Analyzing the Amendments in 90 Days 2012 Project

America’s experiment in self-government reveals itself in the Amendment process

Analyzing the Amendments in 90 Days 2012 Project, The Honorable John Boehner 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article V, Bill of Rights, Constitutional Amendment X, Constitutional Amendment X, Constitutional Amendment XVIII, Constitutional Amendment XXVII, Declaration of Independence, John Boehner, The Constitution of the United States of America

Guest Essayist: The Honorable John Boehner, 53rd Speaker of the U.S. House of Representatives

I’m honored and delighted Constituting America would extend me an opportunity to conclude this year’s round of essays on the amendment process and to address the genius of the U.S. Constitution.

Our Founding Fathers believed in some simple and yet, for their times, absolutely revolutionary ideas. One of these ideas was that every individual possessed fundamental rights even prior to these rights ever being put into writing. Recall the words of the Declaration that these rights were “unalienable” and their existence a “self-evident” truth.

Another revolutionary idea was that government power or action essentially occurs at the expense of individual rights and liberties. This idea turned completely upside down the reality of nearly every government in history to that point. Most systems of rule placed a monarch, tyrant, or oligarchy at the top of subservient masses. Even in colonial times, many of us may forget, Americans were “subjects” to the British crown.

A remarkable thing about our system is that we place all of the citizenry at the top of the hierarchy.

At the Constitutional Convention in 1787, the Founders put in writing exactly how Americans would rule themselves within a framework of individual liberty. The document announced to the world a new concept: limited government at the heel of free people.

George Washington described this concept in a letter to a nephew shortly after the conclusion of the convention. “The power under the Constitution will always be in the people. It is entrusted for certain defined purposes, and for a certain limited period, to representatives of their own choosing; and whenever it is executed contrary to their interests, or not according to their wishes, their servants can, and undoubtedly will, be recalled.”

Moreover, not only could representatives be changed, but the document itself could be altered. The Constitution’s amendment process is self-government at work. Other writers of this series over the past 90 days highlight more than two centuries of reform and adjustment. Our Founders set up an amazing basic framework where citizens will forever have the privilege and right, under Article V, of making amendments.

During my early years in the House I worked for the ratification of the 27th Amendment, a provision dealing with Congressional pay originally part of the Bill of Rights but left un-ratified until 1992. It was a privilege to see the genius of our Founders at work again, two centuries later. My respect for that genius has only grown.

Shortly after my swearing in as Speaker of the House at the start of the 112th Congress, the Constitution was read in full on the House floor. To the best of my knowledge, this had never been done before in American history. I hope and trust a new tradition has been initiated.

This was done not only to honor liberty-loving Americans who take seriously Washington’s advice to recall “contrary” representatives, but because my Republican colleagues had promised to put our founding documents in their proper perspective. In our Pledge to America, we said: “We pledge to honor the Constitution as constructed by its framers and honor the original intent of those precepts that have been consistently ignored – particularly the Tenth Amendment, which grants that all powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

My colleagues and I also passed a House rule that requires Members to cite Constitutional authority in every piece of legislation they introduce. The American people deserve to know that the laws we pass and the actions we take comport with the spirit of our Constitution.

Let me again thank Constituting America for their education work. They live by the admonition of James Madison: “A well-instructed people alone can be permanently a free people.”

Since its ratification in 1788 the success of our Constitution has been a precious gift worth defending. It is a light for the rest of the world and a torch to be handed to future generations.

The Honorable John Boehner represents the 8^th Congressional District of Ohio, and is serving in the 112^th Congress as the 53^rd Speaker of the U.S. House of Representatives.

June 22, 2012

Essay #90

June 22, 2012/7 Comments/by Janine Turner

Proposed Amendment: D.C. Statehood

Analyzing the Amendments in 90 Days 2012 Project, Nathaniel Stewart 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Article I Section 08, Constitutional Amendment XIII, Constitutional Amendment XXIII, Nathaniel Stewart, Proposed Amendment

Guest Essayist: Nathaniel Stewart, Attorney

Proposed Amendment: D.C. Statehood Amendment:

District of Columbia Statehood Proposal:

Section 1. For purposes of representation in the Congress, election of the President and Vice President, and article V of this Constitution, the District constituting the seat of government of the United States shall be treated as though it were a State.

Section 2. The exercise of the rights and powers conferred under this article shall be by the people of the District constituting the seat of government, and as shall be provided by the Congress.

Section 3. The twenty-third article of amendment to the Constitution of the United States is hereby repealed.

Section 4. This article shall be inoperative, unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.

The nation’s capital city, Washington, DC, is a federal city, and it constitutes “the seat of Government of the United States.”[1] After great debate and deliberation over the location for the nation’s capital, the Founding generation settled upon a compromise in 1791. Congress first raised the subject of a permanent capital for the government of the United States in 1783, and it was ultimately addressed in Article I, Section 8 of the Constitution (1787), which gave the Congress legislative authority over “such District (not exceeding ten Miles square) as may, by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Government of the United States. …” In 1788, Maryland gave to Congress “any district in this State, not exceeding ten miles square,” and in 1789 the state of Virginia ceded an equivalent amount of land. In accordance with the “Residence Act” passed by Congress in 1790, President Washington in 1791 personally selected the diamond-shaped area along the shores of the Potomac River that is now the District of Columbia.

The Founders well-understood that the District of Columbia was under the control and jurisdiction of Congress itself, and the city was not itself a state, nor did it sit within the boundaries of any existing state. This helped to ensure the federal government’s independence from state politics or inter-state quarrels that might develop and hinder federal action. As a federal district, however, the capital did not have an elected local governor, nor did city residents have the right vote in national elections.

Nearly 200 years later, in 1961, the 23^rd Amendment to the Constitution granted District residents the right to vote in Presidential elections, and it gave the District the number of electors in the electoral-college that it would have if it were a state. The amendment did go so far as to provide the District with its own Senators or members of Congress, but the District has since gained a non-voting delegate in the House of Representatives.

A decade later, the left-wing political activist Julius Hobson formed the D.C. Statehood Green Party, which began campaigning for statehood for the District. The movement for statehood, helped by Democratic Senator Ted Kennedy, was instrumental in Congress passing the District of Columbia Home Rule Act in 1973, granting the city an elected mayor and city council.

The movement pressed on, seeking full statehood for the District, and in 1978 Congress passed the District of Columbia Voting Rights Amendment. The amendment was then sent it to the states for ratification. The new amendment would have repealed the 23^rd Amendment and given the District four electors (instead of three), as well as voting members in the Senate and House of Representatives. The proposed amendment met with stiff opposition from the states who feared that granting the District voting members in Congress would dilute their own representation. According to its terms, the proposed amendment would be “inoperative” if it was not ratified within seven years of the date it was submitted for ratification. The deadline for ratification was August 22, 1985, and only sixteen of the fifty states had ratified the proposal before the time limit had expired, well-short of the thirty-eight needed for ratification.

In 1980, DC residents passed the District of Columbia Statehood Constitutional Convention of 1979, calling for a constitutional convention for a new state. Two years later, voters ratified the constitution for “New Columbia,” the proposed 51^st state in the Union, but the campaign for statehood stalled after the proposed DC Voting Rights Amendment failed in 1985. Since then, statehood advocates have periodically proposed legislation to enact the “New Columbia” state constitution, but it has never been passed by Congress, and the last serious congressional debate on the issue took place in November 1993, when D.C. a statehood proposal was defeated in the House of Representatives by a vote of 277 to 153. Much of the momentum has since dissipated from the statehood campaign, and it is unlikely to be revisited by Congress or ratified by the several states anytime soon.

[1] U.S. Const. Amendment 23.

Nathaniel Stewart is an attorney in Washington, D.C.

June 21, 2012

Essay #89

June 20, 2012/1 Comment/by Janine Turner

A Look At Another Proposed Amendment: Women’s Equal Rights

Allison Hayward, Analyzing the Amendments in 90 Days 2012 Project 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Allison Hayward, Constitutional Amendment XvIX, Constitutional Amendment XvIX, Proposed Amendment

Guest Essayist: Allison R. Hayward, political and ethics attorney

Another Proposed Amendment: Women’s Equal Rights:

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Section 3. This amendment shall take effect two years after the date of ratification.

This history of the Equal Rights Amendment (ERA) is best understood in context with other great efforts as securing equality before the law for all. But the ERA has also been used as a political tool in efforts to secure electoral advantage. As with most social initiatives, the story offers a complicated mix of high purpose, low tactics, compromise, and for ERA supporters, frustration that extends to this day.

The roots of the ERA trace to 1848, when a group of activist social reformers and abolitionists met in Seneca Falls, New York, to discuss the rights of women. This meeting produced a statement, which among other things called for the elimination of the subjugation of women, voting rights, and absolute equality. But the immediate battle then raging was over slavery, and despite their efforts, women’s rights activists could not broaden the equal rights guarantees of the post-Civil War Amendments to protect women from discrimination as well as African Americans.

But other social reformers saw women’s rights as a tool. Anti-liquor activists believed the women’s vote would support “dry” candidates for state and federal office, and ultimately would secure a constitutional amendment prohibiting the manufacture, transport or sale of alcoholic beverages. A coordinated campaign began around the turn of the 20^th century to secure women’s voting rights at the state level, in conjunction with the election of prohibitionist candidates and passage of state prohibition laws. The impact is evident in this timeline – only four states (Wyoming, Colorado, Utah and Idaho) had guaranteed women the right to vote before 1910. Eleven states and the territory of Alaska enacted women’s suffrage laws between 1910 and the ratification of the 19^th Amendment in 1920. Twelve more allowed women to vote for President – eleven extending this right in 1917-19, which not coincidentally was the period when both women’s suffrage and Prohibition underwent Constitutional ratification.

In 1923, Alice Paul wrote what became the modern Equal Rights Amendment at a second Seneca Falls meeting commemorating the meeting of 1848. By this time, women had secured the right to vote and had been instrumental in the passage of Prohibition, and understandably women’s rights activists believed it was time to complete a constitutional guarantee of rights for women.

As with suffrage rights, a number of states adopted their own “ERA” type constitutional guarantees. Some state laws were enacted independent of the ERA campaign, but a number of others were adopted during the decade of debate over the ERA when it came before the states in 1972. Most state adopted ERA amendments between 1971 and 1978, when the campaign to adopt the federal Equal Rights Amendment (ERA) was at its height. The effort eventually failed, three states short of its final goal.

Even so, twenty states have adopted constitutions or constitutional amendments providing that equal rights under the law shall not be denied because of sex. Some read like the ERA, but others are narrower. For example California 1879 law (the nation’s earliest), guarantees equal rights to “entering or pursuing a business, profession, vocation, or employment.”

Supporters of ERA continue to argue its necessity, pointing out, among other things, continued pay inequities between men and women. But others argue that a constitutional amendment could be both too broad and ineffective. Larger social phenomena, such as the fact many women raise children, care for other family members, and for other reasons do not follow general male career trajectories go far to explain pay inequities. ERA would bar discrimination based obstacles women face in the workplace, but labor laws, corporate policies, and negotiated conditions of employment already provide existing means to address those.

What laws and practices would ERA abolish? Could there be unintended consequences? Interestingly, labor reformers in the early part of the 20^th century thought so. They opposed efforts to abolish discrimination based on sex, because they believed it would jeopardize women’s gains in workplace conditions and hours.

Reasonable laws should recognize that women and men are physically different, and these differences can sometimes matter. Pretending as if there were no differences in life expectancy, strength, metabolism, or estrogen would be irrational, even if in a strict sense “equal.” If our legal regime protects men and women’s choices consistent with the rights of others — recognizing that those choices will not be identical — equality is better served than by imposing a flat guarantee of equal rights.

Allison R. Hayward is a political and ethics attorney in California

June 20, 2012 – Essay #88

June 19, 2012/2 Comments/by Janine Turner

Proposed Amendment: Child Labor Ban

Analyzing the Amendments in 90 Days 2012 Project, Horace Cooper 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Horace Cooper, Proposed Amendment

Guest Essayist: Horace Cooper, Director of the Institute for Liberty’s Center for Law and Regulation, and a legal commentator

http://vimeo.com/44317424

Proposed Amendment: Child Labor Ban Amendment:

Section 1: The Congress shall have power to limit, regulate, and prohibit the labor of persons under eighteen years of age.Section 2: The power of the several States is unimpaired by this article except that the operation of State laws shall be suspended to the extent necessary to give effect to legislation enacted by the Congress.

The Child Labor Amendment is a proposed and still-pending amendment to the US Constitution offered by Ohio Congressman Israel Moore Foster in1924, during the 68^th Congress.

Perhaps one of the biggest political fights of the 20^th century involved the question of whether the federal government had or should have authority to regulate child labor. Alexander Hamilton and Horatio Alger stood on one side representing those who thought that child labor was a positive influence and on the other side stood influential novelist Elizabeth Stuart Phelps and a host of high society New Englanders who believed that this constituted a completely unnecessary and even ruinous exploitation of the nation’s youth.

Estimates varied about the size and scope of the problem. The 1880 census reported that roughly 17% of all children were “gainfully employed.” By 1910 that number had risen to nearly 19%. However even at its highest point, the lion share of the youths working did so on a farm, and mostly that of their own families. Fewer than 25% worked in canneries or any manufacturing plants.

The first state to restrict child employment was Massachusetts. In 1836 they banned 15 year olds from manufacturing jobs and then six years later adopted a law making it illegal to allow 12 year olds to work for more than 10 hours a day. By the turn of the century 28 states had adopted child labor laws.

However, leaders of the Teddy Roosevelt wing of progressivism within the Republican Party felt that state action was insufficient. They argued that it was essential that the feds take over these regulations in order to make them uniform and also in order that the rules could be as aggressive as was practical to end the scourge of child labor.

Historians report that they started by trying to ban the interstate transport of articles produced in factories or mines that employed children under 14. The Department of Commerce announced the creation of a Federal Children’s Bureau and began a full-throated contribution to the fight with updates and missives about the need for federal action.

Senator Albert Beveridge an early backer of a federal ban solicited and reported on the claims by known socialist agitators that there were thousands of “thumbless boys and girls who don’t know how to play.”

The promoters of federal action even went so far as to include a ban in the 1912 Republican platform causing President Taft to break with the party when he declared federal child-labor law unconstitutional. Unfortunately by the time that President Wilson would come into office – even after having opposed the concept while campaigning – he would determine that it was expedient to sign a ban into law. The Supreme Court would promptly strike down the measure arguing that “Freedom of Commerce will be at end, and the power of states over local matters may be eliminated” if the law were allowed to stand.

Nevertheless, Congress was undaunted. Congress came back this time with a measure that proposed a 10% profits tax on all industries that violated the recommended child labor standards. This too the Supreme Court struck down – this time 8-1.

It was then that the advocates decided that a Constitutional Amendment was in order. Congressman Israel Foster of Ohio and Senator Samuel Shortlidge of CA introduced the measure. They worded the amendment to cover not just employment, but work generally. In other words, the amendment purported to give the federal government the power to intervene on behalf of any child under the age of 18 who was responsible for “chores” as well as those who actually worked at factories.

Starting off with support from the NEA, the American Legion, the YWCA, the PTA, and even Presidents Warren and Harding the amendment seemed unstoppable.

The Child Labor Amendment has been ratified by the legislatures of the following 28 states:

Arkansas in 1924
Arizona in 1925
California in 1925
Wisconsin in 1925
Montana in 1927
Colorado in 1931
Illinois in 1933
Iowa in 1933
Maine in 1933

10. Michigan in 1933

11. Minnesota in 1933

12. New Hampshire in 1933

13. New Jersey in 1933

14. North Dakota in 1933

15. Ohio in 1933

16. Oklahoma in 1933

17. Oregon in 1933

18. Pennsylvania in 1933

19. Washington in 1933

20. West Virginia in 1933

21. Idaho in 1935

22. Indiana in 1935

23. Utah in 1935

24. Wyoming in 1935

25. Kentucky in 1936

26. Kansas in 1937

27. Nevada in 1937

28. New Mexico in 1937.

However, two arguments would ultimately stop the Child Labor Ban amendment in its tracks. The first was the claim that alcoholism and drunkenness among fathers was the reason why so many young people were in the workplace. And secondly, groups like the Women’s Constitutional League of Maryland effectively explained that at the end of the day, “The fathers and the mothers are better prepared to pass judgment upon the needs and the welfare of their children than this Congress is.”

A new opposition coalition developed made up of the Catholic Church, farmers, and ordinary families. Together along with the claim that most of the “childsavers” were childless caused much of the momentum to slow and then ultimately reverse.

In true ironic fashion, it was Massachusetts where the amendment would face its major defeat. The Archbishop of Boston mounted a vigorous campaign against the amendment as being anti-family and claimed that it would “take from parents the right and duty to educate and guide their children.” Suddenly the Lutherans joined in the effort. An advisory referendum was scheduled for the state and the amendment lost in a lopsided vote 697,563 to 241,461. This was the beginning of the end.

Perhaps the most significant consequence of the introduction of the Child Labor Ban Amendment is that the right of the people to determine ultimately what the policies and rules of their nation would be remain with the people through the state legislatures. In a landmark case, Coleman v. Miller the US Supreme Court in a dispute over the Child Labor Ban Amendment officially recognized that if Congress does not specify a ratification deadline, then the proposed amendment remains pending business. Today, with 50 states in the Union, the ratifications of 10 additional states would be required to incorporate the proposed Child Labor Amendment into the Constitution.

Horace Cooper is a legal commentator and the Director of the Center for Law and Regulation at the Institute for Liberty

June 19, 2012

Essay #87

June 18, 2012/3 Comments/by Janine Turner

A Look Back in History: Proposed Amendment – Slavery and the States

Analyzing the Amendments in 90 Days 2012 Project, Horace Cooper 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Horace Cooper, Proposed Amendment, The Constitution of the United States of America

Guest Essayist: Horace Cooper, Director of the Institute for Liberty’s Center for Law and Regulation, and a legal commentator

http://vimeo.com/44223606

Proposed Amendment: Slavery and the States Amendment:

State’s sole right to regulate slavery proposal:

No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.

This proposed amendment is the so-called Corwin Amendment. Passed by the 36^th Congress on March 2, 1861, the Corwin Amendment offered by Ohio Representative Thomas Corwin was presented as a means of forestalling the secession of Southern states prior to the beginning of the Civil War.

It had become increasingly clear to many in Congress that a conflict was occurring over the status of slave versus non-slave states that could have cataclysmic effects on the Union. In the 36^th session alone, there were more than 200 different measures introduced regarding the subject of slavery including nearly 60 Constitutional amendments.

The Corwin Amendment sought to forbid any future attempts to amend the Constitution to empower the Congress to “abolish or interfere” with slavery as a way to ensure that southern states would not feel obligated to leave the American Union. Presented as a last ditch effort to prevent the collapse of the Union, the proposal didn’t have the intended effect. The newly formed Confederate States of America organized and declared that it would pursue a path of independence completely ignoring Congress’ intentions with the Corwin Amendment.

Notably the Corwin Amendment has the distinction of being the only constitutional amendment to have an actual numerical designation assigned to it by Congress—the proposing resolution includes the name “Article Thirteen.”

After passing the House and Senate, congressional leaders prevailed upon incoming President Lincoln to send a letter to each governor alerting them that the amendment had passed. While President Lincoln never endorsed the measure, he acquiesced to the request.

By the time President Lincoln had been elected, seven southern states had seceded and within a few months four others would join them. While Lincoln had not campaigned on a platform to end slavery where it existed, he had pledged to use the power of the federal government to prevent slavery from spreading to territories that were not yet states. His willingness then to send the letter was yet another demonstration of the lengths he was attempting to go to prevent the dissolution of the union.

Ohio has the distinction of the being the first legislature to ratify the amendment on May 13, 1861. However by March 31, 1864 the commencement of the Civil War and changing public sentiment led the legislature to rescind its ratification. Since Congress did not include a final ratification date for this proposed amendment, it technically is still pending. In 1963 more than a century after it was ratified, Texas state representative Henry Stollenwerck introduced a resolution to ratify in the Texas statehouse. It was referred to the House of Representatives’ Committee on Constitutional Amendments on March 7, 1963, and received no further consideration.

It is noteworthy that the Confederate Constitution contained no provision like that found in the Corwin amendment. Even though the Confederate charter explicitly authorized slavery in the Confederacy, it didn’t seek to prevent or bar future amendments that might restrict or abolish slavery.

Most scholars believe that even if the Corwin Amendment had been adopted it would not have been irreversible. That is to say, Congress and the states could bar Congressional interference with slavery if they wanted but they couldn’t bar a subsequent Congress and the states from either repealing the amendment the same way they did when they adopted prohibition and then repealed it later or adding new amendments that had the same effect. In other words, the mere adoption of the Corwin Amendment would not have prevented a subsequent Congress from passing an amendment to ban slavery or to protect the voting rights of blacks who were formerly slaves.

Horace Cooper is a legal commentator and the Director of the Center for Law and Regulation at the Institute for Liberty

June 18, 2012

Essay #86

June 17, 2012/1 Comment/by Janine Turner

Proposed Amendment: Titles of Nobility Amendment

Analyzing the Amendments in 90 Days 2012 Project, Horace Cooper 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Horace Cooper, Proposed Amendment

Guest Essayist: Horace Cooper, Director of the Institute for Liberty’s Center for Law and Regulation, and a legal commentator

http://vimeo.com/44084644

Proposed Amendment: Titles of Nobility Amendment:

If any citizen of the United States shall accept, claim, receive or retain, any title of nobility or honour, or shall, without the consent of Congress, accept and retain any present, pension, office or emolument of any kind whatever, from any emperor, king, prince or foreign power, such person shall cease to be a citizen of the United States, and shall be incapable of holding any office of trust or profit under them, or either of them

Introduced in 1810, the so-called Titles of Nobility Amendment (TONA) was sponsored primarily by Maryland Senator Philip Reed. Historians argue that this amendment’s purpose was two-fold. One to make it more difficult for foreign agents to buy or influence votes in state and federal elections, and secondly to prevent saboteurs and enemies of America from promising land, wealth, and titles to officers in the military or other prominent appointees in government as a way to undermine their loyalty to the United States.

Senator Reed, the primary sponsor, was quite a character. A revolutionary war hero, purportedly during the battle of Stony Point, he cut off the head of an American deserter and had it displayed on a pike as a deterrent to other deserters.

As a Senator from Maryland, Senator Reed and his constituents were keenly aware of the younger brother of French Ruler Napoleon Bonaparte’s marriage to the daughter of wealthy Baltimore merchant William Patterson. Jerome Bonaparte’s marriage to Elizabeth Patterson (the Paris Hilton of her day) not only scandalized Northeastern American society, suggestions that the marriage would result in a lifetime annuity and a title for Ms. Patterson and her heirs was sufficient to remind American leaders of the need to minimize the ability of foreigners to influence American society and its political structure.

Primarily supported by Federalists, the amendment’s substance galvanized the Congress getting broad support. The resolution passed both houses of Congress in 1810: the United States Senate by a vote of 19 to 5 and by the House of Representatives by a vote of 87 to 3. It was sent to the states and awaits action for ratification. According to the Supreme Court, in a case entitled Coleman v. Miller, the amendment is still available to be considered and ratified by the various states, as there is no deadline for ratification specified when Congress initially proposed the amendment. As least 26 more states would have to ratify the amendment in order for it to become part of the Constitution today.

This amendment was ratified by 12 state legislatures:

1. Maryland (December 25, 1810)

2. Kentucky (January 31, 1811)

3. Ohio (January 31, 1811)

4. Delaware (February 2, 1811)

5. Pennsylvania (February 6, 1811)

6. New Jersey (February 13, 1811)

7. Vermont (October 24, 1811)

8. Tennessee (November 21, 1811)

9. North Carolina (December 23, 1811)

Georgia (December 31, 1811)^[1]
Massachusetts (February 27, 1812)
New Hampshire (December 9, 1812)

Senator Reed lived to be 69 years of age, dying in 1829. A memorial marks his grave to this day as one of Kent Maryland’s most distinguished citizens.

Today the only controversy about this so-called “Titles of Nobility Act” is whether it was already ratified. Historians overwhelmingly agree that the amendment was not ratified. In 1833, the brilliant and highly regarded judge and commentator Joseph Story wrote “it has not received the ratification of the constitutional number of states to make it obligatory, probably from a growing sense, that it is wholly unnecessary” and the 1848 edition of Bouvier’s Law Dictionary recorded that TONA “has been recommended by Congress, but it has not been ratified by a sufficient number of states to make a part of the constitution.”

Horace Cooper is a legal commentator and the Director of the Center for Law and Regulation at the Institute for Liberty

June 15, 2012

Essay #85

June 14, 2012/0 Comments/by Janine Turner

Proposed Congressional Apportionment Amendment

Analyzing the Amendments in 90 Days 2012 Project, The Honorable David Eastman 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Bill of Rights, Constitutional Amendment XXVII, Constitutional Amendment XXVII, David Eastman, Federalist No. 55, Proposed Amendment, The Constitution of the United States of America

Guess Essayist: David Eastman, 2011 Claremont Institute Abraham Lincoln Fellow

http://vimeo.com/44015708

Before we conclude our 90 Day Amendment Study, we now take a look at some pending Constitutional Amendments, which have not been adopted:

The first in this short series is an amendment on Congressional Apportionment – Essayist: David Eastman, 2011 Claremont Institute Abraham Lincoln Fellow

Proposed Congressional Apportionment Amendment

“After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.”

Few today may be able to tell you, but the most immediate concern in the minds of many Americans following the adoption of the Constitution was not first amendment rights concerning freedom of speech, but rather first amendment rights concerning the number of representatives in Congress. And though it receives comparatively little attention in our own day, it was this issue that the Congress was compelled to tackle in the very first constitutional amendment it adopted (September 25, 1789).

Concerns over congressional apportionment predated ratification of the Constitution and were the subject of fully three of the Federalist Papers, in one of which Madison remarked “Scarce any article, indeed, in the whole Constitution seems to be rendered more worthy of attention by the weight of character and the apparent force of argument with which it has been assailed” (Federalist 55). The initial apportionment scheme that generated such high-spirited controversy was as follows:

“The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative…”

New Hampshire (3)
Massachusetts (8)
Rhode Island (1)
Connecticut (5)
New York (6)
New Jersey (4)
Pennsylvania (8)
Delaware (1)
Maryland (6)
Virginia (10)
North Carolina (5)
South Carolina (5)
Georgia (3)
Total (65)

Madison defended this portion of the proposed Constitution against a two-pronged attack: first, that the number of representatives in Congress, being too few, was inadequate to prevent corruption of the legislative body; and second, that such a number would deprive the body of sufficient knowledge owing to the inability of members of Congress to effectively represent such a large number of constituents. Also relevant was the concern that if the House of Representatives were ever to become too numerous, its character as a representative body would be undermined. Despite Madison’s best efforts to answer these concerns, they persisted, leading several states to propose amendments to this portion of the Constitution, which they submitted to the Articles Congress with their respective ratification documents.

These, and other requests submitted by the states, resulted in the first twelve amendments passed by the United States Congress and submitted to the states on September 25, 1789. Ten of the twelve were soon adopted as the Bill of Rights, and the eleventh would lay silently awaiting ratification until approved by the State of Michigan and finally added to the Constitution 202 years later, on May 7, 1992.

The twelfth and final amendment, the Congressional Apportionment Amendment, was ratified by a majority of states at the time of its passage, but less than the three-fourths required for adoption. This could be due in part to a transcription error that resulted in a mathematically impossible apportionment formula once the population of the United States reached 8 million and before it reached 10 million. The apportionment scheme now in use is determined by Congress, in keeping with the original text of the Constitution.

As it has already secured the approval of Congress, the Apportionment Amendment could follow the path taken by the 27th Amendment and be adopted if ratified by additional states. However, its passage today is unlikely, not only due to the passage of time but also due to the fact that approval would be of limited practical effect as the scheme currently approved by Congress is already in harmony with the Amendment. It seems Congress has been successful, at least as concerns this particular amendment, in fixing a number that is neither so numerous that passions become unwieldy, nor so few that states come to question the ability of their representatives to be independent voices amidst the representatives of other states.

David Eastman is a former U.S. Army Captain, a Claremont Lincoln Fellow. He can be reached at david@davideastman.org.

June 14, 2012

Essay #84

June 14, 2012/3 Comments/by Janine Turner

Amendment XXVII

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XXVII, James D. Best 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Bill of Rights, Constitutional Amendment XI, Constitutional Amendment XI, Constitutional Amendment XXVII, Constitutional Amendment XXVII, James D. Best, The Constitution of the United States of America

Guest Essayist: James D. Best, author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, and Principled Action, Lessons from the Origins of the American Republic

Amendment XXVII:

No law varying the compensation for the services of the Senators and Representatives shall take effect until an election of Representatives shall have intervened.

The 27^th Amendment states that any law Congress passes that alters their compensation cannot take effect until after the next election.

On September 25, 1789, Congress proposed twelve constitutional amendments. In a little over two years, ten of these were ratified by the states. These very first amendments to the Constitution became our revered Bill of Rights.

The first rejected amendment proscribed a complex formula for determining the size of the House of Representatives. The second failed amendment, known as the Compensation Amendment, was written by James Madison in response to Antifederalist claims that Congress possessed the power to vote themselves rich salaries. Although this amendment failed in 1791, it eventually became the 27^th Amendment.

The 11^th Amendment took less than a year to ratify. Prohibition (18^th Amendment) took 14 months, while repeal (21^st Amendment) took only nine months. Women’s suffrage (19^thAmendment) took 14 months to ratify. Giving 18 year olds the right to vote (26^th Amendment) took only a little over three months. So why did it take 203 years to ratify the 27^th Amendment?

In 1791, Americans didn’t see compensation of Congress as a big issue—at least, not enough of an issue to threaten liberty. If Congress became too greedy, voters would simply throw them out of office. In 1873, Congress did vote itself a retroactive raise. In a pique, Ohio ratified the Compensation Amendment. No other states followed suit, so the amendment languished—until the 1980s. Surprisingly, a grassroots campaign was ignited by an undergraduate term paper written by Gregory Watson. (He received a C grade for the paper.) On May 7, 1992, the Compensation Amendment was finally ratified by enough states to make it officially the 27^th Amendment.

The irony is that this two-century process may have been made meaningless by later court decisions. Since the amendment was ratified, the only court challenge claimed that the annual Cost of Living Allowance (COLA) violated this amendment. A few taxpayers and a congressman filed suit, but a lower court ruled that the taxpayers did not have standing (standing is a legal interest in the issue that entitles the party to seek relief). It further ruled that an automatic COLA was not an independent law subject to the amendment. On appeal, the Tenth Circuit ruled that the congressman also did not have standing. If neither taxpayers nor congressmen have standing, it’s hard to imagine a successful challenge.

Madison had crafted a clear, single sentence that 203 years later became part of the Constitution. It’s doubtful that Congress would be foolish enough to violate this minor restriction on their pay increases.

We often hear laments that our politicians no longer honor their pledge to preserve, protect and defend the Constitution of the United States. This is backward. The Constitution was not written for politicians. Our political leaders have no motivation to abide by a two hundred year old restraining order. Americans must enforce the supreme law of the land. The first outsized words of the Constitution read We the People. It’s our document. It was always meant to be ours, not the government’s. It is each and every American’s obligation to preserve, protect, and defend the Constitution of the United States.

James D. Best is the author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, and Principled Action, Lessons from the Origins of the American Republic.

June 13, 2012

Essay #83

June 13, 2012/3 Comments/by Janine Turner

Amendment XXVI, Section Two

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XXVI, Horace Cooper 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XXVI, Constitutional Amendment XXVI, Horace Cooper

Guest Essayist: Horace Cooper, Director of the Institute for Liberty’s Center for Law and Regulation, and a legal commentator

Amendment XXVI:

Section 1: The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age.

Section 2: The Congress shall have the power to enforce this article by appropriate legislation.

18-Year Olds Right to Vote

Section 2. The Congress shall have the power to enforce this article by appropriate legislation.

Perhaps one of the few instances where the issue of congressional power was litigated prior to passage of the amendment, section 2 of the 26^th amendment has this distinction. Many Americans today do not realize that the debate over the minimum age to vote in the U.S. began during World War II and the issue continued to grow even as the War wound down. President Dwight Eisenhower was the first U.S. president to officially endorse lowering the voting age to 18. For most of its history, the U.S. had adopted 21 as the minimum age.

President Eisenhower, like a growing number of American policymakers, recognized a clear disparity between 18 year olds being old enough to fight for their country in war and yet they were not considered responsible enough to cast a vote in electing the representatives that could decide the policy. This sensible argument was powerful enough to persuade Georgia and Kentucky to lower the minimum voting age during World War II.

Unfortunately the process of state-by-state reform didn’t appear to be moving fast enough for its advocates. By the time of the Vietnam War, it had become increasingly clear that Congress had to take some action in this area. Between the budget pressures, anti-war efforts, and the need to rely on the draft, Washington policymakers determined that they should act affirmatively to lower the voting age.

Taking the lead nearly 20 years after serving as Vice-President to President Eisenhower, President Nixon agreed to sign a law that amended the Voting Rights Act to lower the voting age to 18 for all Federal, State, and local elections. There was a problem with this solution: it didn’t meet Supreme Court muster.

The act signed into law in 1970 was challenged in the federal courts. In Oregon v. Mitchell the Supreme Court declared that the Congress didn’t have the authority to set a minimum age requirement for voting in state and local elections.

President Nixon would then call upon Congress to adopt a Constitutional amendment to remedy the matter. It passed Congress in March 1971 and would set a record – 4 short months – as the fastest ratification of any of the amendments to the Constitution. By July, President Nixon would certify that the amendment had indeed been ratified.

Horace Cooper is a legal commentator and the Director of the Center for Law and Regulation at the Institute for Liberty

June 12, 2012

Essay #82

June 12, 2012/3 Comments/by Janine Turner

Guest Essayist: Janice Brenman, Attorney

http://vimeo.com/43824641

Amendment XXVI:

The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age.

The Twenty-Sixth Amendment: Empowering America’s Youth

Throughout our nation’s history the right to vote has remained a cornerstone of cherished civil liberties and democratic processes. This right, however, was granted to select members of the populace until a century and a half ago. The end of the Civil War brought about 3 “Reconstruction Amendments” aimed to bring constitutionally granted “blessings of liberty” to the black male populace – the 3rd of these, the 15th Amendment, ratified in 1870, granted voting rights regardless of “race, color, or previous condition of servitude.” Half a century later, women were also granted the right to vote, after various organizations staged a protracted series of processions and protests. Several countries, such as Sweden, Finland (then known as the Grand Duchy (Dutch-ee)), Britain and Australia, had already forged ground in this area at the end of the 19th century. The resulting 19th Amendment was ratified in 1920, which prohibited state and federal sex-based voting restrictions. Additional suffrage privileges were granted with ratification of the 24th Amendment in 1964 – which guaranteed that voting rights of citizens

“shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.”

Age was the next obstacle to overcome.

The Constitution allowed states to dictate voting qualifications, subject to restrictions incorporated into Amendments. One of these Amendments, the 14th, mandated an age 21 minimum for male suffrage, with the caveat of withholding any state’s representation in Congress should this right be denied. With the onset of World War II, many young men and women under age 21 entered military service, sparking discussions about reducing the voting age to 18. It seemed ironic that one could be called up for military service at 18 and denied the right to vote for the country one was entrusted to defend. So, in 1942, four Congressmen introduced resolutions to reduce the age to 18. Over 150 proposals were initiated, some setting the age to 19. In the early 1950s, Senate debated one of “18” resolutions, but it failed by a vote of 34 to 24. By the late 1960s, the Vietnam War was rapidly escalating and thousands of young Americans enlisted, or, were drafted for active duty overseas. As of 1968, 25% of the troops were under age 21 and made up an even higher percentage of casualties. ‘Old enough to fight, old enough to vote’ became a mantra for the burgeoning Baby Boom generation.

The resolutions for lowering the voting age began to gain momentum once again. Congress held hearings on the subject between 1968 and 1970. These hearings touched on the link between military service and voting, but primarily focused on the increased educational levels of modern youth. Their discussions also focused on the ever-increasing responsibilities of the 18-21 year old demographic: attending college, driving automobiles, drinking alcohol (in subsequent years, states raised this age to 21), holding jobs, starting families, being tried as adults in court. Concurrently, in a narrow 5-4 vote, the United States Supreme Court ruled in Oregon v. Mitchell (1970) that 18 year olds could vote in federal elections, but not in those held at the state, or, local levels.

States now were tasked with evaluating their suffrage-age laws, and sixteen states did just that in 1970. Six states lowered the age and ten remained unswayed. Other states began to weigh administrative and cost advantages in matching the new federal framework. Congress then added a provision to the Voting Rights Act in 1970 setting the minimum voting age to 18 for both national and state elections, arguing it had broad power to protect voting rights under Section 5 of the 14th Amendment. With that, Congress accelerated its commitment to incorporate the youth suffrage movement within the framework of the Constitution. Congress passed the 26th Amendment March 23, 1971. In the fastest ratification process on record (107 days), three fourths of the states ratified this landmark proposal July 1, 1971.

Note: Amendment 14, section 2, of the Constitution was modified by section 1 of the 26th amendment.

Ms. Janice R. Brenman is a former prosecutor now in private practice in Los Angeles. She has commented in major legal publications on the subject of legal reform and celebrity influence on the legal system. She has also appeared in medical malpractice, products liability and complex civil litigation, and is well versed in all forms of discovery. From 1999 to 2000, Ms. Brenman was a City Prosecutor and Community Preservationist. She clerked for the Honorable Rupert J. Groh(Grow), Jr., of the United States District Court for the Central District of California. Ms. Brenman also worked researching, writing and editing under a Nobel Prize winning laureate.

June 11, 2012

Essay #81

June 11, 2012/3 Comments/by Janine Turner

Amendment XXV, Section 4

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XXV, Horace Cooper 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XXV, Constitutional Amendment XXV, Horace Cooper

Guest Essayist: Horace Cooper, Director of the Institute for Liberty’s Center for Law and Regulation, and a legal commentator

http://vimeo.com/43652085

Amendment XXV, Section 4:

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

Section 4 is the only part of the 25th amendment which has never been invoked. It was created especially to empower the Vice President, together with a majority of the Cabinet or of “such other body as Congress may by law provide”, to declare when necessary that the President of the United States is disabled. This would occur by formally submitting a written declaration to the President pro tempore of the Senate and the Speaker of the House of Representatives. Upon its delivery, the Vice President would become Acting President.

Section 4 is meant to be invoked if Vice President and the Cabinet determine that the President’s incapacitation prevents him from discharging the duties of his office and the President does not voluntarily proffer a written declaration to that effect.

Since this provision may involve a conflict between the President and the rest of his administration there are safeguards to prevent the invocation occurring unfairly. Therefore, the President may resume exercising his Presidential duties in response to the Vice President’s declaration by sending a written declaration to the President pro tempore and the Speaker of the House explaining that he is able to assume his duties.

It is only then that if the Vice President and Cabinet remain unsatisfied with the President’s condition, they may within four days submit another declaration to the House Speaker and the Senate President Pro Tempore that the President is incapacitated.

If this occurs, Both Houses of Congress must assemble within 48 hours if not already in session to make a determination. Within 21 days of assembling or of receiving the second declaration by the Vice President and the Cabinet, a two-thirds vote of each House of Congress is required to affirm the President as unfit. Upon this finding by the Congress, Section 4 states that the Vice President would “continue” to be Acting President.

Should the Congress resolve the issue in favor of the President, or if the Congress makes no decision within the 21 days allotted, then the President would “resume” discharging all of the powers and duties of his office.

If for some reason the Congress sides with the President yet the Vice President and Cabinet determine later that the President is incapacitated, the Vice President can continue to invoke Section 4. The President could send a declaration stating that he is capable of handling his duties and presumably the allotted 21-day Congressional procedure would start again..

History notes that there have been at least two occasions where there was serious consideration of invoking Section 4. The first involved the March 30, 1981 assassination attempt against Ronald Reagan. A group of Presidential advisors gathered at his bedside following his surgery and in conjunction with the doctors findings, determined that he was competent to carry on the affairs of state. The second occasion also involved President Reagan.

Late in his term, President Reagan replaced his chief of staff – Donald Regan – with Howard Baker. Howard Baker was pressed according to media reports to make an assessment as to whether President Reagan then 76 was “mentally sharp.” After holding a meeting with the President and the rest of his staff, Baker easily concluded that President Reagan was capably handling his duties as President.

