Constitutional Interpretation and Change

  • 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.

  • September 26, 2016
    Guest Post

    by Jeff Mandell, Senior Associate at Stafford Rosenbaum LLP in Madison, Wisconsin. Jeff is also the Chair of the newly formed ACS Madison Lawyer Chapter.

    Spend two days attending a participant-led conference about the ideas that should shape the future. That tempting invitation led me, a litigator in Madison, Wisconsin, to Washington, D.C. last week for Vox Conversations. The editorial team at Vox.com convened 150 invitees and asked us to raise and examine questions about how things could be different. It was just that open-ended and vague—how could things be different? Vox.com editor-in-chief Ezra Klein urged conference-goers to pursue and explore big ideas, without letting “the strictures of this political moment” constrain our discussions. My hope, as I tweeted out ahead of the conference, was that Vox Conversations would provide insightful discussions of policy—and maybe a little law. But Vox Conversations, like last summer’s ACS National Convention, reminded me that law and policy are rarely discrete spheres of inquiry but, ideally, intertwine with and inform one another.

    The conference discussions were all over the map and covered a tremendous swath of intellectual territory. There were conversations about the prospect of increased government surveillance and about beneficial government uses of big data. I hosted a conversation about how the proliferation of guns is changing our society and I participated in a fascinating discussion on whether America suffers from too much democracy. Much of the conference was strictly off-the-record (admittedly an interesting choice for a conference convened by a media company), with a stated goal of allowing greater space for participants to think out loud, to express incompletely theorized ideas and to change their minds in the midst of robust give-and-take.

    Among the on-the-record portions, I was particularly struck by Vox.com’s Matt Yglesias expanding upon his prediction that increasing ideological rigidity in our political parties will lead to persistent gridlock and, in turn, to a collapse of American constitutional democracy. Yglesias posits that our system of checks and balances, carefully calibrated for the world as the Framers understood it, is ill-equipped to handle our contemporary politics. Yglesias’ theory has a certain logical appeal, but I remain unconvinced, even after questioning the idea at the conference and continuing to turn it over in my mind for several days since.

  • 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.