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Friday, July 25, 2014

The Color Of Rafael Cruz's World

You tell 'em, Pops!

[Ted Cruz's dad] told “Faith & Liberty” host Dave Garrison on Tuesday that President Obama and Fidel Castro are two peas in a pod, claiming that both leaders “operate by the same rulebook” in their supposed attempts to “embrace socialism,” “eliminate the concept of God” and “make the people serfs of the government.

“As a matter of fact, I think if the left had their way, they would do away with the whole Bill of Rights,” he said.

I'm a pretty big fan of the BoR, even the 2nd and 10th amendments.  I'd like to make sure it's actually meaningful in today's political context and protects the People from corporations and the undue influence of wealth on our electoral processes, which is why I'd like a 28th amendment that shores up individual liberty.  Go figure.


July 25, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Thursday, July 24, 2014

Constitutional Evolution

BooMan Johnson is right:

[I]t doesn't matter that the Founders didn't endorse the abolition of slavery and the death sentence or gay marriage or abortion rights or female suffrage. They knew that standards would change and they provided us with a way to deal with that change. In some cases, we could amend the Constitution, in others we could pass new laws, and in still others judges would make rulings consistent with changing standards about privacy and human sexuality and crime and punishment.

We aren't supposed to live in amber, stunted with the same moral sensibilities as 18th-Century men.

If we're stuck in amber, it means we've gone extinct.


July 24, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Tuesday, July 22, 2014


Yeah, no:

There is a school of thought, called “declarationalism,” that holds that our Declaration of Independence should be viewed on equal par with the Constitution in American jurisprudence. Has there ever been an instance in which a ruling by our highest court has used the Declaration as the key legal basis for any of its decisions? None that I could find, though there look to be scores of instances in which it is mentioned.

In one case that set back political equality — the Dred Scott case of March 1857 — the Supreme Court ruled that black Americans in the United States, whether slaves or free, did not have the right to become citizens. In Dred Scott v. Sanford, Chief JusticeTaney, in legalizing slavery, wrote for the majority that black Americans “had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold and treated as an ordinary article of merchandise and traffic, whenever profit could be made by it.” Taney held that the Declaration’s claim that “all men are created equal” did not apply to black Americans. To him, “it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration. . . .”

But most instances in which the Declaration is mentioned by our highest court appear more in the vein of what John Quincy Adams had in mind. For instance, in Cotting v. Godard, in 1901, the Supreme Court makes the case that the Constitution is but the “body and the letter” of the “thought and spirit” of the Declaration’s founding principles.

It's a good piece, so read it all.

Anyway, right wingers have a tendency to conflate the Declaration and our Consitution.  I hate that.  

Look at the damned documents.  Does the Declaration lay out any frame of government?  Nope, it's a statement of purpose and list of grievances.  Sure it announces what our motivating ideals are, but saying I'm all for liberty is meaningless without my putting that into practice.

Consider that on the day Henry Lee first proposed a resolution declaring independency, Congress postponed that decision for three weeks and immediately appointed a committee to come up with "a plan of confederation" that became the Articles.  They knew that whatever happened, they needed a coordinated government of some form.

Same goes for the Constitution's Preamble (and the pre-Preamble that Madison proposed).  It's all important, and can provide some guidance I guess (in the context of natural rights, perhaps), but shouldn't be treated as having any force of law.


July 22, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Friday, July 18, 2014

Corporatism Needs No Amendment

Indeed, Godel's right that we could constitutionally become a dictatorship through Article V processes.  But how quaint: just inject enough money into the system and you don't even need to amend things.


July 18, 2014 in Constitution, Schmonstitution | Permalink | Comments (1) | TrackBack

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Wednesday, July 16, 2014

Is That A Gun Fetish In Your Pocket?

It's amazing that the Framers didn't just make the 2nd Amendment the entirety of our Constitution:

Speaking to conservative talk show host Bill Cunningham in March, [Gun Owners of America‘s Executive Director Larry] Pratt said of a New York Congresswoman Carolyn Maloney, who had expressed her fear of violent gun owners, that he was “kind of glad that’s in the back of their minds. Hopefully they’ll behave.”

