Sai Prakash, "Synchronicity and the Making of Supreme Law"
With commentary by Professor LaCroix
Professor Sai Prakash majored in economics and political science at Stanford University. At Yale Law School, he served as senior editor of the Yale Law Journal and received the John M. Olin Fellowship in Law, Economics and Public Policy. After law school, he clerked for Judge Laurence H. Silberman of the U.S. Court of Appeals for the District of Columbia Circuit and for Justice Clarence Thomas of the U.S. Supreme Court. After practicing in New York for two years, he served as a visiting professor at the University of Illinois College of Law and as an associate professor at Boston University School of Law. He then spent several years at the University of San Diego School of Law as the Herzog Research Professor of Law. Prakash has been a visiting professor at the Northwestern University School of Law and the University of Chicago Law School. He also has served as a James Madison Fellow at Princeton University and Visiting Research Fellow at the Hoover Institution at Stanford University. He is currently the James Monroe Distinguished Professor of Law and Paul G. Mahoney Research Professor of Law at the University of Virginia.
Alison LaCroix is Robert Newton Reid Professor of Law at the University of Chicago Law School. She is also an Associate Member of the University of Chicago Department of History. Professor LaCroix received her BA summa cum laude in history from Yale University in 1996 and her JD from Yale Law School in 1999. She received her PhD in history from Harvard University in 2007. Before joining the University of Chicago faculty in 2006, she was a Samuel I. Golieb Fellow in Legal History at New York University School of Law. From 1999 to 2001, she practiced in the litigation department at Debevoise & Plimpton in New York. While in law school, Professor LaCroix served as Essays Editor of the Yale Law Journal and Managing Editor of the Yale Journal of Law & the Humanities. Professor LaCroix is the author of The Ideological Origins of American Federalism (Harvard University Press, 2010) and a co-editor of two volumes on law and literature. She is currently working on a book on American constitutional discourse between 1815 and 1861 titled The Interbellum Constitution: Union, Commerce, and Slavery From the Long Founding Moment to the Civil War (under contract, Yale University Press).
Presented by the Federalist Society on May 2, 2018.
Announcer: This audio file is a production of the University of Chicago Law School. Visit us on the web at www.law.uchicago.edu.
Host: Thanks guys for making it out today for this event on "Synchronicity and the Making of Supreme Law." We're excited to have two speakers today. First, we'll be hearing from Professor Sai Prakash who teaches at the University of Virginia Law School. He received his undergraduate degree from Stanford and graduated from Yale Law School. After law school, he clerked for Judge Silberman on the DC circuit and then for Justice Thomas on the Supreme Court. We will be hearing commentary today from our own Professor LaCroix who teaches in both the Law School and the History Department. She received both her undergraduate and graduate degrees from Yale and she completed her PhD in history at Harvard, and then joined the faculty at the University of Chicago in 2006. Let's welcome both of our speakers.
Sai Prakash: Well, thank you so much for having me today. Thank you, Sarah, for arranging this. And thank you Professor LaCroix for providing some commentary. I had the pleasure of visiting here several years ago and got to know Professor LaCroix, and I remember talking about two things, her last name, what does it mean, what's it all about? And then we also talked about, I think some fiction authors you were really interested in. I don't recall because I don't really read much fiction, but it was a fun time. I'm really grateful that you're here today to provide some commentary. So my talk today focuses on questions of synchronicity, the timing and the making of Supreme Law. The Constitution lays out a framework or frameworks for making Supreme Law. A framework for statutes in Article I: Statute 7 and a framework for treaties in Article V, and then briefly mentions the treaty-making process, more specifically that the Senate needs to give to advise and consent to making the treaties.
Sai Prakash: While time is mentioned in the Presentment Clause, the President has 10 days to decide whether to sign a bill, none of the other law-making processes mentioned time. To me this raised a series of questions which I'll get to in a second. Why did I become interested in the subject? The genesis stemmed from some research I did for my book. The book is a soup to nuts consideration of the original executive, the chapters on war power, foreign affairs, controlling bureaucracy, privileges and immunities, and the relationship between the executive and Congress. It's called Imperial from the Beginning. My friends tell me this is my best book, and the joke is that it's my only book. In any event, operators are standing by. You can find it on online outlets like Amazon and Yale Press, but enough about the book. In the course of studying the original presidency and the veto in particular, I came across a quote from our first president, George Washington, that really kind of puzzled me and led me to dig a little further. On the last day of his second term, before he left for the public stage for what seemed like the final time but wasn't actually the final time, Washington wrote to a friend that all the acts of the session except for two or three very unimportant bills have been presented to me within the last four days.
Sai Prakash: This fact must astonished others who know that the Constitution allows the President 10 days to deliberate on each bill. In fact, he was allowed by the legislature less than half that time to consider all the important business of the session, in some instances, scarcely an hour to resolve something. So it turns out that for eight years, Washington always signed a bunch of bills at the last day of a legislative session, never after the session was over. On the last day of every session, he would trudge over to wherever Congress was meeting, sit in a room and wait for the bill to be presented to him, and if he was going to sign a bill into law, he signed it on that day. He did not sign it the day after the session ended. Why did he believe that he had to sign a bill while Congress was in session? That's the mystery and I'll return to it later.
Sai Prakash: Let me lay out the questions that I want you to consider today. So how long after passage made the House and Senate delayed presentment to the president to pass a bill? Let's suppose they both pass a bill on the same day, do they have to give it to the President right away, or can they wait a week or a month or a year or 10 years? Why would you want to delay? I think you should think of presentment as an option, and the value of the option might be greater later than it is now. That is to say you might think the President is not going to sign the bill now, but he might sign it later. Imagine the president who poses gun control so you don't think he's going to sign the bill. So you wait until there's a tragedy, right? A gun tragedy of some sort, a gun shooting. Then you present the bill to the president and perhaps you think the chances of him signing it go up.