Horace Cooper is a legal commentator and the Director of the Center for Law and Regulation at the Institute for Liberty

June 8, 2012

Essay #80

June 8, 2012/0 Comments/by Janine Turner

Amendment XXV: Presidential Succession Section 3

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XXV, Horace Cooper 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article II, Constitutional Amendment XXV, Constitutional Amendment XXV, Horace Cooper, The Constitution of the United States of America

Guess Essayist: Horace Cooper, legal commentator and the Director of the Center for Law and Regulation at the Institute for Liberty

Amendment XXV Section 3

Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Since the nation’s founding there have been lingering questions about the presidential succession process. As drafted by the framers, Article II of the U.S. Constitution provided that the vice president shall “discharge the Powers and Duties” of the president in the case of the president’s “Death, Resignation, or Inability.”

Seemingly clear enough in 1787, it increasingly became obvious there were serious gaps in the process. Congress was given the responsibility to work out the details for what might occur if both the Vice President and President were incapacitated. At the same time the Constitution was opaque over what constituted inability or scenarios in which a previously incapacitated President might have his authority restored.

Until the 25^th amendment was ratified, the vice presidency had been vacant 16 times after a president or vice president had died or resigned. *

President Garfield tragic assassination was a major case in point regarding Presidential Succession. Assassin Charles J. Guiteau disgruntled over not being able to obtain a federal post shot President Garfield. The president would slip in and out of comas over the next 80 days. As a result he would perform only one official act during this period – the signing of an extradition paper. President Woodrow Wilson was disabled by a stroke in 1919–1921. Many presidents have suffered shorter periods of disability. In no instance were the disability provisions invoked. *

Many in Washington thought that President Eisenhower’s heart attack in 1955 and then subsequent stroke in 1957 made clear that the modern presidency needed a succession plan. However, the subsequent campaign between Nixon and Kennedy, either of whom would set the record for youngest president in US history moved the issue to the back burner.

Ironically, it was the assassination of President John F. Kennedy in 1963, which brought the issue immediately to the forefront. This far into the 20^th century the United States couldn’t answer long-standing questions such as when the president died, did the vice president automatically become president, or only serve as acting president? What happened when the vice presidency was vacant? The Twenty-fifth Amendment, would at long last answer these questions.

Stymied during the Eisenhower administration, this time the urgency was clear. Even The American Bar Association endorsed the proposal. On January 6, 1965, Senator Birch Bayh formally proposed the amendment. It was passed by Congress on July 6, 1965, and ratified on February 10, 1967, making it the 25th Amendment to the Constitution.

Reportedly Presidents G HW Bush and Bill Clinton established detailed plans in compliance with Section 3 to deal with incapacity during their terms although ultimately they never needed to be invoked.

Horace Cooper is a legal commentator and the Director of the Center for Law and Regulation at the Institute for Liberty

* THE TWENTY-FIFTH AMENDMENT: ITS COMPLETE HISTORY AND APPLICATIONS,” BY JOHN FEERICK (1992)

June 7, 2012

Essay #79

June 7, 2012/0 Comments/by Janine Turner

Amendment XXV, Section 2

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XXV, Hadley Heath Manning 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article I, Constitutional Amendment XXV, Constitutional Amendment XXV, Hadley Heath Manning, The Constitution of the United States of America

Guest Essayist: Hadley Heath, Senior Policy Analyst at the Independent Women's Forum

http://vimeo.com/44178578

Amendment XXV, Section 2:

Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

The 25^rd Amendment, Section 2, explains that in a vacancy in the office of Vice President, the President must act to select a new Vice President, and the Congress must confirm the President’s choice. More broadly, this Amendment (ratified in 1967) clarifies the line of succession in the executive branch as established in Article II of the Constitution.

Without this Section or this Amendment, it was unclear what to do in the case of a Vice Presidential death or disqualification. Would the Speaker of the House ascend to this office? Would the people elect a new Vice President? Actually, neither happened. But before the 25^th Amendment, the office of the Vice President was simply left vacant 16 times, and it stayed that way until the next election.

Eight times the President of the United States died, and the Vice President left office to become President. Seven times the Vice President died. Once, Vice President John Calhoun resigned in order to become a U.S. Senator.

But for the sake of continuity, and in order to keep the important office of Vice President filled, the U.S. ratified this Amendment. It makes it clear that the President will nominate someone, and the Congress will confirm. The Congressional confirmation also ensures that the people have a representative voice in approving the new Vice President.

After all, the office of the Vice President carries with it unique Constitutional duties and shouldn’t be left empty. According to Article I of the Constitution, the Vice President also serves as President of the U.S. Senate, and must cast a vote if there is a tie. The Vice President is also charged with overseeing, counting and presenting the votes of the Electoral College.

The Vice President also serves an important informal role as the assistant to, or spokesperson for the President. This role varies from administration to administration, depending on the relationship between the two leaders.

In American history since 1967, only two back-to-back occasions have called for the selection of a Vice President in the manner prescribed by Amendment XXV. In 1973, Vice President Spiro Agnew resigned. President Richard Nixon nominated Gerald Ford to the Vice Presidency, and Congress confirmed him.

The following year, 1974, President Nixon resigned. This meant that Gerald Ford would ascend to the Presidency, allowing him to select a nominee for Vice President to fill his now-vacant office. He selected Norman Rockefeller, who was also confirmed by the Congress. This situation resulted in both a President and a Vice President who were not elected in a general election by the Electoral College.

Elections are essential to the American system of governance: They allow the people to select their own leaders. But, on the rare occasion that these elected leaders cannot perform their duties, Amendment XXV prescribes how new leadership will take charge.

Amendment XXV, Section 2, ensures that the people are at least represented in the selection of this new leadership; the requirement of the new Vice President’s confirmation by Congress means that Members of the House and Senate – the representatives of the people – can check the power of the executive in making this new appointment.

This Section of Amendment XXV serves the important purpose of maintaining the offices of President and Vice President in a manner consistent with government for, of, and by the people.

Hadley Heath is a Senior Policy Analyst at the Independent Women’s Forum.

June 6, 2012

Essay #78

June 6, 2012/0 Comments/by Janine Turner

Amendment XXV, Section 1

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XXV, Hadley Heath Manning 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article II, Constitutional Amendment XXV, Constitutional Amendment XXV, Hadley Heath Manning, The Constitution of the United States of America

Guest Essayist: Hadley Heath, Senior Policy Analyst at the Independent Women's Forum

http://vimeo.com/43441510

Amendment XXV, Section 1:

In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

The 25^th Amendment was ratified in 1967 to clarify the Presidential line of succession established in Article II of the Constitution. For the sake of national security, and to avoid the turmoil of contested authority – with which the Founders were familiar after a revolutionary war – the new nation established a clear, indisputable contingency plan in the case of a Presidential death, resignation, or removal from office.

This provision in the Constitution points to the underlying idea that America’s destiny does not live or die with one person or one leader, but that she is always ready to continue thriving, even in the face of a national tragedy or crisis.

Fully nine U.S. Vice Presidents have come to the office of President in this way – eight because of the death of a President. One occasion, the resignation of President Richard Nixon, resulted in Vice President Gerald Ford taking the office of President in 1974. This has also been the only such occasion (of a Vice President ascending to the office of President) that occurred after the ratification of Amendment XXV.

Previous to this Amendment, the nation looked to Article II, Clause 6 for guidance. This clause states that in case of a Presidential disqualification or death, the “powers and duties” of the President will devolve to the Vice President. However, the language of this clause left unclear whether the Vice President would indeed become the next President, or if he would simply execute the duties of the office until a new President could be elected.

Precedent resolved this controversy, when the first Presidential death occurred in 1841. President William Henry Harrison died in office, and Vice President John Tyler took the oath of office to succeed him as President.

Amendment XXV finally clarified in supreme Constitutional law that the successor to the office of President would indeed become President, not simply become “acting President.”

Because they are established as first in line for succession, the Vice Presidents of the United States are subject to the same eligibility requirements as Presidents. According to Article II of the Constitution, these requirements are that the person be a natural-born citizen, at least 35 years old, and have spent at least 14 years residing in the U.S.

The Constitution gives Congress the authority to further define the line of succession. The Presidential Line of Succession Act of 1947 established that the next successors would be the Speaker of the House of Representatives, the President Pro Tempore of the Senate, followed by the members of the Presidential Cabinet in order of their department’s establishment.

The 25^th Amendment – along with Article II of the Constitution and the Presidential Line of Succession Act – make provision for the United States to have continuous leadership, even in the event of the disqualification or death of the national leader. This important establishment, in law, is meant to guarantee a peaceful and seamless transition.

So far in our history, although the occasions have been rare, this part of our government’s structure has provided new leadership in the face of national tragedy and hardship. This clearly serves to underscore the American idea that the future of our nation is not in the hands of one man or one executive, but that as a people we’ve consented to the leadership of duly elected and vetted leaders, as designed by the Constitution.

Hadley Heath is a Senior Policy Analyst at the Independent Women’s Forum.

June 5, 2012

Essay #77

June 4, 2012/0 Comments/by Janine Turner

Amendment XXIV, Section 2

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XXIV, Joerg W. Knipprath 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article I, Article V, Constitutional Amendment XIV, Constitutional Amendment XV, Constitutional Amendment XvIX, Constitutional Amendment XXIV, Joerg W. Knipprath, The Constitution of the United States of America

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

http://vimeo.com/43382879

Amendment XXIV:

1: The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax.

2: The Congress shall have power to enforce this article by appropriate legislation.

A poll tax is an ancient device to collect money. It is a tax on persons rather than property or activity. As a regressive tax from the standpoint of wealth, it is often unpopular if the amount at issue is steep. But it can also be unpopular for other reasons.

In the United States, such a capitation tax was assessed in many states on the privilege of voting. Amounts and methods varied. One of the last poll taxes of this type, that of Virginia, was just $1.50 per person at the time it was struck down by the Supreme Court in 1966. That is not more than $10.00 in current money, hardly an exorbitant price, except for the truly destitute. But the problem was more than the amount. It was the manner of administration.

The common practice was to require that the tax be paid at each election, and that a potential voter demonstrate that he had paid the tax for a specified number of previous elections. If not, those arrearages had to be paid to register to vote in the ongoing election. The effect of the tax was to hit many lower income groups, but primarily Southern blacks, whose participation in elections dropped to less than 5% during the first part of the 20^th century. To be sure, that low rate of participation was not entirely due to the poll tax, but that tax was a particular manifestation of a regime of suppression of political participation by blacks.

The 15^th Amendment had been adopted to prohibit overt racial discrimination in qualifying to vote. However, the poll tax and other restrictive measures, such as literacy tests, were not, strictly speaking, race-based, so they did not come within the 15^th Amendment. A different solution was needed, according to those who saw the poll tax as intolerable. Literacy tests, if fairly administered (though often they were not), had a clear connection to the responsible exercise of the voting franchise that poll taxes lacked. After all, especially in those years before the electronic media, having a literate electorate was a significant community interest. Republican theory has traditionally looked to having those with the most interest and highest stake take the leading role in the community. Literacy provided a foundation to acquire the knowledge needed for a wise and effective participation in res publica. Poll taxes, on the other hand, are just revenue-raising devices, and, since they are applied equally per capita, they are removed from republican considerations of having those with the highest economic stake in society direct the political affairs of that society.

Opposition to the poll tax increased during the 1930s and President Roosevelt briefly attacked it in 1938. But FDR had to be mindful of the powerful influence of Southern Democratic barons in the Senate and the crucial role that the Southern states played in the politically dominant Democratic coalition. By the 1940s, the House of Representatives passed legislation to outlaw poll taxes but a Southern-led filibuster in the Senate killed the effort. By 1944, the Republican Party platform and President Roosevelt (though not his party’s platform) called for the tax’s abolition.

Eventually, qualms arose about using ordinary legislation to block the tax. Article I of the Constitution places principal control over voter qualification in the hands of the states. The 15^th Amendment (race) and the 19^th Amendment (sex) had limited the states’ discretion. To many—even opponents of the poll tax—the message from those amendments was that limitations on state power had to proceed through specific constitutional amendment. The opinions issued by the Supreme Court seemed to echo those sentiments, as the Court had accepted the predominant role of the states in that area even when it struck down the racially-discriminatory “white primaries” in the South in the 1940s and 1950s. The debate allowed Southern supporters of the poll tax to characterize the controversy as a states’ rights issue.

The effort to adopt a constitutional amendment to ban poll taxes dragged on through the 1950s into the 1960s, even as support for the tax grew weaker. Literacy tests remained widespread, even in the North. But Southern states, too, abandoned poll taxes until, in 1960, only 5 states retained them. Finally, in March, 1962, the Senate approved what would become the 24^th Amendment. This time, no Southern filibuster occurred. In August of that year, the House concurred. The concerns over state sovereignty remained, in that the amendment proposed to abolish poll taxes only in federal elections, leaving states and municipalities free to continue the practice for their internal affairs.

When the amendment was sent out to the states, every state of the old Confederacy, but two, refused to participate, still portraying the matter as a states’ rights issue. The two exceptions were Mississippi, which formally rejected the amendment, and Tennessee, which approved it. Outside the South, every state adopted the amendment between November, 1962, and March, 1964, except Arizona and Wyoming.

But, as mentioned, states were still free to adopt poll taxes for local elections. This apparently was a call to action for the Supreme Court. Casting constitutional caution to the wind, the Court in Harper v. Virginia Board of Elections in 1966 struck down the Virginia poll tax for state and local elections. Creating an odd alloy of different constitutional concepts, due process and equal protection, Justice William Douglas announced for the majority that poll taxes impermissibly discriminated on the basis of wealth and/or improperly burdened a fundamental right to vote. In any event, the opinion announced, the Virginia tax violated the 14^th Amendment.

The Court obviously was aware of the 24^th Amendment, so recently adopted. But the learned justices must have found the effort to amend the Constitution through the proper Article V process unsatisfying. It appears that the 24^th Amendment, having been limited to federal elections to avoid further intrusion into state sovereignty over voting qualifications, was not constitutionally rigorous enough. The Constitution, as it thus stood, was unconstitutional in the eyes of the Supreme Solomons. If the Court was right in Harper, members of Congress and of the state legislatures could have saved themselves much trouble and just used the 14^th Amendment to declare all poll taxes unconstitutional. Congress could have accomplished the goals of the 24^th Amendment, and more, just by passing a law to enforce these supposed rights protected under the 14^th Amendment.

Of course, traditionally the 14^th Amendment was not understood to provide direct restrictions on state control of voting qualifications. Otherwise, the 15^th Amendment, as it applies to states, would have been unnecessary. The Court had used the 15^th Amendment to strike down certain voting restrictions on race earlier in the 20^th century, and did not even begin to take gingerly steps towards the 14^th Amendment until striking down the “white primaries.”

Not much significance, other than as a symbol and a constitutional curiosity remains of Harper. The Court since then has repudiated the notion of wealth as a constitutionally “suspect” classification entitled to strict judicial scrutiny under the equal protection clause. As well, the notion of voting as a fundamental right protected under the due process clause, has had a checkered history.

Rights conceptually are “fundamental” if they do not depend on a political system for their existence; they are “pre-political” in the sense of the Anglo-American social contract construct that the Framers accepted. Freedom of speech and the right to carry arms for self-defense come to mind. Voting is an inherently political concept that does not exist outside a political commonwealth, and the scope of the voting privilege (that is the meaning of “franchise”) is, necessarily, a political accommodation. Even republics, never mind monarchies, have no uniform understanding of who may be qualified to vote. The great historical variety of arrangements of republican forms of government, and the inherently political nature of defining them, is one reason the Supreme Court has not officially involved itself in defining what is a republican form of government guaranteed under the Constitution.

A final word about the 24^th Amendment: Historically, many republics, including the states in our system, required voters to meet designated property qualifications, as a reflection of having a sufficient stake in the community to vote responsibly (and to pay for the cost of government). Strictly speaking, the 24^th Amendment does not forbid those. The Supreme Court has upheld property qualifications for voting for special governmental units, such as water districts. One wonders, whether the abolition of such qualifications, if they were required in all elections, would need a constitutional amendment today, or whether the Supreme Court would just wave the magic wand of the 14^th Amendment, as it did in Harper.

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

June 4, 2012

Essay #76

June 3, 2012/0 Comments/by Janine Turner

Amendment XXIV, Section 1

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XXIV, William C. Duncan 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XXIV, Constitutional Amendment XXIV, The Constitution of the United States of America, William C. Duncan

Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

Amendment XXIV, Section 1:

The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

In an effort to circumvent the Fifteenth Amendment’s requirement that the States not deprive a citizen of the right to vote based on race, in the decades from 1890 to 1910 some States began implementing various requirements which were purportedly neutral regarding race but which had the (intended) effect of preventing black citizens from voting. One of the requirements was a poll tax, a specific fee for voting that prevented the poor from voting. (Often the laws were written in a way that would allow white citizens to vote without paying the fee or implemented in this way, such as where a politician bought votes by paying poll taxes for the voters.)

As the moral wrongness of this kind of restriction became harder to deny, States began to remove some of these requirements. Some States had repealed their poll taxes by World War II and others removed them for soldiers in the 1940s. As the national government became more involved in promoting civil rights and ending racial discrimination in the 1950s, the number of states with poll taxes was down to five (Alabama, Arkansas, Mississippi, Texas, and Virginia).

In 1959, the report of the Commission on Civil Rights (created by the Civil Rights Act of 1957) suggested a national law to allow all Americans to vote subject only to age and residency requirements. One result was the proposal of an amendment to the Constitution to specifically prohibit the imposition of poll taxes. President John F. Kennedy supported the “uncontroversial” amendment. The lack of controversy stemmed from the fact that only five States had such taxes.

Federal courts had previously held poll taxes were not prohibited by the Constitution, so an amendment was necessary. Congress proposed the amendment in August 1962 and it was ratified less than a year and a half later in January 1964.

The Twenty-fourth Amendment only applied to federal elections but not long after its ratification, the U.S. Supreme Court ruled that poll taxes in State elections were unconstitutional because they discriminated against the poor. Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966) at http://scholar.google.com/scholar_case?case=10289081725638058283&q=harper+v.+virginia+state+board+of+elections&hl=en&as_sdt=2,45&as_vis=1.

Virginia passed a law which gave voters a choice between paying the poll tax “or filing a certificate of residence six months before the election.” Congressional Research Service, “Abolition of the Poll Tax” at http://www.gpo.gov/fdsys/pkg/GPO-CONAN-2002/pdf/GPO-CONAN-2002-9-25.pdf. The U.S. Supreme Court ruled this law conflicted with the new amendment because it created a significant barrier to voting as the only alternative to paying the poll tax. Harman v. Forssenius, 380 U.S. 528 (1965) at http://scholar.google.com/scholar_case?case=1269987767365696368&q=harman+v.+forssenius&hl=en&as_sdt=2,45&as_vis=1.

Additional source: Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States (Basic Books: 2000)

William C. Duncan is director of the Marriage Law Foundation (www.marriagelawfoundation.org). He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.

June 1, 2012

Essay #75

May 31, 2012/0 Comments/by Janine Turner

Amendment XXIII

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XXIII, Julia Shaw 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XXIII, Constitutional Amendment XXIII, Federalist No. 43, Julia Shaw

Guest Essayist: Julia Shaw, Research Associate and Program Manager in the B. Kenneth Simon Center for Principles and Politics at the Heritage Foundation

Amendment XXIII:

The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct: A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

The 23^rd Amendment

The Twenty-third Amendment grants residents of the District of Columbia the electoral votes to participate in the election for the country’s President and Vice President. From 1800 until 1960, when Congress passed the Twenty-third Amendment, residents of the District of Columbia were not constitutionally able to participate in presidential elections. Residents voted for President for the first time in 1964 after the states ratified the Twenty-third Amendment. To understand the significance of this Amendment, one must first understand the Founders’ purpose in creating District of Columbia.

The Founders designed the District of Columbia to protect the federal government. Since the federal government exercises certain powers over state governments, having the capital city located in one particular state would give that state tremendous influence over the federal government. Allowing one state to control the federal government would violate the principle of federalism. Here’s how James explained it in Federalist No. 43:

The indispensable necessity of complete authority at the seat of Government carries its own evidence with it. It is a power exercised by every Legislature of the Union, I might say of the world, by virtue of its general supremacy. Without it, not only the public authority might be insulted and its proceedings be interrupted, with impunity; but a dependence of the members of the general Government, on the State comprehending the seat of the Government for protection in the exercise of their duty, might bring on the national councils an imputation of awe or influence, equally dishonorable to the Government, and dissatisfactory to the other members of the confederacy.

The Twenty-third Amendment gives D.C. a voice in selecting the president and vice president through the Electoral College, but clarifies that D.C. is not a state: D.C. receives the number of electoral votes “equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State.”

The Amendment also empowers Congress to decide the method by which the District selects presidential electors. This is comparable to the power given to state legislatures. Currently, the District of Columbia has a maximum of three electoral votes, regardless of population. Congress chose a winner-take-all system (the same system used in every state but Maine and Nebraska) to choose presidential electors, meaning that the candidate who receives the majority of votes in a popular vote receives all of the District’s electors.

The Twenty-third Amendment underscores the Founders’ wisdom in designing the federal city. The Founders wisely crafted a federal district for the seat of government. They made the capital independent from, and therefore not subservient to, the authority of a particular state.

Julia Shaw is Research Associate and Program Manager in the B. Kenneth Simon Center for Principles and Politics at the Heritage Foundation.

May 31, 2012

Essay #74

May 30, 2012/2 Comments/by Janine Turner

Amendment XXII

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XXII, James D. Best 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XXII, Constitutional Amendment XXII, James D. Best, The Constitution of the United States of America

Guest Essayist: James D. Best, author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, and Principled Action, Lessons from the Origins of the American Republic

Amendment XXII:

1: No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President, when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.

2: This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.

Amendment XXII: Reform or Revision?

Until 1940, presidents honored the George Washington precedent of serving for only two terms. In that year Franklin Roosevelt defied tradition and won a third term, then later a fourth term. Roosevelt died in office in 1945. Presidential term limits became a huge issue in the 1946 watershed election, and a new generation swept into office, many of them returning soldiers. The new congress was young, idealistic, and committed to change. One of their first priorities was the XXII Amendment, which was ratified by the states in early 1951. Since then, we have had eleven presidents, but so far only four have been restricted from another term by this amendment.

There have been many proposals to reform or revise the XXII Amendment. Congress has repeatedly submitted bills to repeal the amendment, but none has ever made it out of committee. Some have proposed that the restriction be revised to consecutive terms, and others want a super-majority of both houses to have the ability to override the restriction.

The XXII Amendment ought to be left in place without revision.

The president is often called the most powerful person in the world. To a great extent, that is true. Over the centuries, presidential power has increased enormously, both domestically and internationally. This was not the intent of the delegates to the Constitutional Convention. The president was supposed to be a co-equal partner in a three-branch government focused on the needs of Americans.

The greatest increase in presidential power came from the growth in government. As the national government grew, from around 4 percent of gross domestic product in the 1920s to 25 percent in 2010, presidential power grew exponentially because all but a smidgeon of that money ended up in the executive branch. The bigger the national government grows, the more powerful the executive is as an individual.

In United States v. Curtiss-Wright Export Corp (1936), the Supreme Court ruled that the president has almost unrestricted powers in international affairs. The Court said that this singular authority over foreign affairs is “the very delicate, plenary and exclusive power of the President as sole organ of the federal government in the field of international relations—a power which does not require as a basis for its exercise an act of Congress.” One of the few exceptions to this exclusive power is Senate approval of treaties.

This ruling by itself did not make the president the most powerful person on the world stage. Three other developments made that happen. The first was that the American free enterprise system built the largest, most robust economy in the world. The second development was the vacuum of power after World War II. The Soviets were dangerous, and their ambitions for empire threatened the world. Someone had to step into the breach. The third development was the devastating power and global reach of modern weaponry.

Both inside and outside the United States, the president is enormously powerful. The Framers of the Constitution feared concentrated power, and they were especially fearful of concentrated power in single person. The Framers would have immediately searched for ways to curtail this power, and term limits would be at the forefront of their consideration. We need an ironclad XXII Amendment to bolster the idea that this power is only on loan for a limited period.

Power corrupts. Let us hope it takes longer than eight years.

James D. Best is the author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, and Principled Action, Lessons from the Origins of the American Republic.

May 30, 2012

Essay #73

May 29, 2012/4 Comments/by Janine Turner

Amendment XXII

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XXII, Michaela Goertzen 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, 17. Topics, Constitutional Amendment XXII, Constitutional Amendment XXII, Declaration of Independence, Declaration of Independence, Michaela Goertzen

Amendment XXII:

1: No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President, when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.

2: This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.

A Terminal Debate

“No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of President more than once…”

Presidential term limits in America are conventional, not controversial. They are an accepted fact of today’s executive cycle – one of the few things in politics that doesn’t provoke divided public comment. Yet, a brief review of executive eligibility reveals that the issue has not gone uncontested.

As I considered the political philosophy behind this amendment, I had to confront the tension between the precedent set by George Washington (he reluctantly accepted a second presidential term, and declined a third) and the Federalist Papers’ appeal for indefinite eligibility:

“Nothing appears more plausible at first sight, nor more ill-founded upon close inspection, than a scheme which in relation to the present point has had some respectable advocates – I mean that of continuing the chief magistrate in office for a certain time, and then excluding him from it, either for a limited period or forever after.” (Federalist #72)

The Federalist Papers are pretty much the gold standard in analyzing human motivation/selfish ambition and how it can be expected to play out in political office; so when Alexander Hamilton says that term limits could not be more ill-founded, I am prone to believe him.

He goes on to enumerate a convincing list of the disadvantages of putting an expiration date on a qualified president – namely, that term-limits discourage the accountability of the man and the stability of the office. Furthermore, he argues that it is counterintuitive to drain the collected wisdom and experience from the office of the president, while that president remains the popular choice.

But for all of Hamilton’s logic, when George Washington – the first practitioner of American political principle – voluntarily retired his post after eight years, I am inclined to respect that, as well. There was nothing to withhold him, but Mt. Vernon and principle. Given Washington’s outstanding record of public service, I am more inclined to believe it was principle.

One of the most central principles of our republic – underscored in the Declaration of Independence – was the rejection of tyranny. Washington demonstrated that a self-effacing executive was just as important as separation of power and an educated public to guarding against it.

FDR was the only president to breach the unspoken, two-term rule by winning four consecutive elections. A few years after, the 22^nd amendment was ratified to make it a written rule. The occasional congressman will try to repeal it, but so far their legislation has never made it out of committee. Subsequently, both Presidents Reagan and Clinton could have won third terms, but, per the amendment, none have thrice been president. Still, the philosophy of the Federalists has not undone the precedent of the founder.

Michaela Goertzen is a speechwriter at the office of Alaska Lt. Governor Mead Treadwell

May 29, 2012

Essay #72

May 28, 2012/1 Comment/by Janine Turner

Amendment XXI, Section 2

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XVII, The Honorable Frank M. Reilly 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XVIII, Constitutional Amendment XVIII, Constitutional Amendment XXI, Constitutional Amendment XXI, Frank M. Reilly

Guest Essayist: Frank M. Reilly, Esq., a partner at Potts & Reilly, L.L.P

Amendment XXI, Section 2:

Section 2: The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

The 21^st Amendment is the only amendment to the Constitution which repeals another amendment. The amendment which it repealed, the 18^th, became effective in 1920 and it prohibited

“the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States”

and its territories. The passage of the 18^th Amendment, and the subsequent enactment by Congress of its enabling legislation, named the Volstead Act, began a period known as the Prohibition. The Prohibition era lasted a little over 13 years until the states ratified the 21^st Amendment in 1933.

The framers of the 18^th Amendment, encouraged by the strong temperance movement and the Anti-Saloon League, hoped that a national prohibition on the use of alcoholic beverages would make the nation a better, and more moral place. President Calvin Coolidge, who served from 1923 to 1929 as our nation’s 30^th president, called Prohibition the “greatest social experiment of modern times.” Others, such as former President William Howard Taft, who had served as president from 1909 to 1913 and who served as Chief Justice of the U.S. Supreme Court during much of the Prohibition period, predicted that

“the business of manufacturing alcohol, liquor and beer will go out of the hands of law-abiding citizens and will be transferred to the quasi-criminal classes.”

Taft’s prediction ultimately came true, and many entities that previously made alcoholic beverages, as well as new operations, clandestinely (and sometimes openly) violated the law. The fulfillment of Taft’s prediction, and the other unintended consequences of the Prohibition, was a cruel irony for those who wanted Prohibition to foster a more chaste nation.

Instead of reducing crime and improving the national morality, crime and immorality significantly increased during Prohibition. “Speakeasies,” bars quietly operating in violation of the law, sprang up in larger cities, and in contrast with the swinging-door saloons they replaced, they welcomed the women that began to frequent the new bars. It is said that it became popular within the national culture to violate the law, and a whole class of ordinary citizens became criminals. Private stills produced barrels and barrels of moonshine, some operations were small and served a family or a small group of people; others were larger operations operated by the underworld. Bootlegging gangsters, such as Al Capone, had their heyday. Similar to the illicit drug imports today, international criminals worked hard to bring whiskey, rum and other spirits into the country, more often succeeding than failing at their tasks.

Others found clever ways around the Prohibition. For example, the Napa Valley vineyards of the Beringer family made and sold legal “raisin cakes” from dried grapes, and packaged them with warning labels that said “Caution: will ferment and turn into wine.” Sales of sacramental wine, used in church services to celebrate communion and which was exempt from the Prohibition laws, skyrocketed, and many assumed that some priests and rabbis of the time were bootlegging on the side. People with doctor’s prescriptions were able to purchase 1 pint of spirits per week for “medicinal purposes.” While these exemptions in the law were used for legitimate purposes, organized crime syndicates frequently took advantage of these exemptions and cooked their books to use the legitimate services as front operations to bootlegging.

The Prohibition ushered in at least two additions to popular culture: NASCAR races and the cocktail. In the southern United States, some bootleggers retrofitted cars to run loads of whiskey on a fixed fee, per case basis. These stock cars were built with a heavy duty chassis so that revenue agents would not see an overloaded car, and a souped up engine so the agents could not catch it. These modified stock cars led to the genesis of the National Association for Stock Car Auto Racing after races by moonshine runners became popular in the south. Finally, the cocktail – an alcoholic spirit mixed with a sweet or strongly flavored mixer – was invented to cover up the bad taste of homemade gin or whiskey.

Support for Prohibition began to wither with increased public recognition of: Prohibition’s failures; costly, corrupt and inefficient enforcement efforts; a recognition by some Prohibitionist business leaders that taxing liquor could reduce the impact of rising income taxes; the prospect of new jobs that could be created with a newly legal liquor industry; and finally, the political and economic distractions of the Great Depression. In 1932, Congress passed a resolution to send the 21^st Amendment to the states for ratification, and within a year two-thirds of the states ratified the amendment. The law began to fracture even before the amendment became effective. In the spring of 1933, prior to the ratification, newly elected President Franklin D. Roosevelt asked Congress to repeal portions of the Volstead Act to allow the brewing of real beer (“near beer” had been allowed under Prohibition; it tasted like real beer but had an extremely low alcohol content). After the 21^st Amendment became effective, the remainder of the federal Prohibition laws were repealed, and significant taxes were added to the sale of liquor.

Frank M. Reilly, Esq., is a partner at Potts & Reilly, L.L.P., Attorneys & Counselors in Austin and Horseshoe Bay, Texas

May 28, 2012

Essay #71

May 28, 2012/0 Comments/by Janine Turner

Amendment XXI, Section 1

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XXI, Lawrence J. Spiwak 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article V, Constitutional Amendment II, Constitutional Amendment II, Constitutional Amendment XXI, Constitutional Amendment XXI, Lawrence J. Spiwak, The Constitution of the United States of America

Guest Essayist: Lawrence J. Spiwak, President of the Phoenix Center for Advanced Legal and Economic Public Policy Studies

Amendment XXI, Section 1:

The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

Ending Prohibition: Are there Lessons to be Learned?

In this essay, my intention is not to focus on the fact that the 21^st Amendment repealed Prohibition, but to explore briefly what lessons we can learn from the experience.

To quickly summarize the facts, the 18^th Amendment was enacted in 1919, which prohibited the “manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States.” However, as detailed in the excellent Ken Burns documentary, Mark Thornton’s seminal book entitled The Economics of Prohibition, and elsewhere, despite its altruistic intentions, Prohibition didn’t decrease alcohol abuse but increased it; Prohibition didn’t eliminate crime but created it; and Prohibition certainly didn’t increase prosperity but robbed the treasury of taxes. As a result, Prohibition was repealed in 1933 by the 21^st Amendment. (Significantly, because of fear of grassroots political pressure from the temperance movement, the 21^st Amendment is, thus far in American history, the only constitutional amendment ratified by state conventions rather than by the state legislatures.)

Given this debacle, I think there are at least a few lessons I think we can learn:

To begin, Prohibition provides an excellent example—albeit a bit dysfunctional one—of the amendment process spelled out by Article 5 at work, in that we as a society were able to self-correct a policy gone horribly wrong. Indeed, although I’m sure Prohibition was enacted with the best of intentions, the Prohibition experience nonetheless epitomizes the “law of unintended consequences.”

That said, here is an interesting question to ponder: let us assume that rather than elevate Prohibition to the full fledged level of a Constitutional Amendment, we only went so far as to pass a law that prohibited the “manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States.” Would it have been easier for us to self-correct Prohibition via either a new law through the legislative process or a Constitutional challenge in the courts? Probably. As a result, Prohibition also teaches us to exercise some degree of caution and careful thought before we seek to undertake another effort to amend the Constitution.

Yet, but perhaps most importantly, Prohibition forces us to recognize the old maxim that if we are to be a society of laws, then the public must believe in the legitimacy of the law. Indeed, in undertaking research for this essay, I came across a telling quote by wealthy industrialist John D. Rockefeller, Jr. from 1932, whereby he wrote:

“When Prohibition was introduced, I hoped that it would be widely supported by public opinion and the day would soon come when the evil effects of alcohol would be recognized. I have slowly and reluctantly come to believe that this has not been the result. Instead, drinking has generally increased; the speakeasy has replaced the saloon; a vast army of lawbreakers has appeared; many of our best citizens have openly ignored Prohibition; respect for the law has been greatly lessened; and crime has increased to a level never seen before.”

So what is it about Prohibition that caused many Americans literally to lose faith with their own Constitution? Certainly, we have a lot of laws that constrain personal behavior (e.g., prohibitions against murder; prohibitions against fraud and theft; prohibitions against treason), but everybody generally accepts these constraints as necessary to ensure a functioning society. What was it about Prohibition that, to use Mr. Rockefeller’s words, “created a vast army of lawbreakers…”?

Although I’m sure different people can provide different answers to this question, I come out with the view that Prohibition failed because Americans simply came to realize that the government had no business sticking its nose into their personal lives and interfering with their proverbial “pursuit of happiness.” Thus, because many Americans viewed the law as violating their basic civil liberties, they saw no reason to comply with the law.

To illustrate my point, let’s take the following extreme hypothetical example. As many readers of Constituting America are well aware, American’s cherish their Second Amendment right to bear arms. Now, let’s assume that a huge “firearms temperance” movement sweeps the nation and, as a result, a new Constitutional amendment is enacted that repeals the Second Amendment and prohibits the “manufacture, sale, or transportation of firearms within, the importation thereof into, or the exportation thereof from the United States.” In such a hypothetical case, while law abiding citizens could no longer own guns to hunt or to protect their families, do we honestly think that gun-related crimes would disappear or that a vibrant black market for firearms would not instantly blossom? Of course not. In such a case, I have no doubt that after a few years of many unintended consequences, there would be a forceful movement to repeal my hypothetical amendment too.

In sum, Prohibition teaches us that while it is possible to correct bad policy decisions, any time we seek to elevate an issue to the level of a Constitutional Amendment we should do so with both great discipline and respect for individual liberty. If we do not learn the lessons from Prohibition, however, then we are doomed to repeat them in the future.

Lawrence J. Spiwak is president of the Phoenix Center for Advanced Legal and Economic Public Policy Studies (www.phoenix‑center.org), a non‑profit research organization based in Washington, DC. He is a member in good standing in the bars of New York, Massachusetts and the District of Columbia. The views expressed in this article do not represent the views of the Phoenix Center or its staff.

May 25, 2012

Essay #70

May 24, 2012/2 Comments/by Janine Turner

Amendment XX, Section 4

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XX, William C. Duncan 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XX, Constitutional Amendment XX, William C. Duncan

Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

Amendment XX, Section 4:

The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

The Twentieth Amendment (ratified in 1933) addresses two issues—lame duck Congresses and presidential succession. In regards to the latter, the amendment provides for a number of different eventualities with the basic theme being an attempt “to smooth out additional succession wrinkles.” Akhil Reed Amar, “Presidents, Vice Presidents, and Death: Closing the Constitution’s Succession Gap” Arkansas Law Review, vol. 48, p. 215 (1995).

Section 4 addresses a longshot eventuality but one that is certainly not inconceivable. For this section to be invoked, two things must happen. First, a presidential election would have to produce no clear winner because none of the candidates had an Electoral College majority. In this circumstance, the Constitution empowers the House of Representatives to determine the winner. Second, one of the major candidates would have to die before the election controversy was resolved. The second has never happened but the first has occurred twice in our nation’s history.

In 1824, four candidates divided the Electoral College votes with Andrew Jackson securing the most at 99. Since none had a majority, the House of Representatives chose from the top three candidates (as required by the Twelfth Amendment) and essentially between Jackson and John Quincy Adams (who received 84 Electoral College votes). The House selected Adams 13-11 (voting was by state delegation). See John Sacher, “The 1824 Election: The Corrupt Bargain?” Franklin’s Opus, February 24, 2012 at http://franklinsopus.org/2012/02/the-1824-election-the-corrupt-bargain/.

In 1876, Samuel Tilden won the popular vote for president with 51% to 48% for Rutherford Hayes. Tilden, however, received only 184 Electoral College votes, one shy of the needed majority. Twenty Electoral College votes from four States were in dispute; precisely the number Hayes would need to become president. Congress created an independent Electoral Commission with fifteen members—five senators, five representatives and five justices of the U.S. Supreme Court. The Commission met in the Supreme Court’s chambers and heard arguments about the various state Electoral College votes. The Commission voted to give Florida’s votes to Hayes 8-7. The legislation creating the Commission required both houses of Congress to reject Commission rulings if the rulings were to be invalidated. Thus, while the House rejected the Commission rulings on Florida, and later Louisiana, Oregon and South Carolina, since the Senate voted to uphold them, the Commission’s decisions stood and Hayes was awarded all of the disputed Electoral College votes making him president. A last minute filibuster by House Democrats failed and in the early morning of March 2, 1877 Hayes was awarded the presidency with a one-vote Electoral College majority. The inauguration was held three days later. See “Finding Precedent: Hayes v. Tilden: The Electoral College Controversy of 1876-1877” Harper’s Weekly at http://elections.harpweek.com/09Ver2Controversy/Overview-1.htm.

Assuming this scenario was to occur again and one of the candidates tragically dies, section 4 empowers Congress to enact legislation that would determine what should happen.

William C. Duncan is director of the Marriage Law Foundation (www.marriagelawfoundation.org). He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.

May 24, 2012

Essay #69

May 23, 2012/0 Comments/by Janine Turner

Amendment XX, Section 3

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XX, David J. Bobb, Ph.D. 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XX, Constitutional Amendment XX, Constitutional Amendment XXV, Constitutional Amendment XXV, David J. Bobb PhD, The Constitution of the United States of America

Guest Essayist: David J. Bobb, Director, Hillsdale College Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship in Washington, D.C., and lecturer in politics

http://vimeo.com/42675773

Amendment XX, Section 3:

If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified, and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

On January 6, 2001, Vice President Al Gore presided over his own political funeral. On that day, a joint session of Congress certified the final Electoral College vote that put George W. Bush into the White House. Vice President Gore had the unenviable task of wielding the gavel at the certification of his Republican foe’s victory.

Imagine now not a political funeral at the end of a presidential election, but an actual funeral—for a president-elect—in between the November election and the January certification of electoral votes. That’s the main scenario the third section of the Twentieth Amendment is designed to address.

Largely unrelated to the first two sections of the Twentieth Amendment, which shortened the time of the lame-duck presidency, the third section of the amendment has prompted, it seems, more unanswered hypothetical scenarios than it has answered. Although it sought to address gaps left by previous efforts to address presidential secession, this section (and the fourth that follows) still leaves much to constitutional and legislative conjecture.

As legal scholar Akhil Amar pointed out in Senate testimony in 1994, the main problem with the Twentieth Amendment, left unanswered by the Twenty-Fifth or any legislation on the matter, is that “it is not self-evident that a person who dies before the official counting of electoral votes in Congress is formally the President elect.” The very term “President elect” is left ambiguous, then, with the result, according to Amar, of a possible confusion about the electoral status of the decedent.

What’s worse, Amar further wonders, is what would happen if the presumed presidential election victor dies before the Electoral College meets in December? “What is a faithful elector to do here?” Amar queries. The elector gets no guidance from the Constitution, although Congress did refuse to count three electoral votes cast for candidate Horace Greeley, who passed away after he earned the votes but before the College had met.