If they don’t, as Alexander Zaitchik noted, Pratt has already devised a solution, telling a group at the conservative Leadership Institute that “[w]e can have all the guns in the world, and if we don’t have the will to use them [against the government], then they are useless.” AWR Hawkins, writing at Breitbart.com, downplayed Pratt’s comments, saying they were merely a recapitulation of statements made by James Madison, who “believed Americans possess guns in order to keep the government in check.”

Pratt's the happy guy who thinks Scalia is an anti-gun tyrant, and pretty much misses the boat on what Madison et al said


July 16, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Monday, July 14, 2014

Seditious Is As Seditious Does

Happy Birthday, Sedition Act of 1798!

Such a lovely little law.  Clearly unconstitutional.  First person to be prosecuted was a Vermont Congressman.  Gave rise to our tepid flirtation with nullification that certain folks love to cite even today.  Instrumental in the Revolution of 1800.

Good times.


July 14, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Happy Bastille Day!

I have to chuckle when I think of the French National Day because last year I was in an argument with somebody who seriously asserted this: "after the French Revolution, the US Constitution was designed to prevent that from happening here..."


July 14, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Saturday, July 12, 2014

Conventional Wisdom

Um, VT Digger, I love you, but this article is spectacularly awful.  

Start with the hed: LEAHY PUSHES FOR CONSTITUTIONAL CONVENTION ON CAMPAIGN FINANCE REFORM.  Pat, in fact, does no such thing.  He did move Udall's proposed resolution through Judiciary, and would like to see an Amendment pass, but I see no call for Convention.

Then there's this:

The measure must be brought to the Senate floor, and passed by both chambers. Thirty-four states must then vote to hold a convention. If a convention is held, 38 states (three-quarters) must vote to approve the amendment.

In May, the Vermont Legislature became the first state to pass a resolution calling for a constitutional convention to reverse the Supreme Court rulings that critics say allow wealthy donors to disproportionately influence American politics.

I think I see the problem.  Vermont certainly did pass a resolution proposing a limited Article V convention.  However, here's what Udall's proposed resolution says:

[T]he following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States.

Yeah, that's not a call for Convention, but rather a standard Article V process which has been used for every Amendment since the very beginning--no other method has ever been used.  So the author appears to be conflating the two approaches because of Vermont's resolution.

There's a big difference, and Digger should be more careful.  Proposing a single amendment is a much narrower thing than calling for the States to gather to make changes, which would be a much woolier, unpredictable process.

I guess it doesn't really matter that much since it's most likely DOA on the Senate floor, let alone in the House.  Still...


July 12, 2014 in Constitution, Schmonstitution | Permalink | Comments (1) | TrackBack

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Thursday, July 10, 2014

You Are The Second Bank...Goodbye!

Jackson says of the court, they think the bank of the United States is constitutional, I don't think it's constitutional. Their opinion doesn't matter to me. I'm the president, they're over the judiciary, he vetoes it.

 - Newt Gingrich, December 18, 2011

Yeah, I like defending/picking on Good Ole Historian And Disgraced Speaker Newt when it comes to the Judiciary.  I only thought of him because President Andrew Jackson vetoed the Second Bank of the United States on this date in 1832.  At the time, Mr 20 Bucks noted:

The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.

I'd argue that the Bank, just like the Fed, is constitutional, but I can't take issue with his essential logic.  Everybody in government--that includes voters--must interpret the Constitution and act accordingly.

It's true that the constitutionality of the National Bank was challenged and upheld in McCulloch v. Maryland (1819):

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.

Yet this did not prevent Jackson from vetoing the early renewal bill and letting the old charter expire.  SCOTUS might have found the Bank to be allowed, but that opinion carried place obligation on the Executive, who can veto whatever he wants for whatever reasons.  What's permissible doesn't necessarily translate into policy (wise or otherwise).

As an aside, Jackson provided fodder for Lincoln in debate with Stephen Douglas.  He called out the latter for inconsistency regarding Dred Scott.

