Fidelity to the Constitution

  • August 23, 2012
    The Parties Versus the People
    How to Turn Republicans and Democrats into Americans
    Mickey Edwards

    By Mickey Edwards, a former member of Congress who represented Oklahoma’s 5th congressional district for 16 years

    The underlying principle of America’s Constitution is pretty straight-forward. Americans are to be citizens, not subjects. Governments tell their subjects what to do but citizens tell their governments what to do. In the United States, that fundamental hallmark of citizenship is accomplished by (a) placing most of the major powers of the federal government in the hands of the national legislature, and (b) giving the people the right to determine who will serve in that decision-making capacity. Leaving the people with that power to determine what government shall and shall not do, and further arming them with specific restraints on government both within the original text and the subsequent Bill of Rights, the Founders gave citizens powerful weapons with which to defend their liberties.

    They had not, however, counted on the pernicious effects of a modern political party system which renders almost moot the separation of powers at the heart of the constitutional check on executive overreach. America’s leading Founders (among them, Washington, Adams, Jefferson, and Madison) warned repeatedly against the creation of the kind of political parties we know today; limited and shifting factions were one thing but permanent factions were something altogether different, something to be feared. If there is one notable feature of today’s party system it is the extent to which American civil liberties are jeopardized by the tendency of congressmen to willingly defer to presidential claims of extra-constitutional authority if the President and congressman share a common partisan identity.

    My own personal experience with that problem came when President George W. Bush began to regularly claim the authority to disregard clear federal law – legislation that had become binding law with his own signature – because he felt it impinged on his own broad definition of executive powers and because, well, it would be inconvenient to have to actually veto legislation that combined provisions he agreed with and those he found troublesome, even though the veto is the only remedy constitutionally provided to the President when he finds parts of the legislation distasteful. 

  • August 6, 2012

    by Nicole Flatow

    On the 47th anniversary of the Voting Rights Act of 1965, the law that ushered in a period of dramatic expansion in our democracy is facing both direct and symbolic threats.

    With five challenges to the law’s central provision filed just this year, the U.S. Supreme Court is expected to take up the constitutionality of Section 5, which requires jurisdictions with a discriminatory history to obtain federal approval of any election law changes. Chief Justice John Roberts punted on the question in a 2009 case.

    Ironically, this Section has become more crucial than ever as the U.S. Department of Justice relies upon the law to challenge some of the harsh new voting restrictions in states subject to preclearance like Texas, South Carolina and Florida.

    But even in states that are not subject to the Voting Rights Act and have imposed laws to limit voter registration, to require photo IDs, and to limit early voting, this year marks a step backwards from the VRA’s historic expansion of the right to vote.

    During a panel at the American Constitution Society 2012 National Convention, the Brennan Center for Justice’s Nicole Austin-Hillery remarked that this “this is really the first time” since the passage of that 1965 law that the “we have been in a country that is actually going backwards,” in which states are introducing laws “that have the effect of making it harder for people to register to vote, of making it harder for people to actually go and cast a vote.”

    “This is a key shift in terms of our country and how we are dealing with our citizenry,” said Austin-Hillery.

  • July 18, 2012
    Guest Post

    By Jeffrey M. Shaman, a professor at DePaul University College of Law and author of the just-released ACS Issue Brief, “Nevada Commission on Ethics v. Carrigan: Recusing Freedom of Speech.”

    Arrogant, defiant, and dogmatic, Supreme Court Justice Antonin Scalia is a true believer in the theory of originalism — the idea that the Constitution should be interpreted according to its original meaning when first adopted in 1787. Originalism is based on the notion that the Constitution has a fixed meaning that does not change with the passage of time. Given the bully pulpit of his high office, Justice Scalia is the nation’s most prominent advocate of this extreme and deeply conservative ideology.

    The problem is that originalism is a fraud that misrepresents the nature of history by presuming that it has an objective meaning that can be discovered through study of the past. However, the belief in a hard core of historical facts existing objectively is an illusion. The meaning of the Constitution does not reside in the past, and any attempt to ascertain the original meaning of the Constitution necessarily entails reconstructing the past in one’s mind. Originalism, then, perpetrates a pretense of objectivity that functions as a facade for policy-making.

    The illusory propensity of originalism is strikingly apparent in District of Columbia v. Heller, the 2008 decision in which the Supreme Court ruled by a slim 5-4 majority that the Second Amendment of the Constitution protects an individual right to possess a firearm unconnected with service in a militia, and to use that firearm for traditionally lawful purposes, such as self-defense within the home.

  • July 6, 2012

    by Samantha Berkovits

    University of Texas law Professor William E. Forbath calls for liberals to champion a stronger interpretation of the Constitution that aims to squelch inequality. Those tempted to take up this cause, which Forbath presented in an op-ed in today’s New York Times, may find themselves facing an unfriendly battlefield, but Forbath is confident that history is on their side.

    The constitutional argument for equality may seem inherent in a document meant to “promote the general Welfare.” However, the recent victory for liberals in the Affordable Care Act case was ensconced in nearly 200 pages of opinion, with much of the language holding the potential to destroy the legacy of the New Deal, with rough consequences for an American public already facing a dangerous economic landscape. Forbath writes, “Even the new doctrine that the majority adopted may hobble efforts to condition federal grants-in-aid on compliance with national goals, like child-care assistance for the working poor.”

    Conservatives, Forbath notes, would have the public believe that the goal of the Constitution is to protect and establish “individualism, small government, godliness and private property.” In response to this “crackpot originalism” liberals have been playing defense, when they should have been on the offensive. According to Forbath, all the necessary tools to present a case for a Constitution that allows the government to, in the words of Justice Ginsburg, “regulate the national economy in the interest of those who labor to sustain it” can be found in American history.

  • July 2, 2012

    by Nicole Flatow

    Following widespread media coverage of Bill O’Reilly’s promise to American Constitution Society President Caroline Fredrickson that he would “apologize for being an idiot” if the Supreme Court upheld the Affordable Care Act as Fredrickson predicted, O’Reilly delivered a begrudging apology on his show Monday night.

    “I’m not really sorry,” he said, “but I am a man of my word, so I apologize for not factoring in the John Roberts situation. Truthfully, I never in a million years would thought the chief justice would go beyond the scope of the commerce clause to date and into taxation. I may be an idiot for not considering that.”

    This is a curious answer from O’Reilly, since he did consider the tax argument when Fredrickson explained during that same March 26 segment that the Affordable Care Act could be justified under the Constitution’s power to tax.

    In response, O’Reilly told Fredrickson she would “lose and your arguments are specious” and predicted the Supreme Court would strike down the individual coverage provision by a vote of 5-4.

    The following night, O’Reilly raised Fredrickson’s tax argument yet again, saying: