John Bolton is Unconstitutional

[James G. Wilson]

      One of the biggest differences in the constitutional cultures of 
the United Kingdom and the United States is that the English are far 
more than willing to accuse each other of unconstitutional actions even 
though they still formally ahere to the doctrine of Parliamentary 
Sovereignty (which arguably makes all govenmental actions 
constitutional).  Probably because they do not have a single founding 
document, they believe their constitution includes, along with a 
mish-mash of statutes and court rulings, a variety of unwritten 
conventions that regulate political behavior.  Breaches of these 
conventions may be justifiable in certain situations, or may be 
indications of reckless ambition.  Of course, there will be debates over 
whether or not there was a convention in the first place, over the scope 
of a convention, and its purposes.

      I believe the American constitution has a number of important 
conventions that supplement or illuminate our written Constitution.  The 
Constitution does not tell the elected branches how many Justices can 
sit on the Supreme Court.  Congress may have the power to radically 
alter lower federal court jurisdiction and the Supreme Court's appellate 
jurisdiction in ways that would violate the "spirit" and traditions of 
our constitutional culture but still might be legal.   The definition of 
an impeachable offense is probably a political question, not a legal 
one.  Congressional expulsion should be regulated by public opinion, not 
the Supreme Court.  Thus, the elected branches can sometimes act 
unconstitutionally by breaching conventions even though they are acting 
legally in the sense that the Supreme Court will not intervene (whether 
it be on the merits, via standing, or through the political question 
doctrine).  The list goes on a good deal longer.   President Bush's 
appointment of John Bolton may well fall into this category. Bush 
arguably acted legally but unconstitutionally by violating the 
longstanding convention about appointments of ambassadors in general and 
U.N. ambassadors in particular.  I offer this approach not to solve the 
particular controversty (The Supreme Court might invalidate the 
nomination or the society might decide there was no convention or that 
the convention was not worth defending), but rather to suggest that such 
an approach would give us a better way to determine the perpetually 
uncertain line between politics and law.   As I like to say to my 
students, all legal questions are political, but not all political 
questions should be legal.  If this approach sounds intriguing to you, 
take a look at an article I wrote a decade ago in the Buffalo Law Review.

     

Earl Maltz wrote:

> Assuming that Marty is correct on the law in the abstract does he 
> believe that judicial intervention is appropriate?
>
> At 06:45 AM 8/4/2005 -0400, Marty Lederman wrote:
>
>> "it wants to be pointed out that the courts where these arguments 
>> were made did not buy them"
>>
>> "It" can't always get what it wants . . . but in this case it did:  
>> At the end of my post I do "point out" that the courts have not been 
>> receptive, and I even link to the one decision to have actually 
>> addressed the issue -- that of the en banc court in Stephens.
>> ----- Original Message -----
>> From: <mailto:JMHACLJ at aol.com>JMHACLJ at aol.com
>> To: <mailto:marty.lederman at comcast.net>marty.lederman at comcast.net ; 
>> <mailto:conlawprof at lists.ucla.edu>conlawprof at lists.ucla.edu
>> Sent: Thursday, August 04, 2005 6:40 AM
>> Subject: Re: John Bolton is Unconstitutional
>>
>> In a message dated 8/4/2005 6:25:08 A.M. Eastern Standard Time, 
>> <mailto:marty.lederman at comcast.net>marty.lederman at comcast.net writes:
>> The first is discussed in great detail in several briefs that my 
>> co-counsel and I filed on behalf of Senator Kennedy in cases dealing 
>> with last year's "recess appointment" of U.S. Court of Appeals Judge 
>> William Pryor. The most detailed of those briefs can be found 
>> <http://balkin.blogspot.com/Stephens.Reply.FINAL.corrected.pdf>here 
>> and <http://balkin.blogspot.com/FranklinFinal.pdf>here. The basic 
>> argument is that the term "the Recess" refers solely to recesses 
>> between "Sessions" of the Senate, and not to intra-session 
>> adjourments, such as 
>> <http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi?position=all&page=S9588&dbname=2005_record>the 
>> one the Senate began last Friday.
>>
>> The last person to reject an argument solely because no court has 
>> bought it would be me.
>>
>> But, it wants to be pointed out that the courts where these arguments 
>> were made did not buy them.
>>
>> Also, I found suspect Teddy's decision to go the amicus route after 
>> having threatened litigation, except that I suspect his wise legal 
>> counsel told him he would, ultimately, fail.
>>
>> Jim Henderson
>> Senior Counsel
>> ACLJ
>>
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>
> _______________________________________________
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