Anyway, Old Hickory was hardly alone in his resistance to a national bank.  Thomas Jefferson wrote to John Taylor of Caroline in 1816, about a month after President Madison signed legislation chartering the Second Bank:

The system of banking we have both equally and ever reprobated. I contemplate it as a blot left in all our constitutions, which, if not covered, will end in their destruction, which is already hit by the gamblers in corruption, and is sweeping away in its progress the fortunes and morals of our citizens. 
And I sincerely believe, with you, that banking establishments are more dangerous than standing armies... 

Taylor later wrote a response to McCulloch that boiled down to this: if Congress can incorporate a bank, it can end slavery.  And we can't have that!

Leading up to the Bank Act, the debate included this little morsel from Representative Randolph, another Democratic-Republican from Virginia:

All banking institutions were alike in their desire to swell their profits to the greatest extent, howsoever correct and virtuous the directors might be in their private characters; and he would guard against every public robber of every grade, whether he be a Governor General of India or a Bagshot highwayman. He would put it out of the power of this bank to commit frauds on the community, without ruin to itself.

Interestingly, Virginia's House members split on the final vote, 8-10 (it passed 80-71), whilst both Senators voted in favor (it passed 22-12).  A more interesting development, however, is that James Madison supported the Second Bank whilst leading opposition to the First.

Turns out that the War of 1812 created a great deal of chaos in our nation's financial state.

The war had...led the federal government to rack up significant debt. Without the First Bank, the government had to rely more heavily on state banks to help finance the war. The influx of federal government deposits to these institutions led them to issue greater quantities of banknotes and loans.

The proliferation of banknotes increased money in circulation and resulted in inflation, because too much money was chasing too few goods. Without the First Bank’s ability to limit the state banks’ issuance of paper currency, there was no longer an entity that could control the amount of money created. In addition, strong demand for loans during the war increased interest rates and thus bank profits. Without the restraining hand of the Bank of the United States, state banks became less cautious in their lending habits and credit expanded rapidly.

In effect, the country found itself in circumstances similar to those after the Revolutionary War: mounting debt from a war with England, soaring prices, and devalued money from rising inflation. These problems and the resulting economic consequences would soon lead the United States to make another attempt at creating a national bank. In 1816, President James Madison signed the bill that would create the second Bank of the United States.

So in President Madison's 7th Annual Message to Congress on December 5th, 1816:

Although the embarrassments arising from the want of an uniform national currency have not been diminished since the adjournment of Congress, great satisfaction has been derived in contemplating the revival of the public credit and the efficiency of the public resources. 
The arrangements of the finances with a view to the receipts and expenditures of a permanent peace establishment will necessarily enter into the deliberations of Congress during the present session. It is true that the improved condition of the public revenue will not only afford the means of maintaining the faith of the Government with its creditors inviolate, and of prosecuting successfully the measures of the most liberal policy, but will also justify an immediate alleviation of the burdens imposed by the necessities of the war.

It is, however, essential to every modification of the finances that the benefits of an uniform national currency should be restored to the community.

In response, the Senate created a select committee on finance and a uniform national currency (predecessor to the standing Finance Committee created the following year).  The House did, as well, and John C Calhoun (a Democratic-Republican) reported out a bill that eventually made it through the sausage grinder.

Oddly enough, Calhoun would later resign as Vice President under Jackson so he could run for Senate to defend nullification.  THAT was definitely unconstitutional.  Wonder what Gingrich would think of that good ole defender of nullification and slavery?


July 10, 2014 in Constitution, Schmonstitution | Permalink | Comments (1) | TrackBack

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Wednesday, July 09, 2014

Speaking Of Romer

It's getting old hat, but since I just alluded to Romer in the context of the 14th Amendment, I thought today's ruling in CO seemed important:

Like DOMA, the expressed purpose of the amendment [Amendment 43 banning marriage equality in 2006] is to discriminate against an unpopular minority by denying members of the minority access to a right which the United States Supreme Court has repeatedly said is “fundamental.” Under any reading of Romer v. Evans, 517 U.S. 620 (1996) and Windsor, these laws cannot stand constitutional scrutiny and must be stricken.

