Does the Constitution mean what it says? The answer may seem obvious, but it’s not a trick question. All too often, politicians and judges have been faced with this question and responded not with a simple “yes,” but instead with words and actions that boil down to “no” or “not entirely” or “it’s complicated.”

Today in an op‐​ed for The Hill on the 2020 Census results, I recounted one of the starkest examples of this phenomenon: Section 2 of the Fourteenth Amendment. The text of Section 2 is not even close to being ambiguous. It says that when a state denies or abridges the right of any male citizen 21 or older to vote, the state’s census count “shall be reduced.” The more such people a state disenfranchises, the more its census count is reduced. The only exception provided in the text is if the disenfranchisement is “for participation in rebellion, or other crime.”

Yet as I lay out in the op‐​ed, the executive branch has for 150 years neglected to apply Section 2 and declined to reduce the census count of any state. The Census Bureau has instead produced its count of state populations and apportioned house seats as if this reduction requirement did not exist, making Section 2 effectively a “lost provision.”

But why should we care? Section 2 of the Fourteenth Amendment has certainly become anachronistic in several ways. Its primary goal was to incentivize the southern states to finally enfranchise their Black citizens. But that purpose has been more effectively achieved by the Fifteenth Amendment and its later implementing legislation. In addition, Section 2’s implicit assumption that males 21 and over constitute the baseline standard for enfranchisement no longer holds true after the Nineteenth and Twenty‐​Sixth Amendments extended suffrage to women and 18‐​year‐​olds nationwide.

Nonetheless, we should care quite a bit about the non‐​enforcement of Section 2. That’s because it’s a particularly blatant symptom of a much broader problem. Its nonenforcement goes to a fundamental debate about our constitutional structure: How does the Constitution change?

Why is understanding legal change so important? Because understanding legal change is necessary for understanding what is currently the law. As Professor Stephen Sachs has explained, “the legal rules that the Constitution establishes today are the ones it established at the Founding, plus any lawful changes.” Because “our law stays the same until it’s lawfully changed,” our law can only be understood by identifying lawful changes. Every legal system has rules of lawful change, and “until something happens to trigger those rules, everything that’s already in the system is supposed to stay the same. That’s what it means to have rules of change: if the rules aren’t satisfied, there’s no change.”

So what are the Constitution’s rules of lawful change? On one straightforward view, the Constitution can only be changed in the way the Constitution says it can be changed: the Article V amendment process. John Manning, the current dean of Harvard Law School, has laid out the case for this view. The original text of the Constitution was the product of careful compromise, as were all the amendments subsequently passed via Article V. Why then should anything less than an Article V amendment have the power to change the text as agreed to? In other words, “inferences from the Article V amendment process suggest that judges should adhere strictly to clear and rule‐​like constitutional texts.”

But on another view of the Constitution, notably propounded by Professor Bruce Ackerman, the Article V amendment process has become too cumbersome and “no longer makes sense for us.” On this view, the Constitution can be effectively changed not just through formal amendments, but also through “constitutional moments” when the nation acquiesces to new governmental powers that would have been unconstitutional under the “old” rules (the New Deal is frequently invoked as such a moment).

There are many variants of this latter view, but what they all have in common is the belief that some combination of external factors (e.g. necessity, longstanding practice by the political branches, an erroneous judicial decision that gains widespread acceptance) can “change” the meaning of the Constitution without a formal amendment.

While the Supreme Court has never explicitly endorsed this latter view, several of its decisions have implausibly found ambiguity in the constitutional text and allowed modern political will to trump original meaning. Thus, during the New Deal, the Court held that the Constitution’s plain and unmitigated prohibition on state laws “impairing the obligation of contracts” actually includes an invisible “except in times of economic emergency” exception.

More recently, the Court held that the word “recess” in the clause allowing the president to make recess appointments should be interpreted based on “the actual practice of Government” in the years after the clause was enacted, which the Court admitted it was “hesitant to disturb.”

And perhaps most egregiously, the Supreme Court has retained its early misinterpretation of a crucial rights provision in the Fourteenth Amendment for over a century. In the 1870s, the Court almost completely erased the “Privileges or Immunities” Clause from that amendment through an erroneous interpretation, and that interpretation has remained binding judicial precedent for nearly 150 years out of sheer inertia. The Court recently admitted that it saw “no need to reconsider that interpretation” because the erroneous approach had been the judiciary’s practice “for many decades.”

