Recently in Constitution Category

For the record, the Flag Protection Act of 1989 passed the House by a vote of 380-38 and the Senate by a vote of 91-9.  The Supreme Court declared it unconstitutional in United States v. Eichmann, 496 U.S. 310 (1990).

"Ultimately I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress," President Obama said.  Whatever else may be said on this topic, "unprecedented" is preposterous.

This is not about criminal law, but it is central to the question some of us thought had been resolved in 1803:  Does the judicial branch or the executive branch have the final say over the constitutionality of statutes?  President Obama, a former lecturer in Constitutional Law at the prestigious University of Chicago Law School  --  and now perpetually on the campaign trail  --  said the other day that it would be "unprecedented" for the courts to nullify the Affordable Care Act. 

Off topic but interesting -- it's always good to see a snarky commentator brought down.

Newt Gingrich has been raising a lot of hackles lately with his statements about judges and the separation of powers.  In typical Gingrich fashion, he begins with a genuine problem, throws in some real history, and then proceeds to run off the rails.

Joe Palazzolo at WSJ Law Blog has this post, with some excerpts from the last Republican debate.

The basic complaint about "activist judges" is quite valid.  Federal judges generally, and the Supreme Court in particular, have often misused the power of judicial review to strike down statutes they disagree with as a matter of policy, even though neither the text nor the history of the Constitution justifies the decision.  For example, the notion that the Constitution forbids the people of the states from deciding, on a uniform statewide basis, what factors will be considered mitigating in capital cases is utterly unjustifiable as a matter of constitutional law, whatever one thinks of the policy.

It is true that the elected branches are often too deferential to the judiciary.  It is true that Jefferson, Jackson, Lincoln, and FDR had major disputes with the Supreme Court.  Within constitutional limits, the President and Congress should give more attention to reining in overreaching courts.

The First Congress, fulfilling an agreement made to secure ratification, proposed twelve amendments to the Constitution on September 25, 1789.  (See here and here.)  Ten of them (originally numbered III to XII) were ratified 220 years ago today.  These ten are known as the Bill of Rights.

The Bill of Rights was not, of course, intended to be a "detailed code of criminal procedure," as Judge Friendly noted the Supreme Court had made it by 1970.  There is nothing in it about letting the murderer go free because the constable blunders.  It most certainly does not forbid a police officer to ask an arrestee if he wants to talk about a crime merely because he has previously asked for a lawyer for an unrelated crime.

So today let us raise a glass to the real Bill of Rights and renew our resolve to scrape the barnacles from the hull.

The Constitution vests in Congress alone the power to declare war, and makes the President alone the commander-in-chief.  If it accords any war-making decisions  to the judicial branch, this fact has been well hidden for two hundred years or so.

Thus I congratulate the administration's attorneys for correctly concluding that (1) American citizens who have taken up arms against the country may be targeted in a time of war, and (2) the targeting decision belongs to the President, not the judiciary.  The Associated Press has the story.

Candidate Obama, speaking with equal measures of gusto and gleeful irresponsibility, demagogued this and similar points to a fare-thee-well.  I am grateful, and relieved, that President Obama has come to his senses.

This does not mean that Obama or any other President unfailingly is going to get these decisions right  --  but neither are the courts, and the President has both superior capabilities, and the Constitutional portfolio, to make the call.

Yesterday, the House passed H.R. 822, the National Right-to-Carry Reciprocity Act of 2011.  This bill would allow a person licensed to carry a concealed firearm in one state to do so in another state, notwithstanding the laws of the other state.

As an all-weather federalist, I have to disagree with some of my gun-toting friends here.*  Concealed carry is an issue that each state should decide for itself.

When the Supreme Court decided that the right to bear arms extended to individuals, not just organized militias, in the Heller case in 2008, many people on the defense side were excited that they could use this to argue against felon-in-possession laws.  The fact that the Heller Court expressly said its decision did not extend to invalidate those laws strangely failed to dampen their enthusiasm.  A long string of defeats for that argument since Heller followed.

As applied to federal laws regulating who can own what, it always seemed to me that the Court's cautiously narrower view of the Commerce Clause in recent years was the more vulnerable point.

In Scarborough v. United States, 431 U.S. 563 (1977), the Supreme Court said that the mere fact that the gun had at some point moved in interstate commerce was enough.  But is it still enough today, with the changes in Commerce Clause jurisprudence since then?