Poor, poor, Justice Kulturkampf.


July 9, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Do Statutes Have Souls?

Paul Begala writes:

Boehner's sue first, ask questions later strategy just might work. Not because the suit has merit but because the Supreme Court has several activist Republican justices. They recently rewrote the First Amendment to declare that corporations have souls and thus have freedom of religion. Soon, I expect them to grant sainthood to Koch Industries.

I understand where he's coming from, but this a bit glib.  The ruling in Hobby Lobby was an interpretation of the RFRA, not the First Amendment.  Perhaps a fine distinction to the casual observer, but it's important.


July 9, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Well, Since There Actually Is A 14th Amendment

I wanted to highlight just one section of the Senate debate over Amednmen XIV delivered by John Conness, an Irishman representing California:

The proposition before us, I will say, Mr. President, relates simply in that respect to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the nation. I am in favor of doing so. I voted for the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States.

Now, then, I beg the honorable Senator from Pennsylvania, though it may be very good capital in an electioneering campaign to declaim against the Chinese, not to give himself any trouble about the Chinese, but to confine himself entirely to the injurious effects of this provision upon the encouragement of a Gypsy invasion of Pennsylvania. I had never heard myself of the invasion of Pennsylvania by Gypsies. I do not know, and I do not know that the honorable Senator can tell us, how many Gypsies the census shows to be within the State of Pennsylvania. The only invasion of Pennsylvania within my recollection was an invasion very much worse and more disastrous to the State, and more to be feared and more feared, than that of Gypsies. It was an invasion of rebels, which this amendment, if Iunderstand it aright, is intended to guard against and to prevent the recurrence of.
But why all this talk about Gypsies and Chinese? I have lived in the United States for now many a year, and really I have heard more about Gypsies within the last two or three months than I have heard before in my life. It cannot be because they have increased so much of late. It cannot be because they have been felt to be particularly oppressive in this or that locality. It must be that the Gypsy element is to be added to our political agitation, so that hereafter the Negro alone shall not claim our entire attention.

Here is a simple declaration that a score or a few score of human beings born in the United States shall be regarded as citizens of the United States, entitled to civil rights, to the right of equal defense, to the right of equal punishment for crime with other citizens; and that such a provision should be deprecated by any person having or claiming to have a high humanity passes all my understanding and comprehension.

Which nicely leads to legal scholar Garrett Epps:

It is...ahistorical to suggest that the Framers did not foresee the legal and social characteristics of what we today call "illegal" or "undocumented" immigrants. They did; and they rather categorically stated that these characteristics—ineligibility for citizenship, unacceptability as members of the body politic, isolation from American culture and systematic evasion of American law—would not constitute exceptions to the Amendment‘s grant of birthright citizenship.
Each generation imagines that its problems are different from those of all who have come before. We have no idea what America will look like in 2110; but we do know that the United States of 1866 survived to become the United States of 2010. It seems, then, that the changes they faced were less wrenching than those we face. They were guaranteed a happy ending; it is right there in the history textbook. 

But that is a cast of mind, not a historical conclusion. America in 1866 was a nation as profoundly transformed by immigration as it is in 2010. Issues of language, culture, religion, social mores and other aspects of the American identity were as salient then as they were now. We would be making a profound historical error to imagine that the generation that framed the Clause was unaware that migration was a transformative and often destabilizing force in American society.
Further, the ongoing debate about assimilation of new immigrant populations—along with persistent fears that whichever group is entering the U.S. most recently brings with it new and insoluble differences of language, culture and loyalty—is quite literally as old as the Republic. The very first "national security" crisis in the American Republic—the "Quasi War" with France—sparked a panic that French immigrants were subversive, disloyal, and unassimilable. Similar strains of nativism resounded through the national debate from that moment until the end of the Civil War.

Well, no duh.  

And now a few SCOTUS decisions, starting with Strauder v W Va (1879):

[The 14th Amendment] ordains that no State shall make or enforce any laws which shall abridge the privileges or immunities of citizens of the United States (evidently referring to the newly made citizens, who, being citizens of the United States, are declared to be also citizens of the State in which they reside). It ordains that no State shall deprive any person of life, liberty, or property without due process of law, or deny to any person within its jurisdiction the equal protection of the laws.