Push the dismal early death scenario even earlier, and the problems mount. What if a candidate perishes just before the November election? Or what would happen if both president-elect and vice-president elect are simultaneously slain, in advance of the congressional certification of the electoral count?

The scenarios are endless, and while the Presidential Succession Act of 1947 tried to plug holes that existed, there are numerous scholars today that are convinced that more legislative fixes are still required. In one notable recent move, the Continuity of Government Commission—a joint effort of the American Enterprise Institute and the Brookings Institution—offered suggested remedies to problems in presidential succession that since their 2009 proposal have not been adopted by Congress.

Despite the questions that abound about this amendment’s third section, there exists a notable irony that almost came to fruition just after the passage of the Twentieth Amendment. As the Continuity of Government Commission’s report details, had President-elect Franklin D. Roosevelt not escaped an assassin’s bullet that claimed the life of the mayor of Chicago, the Vice President-elect, John Nance Garner, would have assumed office under the terms of the Twentieth Amendment’s third section.

David J. Bobb is director of the Hillsdale College Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship, in Washington, D.C., and lecturer in politics.

May 23, 2012

Essay #68

May 22, 2012/1 Comment/by Janine Turner

Amendment XX, Section 2

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XX, Marc S. Lampkin 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XX, Constitutional Amendment XX, Marc S. Lampkin, The Articles of Confederation, The Constitution of the United States of America

Guest Essayist: Marc Lampkin, Shareholder at Brownstein Hyatt Farber Schreck and graduate of the Boston College Law School

Amendment XX, Section 2:

The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3^rd day of January, unless they shall by law appoint a different day.

The XXth Amendment is fairly straightforward. Often referred to as the “Lame Duck Amendment” the XXth Amendment’s purpose is to update gaps in the original draft of the Constitution setting the time and dates for the Congress and the President — in particular the amendment changed when terms of elected federal officials begin and end in order to line their terms beginning and ending with the election process.

The amendment’s purpose is to limit the chances that when Congress meets the legislators casting the votes were duly elected, rather than retirees or those who had failed to win re-election.

The primary sponsor of the XXth Amendment was Senator George W. Norris of Nebraska. Senator Norris believed it to be his greatest legislative achievement. It was passed on March 2, 1932.

When the Constitution was originally ratified, the outgoing Congress under the Articles of Confederation had set March 4, 1789 as the date for which the new federal government would begin. On an ongoing basis the Constitution provided that the Congressional session would begin on the first Monday in December.

In addition, the second session would begin a month after the election and continue until March 3. This had the effect of allowing Members to serve during the second session even if they had retired, were defeated, or simply had not chosen to run for re-election.

Initially the schedule made sense as it accommodated the travel and weather difficulties that faced the new nation. At the time of the founding, roads were bad and travel long distances was often difficult. Having four months from Election Day to the start of the session seemed prudent. However, over time, the improvement in road building and the use of trains and boats made such a delay unnecessary.

In addition, the time delay had other pernicious effects. When President Roosevelt was first elected he was required to wait four months before he could begin any steps to respond to the Great Depression. Many across the nation believed that the provisions in the Constitution setting the dates for a 19^th century world were particularly unhelpful in the 20^th century.

This led to the push for passage of the XXth Amendment.

In addition to limiting “lame-ducks” from setting policy at the national level, the XXth Amendment also means that there was a shorter period between the election and the convening of the new Congress and that the outgoing President would have time to consider the outgoing Congress’ legislation.

Marc Lampkin is a Shareholder at Brownstein Hyatt Farber Schreck and is a graduate of the Boston College Law School

May 22, 2012

Essay #67

May 21, 2012/3 Comments/by Janine Turner

Amendment XX, Section 1

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XX, The Honorable Frank M. Reilly 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XII, Constitutional Amendment XXII, Frank M. Reilly, Marbury v. Madison by John Marshall, The Constitution of the United States of America

Guest Essayist: Frank M. Reilly, Esq., a partner at Potts & Reilly, L.L.P.

http://vimeo.com/42528708

Amendment XX, Section 1:

The terms of the President and Vice President shall end at noon on the 20^th day of January, and the terms of Senators and Representatives at noon on the 3^d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

Terms of the President and Congress

Prior to the 20^th Amendment, the Constitution did not specify the beginning and ending dates of the terms of the President, Vice President, and Congress. The Constitution defined the length of the terms of the various offices, and Congress ultimately enacted laws to set March 4 as the term starting date of all elected federal officeholders. Our nation’s earliest federal elections were held prior to December of each even numbered year, and in 1845, Congress set the first Tuesday following the first Monday of November of each even numbered year as a uniform federal election date. As a result, officeholders remained in office after the November elections for about four months until the 4^th of March of the following year. During the 18^th century, such officeholders began to be called ̎lame ducks ̎.

From the late 18^th century and into the 20^th century, the lack of efficient and speedy transportation made the election process necessarily slow. Today’s ability to almost instantaneously report election returns did not exist in the days without electricity, telephones, electronic voting devices and the Internet. It could take days or weeks of horseback travel by electors from remote areas of the country to assemble to cast that state’s electoral votes for President and Vice President. It could take as long for members of Congress and the elected executives to then travel to Washington to take office. Thus, the four month ̎lame duck ̎ period between election day and the start of new terms of newly elected (or re-elected) officeholders was a practical necessity.

Sometimes either Congress or the President took actions during those ̎lame duck ̎ periods that the public, or incoming officeholders, felt were unfair and that should have waited until the newly elected representatives could take office. For example, the famous case of Marbury vs. Madison, in which the U.S. Supreme Court claimed its authority to interpret the Constitution, was a dispute over a staff appointment made by President John Adams after President Thomas Jefferson was elected, but before Jefferson took office.

Transportation and technology advances ultimately reduced the need for a long transition period after an election. Further, public concern about legislation enacted during ̎lame duck ̎ sessions of Congress, motivated Nebraska Senator George W. Norris to propose the 20^th Amendment. After over a decade of debate, and immediately preceding Franklin D. Roosevelt’s first election as the 32^nd president, Congress passed the resolution proposing the amendment on March 2, 1932. The states ratified the amendment by January 23, 1933, the shortest period of time between a congressional proposal of an amendment and its ratification by three-fourths of the states.

The amendment, rather than a change in the law by Congress, was necessary because it shortened the terms of incumbent officeholders, the length of whose terms the Constitution had been specifically set. The amendment shortened the ̎lame duck ̎ period by half to about 2 months, with Congress taking office on January 3 and the President taking office on January 20 after each of their elections. The first president affected by this change was Franklin D. Roosevelt following his second election in 1936.

Legislative history shows that the purpose of the 20^th Amendment was to not only shorten the 4 month ̎lame duck ̎ period, but also to prevent ̎lame duck ̎ sessions of Congress. However, the 20^th Amendment contains no specific language to prohibit ̎lame duck ̎ sessions, and Congress has met in many such sessions since after the states adopted the amendment. Political debate about lame duck ̎ sessions, however, has been raised on several recent occasions.

On November 13, 1980, a ̎lame duck ̎ President Jimmy Carter nominated future Supreme Court Justice Stephen G. Breyer as a justice of the United States Court of Appeals for the 1^st Circuit, and the ̎lame duck ̎ Senate confirmed the appointment in December, 1980. In December 1998, the House of Representatives voted to impeach President William J. Clinton during a ̎lame duck ̎ session. Some argued that these actions violated the spirit, if not the letter, of the 20^th Amendment, but no one challenged the actions in court.

In 2000, some discussed the potential interplay between the 20^th Amendment, and the 12^th Amendment, which requires that the House of Representatives select the president if no candidate receives a majority of the electoral votes cast for president. During the time in which the presidential election results between George W. Bush and Albert Gore, Jr. were still undetermined, some scholars questioned whether a ̎lame duck ̎ House of Representatives could select the president if neither Bush nor Gore received a majority of the electoral votes, or whether the issue would have to wait until the newly elected House of Representatives convened.

While the 20^th Amendment’s original intent has been publicly debated, there are no reported court cases involving the amendment.

Frank M. Reilly, Esq., is a partner at Potts & Reilly, L.L.P., Attorneys & Counselors in Austin and Horseshoe Bay, Texas

May 21, 2012

Essay #66

May 20, 2012/2 Comments/by Janine Turner

Amendment XIX

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XvIX, Julia Shaw 2. The Constitution, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XIV, Constitutional Amendment XIV, Constitutional Amendment XV, Constitutional Amendment XV, Constitutional Amendment XvIX, Constitutional Amendment XvIX, Julia Shaw, The Constitution of the United States of America

Guest Essayist: Julia Shaw, Research Associate and Program Manager in the B. Kenneth Simon Center for Principles and Politics at the Heritage Foundation

Amendment XIX:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. Congress shall have power to enforce this article by appropriate legislation.

The Nineteenth Amendment

The Nineteenth Amendment prohibits the federal government or state governments from denying individuals the right to vote on the basis of sex. It also grants Congress the power to impose this rule through legislation.

The Constitution introduced in 1787 was a gender-neutral document: It actually did not prohibit women from voting. The Framers gave individual states the power to determine who could participate in elections. All states granted men suffrage. In 1797, though, New Jersey made history by recognizing the right of women to vote. Never before in all of recorded history had women exercised the right to vote.

Because the Constitution did not prohibit women from voting, no constitutional amendment was technically necessary for women to exercise suffrage. This is evident in the variety of strategies that the women’s suffrage movement used to secure the right to vote.

The first strategy involved the interpretation of the Fourteenth Amendment. Section 2 of that amendment prohibited denying “male inhabitants” the right to vote, suggesting that the Constitution granted only men the right to vote. Proponents of women’s suffrage argued that the Citizenship Clause and the Privileges or Immunities Clause of the Fourteenth Amendment prevented states from denying women the right to vote in federal elections. In Minor v. Happersett (1874), however, the Supreme Court dismissed this argument.

The second strategy focused on convincing individual states to remove voting qualifications related to sex. These efforts were eventually quite successful. Wyoming entered the Union in 1890 with women’s suffrage, becoming the first state since New Jersey to allow women to participate in elections on an equal basis with men. By the time the Nineteenth Amendment was ratified, 30 states already granted voting rights to women for members of the House, members of the Senate, or the President.

The third and final strategy involved amending the Constitution to prevent states from imposing sex-based voting qualifications. The first of such amendments was proposed in 1869. In 1897, a California Senator proposed what would become the Nineteenth Amendment. The Amendment was ratified in 1920 with essentially the same wording as the Fifteenth Amendment.

There has been little litigation over the Nineteenth Amendment. The Supreme Court addressed the amendment directly in Breedlove v. Suttles (1937), a case in which Georgia law exempted women from a tax but required men to pay it upon registering to vote. The Court ruled that the amendment protected the right of both men and women to vote but did not limit a state’s authority to tax voters.

Julia Shaw is Research Associate and Program Manager in the B. Kenneth Simon Center for Principles and Politics at the Heritage Foundation.

May 18, 2012

Essay #65

May 18, 2012/2 Comments/by Janine Turner

Amendment XVIII, Section 2

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XVIII, William C. Duncan 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XVIII, Constitutional Amendment XVIII, Federalist No. 45, The Constitution of the United States of America, William C. Duncan

Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

Amendment XVIII:

Section 1: After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation

Section 2: The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

Amendment XVIII, Section 2

The Prohibition amendment only lasted in force for fourteen years from 1920 to 1933 (though it was ratified in 1919 by its terms it did not become effective until one year later) remains the only amendment to have been repealed in its entirety. The substance of the amendment has already been addressed so is there any more to learn from this footnote in constitutional history?

There is one important lesson we can learn from the amendment’s enforcement section about federalism and the respective roles of the national and state governments

Section two of the 18^th Amendment provides: “The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.” This language is unique among the constitutional amendments. Beginning with the Civil War Amendments, drafters often began to include some kind of enforcement language in amendments, typically specifying that Congress could pass legislation to ensure the amendment’s intent was carried out. The 18^th Amendment provided for “concurrent” jurisdiction between the national government and the States.

The concept of jurisdiction is central to our constitutional system. Because we have a federal system, with authority and responsibility divided between two different entities—the national government and the States—and because ours is a government of enumerated powers in which the Constitution gives to the national government authority to do only what that document specifies it may do, a grant of authority to carry out a new role must be specified in an amendment to the Constitution unless the amendment’s effect is self-executing.

The significance of the enforcement provision of the 18^th Amendment is first that is specifies the branch of the national government responsible for enforcement is Congress and that it is to carry out this responsibility through legislation. Even this Progressive Era enactment respected the separate roles of branches of the national government. Consistent with every other aspect of the Constitution, this amendment was to be made effective not by judicial opinion or administrative branch lawmaking. So, the 18^th Amendment reminds us that under the United States Constitution lawmaking is the prerogative of the legislative branch.

Second, the amendment specified that Congress will be exercising power concurrently with the States. Since the States had already been making alcohol policy previous to the 18^th Amendment, it is clear that the amendment’s proponents recognized their inherent power to do so and only amended the Constitution so as to provide a new power of Congress; a power that (a) it did not have before and (b) it could not have unless specifically provided (enumerated) by an addition to the Constitution.

Thus, though the amendment is no longer enforceable it still provides a helpful reminder of the way in which our system is intended to function. While the powers of the national government and to be “few and defined” (Federalist 45), the states are free to do whatever they are not specifically prohibited from doing by the Constitution or the reserved powers of the people themselves.

Even the most cursory glance at current political controversies would remind us of exactly how important this reminder is.

William C. Duncan is director of the Marriage Law Foundation (www.marriagelawfoundation.org). He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.

May 17, 2012

Essay #64

May 17, 2012/1 Comment/by Janine Turner

Guest Essayist: Gordon Lloyd, Ph.D., Professor of Public Policy at Pepperdine University

Amendment XVIII:

Section 1: After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

Section 2: The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

Section One of the 18^th Amendment contains only forty-four words. These few words are intended, however, to introduce a remarkable and clear change in the relationship between the federal government and the individual American citizen. In popular terminology, this section prohibited, and criminalized, what was formerly a matter of taste or culture, namely, the purchase and consumption of alcoholic beverages. But, as we shall see, there is a bit more nuance and ambiguity in this section than what is captured by the common understanding. Language matters and the thoughts behind the words also matter. In addition, sometimes, what isn’t said is as important as what is said.

We can collect the words that are indeed said into five separate but related categories. 1) After one year from the ratification of this article 2) the manufacture, sale, or transportation of intoxicating liquors 3) within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof 4) for beverage purposes 5) is hereby prohibited.

This is the first time that an amendment to the Constitution would not take effect immediately upon receiving the requisite votes of 3/4 of the state legislatures, but at a later designated time. The amendment was ratified on January 16, 1919 and went into effect on January 17, 1920. Why designate a one-year delay? The thought was that one-year would give American business, government, and citizens sufficient time to adjust their life style to a new, and so the proponents thought, improved American way of life.

Americans, for most of their history, however, accepted that the Constitution limited the reach of the federal government to few and defined objects leaving the rest of public policy to state and local governments or to the private sector. The Constitution “enshrined” the rights of the individual and the states over against the federal government in the Bill of Rights, also known as the first ten amendments.

True, the 14^th -15th Amendments, passed in light of the civil war, limited, for the first time, what state governments could and could not do. Specifically, no state could deny the civil rights and voting rights of recently freed African Americans. And the 13^th Amendment also constitutionally limited what Americans could own: it declared that no American could own another person.

A second feature to Section One of the 18^th Amendment, therefore, is that it introduces over 100 years after the Founding amendments, and fifty years from the Civil War amendments, into the very Constitution itself, the proposition that we as individual Americans do not own ourselves with respect to the consumption etc., of certain beverages. Not having a drink is made the moral equivalent of not owning a slave?

The prohibition of alcohol was not a phenomenon at either the Founding or the Civil War. The case for federal, and then constitutional, prohibition grew out of the success of the Temperance Movement. Their appeal to end the evil of drink spread across the various states in the late nineteenth century and into national politics in the early twentieth century. Overwhelming majorities of both political parties in Congress endorsed National Prohibition in 1917. Thus, surprisingly, a formerly politically decentralized and alcohol drinking nation overwhelmingly accepted the Temperance argument that drinking was a moral issue, rather than a matter of personal taste, and that it ought to be constitutionally prohibited.

The fascinating interrelationship between the 16^th, 17^th, 18^th, and 19^th Amendments—the so-called Progressive Amendments—is beyond the scope of this essay. But we do need to ask: What is Progressive about Prohibition? Both movements see the “cleaning up” of the American political system, with its “smoked filled rooms,” on the one hand, and reforming public conduct and getting rid of saloons on the other hand, as twin forces in the transformation of America into a better nation.

But, once again, language is important. The clear and purposeful prohibition language covering the importation, exportation, and domestic “manufacture, sale, or transportation” shows the moral side of America. But what is not said in this “mission statement” shows the endurance of entrepreneurial politics in American life. This is the third feature that is important in Section One.

Despite the common interpretation, Section One does NOT prohibit “the purchase and consumption of alcoholic beverages.” The words, “purchase,” “consumption,” and “alcohol,” are not mentioned. What is found there instead is the phrase “intoxicating liquors.” This leaves open to future Congressional debate, and political exemptions, what is “intoxicating” and what are “liquors?” What about “sacramental wine,” and “medicinal alcohol?” Shall they be exempt? After all, the prohibition is “for beverage purposes.” Nor is anything said about eating purposes. This ambiguous language is not accidental; it reflects the persistence of entrepreneurial politics in America.

Professor of Public Policy at Pepperdine University, Dr. Lloyd is the coauthor of three books on the American founding and sole author of a book on the political economy of the New Deal. His latest coauthored book is The Two Narratives of Political Economy. He currently serves on the National Advisory Council for the Walter and Leonore Annenberg Presidential Learning Center through the Ronald Reagan Presidential Foundation.

May 16, 2012

Essay #63

May 16, 2012/3 Comments/by Janine Turner

Amendment XVII: Reform or Revision?

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XVII, Ralph A. Rossum, Ph.D. 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XVII, Constitutional Amendment XVII, Ralph A. Rossum PhD

Guest Essayist: Ralph A. Rossum, Ph.D., the Salvatori Professor of American Constitutionalism at Claremont McKenna College

Amendment XVII:

1: The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

2: When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

3: This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

Seventeenth Amendment

The Seventeenth Amendment replaced the Constitution’s original indirect election of the U.S. Senate by state legislatures with direct election by the people; it was approved by the Congress on May 12, 1912, was ratified by the requisite three-fourths of the state legislatures in less than 11 months, and was declared to be a part of the Constitution on May 31, 1913. Not only was it ratified quickly, it was ratified by overwhelming numbers: In 52 of the 72 state legislative chambers that voted to ratify the Seventeenth Amendment, the vote was unanimous, and in all 36 of the ratifying states, the total number of votes cast in opposition to ratification was only 191, with 152 of these votes coming from the lower chambers of Vermont and Connecticut.

While state ratification of the Seventeenth Amendment came quickly and easily, approval by the Congress did not. The first resolution calling for direct election of the Senate was introduced in the House of Representatives on February 14, 1826. From that date until the adoption of the Seventeenth Amendment 86 years later, 187 subsequent resolutions of a similar nature were also introduced before Congress, 167 of them after 1880. The House approved six of these proposals before the Senate reluctantly gave its consent.

By altering how the Senate was elected, however, they also altered the principal mechanism employed by the framers to protect federalism. The framers understood that the mode of electing (and especially re-electing) senators by state legislatures made it in the self-interest of senators to preserve the original federal design and to protect the interests of states as states. This understanding was perfectly captured by Alexander Hamilton during the New York Ratifying Convention on June 24, 1788, when he explicitly connected the mode of electing the Senate with the protection of the interests of the states as states. “When you take a view of all the circumstances which have been recited, you will certainly see that the senators will constantly look up to the state governments with an eye of dependence and affection. If they are ambitious to continue in office, they will make every prudent arrangement for this purpose, and, whatever may be their private sentiments or politics, they will be convinced that the surest means of obtaining reelection will be a uniform attachment to the interests of their several states.”

Hamilton’s arguments to the contrary, notwithstanding, the states quickly and overwhelming ratified an amendment that removed the principal structural means for protecting the original federal design and the interests of the states as states. Four factors explain why they did so.

The first was legislative deadlock over the election of senators brought about when one political party controlled the state assembly or house and another controlled the state senate. Prior to the ratification of the Seventeenth Amendment, there 71 such legislative deadlocks, resulting in 17 senate seats going unfilled for an entire legislative session or more. These protracted deadlocks often led to the election of “the darkest of the dark horse” candidates, occasionally deprived the affected states of representation in the Senate, always consumed a great deal of state legislative time that was therefore not spent on other important state matters, and powerfully served to rally the proponents of direct election.

A second factor was the political scandal that resulted when deadlocks were occasionally loosened by the lubricant of bribe money. While corruption was proved to be present in only seven cases of the 1,180 senators elected from 1789 to 1909, these instances were much publicized and proved crucial in undermining support for the original mode of electing senators.

A third factor, closely related to the second, was the growing strength of the Populist movement and its deep-seated suspicion of wealth and influence. It presented the Senate as “an unrepresentative, unresponsive ‘millionaires club,’ high on partisanship but low in integrity.”

And, when Populism waned, Progressivism waxed in its place, providing a fourth (and ultimately decisive) factor: The Progressives believed that the cure for all the ills of democracy was more democracy. Their goal was, as Woodrow Wilson proclaimed in his 1912 campaign book The New Freedom, for government to be not only “of, by, and for” the people, but “through the people.”

Ralph A. Rossum, Ph.D. is the Salvatori Professor of American Constitutionalism at Claremont McKenna College. He is the author of a number of books including Federalism, the Supreme Court, and the Seventeenth Amendment, Antonin Scalia’s Jurisprudence: Text and Tradition, and American Constitutional Law (8th edition).

May 15, 2012

Essay #62

May 14, 2012/7 Comments/by Janine Turner

Amendment XVII: Direct Election of Senators

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XVII, John S. Baker, Jr., Ph.D. 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 03, Constitutional Amendment XVII, Constitutional Amendment XVII, John S. Baker Jr. PhD, The Constitution of the United States of America

Guest Essayist: Dr. John S. Baker, Jr., Distinguished Scholar in Residence, Catholic University School of Law; Professor Emeritus, Louisiana State University Law Center

Amendment XVII:

1: The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

2: When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

3: This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

Many Americans wonder why it is that the federal government continues to expand its power at the expense of the states and local governments. As the Supreme Court observed in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985),“the adoption of the Seventeenth Amendment in 1913 … alter[ed] the influence of the States in the federal political process.” Ironically, it was state legislatures that insisted on adopting the Seventeenth Amendment even though it virtually guaranteed their loss of power. The Seventeenth Amendment inflicted a near death-blow to federalism.

The first sentence of the Seventeenth amendment substitutes “elected by the people thereof” for the words “chosen by the Legislature thereof” in the language of the first paragraph of Article 1, Sect. 3. The amendment also provides the procedure for filling vacancies by election, but permitting states by legislation to allow the state’s governor to make temporary appointments.

Prior to the 17th Amendment, the Constitution provided for US senators to be elected by the legislature of each state in order to reflect that the Senate represented the states, as contrasted with the House which represented the people of each state. Originally, U.S. senators did represent their own states because they owed their elections to their state legislature, rather than directly to the voters of the state. The Senate, thus, carried forward the (con)federal element from the Articles of Confederation, under which only the states were represented in the national legislative body. As noted in The Federalist, the fact that state legislatures elected U.S. senators made the states part of the federal government. As intended, this arrangement provided protection for states against attempts by the federal government to increase and consolidate its own power. In other words, the original method of electing senators was the primary institutional protection of federalism.

In the decade prior to the Civil War, over the issue of slavery, and increasingly after the Civil War, some state legislatures failed to elect senators. That development, plus charges that senators were being elected and corrupted by corporate interests prompted some states to adopt a system of de facto election of senators, the results of which were then ratified by the state legislatures. Proposals for a constitutional amendment providing for direct popular election of senators were long blocked in the Senate because most senators were elected by state legislatures. Over time, the number of senators elected de facto by popular election increased. Also, states were adopting petitions for a constitutional convention to consider an amendment to provide for popular election of senators. As the number of states came closer to the number requiring the calling of a Constitutional Convention, the Senate allowed what became the Seventeenth Amendment to be submitted to the states for ratification.

A major factor promoting direct popular election of senators was the Progressive Movement. This movement generally criticized the Constitution’s system of separation of powers because it made it difficult to enact federal legislation. The Framers had done so in order to protect liberty and to create stability in government. The Progressives, on the other hand, wanted government to be more democratic and, therefore, to allow easier passage of national legislation reflecting the immediate popular will.

By shifting the selection of senators to the general electorate, the 17th amendment not only accomplished those purposes; but it also meant that senators no longer needed to be as concerned about the issues favored by state legislators. Predictably, over time, senators voted for popular measures which involved “unfunded mandates” imposing the costs on the states. Senators were able to claim political credit for the legislation, while the states were left to pay for new national policies not adopted by the states. Such unfunded mandates would have been unthinkable prior to adoption of the 17th amendment.

Ironically, more than the required number of state legislatures ratified the Seventeenth Amendment, with little or no realization that they were diminishing the power of their own states and undermining federalism generally. Many legislators apparently thought they had more important matters to attend to than devoting time to the struggles that often revolved around electing a senator. Such an attitude might have been understandable at a time when the federal government had much less power vis-a-vis the states. What those legislators did not appreciate was that the balance of power favorable to the states was due to the fact that state legislatures controlled the U.S. Senate. Over time, since adoption of the Seventeenth Amendment, the balance of power has inevitably consistently shifted in favor of the federal government.

Dr. John S. Baker, Jr. is a Distinguished Scholar in Residence at Catholic University School of Law and Professor Emeritus of Law at Louisiana State University Law Center.

May 13, 2012/11 Comments/by Janine Turner

Amendment XVI

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XVI, James D. Best 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XVI, Constitutional Amendment XVI, Federalist No. 10, James D. Best

Guest Essayist: James D. Best, author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, and Principled Action, Lessons from the Origins of the American Republic

Amendment XVI:

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

Reform or Revision?

The infamous XVI Amendment gave the national government the authority to tax income … from whatever source derived. Income tax has always been divisive. In the early twentieth century, the amendment was promoted with the phrase “soak the rich,” and the level of progressiveness in the tax codes has been contentious ever since. Many feel that it is only fair that those with more money should pay the lion’s share, while others think fairness means that every American should contribute at least something to the national coffers.

In Federalist 10, James Madison wrote, “The apportionment of taxes on the various descriptions of property is an act which seems to require the most exact impartiality; yet there is, perhaps, no legislative act in which greater opportunity and temptation are given to a predominant party to trample on the rules of justice.” For the hundred years that the XVI Amendment has been in place, exact impartiality has been a rarity.

There are many odious aspects of our current income tax. T. Coleman Andrews, commissioner of the IRS under Eisenhower said, “It opened up our homes, our papers and our effects to the prying eyes of government agents.” An IRS appeal is through tax courts without juries, and if a taxpayer loses, the individual must pay before suing the government. Congress relishes playing three-card Monte with the tax code by deftly moving taxes up, down and sideways, while slipping loopholes to favored constituents. Tax policy seldom has any relationship to economic growth, keeping markets free, or preserving personal liberty. For those of us who are recordkeeping impaired, the laws are a nightmare and a huge waste of valuable time. And last, we work and struggle to make ends meet, and instead of getting thanks for all the money we send to Washington, there’s always some politician trying to make us feel guilty because we didn’t send more.

Should the XVI Amendment be reformed or revised? Probably. Revision of the XVI Amendment could potentially fix many issues about the application of income tax, but it would not resolve our growing debt issues. The federal government spends about a quarter of our national production, much of it financed with debt that has climbed to unfathomable levels. Reforming or revising the XVI Amendment might squeeze the revenue side, but it won’t guarantee spending restraint. The government has no restrictions on borrowing or printing money.

Congress has shown that it won’t fix the tax code or spending. As we’ve witnessed since the Tax Reform Act of 1986, tax cuts and simplification only buy a short recess from offensive rates and burdensome regulations.

Without an ironclad restraint, government will continue to tax and spend recklessly. If permanent change is desired, it will require amending the Constitution. The real question is what kind of constitutional reform is needed. It’s possible we could have a public debate and resolve the fairness issue once and for all. For example, a flat tax would be good for the individual and boost economic growth, but most Americans have come to believe progressive rates equate to fairness. Another proposed reform would repeal the XVI Amendment in favor of a national sales tax—sometimes called the fair tax. Critics have pointed out that these reforms have their own problems, but even if they present an improvement, they seem unlikely to get out of Congress or be ratified by thirty-eight state legislatures.

If the goal is to make income tax fairer or trade it for a different tax, then a revision of the XVI Amendment could do the trick. However, if the goal is to collapse the deficit—and eventually the debt—then reform needs to address both the income and spending sides. This means that revision of the XVI Amendment should probably be done in conjunction with a Balanced Budget Amendment. A consolidated reform approach would provide the best chance of ratification and fixing our country’s finances. Alas, that would take leadership. Where is Alexander Hamilton when you need him?

James D. Best is the author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, and Principled Action, Lessons from the Origins of the American Republic.

May 11, 2012

Essay #60

May 11, 2012/5 Comments/by Janine Turner

Amendment XVI

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XVI, Marc S. Lampkin 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XVI, Constitutional Amendment XVI, Marc S. Lampkin, The Constitution of the United States of America

Guest Essayist: Marc Lampkin, Shareholder at Brownstein Hyatt Farber Schreck and graduate of the Boston College Law School

Amendment XVI:

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

Power to Tax Incomes

The 16^th Amendment is an excellent example of why it is important to act judiciously and cautiously when it comes to amending the Constitution. Most Americans recall that when our nation was founded, the framers did not agree to allow the federal government to tax the income of its citizenry. In fact they specifically included a proviso that provided that neither income taxes nor any other type of direct taxes could be collected by the federal government. Instead of collecting taxes in that manner, up until passage of the 16^th Amendment the federal government was funded primarily by indirect taxes – duties and sales taxes.

One of the reasons that the founders wanted to limit the type of taxing authority of the federal government was that it was a way to ensure that the individual citizen was protected from an overbearing federal authority. The consensus was that if Congress had the power to assess taxes directly on individuals they could single out certain individuals or all individuals for excessive taxation and there would be no upper limit on the amount assessed.

Sales taxes or import duties were indirect taxes that while affecting the livelihoods of individuals could be more readily avoided if individuals felt they were unfair or unwise. Nevertheless, a direct tax combined with Congress’ power to control the military meant that taxation power could reach any individual for any reason and it was for that reason viewed as a threat on liberty.

Although this understanding waned after the first 50 years or so of the Constitution’s ratification, the Supreme Court acted vigilantly to ensure that federal lawmakers accepted the restraint on Congress’ taxing power. However, there was at least one period when the Court relented – the Civil War. The Supreme Court upheld the Revenue Act of 1861. This law assessed a 3% flat tax on almost all income.

Nevertheless, subsequently the Court returned to form and refused to allow Congress to continue income taxes or other direct taxes.

Around the turn of the century far more conversation among policy makers focused on ways to increase revenues for the treasury.

Fairly quickly a rift was revealed. More Democrats than Republicans supported the idea of an income tax. Moreover, when the measures were introduced GOP Senators would delay or filibuster action on the measure. This practice over about a decade led to some of the first campaign themes that one party – the Republicans – was “the party of the rich.”

By the time President Taft came to office, due to the failure of the GOP to explain to the public why it thought a federal income tax as a concept was a bad idea, most Americans generally held favorable views about the income tax and were suspicious that the Republicans were solely motivated by a desire to protect wealthy individuals from taxation.

Additionally due to the shellacking the GOP took in the federal elections of 1892, it was felt by party leaders that the GOP’s position advocating steady increases in tariff rates on household goods was a non-starter. It was in this environment that President Taft began publicly advocating alternatives to tariff funding for the federal government including advocating an income tax.

Some of his critics in the Democratic Party thought they saw an opening to once again push the income tax but the same pattern of the last decade continued. A bill would be introduced and then quietly killed in the Senate. Only difference was that now the bills being introduced were by Republicans and but since nothing changed in terms of enactment the Republicans were given a pass in the political arena.

In April 1909, Texas Senator Joseph W. Bailey, a conservative Democrat who also opposed income taxes, came up with a plan that would ultimately upset the apple cart. He decided to embarrass the Republicans by trying to get them to publicly admit that they actually opposed income tax bills.

The progressives within the GOP including Teddy Roosevelt, Hiram Johnson, and Robert La Follette waxed enthusiastically on behalf of the bill. This placed President Taft in an awkward position. He wanted to be seen as being for an income tax, yet he wasn’t ready to actually enact one.

Perhaps his plan was too clever. In any event, the strategy that he came up with to once again kill the measure would ultimately fail. Recognizing that the same plan of having GOP members block it wouldn’t work with so many “progressive Republicans” supporting the measure, the new strategy was predicated on making the income tax measure a Constitutional amendment. Taft and his team counted on conservative state legislatures refusing to go along with the idea and letting it stall out in the hinterlands.

As part of the plan, President Taft formally requested the amendment and the House and Senate duly acted. The House vote was 318-14 and the Senate voted unanimously. However, the states didn’t balk as anticipated. In February of 1913 it was ratified just 4 years after Congress has submitted it to the states.

Today income taxes are the principle source of income for the federal government.

Marc Lampkin is a Shareholder at Brownstein Hyatt Farber Schreck and is a graduate of the Boston College Law School

May 10, 2012

Essay #59

May 10, 2012/4 Comments/by Janine Turner

Amendment XV, Section Two

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XV, Joerg W. Knipprath 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XIII, Constitutional Amendment XIII, Constitutional Amendment XIV, Constitutional Amendment XIV, Constitutional Amendment XV, Constitutional Amendment XV, Joerg W. Knipprath

Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

Amendment XV:

Section 1: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2: The Congress shall have power to enforce this article by appropriate legislation.

As do its older companions among the three Reconstruction Amendments, the Fifteenth Amendment authorizes Congress to make laws to enforce its provisions. Congress acted almost immediately after the amendment’s adoption to protect the voting rights of black citizens through the Enforcement Act of 1870. Just six years later, however, the Supreme Court blunted that statute’s use as a practical tool to prevent Southern interference with the voting rights of blacks.

For the next eighty years, the focus of 15^th Amendment law shifted to the Supreme Court as it struck down various ingenious ways, such as “grandfather clauses” and literacy tests, that states developed to continue the disenfranchisement of blacks. Not until 1957 did Congress involve itself again. Finally, in 1965, Congress used Section 2 to pass the Voting Rights Act of 1965. That statute is the most significant law passed under this section, and its constitutionality was quickly upheld in two major Supreme Court rulings in 1966.

The statute prohibits the use of any procedure or test that has the purpose or effect of abridging a citizen’s right to vote on account of race. Moreover, it requires that certain states and other political units that seek to change voting procedures must obtain pre-clearance from the Justice Department. These mechanisms, direct prohibition and pre-clearance from federal authorities, are key features of this potentially far-reaching statute. The latter requirement especially is controversial. Justice Hugo Black noted, a “federal law which assumes the power to compel the States to submit in advance any proposed legislation they have for approval by federal agents” threatens the system of structural federalism because it “approaches dangerously near to wiping the States out as useful and effective units in the government of our country.”

Section 2 is a remedial provision, similar to Section 2 of the 13^th Amendment and Section 5 of the 14^th Amendment. As to the last of these, the Supreme Court has held that any Congressional act must solely remedy violations by the states of the 14^th Amendment and must not simply create new statutory rights to sue. Congress must show that the action by the states that the law prohibits is a violation of the 14^th Amendment, as determined by Supreme Court precedent. Once such a violation is established, the law must seek to remedy that violation. The characteristics of a remedy are that it targets only the wrongdoers and the offending behavior, and is in place only as long as is needed to cure the problem. Under the 14^th Amendment, that test would be met if the law targeted governmental bodies or government officials for sanction, was limited to states that engaged in the unconstitutional conduct, and applied only as long as the violation continued. The Court has coined a fancy and sonorous phrase for this requirement, calling it one of “congruence and proportionality.”

While the Court has not formally adopted the same test for Section 2 of the 15^th Amendment, language from the lower courts and from the Supreme Court in the 2009 decision in Northwest Austin Municipal Utility District v. Holder suggests that this is the likely test that will be applied to laws under this section. The provisions of the Voting Rights Act originally met this test. The most controversial section of the Act, the pre-clearance provision, only applies to states or other political units, and only to those that engaged in violations of the 15^th Amendment and abridged the right to vote of various racial or ethnic groups (usually blacks or citizens of Mexican ancestry). The statute was in effect only for five years and allowed a “bail-out” if a political subdivision could show that the reason it was covered by the statute (determined through a voting participation formula) was not due to any unlawful discriminatory practice.

Since then, however, the Act’s constitutionality has become more problematic. It has been re-adopted four times, the latest extension, in 2007, for 25 years. Entire states, such as Texas, continue to be subject to its restrictions. Bail-outs were rare, if they occurred at all, before 1982. Between 1982 and 2009, only 17 political units (e.g. towns or cities) out of 12,000 that are covered by the law successfully bailed out. The Justice Department consistently opposed and blocked bail-out suits.

Conditions in the states have changed since 1965. Indeed, the evils of unbalanced voting rates between whites and others are greater today in some states that are not subject to the Act’s coverage formula. All changes in election law are covered by the statute and must be shown not to have a racially discriminatory effect on voting and must receive Justice Department approval. As one frustrated Georgia Congressman tartly remarked, “If you move a polling place from the Baptist church to the Methodist church, you’ve got to go through the Justice Department.”

This was precisely the problem faced by a small water district in Texas that wanted to move the voting place for election of its board from a private house to a public school. The district was formed in 1987 and never engaged in voting discrimination in violation of the 15^th Amendment. But, since Texas was covered by the Act, the district was covered, and the Justice Department opposed the district’s suit to bail out of coverage.

The Supreme Court heard the Northwest Austin case in 2009. While the justices did not reach the constitutionality of the Act, the oral argument and the opinion served strong notice that the Court was skeptical that current social and political conditions warranted a “remedy” based on a formula reflecting nearly 50-year-old evidence. At argument, Chief Justice Roberts and Justice Alito wondered why the Act had not been extended to other states where there were greater voting disparities between whites and racial and ethnic minorities than in the covered states. Such unequal treatment goes against the basic constitutional presumption of equality among the states and can only be avoided in unusual cases. The opinion noted the “federalism cost” of interference with the fundamental political decisions of states, the same concern that Justice Black had raised 40 years earlier.

Since Northwest Austin, several additional political subdivisions have been able to extricate themselves from the Act’s preclearance requirement, including the first outside the state of Virginia. Local politicians, the Justice Department, and the lower courts may have received the Court’s signal and are facilitating bail-outs as a way to avoid having the Court declare the Act unconstitutional.

The Act is an object lesson of how a problem begets a law that remains long after the events that gave rise to it are past. The Act was to be “temporary,” but such measures rarely are. It is in truth a remedy without an ill and becomes thereby part of a political spoils system.

Constituencies develop whose economic livelihood or political influence depends on the continued existence of the law and the perpetuation of the appearance of need for it. Those constituencies include the bureaucrats and lawyers in the Justice Department, but also the politicians—federal, state, and local—who can use their support for the Act as evidence of political virtue to further their own power. The political system may be unable to reform itself under such circumstances, and it remains for the courts to declare that the emperor lacks clothes.

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at: http://www.tokenconservative.org/.

May 9, 2012

Essay #58

May 8, 2012/4 Comments/by Janine Turner

Amendment XV

Analyzing the Amendments in 90 Days 2012 Project, Colin Hanna, Constitution Amendment XV 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, 17. Topics, Colin Hanna, Constitutional Amendment XV, Constitutional Amendment XV, Constitutional Amendment XvIX, Constitutional Amendment XvIX, Constitutional Amendment XXVI, Constitutional Amendment XXVI, Declaration of Independence, Declaration of Independence, The Constitution of the United States of America

Guest Essayist: Colin Hanna, President, Let Freedom Ring

Amendment XV:

1: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

2: The Congress shall have power to enforce this article by appropriate legislation.

The Fifteenth Amendment to the United States Constitution was passed by Congress on February 26^th 1869, and ratified by the States on February 3^rd, 1870. Although many history books say that it “conferred” or “granted” voting rights to former slaves and anyone else who had been denied voting rights “on account of race, color, or previous condition of servitude,” a close reading of the text of the amendment reveals that its actual force was more idealistic. It basically affirmed that no citizen could rightfully be deprivedof the right to vote on the basis of that citizen’s race, color or previous condition of servitude – in other words, that such citizens naturally had the right to vote. That is how “rights” should work, after all; if something is a right, it does not need to be conferred or granted and cannot be infringed or denied.

