepa-
ration of these materials, most important, David Graubert and Jeff Ne-
grette of the Stanford Law School and Cameron Doolittle of the Boalt
Hall School of Law and Haas School of Business, University of Califor-
nia at Berkeley. My new colleague, Jesse Choper, provided many valu-
able comments on—and corrections to—the manuscript.
John Hart Ely gave me the chance to become a law professor at Stan-
ford, and Paul Brest made it possible for me to serve in public office
while maintaining my position on the faculty at Stanford. I owe them
each a profound debt of gratitude.
x Preface

chapter
Introduction
1
in this introductory chapter, the substance of the examples used
throughout the text is summarized, and the basic advantages of each
branch or level of government illustrated through those examples are
described. The American system of government separates power. It
thereby achieves protection for its citizens against the potential of
tyranny. The separation also can call forth advantages that each branch
possesses for the efficient disposition of issues of public policy and pri-
vate dispute and to enhance the public’s confidence in the fairness of
the process that led to those dispositions. In a government with no for-
mal separation, a sacrifice is necessarily made of at least some of these
advantages. A danger exists also, however, of too severe a separation.
Where one branch fails to undertake a task for which it is the best
suited, it willingly permits another branch to usurp that authority. The
consequences often include a compromise in the efficiency of the
branch assuming the power from the branch giving it up.
In these materials, I present several different issues in recent public
policy. The analysis is not attempted to derive what the best outcome,
substantively, on any one of them might be. Rather, I attempt to
demonstrate how the resolution of these issues came about, highlight-
ing the advantages of each of the federal branches and, in some cases,
of the states as compared with the federal government in reaching
those resolutions.
My hope is that students of American government, and especially
those who serve in government, will see in this analysis a guide of
when to abstain and when to seize upon an issue presented to them. At-

torneys representing private parties will, and should, look to all three
branches of government as potential sources of redress. For their pur-
poses, this analysis might assist such an appeal when it is demonstra-
ble, along the lines I propose, that the branch to whom appeal is made
is the best suited, institutionally, to handle the issue. Similarly, the pri-
vate party seeking to prevent a particular result might raise the kind of
objections outlined here to an adversary’s seeking relief from a branch
of government inappropriate for the particular request. Overall, my
hope is to turn the direction of at least some discourse from how a pol-
icy advocate can obtain a particular outcome to what is the body of
government most appropriate to be engaged in a question of the kind
at hand.
The opening sections deal with the process of how Congress passes
laws and how courts interpret them. Chapter 2 offers a brief outline of
the structural advantages of each branch. Chapter 3 deals with the leg-
islative process, presenting several examples of how the rules of the
U.S. House of Representatives allow, and impede, the people’s work to
be done. The practical workings of today’s Congress are essential to un-
derstand before forming a judgment as to the inherent advantage of
Congress in deciding questions of competing policy.
In considering how individuals serving in government carry out
their functions, to what extent should we demand that our legislators,
and our president, independently assess the constitutionality of what
they pass, sign, and do? If we absolve them of that responsibility, we
are tolerating violations of the Constitution, since so little of what those
branches do ever is submitted to the Supreme Court. If we are serious
about standing up for the authority of each branch of government, then
each branch of government should be responsible, in return, in what it
does, to abide by the Constitution’s strictures, even when there is no
other review. This issue is discussed in the second part of Chapter 3,
dealing with the constitutional obligation that all federal and state offi-
cers take an oath to uphold the federal Constitution.
Touching on examples to be developed in the following chapters, the
text next focuses on how courts go about their traditional function of in-
terpreting statutes written by Congress. The Court often slips, in carry-
ing out this function, from interpreter to creator of public policy. The
Court will often say that Congress has “acquiesced” to its interpretation
of a statute. Chapter 4 analyzes the rules of statutory construction, in-
cluding acquiescence, to try to separate what the Court should do and
2 Introduction

does well from what the Court should not do: take power from Con-
gress.
There is a constraint that the judicial branch imposes upon itself, a
constraint not shared by the other branches. Presidents change policies
between, often even during, administrations. So also does Congress,
which changes every two years anyway. These are strengths of each in-
stitution. By contrast, the Court purports to avoid such frequent
changes through the doctrine of stare decisis. In reality, it has very sel-
dom actually so bound itself in recent years; and that is a good thing
since stare decisis, when it has force, binds the Court to do what the
Court believes to be wrong—a concept impossible to square with the
Court’s fundamental role to identify and uphold constitutional princi-
ple. These issues are addressed in Chapter 5.
I then turn to the following ten specific clashes between the branches.
Obnoxious Speech
In Chapter 6, I deal with the prosecution of an individual for publicly
burning a U.S. flag at a political convention, the reversal of his convic-
tion (and the statute in question) by the state appellate court, affirmance
by the U.S. Supreme Court, the subsequent passage of a new statute by
Congress, and the eventual overturning of that statute as well.
In this flag-burning example, the executive branch shows its advan-
tages, and disadvantages, in choosing whom to indict and under what
statute. As the Texas Court of Criminal Appeals held, the police and
prosecutor could have proceeded simply under breach of the peace if
the goal were to prevent the immediate flag burning.1 So another pur-
pose was at work. The choice of statute gives us a clue that a hortatory
purpose was involved: the prosecution wanted a conviction for flag
burning, not for breach of the peace. This exercise of authority is un-
doubtedly within the discretion reserved to the executive branch, here,
a state’s executive branch. No branch other than the executive pos-
sesses this power, to initiate criminal prosecution.
The story actually begins much earlier, however, with the passage of
the anti-flag-burning statute by the Texas legislature. The state was ex-
pressing a sentiment through its elected representatives in Austin. The
message was broader than a desire to prevent danger of riot or setting
fire to property. The legislature has an advantage in being the closest
representative of the people’s will. In choosing to pass a criminal stat-
Introduction 3

ute, rather than a nonstatutory resolution regarding the flag, the Texas
legislature made use of the discretion it alone possessed.
The U.S. Supreme Court and the Texas Court of Criminal Appeals
both held the Texas statute unconstitutional. The inherent advantage of
the courts—and especially the federal courts, which are insulated from
popular sentiment by life tenure and nondiminution of salary—is to
uphold fundamental rights. It was appropriate, therefore, for each court
to measure the statute against the First Amendment’s guarantee of free-
dom of speech. In performing this function, the courtlike method of
analysis was to reason from previous cases interpreting the First
Amendment, so as to convey the impression that the conclusion was to
be expected from what had gone before.
This attribute has both advantages and disadvantages. The advan-
tage is that the Court’s claim to consistency vitally defends against its
characterization as a mere policy-maker. If the Court becomes policy-
maker, it is inferior to the legislature in both design (ability to gather the
relevant facts and take testimony) and legitimacy (if preference, rather
than principle, is to govern, then the people’s preferences are more
clearly expressed through their representatives whom they elect than
the justices they do not). The disadvantages are two. The first is that the
Court is hampered from moving away from earlier errors by the need
to appear consistent with earlier opinions. Neither the legislature nor
the executive has a similar disadvantage. Second, the Court, in crafting
a ruling, has to rule by creating a broad category, then applying that
category to the case before it. To rule only on the basis of the one case is
not to announce constitutional principle. This becomes disadvanta-
geous when the category for analysis sweeps more broadly than the
Court might have intended, leaving dangerous precedent that later
cases must distinguish.
The action of Congress in connection with this episode in recent
American history shows how it can communicate rather directly to the
U.S. Supreme Court. It created a statute and, in that same bill, obliged
the Court to hear an appeal of any conviction under that statute on an
expedited time schedule. Congress came close, in this instance, to ob-
taining an advisory opinion; it might have been better if it had been
fully advisory, in that at least one individual had to go through indict-
ment, trial, and conviction in order for Congress to obtain a response to
the question it was asking the Supreme Court. The fundamental ability
of Congress is to use words precisely fitted to the problem at hand. In
this instance, we see Congress’s attempt to use that ability so as to ap-
4 Introduction

peal to one specific justice who held the swing vote on the U.S.
Supreme Court. Congress has other powers not in evidence here and
significant by omission. The fact-finding mechanisms available to Con-
gress are superior to those available to a court, particularly for the as-
certainment of sociological facts about America. These powers could
have been used to determine what threats flag burning actually posed
and, in so asking, to obtain guidance on what statute would work most
effectively to allay them. The other congressional institutional advan-
tage started but not completed in this case was an effort to amend the
Constitution. A constitutional amendment offers a way to define and
vindicate principle, much as a court does, but without having to rule by
broader category than the immediate concern or having to show con-
sistency with earlier holdings.
At the end of Chapter 6, I consider the American Nazis’ march
through Skokie, Illinois, a village heavily populated with Holocaust
survivors. The federal court protected the demonstrators, with a dis-
cussion in a separate opinion about the possibility of private insurance
solving a problem that the First Amendment prevented the village from
solving on its own.
Exclusionary Rule
The Rehnquist Supreme Court is in the process of undoing what the
Warren Court set in place regarding the exclusionary rule. This is a dif-
ficult process, since the premises for establishing exclusionary rules for
evidence obtained in violation of the Fourth and Fifth Amendments
were constitutional. Exposing the inherent disadvantages of the judicial
branch, the Court is now attempting to allow for exception after excep-
tion to the exclusionary rules, without explicitly overruling the deci-
sions that originally held the exclusionary rule to be required by the
Constitution. It is a process that shows, as clearly as any of these mate-
rials, the weakness of the judicial branch. Once freed of its constitutional
moorings, the exclusionary rule continues as a judge-made and judge-
supervised process for deterring constitutional violations. The decision
to deter a constitutional violation, however, should be a legislative one.
It is not, itself, a constitutional decision. Whether society should spend
resources making Fourth Amendment violations less common (by the
cost of reversals and retrials) or highway accidents less common (by the
cost of more frequent repaving) calls for the weighing of interests, at
which the legislative branch, not the judicial branch, excels.
Introduction 5