In each of these instances, the Court has effectively allowed de facto alterations to the Constitution’s original meaning to occur not through Article V amendment, but instead through the concerted actions of just one or two branches of government.

That is the unfortunate trend of which the erasure of Section 2 is a striking example. The command that a state’s census count “shall be reduced” has been changed by the executive branch through 150 years of non‐​enforcement into what is, for all practical purposes, a discretionary suggestion. The mainstream legal view is that this erasure is legitimate, as pithily demonstrated by Section 2’s treatment in the Congressional Research Service’s comprehensive guide to the Constitution. In a tome that runs nearly 2900 pages, Section 2 of the Fourteenth Amendment receives only a page and a half, where it is dismissed as “little more than an historical curiosity.”

Thus, whether Section 2 should be changed is not really the point. Perhaps it has indeed outlived its usefulness, an anachronistic relic of a brief political moment. The crucial question is, instead, how it should be changed. If such an explicit constitutional command can be ignored by the executive branch, any constitutional provision could be similarly erased without a formal amendment.

If instead we insist that Section 2 is the law of the land until lawfully changed by constitutional amendment, we stand for a principle that is the best chance of preserving the Contracts Clause, the Privileges or Immunities Clause, and every other endangered constitutional provision.

The Constitution means what it says until it’s lawfully amended. Every single word.

The Washington Post recently noted the complicating role played by the Jones Act in the development of offshore wind energy, using the example of two wind turbines constructed off the coast of Virginia Beach last year. Because the vessel used for the installation of the turbines was not Jones Act-compliant—no such vessels that meet the law’s restrictions currently exist—it was forced to operate out of Halifax, Canada rather than a closer U.S. port. From the article:

A century‐​old law made the situation even tougher. The Jones Act says only U.S.-built-and-operated ships can move goods between U.S. ports. To install the Virginia turbines, supplies shipped from Europe were first staged in Canada before being ferried on repeated trips to the construction site. The snags prompted Dominion to invest in the ship now being built in Brownsville, Tex. A jack‐​up vessel, it will be able to put down legs on the seafloor and then use hydraulic power to lift itself above the waves and create a secure working platform. It is expected to be ready in 2024 for Dominion’s wind farm expansion.

As I wrote in a letter to the editor, however, the construction of the $500 million jack‐​up installation vessel in Texas—as well as other vessels needed to maintain offshore wind farms after they are complete—is going to add significant costs that undermine the industry’s competitiveness:

The May 10 news article “Choppy seas ahead for Biden’s vision of offshore energy” correctly pointed out that the 101‐​year‐​old Jones Act has produced complications in the development of offshore wind in the United States. But this protectionist law also raises costs and undermines the sector in more direct ways.

The lone Jones Act‐​compliant wind turbine installation vessel currently under construction, for example, has a price tag of at least $200 million higher than if it were built abroad. Vessels used to service offshore wind farms after construction is complete, meanwhile, will similarly cost dramatically more owing to the Jones Act’s requirement that — unlike for any other form of domestic transportation — they be U.S.-built. That means reduced competitiveness of this nascent energy source.

If the Biden administration truly regards offshore wind as a centerpiece of its strategy to address climate change, its support of this outdated law must be urgently reconsidered.

The Jones Act’s harm to this sector has also been recently highlighted by energy industry observers. Rystad Energy, for example, last month cited the Jones Act as a key reason why the United States is falling behind other regions of the world in the development of offshore wind while a new report from IHS Markit says the Jones Act must be relaxed if the United States is to meet its offshore wind targets.

But beyond added complications and costs, the Jones Act also adds operational risks to the construction of offshore wind turbines. In addition to operating out of a foreign port, there is one other permissible means of using a foreign installation vessel. Under this option, the installation vessel remains stationary offshore while Jones Act‐​compliant barges “feeder” or transport the needed components to the waiting vessel from a nearby U.S. port. Transferring components via crane from one vessel to another in the bobbing seas, however, entails considerable hazards as was recently pointed out by one company active in the offshore wind industry:

Safety was confirmed as a factor by Eneti chief operating officer Cameron Mackey in a conference call with equity analysts on Thursday as the Scorpio Group‐​backed company discussed its approach to the US market.