Sai Prakash: So that's why you might want to delay presentment. There are other questions of timing, right? How long after a veto may Congress override? So if the president vetoes a bill, do they have to override it in a week or can they override it in one month, a year? Ten years? Then there's finally one important question. Do the House and Senate have to vote on a bill in proximity? We know they have to pass the same text, the Presentment Clause suggests as much. But what about the requirement of synchronicity? Suppose the House passed a bill in 2014 and the Senate in 2018. Can they present it to the president without renewed House action in 2018? They can, right, that makes it a lot easier to pass a statute. Of course you can imagine interesting scenarios, right? House passage in the 19th century, and Senate passage in the 20th, presentment in the 21st. You could ask the same sorts of questions about amendments.
Sai Prakash: Amendments have two stages: proposal and ratification. Can the Senate in 2018 act upon a House proposal passed from 2004 and then send it to the states without renewed House passage? For instance, the Senate passed a balanced budget in 1982, can the House pass it now and send it to the states? The House passed 17 amendments in 1789. Only 12 of them passed the Senate. Can the Senate act on those amendments that were passed in the House by the requisite supermajority in 1789 and then send it to the states. This may seem far fetched, but those of you who are familiar with the 27th Amendment will recognize that nothing is farfetched. The amendment curbed Congress's ability to raise its own pay. The amendment was proposed as part of the amendments that Madison proposed at the House in 1789. Five states ratified it shortly thereafter. The amendment seemed to be dead when in the 1870s, Ohio belatedly ratified the amendment.
Sai Prakash: There was a backpay swindle or backpay scandal where Congress retroactively gave itself a pay raise, and Ohio was so upset, or the legislators in Ohio were so upset, that they tried to ratify the amendment. A lot of people told them: What are you doing? You cannot ratify this amendment from 200 years ago. It's stale, it's gone. The whole process has to begin again. And of course, you know, prior to the 1870s when Ohio did that, people actually had re-proposed Madison's amendment in the House and Senate. They too thought the Madison proposal in the House was stale. When you flash forward to the 20th century, maybe some of you know this history, but a young student, I think in Texas, wrote a paper and said the Pay Amendment was still viable. It can still be ratified.
Sai Prakash: My recollection is he got a C on this paper, but apparently he was right. Because in the '80s and '90s states started ratifying the 27th amendment or what would become the 27th amendment. And there was this question should we recognize this 27th amendment? And the OLC wrote this opinion saying, yeah, we should, we should recognize it. And the members of Congress fell over themselves to say that the amendment was ratified because of course this amendment was very popular: it curbed the ability of Congress to give themselves a raise. Congressmen and women wanted to say "I'm against the sort of self dealing" or at least this particular sort of self dealing. And so, you know, if you look in your Constitutions, the 27th amendment is there, right? It's there like, you know, the First Amendment is, and there doesn't seem to be any doubt about this. But just because it's there doesn't mean that it will always be there.
Sai Prakash: If you go back and look at 19th century constitutions, you will find a whole bunch of amendments that apparently the compilers or authors of the pamphlet or book thought were ratified that actually weren't. And of course, you know, these errors got replicated, right? Because if you know, people just assume that someone who has compiled this has it right and so, you know, the amendment must've passed. And eventually those amendments got washed out. People figured out that they really hadn't passed. And so they are no longer part of our Constitution. So something can seem to be part of our Constitution and then be effaced. Then maybe, maybe that will happen with the 27th amendment. The final issue relates to treaties. In what timeframe must they be made international contracts with the United States? The Constitution draws our attention to one part of the process, which is the Senate's advice and consent, but that doesn't make the treaty. They're giving their advice and consent to ratification by the President, and the president has an option.
Sai Prakash: He doesn't need to ratify treaties because the Senate gave its advice and consent. Ratification by itself doesn't make the treaty either, right? You can't have a unilateral treaty; it turns on whether the other side or sides have ratified it. You've got a bilateral process: sometimes that will take years, and if you've got a multilateral process that often takes, if you've got 100 signatories to a treaty, they're not going to necessarily ratified it as soon as it might. So let me give you an example. We ratified, well, the Senate gave its consent to a bilateral investment treaty with Russia in 1992. President George H.W. Bush ratified it. I think Boris Yeltsin, or whoever was President or Prime Minister of Russia, I do not know the system over there, they never ratified it. But if you go to the State Department webpage, they still make it look like that treaty can be made once Yeltsin, or not Yeltsin, Putin, I guess now. Again, I don't know the system in Russia, whoever in Russia would ratify the treaty. Whenever that person does whatever they're supposed to do the treaty... does someone know the answer? What's the answer?
Sai Prakash: Well, you know, there, there are forms that must be followed. Then they will follow. Trust me, they'll follow them. So, you know, can that treat to be made, right? Of course that treaty was made in a totally different context. Right? You know, it's like 30 years ago. it'd be made today without any further action by the Senate or by this President. Can Putin just say I ratify it and now we've got a treaty? Or does it have to start from ground zero or from scratch? Right? So to speak. So those are the general questions. What are the answers? Let me go back to Washington. Why did Washington go to the Congress at the end of every session, light candles and watch the clock anxious? And why did he sign all these bills at the end of every session? If you look at statutes at large, which is this compilation of statutes, you will find most statutes are made into law in the early years on the last several days of the session, last two or three days.
Sai Prakash: And you know, it's kinda like students, right? Like they kind of put off work, whatever. But the important, most important point is not that they put off their work, right? The important point is that they always get signed no later than the last day of the session. And so what accounts for this? What accounts for the games that they play, right, where they say we're going to end this session at 12. And then they don't allow the clock to hit 12. I mean, whatever clocks they used. They would just pretend it hadn't hit 12 because they wanted to give the President more time to sign the bill. It seems really odd because the Constitution says he's got 10 days. Why do they need to care about when the session ends? Well, it turns out that they had the English view of a session. The session was a unit of what you might call "legislative time" in which a bill had to become perfected into law.