It is worth noting that the Fifteenth Amendment only clarified the voting rights of all male citizens. States have the power to define who is entitled to vote, and at the time of the signing of the Constitution, that generally meant white male property owners. The States gradually eliminated the property ownership requirement, and by 1850, almost all white males were able to vote regardless of whether or not they owned property. A literacy test for voting was first imposed by Connecticut in 1855, and the practice gradually spread to several other States throughout the rest of the 19^th Century, but in 1915, the Supreme Curt ruled that literacy tests were in conflict with the Fifteenth Amendment.

Section 2 of the Fifteenth Amendment sets forth the means of enforcing the article: by “appropriate legislation.” It was not until nearly one hundred years later, with the passage of the Voting Rights Act of 1965, that the enforcement of the Fifteenth Amendment was sufficiently clarified that no State could erect a barrier such as a literacy test or poll tax that would deny any citizen the right to vote, as a substitute for overtly denying voting rights on the basis of race or ethnicity. The Civil Rights Act of 1957 had taken a step in that direction, but practices inconsistent with the Fifteenth Amendment remained widespread. The Nineteenth Amendment. ratified in 1920, had granted women the right to vote. The only remaining legal barrier to citizens is age, and that barrier was lowered to 18 by the Twenty-Sixth Amendment, ratified in 1971. Many people do not realize that a State could permit its citizens to vote at a lower age than 18, and none has.

The moral inconsistency between a Declaration of Independence that proclaimed that all men (and, by widely accepted implication, all women) were created equal, and a Constitution that tolerated inequality based on race and gender, required more than 150 years to be resolved. The ratification of the Fifteenth Amendment in 1870 was one of the major milestones along that long path.

Colin Hanna is the President of Let Freedom Ring, a public policy organization promoting Constitutional government, economic freedom, and traditional values. Let Freedom Ring can be found on the web at www.LetFreedomRingUSA.com.

May 8, 2012

Essay #57

May 7, 2012/2 Comments/by Janine Turner

Amendment XIV – The 14th Amendment’s Impact on the Constitution

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XIV, Robert P. George 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XIII, Constitutional Amendment XIII, Constitutional Amendment XIV, Constitutional Amendment XIV, Dred Scott v. Sanford by Justice Roger Taney, Robert P. George

Guest Essayist: Robert P. George, McCormick Professor of Jurisprudence, Director of the James Madison Program in American Ideals and Institutions, Princeton University

Amendment XIV:

1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

2: Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

3: No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

4: The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

5: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Some Key Aims of the 14^th Amendment

With the defeat and collapse of the Confederacy, President Lincoln and other Republican leaders began designing and putting into place policies to heal the bitter divisions of civil war and to make good on the promises of freedom and justice on which the nation—“conceived in liberty and dedicated to the proposition that all men are created equal”—was founded. These policies centrally included amendments to the Constitution to abolish slavery and deal with the all-too-predictable reality of intimidation and discrimination against the newly freed slaves and their descendants. The assassination of the President did not shut down these efforts. In 1866, slavery and involuntary servitude were abolished by adding a thirteenth amendment. Then, in 1868, a fourteenth and fifteenth were added. This brief essay will focus on some (though not all) of the principal aims of the fourteenth.

The first sentence of the Amendment overturns a key provision of the notorious 1857 case of Dred Scott v. Sandford—a Supreme Court decision that not only purported to invalidate congressional authority to restrict slavery in U.S. territories, but also held that blacks (even free blacks) could not be citizens of the United States. The sentence says: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” So a former slave who was born, let us suppose, in Virginia and resides there, or in any other state, is a citizen of the United States and of the Commonwealth of Virginia (or whatever state he happens to reside in).

The second sentence of the Amendment does the work of protecting the former slaves and their descendants from various forms of legally sanctioned discrimination and mistreatment. It says: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

In exercising power (especially that of a legislative nature), a worry was that state officials would attempt to deny the former slaves and their progeny the privileges and immunities they possessed by virtue of their American citizenship. Their right to travel between states, for example, might be unfairly restricted. The privileges and immunities provision would stand as a bulwark against such abuses.

In exercising power of a judicial nature, the framers and ratifiers of the 14^th Amendment worried that state officials, such as judges, would mistreat the former slaves. And so the due process provision was included to make clear that no person could be executed (deprived of life), jailed or imprisoned (deprived of liberty), or subjected to a forfeiture of goods or a monetary fine (deprived of property) without a fair and impartial hearing before a duly constituted tribunal in which proper procedures (including such things as a presumption of innocence, a right to examine or cross-examine witnesses, and a right to introduce exculpatory evidence) were observed.

In exercising yet other forms of power (especially executive power), the concern was that state officials would abuse their authority by failing to afford to blacks the protections of law given to whites. Even perfectly fair laws, if applied differently based on race, will result in substantive unfairness. Having a law against murder that on its face protects everyone is not worth much to a victim or potential victim if officials charged with the execution of the laws can with impunity apply them discriminatorily. Therefore, the Republicans included a specific provision prohibiting states from denying to any person within their jurisdiction the equal protection of the laws.

Notice that nowhere in these two sentences (that together constitute Section One of the 14^th Amendment) does the word “blacks” (or “negroes,” or the words “persons of African descent”) appear. Nor is the word “race” or any synonym for the word used. Rather, the terms of these provisions are general. The privileges and immunities provision refers to “citizens,” without specifying race, color, ethnicity, or anything of the type. The due process and equal protection guarantees refer to “persons,” again without specifying race, etc. And so these provisions protect everyone against certain abuses by states—not just blacks, though it was, to be sure, a concern to protect the former slaves and their descendants that provided the motivation for the 14^th Amendment.

How would the guarantees of Section One of the 14^th Amendment be enforced against states that attempted to strip persons of their privileges and immunities as citizens, or deprive them of life, liberty, or property without due process of law, or deny them the equal protection of the laws? For the answer, we must skip down to Section Five of the Amendment, which specifically addresses the enforcement question. The first thing to note, is that neither in this Section nor anywhere else in the Amendment is it contemplated that the courts will be the enforcers of its guarantees. The second thing to notice is that enforcement power is expressly granted to the Congress, to wit, “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” And so the 14^th Amendment adds a new delegated power to those already possessed by the people’s representatives in the national legislature: the power to enact laws protecting the privileges and immunities of citizens and the rights of all persons within the jurisdiction of states to due process of law and the equal protection of the laws.

Does this mean that the 14^th Amendment radically alters the constitutional system under which the national government is a government of delegated and enumerated (and, therefore, limited) powers and the states are governments of general jurisdiction possessing plenary authority (“police powers”) to protect public health, safety, and morals, and advance the common good? No, that system of federalism and “dual sovereignty” remains in place. But in certain key respects the Amendment adds to the authority of the national government and restricts the power of states. So it is an error to suppose that the 14^th Amendment changes everything; and it is no less an error to suppose that it changes nothing.

Robert P. George is McCormick Professor of Jurisprudence, Director of the James Madison Program in American Ideals and Institutions at Princeton University

May 6, 2012/5 Comments/by Janine Turner

Guest Essayist: Justin Dyer, Ph.D., Author and Professor of Political Science, University of Missouri

Amendment XIV:

1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

2: Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

3: No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

4: The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

5: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

In his Notes on the Constitutional Convention of 1787, James Madison observed “the real difference of interest” between states “lay, not between large & small but between N. & Southn.” “The Institution of slavery & its consequences,” Madison maintained, “formed the line of discrimination.” At several points, the original Constitution struck a compromise between these competing interests. The most obvious: slaves would be counted as three-fifths of a person for the purposes of representation (Art. 1§2), Congress would not proscribe the African slave trade until 1808 (Art. 1§9), and runaway slaves would be returned to the state from which they fled (Art. 4§2).

Yet even in these provisions, the word “slavery” never appeared. As Supreme Court Justice John McLean noted, one reason the Constitution crafted in Philadelphia did not mention slavery directly is because “James Madison, that good and great man, was solicitous to guard the language of the instrument.” Indeed, Madison recorded in his notes on the convention that “it would be wrong to admit in the Constitution the idea that there could be property in men” because men, by nature, were not consumable merchandise. And so in “the provision respecting the slave trade, in fixing the ratio of representation, and providing for the reclamation of fugitives from labor,” McLean maintained, “slaves were referred to as persons, and in no other respect are they considered in the Constitution.”

McLean’s comments came in a spirited dissenting opinion in Dred Scott v. Sandford (1857), a case in which the Chief Justice of the Supreme Court claimed, among other things, that “the right of property in a slave is distinctly and expressly affirmed in the Constitution” and that African slaves and their descendents (including free blacks) were not and could never become citizens of the United States. The Dred Scott decision, in turn, set off a firestorm of controversy and was among the precipitating causes of the Civil War– a conflict that would claim some six hundred thousand American lives.

Although the war wrought enormous damage to the southern infrastructure and exacted a heavy price in both blood and treasure, one of the enduring legacies of the conflict was the adoption of the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution during the first few years after Appomattox. Collectively known as the Reconstruction or Civil War Amendments, these provisions ended slavery, granted birth citizenship, protected the privileges and immunities of citizens, prohibited states from denying anyone the equal protection of the laws or the due process of law, and prohibited racial discrimination in state and national voting laws.

Section 1 of the Fourteenth Amendment, in particular, was written with the Dred Scott decision in mind. “All persons born or naturalized in the United States,” the Amendment declares, “. . . are citizens of the United States and the state wherein they reside.” No longer is there room for debate about whether the descendants of slaves are full citizens of the American republic. The Amendment also introduced into the Constitution several restrictions on state governments: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Initially, there was some debate about how radical a transformation the Fourteenth Amendment worked in the American federal system. According to some members of the Thirty-Ninth Congress, the answer (at least theoretically) was “not much.” As Iowa Congressman James Wilson contended, the amendment established “no new right” and declared “no new principle.” Rather, it was in line with the general principles that had always undergirded American government. In this, Wilson echoed the sentiment of the runaway-slave-turned-abolitionist, Frederick Douglass, who argued that the “Federal Government was never, in its essence, anything but an anti-slavery government . . . If in its origin slavery had any relation to the government, it was only as the scaffolding for the magnificent structure, to be removed as soon as the building was completed.”

The Fourteenth Amendment, which held out the promise of meaningful freedom to newly freed slaves, was also interpreted as something emanating from the principles of the founding. “Let it be remembered,” the Fourteenth Amendment’s principal architect John Bingham declared, quoting an address by the Continental Congress in 1783, “that the rights for which America has contended are the rights of human nature.” To borrow a metaphor made popular by Abraham Lincoln, the end of slavery and the protection of equal civil rights was the working out of an aspiration already present in the American founding, an aspiration summarized by the core political teaching in the Declaration of Independence that “all men are created equal and endowed by their Creator with certain inalienable rights.”

And yet the story of Reconstruction begins, rather than ends, with the Civil War Amendments. Although the post-war Constitution guaranteed equal protection to all persons and an equality of civil rights among citizens, the reality on the ground has often been much different. From the history of Jim Crow to the twentieth century civil rights movement to the debates about fundamental rights today, the tension between the principles of the revolution and the realities of American constitutional politics is one of the enduring features of American government.

Justin Dyer teaches political science at the University of Missouri. He is the author of Natural Law and the Antislavery Constitutional Tradition and the editor of American Soul: The Contested Legacy of the Declaration of Independence.

May 7, 2012

Essay #56

May 6, 2012/0 Comments/by Janine Turner

Amendment XIV – The 14th Amendment’s Impact on the Constitution

Guest Essayist: J. Eric Wise, a partner in the law firm of Gibson, Dunn & Crutcher LLP

Amendment XIV:

1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

2: Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

3: No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

4: The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

5: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

After the Civil War came the Reconstruction Amendments. Thinking about the Civil War leads to thinking about the compromises in the Constitution over slavery, which in turn leads to thinking about the Declaration of Independence. The Declaration embodied the principles that were compromised, “the proposition that all men are created equal.” The Reconstruction Amendments in a sense constitutionalize the promise of the Declaration and represent a “new birth of freedom,” eliminating the compromises in the Constitution over slavery. While the 13^th Amendment prohibits de jure slavery and the 15^th Amendment secures voting rights, the 14^th Amendment is as a guaranty against de facto slavery.

The Constitution of 1789 contained a few key limits on state action. No state could enter into treaties, coin money, pass bills of attainder or ex post facto laws, impair contracts or confer nobility, impose tariffs, conduct foreign policy or make war. Citizens of each state were entitled to the privileges and immunities of citizens in the several states, but states had the power to determine who was a citizen. Every state was guaranteed a Republican form of government.

States could make laws with respect to almost any other subject matter, and enforce them as they saw fit, subject only to the state constitution. The states had broad latitude to shape their laws, to determine issues with respect to fairness and rights, and therewith shape the habits – the virtues and vices – of their peoples. This latitude included, by intention, the power to impose and protect slavery (and by extension other social and political perversions, short of monarchical government). The 14^th Amendment fundamentally changed this.

Section 1 of the 14^th Amendment reads:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The citizenship clause extinguished the ante bellum issues created by Dred Scott v. Sanford (1854) on questions of citizenship. The privileges and immunities clause placed alien and resident persons in a state on equal footing. The due process clause guaranteed fair procedure in an actions under state law. The equal protection clause provided for federal oversight as to the equal application of laws to persons within each state. Additionally section 2 of the 14^th Amendment eliminated the three-fifths compromise provisions regarding apportionment of representatives.

As a federal guaranty of certain rights, the 14^th Amendment subjects states to federal supervision with respect to fairness and basic rights, whether or not state constitutions already provide such guarantees. That oversight has provides the federal government – in particular the federal judiciary – with great power to shape the institutions and character of people where once the states had almost exclusive authority.

Judicial construction of the 14^th Amendment has changed over time and with it the direction of federal influence over state affairs. Cases such as Lochner v. New York (1905) and Adkins v. Children’s Hospital (1923) upheld “freedom of contract” as a protected right until the doctrine was reversed in West Coast Hotel v. Parrish (1937). Equal protection case Brown v. Board of Education (1954) profoundly changed – indeed rescued — the American social landscape, dismantling racial segregation. Equal protection case Hernandez v. Texas (1954) created protected classes of racial and ethnic groups. Through 14^th Amendment cases the First, Second, Fourth, portions of the Fifth, Sixth and Eighth Amendments have incorporated against the states under the doctrine of “substantive due process.”

Also through the 14^th Amendment, the judiciary has incorporated rights against the states that are implied by “penumbras” and “emanations” of other express Constitutional provisions. For example, Griswold v. Connecticut (1965) established a right to privacy which limited the right of a state to prohibit the use of contraceptives. And there is Roe v. Wade (1973), a 14^th Amendment case, famously establishing a national rule over the regulation of abortion, where previously each state had set its own rules, including prohibiting abortion in many states. These last two cases raise an important question. Was the 14^th Amendment intended to displace the state legislatures with the nine justices of the Supreme Court to the extent it has in practice?

J. Eric Wise is a partner in the law firm of Gibson, Dunn & Crutcher LLP, where he practices restructuring and finance

May 6, 2012

Essay #56

May 6, 2012/2 Comments/by Janine Turner

Amendment XIV, Section 5

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XIV, Timothy Sandefur 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, 17. Topics, Constitutional Amendment I, Constitutional Amendment I, Constitutional Amendment XIII, Constitutional Amendment XIII, Constitutional Amendment XIV, Constitutional Amendment XIV, Declaration of Independence, Timothy Sandefur

Guest Essayist: Timothy Sandefur, Author and a principal attorney at the Pacific Legal Foundation

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Amendment XIV, Section 5:

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Section 5 of the Fourteenth Amendment seems unprepossessing, but it has become the focus of some of the most important constitutional disputes in recent decades. That section gives Congress the power to enforce the Fourteenth Amendment “by appropriate legislation.” But what kind of legislation is “appropriate”?

It seems obvious that these words were added to allow Congress to pass civil rights laws; indeed, the Amendment was partly written in response to President Andrew Johnson’s assertion that the Civil Rights Act of 1866 was unconstitutional. By allowing Congress to pass legislation to protect the “privileges or immunities” of all Americans, along with their rights to due process of law and the equal protection of the laws, the Fourteenth Amendment’s authors hoped that the new guarantees would give real substance to the nation’s “new birth of freedom.” The 1866 Civil Rights Act was followed by others in 1871 and 1875. But the latter Act—which prohibited racial discrimination in “public accommodations” like theaters and restaurants—was held unconstitutional in an 1883 decision called the Civil Rights Cases. The Supreme Court ruled that the Amendment only allowed Congress to prohibit state governments from racial bias, but that Congress could not forbid private citizens from discriminating. The only dissenter in that decision was Justice John Marshall Harlan, who years later would also write the only dissent in Plessy v. Ferguson. He argued that the Civil Rights Acts should still be held constitutional under the Thirteenth Amendment, because racial discrimination was a component of the “slavery” that that Amendment prohibited.

After the Civil Rights Cases, Congress began relying on another constitutional provision for power to prohibit discrimination: the Commerce Clause. The Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, and other laws bar businesses from discriminating or impose other restrictions on them do so only on the theory that their activities have some effect on interstate commerce. Although in the 1976 case of Runyon v. McCrary, the Court seemed to agree with Justice Harlan that the Thirteenth Amendment allowed Congress to ban private racial discrimination, Congress and the courts have still continued to rely on the Commerce Clause.

The difference between using Section Five of the Fourteenth Amendment and using the Commerce Clause became especially important in the wake of a 1990 Supreme Court decision involving religious freedom—a decision that provoked a showdown between Congress and the Court. That case, Employment Division v. Smith, was interpreted by some religious conservatives as watering down the First Amendment’s protections for religious liberty. Congress responded to those by passing the Religious Freedom Restoration Act, which tried to instruct courts on how to address First Amendment Claims. Congress said it was using the powers given to it by Section Five, because the law was designed to provide greater protection for federal civil rights. But the Supreme Court disagreed in a follow-up case called City of Boerne v. Flores. It ruled that Section Five does not give Congress limitless power to protect rights in whatever way it pleases; in order to qualify as “appropriate legislation,” a law passed under this Section must be “congruent and proportional” to the harms that Congress wants to prevent. Congress cannot simply create new “rights” under this provision, or alter the meaning of existing rights as understood in judicial precedents. It can only remedy specific wrongs to actual, existing rights.

This “congruence and proportionality” rule for deciding what laws are “appropriate” under the Fourteenth Amendment has remained controversial ever since. On one hand, it makes sense, because the Amendment was meant to give Congress power to enforce the constitutional guarantees that states had regularly ignored before the Civil War, not to dictate what those rights mean, let alone to give federal lawmakers limitless power to implement whatever programs they see fit. On the other hand, the Constitution contains no explicit “congruence and proportionality” requirement, and allowing judges to decide what laws are “congruent and proportional” seems to weaken Congress’s ability to check or balance the courts. City of Boerne is a prime example: Congress perceived the Smith case as a threat to constitutional values, and enacted what it hoped would be a remedy—but the Court struck down that law, also, thus creating a constitutional trump card. When Congress responded to that decision with yet another law expanding protection for religious freedom, it did so under a different constitutional provision entirely.

The conflict between the Commerce Clause and Section Five has also been at the center of recent cases involving the principle of “sovereign immunity”—the long-standing legal privilege under which states cannot be sued without their consent. The Supreme Court has held that Congress cannot simply eliminate this privilege, except under Section Five of the Fourteenth Amendment, if doing so meets the “congruent and proportional” test. Thus in Nevada v. Hibbs (2003), the Court ruled that Congress could nullify the state’s legal immunity in order to enforce federal laws that were “narrowly targeted” against sex discrimination by employers. The law in question there was the Family and Medical Leave Act of 1993, which requires employers—including state governments—to give employees time off to care for sick family members. But the same law requires employers to give workers time off for their own medical needs. When a Maryland state employee was denied leave to care for his own medical condition, he sued the state, which tried to have the case thrown out on sovereign immunity grounds. The case went to the Supreme Court, which ruled against the employee last month. The self-care provisions of the Act, wrote Justice Anthony Kennedy, were not the same kind of civil rights protections that were at issue in the Hibbs case. That meant that “abrogating the States’ immunity from suits for damages for failure to give self-care leave is not a congruent and proportional remedy.”

Decisions like these show how the constitutional tensions that led to the Civil War live on. In the wake of an awful war caused in part by the states’ resistance to federal authority, the Fourteenth Amendment’s authors wanted to give Congress power to enforce the civil rights of all Americans. But they also preserved the autonomy of state governments, because they understood that a decentralized federal system can be essential to protecting individual freedom. Today, courts and Congress struggle to find an acceptable balance between different constitutional clauses and between different conceptions of the role of government in safeguarding civil rights.

Timothy Sandefur is a principal attorney at the Pacific Legal Foundation and author of Cornerstone of Liberty: Property Rights in 21st Century America (Cato Institute, 2006) and The Right to Earn A Living: Economic Freedom And The Law (Cato Institute, 2010).

Friday, May 4, 2012

Essay # 55

May 4, 2012/3 Comments/by Janine Turner

Amendment XIV, Section 4

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XIV, Timothy Sandefur 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XIV, Constitutional Amendment XIV, The Constitution of the United States of America, Timothy Sandefur

Guest Essayist: Timothy Sandefur, Author and a principal attorney at the Pacific Legal Foundation

http://vimeo.com/41471364

Amendment XIV, Section 4:

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

The fourth section of the Fourteenth Amendment is rather obscure, or was until recently. It declares that “[t]he validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.” In a 1935 case, Perry v. United States, the Supreme Court held that the do-not-question provision applies to all federal debts, and bars the federal government from repudiating debts.

Barring the repayment of Confederate debt was not only a blow to southern rebels, but to their supporters worldwide. The Civil War was vastly expensive, and raised the national debt to over a billion dollars, and its financial consequences reverberated for decades afterwards. The victorious Union was especially bitter about international support for the Confederacy; in one instance, that anger nearly led to war with Britain, which refused to pay U.S. claims for damages inflicted by an English-built Confederate warship called the CSS Alabama. That dispute was only resolved in 1871 by a treaty.

In the years since, this section has rarely given rise to much debate—until the summer of 2011, when Congress began debating the Obama Administration’s request to extend the nation’s “debt ceiling.” Federal law requires Congress to authorize incurring more debt to pay for federal programs, and by last summer, when the national debt stood at more than $14 trillion, Republicans in Congress resisted allowing more red ink. They demanded concessions from the White House, and refused to agree to the tax increases demanded by the President. In mid-July, as the negotiations grew strained, some of the President’s supporters argued that Congressional refusal to allow further debt would violate the Fourteenth Amendment. South Carolina Congressman James Clyburn urged Obama to invoke Section Four and raise the debt ceiling by executive order, and Yale Law Professor Jack Balkin, Treasury Secretary Timothy Geithner, and even former President Bill Clinton (who, like Obama, was once a law professor) agreed. They argued that failing to raise the debt limit would increase the risk of a national default, which would amount to an unconstitutional “questioning” of the debt.

But Harvard Law School professor Laurence Tribe disagreed. In an article in the New York Times, Tribe explained that the Amendment does not bar Congress from making financial choices that might increase the risk of default. And even if it did, other constitutional provisions give Congress—not the President—the responsibility for borrowing money. Worse still, the government would probably lose more than it would gain from unilateral presidential action, because investors would then fear that the Administration might take other unprecedented actions undermining their investments. To his credit, President Obama showed little interest in invoking the Fourteenth Amendment, and within a month, Republicans and Democrats had reached a compromise.

Still, the debt ceiling debate revealed an important point about the Constitution. Some of its provisions seem to hibernate for years, little studied by law students, and rarely the subject of lawsuits, until a crisis draws public attention back to clauses that were written in anticipation of future problems. The Constitution is a promise, not only about how the government will operate on a daily basis, but about how we will act when the unexpected occurs. It must, as Justice George Sutherland once said, be obeyed as much when it pinches as when it comforts.

Timothy Sandefur is a principal attorney at the Pacific Legal Foundation and author of Cornerstone of Liberty: Property Rights in 21st Century America (Cato Institute, 2006) and The Right to Earn A Living: Economic Freedom And The Law (Cato Institute, 2010).

Thursday, May 3, 2012

Essay # 54

May 3, 2012/3 Comments/by Janine Turner

Amendment XIV, Section 3

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XIV, Timothy Sandefur 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XIV, Constitutional Amendment XIV, The Constitution of the United States of America, Timothy Sandefur

Guest Essayist: Timothy Sandefur, Author and a principal attorney at the Pacific Legal Foundation

http://vimeo.com/41401565

Amendment XIV, Section 3:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

America has never faced another crisis, like the Civil War. Art historian Robert Hughes has called it “America’s Iliad,” and that is an apt term, because the War was not only a bloody struggle for the nation’s future; it was also the emblematic crisis of the American soul. All of the cross-currents and crises of our Constitution can be found to intersect there, or to be prophesied in its still resounding clashes. This is true not only of such legal controversies as whether a state has the power to secede, or whether the president can suspend the writ of habeas corpus in an emergency, but also of much more personal issues as the sense of betrayal and recrimination that arose from a struggle of brother with brother, of father with son. Section 3 of the Fourteenth Amendment reflects this personal element of the War. It bars any person from serving in state or federal office who, having taken an oath to serve as a state or federal officer, had broken that oath to serve the Confederacy. The Amendment gives Congress power to remove the disability by a two-thirds vote.

This provision was not just aimed at Confederate soldiers, but also at prominent citizens, as well. Former President, John Tyler had given up his citizenship when the war began and was elected to the Confederate Congress; former Vice President John Breckenridge became a Confederate general, and Justice John Campbell resigned from the U.S. Supreme Court to become Jefferson Davis’ Assistant Secretary of War. Leaders of the victorious union realized that, as with so many military conflicts, a triumph at arms would prove futile in the long run if the enemy’s political leaders were allowed to retain political power, and they saw the removal of the Confederacy’s elite from political power as a necessary step toward reconstructing the nation on the principles of equality and liberty for which the union had fought.

Yet the goal of reconstruction was not merely to exclude the former confederates, but to reintegrate them into American society, and barring people from participating in society would prove counterproductive. Presidents Abraham Lincoln and Andrew Johnson preferred simply requiring former Confederates to swear that in the future they would support the Constitution. And a year before the Fourteenth Amendment was ratified, the Supreme Court struck down a particularly harsh oath requirement imposed by the state of Missouri, which barred people from certain private occupations if they had participated in the rebellion. That prohibition, declared the Court in Cummings v. Missouri, amounted to retroactive punishment in violation of the ex post facto clause. The authors of the Fourteenth Amendment, therefore, held open the opportunity for former confederate leaders to return to the mainstream of political life in the restored union.

Yet section 3 had stranger consequences for reconstruction than its authors could have imagined. In May, 1865, Confederate President Jefferson Davis was arrested in Georgia and held on charges of treason. Some Republican leaders insisted he be prosecuted, but moderates were more interested in moving on, and the Johnson Administration sought some way to postpone the prosecution. As Judge C. Ellen Connally explained in a 2009 Akron Law Review article, Chief Justice Salmon Chase found an opportunity for such delay in section 3 of the Fourteenth Amendment. Chase, who along with another federal judge, presided over Davis’ treason trial, argued that the case must be dismissed because, like the Missouri law at issue in Cummings, the Amendment’s prohibition on serving in public office was a criminal punishment. That meant Davis could not also be tried for treason without violating the constitutional ban on “double jeopardy.” The other judge disagreed, which sent the issue to the full Supreme Court for resolution—but before the Court could decide, President Johnson issued a general amnesty, bringing a permanent end to Davis’ prosecution.

A civil war is a great tear in the fabric of a nation, which can never be wholly mended. Section 3 of the Fourteenth Amendment is a testament to the profound political and personal wounds that “America’s Iliad” inflicted on the country.

Timothy Sandefur is a principal attorney at the Pacific Legal Foundation and author of Cornerstone of Liberty: Property Rights in 21st Century America (Cato Institute, 2006) and The Right to Earn A Living: Economic Freedom And The Law (Cato Institute, 2010).

Wednesday, May 2, 2012

Essay # 53

May 1, 2012/0 Comments/by Janine Turner

Amendment XIV, Section 2

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XIV, Timothy Sandefur 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XIV, Constitutional Amendment XIV, Constitutional Amendment XV, Constitutional Amendment XV, Constitutional Amendment XvIX, Constitutional Amendment XvIX, Declaration of Independence, The Constitution of the United States of America, Timothy Sandefur

Guest Essayist: Timothy Sandefur, Author and a principal attorney at the Pacific Legal Foundation

http://vimeo.com/41338488

Amendment XIV, Section 2:

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

The end of the Civil War brought radical changes to the United States Constitution. Leaders of the victorious Republican party hoped now to make the principles for which they waged such a punishing war into a permanent part of the Constitution. The Fourteenth Amendment renounced the “states’ rights” theories that so prevalent before the war, by declaring first that all Americans are citizens of the United States first and foremost, and only secondarily of the states where they reside. States had formerly, enjoyed authority to determine both state and federal citizenship; now the nation would determine both. Second, the Amendment prohibited states from depriving Americans of their “privileges or immunities”—i.e., of the rights that belong to all Americans—or of equal protection of the law, or of life, liberty or property without due process of law. These new guarantees ensured that the theory of “paramount national citizenship,” for decades the backbone of the Republican anti-slavery crusade, would be enshrined forever in the nation’s highest law.

But the Amendment was not concerned only with these crucial abstract principles. It was also a matter of practical politics. The second section of the Amendment—pointing toward the future Fifteenth Amendment—punished any state that deprived people of the right to vote. Southern states, after all, could be expected to take steps to bar their former slaves—now citizens—from exercising their new rights as citizenship. Rather than banning such interference outright, as the Fifteenth Amendment would do, this provision declares that if a state deprives “any of the male inhabitants” who are 21 or older from voting in a federal or state election, that state will lose seats in the House of Representatives.

This provision that overrode the Constitution’s infamous “three-fifths” clause, whereby Congress was apportioned on the basis of the white populace along with “three-fifths” of the slaves, and it marked the first steps toward a democracy in which all races could participate. Of course, there was also a steely political reality behind Congress’s choice of language: if southern states were restored to the union, and apportioned Congressmen on the direct basis of population, the Republicans might soon find themselves outvoted in Congress, destroying their unique opportunity for constitutional reform. Thus the Amendment permitted states to deprive people of the right to vote on account of their having “participat[ed] in rebellion, or other crime.”

The inclusion of the world “male” was also a calculated political move, and it also sparked a clash among the Amendment’s friends. Never before had the U.S. Constitution conditioned the right to vote on sex, and in fact, at the time the Constitution was originally ratified, some states allowed women to vote. But no state allowed women to vote in 1868, and had the Amendment been written in language that included female suffrage, the proposal would have faced far more opposition within the Northern political coalition. But adding a provision that explicitly allowed states to disenfranchise women put the nation’s imprimatur on discrimination, and offended many of the same female activists who had helped lead the Abolitionist movement. Some of them—including Elizabeth Cady Stanton and Susan B. Anthony—now opposed any guarantee of voting rights that was not gender-neutral. The former slave Frederick Douglass was more pragmatic. He believed strongly in women’s suffrage, but that was a goal for another day. “Woman has a thousand ways to attach herself to the governing power of the land and already exerts an honorable influence on the course of legislation.” But “the Negro is mobbed, beaten, shot, stabbed, hanged, burnt, and is the target of all that is malignant in the North and all that is murderous in the south.”

Although section 2 was largely rendered obsolete by the Fifteenth and Nineteenth Amendments—which barred states from discriminating on the basis of race or sex when it comes to the right to vote—it has still played an important role in shaping the power of states to deprive certain groups of voting rights. In a 1974 case, the Supreme Court ruled that states may disenfranchise felons, pointing out that the Fourteenth Amendment explicitly allowed this. And in 1970, Justice John Marshall Harlan, whose grandfather had been the lone dissenter in Plessy v. Ferguson, relied partly on the language of section 2 to conclude that the Fourteenth Amendment did not allow Congress to interfere with a state’s power to determine voter qualifications.

That the Amendment’s language regarding the right to vote was so quickly superseded by the Fifteenth Amendment should come as no surprise. The Fourteenth Amendment was just one step in a long-overdue effort to make the Declaration of Independence’s promise of equal liberty a reality for all.

Timothy Sandefur is a principal attorney at the Pacific Legal Foundation and author of Cornerstone of Liberty: Property Rights in 21st Century America (Cato Institute, 2006) and The Right to Earn A Living: Economic Freedom And The Law (Cato Institute, 2010).

Tuesday, May 1, 2012

Essay # 52

April 30, 2012/1 Comment/by Janine Turner

Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

http://vimeo.com/41276250

Amendment XIV, Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws

Supreme Court Justice Oliver Wendell Holmes once dismissively declared the equal protection clause to be the “usual last resort of constitutional arguments.” At the time, 1927 in the notorious case of Buck v. Bell, Holmes could not have foreseen the explosion in the use of the equal protection clause that would occur a generation later.

The Declaration of Independence had famously asserted the proposition, self-evident to the Founders, that “all Men are created equal.” But this was a metaphysical proposition in that there was to be no aristocracy by birthright, a moral one in that we are all (with allowance for the truly insane) equally imbued with free will, and a religious one in that we are all children of God. The Founders were hardly so naïve to believe that all people are physically, intellectually, and emotionally equal, never mind that they are alike. Aristotle had written in the Politics, “Democracy arises out of the notion that those who are equal in any respect are equal in all respects; because men are equally free, they claim to be absolutely equal.” Aristotle viewed this as a fatal flaw of democracy, a theme echoed in Madison’s Federalist 10. In a trenchant dissection of the instability of democracies, Madison sarcastically observed, “Theoretic politicians, who have patronized this species of government, have erroneously supposed that, by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions.”

Moreover, the very real presence of slavery in the great majority of the states demonstrated the limitations of the concrete application of the Declaration’s sentiments. While Thomas Jefferson, agonizing over the institution of slavery from which he personally benefitted, might write, “I tremble for my country when I reflect that God is just,” it was also the case, as the historian Forrest McDonald observed, “Few of his countrymen trembled with him.”

In practice, then, both simple human differences as well as more profound human inequalities have to be taken into account in a successful social order. Regarding the former, the law routinely discriminates by drawing lines that target some in the community for unfavorable treatment. The tax code, for example, is a mass of discriminations. As to the latter, attempts to equalize conditions that arise from the human inequalities about which Madison wrote is a prescription for totalitarian government. That is the dark side of egalitarianism and exposes the tension between equality and liberty.

Moving from a manifesto for independence to a plan for governing the Union, the Framers did not imbed either a general principle of non-discrimination or one of equality of condition in the Constitution. There are only specific limited instantiations of non-discrimination, such as the protection offered under the privileges and immunities clause of Article IV to persons coming into a state from another and under the commerce clause to out-of-staters competing with local businesses.

There is, however, no equal protection clause. That had to await the adoption of the 14th Amendment. However, as was the case with the 13th and 15th Amendments, that provision had to do solely with race discrimination and, more directly, the conditions that resulted from institutionalized slavery based on the black man’s race. The 14th Amendment was the immediate product of concern over the constitutionality of the Civil Rights Act of 1866, a law passed under the 13th Amendment. That statute was an anti-discrimination law. Since it prohibited race discrimination in various matters and did not limit itself to slavery as such or apply only in former slave states, there were doubts about the ability of the 13th Amendment to support this law. To cure that defect, a movement for another constitutional amendment, the eventual 14th, arose in Congress under the auspices of the Joint Committee on Reconstruction and the leadership of Congressman John Bingham of Ohio and Senator Jacob Howard of Michigan.

The equal protection clause was only intended to insure formal equality before the law and only regarding race discrimination. That its reach did not extend further was made clear by the Supreme Court in 1872 in the Slaughterhouse Cases, in which a claim by butchers that a Louisiana law violated, among others, their right to equal protection under the 14th Amendment was rejected almost summarily. As Justice Samuel Miller declared, “We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision.” In a companion case decided on the same day, Bradwell v. Illinois, a claim by a woman that the state’s refusal to allow women to practice law violated the 14th Amendment did not even produce an argument by her attorneys or a discussion by the Court of a violation of the equal protection clause. The singularly race-focused nature of the equal protection clause was reiterated by the Court of that era in the Civil Rights Cases and Plessy v. Ferguson.

Leaving aside a few odd cases involving unenumerated fundamental rights, it was not until the 1950s that the Supreme Court began to consider non-race-related equal protection claims, and it was not until Reed v. Reed in 1971 that a claim of unconstitutional sex discrimination was successful. In the last several decades, the Court has used the equal protection clause to strike down state laws that discriminate against various classes of aliens, illegitimate children, and homosexuals. Race, ethnicity, religion, national origin and (many) alienage classifications are considered constitutionally “suspect,” meaning that they are presumptively unconstitutional and subject to “strict judicial scrutiny.” Sex and illegitimacy are “quasi-suspect” classifications subject to “intermediate” scrutiny. In either case, the government must show greater need for such discrimination than would be required for ordinary discriminations by government, such as age, wealth, disability, or other classifications. This means effectively that racial and other such differences must not be formally recognized in laws.

The expansion of non-discrimination protection has made obsolete Justice Holmes’ comment about the futility of equal protection clause claims. The Constitution now protects more broadly against discrimination by government than was the case in the 1920s, and certainly than in the 1790s. Still, there is generally no obligation by government to eliminate inequalities that result from human nature and capabilities or from what might be called expansively the human condition. President Obama, speaking years ago at an academic gathering, bemoaned the Supreme Court’s failure to use the equal protection clause to equalize economic and social conditions of inequality, but the Court has generally avoided such judicial legislation. The only exceptions have been in matters related to access to courts, such as the right of an indigent defendant to a paid attorney.

Beyond those few cases, the justices have declined numerous invitations to turn the Constitution from one of rights against the community (a “negative” constitution) to one of rights from the community (a “positive” constitution). Human experience shows that the latter always becomes one of obligations to the community, as government grows and individual liberty shrinks. Certain justices would be happy to move in the direction of the European model to enact their ideal egalitarian world. Justice Ruth Ginsburg’s admonition to the Egyptians that they follow the South African constitution rather than the American in establishing their new system comes to mind. But the increasingly precarious economic status of the welfare state shows the wisdom of the Court in not amending the Constitution to remake the equal protection clause into a constitutional forge of egalitarianism.

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

Monday, April 30, 2012

Essay #51

April 29, 2012/7 Comments/by Janine Turner

Guest Essayist: Professor Will Morrisey, William and Patricia LoMothe Chair in the United States Constitution at Hillsdale College

http://vimeo.com/41124226

Amendment XIV, Section 1:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

What Is “Due Process of Law”?

Enacted in 1868, the Fourteenth Amendment numbers among the “Civil War amendments”—those that aimed to settle the relations of the states to the federal government. First among the much-controverted issues prior to the war was slavery, abolished throughout the nation in the Thirteenth Amendment. But slavery had thrived underneath the constitutional carapace of “states’ rights.” If state governments were not restrained from abridging the citizen rights of the former slaves, for example, what would prevent them from reintroducing de facto racial servitude in some other guise?

For example, why could the states not practice oppression against any group it chose to target by making it subject to arbitrary arrest or imprisonment or to summary judgment without benefit of trial? The Constitution prohibited the federal government from doing such things, but what about the other levels of government?

Thus the Fourteenth Amendment says that no state may “deprive any person of life, liberty, or property, without due process of law.” Readers of our founding documents will find that language very familiar. Rightly so: the phrase reproduces the language of the Fifth Amendment, which itself follows the famous words of the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.” Jefferson’s words follow those of the English philosopher John Locke, who identified life, liberty, and property as fundamental natural rights.

This means that the Framers took natural rights—rights endowed by our Creator—and made them into civil rights—rights formally recognized in our fundamental man-made law. Designed and implemented by human beings, governments exist in order to secure our natural rights, and one way to secure those rights is forthrightly to enunciate them in the supreme law of our land, ratified by the only sovereign body under God Americans recognize—themselves.

But if governments are instituted to secure our natural rights against those who would violate them, by what right does government punish the violators? Does effective punishment not require the government to deprive criminals of their property—by fining them—their liberty—by imprisoning them—and even their lives—by executing them for the most heinous offenses against our natural and civil rights? How can government do this without contradicting itself—without violating the very rights government is supposed to secure?

The basic principle of justice is to repay good acts with good acts, bad acts with bad acts. (The basic law of charity is to repay bad acts with good acts, but charity goes beyond justice). The `bad’ or rights-depriving acts of just punishment are actually good in the sense that they punish those guilty of committing bad acts against the good. This repays the bad in their own coin and may deter those who are thinking of committing bad acts. Justice metes out equal things to equals: good things to the good, bad things to the bad.

