'Duty' and the Constitution

04/11/2016 03:35 pm ET Updated Apr 12, 2017

There's been a lot of back and forth over "constitutional duties" lately. Smart people on both sides are digging up historical sources (some better than others) to support their arguments -- one side claiming the Senate has a "constitutional duty" to consider Merrick Garland's nomination to the Supreme Court and the other side claiming no such duty exists.

I'm no constitutional scholar, so I claim no authority on this question. And surely others who are smarter than me, and more steeped in legal theory and history, have already thought through (and perhaps discarded) the thoughts I'm about to share. But I have access to this blog and two hours to spare, so I'm going to share my thoughts anyway.

Article II, section 2 of the Constitution says the president "shall nominate, and by and with the advice and consent of the Senate, shall appoint...judges of the Supreme Court." That's all the text we have to go on. And according to the no-duty crowd, the Senate has no constitutional duty to consider Garland's nomination because, quite simply, this passage -- the text of the Constitution -- imposes no "duty." Jonathan Adler (@jadler1969) says providing advice and consent might be politically prudent, but ultimately it is "discretionary." Ed Whelan (@EdWhelanEPPC), in a Twitter exchange with me, described the Advice and Consent Clause as a "condition precedent" (a term from contract law) -- and insists it imposes no "constitutional duty." According to these very smart legal thinkers (and others like them), the Senate can refuse to consider Garland's nomination for as long as it wants. Even forever. Because the Constitution creates no duty to act.

And maybe they're right. I mean, if you just read it, it seems pretty clear the Constitution's text does not impose a duty on the Senate -- at least, not in the same way that it seems to impose a duty on the president. The text says the president "shall nominate" and "shall appoint" Supreme Court justices. That sounds like a duty. But there's no "shall" in the Advice and Consent Clause. Plus, the whole provision appears in Article II -- the article devoted to constructing the Executive Branch and delineating the president's duties and powers. Article II isn't about the Senate, so why should it be interpreted as creating a senatorial duty?

So what does Article I say? Article I is the article devoted to constructing the Legislative Branch and delineating its duties and powers. Does Article I impose a duty on the Senate, when it comes to judicial appointments? Nope. Not a word about judicial appointments. So maybe the no-duty crowd is right and the Senate has no duty to consider Garland. They can stall as long as they want -- forever, even -- as long as the voters will let them get away with it.

Except that's sort of ridiculous, if you think about it. I mean, let's just think about it.

Article I, section 2 of the Constitution says: "The House of Representatives shall be composed of members chosen every second year by the people of the several states." And section 3 (as altered by the Seventeenth Amendment) says: "The Senate of the United States shall be composed of two senators from each state, elected by the people thereof." Both of these provisions use "shall," which sounds compulsory -- but nobody would say that these provisions impose a "duty" on "the people" to vote and elect senators and representatives. You don't have a duty to vote, right? Everybody knows voting is discretionary.

But think about that. What would happen if nobody voted? Literally: nobody. What if we the people simply refused to elect anyone to the Senate? Does the Constitution allow us to do that? Clearly, the text does not impose a duty on "the people" to elect a Senate. But, just as clearly, if we refuse to elect a Senate then -- by definition -- we won't have the sort of government that the Constitution constitutes. Refusing to elect a Senate would mean, in effect, rejecting the Constitution's form of government -- and thereby rejecting the Constitution itself.

And really, isn't this also true for judicial appointments? Carried to its logical end, the proposition that the Senate can simply refuse to consider judicial nominees indefinitely means the Senate can literally -- through inaction and attrition -- do away with the Judicial Branch altogether. And the Executive could do the same, if successive presidents simply refused to nominate any judges. In other words, like the people refusing to elect a Senate, or the Executive refusing to nominate any judges, the Senate refusing to consider and confirm any judges deprives us of the sort of government that the Constitution constitutes.

Yet, according to the no-duty crowd, the constitutional text permits this sort of inaction because it imposes no duty to act. This is true: the text imposes no duty. But seriously, are we really going to say that the Constitution provides for and constitutionally permits its own demise? How can it be constitutional to do away with a branch of government constituted by the Constitution?

This seems absurd. But if we're relying only on the text of the Constitution itself, it seems that the Constitution does permit its own demise -- because its text imposes no explicit duty to prevent its demise.

For these reasons, maybe it's useful to think about two different kinds of "duties." On the one hand, there are what we might call "constitutional duties" -- duties that are created by the text of the Constitution, such as the House's duty to keep a journal of its proceedings (Art. I, sec. 5) or each state's duty to give "full faith and credit" to the "judicial proceedings" of other states (Art. IV, sec. 1). Because they flow from the constitutional text (ex post?), we might think of these as duties coming out of the Constitution.

And on the other hand, there are what we might think of as duties going into the Constitution. These are not duties created by the text of the Constitution itself. Rather, these duties are something like prerequisites -- self-imposed commitments or obligations that preexist the constitutional text (ex ante?). Put another way: if we are committed to having the system of government that the Constitution constitutes, then we obligate ourselves to do certain things -- like elect a body of senators, as described in Article I. And we are obligated to do these things, in the sense that we have a duty to do these things, or we have no commitment to making the Constitution a reality (or to preventing its demise). Instead of "constitutional duties," we might call these "duties to the Constitution."

In sum, if you're committed to the form of government that the Constitution constitutes -- a government with three branches, etc. -- then you must embrace certain duties to act in ways that will bring the Constitution's form of government into existence (and not bring about its demise). We can't refuse to elect any senators, for example, without rejecting the Constitution itself -- because our Constitution's form of government includes elected senators. Thus, while there is no constitutional duty to elect senators, we nevertheless have a duty to the Constitution to elect senators.

Likewise, even if the constitutional text imposes no duty on senators to consider and confirm Supreme Court justices, our senators nevertheless have a duty to the Constitution to consider and confirm Supreme Court justices. They can't categorically refuse to confirm any justices indefinitely (anymore than the president can refuse to appoint any justices indefinitely) without rejecting the Constitution itself -- because our Constitution's form of government includes president-appointed and senate-confirmed Supreme Court justices.

Bottom line: maybe Adler and Whelan and others are correct to say the text creates no "constitutional duty" for our senators to act on judicial nominations. But this can't be the end of the "duty" discussion. If our senators are committed to bringing the Constitution's form of government into existence (and to not bringing about its demise) -- then they should recognize they have a duty to the Constitution to do their job and take action.