Constitutional Interpretation and Change

  • May 23, 2014
    Guest Post

    by Victor Williams, an attorney in Washington D.C. and clinical assistant professor at Catholic University of America, Columbus School of Law. Williams founded the American Institute for Disruptive Innovation in Law and Politics -- DistruptiveJustice.org.

    Partisans have purposely pushed our nation to the brink of fiscal default three times since 2011.  Each time, the Treasury Secretary warned Congress, bondholders, and the public that a “catastrophic” default was imminent. Credit markets shudder, financial houses take multi-million dollar risk precautions, and rating agencies balk. At the twelfth hour, partisans have granted a stay, but only temporary one. The current suspension expires on March 15, 2015 – thus the next battle is strategically scheduled  after expected GOP midterm victories. Beware the Ides of March. But how is Brown v. Board relevant to a debt limit disaster? 

    Facial Violations of the Fourteenth Amendment

    In Brown v. Board of Education, the Supreme Court struck-down segregation legislation as facially violating the Fourteenth Amendment’s Equal Protection Clause. In May 1954, Chief Justice Earl Warren wrote for the unanimous Court that separate educational facilities were “inherently unequal.” The violation was so patent that “any discussion whether such segregation” was a factual violation of due process was “unnecessary.” As Harvard Law’s Richard Fallon notes in Fact and Fiction About Facial Challenges, Brown is a classic example of the judiciary’s assessing the constitutionality of legislation on its face, “not as-applied.”  

    Similarly, the debt limit statute facially and inherently contravenes a fundamental provision of the very same Fourteenth Amendment. Section Four guarantees not only that public debt will always remain valid, but also that the “validity” of such obligations will never be “questioned.”  A centerpiece of the three Civil War Amendments, the absolutist prohibition against debt questioning joins other post- bellum proscriptions against slavery, unequal protection of the law, due process violations, and racial voting barriers.  

  • May 8, 2014
    Guest Post

    by James C. Nelson, Justice, Montana Supreme Court (Retired)

    I am a non-believer. I became one late in my adult life because I was disgusted with the hypocrisy of religion in general and with the Catholic Church in particular. My decision was grounded in more hours of study and contemplation than I care to estimate. I do not believe in, much less pray to, any god.

    And my point with that opening is that the religion clauses of the First Amendment to the United States Constitution protect my fundamental right to be a non-believer; they insure, among other things, that my various federal, state, county and local governments cannot require me – directly or indirectly – to participate in any religious exercise. Read together these religion clauses form the wall of separation between church and state that the framers intended. They keep – or at least they are supposed to keep – religion out of government and government out of religion.

    That is why I cannot not accept the U.S. Supreme Court’s May 5, decision in Town of Greece v. Galloway. In that case the Court held that the town opening its  official board meetings with a Christian prayer offered by members of the clergy does not violate the First Amendment and does not discriminate against minority faiths or coerce participation with non-adherents. 

    The Court’s decision is flat wrong. It respects neither the history underpinning the adoption of the religion clauses, the wall of separation, nor the reality that “We the People” are a pluralistic and diverse society encompassing all degrees of sectarian believers, agnostics and athiests. Nonetheless, that decision is now the law of the land—created from whole cloth and judicially blessed by the right wing Christian majority of our Nation’s highest Court. And, that puts me in a box.

    For many years I have stood during opening prayers in public meetings of federal, state and local government. I did so out of a sense of respect for the beliefs of others and for decorum – notwithstanding my personal dis-belief in the prayer and the god prayed-to. But, while respect can be freely given, it cannot be compelled.  And, thus, The Town of Greece leaves me but one option.

    I will stand no longer for prayer! I will not, as the Supreme Court suggests, leave the room during the invocation. Rather, I will sit during the prayer in the meeting room in which I am constitutionally entitled to assemble. I will not be bullied nor will I be shamed into standing. After all, it is not I who is violating the constitutional separation of church and state. I cannot and will not be compelled to participate in any fashion in government sponsored prayer.

  • May 6, 2014

    by Jeremy Leaming

    Oklahoma lawmakers sparked debate over the death penalty and provoked a much-needed discussion about the importance of impartial courts last week when one of two planned executions went horribly awry.

    State officials, including Gov. Mary Fallin, pushed for the execution of two death row inmates even though the Oklahoma Supreme Court had stayed the executions arguing that more information was needed to determine whether the state’s new combination of drugs for killing death row inmates passed constitutional muster. That pressure led to the state supreme court lifting its stay and resulting in the bungled execution of Clayton D. Lockett. (Lockett died of a massive heart attack more han 40 minutes after state executioners attempted to kill him.) The second execution was temporarily put on hold.

    In a piece for the Tulsa World, Joseph Thai, the Presidential Professor of Law  and Watson Centennial Chair in Law at the University of Oklahoma College of Law, blasted lawmakers for working to keep the methods of execution secret.