But how do we determine who is guilty of a bad act? Parents mete out what might be described as informal punitive justice to their misbehaving children. This usually involves the quick procedure of look, see, and swat. Children do not deserve a jury of their peers, primarily because such a juvenile jury would be as foolish and unruly as they. Adult fellow-citizens are a different matter. As persons capable of ruling ourselves by reason, we deserve more careful treatment. The care we owe to children entails bringing them up to rule themselves by reason, preferably before they get big enough to do serious damage. The care we owe our fellow citizens entails treating them as such—as persons who should know better than to behave as if auditioning for the next episode of Cops.

This is where due process of law comes in. As an American citizen, your civil rights may not be abridged as punishment for any crime without the observance by the executive and judicial authorities of well-established legal procedures, including a list of the charges against you and the opportunity to defend yourself against them in court. That is, any punishment involves the government in depriving the accused of some important civil right, a right it normally would be entrusted to secure. To do so fairly, the government must `make a case’ against you—persuade a reasonable judge or jury of your peers that you deserve such deprivation.

Today, this form of due process is often called “procedural due process”—a rather odd-sounding redundancy. What process is not procedural? This locution is meant to distinguish adherence to proper legal procedure from another thing called “substantive due process.”

Strictly defined, due process of law limits executive and judicial power to acts that insure a defendant’s fair chance actually to defend himself civilly, without needing to defend himself physically by running away or fighting back. Due process helps to make civil society civil. Substantive due process limits not only executive or judicial power but legislative power. Substantive due process holds that Congress and (with the Fourteenth Amendment) the state legislatures may no longer pass laws that abridge your life, liberty, or property. For example, an American version of the infamous Nuremberg Laws of Nazi Germany, depriving a particular religious or ethnic group of their civil liberties and thus rendering them less than fully-protected citizens, would clearly violate the civil rights to liberty and property of all members of that group. The “substantive” in the phrase “substantive due process” thus refers to the substance of a given law itself as distinguished from the procedures employed to enforce the law. Due process initially held that you could not be deprived of your civil rights to life, liberty, and property without proper legal procedures; it now meant that legislatures could not deprive you of such rights in the first place. This assurance may seem unnecessary because those rights are already protected by the Constitution as a whole. Be that as it may, the assertion of substantive due process causes a serious dilemma because it returns the country to the original problem that due process was intended to solve: if legislatures cannot secure the rights of the good by enacting laws that injure or `correct’ the bad, how will the rights of the good be secured at all? It seems that the very substantiality of substantive due process contradicts justice itself.

Having caused the problem, the Court soon got round to re-solving it, this time at the expense of the legislatures and of the people, and to the aggrandizement of themselves. In its first move, habitual since the 1940s especially, the Supreme Court has claimed that due process places the states under the requirement to adhere not only to those amendments (such as amendments thirteen and fourteen) that specifically restrict the states, but also to adhere to the whole Bill of Rights, which of course originally applied to the acts of the federal government only. So, for example, the first amendment ban on religious establishment by the federal government left state religious establishments undisturbed; now, the courts could invalidate any such establishments by invoking the due process clause understood “substantively” and not just “procedurally.”

This vast expansion of the scope of the due process clause solved the problem of the protection of our civil rights, but only at the expense of intensifying the problem of American self-government. In practice the Court’s behavior has proved highly selective. In the case of the Second Amendment protection of the right to bear arms, the Court has often chosen to overlook state restrictions on that right. At the same time, the Court has at times deployed substantive due process in establishing hitherto unknown and entirely unsuspected “constitutional rights”. It has done so by making a second move, namely, to widen the definition of the rights to life, liberty, and property. The Court-asserted rights to abortion (established in Roe v. Wade [1973]) and to homosexual activity (established in Lawrence v. Texas [2003]) clearly go far beyond anything the framers of the Fourteenth Amendment could have been thinking of back in 1868. The justices have combined substantive due process with their invention of unenumerated Constitutional rights—seen perhaps most glaringly in the 1965 Griswold v. Connecticut decision (in which the majority opinion claimed that the “right to privacy” existed in the “penumbra” of the right to liberty—an expansive and ill-defined emanation, indeed). The doctrine of substantive due process added to a very broad definition of civil rights has enabled the Court effectively not merely to adjudicate but to legislate—a power previously thought to reside in, well, the legislature.

By placing the states under the entire Bill of Rights, and then by defining “rights” penumbrically (I invent the word for the occasion, imitating the creativity of the distinguished justices in my own small way), the Court has done far more than to abridge the powers of the state governments. It has effectively given itself the power to amend the Constitution. Under the original theory of American constitutionalism, only the people—the sovereigns—held this sovereign power. But now the judges exercise it too, making a portion of the federal government sovereign over the (formerly) sovereign people. While the founders asserted the natural rights and sovereign power of the people to establish civil rights over the government-made rights of Englishmen as the basis of their independence from the Empire, the Supreme Court has effectively revolutionized the American Revolution, making Americans into Europeans, again—the New World back into the Old.

Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College; his books include Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government.

April 27, 2012

Essay #50

April 26, 2012/2 Comments/by Janine Turner

Amendment XIV Privileges or Immunities

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XIV, Kevin R. C. Gutzman, M.P.Aff., J.D., Ph.D. 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article IV Section 2, Constitutional Amendment XIII, Constitutional Amendment XIII, Constitutional Amendment XIV, Constitutional Amendment XIV, Constitutional Amendment XV, Constitutional Amendment XV, Kevin R. C. Gutzman M.P. Aff. J.D. PhD, The Articles of Confederation

Guest Essayist: Kevin R. C. Gutzman, M.P.Aff., J.D., Ph.D., Associate professor of the Department of History and Non-Western Cultures at Western Connecticut State University

http://vimeo.com/41058151

Amendment XIV, Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 1, Clause 2 of the 14th Amendment says, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” This Privileges or Immunities Clause applies a prohibition previously limiting the Federal Government’s powers to the state governments.

From the Federal Government’s earliest days, the Supreme Court, the Congress, and the president assumed that when the Constitution used technical legal terms having fixed historic meanings, those terms were to be read as having those meanings. If we apply this rule of construction to the Privileges or Immunities Clause, the precedent to which we must look is Justice Bushrod Washington’s decision in the case of Corfield v. Coryell (1823). In that case, Washington—sitting as circuit justice for Pennsylvania—described the “privileges and immunities of citizens in the several States,” mentioned in Article IV, Section 2.

According to Washington:
The inquiry is, what are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several States which compose this Union, from the time of their becoming free, independent, and sovereign…. They may … be all comprehended under the following general heads: protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one State to pass through, or to reside in any other State…; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the State; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the State…[,] to which may be added, the elective franchise, as regulated and established by the laws or constitution of the State in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each State, in every other State, was manifestly calculated (to use the expressions of the preamble of the corresponding provision in the old Articles of Confederation) “the better to secure and perpetuate mutual friendship and intercourse among the people of the different States of the Union.”

The first case in which the Supreme Court had an opportunity to construe the Privileges or Immunities Clause was The Slaughter-House Cases (1873). There, the Court divided the privileges and immunities of American citizens between those that are protected by state governments and those that are, as Section 1 of the Fourteenth Amendment puts it, “privileges or immunities of citizens of the United States.” While it declined to list all of the ones that fell under the Fourteenth Amendment, it did say that virtually all of our rights remained rights of state citizenship, not rights “of citizens of the United States”—just as they had been before the Fourteenth Amendment.

So, some of the “privileges or immunities of citizens of the United States” that it listed were “to come to the seat of government to assert any claim he may have upon that government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions[;] … the right of free access to its seaports, through which operations of foreign commerce are conducted, to the sub-treasuries, land offices, and courts of justice in the several States[;] … [a citizen’s right] to demand the care and protection of the Federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government[;] … [t]he right to peaceably assemble and petition for redress of grievances[;] the privilege of the writ of habeas corpus[;] … the right to use the navigable waters of the United States, however they may penetrate the territory of the several States[;] … all rights secured to our citizens by treaties with foreign nations[;] … [the] privilege … to become a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State[; … and] the rights secured by the thirteenth and fifteenth articles of amendment, and by the [rest of the] fourteenth….”

Nowadays, liberal critics commonly decry the Court’s decision in Slaughter-House for not creating numerous new rights for federal courts and Congress to enforce against the states under the cover of the Fourteenth Amendment. However, as the Slaughter-House majority pointed out, to have taken a different position would have made the Court the “censor” of all state and local legislation with a supervisory power over all state laws. While the 20th-century Supreme Court carved out precisely such a role for itself, the Reconstruction-era justices remained committed to the Founders’ vision of a decentralized government in which most decisions were made by elected officials. It is unsurprising that they did not behave as modern liberal judges would behave.

Kevin R. C. Gutzman, M.P.Aff., J.D., Ph.D. is an American historian and New York Times bestselling author. He is an associate professor of the Department of History and Non-Western Cultures at Western Connecticut State University.

April 25, 2012/4 Comments/by Janine Turner

Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

Amendment XIV, Section 1:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The citizenship clause of the 14th Amendment is one of four amendments to the Constitution that were intended to overturn or clarify Supreme Court rulings (the 11th, 16th, and 26th were the others). Prior to 1857, there had been much scholarly discussion and political debate, but no resolution or consensus, whether the basis of American citizenship was dependent or independent of state citizenship. Many supported the view expressed by South Carolina’s John C. Calhoun in his famous Senate speech on the Force Bill in 1833, “[Every] citizen is a citizen of some State or Territory, and as such, under an express provision of the Constitution, is entitled to all privileges and immunities of citizens in the several States; and it is in this and no other sense that we are citizens of the United States.” On the other hand, James Madison, discussing the need for Congress to provide uniformity in naturalization in Federalist 42, appears to assume that American citizenship cannot be left to the vagaries of state definitions.

The Supreme Court thoroughly examined the issue in the Dred Scott case in 1857. Chief Justice Roger Taney’s majority opinion addressed the interplay between state citizenship and American citizenship. He reasoned that “people of the United States” in the preamble and “citizens” in other parts were synonymous. The people of the United States were composed of the people of the States, as it was they who were the parties to the Constitution in light of the adoption process by state conventions. The “people” of those states were the “free” inhabitants. This was a concept of specific meaning, referring to whites only, not people brought to the colonies as slaves or their descendants, even if thereafter they had been freed. Accordingly, only those descended from white inhabitants and those people naturalized under federal law (since the first statute in 1790, only whites) could be American citizens. This fundamental principle overrode later decisions by individual states to recognize additional classes of state citizens. Scott had no basis claiming citizenship as that term was used in the Constitution. Therefore, he had no power to sue in federal court as a “citizen” of Missouri.

Taney’s argument had a weak link in that there were freed blacks, some of whom could vote in 5 of the 13 states at the adoption of the Constitution. Moreover, the privileges and immunities clause of the Articles of Confederation (the pre-cursor to its counterpart in the Constitution of 1787) had discussed the body of the states’ citizens in terms of their “free inhabitants.” An amendment proposed by South Carolina to insert “white” after “free” was overwhelmingly rejected in 1778. If that was correct, slaves could not claim citizenship, but free blacks could. Just in case, Taney cut off that argument by stating that Scott’s residence with his master in Wisconsin territory could not transmute his status from slave to free.

The main dissenting opinion, by Justice Benjamin Curtis, exploited that weakness, insisting that the Constitution established an understanding of American citizenship that plausibly could extend to all free persons born in the United States. Curtis agreed, however, that the states determined the basic parameters of citizenship, and that American citizenship was derived from the scope of citizenship recognized by the state of birth. The laws of Scott’s state of birth, Virginia, treated him as a slave; therefore he was not at that time a citizen of the United States. Nor would a slave who was temporarily taken into a free state thereby be made free. But when his master took him to reside in a free territory, Wisconsin, that action made Scott a free man and a citizen of the United States. When taken back to live in Missouri, he returned as a free man and became a citizen of that state.

Curtis accepted a unitary basis of citizenship for those born in the United States, one that was determined basically by state law. Taney, on the other hand, accepted a duality: United States citizenship was established by the understanding of the Framers of what made someone part of the “people of the United States.” While states could define state citizenship for themselves, they (or the Congress) could not go against this fundamental principle. Hence, even after the Civil War, freed blacks could not be citizens of the United States, short of a constitutional amendment.

Accepting Taney’s constitutional argument, Congress took that path with the 14th Amendment. United States citizenship was de-coupled from state citizenship, and the latter was made subordinate to the former. National citizenship appears based on place of birth (“jus soli”), the English common law principle going back to feudal antecedents when one’s station was connected to the soil where one was born. However, the amendment also adds that the person must be “subject to the jurisdiction” of the United States. This clearly excludes those children born in the United States to foreign diplomats. Does it also exclude those who are born in the United States to parents who happen to be here temporarily or illegally?

The Supreme Court addressed that clause in 1898 in U.S. v. Wong Kim Ark. The majority ruled very broadly that anyone (other than the children of foreign diplomats) born on U.S. soil was a U.S. citizen. The dissent argued that the competing international law doctrine of blood relationship (“jus sanguinis”) applied, which required not only birth in the U.S. but that the child’s father did not owe allegiance to a foreign power. This was an old principle of Roman law and ancient Greek practice still used in many countries today. It would keep the native-born children at least of those who are here merely as visitors from claiming birthright citizenship.

How does this affect the current debate about “anchor babies” in connection with illegal entrants into the United States? Proponents of unrestricted citizenship argue for the broad language of Wong Kim Ark that generally has prevailed in the courts. However, there are several weaknesses. First, the issue of illegal entrants, or even of temporary visitors, was not addressed there. Mr. Wong himself had lived in the U.S. all of his life. Wong’s parents had been duly admitted as immigrants to the U.S. with a permanent domicile and were engaged in a business. They were not mere passers-through. Nor were they here illegally, a concept that was not an issue in American immigration law until the Chinese Exclusion Act of 1882, years after the Wongs arrived. It was unnecessary for the Court to give such a broad reading to the 14th Amendment, and the justices simply may not have been aware of the ramifications of their language.

Second, the law-of-the-soil tradition carried with it “indelible allegiance.” Thus, a British subject could not renounce British citizenship, which led the British navy, after American independence, to search American vessels and “impress” into British service naturalized American citizens of British ancestry. Americans have roundly rejected that principle.

Third, the debates over the 14th Amendment included remarks by Senator Jacob Howard of Michigan, the amendment’s sponsor, that seem to say that the amendment does not apply to children of any foreigners or aliens, even if those children are born in the United States.

Fourth, Congress on several occasions throughout American history has employed jus sanguinis, for example, in legislation to recognize as citizens by birth the children born abroad to American citizens. This suggests that the 14th Amendment’s jus soli principle applies, unless Congress, as part of the sovereign powers of the national government, passes a law that rests on a different principle.

Overturning a century-old precedent is difficult, but distinguishing it due to changed social circumstances unanticipated at the time is more persuasive. Still, eroding the jus soli interpretation of the citizenship clause is a longshot, but the public debate likely will intensify the pressure for some political or constitutional accommodation.

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

April 25, 2012

Essay #48

April 24, 2012/2 Comments/by Janine Turner

Amendment XIII: Section 1

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XIII, Horace Cooper 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, 17. Topics, Constitutional Amendment XIII, Constitutional Amendment XIII, Constitutional Amendment XIV, Constitutional Amendment XIV, Constitutional Amendment XV, Constitutional Amendment XV, Declaration of Independence, Horace Cooper

Guest Essayist: Horace Cooper, Senior Fellow with the Heartland Institute

Amendment XIII, Section 2

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Congress shall have power to enforce this article by appropriate legislation.

The Thirteenth Amendment to the United States Constitution officially made all forms of slavery and involuntary servitude except as punishment for a crime unlawful.

Introduced by Ohio Rep. James Ashley originally in 1863, it languished for over a year until companion legislation was introduced in the United States Senate. To give the resolution a final strong push, President Abraham Lincoln had pushed for its inclusion in the GOP platform in 1864 and personally persuaded Democrats from pro-union states to support the effort.

Ultimately, it was passed by the Senate on April 8, 1864, by the House on January 31, 1865, and adopted on December 6, 1865.

Historians record that when the House vote was announced the galleries cheered, congressmen embraced and wept, and Capitol cannons boomed a 100-gun salute. One Representative, Congressmen George Julian of Indiana wrote in his diary, “I have felt, ever since the vote, as if I were in a new country.”

On December 18, Secretary of State William H. Seward declared that it had been officially ratified by the states. It was the first such change to the Constitution in 61 years, and it happened just two and a half months before President Lincoln would be tragically assassinated.

Since our country’s founding the issue of slavery had bedeviled our nation. At the Constitutional Convention good men like George Mason of Virginia argued vehemently against slavery, warning his fellow delegates: “Every master of slaves is born a petty tyrant. They bring the judgment of heaven on a country. As nations cannot be rewarded or punished in the next world, they must be in this. By an inevitable chain of causes and effects, providence punishes national sins by national calamities.”

While the Constitution that was ultimately adopted failed to completely resolve the slavery issue, it was neither completely silent nor neutral.

The oft-criticized 3/5^th compromise specially limited the ability of southern slave-holding states to obtain equal representation in the House of Representatives with that of the non-slave-holding northern states. Ultimately this would result in a pro-freedom tilt in the House of Representatives. The Constitution also gave Congress the power to prohibit the importation of new slaves after 1808, which Congress promptly did once it was legally allowed to.

Section 2. Congress shall have power to enforce this article by appropriate legislation

With the passage of the 13^th Amendment (specifically clause 2) Congress was given full power to stamp out slavery in all its forms. The motivations of the Members of Congress give us a great degree of insight into the meanings and operations of clause 2 of the 13^th Amendment. While most discussions of the 13^th amendment include the 14^th and 15^th, Congress’ treatment is quite different. At the time of its introduction, its Republican supporters in Congress and abolitionists across the land saw this amendment and Section 2 in particular as a comprehensive tool to root out not just slavery, but all of its vestiges.

It is for this reason that they didn’t stop with just banning or ending slavery; they empowered Congress to root it out. Their goal was to assure that the ending of slavery wasn’t a hollow victory, that passage lead to a national commitment to adopt whatever substantive changes were needed to eliminate all “badges and incidents of slavery.”

The men surrounding the introduction were very clear in their objectives. Leaders like Senator James Harlan, Rep. Thaddeus Stevens, Sen. Charles Sumner, and Rep. Wilson were virulently anti-slavery. They worked assiduously to draft language that would cover “every proposition regarding slavery.” And they also saw the 13^th amendment as the affirmation of the founder’s principles. Rep. Godlove Orth (R-IN) said that the 13^th Amendment to “be a practical application of that self-evident truth” of the Declaration of Independence “that all men are endowed by their creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness.”

It was in this context that within days of passage of the 13^th Amendment, Members of Congress began debating new statutes to achieve the Thirteenth Amendment’s purposes. The first bill introduced roughly a week after the amendment was ratified was S. 427 by Senator Henry Wilson (R-MA). This bill prohibited states, municipalities, corporations and all persons from excluding any person on account of race from travel on railroads or navigable waters. Although this bill ultimately stalled in Congress, within 2 years four laws using the congress’ enforcement power would be enacted: The Civil Rights Act of 1866, The Slave Kidnapping Act of 1866, the Peonage Act of 1867, and the Judiciary Act of 1867. The Civil Rights Act of 1866 in particular set the pace for an aggressive intervention on the part of Congress on behalf of the newly freed slaves. It provided litigants the right to transfer their legal disputes to federal court when the local and state court system failed to allow them an opportunity for relief. Across the nation the new law aided families and individuals that had never had access to the court or to equal protection of the law.

Unfortunately for the abolitionists, subsequent elections and the deaths of key leaders would result in an ebbing of enthusiasm for use of the 13^th amendment’s authority to remediate the wrongs of slavery. The deaths of Salmon P. Chase, Thaddeus Stevens, and Edwin Stanton were huge losses for the freedom agenda. And new President Andrew Johnson was particularly hostile to their efforts going so far as to veto many of the remaining anti-slavery measures that could pass Congress. But the final death knell for robust authority arising under the 13^th amendment came from the Supreme Court.

In a series of lawsuits groups together as the Civil Rights cases, the Supreme Court struck down parts of the Civil Rights Act of 1875 (18 Stat. 335) originally proposed by Senator Charles Sumner and Representative Benjamin F. Butler (both Republicans) in 1870, passed by Congress in February, 1875 and signed by President Grant on March 1, 1875.

The Act protected everyone, regardless of race, color, or previous condition of servitude, to the same treatment in “public accommodations” (i.e. inns, public conveyances on land or water, theaters, and other places of public amusement). Violators could face a penalty anywhere from $500 to $1,000 and/or 30 days to 1 year in prison. In a setback that the drafters of the 13^th amendment would not have expected, the Supreme Court ruled that the 13^th amendment like the 14^th and 15^th amendment didn’t authorize Congress to intervene in private non-government areas. The Court’s ruling would stifle Congress’ ability to exercise its Section 2 power for nearly a century.

It is ironic that many of the 1875 Act’s provisions were later enacted in the Civil Rights Act of 1964 and the Fair Housing Act, this time using the federal power to regulate interstate commerce.

Eventually the Court would reverse itself. In 1968, in a case called Jones v. Alfred H. Mayer Co. the US Supreme Court case once again dealt with the Civil Rights Act of 1866. In that case they held that Congress could regulate the sale of private property in order to prevent racial discrimination: “42 U.S.C. § 1982 bars all racial discrimination, private as well as public, in the sale or rental of property, and that the statute, thus construed, is a valid exercise of the power of Congress to enforce the Thirteenth Amendment.”

A long time coming, the view of the framers was finally validated. Today as during Reconstruction, Congress, the President and the Courts recognize that Section 2 gives Congress the power to “determine what are the badges and incidents of slavery, and the authority to translate that determination into effective legislation” to prevent its effects.

Horace Cooper is the Director of the Institute for Liberty’s Center for Law and Regulation and is a legal commentator

April 24, 2012

Essay #47

April 24, 2012/3 Comments/by Janine Turner

Amendment XIII: Section 1

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XIII, W.B. Allen, Ph.D. 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XIII, Constitutional Amendment XIII, Constitutional Amendment XIV, Constitutional Amendment XIV, Constitutional Amendment XV, Constitutional Amendment XV, Declaration of Independence, Declaration of Independence, The Missouri Compromise, The Northwest Ordinance, W. B. Allen PhD

Guest Essayist: W.B. Allen, Dean Emeritus, James Madison College; Emeritus Professor of Political Science, Michigan State University

Amendment 13 – Slavery Abolished, Ratified December 6, 1865.

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.

An Ordinance for the Government of the Territory of the United States, North- West of the River Ohio, known as the Northwest Ordinance or “The Ordinance of 1787,” an act of the Congress of the Confederation of the United States, passed July 13, 1787.
Article 6. There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted: Provided, always, That any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labor or service as aforesaid.

The 13th Amendment is often referred to as the first of the “Reconstruction Amendments.” While it is true that the abolition of slavery was certainly the first priority for the Congress that conducted the War for the Union, it is not exactly correct to pair the 13th Amendment with the 14th and 15th Amendments, which were literally debated in the context of the aftermath of the war and specifically adopted to extend the “privileges and immunities” of citizenship to the ex-slaves. The 13th Amendment, by contrast, was debated and adopted by the Congress while the war yet raged, and specifically as blow against the rebellion as well as an affirmation of the principle of equality at the heart of the Declaration of Independence. As such, the 13th Amendment represents the cashing of the promissory note that Lincoln issued at Gettysburg in 1863.

The best way to analyze the 13th Amendment, therefore, is to recognize that it was adopted before the Reconstruction Congress took office. Then one may review the dramatic debates in the House of the Representatives and the Senate over the period from early 1864 until spring of 1865, when the resolution sending the 13th Amendment to the States was adopted. The debates of that era opened with a reports and discussion on “equality before the law,” “emancipation in the District of Columbia,” employment rights for American blacks, streetcar discrimination, and similar issues before eventuating in the direct discussion of national abolition.

What makes this progression of interest is that it reveals the Congress tentatively, cautiously, approaching the tricky question of national emancipation, although having a firm grasp of the fundamental rights at stake. What all conceded the Congress had the authority to legislate for the District of Columbia, some doubted that the Congress could even propose to the nation at large. In the end the idea of the authority of the people as a whole — the ultimate ratification authority — trumped arguments about “dispossession of property” and interfering with the “police power” in the states. The matter was sensitive not so much on account of the attitudes of the states in rebellion; it was sensitive because several Border States still held slaves but had been loyal to the Union. The idea of an uncompensated emancipation seemed a hard blow to many of their advocates and was, besides, a departure from the precedent of British emancipation in the West Indies a generation earlier The argument was summed up by Senator Lazarus Powell, Democrat from Kentucky, April 8, 1864:

“We were told by the Government in every form in which it could speak, at the beginning of this revolution, that whatever might be the result, the institutions of the States would remain as they were. The President in his inaugural address, announced that he had no constitutional power to interfere with the institution of slavery in the States. The Secretary of State announced it in a communication which he sent abroad. Congress, by a resolution, announced virtually the same thing when they declared that the object of the war was to restore the Union as it was and to maintain the Constitution as it is.”

Senator Henry Wilson, Free Soiler and Republican from Massachusetts, however, would have none of it. The question for him was a matter of setting the nation “right” and removing a fundamental flaw in its fabric:

Throughout all the dominions of slavery republican government, constitutional liberty, the blessings of our free institutions were mere fables. An aristocracy enjoyed unlimited power while the people were pressed to earth and denied the inestimable privileges which by right they should have enjoyed in all the fullness designed by the Constitution.

Senator Charles Sumner, Republican from Massachusetts, summed the matter up with the observation that the proposed amendment was nothing less than the fulfillment of a promise first expressed at the founding and periodically renewed (as in the Missouri Compromise) only with great controversy. He pointed out, accordingly, that the proposed amendment was nothing less than “the idea of reproducing the Jeffersonian ordinance.”

A quick comparison of the text of the 13th Amendment with the language of Article 6 from the Northwest Ordinance will reveal the point of Sumner’s observation. What Jefferson authored and the Confederation Congress adopted and the new government under the Constitution of 1787 solemnly re-affirmed was, effectively, the incompatibility of republicanism and slavery. While that early declaration applied only to the Northwest Territory, and subsequently, the territorial division established by the Missouri Compromise (1820), its purpose and language were to declare the fundamentals of republican government, as the Northwest Ordinance on the whole does expansively (leading some to call it the “first national bill of rights”).

Although the 13th Amendment avoids the Ordinance’s language with regard to fugitive slaves, that omission is understandable where the objective is no longer to admit slavery anywhere, rather than to temporize with it where it already existed. It is safe to say, therefore, that the meaning of the 13th Amendment is authoritatively to be recovered from the intentions and meaning of the Northwest Ordinance — not a mere administrative regulation concerning slavery, but rather a dramatic recovery of the fundamental meaning of republican freedom.

W. B. Allen is Dean Emeritus, James Madison College; and Emeritus
Professor of Political Science, Michigan State University

Monday, April 23, 2012

Essay #46

April 22, 2012/2 Comments/by Janine Turner

Amendment XII: Circumstances Allowing the Senate to Choose the Vice-President

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XII, Hans Eicholz 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, 17. Topics, Article II, Constitutional Amendment XII, Constitutional Amendment XII, Declaration of Independence, Declaration of Independence, Hans Eicholz, The Constitution of the United States of America

Guest Scholar: Hans Eicholz, Historian and Senior Fellow with Liberty Fund, Inc., an educational foundation based in Indianapolis, Indiana

http://vimeo.com/40700181

Amendment XII:

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;

The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;

The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.

The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

Circumstances allowing the Senate to choose the Vice-President

The twelfth Amendment of the U.S. Constitution was born out of the immediate political experience of the fledgling republic as it strove to apply the provisions of its written fundamental law just over a decade after ratification.

Historically the powers associated with the executive branch have been among the most dreaded of all governmental functions. In the political struggles of seventeenth century England, the friends of both English and American liberty drew lessons about the need to constrain the prerogatives of monarchs and tyrants. That understanding shaped the indictment against the King of England in the Declaration of Independence, and shaped an important part of the debate over the original Constitutional provisions respecting the election of the American President and Vice-President.

What method of appointment would best assure the selection of leaders with the temperament and virtues necessary to remain under the law? This was the essential question discussed in the Philadelphia Convention when the second Article of the Constitution respecting the selection of the presidency was originally crafted.

Initially, no distinction was to be made in casting ballots for the election of the President and the Vice-President, but each elector was to nominate two individuals. It was hoped that such a process would filter out the influences of local prejudice if each elector were required to vote for a second person not of his or her state. Some consideration, it was believed, would then likely be given to criteria beyond merely local interests. Thus Madison observed, “The second best man in this case would probably be the first in fact.” It was hoped that such a mode of selection, combined with an electoral college, would result in a process far removed from political intrigue and discourage political commotions.

In point of fact, however, that process resulted in considerable discord when the electoral vote was equally split, as happened in the election of 1800 between the two Democratic-Republican candidates of Jefferson and Burr. The equal division of electoral college votes caused the election to be thrown into the House of Representatives.

At this point, and against all expectations, Burr attempted to negotiate with the Federalist representatives in Congress, to obtain the highest office. Eventually thwarted in his machinations, Burr’s dishonorable conduct negated Madison’s initial hopes, revealing that a man of lesser character could yet hold the second position, and if the process of election was not remedied, might at some later election, even take first place through political intrigue and backroom negotiations! For this reason, the Congress set in motion the process to amend the Constitution in the selection of both President and Vice-President on the 9th of December 1803.

The primary alteration of the 12th Amendment required the explicit designation of the office for which each candidate was being designated. It preserved, however, certain aspects of the older provisions of Article II.

The process of the electoral college was maintained to ensure the independence of the executive from the legislative branch.

In matters of tied elections, it continued to send the selection of the Presidency to the House of Representatives, but with the selection of the two officers now split, the selection of a Vice-President in cases of an electoral tie, would go directly to the Senate.

In both cases, this process arose from the general principle of the Founders that in addition to the popular element reflected in the selection processes of the electoral college, regional considerations should continue to have their influence. The United States was not to be seen as simply one homogeneous national democracy, but was also a federal union of distinct state governments, a vital part of ensuring against the over concentration of power.

To this end, when breaking a Presidential tie, the House was to assemble its delegates by states and each state was to determine its votes as one: “the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote.”

Likewise, the Senate, being already organized on the federal principle, would break an electoral tie vote for Vice-President. Indeed, under the old system, the Senate was to perform this function in the event that the next most popular electoral candidates after the Presidential selection, were also tied. This portion of the 12th Amendment merely preserved that order of selection.

Hans Eicholz is an historian and Senior Fellow with Liberty Fund, Inc., an educational foundation based in Indianapolis, Indiana.

April 20, 2012

Essay #45

April 19, 2012/0 Comments/by Janine Turner

Amendment XII: A Tie in the Electoral College

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XII, Tara Ross 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Article II Section 1 Clause 2, Constitutional Amendment XII, Constitutional Amendment XII, Tara Ross

Guest Essayist: Tara Ross, Author, Enlightened Democracy: The Case for the Electoral College

Amendment XII:

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;

The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;

The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.

The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

Amendment XII: A Tie in the Electoral College

Anti-Electoral College activists sometimes worry that the presidential election could end in a tie. Such a scenario, they might grouse, would create a “stalemate” and could even lead to “The Apocalypse.”

But an electoral tie has occurred already. This election did not result in the Apocalypse, but, as yesterday’s post discussed, there were a few days of congressional stalemate before a President was elected. The then-new nation did not devolve into chaos and rioting. Instead, the biggest consequence of the electoral tie was the Twelfth Amendment. These provisions replaced Article II, Section I, Clause 3 of the Constitution and make it harder (but not impossible) for a presidential election to end in a tie.

The Twelfth Amendment works hand-in-hand with the still operative Article II, Section I, Clause 2: This clause makes each state responsible for deciding how to appoint its own electors. In early elections, state legislatures employed a wide variety of methods—sometimes even selecting electors on their own. Today, all states conduct statewide popular elections for this purpose.

In short, when you go to the polls on Election Day, you are not voting for presidential candidates, even if it seems that way. In reality, you are voting for a slate of individuals, called electors. Most states award their electors in a “winner-take-all” fashion, so the winner of the state receives the state’s entire slate of electors. As an example, Barack Obama “won” the State of Rhode Island in 2008. But what that really meant is that four Democratic electors—not Obama himself—were elected by Rhode Islanders on that day.

The Twelfth Amendment dictates the constitutional responsibilities of electors. The primary responsibility of these Rhode Island electors, along with other electors from the remaining states, was to represent their states in a second election—the real presidential election.

This election among states’ electors occurs on a congressionally designated day in December. The Twelfth Amendment requires that each elector cast two ballots: one for a presidential candidate and one for a vice-presidential candidate. This requirement was a change from the Article II provision, which did not allow electors to distinguish between their votes for President and Vice-President. Both Article II and the Twelfth Amendment require that electors cast at least one ballot for someone who is not “an inhabitant of the same state with themselves.”

In practice, this means that a political party will handicap itself if it nominates presidential and vice-presidential candidates from the same state, because it automatically loses some votes from the home state of one candidate. In 2000, this provision caused Dick Cheney to make a point of establishing his residence in Wyoming. Had both Cheney and George W. Bush hailed from Texas, those electors would have been unable to vote for Cheney and Bush simultaneously.

After electors cast their ballots, their votes are recorded on “Certificates of Vote,” one of which goes to the President of the Senate, as required by the Twelfth Amendment. The President of the Senate presides over a joint session of Congress on January 6, and the votes are counted publicly at that time.

To be elected President, a candidate needs a majority of electoral votes. At this time, 270 votes constitute a majority of the Electoral College and will win the presidency for a candidate. If no candidate wins a majority, the Twelfth Amendment provides a back-up method for presidential selection. In this secondary election, the election of the President is sent to the House and the election of the Vice-President is sent to the Senate.

In the House vote, the Twelfth Amendment provides that each state delegation is granted one vote. (This remains unchanged from the original Article II procedure.) California, with its current delegation of fifty-three Congressmen, would cast one vote, as would South Dakota, with its single Congressman. A President is elected when one candidate wins a majority of states. Article II had allowed the House to choose from the top five presidential candidates (or two in the event of certain ties), but the Twelfth Amendment now requires the House to choose from only the top three presidential candidates.

The Twelfth Amendment also added a new procedure for election of the Vice-President: In the event that no candidate receives a majority, the Senate chooses from the top two vice-presidential candidates. Each Senator has one vote; Senators may vote for either of the top two vice- presidential contenders.

This system exists largely as it was originally proposed by the Constitutional Convention. The Twelfth Amendment tweaked the process, but substantively left the original procedure in place. Unfortunately, this system is now under attack.

The National Popular Vote movement seeks to convince a critical mass of states to award its electors to the winner of the national popular vote, instead of the winner of each state’s popular vote. NPV asks states to sign an interstate compact—basically, a contract—promising to take such action if enough other states sign on. If the movement succeeds, the constitutional election processes described in the Twelfth Amendment will remain only in theory. In practice, they will be gone. Instead, Presidents will be selected through a direct election system.

Surely the Founders would be disappointed in such a result. The Electoral College was a compromise between large and small state delegates at the Constitutional Convention. The delegates wanted the voice of the people to be reflected in the presidential election process, but they also recognized the need to protect minority groups—especially the small states—from the tyranny of the majority. Just as the composition of Congress reflected compromises between the large and small states, so did the presidential election procedure. Even the House contingent election, so disparaged by Electoral College opponents, was an important part of this compromise because of the advantage that it gave to small states.

The delegates would view efforts to abandon the Electoral College as unwise. Max Farrand reports on the delegates’ views in The Framing of the Constitution of the United States: “[F]or of all things done in the convention the members seemed to have been prouder of that than of any other, and they seemed to regard it as having solved the problem for any country of how to choose a chief magistrate.”

Yes, the Electoral College is the solution for any country and any decade. The system that has served Americans so well for so long will continue to do so. If we let it.

Tara Ross is the author of Enlightened Democracy: The Case for the Electoral College. More information about Tara can be found at www.taraross.com or on Facebook or Twitter.

April 19, 2012 – Essay #44

http://vimeo.com/40636737

April 18, 2012/4 Comments/by Janine Turner

Amendment XII: Reforming the Electoral College

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XII, Tara Ross 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, 17. Topics, Constitutional Amendment XII, Constitutional Amendment XII, Electoral College, Tara Ross, The Constitution of the United States of America

Guest Essayist: Tara Ross, Author, Enlightened Democracy: The Case for the Electoral College

Amendment XII:

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;

The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;

The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.

The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

Amendment XII: Reforming the Electoral College

America’s first four presidential elections were governed by Article II of the Constitution. The process worked well initially, which is perhaps unsurprising in retrospect. Nearly everyone expected that the revered General George Washington would be the nation’s first President. These expectations came to fruition when he was unanimously elected twice, in 1789 and 1792. The first contested presidential election did not occur until 1796.

This contested election nearly revealed a flaw in the voting process. But the next election, in 1800, brought the flaw more sharply into view, and it laid the groundwork for the introduction and ratification of the Twelfth Amendment. The provisions of this Amendment would replace Article II, Section 1, Clause 3 of the Constitution.

The problem stemmed from the fact that the original constitutional provision did not allow presidential electors to differentiate between their votes for President and Vice-President. Electors were simply expected to cast two ballots for President. When these votes were tallied, the first place winner became President and the second place winner became Vice-President. Such a process made sense in 1787, before the appearance of political parties. It made less sense after, as demonstrated during the election of 1800.

That year, the Democratic-Republican Party nominated Thomas Jefferson for President and Aaron Burr for Vice-President; the Federalist Party nominated John Adams and Charles Pinckney. Today, such nominations might seem rather routine, but in 1800, the practice of nominating separate candidates for President and Vice-President was relatively new.

When the vote was tallied, it was discovered that Jefferson and Burr had tied. Although the electors had intended to elect Jefferson for President and Burr for Vice-President, they were not permitted to distinguish between their votes for the two offices. The result was an electoral tie that threw the election into the Constitution’s secondary election procedure, known as the House contingent election.

At the time, the House was still controlled by the outgoing Federalist Party. Many Federalists did not like Jefferson and hoped to thwart his election by supporting Burr. Meanwhile, the Democratic-Republican congressmen continued to support their intended presidential candidate, Jefferson. A stalemate continued for the better part of a week. Neither Jefferson nor Burr could obtain the nine state votes needed for victory. Six days and thirty-six ballots later, one Congressman finally yielded, paving the way for Jefferson’s victory.

In the wake of such events, it was not long before a constitutional amendment was proposed to separate the voting for President and Vice- President. Such a solution might seem obvious to modern ears, but it was controversial in the early 1800s. The minority party, the Federalists, argued that the election process, as it then stood, made it possible for the minority party to have a representative in the executive branch. Some Democratic-Republicans also hesitated to change the election procedure. The Article II process had helped them in 1796 when John Adams, a Federalist, was elected President. Despite Adams’s victory, Jefferson had been able to defeat the Federalist vice presidential candidate, Thomas Pinckney.

The proposed constitutional amendment failed to pass the Senate by a single vote when it was first proposed in 1801. In 1803, however, the Twelfth Amendment finally gained enough support to pass both the Senate and the House. North Carolina became the first state to ratify the amendment on December 21, 1803. The amendment became effective when New Hampshire ratified it on June 15, 1804. Tennessee ratified it later, on July 27, 1804. Three states rejected the amendment.

The election process was tweaked and adjusted following the election of 1800, yet today it remains largely as the Founders created it. As a first step, the states cast electoral votes in the nationwide presidential election. If no candidate wins a majority of these state votes, then the House of Representatives must decide which of the top candidates will be the next President.

Tomorrow’s post will explain how this process—created by Article II and slightly modified by the Twelfth Amendment—continues to operate in presidential elections today.

Tara Ross is the author of Enlightened Democracy: The Case for the Electoral College. More information about Tara can be found at www.taraross.com or on Facebook or Twitter.

April 18, 2012 – Essay #43

http://vimeo.com/40570764

April 17, 2012/1 Comment/by Janine Turner

Amendment XI: Right of States to Sovereign Immunity

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XI, Joerg W. Knipprath 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article III, Constitutional Amendment XI, Constitutional Amendment XI, Federalist No. 81, Joerg W. Knipprath, The Constitution of the United States of America

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

http://vimeo.com/40522514

Amendment XI:

The Judicial power of the United States shall not be construed to extend to any suit or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

“The prince is not bound by the laws.” Thus wrote the lawyer-scribes who compiled the early-6^th century compendium of Roman law known as the Code of Justinian. This aphorism defined a fundamental attribute of sovereignty. The sovereign has ultimate authority to make law. Therefore, he cannot be subject to a superior power that could adjudicate a claim that he has violated the law, since that would deny his ultimate authority.