The exclusionary rule was first applied to the states under a rule of
principle; namely, that the use of illegally obtained evidence constituted
a denial of due process. A general rule of exclusion would apply; ex-
ceptions could then be considered along the lines of whether the judi-
cial process was unconstitutionally tainted by admission of the evi-
dence, given the circumstances of the particular case. Completely
defensible ignorance of a new constitutional rule, for example, might be
sufficient—as when the Court adopts a new constitutional interpreta-
tion or strikes down a facially valid statute that authorized the search in
question. Also possibly allowable as an exception would be evidence so
far removed from the original constitutional violation as to satisfy a
rule of attenuation.
That approach would permit the judicial branch to show its own in-
herent advantages, including the U.S. Supreme Court’s supervisory
role over federal courts. The essential starting off point, however, had to
be that the Constitution compels exclusion as a general principle.
As that principle has eroded, however, the Court has assumed a non-
judicial role for the exclusionary rule: one of estimating what kinds of
exceptions to the rule will induce more police misconduct. The Court
has arbitrarily assumed that only misconduct by police is to be de-
terred, not misconduct by prosecutor, magistrate, court employee, or
judge. The Court has engaged in relatively poor social science inference
in a sham effort at “balancing” likelihood of future violations against
society’s law enforcement needs.
By contrast, Congress and state legislatures have much the better in-
stitutional advantage here. To the extent each wants to devote public re-
sources to the goal of deterring constitutional violations, the legislative
branch can hold hearings on what kinds of steps (for example, Bivens
actions, personal fines, disciplinary actions, or exclusionary rule) are
most likely to deter governmental misconduct.2 The cost of each alter-
native in terms of legitimate prosecutions forgone could then be esti-
mated, and a weighing of interests, the function the legislative branch
performs best, could ensue.
The role of the executive is the most underplayed in this area. No use
of illegally seized evidence could go forth, of course, without the pros-
ecutor, an agent of the executive branch, desiring it. If we are not speak-
ing of a constitutional requirement, then any governor (or district at-
torney or attorney general, depending on who holds the executive
power to prosecute under the state’s constitution) or president could in-
struct whether to go ahead with the use of specific evidence. It might be
6 Introduction

that the interests of law enforcement almost always trump, but there
would be the occasional egregious case where the executive branch of-
ficial, reflecting community standards, might opt not to use evidence in
a prosecution.
Finally, this subject introduces an interesting interplay between Con-
gress and the Court regarding the Miranda rules. The attempt by Con-
gress to undo Miranda statutorily was rejected by the U.S. Supreme
Court, in an opinion written by Chief Justice Rehnquist.3 In dissent, Jus-
tice Scalia accused the majority of creating a new category of binding
precedent: a constitutional rule. Such a rule was not to be found in the
Constitution itself, but it could not be reversed by Congress. If Justice
Scalia’s criticism were warranted, it would be a devastating indictment
of the intellectual integrity of what the Court does. The Court binds
Congress only because it purports to announce what the U.S. Constitu-
tion requires, not because it has the right to make up useful rules short
of constitutional compulsion.4
Affirmative Action: The Use of Race
by Government
The inherent advantage of the judicial branch is in defining the con-
tours of constitutional rights. In Regents of the University of California v.
Bakke, Grutter v. Bollinger, and Gratz v. Bollinger, the right of state uni-
versities to make use of race in their admissions policies was consid-
ered.5 In so doing, the Court showed an institutional disadvantage: am-
biguity in its ruling. There were three major different positions
announced by the Court in Bakke: four justices held that any use of race
by the state required the highest kind of justification, four justices held
that most uses of race with a remedial purpose were permissible, and
one justice (Powell) allowed race for purposes of diversity in education
only, and then only as a plus factor, not as a determinative factor. In
Gratz and Grutter, almost the same kind of split resulted, with only two
justices (O’Connor and Breyer, and only the former explicitly) embrac-
ing the middle ground. A statute by Congress or a decision by the exec-
utive to terminate federal aid would not have such potential ambiguity.
The inherent advantages of the judicial branch include an ability to
monitor an enforcement decree. If the use of race is appropriate in a re-
medial context, judges can and have kept jurisdiction over cases for
years, watching the outcomes and, in some cases, eventually terminat-
Introduction 7

ing the litigation when the discrimination complained of has been erad-
icated. In going beyond the purely remedial context, the majority opin-
ion in Grutter and the Powell position in Bakke present serious chal-
lenges to the capacity of the judiciary. When is the attainment of racial
diversity in education so slight a state interest as to be no longer com-
pelling (Grutter contains language suggesting racial diversity might be
compelling only for law schools, because of their role in training gov-
ernment and civic leaders), when has sufficient racial diversity been
achieved so that the use of race must be phased out (Grutter seems to
create, in a judicial opinion, a legislative-like twenty-five-year duration
for the practice of using race), and how much of a plus factor becomes
a determinative factor (twenty points out of one hundred are too
many)—all are questions to which the opinions give no answer. A leg-
islative solution would certainly offer more predictability, if the legisla-
ture cared to address each question in turn.
The inherent advantage of the legislative branch, to set rules clearly,
responsive to the present need, is nevertheless taxed in this context. Ap-
peals to race occur in politics; and dangers of an appeal to race lurk
even in statutes with a benign purpose on their surface.
A possible solution would allow a policy-making political body to
make clear rules of general applicability, so long as the political body
had a First Amendment kind of protection in doing so and was insu-
lated from the worst of racial politics. Alternatively, the entire enter-
prise of using race could be restricted to specific instances of remedia-
tion under a court’s supervision.
The Fiesta Bowl: Cutting Off Federal Aid to
a Recipient That Discriminates
Poor drafting by Congress created uncertainty as to what kind of dis-
crimination by a recipient of federal funds was enough to trigger a cut-
off of those funds. Overstepping its inherent advantages, the U.S.
Supreme Court attempted a Solomonic compromise: extending the
reach of the federal oversight but moderating the effect of its sanction.
Congress, in turn, missed the opportunity to make use of its own in-
herent advantages by simply rewriting the law. Instead, engaged in an
effort to chastise the Court, Congress literally reversed the Supreme
Court’s opinion, construing the ambiguous words of the original stat-
ute rather than rewriting them. The result was a Draconian statute,
8 Introduction

with a quick trigger and cataclysmic consequences, which became evi-
dent when the executive branch entered the dispute when the organiz-
ers of the 1991 Fiesta Bowl announced a scholarship for minority-race
students at the competing schools.
It is an undoubted executive prerogative to choose whom to prose-
cute, or against whom to proceed civilly, but not every prerogative is
wisely used. In threatening to terminate all federal funds to two col-
leges whose only failing was to accept students who in turn had ac-
cepted scholarships awarded to African Americans only, the federal De-
partment of Education was applying the law, as newly amended by
Congress, quite literally, but in a way virtually no one in Congress
would have wished. Showing the advantage the executive has to move
more quickly than either of the other branches, the Department of Edu-
cation changed this policy in a matter of days. Further, in announcing
guidelines for how it would prosecute such cases in the future, the ex-
ecutive branch effectively reversed both the U.S. Supreme Court and
Congress. In the absence of a private right of action, prosecutorial dis-
cretion becomes the effective equivalent of suspending a statute, at least
for the duration of a president’s term.
Roe v. Wade
Perhaps the most contentious issue in modern American domestic dis-
course, the issue of abortion has also tested the boundaries of the in-
herent advantages of the several branches. The states begin our inquiry:
they are the repository of all legitimate governmental powers not
specifically given to the federal government. In exercise of those pow-
ers, some states had prohibited abortions, some had permitted them up
until a particular point of a pregnancy. We can cast the issue as deter-
mining when human life begins. The Constitution does not state which
branch of government makes such a decision; following the Tenth
Amendment’s language, therefore, it might seem it should be left to the
states.
It is, however, the advantage and obligation of the federal judiciary
to apply the U.S. Constitution even to laws of the states. In the abortion
context, this role had two important ramifications. First, it fell to the
Court to decide who gets to enjoy constitutional rights. In Roe v. Wade,
the U.S. Supreme Court ruled that an unborn child or fetus was not a
person for purposes of the U.S. Constitution. Second, the Court’s role
Introduction 9

includes defining the contours of the constitutional right of privacy; the
Court did so, so as to include a woman’s right to terminate her preg-
nancy at least in the first trimester. Combining the two holdings, a state
could not prevent a woman from exercising her constitutional right of
privacy without a compelling reason, and saving the life of that which
was not a person did not qualify.
Whether popular or not, the Court’s unique role is to be the ultimate
voice on constitutional rights. One can imagine the Court fulfilling that
role in another way, however, in the Roe v. Wade context. The Court
could have held that the Constitution’s protections extend to unborn
children or fetuses from the moment of conception. Hence, if a state
wanted to prohibit abortion, it could do so. Further, a state hospital
probably could not perform abortions, except to save the woman’s life,
since the state would be depriving the child of her or his life without
due process of law. Either outcome appears consistent with the Court
fulfilling its role.
In imposing trimesters, the Roe Court was roundly criticized for act-
ing like a legislature.6 Nineteen years later, the Court reformulated the
trimester approach into an inquiry whether a woman’s constitutionally
protected right was being unduly burdened.7 This approach demon-
strates a much more judicial function, whereas Roe demonstrated more
of a legislative one. Courts traditionally have had to assess whether
neutral statutory schemes nevertheless unduly burdened constitution-
ally protected rights.8
The movement from Roe to Planned Parenthood v. Casey, however, was
a difficult one for the Court to make and still claim consistency. In up-
holding the essential part of Roe, Planned Parenthood nevertheless re-
versed several cases decided in between, cases that had been decided
more in keeping with Roe’s language of an almost absolute right in the
first two trimesters. The Court was, quite obviously, experimenting
with different phrases for the privacy right in question; and doing so
did little to support its claim that all it was doing was finding and an-
nouncing constitutionally protected principle.
Could the other branches have done better? This is not an area where
Congress or the executive appear to have institutional advantages, as
compared with the Court. The whole issue arises because of the asser-
tion of a federal constitutional claim, and that is for the Court to decide.
Were that federal constitutional issue taken away, there is no doubt that
both of the political branches would reflect a point of view on this issue
and thus that they could adopt whatever was common between the
10 Introduction

president’s and Congress’s view. However, if there were no constitu-
tional issue, it might be institutionally preferable to see the question re-
vert to different states’ solutions, rather than one answer for all, which
Congress or the executive would give. If that happened, we would very
likely see several different rules for abortion across the several states,
just as we see different states’ laws on marriage, divorce, and child cus-
tody. Our system of government allows, even encourages, that degree
of difference between the several states.
But that degree of allowable difference does not permit a state to say
freed slaves, or their descendants, are not citizens. Would we be content
to say women have the right to end a pregnancy in some states but not
in others? Would we be content to say an unborn child or fetus is a per-
son in some states but not in others? Pro-life or pro-choice, there seems
to be little room for the middle. The Court chose one side. The Court’s
critics, I believe, wish the Court had chosen the other side, not that the
Court had never made a choice.9
The Burden of Proof in Civil Rights Cases
The crafting of the 1964 Civil Rights Act demonstrates advantages of
the legislative branch. The 1964 Congress anticipated and provided,
through compromise, for particular concerns that had been expressed
about taking civil rights enforcement into the individual private em-
ployer context. The Court, however, six years later, adopted a broader
application than the 1964 compromise. When the Court attempted to
cut back on that ruling nineteen years later, Congress responded with a
new law. The way in which the Court attempted to cut back purported
to make use of judicial virtues: specifically, by setting burdens of proof
rather than by trying to reinterpret phrases in the law.
Chapter 11 introduces the question of whether the setting of burdens
of proof is a courtlike or legislative-like function. There is no doubt that
it is an outcome-determining function.
In reaching this conclusion, Congress and the Supreme Court en-
gaged in a dialogue. Had the Court never expanded the 1964 statute to
allow proof in the absence of intent to discriminate, it’s highly doubtful
Congress would have enacted that rule on its own. Indeed, Congress
chose not to do so in 1964. Once this kind of suit was permitted by the
Court, however, it became impossible for a subsequent Court credibly
to undo what the earlier Court had done. The response by Congress
Introduction 11