Mackey noted that it is legally possible under Jones Act provisions to use a foreign‐​built wind turbine installation vessel (WTIV) for such contracts if turbine components are ferried to it aboard Jones Act barges, but he said operational realities are different.

“It doesn’t take an expert to see that the large, delicate and heavy [turbine] components can only be transported in the Atlantic Ocean and lifted off [vessels] by a crane at some heightened risk,” Mackey said.

Indeed, such added risks likely help explain why European firms constructing offshore wind farms in the North Sea do not use the feeder barge approach, as one Jones Act company official admitted last month:

Currently in the North Sea, components are typically transported to the field by the installation vessels themselves. We do not see the use of tugs and barges as prevalent in European offshore wind farms installations. This, however, is not a workable model for the U.S. market, particularly due Jones Act restrictions as there are currently no Jones Act qualified installation vessels.

Thus, Americans are left with the unappetizing choice of using the feeder barge approach at heightened risk or paying vast sums to construct a Jones Act‐​compliant installation vessel—a process that takes years to complete assuming an available shipyard can even be found. It’s just another one of the many ways the law places Americans at a competitive disadvantage.

For more about the added hassles, risks, and costs imposed by the Jones Act on the offshore wind sector, please see this November 2020 blog post.

This week we entered battle number 2,500 on the Public Schooling Battle Map, which now catalogs a total of 2,507 values‐ and identity‐​based conflicts in public schools. These are the most intense of conflicts because they have very personal stakes: whether your children are taught the moral and other values you think they should – or should not – learn, and how you see yourself – your race, religion, etc. – treated in school policies and curricula.

No doubt right now the two highest profile battles of the sorts we catalog on the Map are over the teaching of critical race theory, or other approaches that suggest racism is systemic and perhaps somewhat ingrained in people, and whether transgender girls should be able to participate in girls’ high school athletics. Both appear to be driving a trend that, as you can see in the chart below, may have been developing since 2016, but which seems to have exploded in 2021: state governments, not districts, deciding on policies for all.

Importantly, Map battles are not drawn via representative sampling, and our collections before 2013 have not always been of uniform intensity. That said, assuming we have not disproportionately excluded state‐​level conflicts in past years relative to district‐​level battles, the data suggest that many people are no longer trying to settle difference at the local level.

If true, it is bad, but understandable. While it is better to leave decisions to individual communities, which can be very different from each other, than impose a single answer on an entire state, communities also often contain significant diversity. If some people do not agree with policies their districts choose, or that they fear they might select, they have little recourse but to seek their way through higher government. And as the stakes of debates get higher – Will your kids be taught that they are racists? Not “real” girls? – the feeling that one must win grows.

Of course, we could avoid such high‐​stakes conflicts were we to do what we should have been doing all along: having education funding follow children to chosen educational arrangements rather than forcing all people to fund government schools. But for too long we have not done that, and we may well be looking at the consequence: state governments will decide whose values win and lose for everyone.

That is something no one who values freedom and diversity should want.

Reports in 2019 of e‐​cigarette vaping associated lung injury (EVALI) in teen and adolescent vapers added momentum to the already popular idea of banning flavored vaping cartridges, very popular with young vapers. In January 2020 the Food and Drug Administration ordered all companies to cease manufacturing flavored vaping cartridges.

It has been illegal to sell e‐​cigarettes to anyone under age 18 since 2016. The age was raised to 21 for tobacco and e‐​cigarettes in December 2019. This, of course, has not prevented many youth from obtaining e‐​cigarettes and cartridges on the black market.

The movement to keep teens away from e‐​cigarettes stems from the belief that they are a gateway to tobacco smoking. A 2018 study by researchers at the University of California San Francisco suggested teen vapers progressed to tobacco. However, University of South Dakota researchers questioned the methodology of that study, claiming the relationship between teen vaping and tobacco smoking can be traced to shared risk factors for tobacco use. Their own study, published in April 2020, concluded:

Electronic cigarettes may have offset conventional smoking among US adolescents between 2010 and 2018 by maintaining the total nicotine use prevalence and diverting them from more harmful conventional smoking. Additionally, electronic cigarette users appear to initiate at older ages relative to conventional smokers, which is associated with lower risk.