Sai Prakash: The parliament would submit bills to the crown and the crown did not sign them at the end of the session, the bill had to start from scratch in the next session in parliament. And so, you know, not signing the bill was basically choosing to require parliament to go through the whole process again. And of course, the Constitution uses the word session in several places, and I think the supposition was that that was a unit of legislative time in the United States. This wasn't true just in the federal constitution, but also true for state constitutions. The Massachusetts Supreme Court would find that the governor of Massachusetts could not sign a bill into a law after the session ended otherwise they would have to start from square one. And I think that's what's going on in Congress and with respect to the President. There's discussions in the first Congress about this rule and they seem to think that they can't take up a bill that was passed in the first session and second session, that is to say if the House passed the bill in the first session and the Senate passes it into the second, the House has to repass it in the second.
Sai Prakash: The passage in the first session is gone by the board. And as I told you, so deeply ingrained is this view that they would just play shenanigans with the clocks and other things designed to give the President more time to complete his work in the session. Because if he just didn't sign the bill in the session right there, nothing could be done. You have to start the whole thing all over again. So it was crucial to sometimes delay the end of the session beyond the time in which whatever resolution they had passed had scheduled the end of the session. This was, I think, a dumb system because most legislation was passed in the waning days of the session meeting. The President didn't have a lot of time to consider it. He didn't have 10 days. You'd have hours for twenty bills or five bills.
Sai Prakash: It's also dumb in a different sense, or perhaps not an ideal in a different sense, which is why do we want to have the House re-enact the bill that just passed by some overwhelming majority in the first session in the second session in order for it to be presented to the President in the second session after the Senate signed it. And so Congress and the President sort of reformed, you might say. Congress said, you know what, if we pass a bill in the first session and the House passes a bill in the first session and Senate passes it in the second, the Speaker and the President pro tempore can just, they can present the bill to the President. The House doesn't need to be inactive bill first in the second session, and this will save us time, right? I guess we don't see the point of having to repass it. And then the President started signing bills occasionally after the session was over, and eventually the Supreme Court blessed this practice. When they did so they just were incredulous that this was a question because it says you have 10 days, well then you have 10 days, right?
Sai Prakash: Why do you, why are you even asking us this sort of simple question. These were, you know, good reforms, but I think they were inconsistent with the Constitution. At least, you know, the original meaning of the Constitution. I think Article I, Section 7 incorporates the session concept just as it incorporates majority ruling: one legislator, one vote. Those things aren't in the constitution either, right? The idea that majority rule is the default rule is not in there. It's just sort of an assumption that it is. If some member of Congress said, I get three votes because I'm from the granite state, the answer is no. The default rules and one vote, one person. So, you know, I think that, you know, there was a constitutional reason behind this and it became lost to some people. And so we've got our, our Congress rule today, the Congress rule today is if, you know, if both chambers act within one congress, they can present to the president and then the president can signed the bill even into the next Congress.
Sai Prakash: This seems kind of seems to make sense. It sort of coheres with what our conception of what Congress is, but there's nothing about this conception of Congress that comes from the Constitution. The Constitution doesn't say that a Congress begins every two years in January and then two years later and the next January 3rd, January 4th. That's just something that Congress decided early on as a matter of housekeeping, keeping to differentiate itself over time. But they could have picked four years as a unit of Congress for just differentiating congresses across time. They could've picked six years. They could have picked one year or they could have just said, we're continuous. We're a continuous body in the way that the Senate sometimes says it's a continuous body. Right? For purposes of its rule, that it doesn't have to re-enact the rules every two, four, six years. So we, when we think of Congress, we think Congress lasts for two years, but that's, that's just a manmade convention not to be found anywhere within the confines of the Constitution.
Sai Prakash: And there's nothing natural about it. Let me say something about amendments. I think the amendment process also requires synchronicity. I would, you know, in the paper I say the House and the Senate have to pass an amendment within one session. That was the rule for a while. At least in practice. I think two amendments were passed in one Congress rather than in one session. I'm not so sure that the session rule is required for amendments in a way that it's required for statutes. But I do believe that the entire process has to be relatively synchronous. I don't think it makes sense to say that the Senate can act upon a house proposal from 1789 today and then send it to the states and say, well, we both passed the same proposal by two-thirds majority and now we can send it to the states. So for similar reasons, I don't think it makes sense to concatenate approvals given by the states over two centuries and say the requisite number of states have ratified the amendment.
Sai Prakash: I think that treats the processes as if it were a checklist. And I think that the more, the better way of thinking about all these forms of law making as in some sense an expression of majoritarian or supermajoritarian preferences in a relatively compact period of time. Right? It's not, it's not just, you know, if you, if you do all these things, it becomes a law. It's if you, if, if, if the relevant institutions and actors express themselves in the appropriate ways within a relatively confined period of your time, you can more easily say that there is a consensus to do this. You know, you could even, you could go down to the micro level, right? I mean, if, you know, there's no rule in the Constitution about how long to keep open a vote on the floor of the house. And usually they keep votes open for 15 minutes.
Sai Prakash: But if you know, if you want, if you could keep booking the votes open forever, right? And of course it would increase the chances of it passing, especially if you don't allow people to change their votes once they say yes. Which is the feature of amendment ratification in our country, right? That if basically, if you say no to an event, that's never permanent, but once you say yes, it's for ever. It's like a diamond, right? Why do we not have this view of amendments? Well, because of the 27th amendment, the OLC just said the Constitution is silent about the time period in which you have to ratify amendments. And there is this rule about 10 days for bills and presidential presentment. So Expressio Unius, right? It says one thing here, it doesn't say it elsewhere, but I, I just don't believe that they can possibly think that that's right.