was to cut through the pretense that all that was being decided was the
allocation of the burden of proof. Using its inherent advantage of writ-
ing a law specific to the problem at hand, Congress proceeded to codify
how to make out a case of discrimination in employment in the absence
of proof of intent. Congress had shied away from this attempt in 1964
but was emboldened to do so in 1991 because of the Court’s interven-
ing rulings.
Two Statutes—A Hundred Years Apart
In the immediate wake of the American Civil War, Congress dealt with
the lingering effects of slavery. Many years later, Congress acted again,
responding to the civil rights movement of the 1950s and 1960s. In be-
tween, the U.S. Supreme Court interpreted what Congress had done in
such a way as to limit private enforcement of the rights guaranteed im-
mediately after the end of slavery. Both Congress and the U.S. Supreme
Court revived their interest in the area, but the Court was presented
with its earlier decisions as obstacles. The Court attempted to interpret
the words of the older statute in a more expansive way, hampered by its
institutional need to appear to be consistent with the earlier interpreta-
tion and then, a few years later, tried to move back to the original, nar-
rower view. The Court’s approach showed it at a disadvantage. In at-
tempting to reconcile new and old opinions, it inadvertently created a
result that was not well suited to the modern era in which it was an-
nounced. Race and sex discrimination ended up being treated differ-
ently. The Court’s efforts exposed its implausibility in asserting it was
only interpreting congressional words and congressional intent.
Congress, by contrast, had no such impediment. It accepted the ear-
lier decisions and proceeded to set up new statutory rights. The ensu-
ing conflict was one that Congress, rather than the Court, had institu-
tional advantages in resolving. Congress relied on its inherent
advantage to address the specific problem at hand: the damages that
victims of state deprivation of civil rights should receive. In separate
statutes, Congress dealt with housing and employment discrimination
by private actors.
Once again, there was a dialogue between Congress and the Court.
The Court’s reversal of its older, narrower reading of the statute pro-
voked no change from Congress; the later Court’s narrowing of inter-
pretation, however, provoked a strong response. It is doubtful whether
Congress, without the Court’s recanting opinion, could have engen-
12 Introduction

dered the support to move from the status quo. In a manner that re-
peats itself often in these materials, we observe Congress reacting to the
Court, a testimony to the active nature of the Court’s modern role.
The executive figured in this example only in a small way. Through
vetoing a first version of the bill and eventually signing a version only
slightly different, the executive showed its inherent advantage to re-
spond to changing circumstances of popular will.
The Second Amendment
The inherent advantage of the U.S. Supreme Court, to discern and de-
fine constitutional rights that must be upheld even against popular will,
carries with it an obligation, too: that the Court actually take and decide
cases presented to it that raise the issue of such constitutional rights.
For the right to keep and bear arms, however, the Court has been con-
tent to remain silent for almost seventy years. Our constitutional
scheme appears to have this as a flaw: barring an original jurisdiction
case that presents an issue of personal constitutional privilege (and it is
hard to see how such a case could be constructed), there is no way to
force a ruling from the Supreme Court to uphold or to narrow a per-
ceived personal constitutional right. One inference is that the Court is
simply pleased with the lower courts’ decisions. This assumption may
have been valid while there was no split in the circuits; the widely vary-
ing bases on which the circuits have based their opinions, however,
make it hard to infer what view it is in which the Court has acquiesced
by silence.
The Court’s understandable desire to avoid being taken into a highly
controversial issue dividing the nation is a luxury it cannot forever in-
dulge. While the Court does resist definitively ruling on the meaning of
the Second Amendment, however, what is the role of the states and fed-
eral government? All officers of both state and federal government are
obliged to take an oath to uphold the federal Constitution. It is an insti-
tutional disadvantage of the legislatures, state and federal, that adher-
ence to that oath can lead to unpopular votes on bills, from time to time,
with a resultant temptation to disregard the oath, or at least to say that
it amounts to nothing more than an obligation to abide by the eventual,
ultimate determination of a right by the branch with political insula-
tion, the federal courts. How acceptable is that approach when the
Court will not rule?
If Congress or the state legislatures were to undertake a serious con-
Introduction 13

sideration of their constitutional duty in this context, what guides
should they take for the Second Amendment’s meaning? Congress
could take evidence on present-day needs for private ownership of
firearms and on the present-day meaning of the word “militia.” It could
engage in a historical analysis, with an ability, much broader than that
enjoyed by the courts, to summon experts and take live testimony on
the question.
The role of the executive, in choosing to prosecute, is demonstrated
in this context as well. The dismissal of a prosecution commenced by a
previous administration was on appeal at the time the executive
changed in 2001. Should the new executive have pursued that case for
the purpose of creating a circuit split, possibly forcing the U.S.
Supreme Court to take the case? Or is the inherent advantage of the ex-
ecutive branch also an obligation: that it choose whom to prosecute on
the fundamental fairness of the facts of that case and not for some
broader jurisprudential reasons? In INS v. Chadha, to be discussed be-
low, the attorney general essentially created a case to challenge the con-
stitutionality of the legislative veto. Is that an appropriate illustration
of executive branch inherent advantage or a cruel jeopardizing of an in-
dividual’s security in this country to win a point of institutional im-
portance for the executive branch?
The inherent advantages of the states are also of importance in this
topic. In that states are given the right to train militias and appoint their
officers, and to “well regulate” those militias, the federal government
should defer to the states’ determination of whether and how their cit-
izenry should be armed should service in the militia be required.10 If a
state explicitly chooses to have its militia drawn from among its citizens
upon need, rather than create a National Guard, the state’s choice
should be honored, if there is any meaning at all to the Second Amend-
ment. This might lead to a state preferring its citizens to possess their
own weapons. Alternatively, another state may “well regulate” its mili-
tia by forming a National Guard and taking guns away from all others,
unless the Second Amendment is read to grant an individual constitu-
tional right. The trade-off thus entailed between safety from crime and
accident and security against threat to person or state is one that the
state governments can each develop more effectively than if there were
one federal rule.
14 Introduction

Methods of Solving Separation of Powers Issues
One approach to easing institutional friction between the executive and
legislative branches is the legislative veto. Though held to be unconsti-
tutional, it offered significant opportunity for both executive and leg-
islative branches to utilize their inherent advantages.11 Congress would
set broad policy and allow the executive to tailor that policy to individ-
ual circumstances. Any particular instance could be called back by the
same body capable of having prevented the grant of authority going to
the executive in the first place. No one disputes that Congress can, con-
stitutionally, pass statutes that deal with minutiae; it’s just more effi-
cient if Congress doesn’t have to do so. The alternative of simply sur-
rendering an entire area to executive discretion exists in theory, but
what has happened since the demise of the legislative veto is an infor-
mal system of congressional oversight much less visible to the public
and much less inclusive of all the members of Congress.
Another way to approach the fitting of general laws to difficult cir-
cumstances is to encourage in the courts a broader use of their powers
of equity. This possibility also was cut back by Supreme Court opinion;
and, I believe, the opportunity to benefit from an inherent judicial ad-
vantage was thereby lost. A fundamental reason we have judges with
broad discretion, rather than ministerial magistrates applying legisla-
tively set rules unwaveringly, is because we recognize broad rules don’t
always fit specific circumstances. One large but well-defined category
for the exercise of this kind of discretion is the case where a new statu-
tory regime impacts projects undertaken before the statute’s effective
date. Congress could establish an absolute rule of no retrospective ap-
plication or an absolute rule of retrospective application; but an ab-
solute rule loses the advantage of individual accommodation. I suggest
the Court erred in denying this role to federal courts in the snail darter
case; however, the Court’s abnegation of this authority for itself led to a
new statute creating an interagency, and intergovernmental, process for
resolving such special cases.
Litigation by Legislators
Legislators will sometimes take matters of disagreement with the exec-
utive branch to the courts for resolution. I explore those cases and ad-
vocate that a broader willingness to entertain such challenges be
Introduction 15

adopted by the courts. At the very least, a case that otherwise fits the
“case or controversy” requirement, is not moot, is ripe, and is not a po-
litical question should not be barred from adjudication simply because
the plaintiff is a legislator. There should be greater, not lesser, use of the
courts to resolve legitimate areas of disagreement between the two po-
litical branches, where the disagreements are not of a policy nature
(should we go to war) but of a constitutional rights nature (what action
by Congress is required before we go to war). The role of the Court to
resolve such disputes is consistent with the Court’s institutional advan-
tages and is infinitely better than the alternative: stored-up resentment
between the political branches or the escalation of disagreements that
could have been resolved with no loss of face into “must-win” battles
for supremacy going far beyond the constitutional issue of allocating
power.
notes
1. People v. Johnson, 755 S.W.2d 92 (Tex. Crim. App., 1988).
2. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971).
3. Dickerson v. United States, 530 U.S. 428 (2000).
4. However, it is fairer to see what the Court did in Dickerson as reaffirming
a constitutional holding, that some prior warnings were needed to make custo-
dial confessions admissible. Congress tried to say no warnings at all were
needed. The post-Miranda Supreme Court decisions cited by Justice Scalia
should be construed as saying Miranda warnings, per se, were not needed, but
some warnings were.
5. University of California Regents v. Bakke, 438 U.S. 265 (1978); Grutter v.
Bollinger, 2003 U.S. Lexis 4800; Gratz v. Bollinger, 2003 U.S. Lexis 4801.
6. J. Ely, “The Wages of Crying Wolf: A Comment on Roe v. Wade,” 82 Yale L.J.
920 (1973).
7. Planned Parenthood v. Casey, 505 U.S. 833 (1992).
8. In free speech cases, for instance, a neutral regulatory regime that never-
theless impinges on expressive conduct can be upheld. See, e.g., United States v.
O’Brien, 391 U.S. 367 (1968).
9. I believe most, not all, of the Roe Court’s critics were not so much unhappy
that the Court chose to take abortion to the constitutional level as they were that
the Court failed to uphold the personhood of the unborn child or fetus.
10. U.S. Const., art. I, § 8.
11. INS v. Chadha, 462 U.S. 919 (1983).
16 Introduction

The Judicial Branch
The judicial branch can draw upon its experience with trials to develop
rules of evidence and presumptions that yield orderly resolution of dis-
putes. One of the most powerful of these rules is the burden of proof.
Although it was developed by courts ostensibly to facilitate the most ef-
ficient methods of proof (principally by the rule that the party in the po-
sition most able to prove a salient point should have the burden of do-
ing so), control of this rule can often determine the outcome in a case. In
Chapter 11, I discuss one of the most powerful recent uses of the bur-
den of proof, one that effectively closed off an entire class of civil rights
cases. So powerful was this result that Congress took the unusual step
of passing a new law in 1992, in response to the Supreme Court’s deci-
sion, in order to reallocate the burden of proof in these cases.
Where an issue turns on a conflict of private claims, the judicial
branch incorporates the best safeguards that each side will be fairly and
fully heard. No legislative hearing can ever guarantee the procedural
fairness of a court trial.
The judicial branch can accommodate a general rule to specific situ-
ations, so as to accomplish a result in any given case that accords with
justice. The Supreme Court has both embraced and rejected this oppor-
tunity in different cases discussed in Chapter 14, focusing around the
case of a fish (the snail darter) and a TVA dam. The judicial branch can
propose statutory interpretations when the legislative branch has been
ambiguous. Through “dialogue” with the legislative branch, necessary
chapter
Synopsis of the Advantages of the Separate
Branches of Government
2