In English constitutional theory, this principle became, “The King can do no wrong.” It was a mainstay of the early modern state and the Tudor and Stuart kings. In somewhat more circumscribed manner, it survived the Glorious Revolution of 1688 and became sufficiently tame as a political construct to be acceptable to English republicans and, through a later formulation, to their counterparts in the American states.

Few, if any, took this point literally, any more than Catholics deem the Pope literally infallible. As William Blackstone explained, the principle was simply that, “whatever may be amiss in the conduct of public affairs is not chargeable personally on the king.” In addition, the law “feels itself incapable of furnishing any adequate remedy, without infringing the dignity and destroying the sovereignty of the royal person.” For Blackstone, as for Justinian’s lawyers and for jurists before and since, the principle was driven by practicality, of not subjecting the ultimate political decision makers to suit over every injury, grave or slight, arising from making and executing public policy. Blackstone allows, however, that the king’s officials and ministers could be called to account for the wrongs that they did in erroneously carrying out public affairs to the injury of someone’s person or property.

Under American theory, constitutional sovereignty shifted from the king to the people. The “people” are incorporated into the states and the United States. In ordinary matters of public policy, practical sovereignty lies in the legislatures. Despite the unfortunate tendency of some political groups towards deification of the State, a fiction that “the people can do no wrong” sounds alien to our ears. Still, the Supreme Court has broadly recognized the principle of “sovereign immunity” as having been carried over from English common law to the states when they declared independence in 1776. Moreover, the Court has underscored the universal nature of sovereign immunity by endorsing it for the United States, as well. One justification the Court has given sounds positively Blackstonian, namely, that a power to haul a state into court without its consent would be an affront to the state’s “dignity.”

The justices have also expressed particular opposition to money claims against a state. Their position may reflect the constitutional reticence of an unelected body to order funds to be appropriated when such funds would have to be raised by taxing or borrowing (“No taxation without representation”). More likely, it recognizes the political reality that courts have no real means to enforce such an order against an unwilling legislature.

Yet, Article III of the Constitution explicitly permits suits in federal court between states and various opponents, from the United States to foreign countries and their citizens, to other states and their citizens. It was argued that, by approving the Constitution, the states to that extent surrendered their sovereign immunity. So, too, thought Alexander Chisholm, the executor for one Robert Farquhar of South Carolina, when he attempted in 1793 to collect on a debt owed to the deceased by the State of Georgia for goods supplied to that state during the Revolutionary War. Georgia had refused to pay for the supplies on the convenient excuse that Farquhar was a British loyalist, though apparently a not-too-principled one.

Chisholm sued Georgia in the Supreme Court. Indeed, he was able to get the attorney general of the United States, Edmund Randolph, to argue the case for him. Georgia, relying on its sovereignty, deigned not even to appear so as not to give legitimacy to this judicial affront to its dignity, though it sent the justices a letter of protest denying their jurisdiction to hear the case. The justices ruled 4-1 against the state, on the aforementioned ground that the states had surrendered aspects of their sovereignty as the text of Article III makes clear, and, in Justice James Wilson’s scholarly opinion, on the ground that states as such were not sovereigns at all.

However, the majority may have got it wrong. The Constitution permits suits “between a State and Citizens of another State.” The Chisholm justices suggested that “between” meant the suit could be brought by the state or by the citizen. But the order of parties in the text could also mean that only the state could bring the suit, especially in light of the common law prohibition of suits against unwilling sovereigns.

Significantly, the wording of Article III alarmed Antifederalists during the ratification debates. Alexander Hamilton, in Federalist 81, responded by imagining a hypothetical dispute brought by a citizen of one state against another state over public securities, such as bonds, issued by the latter. This almost exactly foretold Chisholm. Hamilton strongly defended the states’ immunity from suit as natural to sovereignty and reflecting general practice. He belittled the reasoning later advanced by the Chisholm justices as arising from mere implication and a “forced and unwarrantable” construction of the Constitution’s language.

The virulent reaction in the states against the Chisholm case supports Hamilton’s reading of the Constitution. States-rights supporters saw the decision as confirming their suspicion that the new constitution’s federal structure was a smokescreen to deprive the states of their sovereignty and reduce them to “tributary corporations” to the national government. A more concrete and immediate concern was that the decision opened the door for states to be sued over many unresolved war claims, a course that threatened their financial solvency.

In response, Congress proposed the Eleventh Amendment in 1794, which the states approved in less than one year, a record speed. While the Amendment prohibits only suits in federal court and only against a state by citizens of other states or foreign countries, the Supreme Court has held that the Amendment is just a particular example of the broader principle of sovereign immunity. The Court has ruled that a state also cannot be sued by its own citizens or in its own courts without its consent.

Does that mean that citizens are unable to have their rights vindicated against injurious government conduct? Not at all. Similar to what Blackstone opined was English practice, the Supreme Court has recognized a significant exception that allows suits against state officials, if such suits do not, in effect, seek money damages to be pried out of the state treasury. Thus, a state official can be sued to order him to refrain from engaging in violations of the petitioner’s constitutional rights. State sovereign immunity also does not prevent suits against cities and other local bodies. In limited cases, Congress can restrict the states’ sovereign immunity by statute. The United States in some instances can sue states to challenge violations of individual rights created under federal statutes. If a state initiates an action against a defendant, he can bring claims and defenses against the state arising out of the state’s suit.

Finally, the states can consent to be sued for injuries committed by their officials. It may seem counter-intuitive that governments would agree to be sued, but they generally have done so by laws that wholly waive their immunity (California) or that waive it in specified instances (the United States). Such consent meets political demands for compensation of injured parties, and it is more efficient than the previous alternative of having legislators laboriously introduce private bills of relief to be passed as ordinary laws.

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

April 17, 2012

Essay #42

April 16, 2012/3 Comments/by Janine Turner

Amendment X: Modern Issues of States’ Rights

Analyzing the Amendments in 90 Days 2012 Project, Brion McClanahan, Ph.D., Constitution Amendment X 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 08, Bill of Rights, Brion McClanahan PhD, Constitutional Amendment X, Constitutional Amendment X, The Constitution of the United States of America

Guest Essayist: Brion McClanahan Ph.D., author of The Founding Fathers Guide to the Constitution

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Amendment X:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Modern Issues Of States’ Rights
Ninety percent, if not more, of what the central government does today is unconstitutional. All of the following legislation violates the Tenth Amendment: national healthcare, welfare, all federal education programs, federal highway construction and funding, the National Defense Authorization Act, gun control, the Federal Reserve System, etc., and these are just some of the large issues. An itemized list based on a modern federal budget would be too substantial to publish in a book length project, let alone a short essay. Proponents of the Tenth Amendment in the founding generation viewed it as a necessary check on the power of the general government and in particular the famous “sweeping” or “elastic” clauses of the Constitution, i.e., the “general welfare clause,” the “supremacy clause,” the “necessary and proper clause,” and now the infamous “commerce clause.” The Tenth Amendment was designed to keep domestic issues under the purview of the States and leave matters of commerce (meaning interstate and international trade) and defense in the hands of the general authority. In essence, every time the central government abuses its Constitutional authority it is violating the Tenth Amendment. But for the sake of argument, the most important and egregious violations of the Tenth Amendment today are as follows:

“Obamacare”: Regardless of what the Supreme Court decides in June, the “Affordable Care Act” is a gross violation of the Tenth Amendment to the Constitution. In fact, the States would do well to individually strike it down by invoking the Tenth Amendment, as Thomas Jefferson and James Madison did with the Virginia and Kentucky Resolutions of 1798 in response to the blatantly unconstitutional Sedition Act. As per Article 1, Section 8, regulating healthcare is not one of the delegated powers of the general government, and the commerce clause does not apply in this case because the general government cannot regulate the commercial exchange of individuals nor can it mandate that individuals engage in a commercial activity. Proponents of the Constitution continually argued in 1787 and 1788 that if the Constitution was mute on an issue, then the general government did not have the said power. The States, however, can, and thus if the States want to address healthcare, and the respective State constitution allows it, they are free to do so.

The National Defense Authorization Act for 2012: While this piece of legislation has support among Republicans, it unconstitutionally enlarges the powers of the executive branch and has the potential to place all American citizens under martial law, thus unconstitutionally suspending the civil court system in the United States. The general government cannot constitutionally interfere with the State judicial systems nor can it constitutionally give the executive branch the power to suspend habeas corpus. Those are not delegated powers in the Constitution and thus violate the Tenth Amendment. Abraham Lincoln unilaterally suspended habeas corpus in 1861 and while Attorney General Edward Bates supported it and the Congress retroactively “authorized” it, he was heavily criticized at the time. The Supreme Court even struck down his heavy handed tactics and later negated congressional attempts to supersede State courts with military tribunals during the Reconstruction era. Congress has forgotten or neglected to remember those decisions.

The Federal Reserve: The FED is at the heart of the current economic meltdown, and central banking has long been a contentious issue in American politics. During the Philadelphia Convention in 1787, the Pennsylvania delegation suggested giving the power for chartering a bank to the Congress but were soundly defeated. No matter. In 1791, Alexander Hamilton made a central bank “constitutional” by stretching the “necessary and proper clause” of the Constitution, something he said would never happen when arguing for ratification in the Federalist essays. The Bank of the United States failed re-charter in 1811 but was replaced with another in 1816, with James Madison’s support. His reason was dubious. Time and circumstances, he said, had made the Bank constitutional. Central banking supporters never looked back. Of course, Andrew Jackson destroyed this Second Bank of the United States, but the legislative precedent had been set. When the “Creature of Jekyll Island,” also known as the Federal Reserve System, appeared in 1913, thanks to Hamilton, Madison, and John Marshall who ruled the Bank was constitutional in the infamous 1819 McCulloch v. Maryland decision, no one questioned its constitutionality. But, if Americans followed the Constitution as ratified and amended by the Tenth Amendment, the Federal Reserve would fail the constitutional sniff test. Chartering a bank or a central banking system is not a delegated power of the general government.

All Social Welfare Legislation Including Education and Entitlement Spending: In the 1942 Supreme Court decision Wickard v. Filburn, the Court found that anything that might be considered “interstate commerce” fell under the authority of federal regulation, including economic activity such as growing your own food on your own land. In essence, the “commerce clause” has become the “Hey, you-can-do-whatever-you-feel-like Clause,” as federal judge Alex Kozinski pointed out in 2005. All federal social welfare spending falls either under the so called “commerce clause” or the “general welfare clause,” and according to the founding generation both were restricted by the Tenth Amendment. None of this legislation can be found in the enumerated powers of Article 1, Section 8 unless they are “stretched,” something opponents of the Constitution feared would happen. That was the driving force behind a “States’ Rights” amendment in the Bill of Rights to begin with. If the States had a backbone (and were not slopping at the federal trough) they would interpose their control over such issues, invoke the Tenth Amendment, and strike them from the books.

In 1788, Tench Coxe of Pennsylvania, an ardent supporter of the Constitution and member of the Continental Congress, wrote that,

[The general government] cannot interfere with the opening of rivers and canals; the making or regulation of roads, except post roads; building bridges; erecting ferries; establishment of state seminaries of learning; libraries; literary, religious, trading or manufacturing societies; erecting or regulating the police of cities, towns or boroughs; creating new state offices, building light houses, public wharves, county [jails], markets, or other public buildings…nor can they do any other matter or thing appertaining to the internal affairs of any state, whether legislative, executive, or judicial, civil or ecclesiastical.

And later he said, “In short besides the particulars enumerated, every thing of a domestic nature must or can be done by them [the States].” Translation, the general government in Washington D.C. cannot constitutionally do most of what it does today. To proponents of a Bill of Rights, the Tenth Amendment was there to legally ensure Coxe was correct. The Tenth Amendment is more than a protection of “States’ Rights,” it is a check on a tyrannical and unconstitutional abuse of authority by the central government.

Brion McClanahan holds a Ph.D. in American History from the University of South Carolina. He is the author of The Founding Fathers Guide to the Constitution (Regnery History, 2012), The Politically Incorrect Guide to the Founding Fathers (Regnery, 2009), and Forgotten Conservatives in American History (forthcoming with Clyde Wilson, Pelican, 2012).

April 16, 2012

Essay #41

April 15, 2012/7 Comments/by Janine Turner

Amendment X: Rights Reserved to the States and the People

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment X, George Landrith 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment X, Constitutional Amendment X, George Landrith, The Constitution of the United States of America

Guest Essayist: George Landrith, an attorney and President of Frontiers of Freedom

http://vimeo.com/40278141

Amendment X:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The Tenth Amendment:
Protecting Freedom Against Big Government

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The Tenth Amendment protects Americans from big, intrusive federal government action. The heart of the Tenth Amendment is that the federal government has only those powers explicitly listed in the Constitution and all other powers are reserved to the States and to the people, and therefore explicitly denied to the federal government.

In contrast, state governments have all powers not explicitly prohibited or withheld by the state constitution or by the U.S. Constitution. Thus, states have broader powers and can, do things that Congress cannot do. For example, states can require young students to attend school and drivers to purchase automobile insurance.

Too often those in Congress and the White House assume that the federal government can do whatever the majority wishes. However, the Founders clearly and explicitly intended to prevent the majority from doing whatever it wished. Thus, they gave the federal government a very limited and carefully chosen list of powers and they reserved all other powers for the states and the people. They also provided an elaborate system of checks and balances – all to limit the power of the majority to impose its will.

The Founders felt so strongly about limited federal power as a bulwark of liberty that they added the Ten Amendment as the final exclamation point in the Bill of Rights – the federal government could not trample the rights of the people by assuming powers that it did not have, and that had been reserved to the states and the people.

At the heart of the debate over Obamacare before the Supreme Court is the question – does the federal government have the authority under the U.S. Constitution to require citizens to purchase a product? If the justices can read and understand the simple language of the Constitution, they will strike down the law because the federal government does not have the authority to do what it attempted to do in this statute.

This author is not a supporter of the Massachusetts healthcare law, but it is constitutional. There are significant differences between the Massachusetts law and ObamaCare, but perhaps the biggest difference is that Massachusetts had the authority to pass its healthcare law. That doesn’t mean it was a good idea, it just means it was constitutional. But the federal government did not have the authority to pass Obamacare. Obamacare exceeds the enumerated and limited powers given to the federal government and the limitations of the Tenth Amendment.

The Tenth Amendment is also an explicit statement of the governing principle of federalism. Federalism is the idea that there is a national government with limited powers and there are state governments with broader powers, both receiving their authority from the people. Simply stated, federalism recognizes the fact that the states are not merely political subdivisions of the federal government, but that they are separate governmental units that derive their power directly from the people and not from the federal government.

These are not old fashioned or outdated ideas. They constitute real and practical protections against the bullying powers of big government on the federal level. The Founders put in place checks and balances, limitations on power, and divisions of power – all designed to keep federal government from becoming too big, too powerful, and too intrusive. The Tenth Amendment is key to their wise designs to limit the power and scope of the federal government.

George Landrith is an attorney and the President of Frontiers of Freedom

April 13, 2012

Essay #40

April 12, 2012/2 Comments/by Janine Turner

– Guest Essayist: Dr. John S. Baker, Jr., Distinguished Scholar in Residence, Catholic University School of Law; Professor Emeritus, Louisiana State University Law Center

http://vimeo.com/40200787

Amendment X:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

THE TENTH AMENDMENT

Statements about the Tenth amendment tend towards opposing extremes. Some cite the Amendment in claiming more powers than the Constitution actually leaves in the states. On the other side, some claim that the Amendment is merely a “truism,” implying it does virtually nothing. The actual meaning of the Amendment lies in between these two one-sided views.

The Tenth Amendment reads as follows:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The most important word is the one that does not appear in the text, i.e., “expressly.” It is common for those who place great weight on the Tenth Amendment to state incorrectly that the Amendment says “powers not expressly delegated to the United States…” The Amendment, however, pointedly omits the word expressly.

By contrast, somewhat similar language in the Articles of Confederation did include the word expressly.
Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled. (emphasis added)

What difference in meaning does the word “expressly” make? The difference is that which distinguishes a confederation from a government. The Articles of Confederation provides that “The said States hereby severally enter into a firm league of friendship with each other…” (emphasis added). The Articles recognize that the States retained their full sovereignty and entered into a special kind of alliance or league. The Articles constitute a treaty involving multiple sovereignties and having several purposes. As a treaty, however, it is still a contract and each State delegates only those powers expressly written into the contract. Although “[t]he Articles thereof shall be inviolably observed by the States,” the document creates no government having the power to enforce its provisions. It provides only for states to send representatives to meet as the “United States in Congress” and to manage those powers expressly given.

The Constitution that emerged from the Convention, as all understood, was not a confederation or simply a league of friendship. Opponents of the Constitution, known as the Antifederalists, concluded that therefore the Constitution would create a consolidated or centralized government. The Federalist (written by Madison, Hamilton and Jay under the pseudonym of “Publius”) countered that the Constitution created a federal government of only limited powers and left most powers of government in the states.

Not persuaded, the Antifederalists contended that the Constitution’s limits on the federal government could and would be swept aside by its “necessary and proper clause.” Their arguments in opposition to the Constitution emphasized the document’s lack of a bill of rights. They urged that a statement of rights was necessary to protect liberty by limiting the power of the federal government and specifically to undo the effect of the “necessary and proper” clause.

The Constitution drafted at the Constitutional Convention contained no bill of rights. This was not an oversight. The Convention voted down George Mason’s proposal that a bill of rights be added. Moreover, during the Ratification period, The Federalist (#84) argued “that bills of rights, in the sense and to the extent they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous.” A bill of rights was unnecessary because “a minute detail of particular rights is certainly far less applicable to a constitution like that under consideration, which is merely intended to regulate the general political interests of the nation.” It was dangerous because it “would contain various exceptions to powers not granted; and on this very account, would afford a colourable pretext to claim more than was granted.”

The Federalists and Antifederalists held opposing ideas about the best means to protect liberty. Whereas the Antifederalists gave priority to bills of rights, the Federalists distrusted the efficacy of such “parchment barriers.” Rather the Federalists drafted the Constitution on the premise that protecting liberty requires a structure of separation of powers within the federal government and a division of powers between the federal and state governments. For that reason, The Federalist said “The truth is … that the constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS.”

Predictions of both the Antifederalists and Federalists have proved in part to be accurate. As the Antifederalists feared, the Necessary and Proper Clause has been used to expand the powers of the federal government greatly at the expense of the states, a trend aided (as discussed in a later essay) by the Seventeenth Amendment. The Federalists were correct that the Bill of Rights, aided by the Fourteenth Amendment’s judicially-developed doctrine of Incorporation, has been used to expand the powers of the federal government at the expense of the states.

The foundational explanation of the Necessary and Proper Clause came in Chief Justice Marshall’s opinion in McCulloch v. Maryland (1819). The opinion addressed the Necessary and Proper Clause as an additional, not the primary, reason for upholding the constitutionality of the Bank of the United States. Jeffersonian Republicans, many of whom had been Antifederalists, opposed this decision as an unconstitutional expansion of Congress’s powers. Chief Justice Marshall’s opinion, however, was perfectly consistent with, and generally tracked language in several essays from, The Federalist.

Over the years, especially since the New Deal, the centralizers of national power have often relied on a distorted interpretation of the Necessary and Proper clause which disregards the fundamental principle that the federal government is one of limited powers. Accordingly, they dismiss the Tenth Amendment as simply a “truism.” The defenders of state power, on the other hand, emphasize the Tenth Amendment, almost as if nothing else in the Constitution matters. They generally fail to understand The Federalist explanation – confirmed by Chief Justice Marshall’s opinion in McCulloch – that Congress has the fullness of those powers actually given to Congress and that the Constitution includes the Necessary and Proper Clause in order to leave no doubt about the fullness of the powers actually given.

When during the First Congress James Madison spoke for the Bill of Rights he had introduced, among other points he argued that they were of “such a nature as will not injure the Constitution.” Specifically, what became the Tenth Amendment did not injure the Constitution because it did not convert it to a confederation. That is to say, the Tenth Amendment pointedly did not use the word expressly.

As to any power actually given by the Constitution, Congress has the fullness of that power. Congress’s exercise of power is nevertheless limited– first by the fact that it is not given every power of government. Secondly, Congress encounters procedural limits on the implementation of its enumerated powers due to bicameralism and separation of powers. The division of powers between the federal and state governments which effectively limited Congress’s exercise of enumerated powers has been undermined by the Seventeenth Amendment’s provision for direct election of senators.

The U.S. government has over the years consolidated power to a degree feared even by the Federalists, and much more so by the Antifederalists. To point solely to the Tenth Amendment, however, as the primary limit on the expansion of federal power is to misunderstand the Constitution. The Tenth Amendment is a ‘truism” in the sense that it merely confirms that the Constitution creates a federal government with a limited number of powers, those related to national defense, foreign affairs, foreign trade, and trade among the states. See Federalist # 23 and #45. Like the Necessary and Proper Clause, a proper interpretation of the Tenth Amendment must be connected to the Constitution’s structure of divided and separated power.

Dr. John S. Baker, Jr. is the Distinguished Scholar in Residence at Catholic University School of Law and Professor Emeritus of Law at Louisiana State University Law Center.

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April 12, 2012

Essay #39

April 11, 2012/4 Comments/by Janine Turner

Amendment IX

Analyzing the Amendments in 90 Days 2012 Project, Brion McClanahan, Ph.D., Constitution Amendment vIX 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Brion McClanahan PhD, Constitutional Amendment vIX, Constitutional Amendment vIX, Constitutional Amendment X, Constitutional Amendment X, Federalist No. 84, The Constitution of the United States of America

Guest Essayist: Brion McClanahan Ph.D., author of The Founding Fathers Guide to the Constitution

http://vimeo.com/40152775

Amendment IX:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

In the waning days of the Philadelphia Convention in 1787, George Mason of Virginia, Elbridge Gerry of Massachusetts and Luther Martin of Maryland began pressing for the addition of a comprehensive bill of rights to the final draft of the Constitution. Roger Sherman of Connecticut immediately rejected their plea. A bill of rights, he said, was unnecessary because “The State Declarations of Rights are not repealed by this Constitution; and being in force are sufficient….” Sherman, a man who Thomas Jefferson regarded as one of the finest statesmen of the founding generation, reasoned that because the Constitution was mute on civil liberties and because it was a document with delegated and enumerated powers for the general purposes of the Union—the States United—the general government could no more legislate on matters of trial by jury than it could on the minutia of state law. Gerry’s proposal to form a committee to draft of a bill of rights was unanimously defeated (votes were by State), and as a result Mason said he would rather cut off his right hand than sign the document. This exchange began the process for codifying the language of the Ninth Amendment.

During the ratifying process in the State conventions, several leading proponents of the document made arguments against a bill of rights that mirrored those Sherman gave in the Philadelphia Convention. James Wilson of Pennsylvania, perhaps the most ardent nationalist among the founding generation, said in the Pennsylvania Ratifying Convention that “A bill of rights annexed to a constitution is an enumeration of the powers reserved. If we attempt an enumeration, every thing that is not enumerated is presumed to be given. The consequence is, that an imperfect enumeration would throw all implied power into the scale of the government, and the rights of the people would be rendered incomplete.”

Alexander Hamilton of New York, the most famous nationalist of the founding period, echoed Wilson in Federalist No. 84. Adding a bill of rights, he said, “would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?” Both Hamilton and Wilson contended that a bill of rights would destroy liberty rather than protect it by allowing scheming men to enlarge the power of the central authority. In short, if a particular liberty was not protected by the list of rights, they believed it could be assumed that the government had the power to abridge that liberty. And, since all powers delegated to the general government were enumerated in the Constitution, they wondered why open that Pandora’s Box?

Thus, the modern Ninth Amendment was born. As proposals for a bill of rights flooded into James Madison’s hands in the months after the Constitution was ratified, he quickly realized that individuals needed assurances that their liberties would not be circumscribed by the Constitution nor would they be left to flutter in the wind should ambitious men usurp power from the States or the people. The Tenth Amendment protects the States and most importantly the federal compact among the States. The Ninth does the same for the people individually by implicitly recognizing the validity—and to the founding generation supremacy—of the several State declaration of rights. It is an enhancer. The original preamble to the Bill of Rights expressly stated that they were “restricting clauses” on the general government only. The Ninth Amendment ensured that the powers of the general government as operating on individuals would be further checked by the States. State declaration of rights often tended to be more detailed and comprehensive and therefore served as a more effective shield for the people.

Madison said in 1789 that Hamilton’s argument against the Bill of Rights was “one of the most plausible…I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against.” He was referring to the Ninth Amendment. Of course, the powers of the general government in the modern era have spiraled out of control and today the two most ignored Amendments in the Bill of Rights are the Ninth and Tenth, arguably the most important Amendments to the founding generation. The States have always stood at the vanguard of individual liberty. American citizens should remember that their first line of defense against both the State and Federal government rests in their separate State bill of rights. The founding generation believed that those declared rights coupled with the Ninth Amendment would prevent the modern leviathan in Washington D.C. We need to protect their legacy.

Brion McClanahan holds a Ph.D. in American History from the University of South Carolina. He is the author of The Founding Fathers Guide to the Constitution (Regnery History, 2012), The Politically Incorrect Guide to the Founding Fathers (Regnery, 2009), and Forgotten Conservatives in American History (forthcoming with Clyde Wilson, Pelican, 2012).

April 11, 2012

Essay #38

April 10, 2012/4 Comments/by Janine Turner

Guest Essayist: W.B. Allen, Dean Emeritus, James Madison College; Emeritus Professor of Political Science, Michigan State University

http://vimeo.com/40060581

Amendment 9 – Construction of Constitution. Ratified 12/15/1791.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The 9^th Amendment to the Constitution was one of twelve submitted to the states for ratification in fall, 1789. Ten of the twelve were ratified by December 15, 1791, and came to be known as the “Bill of Rights.” An eleventh, the 27^th Amendment, was ratified May 7, 1992. The final of the twelfth, applying the relevant terms of the “Bill of Rights” to the states was never ratified. However, the Supreme Court in the 20^th Century adopted a doctrine of “incorporation” which imported many of the guarantees of the “Bill of Rights” as applying against the states through the 14^th Amendment, adopted during the process of Reconstruction following the 1861-65 War for the Union.

The context for interpreting the 9^th Amendment, therefore, is focused on the controlling ideas informing the “Bill of Rights.” The Supreme Court has never provided clear guidance concerning the 9^th Amendment itself. A fundamental principle of constitutional interpretation, however, is that every article bears some intentional meaning which remains significant in understanding at minimum the intentions of the framers and the design of the institutions of self-government framed by the Constitution. In that sense, we may take the 9^th Amendment to refer primarily to the question of the breadth of the guarantees mentioned in the other articles of the “Bill of Rights.” This follows the debate that took place over the ratification of the Constitution, in which the Antifederalists chiefly criticized the draft constitution as over-broad and threatening the rights of the people and their state institutions with the prospect of an unlimited federal/national government. The defenders of the Constitution (the Federalists) responded that the guarantees of individual rights familiar in most of the state constitutions of the founding era should not be included in a federal constitution precisely because the federal constitution was not designed to convey the kind of police power (health, safety, and morals) that would imperil individual rights, reserving that jurisdiction to the states. That argument is made most forcefully in essay number 84 of The Federalist Papers. An additional argument made there is the argument that any determinate listing of guaranteed rights would bear the unfortunate implication that any specific guarantees omitted in the process of listing specific rights would imply the existence of a governmental power that had not been intended.

Once, therefore, the political compromise of adding a bill of rights to the constitution had been accepted, the authors of the amendments (mainly James Madison) thought it important to do everything possible to avert any unintended consequences of such an enumeration of rights. The 9^th of Amendment is the first of two deliberately intended to restrict the breadth of the application of those guarantees in such a manner as neither to imply unlimited power in the federal/national government nor to imply individual rights were exhausted by such an enumeration. In that sense, the 9^th Amendment creates a shadowy, unspecified realm in which certain additional rights may be discovered as reserved to the people and, to that extent, thus brought under the controlling language of the 1^st Amendment, namely, that “Congress shall make no law respecting” such additional rights. It is in that spirit that the Supreme Court in the 1965 Griswold v. Connecticut, 381 U.S. 479 decision discovered a constitutional “penumbra” within which a “right to privacy” sheltered and served to proscribe state prohibition of access to contraception. It was because of the incorporation doctrine through the 14^th Amendment that the Court was able to make use of the “Congress shall make no law respecting” the unspoken right to privacy language to enunciate a limit upon the states. Though the Court has never said so, it should logically follow, therefore, that such a proscription against state policy can only be considered authoritative to the extent that it operates with equal effectiveness against the federal/national government. For the language of the 9^th Amendment is primarily a language of restriction on the federal/national government, as are all of the “Bill of Rights”, and in the absence of ratification of the drafted 12^th amendment, applying the same terms to the states, the primary meaning of all such language must be that it is a limitation upon the government of the United States. Besides contraception, the areas in which such application has occurred have been the parental right to educate children, the right to study a foreign language, the right to make and enforce contracts, etc.

W. B. Allen is Dean Emeritus, James Madison College; and Emeritus
Professor of Political Science, Michigan State University

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April 10, 2012

Essay #37

April 9, 2012/8 Comments/by Janine Turner

Amendment VIII

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment VIII, Matthew Mehan 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment VIII, Constitutional Amendment VIII, Matthew Mehan, The Constitution of the United States of America

Guest Essayist: Matthew Mehan, Publius Fellow and U.S. History Teacher

Amendment VIII:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.

The adoption of this terse amendment, the shortest of them all, inspired very little debate among our founding fathers. These sixteen words reflect the hard-won and long-defended consensus of free society that just government remains so only if its punishments correspond proportionally to the crimes committed. The 8^thAmendment stands as a testament to the humanism of our Constitution, which makes clear that the government of a free people must be known not for its severity, but instead for its measured humanity.

Each of the three components of the amendment aim to limit one of the government’s discretionary powers: (1) setting bail; (2) imposing fines; and (3) sentencing. The amendment implicitly recommends that the legislature specify proportional guidelines for these broad powers: how much bail; how high the fines; and how long or difficult the sentence. The wisdom of having such an amendment stems from abuse of these powers dating back as far as the expansion of monarchical courts under William the Conqueror. William’s descendent, King John, saw these powers greatly limited by the Magna Charta, which sought to reign in the king’s unlawful use of royal courts. And the language of the 8^thAmendment is taken almost word for word from the 1689 English Bill of Rights, which reaffirmed these limitations on the monarch, in this case, the Stuart dynasts. And in our own day, for the “excessive fines” clause to be applied, the Supreme Court ruled as recently as 1993 that “there must be a payment to a sovereign as punishment for some offense.” From its historical origins to the present day, the amendment’s primary focus has remained the same: the restriction of the sovereign government in favor of the liberty of a defendant. The 8^th Amendment goes further than enumerate a federal power; it advises the legislature to do what the common law has always done, namely specify, as Blackstone put it, “the nature, though not the quantity or degree, of punishment…for every offence….” By doing so, the amendment protects the liberty of all, “for,” as Blackstone continues, “if judgments were to be the private opinions of the judge, men would then be slaves to their magistrates; and would live in society, without knowing exactly the conditions and obligations which it lays them under.”

A humane and just government, therefore, must permit reasonable accommodation for pre-trial liberty for those accused of a crime but not yet convicted. Thus, (1) “excessive bail shall not be required” because, if a citizen is innocent until proven guilty, then the citizen ought to have his or her liberty by means of reasonable bail even when accused. The Supreme Court has upheld some exceptions for those accused of particularly dangerous crimes, but overall, the amendment and subsequent case law have protected citizens’ pre-trial liberty and right to post bail.

A humane and just government must not (2) impose “excessive fines.” The 8^th Amendment has been used by the courts to limit fines and penalties on the basis established in a 1998 case that those fines were “grossly disproportional to the gravity of a defendant’s offense.” By limiting the potentially capricious punishment of excessive fines, the amendment has made for a more peaceful and predictable civil society, one freer from unforeseen onerous fines, which confiscate property and lead to possible imprisonment.

And finally, a humane and just government does not (3) inflict “cruel and unusual punishment.” The Supreme Court first saw this clause as a bar on brutal punishments extant at the time of the founders, horrors such as disembowelment or being dragged to execution. But the Warren court and due process has expanded this clause’s application to a whole host of considerations as to what constitutes “cruel and unusual punishment,” including deciding whether capital punishment is a disproportional penalty for certain crimes. While perhaps our founders would not have approved of its modern and wider application, nevertheless, the 8^thamendment continues to function as a warning to government lest it become too severe or capricious in its task of punishment.

Matthew Mehan is, among other things, a U.S. history teacher in Washington DC.

April 9, 2012

Essay #36

April 8, 2012/3 Comments/by Janine Turner

Amendment VIII: Right Against Cruel and Unusual Punishment

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment VIII, Nathaniel Stewart 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, 17. Topics, Bill of Rights, Constitutional Amendment VIII, Constitutional Amendment VIII, Declaration of Independence, Nathaniel Stewart, The Constitution of the United States of America

Guest Essayist: Nathaniel Stewart, Attorney

http://vimeo.com/39872908

Amendment VIII:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Early Origins of the 8^th Amendment’s

“Cruel and Unusual Punishments” Clause

Like many provisions of the Constitution and the Bill of Rights, the protection against “cruel and unusual punishments” prescribed in the 8^th Amendment has deep English roots. The text of the 8^th Amendment is taken almost verbatim from England’s Declaration of Rights of 1689, an indictment of King James II that reads rather like our own Declaration of Independence and accuses the king and his government of mistreating the people and subverting the law.

Historians generally agree that the “cruel and unusual punishments” clause of the English Declaration of Rights was in response to abuses by the infamous Lord Chief Justice Jeffreys of the King’s Bench during James II’s reign. Lord Chief Justice Jeffreys presided over the “Bloody Assizes”—a special commission that tried, convicted, and executed hundreds of suspected rebels following the failed rebellion in 1685. The Bloody Assizes carried out punishments that included drawing and quartering, burning, beheading, and disemboweling those convicted. But these punishments, as vicious as they might sound to us today, were specifically authorized by law at the time. More recent scholarship suggests that it was not the nature of the punishments that led to the Declaration of Rights provision, but the arbitrary sentencing power that Jeffreys had used in sentencing those found guilty. Many believed that Jeffreys was merely inventing special penalties for enemies of the king, and that those penalties and punishments were not authorized by the common law or by statute.

Thus, the Declaration of Rights objects to the “illegal and cruel punishments inflicted . . . All which are utterly and directly contrary to the known laws and statutes and freedom of this realm.” 1 Wm. & Mary, Sess. 2, ch. 2 (1689). Legal discussions at the time of the Declaration of Rights indicated that a punishment was not considered wrong only because it was severe or even disproportionate to the crime; but a punishment was “cruel and unusual” if it was “out of the Judges’ power,” “contrary to the law and ancient practice,” “without precedent,” “illegal,” or imposed by “pretence to a discretionary power.” The phrase “cruel and unusual” was often synonymous with “cruel and illegal.”

By the time of America’s founding many of the colonies had constitutions with provisions very similar to the “cruel and unusual punishments” clause of England’s Declaration of Rights. In 1791, five States prohibited “cruel or unusual punishments, and two more States prohibited “cruel” punishments. The U.S. Constitution’s Bill of Rights ultimately followed Virginia’s prohibition of “cruel and unusual punishments.”

Because there were no federal common-law punishments, the clause effectively served as a check upon the Congress, not upon federal judges, so there is some question as whether “unusual punishment” continued to mean a punishment “contrary to law” as it had meant under English law. Instead, “unusual punishment” came to mean one that “does not occur in ordinary practice.” Webster’s American Dictionary (1828). It is widely believed that by forbidding “cruel and unusual punishments,” the 8^th Amendment prevents Congress from authorizing particular kinds or modes of punishment, especially cruel methods of punishment that are not regularly or customarily used.

The debates in the state ratifying conventions support the idea that the “cruel and unusual punishments” clause was designed to prohibit certain forms of punishment. In the Massachusetts Convention in 1788, for example, one objection to the Constitution (without a Bill of Rights) was that Congress was “nowhere restrained from inventing the most cruel and unheard-of punishments, and annexing them to crimes; and there is no constitutional check on it, but that racks and gibbets may be amongst the most mild instruments of discipline.” 2 J. Elliot, Debates on the Federal Constitution 111 (2d ed. 1854). A Bill of Rights was needed, they argued, in order to prevent Congress from “inventing” such punishments and resorting to vicious types of discipline.

Early commentaries on the Amendment also indicate that it was designed to outlaw certain types of punishment: “The prohibition of cruel and unusual punishments, marks the improved spirit of the age, which would not tolerate the use of the rack or the stake, or any of those horrid modes of torture, devised by human ingenuity for the gratification of fiendish passion.” J. Bayard, A Brief Exposition of the Constitution of the United States 154 (1840). And, as Justice Story observed in his Commentaries on the Constitution, the 8^th Amendment was “adopted as an admonition to all departments of the national government, to warn them against such violent proceedings, as had taken place in England in the arbitrary reigns of some of the Stuarts.” 3 J. Story, Commentaries of on the Constitution of the United States § 1896 (1833).

As the history and origins of the 8^th Amendment make clear, criminal punishments should not be arbitrary or exacted by judges contrary to the law; and neither should they be “unusual” or torturous methods of discipline that are beyond the ordinary forms of reproach. The 8^th Amendment helps to protect against such punishments, and is yet another example of the Founders drawing upon their understanding of the rights of Englishmen, adapting the rights and laws of England to their own circumstance and government, and learning the lessons of history so as not to repeat the same mistakes.

Nathaniel Stewart is an attorney in Washington, D.C.

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April 6, 2012

Essay # 35

April 5, 2012/2 Comments/by Janine Turner

Amendment VIII: Right Against Excessive Fines

Allison Hayward, Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment VIII 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Allison Hayward, Constitutional Amendment VIII, Constitutional Amendment VIII, Virginia Declaration of Rights by George Mason

Guest Essayist: Allison R. Hayward, Vice President of Policy at the Center for Competitive Politics

http://vimeo.com/39813188

Amendment VIII:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Excessive Fines Clause

The Eighth Amendment declares excessive fines to be unconstitutional. Along with the other clauses of the amendment, which prohibit excessive bail and cruel and unusual punishment, this clause sought to protect Americans against prosecutorial overreach by the government.

The Eighth Amendment echoed Art I, § 9, of the Virginia Declaration of Rights, which itself appropriated from the English Bill of Rights. Section 10 of the English Bill of Rights of 1689, like our Eighth Amendment, stated that “excessive Bail ought not to be required, nor excessive Fines imposed; nor cruel and unusual Punishments inflicted.”

The 1689 English version was meant to curb abuses by English judges. During the reigns of the Stuarts, judges had imposed heavy fines on the King’s enemies. In the 1680’s in particular, the use of fines became even more excessive and selective, and opponents of the King who could not pay were imprisoned. The authors of the 1689 Bill of Rights knew this only too well – having been themselves subjected to selective and heavy fines by the King’s judges.

The Eighth Amendment in general received little debate in the First Congress, and the Excessive Fines Clause received even less attention. Perhaps this is because the wisdom of these limitations was obvious to the Framers; at least eight of the original States that ratified the Constitution had some equivalent of the Excessive Fines Clause in their respective Declarations of Rights or State Constitutions.

Even so, there are two obvious ambiguities in the clause that have required interpretation. First, what kinds of payments are “fines?” Second, what fines should be considered “excessive?”

I. What is a fine?

Given that the Eighth Amendment is identical to a clause from the English Bill of rights, it is useful to know what a “fine” was thought to be in English law. English cases immediately prior to the enactment of the English Bill of Rights stressed the difference between civil damages and criminal fines. Lord Townsend v. Hughes, 2 Mod. 150, 86 Eng. Rep. 994 (C. P. 1677). A fine was defined as a payment to the state, not a state-ordered payment to another private citizen. Accordingly, court-ordered damages paid to a private litigant, even punitive damages, have been held not to implicate the Eighth Amendment. Browning-Ferris Industries v. Kelco Disposal, 492 US 257 (1989). However, asset forfeiture, which requires property to be awarded to the government as punishment for some offense, is subject to the Eighth Amendment. Austin v. United States, 509 U.S. 602, 622 (1993).

II. When is a fine “excessive?”

Whether a fine is excessive depends on its proportionality. That is, the amount of the forfeiture must bear some relationship to the gravity of the offense that it is intended to punish. Austin v. United States, 509 U. S., at 622-623. In the case of a monetary fine, a court would consider whether the value of the fine is in relation to the seriousness of the offense. A hypothetical extreme example would be exacting a million dollar fine to punish jaywalking. Closer cases are naturally harder to judge.

Unfortunately, the fines English judges had imposed were never described with much specificity. None of these sources suggests how out of proportion a fine must be in order to be deemed constitutionally excessive.

The Supreme Court has addressed this issue in a handful of cases. It has concluded that a forfeiture of hundreds of thousands of dollars is disproportionate when a defendant is guilty only of a failure to declare the funds when leaving the country.