Sai Prakash: Because then they'd have to say that the House, the Senate can act upon a proposal from the House from 1789, pass it today and there doesn't need to be renewed House action. That also implies that the House can open... the House can suddenly override a veto from 50 years ago because there's no limitation on that either or that the House can suddenly delay presentment for two centuries, right? That they can present twice, right? Like they present once to President Trump and then once to President Sanders or whoever else the next president is. Because it doesn't say you can't do that. It doesn't say you can't override it twice: once you fail and you'll then try again 20 years later. So I, I just don't think that this is a rational way or the best way of reading it.
Sai Prakash: And of course it wasn't the way that the OLC used to read the Constitution. There's an opinion that the OLC wrote in the '70s that they don't fully cite in their treatment of this in 1991, '92, which says amendment ratifications have to be done in a relatively synchronous fashion. And they're, you know, they're basically relying upon what the Supreme Court has said in the 20th century. They just totally ignore this for whatever reason. I think what's going on with the 27th amendment is it's like this feel good story, right? That have, you know, an amendment that just kept on struggling. I know I can, I know I can, I know I can. I think it's like that train. What is it? You know what I'm talking about? The little engine that could. The little amendment that could. It eventually got passed. Everybody wants to support it, but imagine if that amendment were about abortion. Right?
Sai Prakash: Or about anything controversial. The idea that people would just say, oh, it's part of our Constitution. Obviously someone's ox would be gored and they would say, this is nuts to think that you can ratify this amendment over centuries. So right now there's a, you know, the original 13th amendment was an amendment that protected slavery. It passed both the House and Senate according to the 27 that was properly ratified. That amendment can still be ratified without any new costumes out of action. I think several states did ratify just not enough to get to it, but apparently we can undo the 13th with the original 13, which is odious but is still out there. So I, I just think it's a mistake and I, I, you know, in the paper I quote a young Ruth Bader Ginsburg in the context of the EPA them and saying, of course it has to be synchronous, right?
Sai Prakash: And you can't stretch out ratification over centuries. But again, like that's all forgotten and in the context of the 27th amendment because you know, everyone thinks it's a good idea and just, it's just not worth fighting over. I guess that's the way I think about it. And then I guess, you know, with respect the treaties, I'm a little less certain here, but I also think that it doesn't make sense to, uh, allow the Senate to consent to a treaty 200 years ago and in the President make it today, make it an international contract today. I'm like, I think there's a sense of that process that does need to be synchronous, relatively synchronous and not asynchronous. To use Russia as an example, our relationship with Russia is different today than it was in 1992. You know, I don't know if you guys were born in 1992; I'm not sure, but you guys were.
Sai Prakash: Well that was not a great hope about Russia. Right? And people were very optimistic, and people here aren't optimistic about Russia anymore. I don't think this treaty might not be, no, arguably wouldn't get to two thirds of the Senate today in the way that it did in 1992. So what, what? I think it's time for me to, to clam down and we get to hear from Professor LaCroix. But the basic point is that, you know there's a limitation, an implied limitation to all three forms of lawmaking that they can't stretch out over time. And the fact that there's no express provision doesn't imply especially related to time, doesn't imply that these things, these processes can occur over a week, sort of over years, decades and centuries. So I'll leave it at that.
Alison LaCroix: Well, thanks. I appreciate the opportunity to come and talk about this really fascinating, thought provoking essay. So there's, there's a lot here and I like thinking about time. Who doesn't? Right? But I'm a historian, it's my job so I get to think of that time a lot. Spent a lot of time doing that. Ha Ha. So I want to talk, just raise a few points, a kind of collections of ideas that Professor Prakash's essay raises. I think one way to think about this essay is obviously it's about theory, it's about constitutional structure. It's also about hermeneutics. This question of what's the best method of interpretation for us to bring to the Constitution and constitutional law as lawyers and legal interpreters, but we're also, you're talking in a way we often don't about the actors who make and interpret the law, so what temporal framework should they operate with? And it raises a host of questions to ask them that kind of query.
Alison LaCroix: So I just want to speak briefly, and I want to touch on two points that respond to some of the claims raised in the paper. The first is a general set of remarks about timing in general and especially in history and in the periods that the paper covers which is basically the history of the republic, so that gives us a lot with. Then the second set of comments about this kind of idea of timely perfection of synchronicity and the hierarchy of the different forms of Supreme Law, how we should think about those. Both as Professor Prakash puts them in the paper, and then I want to suggest a possible revision to how we think about that hierarchy. Okay. So timing in general and change over time. It's funny how many movies one could make, should make, ought to make about the early republic that hinge in these moments of against the clock.
Alison LaCroix: So I love this idea of Washington presumably with Hamilton, right next to him signing all the papers can sort of stressful and there Washington apparently had a filthy mouth. So they're cursing. It's not exactly our picture of the founders. It's also, this comes up in, in the facts of Marbury v. Madison in the sense that it's March 3rd of 1801. Adams and Marshall are sitting there "Like sign the comissions, signed the commissions, get them out, get it out." And so they're always kind of up against the clock and trying to do things at the last minute, which I guess now we would say is because we have email and we're sort of overstretched. And for them, they just weren't very organized. So what do we want to think about? What do I think is useful to think about in timing in general and understanding the questions in the paper.
Alison LaCroix: One is to say to think a little bit about elections in the 19th century, so sort of getting into the 1810s, 1820s, 1830s. They actually tended to happen over weeks and even months, so election day kind of comes later. Now, this is obviously not our vision of it. And I think as the paper really nicely sketches to us, it's bound up in democratic accountability that you would say there's this moment when people go to the polls, early voting raises these questions about what happens about those early votes. But in the, say 1810s, 1820s, 1830s, really up until the Civil War, you would have these sort of festive weeks, maybe months where people were voting and there were all sorts of shenanigans with people showing up with their pre printed ticket and the hogs heads of various liquors were flowing. But the timing idea of when democratic choice happened, happened over a longer timeframe.
