Recently in Constitution Category

Treason?

| No Comments
James Taranto at the WSJ has this column listing some of the reaction to Donald Trump's email comments yesterday.  "Reaction was swift and, we will argue, overwrought."  My take is in this post.  Part of the disagreement is on how you interpret what he said, and there is some room for reasonable disagreement there.  What is most certainly out-of-bounds, though, is the hysterical claim that his comment is treason.

Treason is the only crime defined in the Constitution.  The Framers put the definition there and made it exceedingly narrow to preclude the kind of creative definitions of treason that were instruments of tyranny in England at least as far back as the notorious King Henry VIII.  Here is the American definition:

Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.
Are we at war with Russia?  Nope.  The treason talk can stop right there.  QED.

Amending the Bill of Rights

| 9 Comments
The WSJ has this editorial, titled Clinton to Madison: Get Me Rewrite.

"Today, I'm announcing that in my first 30 days as President, I will propose a constitutional amendment to overturn Citizens United and give the American people--all of us--the chance to reclaim our democracy," Mrs. Clinton said in a taped speech to the Netroots Nation conference of progressives. First 30 days? Who knew the 225-year-old First Amendment was in need of such urgent revision?
Is amending the Bill of Rights fair game?  How about getting rid of the defendant's privilege not to testify in a criminal case?  Can we give it the heave-ho?  Probably not.

But those who agree with Mrs. Clinton would say her amendment does not change the real First Amendment, just a misinterpretation of it by the Supreme Court.  Fair enough.  Let's have an amendment to scrape off all the barnacles attached to the criminal law and procedure provisions of the Bill of Rights that were not included in those amendments as originally understood.

First over the side is the Fourth Amendment exclusionary rule.  Miranda is next. 

Dump that stupid rule that the prosecutor cannot comment on the defendant's failure to testify.  Have you seen the prosecutor's closing argument in the BBC series Broadchurch?  Great fun.  Don't try this at home.  Almost makes you want to move to England.  Except for the wigs.
Matt Apuzzo reports for the NYT:

Attorney General Loretta E. Lynch plans to announce on Friday that she will accept whatever recommendation career prosecutors and the F.B.I. director make about whether to bring charges related to Hillary Clinton's personal email server, a Justice Department official said. Her decision removes the possibility that a political appointee will overrule investigators in the case.

The Justice Department had been moving toward such an arrangement for months -- officials said in April that it was being considered -- but a private meeting between Ms. Lynch and former President Bill Clinton this week set off a political furor and made the decision all but inevitable.
Of course, under the "unitary executive" structure of the federal government, all executive decisions are ultimately under the control of the President, but to squelch an indictment now Mr. Obama would have to do so personally, without Ms. Lynch as a buffer.  The political consequences of doing so can be extraordinarily high, as President Nixon discovered after the Saturday Night Massacre.

Update:  Devlin Barrett has this article in the WSJ:

Linguistic Relativism

| No Comments
Rightly or wrongly, the belief is widely held by the practicing profession that this Court no longer respects impersonal rules of law but is guided in these matters by personal impressions which from time to time may be shared by a majority of Justices. Whatever has been intended, this Court also has generated an impression in much of the judiciary that regard for precedents and authorities is obsolete, that words no longer mean what they have always meant to the profession, that the law knows no fixed principles.
-- Justice Robert Jackson, Brown v. Allen, 344 U.S. 443, 535 (1953) (opinion concurring in the judgment).

If law is to be law and not whim, then words must have the power to constrain.  If the power to interpret words has no limit, if words are infinitely elastic and can be stretched to support whatever result the interpreter wishes, then the people do not have the power to govern themselves through the democratic process.  The laws and constitutions they enact are nothing but staff recommendations to the interpreters, who make the actual decision.

In the current issue of the Harvard Journal of Law and Public Policy (vol. 39, no. 3, pp. 583-630). Professor Richard Epstein has an article titled Linguistic Relativism and the Decline of the Rule of Law.  It is well worth reading.  Readers of this blog may be particularly interested in pages 607-610, on the "judicial adventurism" of the Supreme Court's misinterpretation of the Cruel and Unusual Punishments Clause.
This morning, the U.S. Supreme Court decided three consolidated cases involving the implied consent laws that all 50 states utilize in their efforts to combat the serious problem of drunk driving.  The implied consent laws imply a lawfully arrested motorist's consent to chemical testing as a matter of law and the state uses the test results as probative evidence of intoxication in a subsequent DUI prosecution.  Some motorists, usually repeat offenders, refuse requests for testing because they know that the Blood Alcohol Concentration ("BAC") results would impose harsher penalties than that of simply refusing a test.  The standard legal consequence in most states for test refusal is the suspension or revocation of a motorist's driver's license.  A refusal can also be admitted as evidence of intoxication in a DUI prosecution.  Based on recidivist drunk driver statistics, it does not matter if they have a driver's license or not.  The suspension or revocation of a driver's license does nothing to stop a person from drinking and driving if that person chooses to get into a car and drive while intoxicated.

Thirteen states gave some teeth to their implied consent laws and made it a crime to refuse testing.


The U.S. Supreme Court decided two cases this morning involving the reach of federal law under the Commerce Clauses of the Constitution.

Taylor v. United States, No. 14-6166, deals with one of the broadest laws for extending federal criminal jurisdiction to seemingly local cases, the Hobbs Act.  Any robbery affecting interstate commerce is within federal jurisdiction, and given the post-1937 definition of interstate commerce, that is a very broad sweep.  In today's case, any robbery of drug dealers can be a federal offense.

RJR Nabisco v. European Community, No. 15-138, involves civil suits under the Racketeer Influenced and Corrupt Organizations Act.  The Court puts some limits on this much-misused procedure, blocking civil RICO suits where the acts are all outside the United States.

