BTW, here is a living constitutionalist argument in favor of having the 5th Amendment implicitly repeal the natural-born citizen requirement for the US Presidency:
This argument is more respectable than the US Senate argument since:
1. Nothing in the US Constitution after the 5th Amendment explicitly mentions this requirement.
2. This argument is actually based on 65 years of case law–even if the principles of this case law (starting from Bolling v. Sharpe) were not extended by the courts to the natural-born citizen requirement (not yet, at least).
It’s interesting, but I don’t buy it. The author skips over the problem of implicit repeals pretty casually. That’s a canon of interpretation for a reason: the law should be predictable, and implicit repeals make it less so. How believable is it that the natural-born requirement was written in 1787 and repealed in 1791, but no one noticed until 2006? I would be very happy to see that provision repealed, but it has to be done openly, by amendment.
Oh, sure, the presumption against implied repeal has value for the reason that you listed. However, your logic here could also be used to grant deference to state constitutional provisions–especially state constitutional provisions that have been in place for a long time and which have previously always been thought to be constitutional. The problem is that the US Supreme Court has not actually adopted that approach in regards to US state constitutional provisions–at least ever since the Warren Court. Thus, if long-lasting state constitutional provisions are not entitled to any deference, it wouldn’t make too much sense to give a crazy level of deference to federal constitutional provisions.
If one applies original intent, obviously the argument in the article that I linked to above would fail–something that the author of that article openly acknowledges. However, nowadays not even all originalists actually embrace original intent. For instance, Jack Balkin made an “originalist” case in favor of a constitutional right to abortion, Steven Calabresi and Ilya Somin made “originalist” arguments in favor of a constitutional right to same-sex marriage and Nelson Lund (in his critique of Balkin’s “living originalism”) made an “originalist” argument in favor of an 18-year-old US President (and presumably also 18-year-old US Congressmen and US Senators). I’m not joking about any of this–originalism has certainly done a long way since the days of Raoul Berger–whom I’m sure must be aggressively rolling in his grave right now!
As a side note, even if one accepted the premise against implied repeals as a general rule, I’m not sure that it would actually be a good idea to always apply this presumption. For instance, in a purely hypothetical scenario where the original US Constitution (as in, the 1787 text) would have explicitly allowed US states to segregate their schools by race and to have anti-miscegenation laws (with whatever penalties for miscegenation that they desired, including the death penalty), and if all of the subsequent Amendments to the US Constitution would have had the exact same text that they had in real life, and if the draftsmen of the Reconstruction Amendments would have explicitly said that neither the 13th nor the 14th nor the 15th Amendment implicitly repeals these earlier hypothetical provisions of the original US Constitution (nor gives the US Congress the power to pass a statute that overrides these provisions of the original US Constitution), then I would think that it would have still been perfectly acceptable for judges to nevertheless use the 14th Amendment (and/or the 13th Amendment, and/or the 15th Amendment) to implicitly repeal these hypothetical earlier parts of the original US Constitution even if contemporaries of these Amendments would have failed to realize that these Amendments actually have this effect. Thus, in cases that involve discrimination based on immutable characteristics, I’m certainly very willing to throw the presumption against implied repeal aside. The natural-born citizen requirement would obviously fall within this category–though it’s certainly nowhere near as severe as school segregation or anti-miscegenation laws are!
*I’m not joking about any of this–originalism has certainly *gone* a long way since the days of Raoul Berger–whom I’m sure must be aggressively rolling in his grave right now! (typo)
As a side note, I actually don’t have a problem with Raoul Berger-style “old originalism” as a methodology. Sure, it could deliver some or even a lot of unattractive results, but it does have value in providing stability and predictability–at least when one is willing to defer to previous precedents.
However, when living constitutionalists and even some self-declared “originalists” have no problem ignoring original intent or tossing out longstanding precedents in order to achieve their desired policy goals, I myself am also tempted to play their game and aim to adopt a constitutional theory that produces results that I like. I’m not necessarily saying that such a constitutional theory would be ideal; rather, I am simply saying that when others set the rules of the game in a certain way, I am tempted to play by their rules in an attempt to secure the great possible advantage for myself.
Very good article!