What is this but declaring that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them bar law because of their color?

The words of the amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable to the colored race -- the right to exemption from unfriendly legislation against them distinctively as colored -- exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race.

Brown v Board of Education (1954)

"Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system. 

Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. Any language  in Plessy v. Ferguson contrary to this finding is rejected.

We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment. 

Planned Parenthood v Casey (1992): 

These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment...Part of the constitutional liberty to choose is the equal dignity to which each of us is entitled. 

Lawrence v Texas (2003):

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

Judge Walker in 2010:

Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples. FF 76, 79-80; Romer, 517 U.S. at 634, 116 S.Ct. 1620 ("[L]aws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected."). Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment.

But Justice Black complained in 1938:

[O]f the cases in this Court in which the Fourteenth Amendment was applied during the first fifty years after its adoption, less than one-half of 1 per cent. invoked it in protection of the negro race, and more than 50 per cent. asked that its benefits be extended to corporations. 

Quite a powerful amendment.  Small wonder Fauxriginalist Tony Scalia dismisses a plain text reading of it.


July 9, 2014 in Constitution, Schmonstitution | Permalink | Comments (2) | TrackBack

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There Is No Fourteenth Amendment

To repress this tyranny and at the same time to do some justice to conquered rebels requires caution.

 - Thaddeus Stevens, before calling the question on Amendment XIV (June 13, 1866)

According to the GPO, South Carolina finally ratified the 14th Amendment on this date in 1868 (after rejecting it in 1866), which President Johnson proclaimed officially several days later.  So happy Freedom For All Day!

One of the most amazing things to come out of Reconstruction is that there are people even now who assert that the 14th itself is unconstitutional.  A fun sampling from over the years:

I'm sure there are others, but these are representative of the crackpot way of "thinking" and "arguing" about such things.  Anyway, I can't get over the irony of some people complaining about an allegedly unconstitutional process, just after an entire segment of the nation tried unconstitutionally to leave.

I think Thaddeus Stevens said it best on August 2, 1861, regarding a confiscation bill:

Who pleads the Constitution against our proposed action? Who says the Constitution must come in, in bar of our action? It is the advocates of rebels who have sought to overthrow the Constitution, who repudiate the Constitution and trample it in the dust.

Sir, these rebels, who have disregarded and set at defiance that instrument, are by every rule of municipal and international law, estopped from pleading it against our action. Who, then, is it that comes to us and says, 'You can not do this thing because your Constitution does not permit it'?

The Constitution! Our Constitution which you repudiate and trample under foot, forbids it! Sir, it is an absurdity.

While I'm generally not so extreme as Stevens in most things, I would go a little further than he does here and note that the Constitution explicitly gives Congress the power to suppress rebellions, and to seize property after due process (which the bill in question established).  If confiscating material that aids the seceding states helps achieve that end, then the Union has every right and power to do so.  Regardless, I'm not sure any state in rebellion against the Constitution can then cry about the victors deciding how to let them back under Constitutional protections.

But cry they did, and there was some controversy surrounding ratification and certain states attempting to reject the amendment.  So on July 21, Congress weighed in and promulgated it (the first of only two times it's done so):

Whereas the legislatures of the States of Connecticut, Tennessee, New Jersey, Oregon, Vermont, West Virginia, Kansas, Missouri, Indiana, Ohio, Illinois, Minnesota, New York, Wisconsin, Pennsylvania, Rhode Island, Michigan, Nevada, New Hampshire, Massachusetts, Nebraska, Maine, Iowa, Arkansas, Florida, North Carolina, and Louisiana, being three-fourths dud more of the several States of the Union, have ratified the fourteenth article of amendment to the Constitution of the United States, duly proposed by two-thirds of each House of the thirty-ninth Congress: Therefore,

Resolved by the Senate, (the House of Representatives concurring,) That said fourteenth article is hereby declared to be a part of the Constitution of the United States, and it shall be duly promulgated as such by the Secretary of State.