United States v. Bajakajian, 524 U.S. 321 (1998). In the in rem asset forfeiture context, Justice Scalia has observed that the Constitution should prohibit seizure of property that cannot properly be regarded as an instrumentality of the offense— for example the building in which an isolated drug sale happens to occur. For him, the right question here is not how much the confiscated property is worth, but whether the confiscated property has a close enough relationship to the offense.

The Supreme Court has noted that legislatures have the primary duty to decide what fines are proportionate, and deserve deference to make such standards. The Court’s present interpretation of the excessive fines clause will reject an unconstitutionally excessive fine only when the amount of the forfeiture is grossly disproportional to the gravity of the defendant’s offense. As a result, the Eighth Amendment protects citizens against the most outrageous fines, but not against large but less extreme fines.

For further reading: Laurence Claus, Methodology, Proportionality, Equality: Which Moral Question Does the Eighth Amendment Pose? 31 Harvard J. of Law and Pub. Pol’y 38 (2008).

Allison Hayward graduated from Stanford University with degrees in political science and economics, and received her law degree from the University of California, Davis. She clerked for Judge Danny J. Boggs of the United States Court of Appeals for the Sixth Circuit. Hayward is Chairman of the Federalist Society’s Free Speech and Election Law Practice Group. She also serves on the Board of the Office of Congressional Ethics. She is an active member of the California and Washington, D.C. bars, and she is a certified FINRA arbitrator.

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April 5, 2012

Essay #34

April 4, 2012/0 Comments/by Janine Turner

Amendment VIII: Right to Reasonable Bail

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment VIII, William C. Duncan 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment VIII, Constitutional Amendment VIII, William C. Duncan

Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

http://vimeo.com/39746844

Amendment VIII:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment VIII: Reasonable Bail

After arrest, a criminal defendant can be released if he offers some security to ensure he will appear at trial. The release and required security are called bail. Bail protects “the defendant’s interest in pretrial liberty and society’s interest in assuring the defendant’s presence at trial.” The idea is to set bail high enough that the person charged with a crime would not want to risk forfeiting it by refusing to show up at trial but not so high that a person can’t pay and go about life as normally as possible during the interim between arrest and trial. Other considerations will be the risk that the defendant would commit the same crime again while on bail. Donald B. Verrilli, Jr., “The Eighth Amendment and the Right to Bail: Historical Perspectives” Columbia Law Review, vol. 82, p. 328 (1982).

In some circumstances, the crime is so serious or the risk that the defendant would flee so great that bail would be entirely denied. For instance, in the past month or so, a British citizen accused of facilitating weapons shipments to Iran was denied bail (http://www.forbes.com/sites/walterpavlo/2012/03/05/extradited-u-k-citizen-chris-tappin-denied-bail/) as was the doctor accused of causing the death of a pop musician (http://abcnews.go.com/US/michael-jacksons-doctor-conrad-murray-denied-bail/story?id=15784437#.T3C6BTFBt2A).

The disputes lingering from the English Civil War and simmering religious hostility led to the “abdication” (actually flight from England after it was invaded by William of Orange at the request of some of the English nobility) of James II as King of England in 1688. When Parliament formally invited William and Mary to reign as joint monarchs, they drafted the Bill of Rights of 1689 (http://avalon.law.yale.edu/17th_century/england.asp) as a formal statement of the rights of Englishmen they expected the new monarchs to respect and protect. They also laid out some complaints against James including: “excessive bail hath been required of persons committed in criminal cases, to elude the benefit of the laws made for the liberty of the subjects.” They thus specified, “That excessive bail ought not to be required.”

Thus, the American colonists would have had an expectation, as Englishmen, of protection from excessive bail. The 1776 constitutions of a number of states specified protection of this right. The constitutions of Virginia, Delaware, and Pennsylvania enacted that year all prohibited “excessive bail.”

Given this history, it is not surprising that when James Madison was compiling proposals for a national Bill of Rights he would have included this requirement in what became the Eighth Amendment.

Of course, the key word is “excessive.” Requiring $1 million bail before releasing the celebrity who gets himself arrested on government property to draw attention to a cause is probably excessive. Someone charged of a string of armed bank robberies, however, could probably expect that kind of bail if flight risk is a consideration (although he may be able to afford it if guilty).

A recent news story (http://www.syracuse.com/news/index.ssf/2012/03/judge_questions_then_lowers_1.html) describes a situation where a man was stopped for traffic violations, searched and when a loaded weapon was found in his car, charged with felony gun possession crime. The bail was set at $1,000,000; another judge questioned that amount and the prosecutor asked for $50,000. The judge set bail at $10,000. Obviously, what some government officials find “excessive” will vary.

The Framers would insist that judges employ common-sense and fairness. That’s more likely where lawbreaking is not widespread and where citizens hold their leaders to account. Thus do rights on paper become rights in fact.

William C. Duncan is director of the Marriage Law Foundation (www.marriagelawfoundation.org). He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.

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April 4, 2012

Essay # 33

April 3, 2012/1 Comment/by Janine Turner

Amendment VII: Trier of Fact Versus Law

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment VII, Eric Wise 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Bill of Rights, Constitutional Amendment VI, Constitutional Amendment VI, Constitutional Amendment VII, Constitutional Amendment VII, Constitutional Amendment XIV, Constitutional Amendment XIV, First Inaugural Address by Ronald Reagan, Eric Wise

Guest Essayist: J. Eric Wise, a partner at Gibson, Dunn & Crutcher LLP law firm

http://vimeo.com/39680022

Amendment VII:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

If you have good facts, pound the facts; if you have good law, pound the law; if you have nothing, pound the table. Aside from the good rule of focusing attention on the areas where one’s case has strength, advocacy, as a form of rhetoric, also requires knowing your audience. In American criminal and civil procedure, where there is a jury, the jury is a trier of fact and the judge makes determinations of law.

The jury is a legal invention that can be traced back to at least 11th Century England, when the Domesday Book was assembled from information gathered by juries empaneled to catalogue property holdings throughout the realm. Juries of local people were assumed to be familiar with the local facts that would be the basis of the catalogue.

As the use of juries expanded, juries came to be considered a bulwark against tyranny, because while magistrates might align with a king, a jury of peers would check the king’s power at trial. The Bill of Rights protects jury trials in civil and criminal matters.

The Sixth Amendment provides “In all criminal prosecutions, the accused shall enjoy the right to . . . trial by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.” The Seventh Amendment provides “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of common law.”

While most state constitutions have jury clauses, the Supreme Court has determined that the Sixth Amendment right to an impartial jury in criminal cases extends to the states through the operation of the Due Process Clause of the Fourteenth Amendment under the doctrine known as “substantive due process.” However, the right to a trial in the state and district where the crime is committed, known as the Vicinage Clause, is not incorporated into the Fourteenth Amendment against the states. The right to a jury trial in a civil case is also not protected in state proceedings, unless protected under state law.

In jury trials, judges do not try questions of fact. Rather judges determine questions of law, including questions regarding the procedures by which the facts are developed in court. Judges further instruct the jury as to what is the law to which the facts are to be applied. In certain cases, juries may refuse to determine the facts at all and engage in what is known as jury nullification to satisfy its own views of what the law should be in the particular case. Arguments run here and there as to whether this is a check and balance of the justice system or whether it is a dereliction of the duties of jurors.

In certain cases and courts the judge is both the trier of fact and the trier of law. Commercial parties frequently waive the right to a jury trial. Administrative courts, as administrators, and bankruptcy courts, as courts of equity, largely do not employ juries. This is in part based on the opinion that the subject matter of administrative law and commercial issues may be too sophisticated for a jury. Left and Right take varying and perhaps contradictory positions on this. Some on the Right advocate for removal of juries in medical malpractice cases. The plaintiffs bar howls. The Left admires administrative law and great bureaucracies. They call it job creation. Almost all commercial interests are satisfied that juries are generally absent from involvement in bankruptcy cases, which require rapid determinations and understanding of complex financial issues.

As usual, Ronald Reagan may have put it best. In his First Inaugural Address he said first: “[W]e have been tempted to believe that society has become too complex to be managed by self-rule, that government by an elite group is superior to government for, by, and of the people. But if no one among us is capable of governing himself, then who among us has the capacity to govern someone else?” and then he said “Now, so there will be no misunderstanding, it is not my intention to do away with government. It is, rather, to make it work—work with us, not over us; to stand by our side, not ride on our back.”

J. Eric Wise is a partner in the law firm of Gibson, Dunn & Crutcher LLP, where he practices restructuring and finance.

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April 3, 2012

Essay # 32

April 2, 2012/4 Comments/by Janine Turner

Amendment VII: Right to Trial in Civil Disputes

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment VII, Julia Shaw 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article III, Bill of Rights, Constitutional Amendment VI, Constitutional Amendment VI, Constitutional Amendment VII, Constitutional Amendment VII, Julia Shaw, The Constitution of the United States of America

Guest Essayist: Julia Shaw, Research Associate and Program Manager in the B. Kenneth Simon Center for Principles and Politics at the Heritage Foundation

http://vimeo.com/39609587

Amendment VII:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Right to Trial by Jury in Civil Cases

No one likes jury duty. When the summons arrives in the mail, most Americans look to check the box that gets them out of service. Why lose a day of work to spend a day deciding some dispute about a fence or a car accident?

Far from a wasted day, Alexis de Tocqueville praised the jury service in Democracy in America “as a school, free of charge and always open, where each juror comes to be instructed on his rights, where he enters into daily communication with the most instructed and most enlightened members of the elevated classes, where the laws are taught to him a practical manner and are put within reach within his intelligence by the efforts of the attorneys, the advice of the judge, and they very passions of the parties.” Indeed, de Tocqueville attributes Americans’ “practical intelligence and good political sense” to their maintenance of the civil jury.

At the Constitutional Convention, Hugh Williamson argued that the right to jury in civil trials should be included in the Constitution. Two delegates moved to insert the sentence “And a trial by jury shall be preserved as usual in civil cases” in Article III, but the Convention rejected this wording and did not include it in the Constitution.

Its absence proved to be a grave political miscalculation. The lack of a specific protection the right to trial by jury in civil cases accounted for the greatest opposition to the Constitution. The Anti-Federalists suggested that the absence meant that the right to trial by jury in civil cases would be abolished. The Federalists defended the omission by arguing that Congress, not the Constitution, should determine the rules for civil cases. But, this was a weak argument for two reasons. First, twelve of the states’ constitutions protected the right to trial by jury in civil cases. Second, during the American Revolution, the colonists objected that Parliament had deprived them of their right to trial by jury. It’s no surprise then that Congress passed the Seventh Amendment guaranteeing the right to trial by jury in civil cases without debate.

Justice Joseph Story argued in Parsons v. Bedford (1830) that the Seventh Amendment applied to all suits except suits of equity and admiralty. The Supreme Court, however, ultimately developed a more limited interpretation. The Court argued that the clause applies to the kinds of cases that existed under English Common Law when the amendment was adopted. The Seventh Amendment does not apply to civil cases that are “suits at common law.” It also does not apply to cases when “public” or governmental rights are at issue or when there are no analogous historical cases with juries. Personal and property claims against the United States by Congress do not require juries. Parties can waive the right to a jury in civil trials. Unlike in 1791, jury trials for civil cases no longer require a unanimous verdict from a 12-person jury.

In contrast to broad support for the right to trial by jury in the 18th century, modern jurists do not see the right to jury in civil trials as fundamental to the U.S. legal system. This explains why, unlike the Sixth Amendment’s protection of the right to trial in criminal cases, the Right to Jury in Civil Cases Clause is not incorporated against the states. Unlike the Sixth Amendment, the Seventh Amendment applies only in federal courts. The Seventh Amendment joins the Second Amendment and the Grand Jury Clause as the few parts of the Bill of Rights that the Supreme Court has not incorporated against the states.

When that jury summons arrives in the mail, we should think about service not as a wasted day but as an opportunity to participate in the justice system and to gain a deeper understanding of our rights. As Tocqueville remarked that serving on a civil jury “teaches men the practice of equity. Each, in judging his neighbor, thinks that he could be judged in turn. That is above all true of the jury in a civil matter; there is almost no one who fears being the object of a criminal persecution one day; but everyone can have a lawsuit.”

Julia Shaw is Research Associate and Program Manager in the B. Kenneth Simon Center for Principles and Politics at the Heritage Foundation.

April 2, 2012

Essay #31

April 1, 2012/6 Comments/by Janine Turner

Amendment VI

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment VI, Nathaniel Stewart 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment VII, Constitutional Amendment VII, Nathaniel Stewart, The Constitution of the United States of America

Guest Essayist: Nathaniel Stewart, Attorney

http://vimeo.com/39459584

Amendment VI:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of counsel for his defence.

Sixth Amendment Overview

The Sixth Amendment is the centerpiece of constitutional criminal procedure. It forms the framework, the underlying first principles governing the process by which our society will try and treat those accused of a crime. As the English legal philosopher, William Blackstone, famously quipped, “better that ten guilty persons escape than that one innocent suffer,” expressing the ancient axiom—dating even to Genesis—that the law should be made to punish the guilty, but not the innocent.[1]

The Sixth Amendment sets out the legal strictures and protections designed to protect society from its criminals, and protect the innocent from society. To secure these protections, the Amendment prescribes three sets of rights: (1) the right to a speedy trial; (2) the right to a public trial; and (3) the right to a fair trial.

The Founding-generation was well aware that a speedy trial was a fundamental right of Englishmen. It was approved by the First Congress without discussion. The right to a speedy trial protects several related liberty interests, namely, the individual’s interests in avoiding a prolonged pretrial detention and in minimizing reputational damage due to an unjust or false accusation. It protects the innocent from suffering a de facto punishment—a lengthy pre-trial detention—before ever having the chance to defend himself. Furthermore, ensuring a speedy trial also helps to facilitate a fair trial—one designed to discover the truth of the matter, not just a verdict—since a prolonged delay may harm the accused’s legal defense as memories fade, evidence is lost or destroyed, or witnesses die or move away. The Founders made sure that the government could not merely charge the accused with a crime, infringe upon his liberties, damage his public reputation, and then fail to give him a legal forum for mounting a defense and clearing himself of the allegations. A defense must be afforded quickly, for as another old saying goes, “justice delayed is justice denied.”[2]

The right to a public trial is “a trial of, by, and before the people.”[3] As one legal scholar succinctly put it, a trial should be “a public thing, the people’s thing,” and included in the right to a public trial are “the rights to (a) a trial held in public, (b) featuring an impartial jury of the people, (c) who come from the community where the crime occurred.”[4] The Founders would not sanction secret criminal proceedings, and there was a deep Anglo-American tradition that trials be open and public spectacles. The Supreme Court acknowledged as much when it wrote: “by immemorial usage, wherever the common law prevails, all trials are in open court, to which spectators are admitted.”[5] Public trials serve a number of purposes in a number of ways, chief among them an added protection for the innocent. As Professor Amar has noted, “Witnesses for the prosecution may be less willing to lie or shade the truth with the public looking on; and bystanders with knowledge of the underlying events can bring missing information to the attention of the court and counsel. A defendant will be convicted only if the people of the community (via the jury) believe the criminal accusation—believe both that he did the acts he is accused of, and that these acts are indeed criminal and worthy of the community’s moral condemnation.”[6]

Finally, the Sixth Amendment’s protections provide the accused with a fair trial, affording him protections against an erroneous guilty verdict. We see this expressed in the constitutional right to an attorney—that is, the right to defense counsel—and “to be informed of the nature and cause of the accusation,” as well as the right “to be confronted with the witnesses against him,” and the right to obtain “witnesses in his favor.” The process for trying the accused is to be fair and impartial. If the government can martial its lawyers to prosecute, the accused must be entitled to the same. If the government can prepare its case for accusation, the accused must know of the charges. If the government can bring forth witnesses to testify against the defendant, the defendant must be allowed to confront them in open court and before a jury of his peers, and he is entitled to call witnesses on his own behalf. These procedural protections, too, are part and parcel of a Constitution constructed with deliberate checks and balances designed to preserve both liberty and order in a free society.

The constitutional right to a speedy, public, and fair trial at least helps to ensure—though it cannot guarantee—a just result, and it encourages the public’s continued confidence in a criminal justice system whereby all men are presumed innocent until proven guilty.

Nathaniel Stewart is an attorney in Washington, D.C.

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March 30, 2012

Essay #30

[1] See, Genesis 18:23-32: “Abraham drew near, and said, ‘Will you consume the righteous with the wicked? What if there are fifty righteous within the city? Will you consume and not spare the place for the fifty righteous who are in it?[3] … What if ten are found there?’ He [The Lord] said, ‘I will not destroy it for the ten’s sake.’”

[2] Often attributed to William Gladstone.

[3] Akhil Reed Amar, “Forward: Sixth Amendment First Principles,” 84 Georgetown L. J. 64 (1996).

[4] Id.

[5] In re Oliver, 333 U.S. 257 (1948).

[6] Akhil Reed Amar, “Forward: Sixth Amendment First Principles,” 84 Georgetown L. J. 64 (1996).

March 29, 2012/3 Comments/by Janine Turner

Amendment VI: Right to Have Assistance of Counsel

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment VI, Kyle Scott, Ph.D. 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Bill of Rights, Constitutional Amendment VI, Constitutional Amendment VI, Kyle Scott PhD, The Constitution of the United States of America

Guest Essayist: Professor Kyle Scott, Professor of American Politics and Constitutional Law, Duke University

http://vimeo.com/39386194

Amendment VI:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of counsel for his defence.

With the Constitution in general, and the Bill of Rights in particular, we speak of liberty. There can be no doubt that the Constitution and the Bill of Rights are liberty preserving and any act against liberty taken by the government runs against the true intention of the documents. But in the section of the 6th Amendment that guarantees the right to have the assistance of counsel we see equality creep in to the picture as well. The basic assumption is that if one is to receive a proper hearing one must have someone represent them with legal expertise. A trial by any other means would leave the one unrepresented by legal counsel at a competitive disadvantage. In that case, the matter would be decided not according to the law but by the superiority of the argument and legal expertise. The consequence would be that someone’s liberty could be deprived in a way inconsistent with the law and its application to the facts thus depriving the defendant of due process. This part of the amendment operates under the assumption that to have liberty, each citizen must have equal protection under the law. When the law is applied unfairly, or intentionally advantages some over others, liberty is sacrificed. This has nothing to do with equality of outcome or equality of opportunity as those matters are commonly discussed in contemporary policy debates. Rather, it simply states that the law must be the final determinant of when someone’s liberty may be restricted, not chance or caprice.

The rule of law is commonly understood to be something of an unbiased arbiter. It should not prejudice or hold bias against anyone for reasons unrelated to the relevant facts. The law also makes outcomes predictable. If the law is applied the same in all cases then I should know what to expect in all cases. The law produces a certain amount of certainty when it is known and unbiased. In a nation governed by the rule of law, I know what to expect from the law and from the government. Under a government without a known and settled law, only fear reigns with any predictability. Our futures and our liberty become uncertain and entirely dependent upon the will and whim of those in charge without equal protection under the law. This is why the law must be applied equally for equality under the law implies that those who make and enforce the law are as equally restricted by it as I am.

This holds true for relations between individuals as well. If the person I am dealing with has more liberty under the law than I do then I am at a disadvantage, one imposed by the state. For instance, if the government protects the right of individuals to make private contracts, and will also enforce the contracts if one side breaches it, then I can enter into an agreement knowing that the person will live up to their end of the bargain and if they don’t I have recourse through the government. But, if the government only made it so I was bound by the contract, and not my business associate, then he could exploit this inequality in the law to his advantage. Under such a scenario there would be no reason to have contracts and business relationships would deteriorate. Even in a free market society, where one is allowed to succeed or fail in the market on their own, the government must uphold the rule of law equally so that it is our liberty that decides our success and failure and not the government. If the law is unequally applied then it is not our liberty that is deciding the outcome, but those who make the law determine our fate, thus making it not a free market at all.

And this brings us back to the court room. I am not an attorney, nor did I sleep at a Holiday Inn last night. So if you pitted me against a successful trial lawyer I would get creamed. The only chance I would have of winning is if I had counsel. The right to counsel guaranteed by the 6th Amendment makes sure that I cannot be denied counsel by the other party or by the government. If the government really wanted to send me to jail, regardless of whether I was really guilty, all it would have to do is say I wasn’t allowed to have an attorney represent me. Think of what would happen if the government could use its power to deny me the one thing that would help guarantee a fair trial. The government could have somebody with legal specialization represent its interests but I would not have the same right. This would be unequal protection under the law and my fate would not be determined by the law but by its unequal application. Equality, the kind of which I write, is an essential component to the maintenance of liberty.

Kyle Scott, PhD, teaches American politics and constitutional law at Duke University. He has published three books and dozens of articles on issues ranging from political parties to Plato. His commentary on contemporary politics has appeared in Forbes, Reuters.com, Christian Science Monitor, Foxnews.com, and dozens of local outlets including the Philadelphia Inquirer and Baltimore Sun. He is a frequent contributor to blogcritics.org and maintains his own blog at kyleascott.wordpress.com

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March 29, 2012

Essay #29

March 28, 2012/3 Comments/by Janine Turner

Amendment VI: Right to Confront Accuser

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment VI, Horace Cooper 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment V, Constitutional Amendment V, Constitutional Amendment VI, Constitutional Amendment VI, Constitutional Amendment VIII, Constitutional Amendment VIII, Horace Cooper

Guest Essayist: Horace Cooper, Senior Fellow with the Heartland Institute

http://vimeo.com/39322192

Amendment VI:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of counsel for his defence.

“…Right to confront your accuser…”

Perhaps more so than any other provision, the 6^th Amendment’s confrontation clause is one of the greatest criminal justice protections of the Constitution.

While many Americans today may not be aware, there was a time when trials didn’t operate with the protections that we rely upon today. Consider the trial of Sir Walter Raleigh. Well known for promoting tobacco in England, he was an English aristocrat, writer, poet, soldier, courtier, spy, and explorer.

In 1603, Sir Walter Raleigh was arrested and accused of treason against King James. Raleigh was allegedly one of the primary conspirators of the so-called “Main Plot,” an effort to end the rule of King James an install his cousin in his place.

The trial was held in the Great Hall of Winchester Castle and the primary evidence relied upon by the crown was the signed confession of Henry Brook, the Baron of Cobham. Throughout the trial, Raleigh requested that Baron Cobham be called in to testify so that he might demonstrate the falsity of the claims, “[Let] my accuser come face to face, and be deposed. Were the case but for a small copyhold, you would have witnesses or good proof to lead the jury to a verdict; and I am here for my life!”

Even though criminal law prevented the use of so called “hearsay” evidence, the crown’s tribunal refused to compel Baron Cobham’s testimony. Without the ability to publicly force the baron’s testimony or to challenge his veracity, ultimately Raleigh was found guilty and imprisoned in the famous Tower of London.

This experience was a powerful one for the colonists coming to America and would significantly influence the contours of the 6^th Amendment.

The modern Supreme Court has made it clear that the “Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is in whatever way, and to whatever extent, the defendant might wish.”

The power of the government to use its resources to accuse, indict and try an individual is considerable. The framers understood this concern and therefore provided for a means whereby the individual could have the ability to limit the impact of the government’s power in this arena. The confrontation clause explicitly places a limit by requiring that evidence be presented by a bona fide witness capable of being “cross examined” or challenged on the witness stand.

Thus instead of unknown witnesses or unidentified individuals presenting allegations secretly to convict a person, the confrontation clause requires not only that the government identify those individuals as part of the trial, but to also allow the defendant to rebut or challenge any evidence they attempt to present.

Typically the confrontation rule requires that this occur in open court. This rule not only applies to witnesses, but also to any written documentation or other types of evidence that the government may wish to present in a trial. In other words, not only must a homeowner – who was an eyewitness — submit to “cross examination” in a burglary trial, any finger print or blood evidence must also be subject to a challenge by experts in finger print and forensic science.

Normally, evidence is testimonial, that is there is a person making the statement which is considered by the judge or jury and he or she must generally be available for cross examination. While there may be an exception for a circumstance wherein the witness is unavailable, generally speaking the defendant must have had a prior opportunity for cross-examination of the witness before that testimony is allowed.

Furthermore the confrontation clause is one of the reasons that so-called “hearsay” evidence is limited in court. Hearsay simply covers the type of information that may prove useful for a trial that is presented by someone other than an eyewitness about information that typically only the eyewitness could recount. Because of the confrontation clause, even the limited evidence that is allowed to be presented under hearsay exemptions still must be presented by witnesses that can be challenged. For example, a so-called deathbed confession may be allowed to be entered as evidence. However the person or document presenting the evidence must be capable of being challenged regarding their motive or accuracy etc.

Without the confrontation clause, a valuable right would not exist that protects individuals against the power of the state. Per the terms of the confrontation clause, Ex Parte or out of court statements are generally not allowed, defendants are guaranteed the right of “personal examination” of the witness, the witness must testify under oath, and the jury must be allowed to observe the demeanor of the witness in making his statement.

Horace Cooper is a senior fellow with the Heartland Institute and is a writer and legal commentator

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March 28, 2012

Essay #28

March 27, 2012/0 Comments/by Janine Turner

Amendment VI: Right to be Informed of the Charge

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment VI, Joerg W. Knipprath 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Article III, Bill of Rights, Constitutional Amendment VI, Constitutional Amendment VI, Constitutional Amendment XIV, Constitutional Amendment XIV, Joerg W. Knipprath

Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

http://vimeo.com/39239148

Amendment VI:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of counsel for his defence.

The due process clause of the Fifth Amendment embodies the principle that those vested with the power to govern must not act arbitrarily towards the citizenry. This principle has been a long-established and deeply-held value in Western Civilization, dating back to Stoic (and, subsequently, Judeo-Christian) conceptions of individual dignity. It was incorporated into the canon law of the medieval Catholic Church on the argument that, before banishing Adam and Eve from the Garden of Eden, God gave them a hearing. In Anglo-American constitutional history, it found expression in a provision of the Magna Charta extracted from King John by the nobles that “No free man shall be taken or imprisoned or dispossessed, or outlawed, or banished, or in any way destroyed, nor will we go upon him, nor send upon him, except by the legal judgment of his peers or by the law of the land.” Closer in time to the Constitution, that protection was included in substantially similar language, in the paradigmatic Massachusetts constitution of 1780.

It is self-evident that among the most fundamental protections against governmental caprice is the requirement that, before one is tried and subject to losing life, liberty, or property, one must be notified of the reasons by grand jury indictment or criminal information. Languishing in jail, or living under a cloud of unspecified suspicion, with the overbearing power of the State poised to strike at his life, liberty, or property for a reason not made known, exacts an emotional toll and prevents the targeted individual from preparing his defense. In the more modern context provided by the movie “Animal House,” operating under “double secret probation” puts the recipient at the whim of a vindictive governing bureaucracy.

Then why did the Framers not simply limit themselves to a due process protection, but provide various more precise protections for the accused? Individual clauses in the Fifth (the protection against compelled self-incrimination), Sixth, and Eighth Amendments (no excessive bail) Amendments are specifications of the broader contours of the due process guarantee in the Fifth Amendment. Many of these specifications arose out of the particular experiences of the Americans with British rule. The specific requirement of notification of criminal charges began to appear frequently in early state constitutions, but, unlike other specific protections such as jury trials, had been rare in earlier colonial charters and declarations of privileges and liberties. The Massachusetts constitution of 1780 again provides a model, “No subject shall be held to answer for any crime or offence until the same is plainly, substantially and formally, described to him….” Thus, an indictment must not only be clear, but must “contain the elements of the offense intended to be charged and sufficiently apprise the defendant of what he must be prepared to meet,” as the Supreme Court has opined.

The requirement of notice of charges applies not only to procedural steps that must be taken in regard to the accused. There is also a substantive component that the law under which he is charged be written in a way that furnishes him a reasonably definite standard of guilt. Again, this ties into more general due process notions that a law is unconstitutionally vague if the “average person is left to guess at its meaning,” or if, “based on common understanding and practices, the language of the law reasonably could be construed in several ways, one of which would make the conduct legal.” The old saw that “ignorance of the law is no defense” loses all force if the language of the law is unduly vague.

One historical example of the dangerous malleability of law, especially in the hands of crafty and overbearing prosecutors, was the application of English treason law. Before the Statute of Treason was adopted in 1352, it included various crimes other than warring against the king or aiding his enemies. The contours changed as the king saw fit and extended to ordinary crimes against the “peace of the realm,” such as the murder of the king’s messengers and armed robbery Even after the statute, it included counterfeiting and listed such oddities as “imagining the death of the king, his consort, or his eldest son; violating his consort, or eldest unmarried daughter, or the wife of his eldest son” even before the text discussed levying war against the king. That statute itself was frequently altered and applied in unpredictable ways until a series of reforms by, curiously, the 17^th century court of Star Chamber and later Parliaments. Due to this history, as well as the harsh, even brutal, consequences that could result from conviction for treason, colonial charters and state constitutions sought to tighten the definition and reign in the consequences. The Framers of the Constitution followed suit and made treason the only clearly defined crime in the Constitution.

More recently, the Supreme Court has addressed the “notice” issue in striking down vagrancy laws and laws based on certain personal “characteristics.” For example, an ordinance from Jacksonville, Florida, was declared unconstitutional that punished, among others, “persons who use juggling or unlawful games or plays…persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers…persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of their wives or minor children” as vagrants. To the Court, this law cast too wide a net and left too much unpredictable discretion to the police to provide a suitable (and constitutional) rule of law. Punishing (defined) aggressive begging is one thing; punishing people “hanging out” is another.

In similar vein, a New Jersey statute that penalized “gangsters” was struck down because it did not provide a usable definition. More recent anti-gang statutes and injunctions have survived constitutional scrutiny because they prohibit defined gang activities, rather than mere status as a gangster. Led by California’s Street Terrorism Enforcement and Prevention Act and the state’s pioneering use of anti-gang injunctions, a majority of states have enacted this type of legislation. The federal government also targets gangs through the Racketeer Influenced and Corrupt Organizations Act (RICO), which punishes gangster-focused conduct. The latter example also shows the dangers of broadly-worded laws, as the statute for a couple of decades was used against targets, such as financial institutions and other businesses, well beyond the intent of the statute’s drafters. One critic claimed that the only groups not targeted under the law were actual racketeers.

The courts recognize, however, that statutes are inherently vague. Language has its limits. Indeed, requiring too much definition would likely make a statute more ambiguous by increasing its complexity and verbosity. Moreover, statutes look forward and are intended to address actions still undone by persons still unknown. There has to be play in the joints. Conspiracy laws, and statutes that prohibit mail and wire fraud, “unreasonable” restraints of trade, or conduct that the “reasonable person knows would annoy another by creating an unreasonable noise” provide sufficiently precise notice. Insufficiency of notice of the charges based on the purported vagueness of a law is almost invariably a futile argument. A defendant whose only hope for avoiding conviction is based on such a tactic is well advised to seek a plea bargain.

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

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March 27, 2012

Essay #27

March 26, 2012/3 Comments/by Janine Turner

Amendment VI: Right to an Impartial Jury

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment VI, Julia Shaw 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, 17. Topics, Constitutional Amendment VI, Constitutional Amendment VI, Declaration of Independence, Julia Shaw

Guest Essayist: Julia Shaw, Research Associate and Program Manager in the B. Kenneth Simon Center for Principles and Politics at the Heritage Foundation

http://vimeo.com/39171149

Amendment VI:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of counsel for his defence.

The Jury Trial Clause

The right to a trial by jury is essential to the American legal tradition. The Charter of the Virginia Company in 1606 guaranteed the colonists all the traditional rights of Englishmen, including the right to trial by jury. The Declaration of Independence recognized the importance of the right, when it condemned the King “for depriving us in many cases, of the benefit of Trial by Jury.”

When drafting the Constitution, the framers made the jury part of the structure of government: Article III states “the Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.” In drafting the Bill of Rights, the framers separately protected the right to a trial by an impartial jury in federal criminal cases in the Sixth Amendment.
In the early history of the United States, a jury consisted of 12 individuals who were drawn from the community in which the crime was committed. Though members may have some knowledge of a case before they enter the courtroom, they would consider the evidence presented to reach unanimous verdict. A jury decided both questions of fact and questions of law. Meaning, judges would not tell jury members what the law meant; instead, lawyers argued questions of law before the jury, and the jury decided how the law should be interpreted and applied.

The Sixth Amendment does not mention who can serve on a jury. Initially, federal courts looked to state laws to determine who could serve on a jury. In early American history, all states limited jury service to men, and all states except Vermont required jurors to be property owners or taxpayers. A few states prohibited blacks from serving on juries.

Since the Framing, the interpretation of the Jury Trial Clause has changed in several significant respects. First, juries now decide questions of fact and not question of law. Since the Supreme Court’s ruling in Sparf and Hansen v. United States (1895), judges tell the jury what the law means, and jurors are obliged to follow that definition. Although their power to determine questions of law has been eroded, juries still retain the raw power to check general laws, because a verdict of non-guilty is not reviewable.

Second, the clause now applies to both state and federal proceedings, according to the Supreme Court’s ruling in Duncan v. Louisiana (1968).

Third, the Supreme Court has also altered the rules regarding the size of a jury and the requirement of unanimity. For hundreds of years, juries consisted of 12 individuals. In 1970, though, the Supreme Court ruled that juries could consist of as few as six members. Six-person juries must reach a unanimous decision, and unanimous decisions are required in federal cases. But, non-unanimous verdicts are permissible for 12-person juries in state courts: that means convictions by a vote of 11–1 and 10–2 are possible.

Fourth, the Supreme Court has ruled that both the Sixth Amendment and the Equal Protection Clause of the Fourteenth Amendment prohibit the jury qualifications of the Founding era. Race and sex are no longer grounds for preventing individuals from serving as jury members.

Perhaps the greatest change today is how few criminal cases ever go before the jury. Nearly half of felony convictions are achieved without juries. Guilty pleas and plea bargains account for the vast majority of felony cases. Guilty pleas were rare and discouraged during the Founding era, when jury trials were routine. Though these individuals are sentenced without jury trials, the Supreme Court recently concluded that certain federal sentencing guidelines violate the right to trial by jury.

Julia Shaw is Research Associate and Program Manager in the B. Kenneth Simon Center for Principles and Politics at the Heritage Foundation.

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March 26, 2012

Essay #26

March 25, 2012/1 Comment/by Janine Turner

Amendment VI: Right to a Public Trial

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment VI, William C. Duncan 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Bill of Rights, Constitutional Amendment VI, Constitutional Amendment VI, The Constitution of the United States of America, William C. Duncan

Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

http://vimeo.com/39033167

Secret trials are the stuff of nightmares and a hallmark of a totalitarian state. The U.S. Supreme Court has noted that institutions employing secret trials “symbolized a menace to liberty.” In re Oliver, 333 U.S. 257, 269 (1948).

When the Framers of the Sixth Amendment included the requirement of a “public” trial, they were enshrining a longstanding protection of liberty. William Blackstone, a bestseller in the Framing era, noted public trials dated back to the Roman Republic. England had public trials before the Norman Conquest and a “right” to a public trial seems to have existed in the 1600s. The important American treatise writer, Joel Bishop suggested the right in the Sixth Amendment is attributable to “immemorial usage.” Richmond Newspapers v. Virginia, 448 U.S. 555, 565-568 (1980); Harold Shapiro, “Right to a Public Trial” 41 Journal of Criminal Law & Criminology 782 (1951).

The right is borrowed from the common law of England and contrasts with the civil law system (more common in Europe) which allows for private examination of witnesses. The Pennsylvania and North Carolina constitutions of 1776 both provided for open trials. There was little discussion of the provision in the debates over the Sixth Amendment. In re Oliver, 333 U.S. 257, 269 (1948); Max Radin, “The Right to a Public Trial” 6 Temple Law Quarterly 381 (1931).

For the individual being tried a public trial provides crucial protections. Quoting In re Oliver again: “the guarantee has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution. The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power.” Page 270. Having proceedings out in the open provides “assurance that the proceedings were conducted fairly to all concerned” and discouraged “decisions based on secret bias of partiality.” Richmond Newspapers v, Virginia, 448 U.S. 555, 569 (1980).

For society at large public trials also serve valuable purposes. They discourage lying by witnesses (since someone who knows the truth could be in the courtroom), discourage bad behavior by participants, and provide an education on the legal system.

Put more simply, everyone (judge, attorney and witnesses alike), is likely to be on their best behavior when they know they are being observed. This is why parents whisper (or hiss) when they threaten their children at the grocery store.

This is a serious matter, though. In 1948, the Supreme Court could note: “we have been unable to find a single instance of a criminal trial conducted in camera [meaning in the judge’s chambers and not in open court] in any federal, state, or municipal court during the history of this country.” In re Oliver, page 266. That same year, an American citizen was arrested in Czechoslovakia and convicted of espionage in a secret trial ultimately escaping in 1952. Ken Lewis, “Leaving an Imprint” St. Augustine Record, September 26, 2003 at http://staugustine.com/stories/092603/new_1830364.shtml.

How many Americans have been spared a similar fate because of the wisdom of the Framers? Yet another debt of gratitude we owe them.

William C. Duncan is director of the Marriage Law Foundation (www.marriagelawfoundation.org). He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.

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March 23, 2012

Essay #25

March 22, 2012/3 Comments/by Janine Turner

Amendment VI: Right to a Speedy Trial

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment VI, Cynthia Dunbar 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Bill of Rights, Constitutional Amendment IV, Constitutional Amendment IV, Constitutional Amendment VI, Constitutional Amendment VI, Constitutional Amendment XIV, Constitutional Amendment XIV, Cynthia Dunbar

Guest Essayist: Cynthia Dunbar, attorney, author, speaker and Assistant Professor of Law at Liberty University

http://vimeo.com/38961672

Amendment VI:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of counsel for his defence.

The Sixth Amendment of the Constitution affords citizens of the United States the right to a speedy and public trial. It is important to note that this right, as every single right within the Bill of Rights, is not a right created by the civil government. Rather, they are rights that are deemed to already exist preserved from governmental deprivation. The belief in inherent rights possessed by mankind is the ideal behind the Magna Carta.

Chapter 40 of the Magna Carta of 1215 states “We…will not deny or defer to any man either justice or right.” This shows that the ultimate concern was that no man be deprived of justice. The inherent right all men possess to justice is at the heart of being afforded a speedy trial. It was thought that a miscarriage of justice could more readily occur in a system where men could be incarcerated for lengthy periods of time without the promise of a trial to present evidence of their potential innocence. Without the promise of a speedy trial, men could ultimately be imprisoned for an undefined sentence of time prior to ever having been lawfully determined to be guilty. The protections of the 6^th Amendment have been said to be “an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibility that long delay will impair the ability of an accused to defend himself.” United States v. Ewell, 383 U.S. 116, 120 (1966)

While it is clear that the right to a speedy trial avoids lengthy periods of incarceration prior to determination of guilt, it is also clear that it serves other legitimate goals to ensure justice. First, it minimizes the threat that mere public accusation could create in its absence. Because one is promised a speedy trial, mere accusations do not hold the same threat since those accusations would be weighed upon a technical evidentiary standard at trial. Additionally, the preservation of the evidence itself can be seen. The delay of a trial can easily cause spoilage of evidence and diminished memories of witnesses who could be called to testify. Inaccurate or fuzzy memories serve to increase the likelihood of a miscarriage of justice. Ensuring a speedy trial is a necessary tool in ensuring that accurate testimony and evidence are presented at trial.

So we know we are afforded the right to a speedy trial and we know why we are afforded this right. But now the question is, “how to determine when and if this right has been abridged?” The courts have determined that this right becomes activated once a criminal prosecution begins. This right then is afforded to the accused once the prosecution of a crime has begun. It has also been determined that the right does not require a formal indictment or charge; it begins once restraints are imposed by arrest. United States v. Marion, 404 U.S. 307, 313, 320, 322 (1971)

This inherent or unalienable right to justice which all men possess served to give direction to our Founding Fathers. They saw that in order to practically achieve the greatest protection of this right, citizens must be assured the right to a speedy trial. The only hope that a falsely accused innocent man has of regaining his liberty is the preservation of accurate testimony and evidence and a prompt opportunity to confirm his innocence. This pursuit of justice is what lies at the heart of the constitutional right to a speedy trial.

Cynthia Noland Dunbar is an attorney, author and public speaker and is frequently seen on Fox & Friends. A former elected member of the Texas State Board of Education, she currently is an Assistant Professor of Law at Liberty University School of Law and teaches on our Constitutional and common law heritage.