BTW, here is a living constitutionalist argument in favor of having the 5th Amendment implicitly repeal the natural-born citizen requirement for the US Presidency:
https://repository.jmls.edu/cgi/viewcontent.cgi?article=1287&context=lawreview
This argument is more respectable than the US Senate argument since:
1. Nothing in the US Constitution after the 5th Amendment explicitly mentions this requirement.
2. This argument is actually based on 65 years of case law–even if the principles of this case law (starting from Bolling v. Sharpe) were not extended by the courts to the natural-born citizen requirement (not yet, at least).
It’s interesting, but I don’t buy it. The author skips over the problem of implicit repeals pretty casually. That’s a canon of interpretation for a reason: the law should be predictable, and implicit repeals make it less so. How believable is it that the natural-born requirement was written in 1787 and repealed in 1791, but no one noticed until 2006? I would be very happy to see that provision repealed, but it has to be done openly, by amendment.
Oh, sure, the presumption against implied repeal has value for the reason that you listed. However, your logic here could also be used to grant deference to state constitutional provisions–especially state constitutional provisions that have been in place for a long time and which have previously always been thought to be constitutional. The problem is that the US Supreme Court has not actually adopted that approach in regards to US state constitutional provisions–at least ever since the Warren Court. Thus, if long-lasting state constitutional provisions are not entitled to any deference, it wouldn’t make too much sense to give a crazy level of deference to federal constitutional provisions.
If one applies original intent, obviously the argument in the article that I linked to above would fail–something that the author of that article openly acknowledges. However, nowadays not even all originalists actually embrace original intent. For instance, Jack Balkin made an “originalist” case in favor of a constitutional right to abortion, Steven Calabresi and Ilya Somin made “originalist” arguments in favor of a constitutional right to same-sex marriage and Nelson Lund (in his critique of Balkin’s “living originalism”) made an “originalist” argument in favor of an 18-year-old US President (and presumably also 18-year-old US Congressmen and US Senators). I’m not joking about any of this–originalism has certainly done a long way since the days of Raoul Berger–whom I’m sure must be aggressively rolling in his grave right now!
As a side note, even if one accepted the premise against implied repeals as a general rule, I’m not sure that it would actually be a good idea to always apply this presumption. For instance, in a purely hypothetical scenario where the original US Constitution (as in, the 1787 text) would have explicitly allowed US states to segregate their schools by race and to have anti-miscegenation laws (with whatever penalties for miscegenation that they desired, including the death penalty), and if all of the subsequent Amendments to the US Constitution would have had the exact same text that they had in real life, and if the draftsmen of the Reconstruction Amendments would have explicitly said that neither the 13th nor the 14th nor the 15th Amendment implicitly repeals these earlier hypothetical provisions of the original US Constitution (nor gives the US Congress the power to pass a statute that overrides these provisions of the original US Constitution), then I would think that it would have still been perfectly acceptable for judges to nevertheless use the 14th Amendment (and/or the 13th Amendment, and/or the 15th Amendment) to implicitly repeal these hypothetical earlier parts of the original US Constitution even if contemporaries of these Amendments would have failed to realize that these Amendments actually have this effect. Thus, in cases that involve discrimination based on immutable characteristics, I’m certainly very willing to throw the presumption against implied repeal aside. The natural-born citizen requirement would obviously fall within this category–though it’s certainly nowhere near as severe as school segregation or anti-miscegenation laws are!
*I’m not joking about any of this–originalism has certainly *gone* a long way since the days of Raoul Berger–whom I’m sure must be aggressively rolling in his grave right now! (typo)
As a side note, I actually don’t have a problem with Raoul Berger-style “old originalism” as a methodology. Sure, it could deliver some or even a lot of unattractive results, but it does have value in providing stability and predictability–at least when one is willing to defer to previous precedents.
However, when living constitutionalists and even some self-declared “originalists” have no problem ignoring original intent or tossing out longstanding precedents in order to achieve their desired policy goals, I myself am also tempted to play their game and aim to adopt a constitutional theory that produces results that I like. I’m not necessarily saying that such a constitutional theory would be ideal; rather, I am simply saying that when others set the rules of the game in a certain way, I am tempted to play by their rules in an attempt to secure the great possible advantage for myself.
*greatest possible advantage for myself. (typo)