This, naturally, forms part of the basis for some "the 14th is unconstitutional" conspiracy fantasies.  Suprisingly, they are wrong and the issue was settled by SCOTUS in 1938:

[T]he political departments of the Government dealt with the effect both of previous rejection and of attempted withdrawal and determined that both were ineffectual in the presence of an actual ratification.  While there were special circumstances, because of the action of the Congress in relation to the governments of the rejecting States (North Carolina, South Carolina and Georgia), these circumstances were not recited in proclaiming ratification, and the previous action taken in these States was set forth in the proclamation as actual previous rejections by the respective legislatures.

This decision by the political departments of the Government as to the validity of the adoption of the Fourteenth Amendment has been accepted.

And there you have it.  I will say it's nice that Sarah Palin has accepted the 14th Amendment, if only to call for Obama's impeachment.  Gives one hope.


* Links to my post on the subject.

July 9, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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The Living Dead Constitution

Touched on fauxriginalism in the context of NLRB v Canning a couple weeks ago, so I read this Slate item with a bit of joy:

In his opinion, Breyer offers the most forceful defense of what’s often termed “living constitutionalism” to appear in a majority Supreme Court opinion in a generation. Rejecting Antonin Scalia’s 18th-century approach of originalism—in which all that matters is what the framers thought—Breyer in Noel Canning stakes a bold claim for interpreting the Constitution “in light of its text, purposes, and our whole experience.” His is a progressive vision of the Constitution, one articulated previously in his books, like Active Liberty, and in various concurring and dissenting opinions he has authored over the years. But now, in the wake ofCanning it is also the opinion of the court. As a result, it will influence how future courts—state and federal, trial and appellate—will apply the Constitution to answer tomorrow’s controversies.

It may seem like a niggling academic problem. But it has real-world consequences. That’s one of the reasons Justice Antonin Scalia—who agreed with Breyer that these recess appointments were unconstitutional—nevertheless disagreed with the court’s opinion so vigorously. While it may be a sign of how far the Roberts court has shifted that Scalia is forced to file his blustery dissents in the form of angry concurrences, the substance of Scalia’s complaint is unchanged: The court “casts aside the plain, original meaning of the constitutional text.” Breyer responds by saying that Scalia’s originalism asks the wrong question. “The question is not: Did the Founders at the time think about” the exact issue before the court? “The question is: Did the Founders intend to restrict the scope” of the Constitution only to the “forms ... then prevalent,” or did they intend the Constitution “to apply, where appropriate, to somewhat changed circumstances”? Fidelity to the Constitution, he suggests, means using its timeless principles to address new and unforeseen situations. You know, like figuring out how to preserve privacy in an age of smartphones—as the court did this term in Riley v. California, another case decided without relying on originalism.

Zombies and dead hands cannot kill a living constitution.


July 9, 2014 in Constitution, Schmonstitution | Permalink | Comments (3) | TrackBack

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Monday, July 07, 2014

A Special Denomination, An Artificial Form

Something I read at dKos yesterday:

Corporations exist "precisely to distinguish their activities from those of their owners." Corporate separateness is "the foundational principle of corporate law." The 5-4 decision in Burwell v. Hobby Lobby makes an absolute farce of it. The five conservative justices in the majority did so by arguing:

The purpose of extending rights to corporations is to protect the rights of people associated with the corporation, including shareholders, officers, and employees. Protecting the free-exercise rights of closely held corporations thus protects the religious liberty of the humans who own and control them.

Wrong. Full stop. And don't take my word for it. Here's Justice Ginsburg, from her superb dissent:

By incorporating a business...an individual separates herself from the entity and escapes personal responsibility for the entity's obligations. One might ask why the separation should hold only when it serves the interests of those who control the corporation.

...Piercing that corporate veil is supposed to be difficult. But all of a sudden, the Roberts Five is agreeing with business owners who want to turn around and say—when it comes to their interpretation of religion—that the business is the owners. They can't have it both ways.