The Scalia Legacy

| No Comments
The Constitution Center in Philadelphia yesterday hosted a discussion of the legacy of Justice Antonin Scalia, by anyone's reckoning a genius, a spectacular writer, and one of the most influential Justices of my lifetime.

My wife, Hon. Lee Liberman Otis, was one of the participants, all of whom, I thought, did a first-rate job.

The tape, a little more than an hour, is here.

A Second "Birther" Decision

| No Comments
This decision was issued Tuesday by a judge in the New Jersey Office of Administrative Law:
After Justice Scalia's death, I wrote this post on his successor and the Great Question.  Today Juan Williams has an op-ed in the WSJ on the same theme:  The Never-Ending Battle Over How to Read the Constitution: Whether Supreme Court nominee Merrick Garland is a 'centrist' distracts from a much bigger issue.

The article concludes:

In today's debate regarding Merrick Garland's nomination to the court, much of the discussion concerns whether or not he is a "centrist." But the real question, for both sides, is how he regards the Constitution. On that point it is clear from his record that Judge Garland is firmly in the "living document" camp. The push-pull over the Constitution and the Supreme Court is a battle without end, and in the current phase with the eight-person bench likely to divide 4-4 on important cases, the contrast between the court with Scalia on it and the court with Judge Garland or any other Democratic nominee couldn't be greater.
Of course, there is no chance whatever that President Obama will nominate anyone on the correct side of the Great Question, and if Hillary Clinton is elected in November there is no chance whatever that she will.  A week ago, Stanford Law Professor and former Circuit Judge Michael McConnell suggested a course of action in this op-ed, also in the WSJ.

The Evolving Constitution

| No Comments
One of the classic debates in constitutional law is about whether the Constitution "evolves."  This is, for example, at the center of much of the discussion concerning the death penalty and the Eighth Amendment, as "currently understood."  The battle between Justice Scalia's concurrence in Glossip and the two-Justice dissent filed by Justice Breyer is an apt illustration.

One of the country's leading senators has seen the Constitution evolve dramatically about a question now much in the news, given the pending Supreme Court nomination.
Lee Liberman Otis has this post at SCOTUSblog with the above title, noting how her constitutional law professor, Antonin Scalia, had a view of the Marbury case different from what is usually taught in law school. 

This reading of Marbury, I later realized, was integral to how Justice Scalia saw his job - not as the shaper of the Constitution, but as its servant.   And while, to be sure, there is something to be said for both ways of viewing the case, it turns out that there is a lot more to be said for Justice Scalia's than most of the professoriate had been inclined to think.

Law As Politics By Other Means

| No Comments
A perfect example of the wrong way to think of the Supreme Court comes to us from President Obama's former White House Counsel.  Kathleen Hennessey and Mark Sherman report for AP:

"The Supreme Court has not reflected where the American people have been on issues," said Gregory Craig, who served as White House counsel early in Obama's first term. "This is the first opportunity in many, many years to bring the court more in line with the American people."
In this way of thinking, the Supreme Court is nothing but a third house of the legislative branch.  It's job is to take the pulse of current public opinion and be "in line" with current views, declaring as a constitutional mandate whatever that current view is.

That is not how it is supposed to work.  Fundamental rules are written into the Constitution when they are agreed by a strong national consensus to be so fundamental as to place them beyond the short-term reach of ordinary legislation.  They can be changed when (and legitimately only when) a strong enough consensus to the contrary has formed to clear the high hurdle for a constitutional amendment under Article V.

The Next Justice and the Great Question

| 31 Comments
Bill noted yesterday the sudden death of Justice Antonin Scalia.  His passing is a great loss to the country and the Constitution.

The Great Question of constitutional law is not hard to state.  Is the Constitution a contract between the people and their government, with the power to change its terms reserved to the people, or is it an empty vessel for five unelected, unaccountable justices to pour their policy preferences into?

Legitimate judicial review is to prevent the legislature from crossing a line that the people wrote into the Constitution.  Illegitimate judicial review is creating lines that the people did not write into the Constitution, striking down laws enacted by the people's representatives or by the people themselves on a pretense that they violate the Constitution but actually just because the judges disagree with the people -- "substitute their own pleasure to the constitutional intentions of the legislature," as Hamilton put it in Federalist No. 78.

There are two primary dangers in appointing Justices to the Supreme Court:  appointing people with views on the wrong side of the Great Question and appointing people who have not thought much about it at all.

The Oregon Occupiers

| No Comments
The WaPo has several articles on the Oregon wildlife refuge occupiers:  Sarah Larimer and Niraj Chokski on the eight in custody, Michael Miller on LaVoy Finicum, who was killed, and Sarah Kaplan, Adam Goldman, and Mark Berman on efforts to recover the refuge from the remaining occupiers.  In the WSJ, Jim Carlton and Devlin Barrett also cover the latter point.

Personally, I have little use for people who protest by occupying property that is not theirs and has nothing to do with the dispute.  That goes for the Occupy movement of a few years ago, the current protest, and all the way back to the Vietnam War when protesting students staged sit-ins at campus facilities that had nothing to do with the war.

The sit-ins at segregated lunch counters during the civil rights movement were different.  The lunch counter operators were perpetrators of the injustice at issue.

The main beef of the current occupiers is the violation of their constitutional right to graze cattle on land that does not belong to them without paying fees to the owner of the land, i.e., the federal government.  I don't recall reading that in the Constitution, but maybe it's part of the "living document."
I should have listened to Yogi Berra and not made predictions, especially about the future.  The U.S. Supreme Court's orders list this morning does include certiorari grants as well as denials, and the Court did take up United States v. Texas, No. 15-674, even while turning down Arpaio v. Obama, No-15-643.

Questions Presented follow the break.

Monthly Archives