corrections of misinterpretations can be made and acceptable interpre-
tations of ambiguous phrases that the legislature would not cure on its
own can be adopted. This process is illustrated in the series of Court de-
cisions and congressional reactions surrounding the right to sue for
damages in two statutes passed a hundred years apart, discussed in
Chapter 12. The two branches engaged in a conversation, a process, I
contend, in which Congress has the institutional advantage by reason
of its superior ability to craft language for multiple contingencies.
If it is accepted that a court will adapt a general statute to do justice
in individual cases, however, the legislature might choose not to resolve
difficult questions, simply relying on a court to make the difficult pol-
icy calls in the context of specific cases. This practice is discussed in
Chapter 4. An instance in which Congress intentionally left a statute
vague is drawn from the issue of retroactivity of the 1992 Civil Rights
statute. This particular instance allowed a legislative compromise to be
achieved, since both sides were able to point to the ambiguous lan-
guage as a victory, although knowing full well that only one side could
prevail when the matter eventually came before a court. I contend, nev-
ertheless, that this is not good public policy, as the elected representa-
tives should have been forced to decide the question.
The judicial branch has the strongest inherent advantage of discern-
ing and describing constitutional rights of individuals. The political
branches are under a great deal of pressure to disregard such rights, at
least in many cases; key to the federal judicial branch’s advantage here
is the federal system of life tenure and no diminution of pay. Chapter 10
on Roe v. Wade deals directly with this process; so also does Chapter 7
on the exclusionary rule. In each area, the Supreme Court has been ac-
cused of “creating” new rights. However valid that criticism, there is no
doubt that the Court has the duty of “discerning” constitutional rights.
One way to assess whether the Court has gone too far, from discerning
to creating constitutional rights, is to explore how an error by the Court
can be corrected by the other branches or by the people directly in a
constitutional amendment. This option is explicitly analyzed in Chap-
ter 10, dealing with the constitutional right to privacy in the context of
abortion.
The disadvantages of the judicial branch include the potential of
overreliance on stare decisis, denying a just outcome to the parties in
any particular case in service of the Court’s institutional need to appear
consistent. This problem is analyzed in Chapter 5. I provide some his-
torical research, however, to suggest that very seldom has the Court ac-
tually practiced what it claimed—that is, ruling contrary to the ex-
20 structural features

pressed preference of the majority justices simply to stay consistent
with an earlier interpretation. So, in practice, this disadvantage may not
loom very large.
The judicial branch must rule by categories, in announcing a general
principle that produces the result in a particular case. We will see in
these materials many examples where the general principle then devel-
ops a life of its own, with unforeseen consequences. No clearer example
can be presented than the circumstances surrounding the Fiesta Bowl in
January 1991, discussed in Chapter 9. In completely unforeseen ways,
doctrines announced by the Court in earlier cases and statutory re-
sponses from Congress converged to produce a result virtually no one
had anticipated or actually desired.
In the constitutional area, one alternative to developing a general
rule judicially is to make the change through a constitutional amend-
ment, which can be as narrow as the immediate problem at hand, with
no broader ramifications at all, if properly drafted. In Chapter 6, deal-
ing with flag burning, I advance the position that a constitutional
amendment specifically directed to this practice would run a lower risk
of undermining First Amendment values than what Congress at-
tempted, in literally creating a test case for the Supreme Court to recon-
sider a politically unpopular holding.
The judicial branch is hampered by the need to have a case arise,
which is increasingly more of an obstacle as private rights of action are
cut back (often by the Court itself). Hence, as a reliable engine for re-
solving a pending social issue, the Court is inferior to the legislative
branch.
Contrariwise, the judicial branch is under no obligation to act.
Hence, important social issues that require definitive, authoritative res-
olution, even of a constitutional issue, can linger for years. This prob-
lem is explored in Chapter 13, addressing the Second Amendment.
Whether one is in favor of these rights or opposed to an expanded view
of an individual’s rights under the Second Amendment, it is my con-
clusion that the Supreme Court has been derelict in refusing to give
modern interpretation to words almost two and a quarter centuries
old—while not hesitating to do so in the context of the other provisions
of the Bill of Rights. The failure of the Court to provide a ruling has kept
both sides from attempting the one means of resolution that would be
most appropriate to situations such as this: the drafting of a modern
phrasing of either side’s view of the issue in the form of a constitutional
amendment.
The judicial branch is limited in what it can do to reconstruct legisla-
Advantages of the Separate Branches 21

tive language when presented with partially invalid statutes or statutes
that conflict. The result can be rules that would never have been
adopted by the legislative branch on its own but which remain the law
because of the lack of a majority in the legislative branch to affirm or to
change them. This pattern is demonstrated in Chapters 11 and 12. The
1964 Civil Rights Act was a compromise on many dimensions; in sub-
sequent cases, the Court broke some of those compromises, reaching a
result that could not have been achieved at the time the law was
passed. For many years, victims of race and victims of gender discrim-
ination had different remedies as a result of this process, even though
there was no evidence Congress intended such a result. The Fiesta Bowl
instance in Chapter 9 also illustrates this process—laws intended to end
discrimination by recipients of federal aid ended up being used to stop
private philanthropy.
Lastly, the judicial branch is at a disadvantage in trying to ascertain
facts not of the kind presented as evidence in trials. From time to time,
the Court will cite publications of a social science nature; however, it
has no means to order the production of studies or professional analy-
sis of the studies of which it seeks to take judicial notice. This disad-
vantage becomes more apparent as the judicial branch bases its hold-
ings on evidence beyond what the traditional adversary process
develops. Chapter 7 most fully discusses this phenomenon. The context
is the exclusionary rule. The Court expounds at length, over many
years, on the likely deterrent effect of various rules of admissibility on
police misconduct, on witnesses’ willingness to perjure, and on the
propensity of guilty defendants going free—each proposition the ap-
propriate subject for social science research but wholly inappropriate to
the means of proof available in the context of a specific criminal trial.
Elements of this misanalysis occur as well in the affirmative action
cases discussed in Chapter 8, where the Court finds the value of achiev-
ing racial diversity in law school classrooms compelling but dismisses
it in (so far) every other context of governmental action.
The Legislative Branch
The legislative branch can order any kind of study it needs. While its
hearing processes don’t guarantee the rights of cross-examination and
equal opportunity to rebut found in the judicial branch, a kind of rough
equality exists from the composition of the legislature and its commit-

tees. The hearings before the Judiciary Committee on the flag-burning
amendment, discussed in Chapter 6, show this process at work.
The legislative branch is the master of words. It can write the laws. It
can amend them to deal with subsequent developments not originally
foreseen. It has no need to be consistent over time or between laws; this,
of course, is both an advantage and a disadvantage. We see this advan-
tage to full effect in the 1992 Civil Rights Act discussed in Chapter 11.
Only Congress could pull together different strands of civil rights ju-
risprudence extending for more than a century and produce a coherent
rule going forward.
The legislative branch is the best branch at balancing interests. The
intangible is its forte. How much money will be taken from crime de-
terrence to increase teachers’ salaries is a question of everyday reality
for legislators, for which the judicial branch is entirely unequipped and
the executive branch substantially less equipped. Chapters 11 and 12
provide examples of this outcome. New rules to allow plaintiffs an eas-
ier chance of prevailing in civil rights actions were adopted by Con-
gress, but with a sliding scale of damages depending on the size of the
corporate defendant so as to take into account the competing interest of
preserving employment. No court could have reached such a result.
(One illustration of a court attempting it, nevertheless, is provided in
Chapter 8 on affirmative action. Justice O’Connor ruled that affirmative
action was permissible—but only for twenty-five years.)
The legislative branch can express the will of the people. Sometimes,
a simple expression of belief is all that is required. The legislature errs
when, to make a hortatory point, it enacts positive law. This conclusion
stands out in the flag-burning discussion in Chapter 6. Criminal stat-
utes were used to make patriotic statements, with an effect damaging to
civil liberty.
The legislative branch can opine on how conflicts between constitu-
tional rights should be resolved. It is not final in this enterprise, of
course, but it can express its view, and the Court should pay it some re-
spect. For instance, if a state legislature chooses to champion free exer-
cise of religion over vindicating the ban on establishment of religion, in
the area where more than one outcome would be constitutionally per-
missible, the legislature can and should be heard. The Supreme Court,
however, has cut back on the ability of Congress to use the Civil War–
era constitutional amendments to effect such a result, a restriction I be-
lieve is unwarranted. This issue is presented in Chapter 10, dealing

with legislative approaches to abortion, and Chapter 8, dealing with
the desire to advantage members of one race through government ac-
tion.
The legislative branch can communicate with the judicial branch by
compelling a case to be heard, assuming “case or controversy” require-
ments are met. The flag-burning statute discussed in Chapter 6 con-
tained just such a provision.
The legislative branch has the final word about the meaning of stat-
utes, provided no constitutional issue is involved. If the Supreme Court
misinterprets a statute, Congress can correct it. The process is illus-
trated in detail in Chapters 9, 11, and 12, all dealing with civil rights.
The major disadvantage of the legislative branch is that, despite the
oath requirement of the U.S. Constitution, analyzed in Chapter 3, legis-
lators have strong incentives to ignore constitutional requirements that
are not popular. The rush to pass a statute prohibiting flag burning il-
lustrates this tendency; it is discussed in Chapter 6.
The legislature’s ability to shift quickly can lead to inconsistency and
uncertainty, a complaint often voiced in the tax area. However, the leg-
islative branch can take that factor into account when it is deciding to
make a change in the law; nothing compels it to make frequent changes.
The legislature tends to be nondeliberative. Problems of a complex
nature are subjected to a process that lasts no more than two years. The
founders’ attempt at balancing this nature of the House by an ap-
pointed Senate of staggered six-year terms was substantially impeded
by the direct election of senators. All the efforts at drafting an anti-flag-
burning statute betrayed this weakness; none became permanent law.
The legislature cannot do justice in a particular case. The constitu-
tional prohibition against ex post facto laws prevents this in the crimi-
nal sphere; in the civil area, the prohibition against takings without just
compensation, or without due process of law, requires legislation by
broad category. Some alleviation from this disability is provided in pri-
vate bills. Attempts to accomplish individual oversight of broader con-
gressional action are discussed in Chapter 14, with specific reference to
the legislative veto.
The legislative branch is under no duty of consistency. Some state
legislatures have a process in place to prevent inadvertent contradic-
tions;1 the U.S. Congress does not. The judicial branch, by contrast, op-
erates under a process that fairly well guarantees all relevant precedent
will be brought to the Court’s attention. The congressional system has
no such safeguard. The conflicting statutory provisions regarding dam-

age actions in civil rights cases discussed in Chapter 12 came about as a
result of this weakness.
The Executive Branch
The greatest advantage inherent in the executive branch is its flexibility.
It can respond to a problem by instructing an agency to deal with it. It
can order a rule to be promulgated, subject to the Administrative Pro-
cedures Act, much faster than it takes for a typical law to pass and,
through enforcement policy statements or individual advice to particu-
lar individuals, can give guidance as to how a law will be enforced.2
The Fiesta Bowl circumstances under President Bush in 1991 showed
the flexibility of the executive branch at its best in this regard.
The executive branch, through its prosecutorial discretion in the
criminal context and its choice of whether to enforce statutory obliga-
tions otherwise, can ameliorate the potential injustice that might come
from the application of a harsh rule to specific conduct. The continuing
consequences of the Fiesta Bowl circumstances under President Clinton
demonstrated this attribute.
The executive branch is the only branch capable of carrying on diplo-
macy. It is vested with this unique authority so as to give confidence to
our international interlocutors that a deal struck is a deal kept. Whether
this should exclude legislators from insisting on their role in participat-
ing in the decision to go to war is extensively discussed in Chapter 15.
It is a potential vice of the executive branch that, where there is no
private right of action, it can actually nullify the intent of the legislative
branch by failing to bring enforcement actions in a particular area. The
executive can also effectively veto a law, during the life of its adminis-
tration, by not spending money appropriated for the purpose of the
law. Courts have ordered the expenditure of funds to vindicate judicial
judgments of a constitutional nature; they have not, however, finally re-
solved to overcome an executive impoundment of appropriated funds.
I list this as a disadvantage, despite the fact that the executive branch
may view it advantageously, since, like a decision not to enforce a law,
it represents the assertion of a nullification power beyond the power to
veto a law and hence, in my view, impermissibly intrudes upon the leg-
islative branch. How the legislative branch is stymied by this practice is
discussed in Chapter 15, dealing with the court-imposed barriers to the
standing of individual legislators to bring a lawsuit against the execu-
tive.