Alison LaCroix: Now it makes sense because you'd say, well, it's just hard to get to the polling place if you have to go overland, you have a long trip. Of course everything took longer then. So that's not a surprise. But does that make us think that maybe this idea of "the moment of choice" for especially thinking about choosing legislators perhaps was more expansive in this kind of crucial 19th century period? A thought. Second, there's this interesting moment in the paper, I think when they decided to change from the session rule, the short one year rule, to this Congress norm of more like a two year period in the, excuse me, in the statutory context. So it seems like this happens around at 1848. You know, again, there, I think we could say, well you know, what's going on when people in Congress say as long as you pass it with in the Congress, it's okay if it's not in the session and it gives them more time to work with. You know, speculating, we could say, well there are trains by 1848, you know, people have more of a sense that they can get back and forth to the Capitol quickly.
Alison LaCroix: The sessions themselves maybe are longer. There's less disjuncture between each session. So it's not like, I mean, you know, obviously in the early days say the 1810s, people really go back to their constituencies and they're gone. I mean they're there and they spend most of the time; everybody hates Washington. They don't want to be there. The justices don't like riding circuit, right? Nobody likes traveling back and forth. So this change in 1848 seems really interesting and a potential moment where we could say, are they doing something wrong constitutionally? Are they doing something wrong? Are they kind of moving away from this implicit idea of the, what should be the short rule? Are they adapting in ways we might say, well, it's an adaptation, but you know, they could still be wrong. They're adapting but they're not constitutionally valid. Other things though, one might think about is how do we think about the duration of a congress?
Alison LaCroix: So this seems, I think one could say in the, again, this sort of post founding period not as unnatural as, as it might seem. Um, so the session, I think as Professor Prakash points out, long history there of what they think a session means going back to British practice, English practice. But what about in Congress? Well, you can see sometimes in state reports, so I've been looking lately at a lot of Virginia reports from the state courts and they'll say at the head of the report in the 1810s or 1820s, the x, you know, the, whatever. It's the year of the Commonwealth and Oh yeah, it's 1816. So it's like Virginia time. I don't know if they still do that, but it's pretty amazing.
Alison LaCroix: I figured it makes sense and it probably predates the Constitution, right, and sort of back to 1607 or something. So they thought about time a lot and their political time is quite interesting, and this ties into some older ideas too about some things endure and some things stop. And they seem to have had this idea to be able to hold these, both of these ideas together. So those of you who maybe did some medieval history at some point or have encountered this book, The King's Two Bodies by Ernst Kantorowicz. And so I mean the title, like the claim is there: the king's two bodies, right? The king is dead; long live the king. That's weird. How do you do that? And the idea is well the body, the crown endures. This is also in the series The Crown, the crown endures, but the person changes or the years of the reign can be shortened.
Alison LaCroix: So all of this to say I think they had this kind of idea about the Congress. So the duration of a congress, the Twelfth Congress, the Twenty Fifth Congress, I think wouldn't have seemed unnatural them. Now, what do we conclude from that is a different question, but I think their sort of political time in this again, this period where we're trying to figure out, okay, what were the practices and what should we make of them? Is is different from what we might think, and I'll just say too this period in the early 19th century, a lot's going on constitutionally as they try to figure this stuff out. So I was intrigued by this. There's this moment where James Monroe appears in the paper and I was kind of holding my breath because I was like, what's gonna happen?
Alison LaCroix: The cabinet members, some members of the cabinet, which includes John Quincy Adams, John C. Calhoun and some real heavy hitting legal thinkers urge the president to sign a bill into law after congressional sessions have expired. And they just say, "Take the pen, Colonel Monroe," right? And he doesn't do it. He stays traditionally consistent with the traditional understanding of session, you know, it's got to be shorter. I would say this to me suggests the sort of practice of this early 19th century period is very unsettled. And that's a period where the cabinets making constitutional arguments, how do we think about executive power? So there's clearly a lot going on here and the ideas about Congress and the ideas about the session maybe in somewhat more flux than they were even say at the time the Constitution was ratified, all of which again, might make contemporaries of that period, you know, giving us our common law, giving us our, our understandings, perhaps even more variegated sense of these sort of perfection, synchronicity claims.
Alison LaCroix: Okay. So what about the kind of hierarchy point, and this is really, I think the normative meat of the paper. This, this idea about a strong form. I think the paper really sets this forward, nicely says synchronicity should apply to the three major forms of supreme federal lawmaking statutes, amendments and treaties. They will apply differently because these are different modes of law, but the synchronicity requirements should be there. And the most precise and I think provocative claim is this point about Congress that bills in Congress must be perfected within a single session. So the session rule. So it's interesting then to say, okay, how, if that's true, let's say for the reasons the paper gives us, that's probably right with respect to Congress, you know, they've expanded it, but maybe it would be good at some level either constitutionally required or for Congress itself to say, you know, we're gonna bring it back down to the one year, roughly the session goal.
Alison LaCroix: Um, but would we, does it make sense to treat amendments and treaties the same as statutes or should we treat them differently from statutes and maybe indeed treat amendments differently themselves? So I would argue, I think that amendments do occupy a somewhat different space here, normatively, as we think about this. It's certainly reasonable to say that we should be concerned about democracy in the context of, of the legislatures especially. But why then say that lawmakers have this very strict view of their authority. Does democracy sort of require that we really cabin them, which I think is a strong version of the claim. The paper makes but it, but it makes it. How do we think about this idea over what scope of time? Just legislators authority a compass or spread? Well, here I think again, we could look now even further back than that early 19th century.