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March 22, 2012

Essay #24

March 21, 2012/7 Comments/by Janine Turner

Amendment V

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment V, Michelle Griffes 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment V, Constitutional Amendment V, Declaration of Independence, Michelle Griffes, The Constitution of the United States of America

Guest Essayist: Michelle Griffes, Manager of Programs and Curriculum Development at the Bill of Rights Institute

Amendment V:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Movies and television shows have popularized Fifth Amendment protections like “grand jury indictment,” “double jeopardy,” “pleading the Fifth,” and “due process,” but do Americans truly know what these clauses protect? Do Americans understand what their lives would be like without the protections of the Fifth Amendment? In order to explain the Fifth Amendment in its entirety, we will explore each of the five clauses of the Fifth Amendment, the basic history of the clause, and the protections provided by the clause.

The first clause in the Fifth Amendment reads: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.” According to the Handbook for Federal Grand Jurors, a grand jury hears evidence against an accused person from the United States Attorney or Assistant United States Attorney in order to determine whether he or she should be brought to trial. The U.S. Attorney then has to approve the indictment as a check on the grand jury. [1] Grand juries were first recognized in the Magna Carta in 1215. As British subjects moved to North America,, they brought English common law practices, including grand juries, with them. Eventually, indictments for capital crimes by grand juries were ensrhined in the Bill of Rights.

The second clause in the Fifth Amendment states: “Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” This clause is commonly known as “double jeopardy” and prevents a defendant from being charged for the same crime after acquittal, conviction, certain mistrials, or multiple punishments. The portion of the clause that refers to “life and limb” is derived from the possibility of capital punishment. [2] Protections against double jeopardy can be found as far back as the Old Testament and ancient Roman law. [3] Double jeopardy can be complicated by the differences between criminal and civil cases and state and federal cases. O.J. Simpson, for example, was acquitted in a criminal murder case, but he was found guilty in a civil case. Hate crime statues also challenge double jeopardy protections, with some arguing that trying defendants for a hate crime after acquittal in a criminal case constitutes double jeopardy.

The Fifth Amendment also promises: “nor shall [any person] be compelled in any criminal case to be a witness against himself.” This is the famed “pleading the Fifth” assertion we often hear in American vernacular. The clause protects individuals from answering questions or making statements that might be used as evidence against them. [4] This protection was expanded outside the courtroom with the United States Supreme Court case Miranda v. Arizona, 1966. The Court ruled that the self-incrimination clause also applied in police interrogation. [5]

“[No person shall] be deprived of life, liberty, or property, without due process of law” is the fourth clause of the Fifth Amendment. Due process was first protected under the Magna Carta in which King John promised that he would act in accordance with the law through procedures. The U.S. government provided for due process rights in the Fourth Amendment and in the Equal Protection clause of the Fourteenth Amendment. In order to ensure justice, established procedures must be followed before depriving people of life, liberty, or property. These procedures include the rights to a speedy jury trial, an impartial jury, and to defend oneself. [6]

Property is first mentioned as part of the due process clause of the Fifth Amendment, but private property is mentioned again in the final clause. The clause states, “nor shall private property be taken for public use, without just compensation.” If the state or federal government decides to take private property for public use, they must compensate the owners for that use. This is known as the “takings clause” or “eminent domain.”[7] Supreme Court has held that just compensation is measured by the current market value of the property. [8]

While Americans may hear about the Fifth Amendment protections regularly, they may not really understand the specific rights enumerated in each clause. The Fifth Amendment provides for grand jury indictments in capital crimes, protections against double jeopardy and self-incrimination, and protections of due process rights and just compensation for public use of private property. Each of these rights has a history in English common law or as far back as the Roman Empire, and the Founding Fathers believed that they needed to be explicitly provided for in our own government documents to ensure their protection.
1. Administrative Office of the United States Courts, Washington, D.C. “Handbook for Federal Grand Jurors.”

October, 2007. http://www.uscourts.gov/Viewer.aspx?doc=/uscourts/FederalCourts/Jury/grandhandbook2007.pdf
2. Find Law. “Cases and Codes, U.S. Constitution: Fifth Amendment.” http://caselaw.lp.findlaw.com/data/constitution/amendment05/02.html
3. David S. Rudstein. “A Brief History of the Fifth Amendment Guarantee Against Double Jeopardy.” 14 Wm. & Mary Bill of Rts. J. 193 (2005), http://scholarship.law.wm.edu/wmborj/vol14/iss1/8
4. Find Law. “Fifth Amendment Right Against Self-Incrimination.” http://criminal.findlaw.com/criminal-rights/fifth-amendment-right-against-self-incrimination.html
5. The Oyez Project. “Miranda v. Arizona, 1966” http://www.oyez.org/cases/1960-1969/1965/1965_759
6. Cornell University School of Law. “Due Process.” http://www.law.cornell.edu/wex/due_process
7. Missouri Bar Center. “What is Eminent Domain?” http://library.findlaw.com/1999/May/25/130971.html
8. The Oyez Project. “United States v. 50 Acres of Land, 1984.” http://www.oyez.org/cases/1980-1989/1984/1984_83_1170

Michelle Griffes is the Manager of Programs and Curriculum Development at the Bill of Rights Institute, an Arlington, Virginia-based educational non-profit. Michelle obtained degrees from Michigan State University in Public Policy and Olivet College in Elementary and Secondary Education. The Bill of Rights Institute teaches students about the Founding Documents through teacher professional development seminars, curriculum production, and student programs including the annual Being An American Essay Contest.

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March 21, 2012

Essay #23

March 20, 2012/3 Comments/by Janine Turner

Amendment V: Right to Just Compensation in Eminent Domain Matters

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment V, Gordon S. Jones 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, 17. Topics, Constitutional Amendment V, Constitutional Amendment V, Declaration of Independence, Declaration of Independence, Dred Scott Decision, Gordon S. Jones, The Constitution of the United States of America

Guest Essayist: Gordon S. Jones, Utah Valley University

http://vimeo.com/38825685

Amendment V:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

“…nor shall private property be taken for public use, without just compensation.”

The power to take private property is not one of the “enumerated” powers set forth in the Constitution. But as a practical matter, one of the things that makes a government a government appears to be the power to take property. That right is called “condemnation,” or the power of “eminent domain.”

The theory is that without government, any private property is subject to confiscation by anybody stronger. Governments (and especially ours) exist to protect property from such arbitrary takings. The Declaration of Independence identifies “life, liberty, and the pursuit of happiness” as among the “inalienable rights,” but the Founding Fathers, relying on English theorist John Locke, understood “happiness” to include the right to private property. Early uses of this phrase actually say “life, liberty, and property.” Alexander Hamilton described “the security of property” as one of the primary purposes of government.

With the “takings” clause of the Fifth Amendment, Founding Father James Madison was only trying to provide property owners with at least the assurance that proper procedures would have to be observed in takings, and that owners would at least get something for their loss.

There are a number of concepts that need to be explored in understanding the Takings Clause: what is a “taking,” what is “public use,” and what is “just compensation”?

If the government takes your farm and builds a military base on it – occupies it – that is obviously a “taking.” But what if you own property on top of a mountain, and you want to build five houses on it that you can sell for $1 million each. Government tells you that you can only build one house there, and that house will sell for only $1.5 million. Has the government “taken” $3.5 million from you?

If a Forest Ranger discovers a spotted owl nesting in your tree farm, you may not be allowed to cut the trees. Has government “taken” the value of the timber?

These are the kinds of questions governments and courts ask in deciding whether property has been “taken.” It would be nice to think that, after more than 200 years, we had clear answers to these and similar questions, but the fact is, we don’t. One Supreme Court Justice said that government could impair the value of property by regulation without paying compensation as long as it didn’t go “too far.” Not exactly the clearest standard.

What about “public use”?

If your county government takes your property and builds an airport on it (or a school or hospital), most would agree that the property had been taken for a “public use.” On the other hand, what if the property was taken and sold to a private developer who built an office building on it? Would that be a “public” use? Probably not, but if the property were in a run-down (“blighted”) area of town, and the development eliminated a row of crack houses and re-vitalized the economics and livability of the neighborhood, the courts might find such a taking justified (and therefore constitutional).

Again, you might think that there is a lot of “wiggle room” in these judgments, and you would be right. Some years ago, the State of Hawaii forced private landowners to sell their land to tenants. The Supreme Court upheld the forced sales as being for a “public use.” We might think such a judgment obviously wrong, but we might change our mind if we knew that in Hawaii at that time 72 owners had inherited from ancient times more than 90 percent of the private land in the islands.

A more questionable case occurred in 2005, when the city of New London, Connecticut took several private homes and sold them to a private developer for an office building. There was no question of “blight” in this case, but the city argued that it would get more tax revenue from the office building than it was getting from the private homes, so that the “public” would benefit. This case (Kelo vs. New London) generated a firestorm of opposition, moving many states to strengthen the safeguards on their eminent domain procedures. Critics of the Kelo decision argue that it has changed the words “public use” to the much looser “public purpose.”

Finally, what is “just compensation”? If the city wants to build a road across my property and offers me $1 million for it, I might consider that “just,” and be happy to take it. On the other hand, if my grandfather is buried there, no amount of money could tempt me to sell willingly.

Governments have set up procedures for determining what the “fair market value” is for any property subject to condemnation. These involve the use of real estate appraisers, economists, and planning forecasters. They also typically involve extensive negotiations, which can be expensive for a private landowner – so expensive that the landowner eventually gives up and gives in to the government, which has all the resources of the taxpayer to call on to finance its battle.

The right to own property is part of what the Founding Fathers called the “natural law,” one of the “inalienable rights” mentioned in the Declaration of Independence. The Constitution was written for the purpose of “ensuring” those rights, so we should be very suspicious of governmental power that infringes the enjoyment of property rights. But it is obvious that completely unfettered use of property by one person could infringe the rights of other property owners. At the present time, the system we use to reconcile conflicting – or potentially conflicting – rights is the power of eminent domain, hedged up, as it must always be, with the procedural safeguards guaranteed by the Fifth Amendment: that the “taking” be for a “public use,” and that it be accomplished by “just compensation.”

Gordon Jones, a long-time policy analyst in Washington, studied constitutional Law with Robert Horn at Stanford University, has his Master of Philosophy in Political Science from George Washington University, and teaches Law and Politics at Utah Valley University.

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March 20, 2012

Essay #22

March 19, 2012/3 Comments/by Janine Turner

Amendment V: Right to Due Process to Prevent Deprivation of Life, Liberty, or Property

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment V, Eric Wise 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, 17. Topics, Constitutional Amendment V, Constitutional Amendment V, Declaration of Independence, Eric Wise

Guest Essayist: J. Eric Wise, partner at Gibson, Dunn & Crutcher LLP law firm

http://vimeo.com/38759291

In that funny movie, Monty Python and the Holy Grail, a woman is tried for the crime of being a witch by placing her on a scale to see if she weighs more than a duck. Laugh now. In 9^th Century England, procedure was scarcely better. Commonplace were absurdities such as the “ordeal,” where guilt or innocence might be determined by burning the accused with boiling water or a hot iron, trial by battle – including the use of retained champions – and “compurgation,” the testing of witnesses by a ritualistic chain of oaths which if completed proved innocence or if broken proved guilt.

In 1215 English nobles forced King John to place his seal on the Magna Carta at Runnymede. That document stated in clause 39 “No freeman shall be taken, or imprisoned, or disseized, or outlawed, or exiled, or in any way harmed—nor will we go upon or send upon him—save by the lawful judgment of his peers or by the law of the land.” It was not until 1354 that clause 39 was re-codified, including “due process of law” in lieu of “save by the lawful judgment of his peers or by the law of the land.”

The Constitution originally had no bill of rights. Federalists argued a bill of rights was more appropriate to an all-powerful monarch, subject only to enumerated rights, than to a limited government, having only the powers vested in it by the people. Yet, to co-opt the opposition, James Madison introduced in the First Congress a bill of rights. Embedded in the Fifth Amendment are the words “nor shall any person be deprived of life, liberty or property without due process of law.”

“No, no!” said the Queen in Alice in Wonderland. “Sentence first — verdict afterwards.” Due process is in the least a guaranty of procedural fairness. As such, due process includes, inter alia, prohibitions against vagueness, the right to notice and a meaningful hearing at a meaningful time, and decisions supported by evidence with law and findings of fact explained. Exigencies and circumstances affect the extent of procedural requirements through balancing tests. In circumstances requiring emergency injunctive relief, minimal notice, if any, is required. Due process is not the same as judicial process. Citizen affiliates of Al Qaeda beware, the executive may kill you without a trial.

Substantive due process is perhaps of a more controversial sort. Under the doctrine of substantive due process, the clause implies unwritten rights denying, in certain circumstances, the power to enact legislation – or otherwise act – to deprive life, liberty or property even with fair procedural application. Legislation that the judiciary finds inherently arbitrary may be voided on substantive due process grounds.

Readers of the Declaration of Independence know that super-legal rights do self-evidently exist and are the source of the authority of the people to govern themselves, but it is hardly a straight path from A to B that it is the role of the judiciary to give natural rights expression as positive law. Further, substantive due process proponents nowadays do not hang their hat on a natural rights peg. Compare the language of Justice Samuel Case in Calder v. Bull (1798) regarding the “principles of the social compact” to that of the “penumbral rights” of Griswold v. Connecticut (1965). In any event, both supporters and detractors alike would be disingenuous to deny that this second sort of “due process” vests somewhat breathtaking power in the judiciary, and raises the critique that by substantive due process legislation may be made without legislative process.

It is important to remember that the due process clause of the Fifth Amendment restricts only federal power. Consequently, since the ratification of the Reconstruction Amendments, applications of substantive due process under the Fifth Amendment have been limited to hard to scratch places where the due process clause of the Fourteenth Amendment does not reach, such as the territories and the District of Columbia. It would not be fair, however, to deny substantive due process under the Fifth Amendment some negative attention it deserves. Perhaps the first Supreme Court case to dive deeply into the waters of substantive due process was Dred Scott v. Sandford (1857), in which, through layered and abominable errors of reasoning, Justice Taney found in the due process clause of the Fifth Amendment a right to property in other human beings that barred Congress from prohibiting slavery in the territories.

March 19, 2012

Essay #21

J. Eric Wise is a partner at the law firm Gibson, Dunn & Crutcher LLP, practicing restructuring and finance.

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March 18, 2012/3 Comments/by Janine Turner

Amendment V: Right Against Self- Incrimination

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment V, Kyle Scott, Ph.D. 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Bill of Rights, Constitutional Amendment V, Constitutional Amendment V, Kyle Scott PhD, The Constitution of the United States of America

Guest Essayist: Professor Kyle Scott, Professor of American Politics and Constitutional Law, Duke University

http://vimeo.com/38615563

Amendment V:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The 5th Amendment contains numerous, seemingly unconnected, components. However, there is a common theme. The common theme that runs throughout the amendment is liberty; it connects each of the components. The manner in which the amendment is constructed reflects the idea that the burden of proof falls on the government. In order to take someone’s life, liberty or property the government must adhere to a strict set of standards in trying to prove guilt or cause. Perhaps the most important of these is the protection against self-incrimination. The 5th Amendment states that an individual cannot be forced to testify against himself. The provision became well-known in popular culture when accused mobsters would commonly take the fifth when they were put on trial. But the provision has been around since at least the sixteenth century when torture and forced testimony was common practice.

In order to get a confession, or to get someone to testify against himself, officers of the law would torture someone or hold their family or property in custody until they signed a confession or took a pledge that confirmed their guilt. Of course, banning such practices was not enough as the practices were done in secret when they were outlawed, or outsourced to unofficial officers of the state where judges or barristers could plausibly deny the existence of such practices. The only way to make sure such reprehensible practices did not occur was to exempt people from being a witness against themselves. If a person could not be asked to witness against himself it wouldn’t do much good to torture him.

The provision increases the burden of proof on the government in criminal cases. A person cannot, during trial, be asked if they committed a crime. The government must prove the case against them. This may seem onerous and unnecessary but we should be quick to remember that the government can be as prone to misuses of power as individuals. This is but one additional check to make sure the government does not use its monopoly on force outside the bounds of law in a way that threatens the life, liberty, or property of individuals. Such a provision also bestows an increased level of legitimacy over judicial proceedings.

This provision, and perhaps this amendment moreso than any other, shows at what great lengths the First Congress went through to protect individual liberty. This provision shows that the government exists for the preservation of individual liberty, that individual liberty precedes government; and thus by extension, the primary purpose of government is to protect us, not to enhance itself or extend authority over us beyond what we grant it.

The mark of a good government, and of a people truly committed to the idea of liberty, is the degree to which they abide by procedures that make the deprivation of life, liberty, or property difficult. This must be true when we sympathize with the accused just as much as when find the accused to hold positions and values contrary to our own.

Kyle Scott, PhD, teaches American politics and constitutional law at Duke University. He has published three books and dozens of articles on issues ranging from political parties to Plato. His commentary on contemporary politics has appeared in Forbes, Reuters.com, Christian Science Monitor, Foxnews.com, Washington Times and dozens of local outlets including the Philadelphia Inquirer and Baltimore Sun.

March 16, 2012

Essay #20

March 15, 2012/7 Comments/by Janine Turner

Amendment V: Right Against Double Jeopardy

Analyzing the Amendments in 90 Days 2012 Project, Charles Rice, J.S.D., Constitution Amendment V 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Charles Rice J.S.D., Constitutional Amendment V, Constitutional Amendment V

Guest Essayist: Guest Essayist: Charles E. Rice, Professor Emeritus of Law at the University of Notre Dame

Amendment V:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

DOUBLE JEOPARDY

[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.– U.S. Constitution, Fifth Amendment.

What are the purpose and origin of that constitutional protection? “The constitutional prohibition against ‘double jeopardy’ was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense…. The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity… as well as enhancing the possibility that even though innocent he may be found guilty. In accordance with this philosophy… a verdict of acquittal is final, ending a defendant’s jeopardy, and even when ‘not followed by any judgment, is a bar to a subsequent prosecution for the same offence.’ … Thus it is one of the elemental principles of our criminal law that the Government cannot secure a new trial by means of an appeal even though an acquittal may appear to be erroneous.” Green v. U.S., 355 U.S. 184, 188 (1959). (citations omitted.)

The importance of the double jeopardy protection is obvious. But its applications raise technical questions. For example, as the Supreme Court of the United States ruled, “[I]t is not even essential that a verdict of guilt or innocence be returned for a defendant to have once been placed in jeopardy so as to bar a second trial on the same charge…. A defendant is placed in jeopardy once he is put to trial before a jury so that if the jury is discharged without his consent he cannot be tried again…. This prevents a prosecutor or judge from subjecting a defendant to a second prosecution by discontinuing the trial when it appears that the jury might not convict. At the same time jeopardy is not regarded as having come to an end so as to bar a second trial in those cases where ‘unforeseeable circumstances… arise during [the first] trial making its completion impossible, such as the failure of a jury to agree on a verdict.’…. [A] defendant can be tried a second time for an offense when his prior conviction for that same offense had been set aside on appeal.” Green v. U.S., 355 U.S. 184, 187-88 (1959) (citations omitted).

The United States Constitution created a system of dual sovereignties, federal and state. The protections of the Bill of Rights, including the protection against double jeopardy, were originally intended to bind only the federal government, the government of the United States. Barron v. Baltimore, 32 U.S. 243 (1833). For protection of their liberties against infringement by state governments, the people relied on guarantees in their state constitutions. Thus the Supreme Court, in Palko v. Conn., 302 U.S. 319 (1937), declined to apply the double jeopardy protection strictly against the states. Three decades later, however, the Supreme Court reversed that restriction on account of what it described as the “fundamental” character of that protection: “Once it is decided that a particular Bill of Rights guarantee is ‘fundamental to the American scheme of justice,’ … the same constitutional standards apply against both the State and Federal Governments…. The fundamental nature of the guarantee against double jeopardy can hardly be doubted. Its origins can be traced to Greek and Roman times, and it became established in the common law of England long before this Nation’s independence….As with many other elements of the common law, it was carried into the jurisprudence of this Country through the medium of Blackstone, who codified the doctrine in his Commentaries…. Today, every State incorporates some form of the prohibition in its constitution or common law.” Benton v. MD, 395 U.S. 784, 795 (1969) (citations omitted).”

The protection against double jeopardy is limited by the federal character of our constitutional system. “[A]n act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each…. [T]he double jeopardy… forbidden [by the Fifth Amendment] is a second prosecution under authority of the Federal Government after a first trial for the same offense under the same authority. Here the same act was an offense against the State of Washington, because a violation of its law, and also an offense against the United States under the National Prohibition Act. The defendants thus committed two different offenses by the same act, and a conviction by a court of Washington of the offense against that State is not a conviction of the different offense against the United States and so is not double jeopardy.” U.S. v. Lanza, 260 U.S. 377, 382 (1922) (citations omitted).

A criminal assault under state law may also be a separate civil rights violation under federal law if the prerequisites of racial or other elements are present. When, however, two different units of government are subject to the same sovereign, the double jeopardy clause does bar separate prosecutions by them for the same offense. Waller v. Florida, 397 U.S. 387 (1970) (trial by a municipal court bars a trial for the same offense by a state court.) The dual sovereignty doctrine has also been applied to permit successive prosecutions by two states for the same conduct. Heath v. Alabama, 474 U.S. 82 (1985) (where defendant crossed the state line in committing a kidnap murder, he could be prosecuted for murder in both states.)

The clause generally has no application in noncriminal proceedings. Helvering v. Mitchell, 303 U.S. 391 (1938). But the protection against double jeopardy can apply to the imposition of sanctions that are civil in form but that constitute “punishment” in their application. Breed v. Jones, 421 U.S. 519 (1975) (juvenile court proceedings); U.S. v. Halper 490 U.S. 435 (1989) (imposition of a civil penalty under the False Claims Act triggers protection against double jeopardy if the penalty is very disproportionate to compensating the government for its loss and is obviously intended for retributive or deterrent purposes). Because a main purpose of the double jeopardy clause is the protection against the burden of multiple trials, a defendant who raises and loses a double jeopardy claim during pretrial or trial may immediately appeal the ruling, an exception to the general rule prohibiting appeals from nonfinal orders. Abney v. U.S., 431 US 651 (1977)

In summary, the double jeopardy protection is truly fundamental. That basic character should not be obscured by the necessity of making technical distinctions in its application. Those distinctions, based on procedural or federalist factors, attest instead to the necessity of preserving the fundamental character of that protection not merely in general but in all of its applications.

Charles E. Rice is Professor Emeritus at the University of Notre Dame law School. His areas of specialization are constitutional law and jurisprudence. He currently teaches “Law and Morality” at Notre Dame.

March 15, 2012

Essay #19

March 15, 2012/0 Comments/by Janine Turner

Amendment V: Right Against Double Jeopardy

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment V, Joerg W. Knipprath 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment V, Constitutional Amendment V, Constitutional Amendment VIII, Constitutional Amendment VIII, Joerg W. Knipprath, The Constitution of the United States of America

Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

http://vimeo.com/38540555

Amendment V:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The 1999 movie Double Jeopardy, starring Ashley Judd and Tommie Lee Jones, focused on a wife who was wrongfully convicted of murdering her husband who had staged his own killing. One theme suggested by the title and by some scenes of prison lawyering is that, having once been convicted of murder, the wife could not be tried again if she now murdered her husband. Hardly.

The protection against double jeopardy is deemed a fundamental human right with a tradition well-entrenched in Western Civilization going back at least to ancient Roman law. The doctrine was part of the English common law long before the Constitution, although, curiously, express double jeopardy protections were not well-represented in the early state constitutions or in the proposals for amendments submitted by the state conventions that ratified the Constitution. Incidentally, the phrase “life or limb” today is read as “life or [physical] liberty,” since drawing-and-quartering and other punishments that produce corporal maiming have gone out of style and would likely constitute “cruel and unusual punishment” in violation of the 8^th Amendment.

In Green v. U.S. in 1957, the Supreme Court justified the doctrine as reflecting

“the underlying idea…that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense, and ordeal compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.”

On that last point, if the state gets numerous turns at bat, it only needs to be successful once, which produces significant incentive to try repeatedly. At the very least, such tactics will cause more defendants, emotionally and financially exhausted and faced with the deeper resources of taxpayer-funded prosecutors, to enter factually dubious guilty pleas.

The clause raises several questions. First, when does jeopardy “attach”? Second, what exactly can the government not do? Third, what exceptions are there?

Jeopardy attaches when a jury is empanelled and sworn. If the trial is to a judge only, it attaches when the first witness is sworn. If there is a guilty plea, it attaches when the court accepts the plea. An acquittal by the judge or jury bars the government from appeal because a retrial for that offense would violate the double jeopardy rule.

Notice that the government cannot retry the offender for the same offense. What if a defendant is acquitted of robbery, which combines larceny (taking and carrying away another’s personal property without consent and with the intent to deprive him of the property permanently) and assault (intentionally creating a reasonable apprehension of immediate bodily injury)? Can the prosecutor now seek to try the defendant for larceny and/or assault arising out of the same criminal act? The common sense reaction is “no.” That is also the legal stance, because two crimes constitute the “same offense,” unless each of them has at least one additional element that is different from the other. Here, while robbery has a different element than either larceny or assault (since it is a combination of the two), neither larceny nor assault has any additional element from robbery. A prosecutor who has failed in a prior trial cannot proceed against the same defendant for a “lesser-and-included” offense.

Likewise, a prosecutor who, for example, successfully prosecuted a defendant for larceny and has that conviction under his belt subsequently cannot roll the dice again and seek to try that defendant for the greater crime of robbery out of the same transaction. The lone exception to that rule is that a prosecution for battery (unlawfully using force against another that causes bodily injury) does not bar a subsequent trial for murder if the victim eventually succumbs to his wounds from the attack.

While the rule gives defendants some basic and significant protections, it is also riddled with exceptions and qualifications. In that vein, a hung jury is no bar to retrial. Neither are certain motions for mistrial by the defendant where the mistrial is not caused by prosecutorial misconduct. For example, conditions arise that make a continuing fair trial impossible in that location. There is also generally no violation of double jeopardy for a retrial if the defendant appealed and was successful in overturning the earlier verdict, or if the prosecution successfully appealed a trial court dismissal of the case when there was no acquittal but the trial court based its decision on a legal motion.

Significantly, double jeopardy does not apply to non-criminal proceedings. A public official who is impeached and removed from office for a crime can also be prosecuted for that act under the criminal law. In similar vein, a defendant who is convicted or acquitted in a criminal trial can be sued by the victim for a civil wrong. A notorious example of that is the former football star and advertising pitchman O.J. Simpson. Despite his acquittal of murder charges for the killing of his estranged wife and another victim, he was subsequently found liable for civil damages for “wrongful death.”

Returning to our movie, yet another exception shows the lack of reliability of jailhouse lawyering (or of Hollywood screenwriters). The double jeopardy clause does not apply to different sovereigns. Conviction or acquittal under the laws of one sovereign does not bar a different sovereign from prosecuting the defendant under its law for the same charge arising out of the same conduct if the conduct affected that sovereign. Although they usually avoid duplication, the state of California could prosecute a drug dealer for violation of its drug laws and then turn the perpetrator over to the federal government for prosecution under federal drug laws. A version of that was the 1993 federal prosecution of four Los Angeles police officers for violation of federal civil rights laws arising out of the use of excessive force in arresting Rodney King in 1991. The officers had mostly been acquitted in a 1992 state prosecution arising out of the same incident.

The legal assumptions of the movie are flawed. Being wrongfully convicted of murder may entitle the defendant to civil damages from the government. But it does not create a dispensation from prosecution for a subsequent murder. The Constitution has no “get-out-of-jail-free-for-murder” coupons to be redeemed as the occasion demands. More pertinent, had Louisiana prosecuted the movie’s protagonist for the murder of her husband, the prior prosecution by the state of Washington would not have placed her twice in jeopardy of life or limb for the same offense.

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

March 15, 2012

Essay #19

March 14, 2012/1 Comment/by Janine Turner

Amendment V: The Right to a Grand Jury

Allison Hayward, Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment V 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Allison Hayward, Constitutional Amendment V, Constitutional Amendment V, The Constitution of the United States of America

Guest Essayist: Allison R. Hayward, Vice President of Policy at the Center for Competitive Politics

http://vimeo.com/38478927

The Right to a Grand Jury

The grand jury occupies a unique place in our justice system. It does not prosecute, but the power of a federal prosecutor depends on the grand jury. It does not judge, but it can expose or shield defendants from judgment. It can protect citizens against baseless prosecution, but the reasons for its decisions are shrouded in secrecy. The grand jury originated in medieval and monarchist England, remained important enough at the Founding for the Framers to enshrine it in the Fifth Amendment, but today grand juries are only employed in the United States.

A grand jury consists of 16 to 23 members. The United States attorney (the prosecutor in federal criminal cases) presents evidence to the grand jury for them to determine whether there is “probable cause” to believe that an individual has committed a felony and should be put on trial. If the grand jury decides there is enough evidence, it will issue an indictment against the defendant.

The grand jury conducts its work in secret. Jurors cannot be required to explain to anyone, even the courts, why the proceeded in a case. Ideally, secrecy protects against a defendant fleeing the jurisdiction. It allows for free deliberations without threat or pressure from outside. It also discourages witness tampering. And finally, if the jury finds probable cause is lacking, the accused individual suffers no loss of reputation.

Grand juries possess broad powers of inquiry. They have subpoena power, and can compel testimony by providing immunity. At the same time, their proceedings are not adversarial. The jury is not assessing the guilt or innocence of any person.

As the Supreme Court stated, ”it is axiomatic that the grand jury sits … to assess whether there is adequate basis for bringing a criminal charge.” U.S. v. Williams, 504 U.S. at 51.

The insular quality to grand juries has provoked criticism. Because the prosecutor is the one official present during deliberations, critics complain that grand juries can become a rubber stamp — aiding unscrupulous or ambitious prosecutors, who may be pursuing interests hostile to the administration of justice. While the grand jury is enshrined in the Constitution, Congress has the power to amend the rules by which juries are run. For instance, Congress could require prosecutors to present any evidence exonerating a defendant, give a defendant the right to appear before the jury, or guarantee a counsel’s assistance for any defendant or target of an investigation.

Allison Hayward graduated from Stanford University with degrees in political science and economics, and received her law degree from the University of California, Davis. She clerked for Judge Danny J. Boggs of the United States Court of Appeals for the Sixth Circuit. Hayward is Chairman of the Federalist Society’s Free Speech and Election Law Practice Group. She also serves on the Board of the Office of Congressional Ethics. She is an active member of the California and Washington, D.C. bars, and she is a certified FINRA arbitrator.

March 14, 2012

Essay #18

March 13, 2012/2 Comments/by Janine Turner

Amendment IV: Warrants Must Describe the Place and Persons With Particularity

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment IV, William C. Duncan 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Bill of Rights, Constitutional Amendment IV, Constitutional Amendment IV, The Constitution of the United States of America, William C. Duncan

Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

http://vimeo.com/38416219

Amendment IV:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularity describing the place to be searched, and the persons or things to be seized.

Amendment IV: Particularity of Warrants

Limitation of the power of the government is not one of many possible approaches to governing under the U.S. Constitution. It is the very structure of the Constitution itself. Our Constitution is primarily a limitation on what the government it charters can do. The first ten amendments constituting the Bill of Rights, in particular, are not affirmative grants of privileges from a beneficent state to its subjects but a restrain on government in the interest of protecting the preexisting rights of citizens,

The structure of the Fourth Amendment, for instance, makes clear that the Framers understood the rights it protected from the government to be existing rights. This is consistent with the Framers’ entire approach to constitutional government, an approach informed by careful study of history and, specifically, their own experience in self-government and its opposites. Much of that experience, of course, was gained as subjects of the British Crown and in the effort to respond to abuses of English power in the colonies, ultimately leading to the decision to seek independence.

The decision to include in the first set of amendments to the U.S. Constitution, a requirement of particularized warrants is a key example.

The primary relevant experience of the Framers on this matter came from the general warrants, called writs of assistance, used by the British to conduct wide-ranging searches for contraband in the colonies. A writ of assistance is court permission for government officials to conduct a generalized search, for instance for goods on which customs fees have not been paid. They contrasted with a more specific search warrant that would specify who, what and where to be searched in some detail. The practical effect of the difference should be obvious. If a government official is allowed by court to go into all the homes on a block looking for anything on which taxes have not been paid, you have a significant intrusion. If the court instead says that these officials can go to 555 Whatever Lane and look for money that has been stolen from the downtown bank, the intrusion is dramatically less.

The use of writs of assistance in the colonies provoked understandable protect. John Dickinson, in his 1767 Letters from a Farmer in Pennsylvania, noted the act of Parliament allowing for these writs empowered customs officers to “to enter into any HOUSE, warehouse, shop, cellar, or other place, in the British colonies or plantations in America, to search for or seize prohibited or unaccustomed goods [meaning goods on which no customs had been paid].” He pointed out that while those kinds of writs had also been issued in England, “the greatest asserters of the rights of Englishmen have always strenuously contended, that such a power was dangerous to freedom, and expressly contrary to the common law, which ever regarded a man’s house as his castle, or a place of perfect security.” Thus, Dickinson argued: “If such power was in the least degree dangerous there, it must be utterly destructive to liberty here.”

The experience of the colonists with these practices bore fruit in the newly independent States. The 1776 Virginia Declaration of Rights, the Maryland Constitution of the same year and John Adams’ 1780 Constitution for Massachusetts all required that warrants for searches and seizures be specific in describing the place to be searched and the subjects of the search or seizure.

These precedents, of course, were adopted in the drafting of the Fourth Amendment, the language of which clearly prohibits the broad-wide-ranging searches so abhorrent to the colonists. It does so by allowing only search warrants “particularly describing the place to be searched, and the persons or things to be seized.” This is the particularity clause.

A Connecticut case from the early Nineteenth Century exemplified the type of warrants the Fourth Amendment was created to prevent: “it is not only a warrant to search for stolen goods supposed to be concealed in a particular place, but it is a warrant to search all suspected places, stores, shops and barns in Wilton. Where those suspected places were in Wilton is not pointed out, or by whom suspected: so that all the dwelling-houses and out-houses within the town of Wilton were by this warrant made liable to search.” (Grumon v. Raymond, 1 Conn. 40, 1814.

Today we would be shocked if a court were to authorize police to search an entire town for stolen goods. Yet, these kinds of warrants were commonly allowed in England prior to American Independence and seem to have been issued even into the 1800s here. What happened to change the legal culture?

Part of the answer is the Framers’ ability to apply what they had learned from experience. Americans had experienced the oppression of broad, intrusive searches and this led them to reject these as a proper instrument of government. They then ensured the lessons learned were reflected in the law through the Fourth Amendment.

The Framers wrought well and we are the inheritors of their wisdom in limiting the power of government. The English may have noted that the home is a case but the Fourth Amendment’s particularity requirement helped to give that concept the binding force it needed to be a reality.

William C. Duncan is director of the Marriage Law Foundation (www.marriagelawfoundation.org). He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.

March 13, 2012

Essay #17

March 12, 2012/9 Comments/by Janine Turner

Amendment IV: Warrants to Have Probable Cause

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment IV, Horace Cooper 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, 17. Topics, Bill of Rights, Boston Tea Party, Constitutional Amendment IV, Constitutional Amendment IV, Declaration of Independence, Horace Cooper

Guest Essayist: Horace Cooper, Senior Fellow with the Heartland Institute

http://vimeo.com/38333110

“…..no Warrants shall issue, but upon probable cause, supported by Oath or affirmation…”

Americans today take great pride in the accomplishments and brilliance of the drafters of the Constitution and the Bill of Rights. One of the things that this essay will demonstrate is that quite often the protections that we take for granted came about as a result of the prudence and wisdom of the founders and in particular their specific response to the challenges they were exposed to or aware of. Many Americans may not appreciate that this provision isn’t just pivotal, it is in some sense central to America’s claim to independence.

The 2^nd clause of the 4^th Amendment makes clear, magistrates and others allowed to issue warrants must not issue “general” warrants, but instead when court orders are issued, they must be precise and detailed. Warrants must specify descriptions of items demanded to be seized and judges must be convinced that there is probable cause to believe a crime has been committed.

As is the case with much of America’s legal system, British history is a good starting point to understand this provision.

Let’s start with the “Star Chamber” or camera stellata as it was called in Latin. It was sort of a super-appeals Court that held its meetings in the “Starred Chamber” of the Royal Court (a place initially created for meetings of the King’s Council in England.) Reports of its existence suggest it operated early as the 13^th Century and sat at the royal Palace of Westminster until 1641.

Made up of royal advisors and judges, the so called “Star Chamber’s” primary responsibility was to address civil and criminal matters involving elites to ensure that the kingdom’s laws were enforced against the powerful and the prominent. Its sessions were held in secret. It made no pretense of operating under traditional court rules involving criminal or civil procedure. There was also no right of appeal, no juries and even no right to confront accusers or even for witnesses to testify. However perhaps more offensive than these predations was its authority to issue “general warrants.” These warrants were given to the sheriff or other local law enforcement officer and empowered them to retrieve items necessary to support the Star Chambers pre-ordained conclusions.

In other words, instead of saying that based on a signed statement by a witness, J. Smith was believed to hold in his home, item X, an illegal product, “general warrants” allowed the Sheriff to search all of J. Smith’s properties and seize any and all of his personal items without identifying any particular item. The seized items would be subsequently examined by the staff of the Star Chamber to see which if any could be used as evidence against J. Smith. The items typically weren’t returned and even when they were, they were often damaged or destroyed.

Over time the British recognized the inherent abuses associated with the operations of the Star Chamber. Finally, in 1640, the British Parliament adopted the Habeas Corpus Act and abolished the Star Chamber in 1641.

Unfortunately when making the decision to shut down the Star Chamber, the British Parliament hadn’t acted to eliminate the use of general warrants. Abuses involving general warrants would continue over another 100 years before British society generally would recognize the ills of its use in particular.

One of the most prominent cases of abuse of general warrants that the founders would have been familiar with was the fall out from the British government’s attempt to use general warrants against Englishman John Wilkes, publisher and political activist and critic of the Crown, in 1763.

Wilkes, a member of parliament, during Prime Minister George Grenville’s government, published “The North Briton” which mocked and criticized King George III and the Grenville administration. Using general warrants King George had Wilkes and nearly 50 of his associates arrested and charged with seditious libel. Not only were he and his associates arrested, their personal property, papers, and effects were seized. The abuses that occurred were obvious for all to see. As a Member of Parliament, Wilkes had immunity from these charges and while he was able to convince the Chief Justice to dismiss the case his troubles wouldn’t end. Within the next 5 years he’d be charged again and again. Notwithstanding these charges and subsequent expulsion from Parliament he would be re-elected 3 times.

Wilkes fled to France but eventually returned to England. Wilkes would subsequently be elected Mayor of London and get recognition for his efforts to support the rights of English citizens and his efforts contributed to the fall of the Grenville government. Wilkes’ ongoing arguments for Freedom of the Press, broader suffrage rights and religious toleration would ultimately find broad political support in England before his death.

But perhaps the greatest influence for the framers was the use of “general warrants” to enforce the infamous Townshend Acts of 1767. Passed by the British Parliament, the Townshend Acts was adopted purportedly to provide for the salaries of colonial appointees, but many colonialists suspected its primary if not total rationale was to establish the precedent that the British Parliament had the right to tax the colonies.

As part of its efforts to enforce this revenue act, the British Parliament created the American Board of Customs Commissioners and the commission leapt at the opportunity to use “general warrants” to deter smuggling and tax evasion. These warrants issued under the authority of the crown were particularly troublesome. They violated the colonial charters’ rules that warrants were legal only when they provide a reason and a basis for searches. Whereas Colonial warrants were limited in scope and time, the Commissioner’s general warrants had no time limits other than the life of the King and were transferable allowing one person holding the warrant to transfer his rights over to the other. Additionally, the warrant holder could search any person or property at any time. Writ holders essentially were laws unto themselves.

Massachusetts Assembly James Otis whose catchphrase is “Taxation without Representation is Tyranny” called the general warrants “the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book.”

The new taxes proved to be quite unpopular and colonial appointees using the general warrants even more so. Ultimately those responsible for collections requested military assistance. The British sent the fifty-gun warship HMS Romney to Boston Harbor in May 1768 to enforce the law. Rather than quelling the situation, this dramatic escalation made matters worse. Starting with the Boston Massacre and the Boston Tea Party the gross abuse of general warrants and Townshend Acts would lead directly to the Declaration of Independence and the Revolution.

It is that framework which influenced the writers of the 4^th amendment. Although far more jurisprudence is placed on the importance of the first clause of the 4^th Amendment, for historians, the notion that government may not issue warrants to law enforcement officers without any justification or any particular limits to seize goods or people was a powerful enough issue that it was a key ingredient in the formation not only of a provision of the Bill of Rights, but the formation of an entire nation.

Horace Cooper is a senior fellow with the Heartland Institute and is a writer and legal commentator

March 12, 2012

Essay #16

March 10, 2012/