The executive’s power to present the other branches with a fait ac-
compli is another problem. By its nature, the executive takes action. The
other two branches must react. In the absence of a legislative majority
to act one way or the other, therefore, it is the executive whose will pre-
vails. Regarding the judicial branch, the same result obtains where the
Court has followed a rule of abstention such as the political question
doctrine. Once again, these issues are treated in Chapter 15.
The executive branch has the least “sunshine” of all the branches.
Administrative agencies must comply with the Administrative Proce-
dures Act, and, where a public advisory committee has been consti-
tuted, an executive department or agency must abide by the provisions
of the Federal Advisory Committee Act.3 There are state analogues as
well. However, none of these precautions overcomes the fact that the
great majority of decisions made by the executive branch are made
without public hearing or public participation. This is inherent in the
fact that the executive is one person, whereas the other two branches re-
quire the participation of more than one person. Since one person can
act with no meetings of any kind, it is an inherent disadvantage that
there is no structural way to compel public input or sunshine into the
decisions reached by that one person.
The executive branch has no dissenting opinions and no minority
party. Hence, the natural ameliorating influence of an institutional role
of dissent is missing. The advantage is speed and resolve; the disad-
vantage is frequency and gravity of error. However, these disadvan-
tages can be overcome by a willingness and ability to change, with no
need to seek anyone else’s approval to do so. The first decision in the Fi-
esta Bowl context illustrates this disadvantage: it appears that a policy
decision of the greatest domestic consequence was implemented by a
midlevel member of the executive branch—to the soon embarrassment
of, and quick reversal by, the head of the executive branch.
The States
This work is one on separation of powers, not federalism. Nevertheless,
we encounter some advantages traditionally ascribed to leaving mat-
ters at the state level and some disadvantages. The advantages are ex-
perimentation and the ability to tailor local solutions to local condi-
tions. The disadvantages flow from the areas of constitutional right and
bringing our nation closer together. It is no advantage to “experiment”

with rights that the U.S. Constitution guarantees to all; however, that
conclusion points out the importance of ascertaining those rights cor-
rectly and not in an overly broad manner. Once a matter is judged by
the U.S. Supreme Court to be of federal constitutional right, the ability
of states to work out possibly therapeutic approaches to the issue be-
comes circumscribed. Similarly, differences between states in some sub-
jects can seriously impede the economic and social integration of our
nation. These aspects of state versus federal authority are presented in
the context of trying to interpret the Second Amendment’s reference to
states regulating their militia in Chapter 13 and each state interpreting
when life begins in Chapter 10.
The Constitutional Amendment
A manner of dealing both with policy and with constitutional principle
is afforded by the amendment process itself. Frequently overlooked in
separation of powers discussions, this process can offer advantages
over the judicial branch in the constitutional principle area. Since a
court must rule by category, a holding in a matter of constitutional prin-
ciple will often have consequences beyond the precise controversy pre-
sented in the case; and because the resolution is explained in constitu-
tional terms, those unforeseen consequences will be difficult for the
Court to overturn without damaging its perceived consistency. In such
a setting, a constitutional amendment can be written as narrowly as a
statute but have the status of constitutional principle. The process of
seeking a constitutional amendment can also be a beneficial outlet for
political resentment against constitutional holdings by the judicial
branch. I offer this approach as potentially beneficial in the context of
flag burning in Chapter 6, gun control in Chapter 13, and abortion in
Chapter 10.
notes
1. The California legislature, for example, has an Office of Legislative Coun-
sel, whose function, among other tasks, is to analyze every bill introduced for
conflict with existing law. By the time the bill comes to the floor of the first
house of the legislature, suggested language to “chapter out” these inadvertent
contradictions is provided by the Legislative Counsel. Indeed, such language is
present in the original draft of the bill, unless the legislative “author” explicitly
asks that it be removed. This service is remarkable for its quality and public

benefit. It is made more possible in the case of the California legislature than in
the case of the U.S. Congress by reason of the fact that there is a maximum limit
on the number of bills that any member of the California legislature can intro-
duce in any term, whereas there is no such limit in Congress.
2. 5 U.S.C. § 553.
3. 5 U.S.C. app. 2, §§ 6, 8.

The Procedural Rules of the House
of Representatives
The workings of the House of Representatives permit skillful manipu-
lation of the rules of the House to govern substantive outcomes. Let us
start with an example: the 2002 Campaign Finance Reform Act. This il-
lustration demonstrates how the rules worked to delay a substantive
outcome and how those rules were eventually overcome.
Example from the Campaign Finance Debate
On July 12, 2001, the U.S. House of Representatives defeated a motion
establishing the procedural rules for the debate that was expected to
take place regarding campaign finance reform.1 The McCain-Feingold
campaign finance reform measure had two main parts: the abolition of
the unconstrained contributions going to political parties (“soft
money”) and a restriction on use of the airwaves in the time just before
an election by political advertisements financed outside the strict can-
didate campaign contribution limits. In order for the bill to pass the
Senate, the bill’s authors had accepted an amendment that increased
the size of individual contributions that could be made to specific can-
didates. Standing alone, that amendment appeared to be directly con-
trary to the spirit of the bill to limit the influence of money in politics;
but as part of a compromise that entirely eliminated soft money, the
amendment could be defended, at least by a candidate as well known
chapter
Rules of the Legislative Process
3

as the typical incumbent U.S. senator is.2 Members of the House, by
contrast, are not well known, even within their district. Voting in favor
of increasing the contribution limits to individual campaigns could be
characterized by a political opponent as a vote against campaign fi-
nance reform, and it would take effort to communicate effectively to
constituents that this was not so. That effort would be hampered by the
fact that such an amendment would also attract the votes of those
members of the House who were opposed to limits on campaign fi-
nance and, while intending to vote against the bill in chief, would be in-
clined to vote in favor of an amendment that made a bad bill, in their
eyes, somewhat better. An effective campaign tool could be to link the
“yes” vote of that amendment with the picture of a known opponent of
campaign finance reform who also voted “yes.”
To protect members in favor of limiting campaign finance from such
a predicament, the House sponsors of McCain-Feingold proposed that
all the changes necessary to make the House bill (called “Shays-
Meehan” after its House sponsors) identical to the Senate bill be con-
sidered in a single en bloc amendment. It is normal to allow the authors
of a bill being considered on the House floor to offer a series of “au-
thors’ amendments,” en bloc, allowing the author to present his or her
proposal as the author desires; but it is not universally so, particularly
where a bill has been the subject of intricate debate and compromise in
the committee. Shays-Meehan had not been considered by the relevant
committee. Instead, the relevant committee, the House Administration
Committee, had sent its own bill to the floor, allowing soft money to
continue but imposing overall contribution limits on such money. The
debate on the House floor was advertised as the showdown between
McCain-Feingold and the campaign finance bill that the House leader-
ship could accept. Procedurally, the Rules Committee of the House
could have arranged for precisely that: by taking the McCain-Feingold
bill directly to the House floor, as a Senate-originated bill that had
passed the Senate.
Instead, the Rules Committee made the Shays-Meehan bill in order,
along with the Administration Committee alternative. In the House,
amendments to bills are most often limited, and this gives an advantage
to those in control of the Rules Committee.3 Composed of thirteen
members, the party makeup of the Rules Committee is nine to four in
favor of the majority party. It was thus under the Democrats, as well as
under the Republicans, whatever the actual percentage of party mem-
bers in the House itself. The Rules Committee permitted the Shays-

Meehan sponsors to make the amendments they needed but required
that each amendment be voted on separately, rather than as part of a
single en bloc amendment.4 In that one requirement, the Rules Com-
mittee made it impossible, in the minds of the supporters of Shays-
Meehan, to bring their bill into alignment with McCain-Feingold, be-
cause it meant that the increase in the limit on individual contributions
would be voted on separately. It would stand out, alone, and any mem-
ber voting for it would be subject to being tagged as in favor of ex-
panding, not restricting, the role of money in the political system.
The Rules Committee could argue that they were doing no more
than replicating what happened in the Senate. After all, the increase in
the personal contribution limit had to be voted on separately there,
apart from any other amendments. In reality, however, that kind of re-
quirement was far more potentially controversial in the House, due to
the relative obscurity of House members.
Rather than proceed under a rule with that consequence, the sup-
porters of Shays-Meehan urged their colleagues to vote no on the rule,
and it was defeated.5 The House leadership was able to say that they
had allowed consideration of campaign finance reform and that it was
defeated by its own proponents, whose objections to the way of pro-
ceeding were related to their own political needs rather than the sub-
stance of the bill.6 The supporters of Shays-Meehan could have gone
ahead under the proposed rule, but if the bill passed the House without
the Senate provision on lifting contribution limits, it would necessitate
a conference committee before final passage. During the previous Con-
gress, the Patients’ Bill of Rights had died in a conference committee.
Members of the conference committee are appointed by the leadership
of each party, and there is no obligation that they finish their work be-
fore the end of the session. A conference committee, therefore, can be a
“Bermuda Triangle”—bills fly in and are never heard of again. Individ-
ual members serving on a conference committee might be subject to
discipline from their constituents for burying a popular bill; however,
the leadership of both houses choose the members of conference com-
mittees, and, typically, they are chosen from among the most safe dis-
tricts. For these reasons, a conference committee was seen as failure by
supporters of Shays-Meehan.
Eventually, however, the supporters of Shays-Meehan were able to
obtain 218 signatures on a discharge petition. A discharge petition
brings a bill immediately to the floor of the House, bypassing all com-
mittees. Since the bill appears without a rule, the proceedings on de-
Rules of the Legislative Process 31

bating such a bill are completely open: any amendment meeting the
minimum test of germaneness can be brought up, which would surely
have been disallowed by the Rules Committee. Since the House leader-
ship might have issues it would rather not see brought to the House
floor, and this is even more likely regarding amendments to a bill the
leadership did not even wish to see on the House floor, the obtaining of
218 signatures on a discharge petition creates a threat of more than sim-
ply the necessity of facing the underlying bill. Accordingly, on those
rare occasions when the necessary number of signatures has been
reached, it has been traditional for the House leadership to bargain
with a representative of those members of the same party as the leader-
ship to define the rules for debate on the measure, without surrender-
ing control of the House floor. In this rare instance, the dissident mem-
bers of the majority have the upper hand in bargaining, and they can
use that upper hand to craft the vote to be on a redraft of the bill that
was the subject of the discharge petition (thus finessing the problem
presented in Shays-Meehan of voting separately on amendments nec-
essary to bring the bill into line with the Senate version). To make this
work, the agreed-upon version, along with an agreement as to what
limited amendments will be made in order, is then put into the form of
a resolution from the Rules Committee, and that vote proceeds to the
floor. If the rule passes (that is, if both sides keep their word), then the
dissident members of the majority take their name off the discharge pe-
tition, cutting short that route to the House floor. That is what hap-
pened in the 2002 session, and Shays-Meehan passed the House in the
form its authors intended. It was then approved, without amendment,
in the Senate; a conference committee was bypassed, and the president
signed the law.
This episode demonstrates a fundamental point about the congres-
sional legislative process: that control of the rules often (but not always)
is enough to control substantive outcomes. This tendency is abetted by
the relative obscurity of House members, making it easier for an oppo-
nent to misconstrue a single vote in an election context, and by the ap-
parent lack of interest on the part of the American electorate in any-
thing procedural. An opponent can claim a vote on a rule actually
determined the substantive outcome of an issue, but the incumbent can
respond that it was purely a procedural vote. House members are vul-
nerable on any single substantive vote but not vulnerable on many, if
any, procedural votes. The result, predictably, is the use of procedural
votes by the House leadership to control outcomes.