Alison LaCroix: So the 1780s. Again we try to get purchase on: what do they think matters? What are the people who drafted the Constitution would think, what are their implicit understandings that we should be aware of today? Today, um by and large, if you look at this sort of period from the Articles of Confederation to the Constitution. Really we're not talking about many years here. I mean maybe over a decade of the 1780s, there's a shift to something that they call and later scholars call virtual representation. So what do they shift from actual representation? What does this mean? Because it sounds sort of dry? Well, I like to think of Pennsylvania. I mean, who doesn't? Pennsylvania in the 1780s under the Articles of Confederation, they said, "We're Pennsylvania, we believe in transparency." They didn't say that because that wasn't really a word they used that way.
Alison LaCroix: We believe in actual representation. We think that the legislature should be elected annually. The people should come and watch the state legislators. We should always have this forced turnover. At least these mandated term limits because that will mean the legislators are really in touch with the populace. They had sort of a form of referendum. Total transparency. And the view that went with that was this view that the delegates were bound to be their electors mouth pieces. It's called an attorneyship model, they're the attornies, so they get instructions from their constituents and they carry them out and if they deviate, they're in trouble. Not just they're not elected, but there's some sense that they have violated some sort of trust. With the debates over the Constitution, there's this shift to thinking, well, Pennsylvania is a mess, so everybody in the 1780s is like, just go look at that legislature.
Alison LaCroix: It's a nightmare. They can't get anything done. It's people are wandering in and out. Everybody's always running for office, so the delegates are supposed to deliberate. They're supposed to act more like trustees; they're supposed to kind of take advice from their constituents but then make things new, sort of make decisions on their own under their own views. So what does this mean? I think we could say, and there's a lot of interesting historical and legal scholarship about this shift, that there's a kind of fiction that comes with this shift to virtual representation of saying, look, democratic legitimacy doesn't require total control all the time because we're not going to have a workable system. So the issue, so one might say the fiction of virtual representation also gives us a little bit of detachment and it says something like a reasonability rule. Something like maybe a longer time period, right?
Alison LaCroix: It can't extend over six or seven congresses because now you really have a dead hand problem, but maybe something longer. Maybe the session rule is not constitutionally required. Um, and then a couple of just final thoughts to conclude about treaties and then amendments. Treaties I think are an interesting case too because it's the paper points out, other parties are involved and there are other nations. They're not even sort of constituents within the united framework. So there I think you might say there's an argument for a longer timeframe because so much is going to be out of the control of the President and the Senate. And there are these examples that the paper cites of these treaties sort of lingering out there and we don't really know. There's probably a treaty with the Holy Roman Empire, right? It's like probably doesn't have effect anymore, but you know, and then there's the Russia issue.
Alison LaCroix: Okay. What about amendments or the rushes as the early 19th century crowd would have said plural? Um, what about amendments? I think there's a reasonable argument to be made. A pretty strong argument that amendments might be different. At least once they get to the states, maybe not when they're in the House or in the Senate. Right? Sort of. They haven't yet been released. Once they go to the states, like the 27th amendment, um, you could say something like, the people are eternal, their representatives less so meaning once the amendments are sort of issued out to the populace out in the states, they might linger on for a long time that there is something special about state ratification that's both not like lawmaking in Congress and it's not like the House and the Senate proposing amendments, which they do. They want to do to some extent.
Alison LaCroix: There's a sort of cheap talk issue. Um, so we could think about this and say, look, you know, amendments and there aren't that many of them that are in this state. The 27th amendment is unusual because it was sort of going through the states being ratified and we're willing to say that the people in the states or the United States assembled or the people of the nation, however we want to think about them, considering these amendments have more durability than their representatives do. And we would kind of like that rule because we think the representatives are not the people. They're the actors. They're acting on behalf of the people. So then it's maybe permissible to have a longer time for these amendments. One final thought just on this puzzle of the OLC switched, um, which seems really interesting. So OLC in 1977 is saying the amendment has to be ratified within some reasonable time.
Alison LaCroix: 1992. It's sort of no requirement of Title II ratification. Who would've ever thought such a thing? It wasn't even in the 19th century. Right? Okay, fine. Well 1977. They're talking about the ERA in 1992. They're talking about the congressional pay amendment, you know, it's reasonable that one could say and one could then normative buys this and say this makes sense when it's an important substantive issue. There has to be some sort of time limit. We don't want this long duree kind of debate going on where we worry that we're not really getting a kind of holistic assessment by the people about some issue, whether it's the Equal Rights Amendment or gun control or something else when it's this kind of House... I mean that's what's weird about the 27th amendment. It's like who's going to be against that? I mean, we know who's going to be against the Congressional Pay Amendment, but you know, it's a kind of internal rule. It's like a less exciting constitutional amendment we could say as a technical matter. Um, and it's kind of an internal rule in there we're okay with having a more indefinite timeframe, and who decides all of that is obviously a set of questions I'm bracketing, But I think it's striking to me that they're such different types of amendments. So I will stop there, but thank you very much for the chance.
Sai Prakash: Thank you Alison for those very interesting and helpful comments. I'll just respond to two briefly and then take some questions. The, you know, the idea of a session in the Constitution, the constitution doesn't actually say that a session lasts a year. Um, nor does it say that it can't last more than a year. It turns out that sessions can last week or a month or two or three months. And in earlier times they'd have three or four sessions sometimes and they'd have a special session, right, the President might call the Senate in by itself to consider nominations or treaties. So when I say there was a session rule, what I, what I mean is sometimes they had a bill in two months or two weeks, not that they had the whole year. They of course decided when to terminate the session. Right. And I guess there's a constitutional question about how long you could have an intra-session recess.
Sai Prakash: Could you have a session, you know, do work for two weeks and then take six months off and then come back, right? And then do two more weeks. And then end it. I don't think there were long intra-session breaks in early practice. And this is, I think somewhat discussed in the Noel Canning case which is about recess appointments. But the point is sessions could be very short, but I don't know anything in the Constitution that says they can't last two years or even potentially longer. The Constitution says they have to meet every year in January, but it doesn't go so far as to say that the session has to end before they meet in January. I think they've traditionally had at least one session a year, but I think that's because they thought if there was a long break in the session and they should just end the session and not treat it as an eight month intra-session recess.
