Constitutional Interpretation and Change

  • February 15, 2017
    Guest Post

    by Daniel A. Cotter, Partner, Butler Rubin Saltarelli & Boyd LLP and Adjunct Professor at The John Marshall Law School

    The American Constitution Society For Law and Policy recently launched an initiative, “Love Our Constitution,” with the goal for lawyers, judges and others to lead discussions and make presentations about the Constitution and the Federal Courts during the week of Valentine’s Day. I participated in the conference call that ACS held to explain the initiative and then volunteered to conduct a presentation to the local Boy Scouts Troop.

    On Monday, Feb. 13, 2017, I presented the “Love Our Constitution” program to my sons’ troop, Queen of All Saints Basilica Boy Scout Troop 626. About 35 scouts were in attendance and about a dozen adults. We began by handing out copies of the pocket Constitutions provided by ACS and discussing at a high level the document itself, one of the longest standing written constitutions in the world and also one of the shortest, the original being just over 4,500 words. Scouts answered questions about which branch each of the first three articles of the Constitution addressed.

    As I went through the slides, we asked questions of the attendees, including their thoughts on why Federal judges served during good behavior, effectively a lifetime appointment. One Boy Scout answered that the intent was to distance the judiciary from the pressures and demands of fundraising and elections and that lifetime appointments allowed the judges to act independently. Before moving to the next slides, we discussed this answer and identified a few instances where the party that had appointed the justices in the majority was not pleased with the decisions. We briefly discussed the Warren Court and the Brown v. Board of Education and criminal defendant rights’ cases and how upset many were. One Scout also raised the recent same sex decision by the Roberts Court, Obergefell v.Hodges.

  • February 3, 2017
    Guest Post

    by Carolyn Shapiro, Associate Professor of Law and Co-Director of the Institute on the Supreme Court of the United States, IIT Chicago-Kent College of Law

    Now that President Trump has nominated Judge Neil Gorsuch of the U.S. Court of Appeals for the Tenth Circuit to the Supreme Court, we will be hearing a lot about the proper role of a Supreme Court justice. In introducing Judge Gorsuch, for example, Trump said that he had sought a nominee who would “interpret [the Constitution and laws] as written.” Praising Trump’s choice, Sean Hannity noted that Trump was fulfilling his promise to appoint someone who would “strictly adhere to the original meaning of the words of the Constitution” and claimed that Gorsuch is not someone who will “legislate from the bench.” Other conservatives have hailed him as a “textualist” and one who “espouses judicial restraint.”

    All of these statements are wrong. They are wrong not necessarily because they misdescribe Gorsuch’s jurisprudence, but because they misdescribe the job. The job of the judge – and especially the job of a Supreme Court justice – is much more complex and nuanced than catchphrases like “applying the law as written” suggest.

    The statements are also code. They are code for a particular type of judge – and make no mistake, it is a judge who conservatives believe will produce results that, by and large, they like. This is not to say that a judge has to do something illegitimate to reach those results. Rather, it is to say that such a judge is – like all judges addressing hard and indeterminate questions of law – making judgments, considering facts, weighing competing principles and taking account of precedent, history, and societal norms and expectations.

  • January 24, 2017
    Guest Post

    by James P. Rooney, Administrative Law Judge

    On Jan. 20, 2017, Donald J. Trump was inaugurated as the 45th president of the United States. He became the second president this century who won the electoral vote but not the popular vote. Continuing to tolerate a system of election to our one national office in which the winner of the popular vote loses the election time and again will not be good for our democracy. Mr. Trump agrees. In his post-election interview with 60 Minutes, he stood by his comment in 2012 that the Electoral College is a “disaster for a democracy.” He said, “I'm not gonna change my mind just because I won. But, I would rather see it where you went with simple votes. You know, you get 100 million votes, somebody else gets 90 million votes, and you win. There's a reason for doing this because it brings all the states into play.”

    It is this last point that is key to the major problem with the Electoral College even when the popular and electoral votes do not diverge. Although the Constitution does not tell states how to choose electors, 48 of the 50 states have chosen a winner-take-all system in which whoever wins that state’s popular vote gets all the state’s electors. The major consequence of this system is that presidential candidates focus all their attention on swing states and none on the vast majority of states where it is clear which party’s candidate will win the statewide election. And as unconventional as this presidential election was, it was utterly conventional in its focus on swing states. Eighty-seven percent of the campaign events in the general election were held in just ten states: Florida, North Carolina, Pennsylvania, Ohio, Virginia, Michigan, New Hampshire, Iowa, Colorado and Nevada.

  • January 9, 2017
    Guest Post

    by Erwin Chemerinsky, ACS Board Member and Dean and Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    From the first moments of his presidency, Donald Trump risks violating an important constitutional provision: the emoluments clause, which prevents a government official from benefiting from a foreign government. Article I, section 9, of the Constitution states:  “And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State.”           

    This provision was meant to restrict the ability of foreign governments to influence American office-holders, a matter of great concern to a fledgling nation. Also, it helps to prevent conflicts of interests. As Edmunds Jennings Randolph said in 1787, “This restriction is provided to prevent corruption.” The clause is meant to be much broader than a prohibition of bribery; it forbids a federal officeholder from receiving anything of value from a foreign country.         

    The emoluments clause has received virtually no attention through most of American history because few issues have arisen concerning it. But Trump’s extensive foreign business holdings mean that this clause is likely to have great significance in the months and years ahead. It is easy to imagine countless ways that Trump’s businesses can benefit from the actions of foreign governments. This is especially so because Trump has yet to act in a way that will reduce the conflicts of interest that are sure to arise because of his many businesses. In fact, Trump has declared: “I can be president of the United States and run my business 100 percent, sign checks on my business.” Trump also has said, “The law is totally on my side, meaning, the president can’t have a conflict of interest.” That, of course, is simply false, including because of the emoluments clause.           

    The emoluments clause applies to all who hold “office” in the United States government. The Office of Legal Counsel of the Department of Justice explicitly has declared that this includes the president of the United States. The clause is broad in what it prohibits. A recent report issued by the Brookings Institution, authored by Norman Eisen, Richard Painter and Laurence Tribe, explained: “The Emoluments Clause is thus doubly broad. First it picks out words that, in the 1790s, were understood to encompass any conferral of a benefit or advantage, whether through money, objects, titles, offices, or economically valuable waivers or relaxations of otherwise applicable requirements. And then, over and above the breadth of its categories, it instructs that the Clause reaches any such transaction ‘of any kind whatever.’”           

  • October 24, 2016
    Guest Post

    *This piece was originally posted on Homeroom, The Official Blog of the U.S. Department of Education

    by Jeffrey RosenPresident and CEO of the National Constitution Center

    Earlier this week, U.S. Secretary of Education John King gave an inspiring speech on civic education at the National Press Club. As part of his speech, he called for a commitment to nonpartisan constitutional education in our classrooms. At the same time, he recognized that civic education is not easy. Even for teachers and administrators with the best of intentions, these conversations—which often cover some of the most contested issues at the center of our public life—can skew partisan. This is no small problem.

    To navigate these conversations effectively, teachers must have training on how best to facilitate these discussions and must receive support from their principals, their administrators and the wider community. However, teachers must also have access to trusted, nonpartisan information about our Constitution and its history—information that can be hard to find in our polarized age. That is where the National Constitution Center comes in.

    As a national headquarters for civic education, the National Constitution Center delivers balanced, trusted educational programming and online resources that inspire, excite and engage Americans about the U.S. Constitution—its text, its history and its enduring importance. The centerpiece of our civic education efforts is our Interactive Constitution—already dubbed an “internet sensation” by USA Today.