What ultimately made campaign finance reform different was that
the issue itself was not obscure; indeed, it became so much a subject of
intense public scrutiny that enough members of the majority party
joined the minority party in signing a discharge petition. It is unlikely
that even that level of intense public attention would have been suffi-
cient to generate those signatures had the rules not changed in 1993,
making the signators to discharge petitions public. Prior to 1993, a
member could (untruthfully) claim she or he had signed a discharge pe-
tition, and no one could disprove it. This tended to make the achieve-
ment of 218 signatures less likely.
Examples of Other Procedural Devices
Other practices in the House demonstrate the exceptional power of
rules to control outcomes.
“King of the Hill”
Prior to 1995, a notorious practice was permitted in the House, by
which various alternative budget resolutions were considered under a
rule called “King of the Hill.” The annual federal budget resolution
must be approved before the individual appropriations subcommittees
commence their work. The budget resolution provides the overall num-
ber in each category that binds the number of dollars each appropria-
tions subcommittee is permitted to spend. The budget vote is a highly
visible substantive vote.
The vote to apply the King of the Hill procedure, however, is quite
abstruse. In adopting the procedure, the House would essentially guar-
antee the eventual outcome, while offering many political advantages
to individual members. This is because the King of the Hill rule pro-
vided that the last of several budget alternatives to receive a majority
vote would be the budget resolution, even if earlier alternatives had
more votes. The rule then provided for the order in which budget alter-
natives were considered: invariably, the last two alternatives were the
minority party’s version, then the majority party’s version. Earlier ver-
sions could include alternatives put forward by various caucuses
within the House; for example, the Congressional Black Caucus often
put forward its alternative, as did a group of budget-deficit hawks. Vot-
ing on those alternatives was essentially a free vote, since, even if they
passed, they would not become law. Only the last alternative would. To

the average voter, however, the claim that “I voted for the budget alter-
native to cut back spending far beyond what even my own party
wanted” could be salient in a district of fiscally conservative voters; the
claim of voting for the Black Caucus, or Women’s Caucus, budget could
be very helpful to an incumbent white male facing a black or a female
opponent. Attractive as this mechanism was for many years, its notori-
ety eventually undermined the credibility of an incumbent relying
upon it, and the King of the Hill rule was abolished after the Republi-
cans became the majority party in the House in January 1995.
Substitute Amendments on Appropriations Bills
On appropriations bills, a motion to cut may be offered by any mem-
ber of the House, but that motion may itself be amended, and the
Speaker will give preference in recognition to a member of the Appro-
priations Committee. As a result, an effort to cut appropriations
amounts can be effectively defeated by a substitute motion. Suppose a
member of the House (not on the Appropriations Committee) offers an
amendment to trim a particular appropriation by 10 percent. A member
of the Appropriations Committee will, typically, then rise to offer a cut
of 1, 2, or 5 percent as a substitute for the 10 percent cut. The way the
second amendment reads, however, is simply that “in line 43 of page
256 of the bill, the number 100 shall be changed to 99.” So, standing on
its own, the amendment is a cut. Only in knowing the context would
one realize that passage of such an amendment would prevent the
other amendment from coming to a vote, the amendment that said, “In
line 43 of page 256 of the bill, the number 100 shall be changed to 90.”
The natural inclination of many members of the House is to support a
small percentage cut; some waste can be assumed in virtually any pro-
gram. To vote the other way appears as though a member believes there
is not even 1 percent (or 2 percent, etc.) waste in any given program.
The curious point is that even the proponent of the 10 percent cut might
be driven to vote for the 1 percent cut, lest he or she be open to the crit-
icism next election that the incumbent would not even support a 1 per-
cent cut. That kind of claim, of course, would not be believable were the
incumbent’s actual voting record, or history of making appropriations
cuts, well known. For some members of Congress, such a record was
well known; but for most, obscurity reigns, and the result is the smaller
cut frequently prevails.
One possible route around this dilemma is to vote against the

smaller cut but, if it passes, ask for a roll-call vote on the amendment as
amended, on which the member could then vote aye. To obtain a roll-
call vote, however, one must catch the eye of the Speaker or, more often,
the person designated by the Speaker to preside. It is not uncommon
for the Speaker or Speaker Pro Tempore to announce the result of the
smaller-cut amendment and in the same breath, barely above the din on
the House floor, to announce: “The vote now occurs on the amendment
as amended, all those in favor say aye, those opposed say nay, the ayes
appear to have it, the ayes have it, and the motion to reconsider is laid
upon the table.” That will leave those in favor of the greater cut with no
recorded expression of their real sentiment. Indeed, their only recorded
sentiment will be opposition to even a tiny cut.
The rules of the House do provide for a recorded vote when de-
manded by one-fifth of a quorum, which means forty-four members.7
Should a particularly forceful member shout from the floor for a
recorded vote with such volume that it would be embarrassing for the
Speaker or Speaker Pro Tempore to ignore him or her, the forty-four-
member rule will be easy to meet because there will be at least forty-
four members still lingering on the floor after the vote just concluded
(the one on the lesser percentage cut).8 The Speaker or Speaker Pro
Tempore, tipped to the likelihood of this occurring, will simply allow
some time to elapse following the end of the recorded vote on the lesser
cut and the motion by the member of the Appropriations Committee to
approve the amendment as amended. Members will then have left the
floor, and to obtain the necessary forty-four standing at the time of the
request for a recorded vote, the member in favor of the greater cut will
have to ask for a quorum call. That can be done. However, members do
not take kindly to being summoned back from their offices, or their
committees, to the House floor, simply to say “present.” Members who
call for a quorum risk that their irked colleagues will not stay on the
floor, after voting “present” by their electronic voting card. As far as the
record is concerned, the member was there since she or he voted “pres-
ent.” But when the member seeking the quorum call then asks for a
recorded vote on the amendment as amended, she or he will find fewer
than forty-four members standing (or even present). There is no record
of who stays on the floor having voted “present” after a quorum call,
and it is difficult to see how there could be. The recorded quorum call is
the parliamentary manner of ascertaining who is present. Should it ever
be relevant, a member could say she or he did, indeed, stand to request
the recorded vote (whether she or he remained on the floor or not); but

we are now at such a level of abstraction that no election can be ex-
pected to turn on this matter. To make an issue of it, an opponent would
have to say something like, “You took part in an effort to prevent a
deeper cut to an appropriation item by denying Congressman Jones a
recorded vote on the amended version of his amendment, which
amended version cut spending less than Congressman Jones intended,
by your failing to stand when Congressman Jones asked for a recorded
vote.” The incumbent could easily reply, “The quorum vote proves I
was there, and I did stand. (For all you know.) I vote to cut spending
whenever I can. The 1 percent cut came up, so I voted yes. If the 10 per-
cent cut had come up, I’d have voted for that, too.”
In the face of such procedural advantages, the member offering the
deeper cut runs the risk of going on record as opposed to a lesser cut
and never being able, even in retrospect, to vote for any cut at all. By
hypothesis, such a member would consider cutting spending important
to her or his political persona; so it would be risky to oppose the sub-
stitute amendment.
Conclusion
In all these ways, the use of the rules can determine the substantive out-
come desired by the party that controls the Rules Committee and that
fills the Speaker’s chair. The ability to make use of the rules in this man-
ner is decided on the first day of a new session of the House, when the
newly elected members vote for the Speaker and adopt the rules. Those
are the two orders of business on the first day of a new session. The first
day of the new session is the day of highest party solidarity. No sub-
stantive votes have yet been made to expose fissures within party
groups. The set of rules includes committee assignments as well; and
while not everyone can get her or his first choice, very few in the ma-
jority party are prepared to jeopardize their own committee assign-
ments by voting down the rules. The minority party’s set of rules most
often mirror the majority party’s, except with the former in control, so
there is no improvement in the process by choosing that route and in-
curring the huge downside of political treason on the very first day.
Further, even if one were to have an alternative set of rules ready to go,
the Speaker’s election comes first, and catching the Speaker’s eye to of-
fer such an alternative set of rules can be safely classified as having a
probability of zero. Should the majority’s rules be disapproved, it can
be safely assumed the Speaker would immediately entertain a motion

to adjourn for the day, rather than recognize the author of an iconoclas-
tic set of rules. Game-set-match—until a Speaker is elected genuinely
committed to altering a system under which he or she rose to promi-
nence, a very unlikely possibility.
The Oath Requirement
The Senators and Representatives before mentioned, and the members of the
several State Legislatures, and all executive and judicial Officers, both of the
United States and of the several States, shall be bound by Oath or Affirmation,
to support this Constitution.
U.S. Const., art. VI, cl. 3
Five Possible Meanings
Logically, one can propose at least five different interpretations of the
oath requirement, with increasing levels of consequence for the indi-
vidual obliged to take the oath.
Simplest is to interpret the oath requirement as a mere trapping of office; it
is to be administered, then life goes on unchanged. It’s just part of the cele-
bration activities upon taking office and has no other purpose.
Second is to read the clause as requiring an affirmation of the sovereignty
of the United States, with the attendant obligation, at least, not to rebel
against that government.
Third is to require the person bound to observe the forms of the U.S. Con-
stitution in carrying out the governmental functions to which that person is
entitled by the office into which he or she is about to enter. Thus, it should
constrain a U.S. senator from sending out an appointment of an ambassa-
dor.
Fourth, the oath requirement could be read to require that the taker of the
oath not knowingly pass any law that the legislator believes to be unconsti-
tutional. This interpretation takes the legislator as we find him or her; it
does not impose a duty to inform oneself about how the Constitution
might apply to any particular bill.
Lastly, one can read the oath requirement in its strongest possible terms, as
requiring the taker to perform an independent analysis of the constitution-
ality of each bill on which he or she is called to vote.
The first interpretation is inconsistent with the fact that the require-
ment extends to state legislators, executives, and judges. The ceremo-
nial function could have been limited to the federal Congress. There is