Sai Prakash: Alison's point about elections is really interesting. I did not know that. So thank you for letting me... making me aware of that. Thatpeople would vote over weeks or months. In part because it was difficult to get to a polling place and that, that makes total sense that there's a part of the introduction which talks about the election of that congressman from Montana, I don't know if you remember this from several years ago, but they had early voting in Montana. It was a Republican, basically Republican seat or safe Republican seat. Maybe the only Republican seat in Montana, or maybe the only seat in Montana. I don't know if they have only one or more than one representative. But this guy punched a reporter and, I think the day before the election, and so because lots of people have voted early on and they were Republicans, they voted for him. And then I think the voting was, had a slightly different inclination after the punch.
Sai Prakash: And so I talked about in the paper, well maybe you know, this guy got elected if they hadn't allowed people to vote months ahead of time, but, uh, maybe you know, Alison's point as well, you know, they didn't have a sense that you had to have elections on a particular day. And so that would, that sort of possibility would have occurred even back then. Maybe one last comment. I think it's interesting to talk about how the people are forever and legislators are not. I think. I think that's true, right? I mean all of them die and we, the people, I guess can sort of exist in some in some sense, but the question isn't whether or not legislators are forever like the we, the people, are. I think the question is how long do their proposals last, which is a slightly different question.
Sai Prakash: It seems to me, and you can have the view that even the legislature is clearly aren't forever in the way that we, the people, are. Their proposals are right? They could last forever across congresses for, with respect to bills or with respect to them and so I don't know how the, the idea that legislators, you know are half a term of office means that their proposals also have to be limited now and I'll say one, so this was. I'm lying to you. I have been saying there's only two points, but I'll say one final thing, right? The Congress thing is I think natural to us two years Congress. That's natural, but that's just because we're so familiar with it. Again, there's nothing in the Constitution. It says that Congress is a two year institution as opposed to a one year as opposed to a continuous as opposed to a six years or four year.
Sai Prakash: They could have chosen any number in the Constitution, just glommed onto it. And, and you know, we don't say... we don't count Supreme Courts in this room. We talk about October sessions or October turns. We don't say that, whatever, the 225th Supreme Court, and we don't say that about, you know, the Senate. We don't say this is the blankety blank Senate. We do that with the President. But you know, we don't actually follow a numbering system that actually tracks the number of elections or the number of terms served. We track the number of presidents. Right? So you're the, you're the, you're the... was Obama the 44th president? He's the 44th president. Even though he served two terms, he wasn't the 44th and the 45th. Right. Um, so that's a totally different. Anyway, I'd be happy to take whatever questions you have.
Question 1: Thank you. So one question that I've always had that really ties in what I think both what you and Professor LaCroix touched on. It involves whether a state can issue a recision of an approval of an amendment, and that was something I remember with one of these reconstruction amendments that seem to be some question over whether Ohio's legislature had tried to rescind its approval. But even if that's not the case, once the state approves, is that immutable, it's just fixed?
Sai Prakash: Well I think the Supreme Court has said that the amendments, sorry, Article V just talks about three quarter of the state's ratifying. And so not ratifying is not an action that's actually counted. You follow what I'm saying? So if you rejected an amendment, it's not counted in this decision where three quarters ratify, but if you ratify later on then you've met the criteria for being counted.
Sai Prakash: Right. So it only works. It's a one way ratchet. You can't unratify because you've ratified. Yeah, that's what I think the court has said. And so, you know, there's, to go back to something that I think Professor LaCroix was saying, you know, there's a certain logic to how we treat amendments maybe in the sense that, you know, it's much harder to pass an amendment than it is to make a statute. And so you might think, and we have so few of them, you might think it makes sense to make it easier by having these sorts of rules, but there's nothing in the Constitution that says, right, that you can't change along with respect to an amendment. The same sorts of questions could be asked about the House and Senate to the House passes a bill and the Senate passes, and then oops, the House says we don't want this presented.
Sai Prakash: You know, what happens and what happens in practice, I think, is they just sort of, when it's happened a couple of times, they've just sort of come to an understanding that it won't be presented, but the Constitution doesn't say who presents, right? I could present it this past and I want you to know that you can sign it. Then there's a statute about this, but you know, it's not obvious that the statute is constitutionally required.
Question 2: Two questions. First off, in the treaty context, because it's a contract between two parties, should we worry less because we can always pull out if it? If Putin decides, okay, this could treaty be binding today and we decide we don't like it, you know, we're, we're now used to pulling out of treaties with Russia the last few decades. Does that mean we don't have to worry about this unless, unless we think that because that's the President's decision, the Congress doesn't get a say in that.
Sai Prakash: I mean I think that's an interesting point. I think you're right. I mean none of us are really worried about any of this, right? Like I'm not staying up at night, but I think that's an interesting point. I guess what I'd say is there are actually international law rules about withdrawing from the treaty and they're not, you can just do it whatever you want to. And there's sometimes there's claims can withdraw from previous, depending on the terms are implied terms of the treaty. But of course, you know, all these things are undoable. They just require a lot of, some contexts would require much more work than unilateral decision. Um, I, I don't, I don't know if that matters as much. I mean so, so for instance, someone said, you know, look, we don't have two thirds in the set for this treaty, but the President can always undo it
Sai Prakash: so who cares. Right. And I think the answer would be, well there's a process to making it, you can't just say we're going to dispense with the process because it's so easy to get out of it. Right. And I do take the point that it's a lot easier to get out of the treaty, I think, then it would be to change the statute because even though international law limits your ability to withdraw from the treaty, it's something that President can do unilaterally. It doesn't have to go to the Senate or at least that's, that's certainly the modern industry. So I mean, a way to think about it as if the Constitution actually said you've got to, the Senate has to give its consent within 10 years of eventually making the treaty, which you think, well, we're going to waive that because president can unmake the treaty.