A systematic review and meta‐​analysis published January 2021 in BMJ by researchers at the University of Bristol concluded:

Although the association between e‐​cigarette use among non‐​smokers and subsequent smoking appears strong, the available evidence is limited by the reliance on self‐​report measures of smoking history without biochemical verification. None of the studies included negative controls which would provide stronger evidence for whether the association may be causal. Much of the evidence also failed to consider the nicotine content of e‐​liquids used by non‐​smokers meaning it is difficult to make conclusions about whether nicotine is the mechanism driving this association.

Now comes a study published in the May 2021 issue of Nicotine and Tobacco Research by researchers at Brown University and Harvard University that examined data from 2009–2018 and finds, “E‐​cigarette use is largely concentrated among youth who share characteristics with smokers of the pre‐​vaping era, suggesting e‐​cigarettes may have replaced cigarette smoking.” The authors state the implications of their research:

Vaping is largely concentrated among non‐​smoking youth who would likely have smoked prior to the introduction of e‐​cigarettes, and the introduction of e‐​cigarettes has coincided with an acceleration in the decline in youth smoking rates. E‐​cigarettes may be an important tool for population‐​level harm reduction, even considering their impact on youth.

Dr. Natasha Sokol, once of the study’s authors, told Filter journalist Alex Norcia, “The decline in youth smoking really accelerated after the availability of e‐​cigarettes.”

Efforts to reduce teen vaping deprive adult tobacco smokers of a proven harm reduction strategy. It turns out that most adult tobacco smokers who wish to quit prefer flavored and menthol e‐​cigarettes as more effective substitutes. A policy intended for minors is hurting adults. Now there is evidence that many who had switched from tobacco to e‐​cigarettes are switching back to tobacco. And while there are early indications that teen vaping rates may be starting down, pandemic‐​related school closures, lockdowns and stay‐​at‐​home orders might be distorting the actual effects of the flavor bans.

Meanwhile, whatever became of EVALI? It turns out that its etiology can largely be linked to marijuana prohibition. By the Fall of 2019 researchers found that most cases of EVALI were caused by Vitamin E acetate mixed with THC‐​containing vaping liquids, Furthermore, most cases of EVALI occurred in states where recreational marijuana was illegal. Soon after this became known, Washington and Colorado, where recreational cannabis is legal, banned the use of vitamin E acetate in the manufacture of any THC vaping cartridges by state‐​based companies. By early 2020, as vapers, legal manufacturers, and clinicians became aware of the primary cause of EVALI, the outbreak abated and case reports have all but disappeared.

In a sad and ironic twist, prohibition of marijuana helped to deprive adults of a proven way to reduce harm from smoking a legal substance that poses much greater health risks.

Two years after first introducing Senate legislation to repeal the Jones Act, Sen. Mike Lee (R‐​Utah) is back at it again. And this time he’s got company. Joining Sen. Lee in his effort to rid the country of this protectionist relic is Rep. Tom McClintock (R‐​California), who is sponsoring a Jones Act repeal bill in the House of Representatives:

“Restricting trade between U.S. ports is a huge loss for American consumers and producers,” said Sen. Lee. “It is long past time to repeal the Jones Act entirely so that Alaskans, Hawaiians, and Puerto Ricans aren’t forced to pay higher prices for imported goods—and so they rapidly receive the help they need in the wake of natural disasters.”

“The Jones Act is a protectionist law that drives up the cost of commerce, and those costs ultimately fall on the consumer,” said Rep. McClintock. “Just this week, the Jones Act had to be waived to ensure the East Coast had an adequate fuel supply, much like it is often waived to respond to natural disasters in U.S. territories. The solution is not selective waivers in times of distress – it’s repealing this disastrous law altogether.”

McClintock’s decision to partner with Lee on the issue is not altogether surprising. In 2016 he called for exempting Puerto Rico from the law, and the California congressman is also a member of the Republican Study Committee which offered a FY 2017 budget calling for the Jones Act’s repeal. Beyond concerns about Puerto Rico and the country more broadly, McClintock’s opposition to the law may also be motivated by its deleterious impact on his own state.