Couldn't help being reminded of Trustees of Dartmouth College v. Woodward (1819), in which Chief Justice Marshall wrote:

A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly, or as incidental to its very existence. These are such as are supposed best calculated to effect the object for which it was created.

Among the most important are immortality, and, if the expression may be allowed, individuality; properties, by which a perpetual succession of many persons are considered as the same, and may act as a single individual. They enable a corporation to manage its own affairs, and to hold property, without the perplexing intricacies, the hazardous and endless necessity, of perpetual conveyances for the purpose of transmitting it from hand to hand. It is chiefly for the purpose of clothing bodies of men, in succession, with these qualities and capacities, that corporations were invented, and are in use. By these means, a perpetual succession of individuals are capable of acting for the promotion of the particular object, like one immortal being.

But this being does not share in the civil government of the country, unless that be the purpose for which it was created. Its immortality no more confers on it political power, or a political character, than immortality would confer such power or character on a natural person...The objects for which a corporation is created are universally such as the government wishes to promote.

Justice Story made similar remarks in his concurrence, even citing Stewart Kyd, who wrote an early definitive treatise on the subject.  So there has clearly long been acknowledgement that corporations are artificial persons and only have rights insofar as they are extended explicitly by government--contrast to natural rights of natural persons which are not granted by government, but supposed to be protected by and from government.

But, you know, whatever, screw two centuries (and more) of precedent.


July 7, 2014 in Constitution, Schmonstitution | Permalink | Comments (3) | TrackBack

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Sunday, July 06, 2014

The Framers Never, Ever Wanted To Promote Commerce, Either

The Congress shall have Power...To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.

 - Some Document, Article I, Section 8, Clause 3


The idea that the government should not promote commerce is novel, but it has support on both the right and the left. That doesn't mean it is wise.

How did America become powerful?  By promoting commerce, per the Constitution, you fucking gits--ain't a mandate per se, but the power wasn't granted idly.  Seriously, didn't any of these people go to Sunday School?*


* Name the movie.

July 6, 2014 in And Fuck..., Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Constitutional Mandates

Bless his heart:

PERRY: The rule of law is that “The Constitution” requires the United States to secure the border.

What's weird is that the Constitution actual lays down very few requirements, a number of powers, and a lot of "thou shalt nots" for the Federal gummint.  F'rinstance, beyond the various electoral and legislative shalls, there's a mandated decennial census, and a guarantee that states will have a Republican Form of Government, protected from invasion and domestic violence.  

Sure, one could argue that defending the Several States would involve securing our border with Mexico.  Yet I'm compelled to note that the Constitution does not, in fact, say that explicitly, which I'd expect any Originalist and Constitutional Scholar to know, especially since the United States used to actively encourage immigration.

No, seriously!

Consider this debate on August 13 during Convention:

Mr. WILLIAMSON moved to insert 9 years instead of seven. He wished this Country to acquire as fast as possible national habits. Wealthy emigrants do more harm by their luxurious examples, than good, by the money, they bring with them.
Mr. MADISON ... wished to invite foreigners of merit & republican principles among us. America was indebted to emigrations for her settlement & Prosperity. That part of America which had encouraged them most had advanced most rapidly in population, agriculture & the arts.
Mr. WILSON, cited Pennsylva. as a proof of the advantage of encouraging emigrations. It was perhaps the youngest [except Georgia] settlemt. on the Atlantic; yet it was at least among the foremost in population & prosperity. He remarked that almost all the Genl. officers of the Pena. line of the late army were foreigners. And no complaint had ever been made against their fidelity or merit. 

And debating the very first naturalization act in 1790:

Mr. Lawrence was of opinion, that...The reason of admitting foreigners to the rights of citizenship among us is the encouragement of emigration, as we have a large tract of country to people. Now, he submitted to the sense of the committee, whether a term, so long as that prescribed in the bill, would not tend to restrain rather than encourage emigration? It has been said, that we ought not to admit them to vote at our elections. Will they not have to pay taxes from the time they settle amongst us? And is it not a principle that taxation and representation ought to go hand and hand? Shall we then restrain a man from having an agency in the disposal of his own money?

