ACSBlog

  • September 19, 2016
    Guest Post

    by Erwin Chemerinsky, dean and Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    *This post is part of the ACSblog symposium: Constitution Day 2016

    After the country observed Constitution Day this past weekend, there remains the simple reality that the outcome of the November presidential election almost surely will determine the meaning of the Constitution for decades to come. Since 1971, when Richard Nixon’s third and fourth justices for the Supreme Court were confirmed, until Justice Antonin Scalia died on Feb. 13, there always have been five and sometimes as many as eight justices appointed by Republican presidents. Now there are four justices appointed by Republican presidents (Roberts, Kennedy, Thomas and Alito) and four justices appointed by Democratic presidents (Ginsburg, Breyer, Sotomayor and Kagan). Who replaces Justice Scalia will tip the ideological balance on the Supreme Court in countless areas – such as campaign finance, gun control and separation of church and state – where he has been in the majority in 5-4 decisions.

    But it is not only Justice Scalia’s seat that is at stake. Since 1960, 78 years old is the average age at which a Supreme Court justice has left the bench. There are now three justices – Ruth Bader Ginsburg, Anthony Kennedy and Stephen Breyer -- who are 78 or older. Especially if the next president serves two terms, he or she will have several picks for the Supreme Court. This will determine the ideological composition of the Court, likely for decades.

    Picking Supreme Court justices is one of the most long lasting legacies of any presidency. William Rehnquist was nominated for the Supreme Court by President Richard Nixon in 1971 and served until his death in 2005. John Paul Stevens was nominated by President Gerald Ford in 1975 and served until he retired, at age 90, in 2010. Clarence Thomas was 43 when he was confirmed in 1991 and if he remains until he is 90, he will be a justice for 47 years until the year 2038.

    If a right-leaning president replaces Justice Scalia and say Justices Ginsburg and Breyer, these justices, together with Chief Justice Roberts and Justices Thomas and Alito – all of whom are in their 60s – will be a conservative majority for years to come. But if a left leaning president fills these vacancies, the new justices, along with Justices Sotomayor and Kagan will be a progressive majority for a long time.

  • September 16, 2016
    Guest Post

    by Adam Winkler, Professor of Law, UCLA School of Law

    *This post is part of the ACSblog symposium: Constitution Day 2016

    Happy Constitutions Day!

    No, that is not a typo. I know that tomorrow, September 17, is officially “Constitution Day,” marking the date in 1787 when the Constitution was submitted to the states for ratification. And I know there is only one document called the Constitution of the United States, not multiple different ones. Yet given how much the Constitution has changed, how different our perceptions of its requirements and the many other constitutions in American lives, perhaps we should nonetheless refer to it as “Constitutions Day.”

    Of course the original version of the Constitution is of vital importance to American history, culture and law. We must remember, however, that the states found that document wanting because it lacked a clear specification of individual rights. Several states conditioned their ratification of the Constitution on the adoption of significant amendments. Their objections to the Constitution led to the addition of the Bill of Rights in 1791. Four years after the first Constitution was proposed, we end up with a new one, revised and improved.

    Since then, we have added another 17 amendments to the Constitution. Some, like the Reconstruction Amendments (13th, 14th, & 15th) are of tremendous significance, radically reshaping the Constitution once again. The effect on American life and government from these amendments, which overhauled the relationship between the federal government and the states, was profound. Other amendments, like the 27th, which deals with congressional salaries, are relatively minor. Yet all of them have one thing in common: they each created a new Constitution. The Constitution today is different than the Constitution Americans lived with 50 years ago, which is different from the one 50 years before that.

  • September 14, 2016

    By Kevin Battersby Witenoff

    Lawyers representing Detroit schoolchildren filed a lawsuit Tuesday against Gov. Rick Snyder and state officials in what they are calling the country's first federal case that pushes for literacy as a right under the U.S. Constitution, reports Ann Zaniewski of the Detroit Free Press.

    As Constitution Day approaches, Elizabeth Wydra in The Washington Times underscores the importance of the duties enumerated within it that will shape our country over the next eight years.

    According to a federal lawsuit filed Wednesday. Georgia's voter registration process violates the Voting Rights Act and has prevented tens of thousands of residents, mostly minorities, from registering to vote, reports Kate Brumback of the Associated Press.