In the energy sector alone, the Jones Act encourages California to source gasoline from as far away as Singapore and oil from Nigeria instead of domestically owing to the high cost of Jones Act shipping. The Energy Information Agency notes that within the Petroleum Administration for Defense District that includes California, a lack of Jones Act‐​compliant vessels “can make it difficult to move product to where it is needed.”

Raising the cost of domestic shipping also certainly isn’t doing any favors for California ports.

Unfortunately for California and the rest of the country, the Lee‐​McClintock bill faces slim odds of becoming law. With numerous key members of Congress as well as President Biden on record as supporting the Jones Act, the legislation almost surely won’t be passed. But perhaps it can help spark a much‐​needed discussion about the wisdom of maintaining the nearly 101‐​year‐​old law. The world, including the maritime industry, has changed tremendously since the Jones Act’s passage, yet the law remains nearly untouched. An actual debate over the wisdom of the law, rather than the current echo chamber of pro‐​Jones Act sentiment that typically prevails inside Congress, would be a refreshing change.

To learn more about the Jones Act please visit www​.cato​.org/​j​o​n​esact.

Caught between respecting doctor‐​patient relationships and several overly broad interpretations of the Controlled Substances Act by the Justice Department and Drug Enforcement Administration, Walmart sought a declaratory judgment to clarify what its legal obligations were when filling opioid prescriptions. Rather than continuing to engage in practices that might violate federal law, the company wanted to concretely determine what the law actually required.

The district court refused to allow Walmart’s suit to move forward, however, ruling that the agencies had sovereign immunity, due to a lack of discretionary agency action. Despite detailed threats by the DOJ toward Walmart, the court did not think they rose to the level of agency action. This left Walmart forced to choose between coerced compliance and abandoning its rights.

Ultimately, the lower‐​court ruling allows government agencies to insulate their legal interpretations and enforcement threats from judicial review so long as they (inappropriately) claim “sovereign immunity.” And while Walmart has the financial resources to go head‐​to‐​head against the federal government to vindicate its rights, very few have the means to bring these challenges and so most people are inevitably left with no recourse but to give in to such official threats. Thus, the executive branch—not the courts—decides what the law is, contrary to our deeply rooted system of separation of powers.

Cato has joined the Due Process Institute on a brief urging the U.S. Court of Appeals for the Fifth Circuit to reject the government’s contention that regulated entities should be barred from having a meaningful way to push back on unlawful agency positions. Far from being exclusive to the Controlled Substances Act, similar coercive government actions are prevalent in many other areas of criminal and civil enforcement, including antitrust, anti‐​corruption laws, export controls, and sanctions laws, with few signs of abating.

Agencies should not have free reign to bully entities into compliance without any check on the legality of their actions. If the district court’s decision isn’t overturned, all businesses risk being put in a position where they must intentionally violate the law to get their day in court.

The Fifth Circuit will hear Walmart v. U.S. Department of Justice this summer.

President Joe Biden said that the richest Americans should “start paying their fair share” of taxes and that his proposed tax increases would ensure that the “wealthiest 1% … just pay their fair share.”

Senator Elizabeth Warren wants to make “changes to our rigged tax code so that the wealthy pay their fair share.”

Senator Bernie Sanders wants to make sure that the “wealthiest people … begin to pay their fair share of taxes.”

To shed light on these statements, we can look at Congressional Budget Office data on federal tax shares by income group. The CBO chart below includes individual income taxes, corporate income taxes, payroll taxes, and excise taxes. The lowest‐​income three quintiles, or three‐​fifths of households, are grouped together. The top 1 percent has been split out of the top quintile.

The share of federal taxes paid by the top 1 percent increased from 14.1 percent in 1979 to 25.3 percent in 2017. The share paid by the overall top quintile (the 1 percent group plus the 81st to 99th percentile group) increased from 55.1 percent in 1979 to 69.2 percent in 2017. The share paid by the other four‐​fifths of households has fallen substantially.

For reporters, an obvious follow‐​up question when politicians say that high earners are not paying their fair share is: “How high do the top shares need to rise before they are fair?”

Data for the CBO chart is available here.

Average tax rates by income group are discussed here.