Sai Prakash: I think, as true as that point is, I still think you might say that that's not relevant to whether the treaty is made. Right? It's really about how easy it is to get out of it. Do you follow what I'm saying? What's your second question?
Question 3: Follow up. Did you come across any evidence that Washington considered not signing those bills, just as a way to force them to stop doing it at the last minute and give him enough time?
Sai Prakash: No, he did veto to bills. Uh, I don't recall the dates of the veto or if they were at the end of the session or not. But um, I don't recall him saying, I don't have to come across him saying this has to stop. I mean there's a reason for it, right. At the end of anything focuses the mind in a way that's just not true for, you know, the beginning of something. Right? So in, you know, you know, why do I write my exams at the end of the semester? Because I have to turn them in at the end of semester.
Sai Prakash: Why do you, why do students study a lot harder at the end of the semester? Because they've got finals, right? And of course you have two institutions here, right? So part of it was going on as the House may have passed the bill once earlier, but the Senate hasn't got around to it, but now they know that if they want to pass this bill without having the House have to repass it in the next session, they should act now. So there's a certain logic to it. Um, I don't recall. So there were proposals actually to change this, right? That like I think, I don't remember if the paper by discusses, but there were proposals for presidents to pass an amendment to fix this problem. And of course the way you fix the problem, right, is just not ending the session, right. If they, they could just continue to be in session right? Now there's a question of what that means.
Sai Prakash: And of course, after Noel Canning, it seems to be if there are two people in the room, they're in session, right? You guys know what I'm referring to: that recess appointments clause case where they just have two guys like saying we're open for business. And like I said, we're closed for business and that's, that's them being in session for purposes of the recess appointments clause. And if, if you thought that was right, it would be true for this as well. Right? So if they, if they just do their work ahead of time, they don't have to, as you said, they don't have to worry about this. But you know, that's, it's as we all know, living in the real world, it's easier said than done, right? To say that you should just do this, you know, it's like telling your kids like, why aren't you studying that? You shouldn't wait until the end. Like, "this TV is show on" or whatever. Right? You're just, "I'm tired." Right? "I'm doing a lot of stuff. Get off my back." Yes?
Question 4: I'm curious about the consequences of this argument for the 27th amendment. So could we see the Supreme Court in a challenge say that this constitutional amendment is unconstitutional? Uh, or could we think of it as an implied amendment to the implied rule?
Sai Prakash: Oh, well, I mean it's... like, wow. The second one. Well, the first one is there's not going to... the Court has basically said these questions aren't just itching. Um, they originally had waded into this stuff and then I think later on the waded back out, I think in part because they didn't like saying if there were limits, but they never repudiated the prior opinion. I know some people said they did, but by my reading they didn't. So I don't think that there would be a springboard case and it's not, you know, you know, is Congress going to give itself a pay raise? You know, before, you know the language is, you know, Alison brought a Constitution. I don't have it with me. This gives me the right, right? The language of it is actually not as helpful as one might suppose. It says that, you know, no pay raise can take effect until the election has occurred.
Sai Prakash: But that's not very good. Right? Because you could have an election and then give yourself a pay raise, right, while you're still in Congress. So it doesn't actually do what people think it does, though the text doesn't at least. And of course if you have a special election, I don't know why you can't use that either. Right? To meet and have a pay raise. They have special elections all the time. So, um, and then your second question was, what is it, an implied amendment? Uh, you know, I, you know, given that I don't think that people were focused on the question of whether or not they were changing the Constitution's Article V. It seems odd to me to say that it's an implied amendment, but you know, uh, professors, we are in the business of making odd arguments. So it's possible. I don't think so, you know, I don't think that you would read, mean, could you read the 14th amendment as implying that Congress can kick out states whenever from the union and like force them to ratify it. You know, that's a controversial kind of characterization of what happened.
Sai Prakash: I mean, they didn't kick them out, they tried to leave as you may recall. But uh, you know, I don't know what people would say today, right? Your Medicare, you're going to lose all your federal funding and you know, we're going to cut your state in half or whatever, right? Unless you ratify this amendment. I don't know if people would say that would be a good,
Sai Prakash: a good practice to be derived from the passage. Those things or things like that actually happened. There's nothing about the 27th amendment that make people think, oh, this really does something else too, right? Like, no one even thinks of that. I think for the most part, just like once you just find in your Constitution you don't think about anything. So it must be, it must be fine.
Host: Time for one more question.
Question 5: You just raised another one. If you value original reading as a constitutional interpretation, how do you measure the original reading of the 27th amendment?
Sai Prakash: Because it's across time. Yeah. Yeah. I mean, I, I, I've had, I've had originalist friends say that's an independent reason why there's a problem with this sort of, you know, motive of ratification of amendments.
Sai Prakash: I think, you know, the problem is I think there with respect to anything that takes time, right? I mean, you know, if you think that you have seven years to ratify them, if it's possible, it's going to mean something different in the original public meaning in the seventh year than it did when it was proposed. Right? Because when they, when the Court, you know, when a lot of these amendments say you have seven years to modify, right? But of course they're not talking about the time that it took the proposal which is sometimes two years. So could someone in the house, the amendment have a proposal to have an original public meaning in year one and a totally different one in year nine? Of course. That's entirely possible. So this is a problem I think, um, for, you know, for public meaning approaches or even intentional approaches to interpretation. The friend who told me this said that it was a problem with ratification over time, but that assumed that original public meaning, original intent is the right way. I think it's kind of a problem either way, I think. Right? If I guess if you have a living sort of approach to meaning, then you don't have that problem. Well, thank you so much. Thank you.
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