    Ann E. Marimow of The Washington Post reports that nearly a decade after the Supreme Court struck down the District’s long-standing ban on handguns, the city is again at the forefront of a legal battle over the Second Amendment.

  • September 14, 2016
    Dear Speaker Ryan and Leader Pelosi:
     
    We, as professors who specialize in constitutional law, write to urge you and your colleagues not to approve the fast-tracked resolution to impeach John Koskinen, Commissioner of the Internal Revenue Service.
     
    When it comes to impeachment, the Constitution leaves many open and difficult questions. Whether the alleged conduct of John Koskinen is impeachable is not one of them. There is simply no credible case for impeachment.
     
    The Constitution is designed to reserve the impeachment and removal from office for conduct that inflicts the most serious harms on society and that critically compromises the ability of an officer to govern. The Constitution limits the availability of impeachment in two ways. First, the Constitution provides a very limited definition of the scope of impeachment. Second, the Constitution erects significant procedural protections against impeachment and removal from office.
     
    I. The Constitution defines the scope of the impeachment power narrowly.
    An officer is subject to impeachment and removal from office only on the grounds of “treason, bribery, or other high crimes and misdemeanors.” It is true that the phrase “other high crimes and misdemeanors” is open-ended. It is nonetheless clear that the phrase charts a narrow scope. The text explicitly links the phrase – by employing the term “other” – to definite terms treason and bribery. The familiar canon of construction, ejusdem generis, tells us that it is proper to understand the open-ended term as limited to conduct that involves the attributes common to the definite terms. Treason and bribery each involves an immediate and elemental threat to our constitutional system; an officer who commits either of these offenses is indisputably unfit for office. Thus, the phrase “high crimes and misdemeanors” refers not to any misconduct but to misconduct that harms the nation as seriously as treason or bribery and that renders an officer as indisputably unfit to serve as an officer who commits treason or bribery.
  • September 14, 2016
    Guest Post

    by Margo Schlanger, Henry M. Butzel Professor of Law, University of Michigan.  In 2010 and 2011, she served as the presidentially appointed Department of Homeland Security Officer for Civil Rights and Civil Liberties. 

    *This post is part of the ACSblog symposium: The Fifteenth Anniversary of Sept. 11, 2001. 

    In the fifteen years since that terrible day in 2001, we have seen significant threats to civil liberties—augmented surveillance, a cramped vision of the Fourth Amendment, abridgements to habeas corpus, aggressive use of material support laws, etc.  Sometimes prompted by public dismay, we have also seen the courts, Congress and the President moderate the government’s course on some of the most aggressive practices. In addition to more well-known interventions, a less-known response (though one I have written about at length) is that the Congress and the President have institutionalized, inside of the government, somewhat domesticated civil libertarian voices on national security topics. In the 2004 Intelligence Reform and Terrorism Prevention Act, Congress instructed the lead Intelligence Community elements to establish Civil Liberties Protection Offices and in the years since, several more have been added. There is an office along these lines in the Office of the Director of National Intelligence, one in the CIA, the NSA, etc. These offices are supposed to ensure that “civil liberties and privacy protections [are] integral considerations in the planning of intelligence activities” and that “[i]ntelligence activities [are] conducted in a manner that protects civil liberties and privacy.”

    In my view, the threats to civil rights are even more significant than the threats to civil liberties. There has been a palpable erosion of American equality as Arabs and Muslims, including American citizens, have been targeted for special law enforcement, intelligence and immigration attention. Two examples, which could be multiplied many times over: It is commonplace, now, for non-Muslims who express fear of their Muslim fellow airline passengers based on innocuous phrases or ordinary behavior to have those fears ratified rather than rebutted when the Muslims (and the occasional Sikh) are pulled off the plane, facing questioning by the FBI. And Muslim students have to worry that their associations may be monitored, their conversations reported to police, perhaps twisted and used to their detriment.

    And yet we have seen far less civil rights than civil liberties recalibration. Take, for example, the issue of selective immigration enforcement. The Supreme Court in 1999 left the door for challenges to this practice only the tiniest bit ajar, noting that in general selective immigration enforcement was lawful, though the Court “need not rule out the possibility of a rare case in which the alleged basis of discrimination is so outrageous” as to justify an exception. In the years since, I am not aware of any court that has found any case sufficiently “outrageous” to support a challenge.