Constitutional Interpretation and Change

  • March 21, 2014
    Guest Post
    by Reuben A. Guttman, Director, Grant & Eisenhofer; Member, ACS Board of Directors
    This post originally appeared on The Global Legal Post.
    In his Gettysburg Address of 1863, United States President Abraham Lincoln spoke about a "government of the people, by the people and for the people." Fast forward 151 years, and the meaning of that phrase is not so clear. Who runs government? Is the United States Federal Government run in all instances by those who have been elected by the people? As the government struggles to govern and enforce regulatory compliance in an era where technological advancement and globalization have created new challenges, its reliance on the private sector or private contractors has reached new peaks.
    Extensive use of private contractors
    Private contractors, of course, were used by the Union Army during the Civil War; they built the nation's nuclear weapons complex during World War II and have supplied the military with armaments from guns to fighting vessels. That the government buys things from the private sector is no surprise. Nor is it a surprise that the government buys discrete services from the private sector. Government buildings, for example, are cleaned by private contractors.
    Yet, how much can the government contract out before it is delegating functions that it should perform itself? Political scientists talk about the problem with contracting out "inherently governmental functions" but what does that term really mean? Is it like what former Supreme Court Justice Stewart said about obscenity, "I know it when I see it"? Or is there some objective definition?
    Delegating to the private sector
    It may be easier to answer these questions after looking at how much has been delegated to the private sector. Wake up in the morning and drive to work in a hurry and you may be turned in for a speeding ticket by a private contractor that operates and, in theory, calibrates equipment that clocks drivers and photographs speeders. If your infraction is markedly more serious than a speeding violation and prison time is mandated, you may find yourself in a jail run by a private contractor and staffed with private prison guards. While your criminal case will still be heard by judge who is a government employee, the same cannot be said for all civil cases as civil dispute resolution is actually being privatised.
  • February 14, 2014

    by James Colligan

    Before the movement for marriage equality began to gather steam Virginia, like a slew of other states, banned same sex-marriage either with laws or constitutional amendments or in the case of North Carolina, both.

    For instance in 2006 through a referendum Virginians voted to amend their Constitution to outlaw same-sex marriage. Actually that amendment was rather sweeping, not only defining marriage as exclusively a union between a man and woman, but also prohibiting civil unions and all other contracts to “which is assigned the rights, benefits, obligations, qualities, or effects of marriage.”

    But some of those states’ constitutional amendments and laws, following the U.S. Supreme Court’s 2013 opinion in U.S. v. Windsor, are looking increasingly vulnerable.

    The Virginia ban was challenged last year on the grounds of violating the Due Process and Equal Protection Clauses of the 14th Amendment by two couples. Tim Bostic and Tony London have been together for 24 years. Carol Schall and Mary Townley have been together for 30 years. Even though Schall and Townley were legally wed in California, Virginia’s constitutional ban meant it would not recognize those same-sex marriages. The couples’ challenge to the constitutional amendment was considered in the District Court for the Eastern District of Virginia earlier this month.  

    Judge Arenda Wright Allen on Thursday found Virginia’s ban to subvert the U.S. Constitution’s Due Process and Equal Protection Clauses. In her ruling, Wright Allen wrote, “Gay and lesbian individuals share the same capacity as heterosexual individuals to form, preserve and celebrate loving, intimate and lasting relationships. Such relationships are created through the exercise of sacred, personal choices – choices, like the choices made by every other citizen, that must be free from unwarranted government interference.”