    “Though I am both a law professor and a lawyer, I write as an Oklahoma citizen and taxpayer. Our state executes more of its citizens per capita than any other state. Because Oklahoma imposes capital punishment on behalf of its citizens, and because its taxpayers bear the costs, the state must not shroud its executions from public scrutiny.”

    Thai added that as “Oklahomans, we may disagree with each other – and with the rest of the country – on the morality, efficacy and fairness of the death penalty. But in a civilized society, hopefully we can all agree that, as long as our state puts human beings to death, it should do so without unnecessary pain and suffering.”

    Read Thai’s entire piece here and register for an ACS May 7 call featuring Slate’s Dahlia Lithwick and death penalty expert Megan McCracken on how impartial courts can help ensure that state lawmakers carry out executions without trampling constitutional rights and principles.

  • May 6, 2014
    Guest Post
    by Saul Cornell, Paul and Diane Guenther Chair in American History, Fordham University
     
    May 15 marks the 75th anniversary of United States v. Miller, a 1939 case in which the Supreme Court unanimously held that Congress could prohibit the possession of weapons that were not related to the “preservation or efficiency of a well regulated Militia.” For decades, this was the only consideration the Court gave the Second Amendment, and arguably, it was generally understood that the Amendment's scope was limited to the use of firearms in connection with military activities. This changed in 2008 in District of Columbia v. Heller, and subsequently in 2010 in McDonald v. Chicago, when the Court declared that the Second Amendment provided an "individual right to possess a firearm.”  The Court explained that they were not overturning Miller; that Miller only limited the type of weapon to which the individual right applies. As we consider the constitutional, legal and policy questions that now surround the Second Amendment, we should take a step back and ask if the Supreme Court got it right in Heller and McDonald.  How should the Second Amendment be interpreted? ACS is pleased to raise this important question with progressive constitutional scholars and historians in an ACSblog symposium this week, May 5 through May 9.
     
    In District of Columbia v. Heller, Justice Scalia engaged in a revisionist exercise, rewriting history to further his ideological agenda. If you have any doubts about this proposition, just consider the following: according to Heller’s logic, it would have been okay for the first Congress to pass a law making muskets illegal in the District of Columbia, but Congress would have been prohibited from banning dueling pistols. Such a conclusion is pretty hard to reconcile with the Amendment’s text and history.
     
    Scalia’s majority opinion is an example of the new originalism. Following the wacky logic of this theory, Scalia argues that the Founding era would not have treated the Amendment’s preamble as the “key to open the mind of the makers” of the text. Instead, Justice Scalia believes that the average competent speaker of eighteenth-century American English would have looked at the text and said, “Yep, we should read this backwards.” (Just try to find a John Marshall decision where he reads a text backwards.) Where does the evidence for this novel technique come from, you may ask? The answer: from legal treatises written in the middle of the 19th century. Either Justice Scalia does not understand that legal thought changed in the tumultuous decades after ratification or he believes in time travel. (I hope it is the latter, since that would be crazy but interesting. The former claim is just intellectually embarrassing.)
     
  • May 6, 2014
    Guest Post
    by Jamal Greene, Professor of Law, Columbia Law School
     
    May 15 marks the 75th anniversary of United States v. Miller, a 1939 case in which the Supreme Court unanimously held that Congress could prohibit the possession of weapons that were not related to the “preservation or efficiency of a well regulated Militia.” For decades, this was the only consideration the Court gave the Second Amendment, and arguably, it was generally understood that the Amendment's scope was limited to the use of firearms in connection with military activities. This changed in 2008 in District of Columbia v. Heller, and subsequently in 2010 in McDonald v. Chicago, when the Court declared that the Second Amendment provided an "individual right to possess a firearm.”  The Court explained that they were not overturning Miller; that Miller only limited the type of weapon to which the individual right applies. As we consider the constitutional, legal and policy questions that now surround the Second Amendment, we should take a step back and ask if the Supreme Court got it right in Heller and McDonald.  How should the Second Amendment be interpreted? ACS is pleased to raise this important question with progressive constitutional scholars and historians in an ACSblog symposium this week, May 5 through May 9.
     
    Justice Scalia was correct when he wrote in his opinion for the Court in District of Columbia v. Heller that the Second Amendment protects an individual right to possess a handgun for purposes of lawful self-defense in the home. The Court was also right to say in its 2010 decision in McDonald v. City of Chicago that the right recognized in Heller is as good against regulation by state and local governments as it is against the federal government.
     
    It does not follow, however, that the Court’s decision in Heller was correct, either in method or in result. As to method, the original purpose behind the Second Amendment was not to protect an individual’s right of self-defense, in the home or otherwise. As the Second Amendment’s text makes explicit, the amendment was enacted to ensure that state militias would not be disarmed by the federal government.