Conor McEvily, a recent graduate of Georgetown Law, has a student note forthcoming in Georgetown Law Journal considering Scarborough as applied to the federal body armor law.  An advance version is available on SSRN.  The abstract follows the jump.

How's that for a broad topic?

Well, the Senate Judiciary Committee is holding a hearing on that topic at 2:30 Eastern next Wednesday.  The witnesses are Justices Scalia and Breyer, who have debated this topic before.  Webcast should be available here.

The Court is hearing arguments the same day, but there are only two cases, so the Justices should be able to make it up the street to the Hart Building without difficulty.

Some folks calling themselves "Constitutional Progressives" have come up with this Whole Constitution Pledge.  Some of it is perfectly fine, including the punch line, "I pledge to support the whole Constitution."  I do support the whole Constitution, but do the people who wrote the pledge?

Other parts of the pledge are more problematic.  Some parts are jousting with enemies who are either imaginary or harmless.  Some parts are logically impossible.

So let's look at the pledge, bit by bit.

Tomorrow is the 224th anniversary of the day the Federal Convention's proposed constitution was signed in Philadelphia.  AP story here.

But of course the document signed that day was not the supreme law of the land.  It was only a proposal.  It only became the supreme law after it was ratified by the people through the democratic process.

When was that?  By its terms, it became the governing document of a union of the ratifying states when the ninth state ratified, June 21, 1788.  But the nine did not include the big dogs of Virginia and New York, and everyone knew a union would not succeed without them.  So July 26, 1788 is when we had a Constitution as a practical matter.  North Carolina reluctantly ratified the next year.  Rhode Island grumbled in on May 29, 1790, over two years after its initial referendum went down 237-2708.

Brett Zongker reports for AP:

A painstaking conservation effort to remove old patches and repair weak spots in a 714-year-old copy of the Magna Carta has revealed that the full text of that English declaration of human rights remains intact even though some words are faded and illegible to the eye, the National Archives said Tuesday.

Associated Press reports:

Lawmakers outraged over Casey Anthony's acquittal have responded by proposing so-called Caylee's laws that would allow prosecutors to bring felony charges against parents who do not quickly report missing children.

*                             *                          *

"Casey Anthony broke new ground in brazenness," said Florida state Rep. Scott Plakon, who is sponsoring the proposal in his state. "It's very sad that we even need a law like this, but Casey Anthony just proved that we do as unfortunate as that is."

*                             *                          *

Other states are considering similar measures and the online petition at Change.org, started by an Oklahoma woman, calls for a federal law.

A federal law?  Which of the enumerated powers does this come under?  None, in my opinion.  Leave this to the states.  That is where person-on-person criminal laws belong.

James Taranto at WSJ has this piece on the term "judicial activism."  Is the term still useful, or has it been so badly misused that it should be discarded?  He links to this 2004 Cal. L. Rev. article by Keenan Kmiec, who traces the term to a 1947 Fortune magazine article by Arthur Schlesinger.

Taranto quotes Kmiec quoting Justice Scalia saying the term is meaningless, but then,

Kmiec disagrees: "When explained carefully, the term can be a starting point for meaningful conversation about the judicial craft." That may be, and Kmiec's interesting article is a case in point. But when it comes to "judicial activism" as a term of political rhetoric, surely Scalia is right. "Judicial activism" is a shopworn phrase that has outlived its political usefulness.

The purpose of words is to communicate, and when a term will be understood to mean different things by different readers its usefulness is seriously diminished.  You can explain which meaning you intend, but that is a diversion from the flow of thought.

The right meaning of judicial activism, in my view, is largely Schlesinger's original meaning.  Believers in judicial restraint go where the law takes them when the path is clearly marked, even though their preference is for a different result.  Judicial activists decide what result they want and back in the legal reasoning to support it.

If we abandon the term "judicial activism," what should we call this important concept?  Result-oriented judging, perhaps?

Certainly we must not stop talking about it.  Constitutional right number one, the right of the people to govern themselves, depends on it.

This month's California Lawyer has an interview with Justice Scalia by UC Hastings law professor Calvin Massey.  The discussion of the Constitution contains no surprises for those familiar with Justice Scalia's writings and philosophy.  The final question is new, and least to me:

You more or less grew up in New York. Being a child of Sicilian immigrants, how do you think New York City pizza rates?

I think it is infinitely better than Washington pizza, and infinitely better than Chicago pizza. You know these deep-dish pizzas--it's not pizza. It's very good, but ... call it tomato pie or something. ... I'm a traditionalist, what can I tell you?