no reason for a federal constitution to deal with ceremonies of the
states.
The second interpretation leaves very little for the oath requirement
to do, since there are laws against treason and provisions for impeach-
ment, whether the offender has taken an oath or not.
Professor George Anastaplo appears to hold this second view, that
the oath required little more than a promise not to deny the sovereignty
of our government. “The oath required need include only the promise
to support the Constitution. It is hardly likely that such an oath, re-
quired as it is of every National and State officer in the Country, pre-
supposes that each such officer understands the Constitution, but
rather only that he concedes it takes precedence over all other political
arrangements and allegiances in the Country.”9 (It’s ironic and a bit re-
grettable that Anastaplo sees no more to the duty incumbent upon tak-
ing an oath, in that in his own career, he sacrificed much for the princi-
ple of not having to take an oath.)
Such an oath requirement, for the sole purpose of clarifying to which
country one owes allegiance, makes some sense for new citizens; and
we do, indeed, require new citizens to take such an oath. But it seems
totally unnecessary as a requirement for all judicial, executive, or leg-
islative officers, federal or state, at least after the time of the American
Revolution. (As of 1787, it might have been a minimum stopgap against
Tories—or at least Tories who cared about giving their word falsely—
sneaking into the new government or into the governments of the
states.)
The third interpretation largely renders the clause empty, since the
purpose of the Constitution is to prescribe forms of governmental ac-
tion, and it adds nothing to that mandatory scheme to require an oath
as well. Furthermore, the federal supremacy clause immediately pre-
cedes this oath clause of Article VI, and it explicitly binds the judges of
state courts. Why go further than that to bind state legislators and ex-
ecutives, and all federal officers as well, since the final resolution of su-
premacy had already been dictated by the Constitution? The proximity
of the supremacy clause to the oath clause suggests that the oath clause
meant something other than simply that the forms of the U.S. Constitu-
tion were to be observed.
I have frequently heard a version of this third test, both in the House
of Representatives and in the state senate of California. A legislator will
frequently say that a particular matter “should be left for the courts to
decide.”10 As long as Congress passes laws, the executive enforces

them, and the judiciary applies them in specific disputes, the oath re-
quirements of all three branches are met, according to this view.
There is a purpose, sometimes, in leaving a term of a statute am-
biguous, where expectations differ about what the courts will eventu-
ally rule and when clarifying the term at the time of enactment will lose
one or another critical part of a coalition. Familiarity with that reality
has led legislators to apply the same thinking to a question of unconsti-
tutionality as well, however; and that, I suggest, should be a totally dif-
ferent matter. A legislator is using a palliative: someone else (the Court)
is looking after the constitutional issue, so I don’t have to do so. But the
legislator does have to do so—if the issue is whether the legislator is
about to vote to violate the Constitution.
In the fourth and fifth interpretations, we move into an area impos-
ing a more difficult burden upon members of Congress and state legis-
latures. Of the two interpretations, the fourth interpretation has the
virtue of practicality, recognizing, as Anastaplo does, that it is a lot to
require that legislators and executives make detailed study of the Con-
stitution, as the fifth interpretation would.
Nor is the fourth interpretation devoid of effect, as the first three es-
sentially are. If a legislator believes a bill to be unconstitutional, it
would forbid him or her from voting yes. The easy out, “let’s let the
courts decide,” would not be available. In Professor Donald Morgan’s
words, “Clearly the original oath [requirement] . . . was an effort to har-
ness the force of conscience, even of religious conviction, to the mainte-
nance of constitutional safeguards.”11
An actual instance of such an attitude within my own experience
dealt with an appropriations bill for the National Endowment for the
Arts (NEA), to which an amendment was proposed to terminate grants
to projects that denigrated a major religion. Upon pointing out the ob-
vious First Amendment problem to the author, I was told by him,
“We’ll let the courts decide that.”
The irony of this fourth view is that legislators better informed about
the Constitution would be at a distinct political disadvantage. (Indeed,
my “no” vote on the “major religions” NEA amendment was used
against me by a conservative opponent in a subsequent campaign, even
though I never voted for NEA funding itself.) A legislator who invests
the time to consider the constitutionality of his or her act would be con-
strained, in a manner their colleagues are not, from doing what might
be politically popular. There might even be an incentive to stay igno-
rant of a constitutional rule, to invest nothing in learning more of the

Constitution, salving one’s conscience with the thought that the courts
will, eventually, be the arbiters. No final harm will be done, the legisla-
tor may think, and the short-term political goal can be served.
Lastly, we can ask legislators to study the Constitution, at least to the
same extent they study the subject matter of the legislation on which
they are to vote. Expert witnesses are called upon to testify on the latter;
they could also be called on as to the former. No one can fault a mem-
ber of Congress for not being a physicist; nevertheless, all vote on ap-
propriations that include different kinds of physics research based on
their best study of what the nation’s needs are. So it could also be re-
garding a question of unconstitutionality. Testimony of this kind was
taken at the House Judiciary Committee hearings on the flag-burning
law (discussed in Chapter 6); the tragedy is that academia did not
speak with one clear voice.
Dean Paul Brest supports this fifth interpretation. “[L]egislators are
obligated to determine, as best they can, the constitutionality of pro-
posed legislation . . . [and] they should consider themselves bound by,
or at least give great weight to, the Supreme Court’s substantive consti-
tutional holdings.”12 Allowing, indeed, requiring, deference to the
Supreme Court’s constitutional interpretations eases the practicality ob-
jection to this fifth interpretation of the legislator’s oath. Independent
research may not have to be very onerous, at least where there is a re-
cent U.S. Supreme Court opinion on point. Brest derives this obligation
directly from the oath clause. “[A]rticle VI requires that all legislators
and officials ‘be bound by Oath or Affirmation to support this Consti-
tution.’ . . . [T]he most obvious way for a legislator to support the con-
stitution is to enact only legislation that is constitutional.”13
Brest also bases his conclusion on the presumption of constitutional-
ity accorded to acts of Congress by reviewing courts. “Finally, courts of-
ten accord a challenged law a ‘presumption of constitutionality’ based
partly on the assumption that the legislature has previously passed
upon the constitutional questions raised in litigation.”14
I find this argument less persuasive. It is a good rule drawn from
deference to a coequal branch, and efficient management of a system of
checks and balances, for the Court not to strike down the work of Con-
gress unless the statute in question admits of no other reasonable inter-
pretation than the unconstitutional one. It is a fiction, however, to say
that the Court follows this rule because it assumes Congress has, in fact,
deliberated on the constitutionality of what it has done. It is a fiction be-

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fistularum
commissuras.
etiam in ventre colliviaria
sunt facienda, per
quae vis spiritus relaxetur.
ita | per fistulas
plumbeas (25)
aquam qui ducent, his
rationibus bellissime
poterunt efficere, 5
quod et decursus et
circumductio|nes et
ventres et 209
expressus hac ratione
possunt fieri, cum
habebunt a
capitibus
ad moenia fastigii
libramenta. item
inter actus
ducenos non est inutile
castella conlocari, ut
si quando

8
vitium aliqui locus fecerit,
non totum omneque
opus 10
| contundatur et in quibus
locis sit factum
facilius inveniatur,
(5)
sed ea castella neque in
decursu neque in
ventris
planitia neque in
expressionibus
neque omnino in
vallibus
sed in perpetua
aequalitate.
Sin autem minore sumptu
voluerimus, sic est
faciendum. 15
| tubuli crasso corio ne
minus duorum
digitorum (10)
fiant, sed ita hi tubuli ex
una parte sint
lingulati, ut
alius in alium inire
convenireque
possint. coagmenta
l

9
autem eorum calce viva ex
oleo subacta sunt
inlinienda,
et in declinationibus
libramenti ventris
lapis est ex saxo 20
rubro in ipso geniculo |
conlocandus isque
perterebratus, (15)
uti ex decursu tubulus
novissimus in lapide
coagmentetur
et primus etiam librati
ventris, ad eundem
modum adversus
clivum et novissimus librati
ventris in cavo saxi
rubri haereat et primus
expressionis ad
eundem modum 25
coagmentetur. ita librata
plani|tia tubulorum
ad decursus (20)
et expressiones non
extolletur. namque
vehemens spiritus
in aquae ductione solet
nasci, ita ut etiam
saxa perrumpat,

nisi primum leniter et parce
a capite aqua
inmittatur
et in geniculis aut versuris
alligationibus aut
pondere 30

2 commixturas x.
3 colliviaria: sic x.
7 exprae(H, ę G, e GSc)ssis
x.
8 fastigii: adfastigii HG, ad
fastigia S.
9 ducentos x.
10 aliqui HG: -quis S.
13 (26) planitia: (sic) x.
14 fiant post perpetua add.
Joc.
15 faciundum (solus) S.
17 ita Oehmichen: uti x.
23 etiam: ex x. | adversum
(-ū) x.
24 novissimum (-ū) x.
26 ad: aut HS(Gc), ut G.
27 et om. S. | expre(ae
H)ssionis x.
28 sol& S: solent HEG.
29 a capite om. S (i. m.
suppl. Sc).

10
saburra contineatur. reliqua
omnia uti | fistulis
plumbeis (25)
ita sunt conlocanda. item
cum primo aqua a
capite inmittitur,
ante favilla inmittetur, uti
coagmenta si | qua
210
sunt non satis oblita favilla
oblinantur. habent
autem
tubulorum ductiones ea
commoda. primum
in opere quod 5
si quod vitium factum
fuerit, quilibet id
potest reficere.
etiamque multo salubrior
est ex tubulis aqua
quam per
fistu|las, quod plumbum
videtur esse ideo
vitiosum quod (5)
ex eo cerussa nascitur,
haec autem dicitur
esse nocens
corporibus humanis. itaque

11
quod ex eo
procreatur ＜si＞ id
10
est vitiosum, non est
dubium quin ipsum
quoque non sit
salubre. exemplar autem
ab artificibus
plumbariis
possumus
accipere, quod | palloribus
occupatos habent
corporis (10)
colores. namque cum
fundendo plumbum
flatur, vapor ex
eo insidens corporis artus
et in diem exurens
eripit ex 15
membris eorum sanguinis
virtutes. itaque
minime fistulis
plumbeis aqua duci videtur,
si volumus eam
habere salubrem.
saporemque meliorem ex |
tubulis esse
cotidianus (15)
potest indicare victus, quod

12
omnes structas cum
habeant
vasorum argenteorum
mensas, tamen
propter saporis
integritatem 20
fictilibus utuntur.
Sin autem fontes ＜non
sunt＞ unde
ductiones aquarum
faciamus, necesse est
puteos fodere. in
puteorum autem
| fossionibus non est
contemnenda ratio,
sed acuminibus (20)
sollertiaque magna
naturales rerum
rationes
considerandae, 25
quod habet multa variaque
terra in se genera.
est enim
uti reliquae res ex quattuor
principiis composita.
et
primum est ipsa terrena
habetque ex umore

aquae fontes,
item calores | unde etiam
sulphur alumen
bitumen nascitur,
(25)
aerisque spiritus inmanes,
qui cum graves per
intervenia 30
fistulosa terrae perveniunt
ad fossionem
puteorum

4 oblinentur x.
8 quod per plumbum x. |
quod: quia ES.
9 eo: plumbo S. | cerusa EG,
cerosa S.
10 ita quod HG, itaque E, ita
ergo cū quod S. | si om.
x. | id: om. S.
11 quin GEcS: qui in H.
15 indie x.
19 structas (Fav.): ex(s
EGS)tructas x.
22 non sunt: om. x.
24 fossionibus (in ras.) Ec:
possessionibus HSEG.
30 intervena EG (-nia HS).
Plain text