In the end...no quotas or calls to secure the borders in that first act to manage how immigrants get citizenship rights.  And the 14th Amendment grants birthright citizenship.

Still scratching my head, squinting really hard, can't see what Perry says is written there.


July 6, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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There Is No Monolith

Ze Criminal d'Thought found an interesting conversation.  I will highlight only one part:

[O]ne of the things I’ve learned is that there is no such thing as the Founding Fathers, as a unitary block. When it comes to these issues, they actually disagreed with each other. And they were kind of close to the action. They were the ones who wrote the Constitution, and they still disagreed with each other about what it meant.

Indeed, that is central to my point.


July 6, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack

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Saturday, July 05, 2014

An Expression Of The Court’s Views On The Merits

Slate yesterday:

In Burwell vHobby Lobby, the Supreme Court ruled that it was a “substantial burden” on the religious freedoms of closely-held corporations for the government to require them to provide contraception as part of their employee health care plans. The court didn’t say that the government could never require a company to do something that violated its religious beliefs, but rather that the government had to use the “least restrictive alternative.” That means that if there is a slightly less burdensome way to implement the law, it needs to be used. To prove that the Affordable Care Act’s contraceptive mandate was not the “least restrictive alternative,” the court pointed to a workaround in the law for nonprofits: If there are religious objections to a medical treatment, third parties will provide coverage to the employees.

Yet in an unsigned emergency order granted Thursday evening, the very same court said that this very same workaround it had just praised was alsounconstitutional, that this workaround also burdened the religious freedom of religious employers. Overnight, the cure has become the disease. Having explicitly promised that Hobby Lobby would go no further than Hobby Lobby, the court went back on its word, then skipped town for the summer.

Guess I need some help from people who know more about how SCOTUS operates, but I'm not sure I read what's going on here the same way as Lithwick and West.

First of all, I notice Justice Kagan received the application and referred it to the full Court.  Sotomayor was the Justice who got the Little Sisters application several months ago, and she issued an order hersel.  Could Kagan have denied the application, or does she have to refer to the Court if she's not inclined to issue an injunction?

I ask because I see some strategic possibilities that involve her and Kennedy.  As the dissent noted, this is a different case than Little Sisters, but the same accomodation is at work here, and in light of Hobby Lobby, perhaps it's valuable to have SCOTUS settle whether that's a viable alternative for Obama?

Kennedy clearly sees the accomodation as constitutional, and presumably Breyer does as well, so our three Uterine Justices would have a majority in such a case.  So it would make sense to push the issue rather than let it just sit there, festering in ambiguity.

Anyway, I don't really think there's a contradiction between the concession in Alito's HL opinion and the Court issuing an injunction here.  We see such things all the time, even with judges staying their own decisions in, say...marriage equality cases (yes, that's pending appeal, but it's analogous here, I think) when the potential injury to applications is weighed against the likelihood of future rulings in their favor.


July 5, 2014 in Constitution, Schmonstitution | Permalink | Comments (7) | TrackBack

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Wednesday, July 02, 2014

"We offer no resistance to it."

Abraham Lincoln, June 26, 1857:

Judicial decisions are of greater or less authority as precedents, according to circumstances. That this should be so, accords both with common sense, and the customary understanding of the legal profession.

If this important decision had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part, based on assumed historical facts which are not really true; or, if wanting in some of these, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years, it then might be, perhaps would be, factious, nay, even revolutionary, to not acquiesce in it as a precedent.

But when, as it is true we find it wanting in all these claims to the public confidence, it is not resistance, it is not factious, it is not even disrespectful, to treat it as not having yet quite established a settled doctrine for the country...

Yup, still plenty of things to do in the wake of Hobby Lobby, so it's not the end of the world.  The only remaining question for me is which clerk excised this from Alito's opinion:

"We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights..."

[I]t is too clear for dispute that [women] were not intended to be included, and formed no part of the people who framed and adopted this declaration, for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted, and instead of the sympathy of mankind to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation.

Oh, wait...


July 2, 2014 in Constitution, Schmonstitution | Permalink | Comments (0) | TrackBack