  • February 12, 2014
    Writing for Bloomberg, distinguished Harvard Law School professor Cass R. Sunstein objects to the “originalist” approach to constitutional interpretation. Sunstein reveals originalism’s “alluring siren’s call” and why “our constitutional tradition has been right to resist it.”
    Today, members of the Privacy and Civil Liberties Oversight Board will testify before the Senate Judiciary Committee regarding their report on the National Security Agency’s bulk collection of phone records. Jennifer Granick of Just Security offers eight important questions Congress should be asking the PCLOB about the controversial surveillance tactics under section 702 of the FISA Amendments Act.
    Last year, the Internal Revenue Service proposed new rules regulating political speech for select nonprofit organizations. Reporting for the ACLU’s Blog of Rights, Gabe Rottman and Sandra Fulton explain why these rules “create the worst of all worlds.”
    At the NAACP, U.S. Secretary of Health and Human Services Kathleen Sebelius and NAACP Senior Director of Health Programs Shavon Arline-Bradley celebrate Black History Month with a discussion about the Affordable Care Act.
    NPR’s Carrie Johnson notes Attorney General Eric Holder, Jr.’s call for 11 states to repeal laws prohibiting current or formerly convicted felons from voting
  • January 31, 2014
    Guest Post
    by Andrew Guthrie Ferguson, Associate Professor of Law at the David A. Clarke School of Law at the University of the District of Columbia and author of Why Jury Duty Matters: A Citizen’s Guide to Constitutional Action (NYU Press, 2013)
    In his State of the Union Address, President Barack Obama stated, “Citizenship demands a sense of common cause; participation in the hard work of self-government; an obligation to serve to our communities.” So why does the official test to become a citizen fail to address these participatory values? Why in the battle over legal paths to immigration do we not rethink what we demand from new citizens?
    “Where is the Statue of Liberty?” So reads one of the 100 questions every new citizen might have to answer to pass the national citizenship test. The national citizenship test, created in 1986 and updated in 2008, involves 100 questions focused on American civics, history and geography. Actual questions include: “What are two Cabinet-level positions?” “The Federalist Papers supported passage of the U.S. Constitution. Name one of the writers.” “Who was President during the Great Depression and World War II”? “Name two national holidays.” The questions and answers are provided to study from, and applicants need only answer six out of ten randomly selected questions correctly to pass the test. But, the question remains: is this really the test we want to create productive and contributing citizens in American society?
    First, a bit of history: For much of early America, there was no citizenship test required to gain citizen status. In 1790, three years after the creation of the U.S. Constitution, Congress passed the first naturalization act that allowed free white people “of good character” to apply for citizenship after living in the United States for two years and swearing to uphold the Constitution. Subsequent acts extended the residency requirement to five and then briefly to fourteen years. In 1868, the Fourteenth Amendment extended birthright citizenship to “All persons born or naturalized in the United States” covering African Americans and others born on United States soil.
  • January 17, 2014
    Guest Post
    by Timothy S. Jost, Robert L. Willett Family Professor of Law, Washington and Lee University School of Law
    On January 15, 2014, the ACA won its most important legal victory since the Supreme Court upheld the individual mandate in NFIB v. Sebelius. Judge Paul Friedman of the federal court for the District of Columbia ruled in Halbig v. Sebelius that an IRS rule authorizing the issuance of premium tax credits in states with federal exchanges was supported by the “unambiguously expressed” intent of Congress, and thus valid.
    The issue in Halbig is this: The ACA authorizes the IRS to offer premium tax credits to individuals who have household incomes between 100 and 400 percent of the federal poverty level and who are not eligible for other forms of coverage (such as employer coverage, Medicaid, or Medicare). Premium tax credits are, however, only available for insurance purchased through the exchanges. The ACA requests the states to establish exchanges, and sixteen states have done so. The ACA also, however, authorizes the federal government to establish exchanges in states that choose not to set up their own exchanges. The federal exchange covers 34 states. 
    Two clauses of the ACA section authorizing premium tax credits provide that tax credits are available for months in which an individual is enrolled in a qualified health plan “through an Exchange established by the State under 1311” of the ACA. The plaintiffs in Halbig argue that this provision bars the IRS from issuing premium tax credits to individuals who enroll through federal, as opposed to state, exchanges. 
    A victory for the plaintiffs on this theory would have blown a major hole in the ACA.  Not only would it have barred millions of Americans who live in federal exchange estates from receiving premium tax credits, it would have also rendered the employer mandate unenforceable in those states. Employers that do not cover their employees are only subject to a tax penalty if employees receive premium tax credits through an exchange.