13
et ibi homines offendunt
fodientes vi naturali
vaporis obturant
eorum naribus spiritus
animales, uti qui
non
celerius inde effugiunt ibi
intere|mantur. hoc
autem (30)
quibus rationibus caveatur
sic erit | faciendum.
lucerna 211
accensa demittatur, quae si
permanserit ardens
sine periculo 5
descendetur. sin autem
eripietur lumen a vi
vaporis,
tunc secundum puteum
dextra ac sinistra
defodiantur
aestuaria. ita
quemadmodum per
nares spiritus ex |
aestuariis (5)
dissipabuntur. cum haec sic
explicata fuerint et
ad

14
aquam erit perventum,
tunc saepiatur
astructura ne
obturetur 10
vena. sin autem loca dura
erunt aut nimium
venae penitus fuerint, tunc
signinis operibus ex
tectis aut
superioribus locis
excipiendae sunt
copiae. in signinis
autem | operibus haec sunt
facienda. uti harena
primum (10)
purissima asperrimaque
paretur, caementum
de silice frangatur
15
ne gravius quam librarium,
calce quam
vehementissima
mortario mixta ita ut
quinque partes
harenae ad
duas respondeant.
eorum fossa
ad libramentum
altitudinis

15
quod est futurum | calcetur
vectibus ligneis
ferratis. (15)
parietibus calcatis in medio
quod erit terrenum
20
exinaniatur ad libramentum
infimum parietum.
hoc exaequato
solum calcetur ad
crassitudinem quae
constituta

1 vi: ut x. | obt(d EG)urante
eorum x.
2 uti: ita x.
3 interemuntur HG (-imuntur
ES). | hoc quibus autem
r. EG.
7 defodianturque| (H, -q⁊|
etiam S) ae(ę S)stuaria
HS: def. que ē | varia G,
def. quæ | est uaria E (=
L).
10 saepiaturas structura |
nec opturentur venas H,
sepiatur structura nec
obturentur (obdurentur
EG) venas SEG (cf.
parietes struantur Fav. p.
291, 25 = latera
puteorum structura
suscipiat Pall.).
12 signinis EGS: signis H. |
ex testis x. | aut H: a
EGS (cf. Varro r. r. p.
144, 14 K cisternae sub
tectis et lacus sub diu).
13 Insigni|is G, Insignis E (-

g | , g (
ninis GcEc = HS).
16 calx x.
17 adduas EG: adduos HS.
18 respondeant eorum
fossa: sic x (textu
confuso, nam seq. de
puteis). post resp.
exciderunt qualia indicat
Faventinus (Pall.)
puteum ergo fodere
debebis latum pedes
octo ut a binis pedibus
structura in circuitu
surgat (surgit etiam Plin.
31, 49 ubi legendum est
signino harenato) et
quattuor cavo
relinquat.…
21 infimum HS: infirmum
EG.
Plain text

fuerit. ea autem si
duplicia aut triplicia
facta fuerint
uti percolationibus
transmutari possit,
multo | salubriorem
(20)
et suaviorem aquae usum
efficient. limus enim
cum habuerit
quo subsidat, limpidior fiet
et sine odoribus
conservabit
saporem, si non, salem
addi necesse erit et
5
extenuari.
Quae potui de aquae
virtute et varietate
quasque
habeat | utilitates
quibusque rationibus
ducatur et probetur
212
in hoc volumine posui, de
gnomonicis vero
rebus
et horologiorum rationibus

1
et horologiorum rationibus
insequenti
perscribam. 10
LIBER NONUS.
| Nobilibus athletis qui
Olympia Pythia
Isthmia Nemea (5)
vicissent, Graecorum
maiores ita magnos
honores
constituerunt uti non modo
in conventu stantes
cum palma
et corona ferant laudes,
sed etiam cum
revertantur in 15
suas civitates cum victoria
triumphantes
quadrigis in
moenia et in patrias |
invehantur e reque
publica perpetua
(10)
vita constitutis vectigalibus
fruantur. cum ergo
id

animadvertam, admiror
quid ita non
scriptoribus eidem
honores etiamque maiores
sint tributi, qui
infinitas utilitates 20
aevo perpetuo omnibus
gentibus praestant.
id enim
magis erat institui dignum,
quod | athletae sua
corpora (15)
exercitationibus efficiunt
fortiora, scriptores
non solum

1 fuerit . ea (.Ea) autem: sic
x (in lacuna. de cisternis,
quae spectent ad v. 7
sqq., cf. Plin. 36, 173.
Pall. 1, 17).
2 possit (sc. aqua): possint x
(possunt ante corr. H).
3 et suaviorem EG: om. HS.
4 quo om. G (non E).
9 gnominicis x.
12 phithia EG: om. HS (i. m.
pithia Sc gr.). | nemaea
HG, nemea E, ne mea S.
15 fuerant x (ſerant supra gr.
Sc).
17 inve|hanturereq; H,
invehant᷑ . ęreque S:
invehantur . reque (.
|req⁊ G) EG.
19 eidem H(Gc): idem EGS.
22 athla&e H, adletę S
(athletę EG).

2
suos sensus sed etiam
omnium, ＜cum＞
libris ad discendum
et animos exacuendos
praeparant
praecepta. quid
enim Milo Crotoniates quod
fuit invictus prodest
hominibus
aut ceteri qui eo genere
fuerunt victores, nisi
quod
| dum vixerunt ipsi inter
suos cives
habuerunt
nobilitatem. 5 (20)
Pythagorae vero praecepta
Democriti Platonis
Aristotelis
ceterorumque sapientium
cotidiana perpetuis
industriis culta
non solum suis civibus sed
etiam omnibus
gentibus recentes
et floridos edunt fructus. e
quibus qui a teneris
aetatibus | doctrinarum

3
abundantia
satiantur, optimos
habentes 213
sapientiae sensus instituunt
civitatibus
humanitatis 11
mores aequa iura leges,
quibus absentibus
nulla potest
esse civitas incolumis. cum
ergo tanta munera
ab scriptorum
prudentia pri|vatim
publiceque fuerint
hominibus (5)
praeparata, non solum
arbitror palmas et
coronas his tribui 15
oportere sed etiam decerni
triumphos et inter
deorum
sedes eos dedicandos
iudicari.
Eorum autem cogitata
utiliter hominibus ad
vitam
ex|plicandum e pluribus
singula paucorum
l

4
uti exempla ponam,
(10)
quae recognoscentes
necessario his tribui
honores 20
oportere homines
confitebuntur. et
primum Platonis e
multis ratiocinationibus
utilissimis unam
quemadmodum
ab eo explicata sit ponam.
locus aut ager
paribus lateribus
si erit quadra|tus eumque
oportuerit duplicari,
quod (15)
opus fuerit genere numeri
quod
multiplicationibus
non 25
invenitur, ex
descriptionibus
linearum emendatis
reperitur.
est autem eius rei haec
demonstratio.
quadratus locus
qui erit longus et latus

pedes denos efficit
areae pedes C.
si ergo opus fuerit eum
dupli|care et pedum
CC item e (20)
paribus lateribus facere,
quaerendum erit
quam magnum 30
latus eius quadrati fiat ut
ex eo CC pedes
duplicationibus
areae respondeant. id
autem numero
nemo potest
invenire.

1 cum om. x.
5 inter suos EGS: interuos H.
7 sapientium HEG: -tū S.
10 habent x.
24 duplicari EG: -re HS. |
quod (o.): quo (
o
q) S.
25 quod (m.) HS: quo EG.
26 ex: eo x.
29 duplicari pedum (-ū) x.
Plain text

5
namque si XIIII
constituentur, erunt
multiplicati pedes
CXCVI, si XV, pedes CCXXV.
ergo quoniam | id
non explicatur (25)
numero, in eo quadrato
longo et lato pedes
X
quod fuerit, linea ab angulo
ad angulum
diagonios
perducatur,
uti dividantur duo trigona
aequa magnitudine,
5
singula areae pedum
quinquagenum, ad
eiusque lineae
diagonalis
longitudinem locus
quadratus paribus
lateribus
de|scribatur. ita quam
magna duo trigona
in minore quadrato
(30)
| quinquagenum pedum

6
linea diagonio
fuerint designata,
214
eadem magnitudine et
eodem pedum
numero quattuor in
10
maiore erunt effecta. hac
ratione duplicatio
grammicis
rationibus ab Platone, uti
schema subscriptum
erit in ima
pagina, ex|plicata est. (5)
Item Pythagoras normam
sine artificis
fabricationibus
inventam ostendit, et quod
magno labore fabri
normam 15
facientes vix ad verum
perducere possunt,
id rationibus
et methodis emendatum ex
eius praeceptis
explicatur.
namque | si sumantur
regulae tres e
b d

7
quibus una sit pedes
III (10)
altera pedes IIII tertia
pedes V, eaeque
regulae inter se
compositae tangant alia
aliam suis
cacuminibus
extremis 20
schema habentes trigoni,
deformabunt
normam
emendatam.
ad eas autem regularum
singularum
longitudines si
singula
quadrata pari|bus lateribus
describantur, quod
erit trium (15)
latus, areae habebit pedes
VIIII, quod IIII, XVI,
quod V erit,
XXV. ita quantum areae
pedum numerum
duo quadrata 25
ex tribus pedibus
longitudinis laterum
et quattuor efficiunt,

aeque tantum numerum
reddidit unum ex
quinque descriptum.
id Pytha|goras cum
invenisset, non
dubitans a (20)
Musis se in ea inventione
monitum, maximas
gratias agens
hostias dicitur his
immolavisse. ea
autem ratio
quemadmodum 30

4 quod HGS: que E. |
diagonis x.
9 designatae (-ę EGS) x.
12 scema x (item v. 12). |
subscriptum est (ē.)
explicata est in ima
pagina x.
15 quod: quam x.
19 tertia EGS: terua H. |
eaeque (eęque S) HS:
haeque (hęque G) EG.
21 ≣trigoni (cum ras.) HS.
23 quod: cum (cū) x.
26 longitudinis EGS: -nes H.
27 reddidit (sic) x. | quinque
HS: .v. EG
28 amusise H, amusisse EGS
(separant se Ec Gc Sc).
30 immolavisse HEG:
immolasse S.
Plain text

8
in multis rebus et mensuris
est utilis, etiam in
aedificiis scalarum
aedificationibus uti
temperatas habeant
graduum librationes est
ex|pedita. si enim
altitudo (25)
contignationis ab summa
coaxatione | ad
imum libramentum
215
divisa fuerit in partes tres,
erit earam quinque
in scalis 5
scaporum iusta longitudine
inclinatio, ＜uti＞
quam magnae
fuerint inter
contignationem et
imum libramentum
altitudinis
partes tres, quattuor a
perpendiculo
rece|dant et (5)
ibi conlocentur inferiores
calces scaporum. ita
si erunt,

9
temperatae et graduum et
ipsarum scalarum
erunt conlocationes.
10
item eius rei erit subscripta
forma.
Archimedis vero cum multa
miranda inventa et
varia
fuerint, ex omnibus etiam
infinita sollertia id
quod exponam
| videtur esse expressum.
nimirum Hiero
Syracusis (10)
auctus regia potestate,
rebus bene gestis
cum 15
auream coronam votivam
diis inmortalibus in
quodam
fano constituisset
ponendam,
manupretio locavit
faciendam
et aurum ad sacoma
adpendit
redemptori. is ad

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