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[T]he future of the Constitution as the Framers wrote it can be staked only upon [. . .] trust. If we cannot share every intellectual assumption that formed the minds of those who framed the charter, we can still address the constitutional uncertainties the way they must have envisioned, by relying on reason, by respecting all the words the Framers wrote, by facing facts, and by seeking to understand their meaning for living people. -- retired Justice David Souter, 2010 Harvard Commencement Address
As a longtime proponent of the view that the Constitution was ORIGINALLY intended to be a "living" document (see for example, this and this), it was with great interest that I read about retired Justice David Souter's Harvard commencement address on constitutional interpretation. E.J. Dionne finds the political strong point for the views he, Souter and I appear to share regarding constitutional interpretation - comparing Plessy and Brown:
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Regarding Rand Paul's statements on the Civil Rights Acts, Ezra Klein wrote:
I take Paul at his word that he's not a racist. What he is, however, is an ideological extremist. He is so categorically opposed to public regulation of private enterprise that he cannot even bring himself to say that the Woolworth lunch counter should've been desegregated. [. . .] If this isn't about race, then it is about all questions relating to federal regulation of private enterprise. As a senator, Paul will be faced with that question frequently. And his views on it are clearly very, very far from the mainstream.
(Emphasis supplied.) The notion that Rand Paul's view of the Commerce Clause power is extreme in the sense that it is not espoused by a major political party and mainstream Media figures is incorrect. The "Constitution in Exile" movement based in the Federalist Society completely agrees with the views espoused by Paul. But to make the point clearer, in 2005 Ezra Klein's WaPo colleague George Will expressed Paulian views of the Commerce Clause power:
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Just reading the list of 35 signatories to this letter sent to Attorney General Eric Holder today urging him to abandon efforts to have Congress water down Miranda rights, gives hope that progressive lobbying is still alive in this country.
In its letter to the Attorney General, the coalition stated, “Current law provides ample flexibility to protect the public against imminent terrorist threats while still permitting the use of statements made by the accused in a criminal prosecution. Weakening Miranda would undercut our fundamental Fifth Amendment rights for no perceptible gain.”
Here are the groups and the text of the letter: [More...]
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Here is the complaint (PDF). I took a cursory glance and have little respect for the constitutional arguments against the mandate, though they clearly have more political potency. More plausible is the argument regarding the imposition of duties upon State officials:
The Act requires states to expand massively their Medicaid programs and to create exchanges through which individuals can purchase healthcare insurance coverage. The federal government is to provide partial funding for the exchanges, but will cease doing so after 2015. [. . .] The federal government will not provide necessary funding or resources to the states to administer the Act. Nevertheless, states will be required to provide oversight of the newly-created insurance markets, including, inter alia, instituting regulations, consumer protections, rate reviews, solvency and reserve fund requirements, and premium taxes. States also must enroll all of the newly-eligible Medicaid beneficiaries (many of whom will be subject to a penalty if they fail to enroll), coordinate enrollment with the new exchanges, and implement other specified changes. The Act further requires states to establish an office of health insurance consumer assistance or an ombudsman program to advocate for people in the new programs.
The GOP State AGs will argue this runs afoul of Printz. The complaint states:
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The consequentialist and principled view of the First Amendment are irreconcilable. Their adherents can only talk past one another and become increasingly angered and frustrated by what they hear from the other side. This ongoing soap opera has been the content of First Amendment jurisprudence ever since it emerged full blown in the second decade of the 20th century. Citizens United is a virtual anthology of the limited repertoire of moves the saga affords. You could build an entire course around it. And that is why even though I agree with much of what Stevens says (I’m a consequentialist myself) and dislike the decision as a citizen, as a teacher of First Amendment law I absolutely love it.
This sounds pretty in that "majesty of the law" sort of way, but is it true? Not really. I'll explain on the flip.
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[T]he Supreme Court reversed a century of law that I believe will open the floodgates for special interests -- including foreign corporations -- to spend without limit in our elections. I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities. They should be decided by the American people. And I'd urge Democrats and Republicans to pass a bill that helps to correct some of these problems. - President Obama on the Citizens United decision.
[I]t has become one of the most pervasive myths in our political discourse: namely, that the U.S. Constitution protects only American citizens, and not any dreaded foreigners. [. . .] That is blatantly false, and anyone making that claim -- as Susan Collins and so many others have -- is either extremely ignorant or extremely dishonest
Justice Alito and many conservatives have taken issue with President Obama's statement about Citizens United. Perhaps their views are rooted in the false myth Greenwald alludes to. In his dissent in Citizens United, Justice Stevens wrote:
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Rep. Chris Van Hollen said Monday that Democrats are crafting legislation to prevent foreign owned corporations from funneling money into American political campaigns [. . .] "There's a big danger that the decision opens the door to foreign owned corporations indirectly spending millions of dollars to influence the outcome of U.S. elections through their American subsidiaries," Van Hollen, D.-Md., told ABC News. "The American people should be deeply concerned. This decision raises all sorts of questions."
Forget for a moment the difficulty of determining what corporation is "foreign-owned," would such a restriction be constitutional under Citizens United? Not given the "First Amendment protects speech, not the speaker" logic of Citizens United. Of course this contortion will not be difficult for the radical and reactionary Roberts Court, but it certainly would shoot a hole through the decision's logic, such as it is.
Speaking for me only
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NYTimes: Which president would you say most violated laws enacted by Congress?
[YOO]: I would say Lincoln. He sent the Army into offensive operations to try to stop the South from seceding. He didn’t call Congress into special session until July 4, 1861, well after this had all happened. He basically acted on his own for three months.
The interesting thing about this is Yoo claimed that Lincoln's actions were consistent with the Constitution. I do not recall him ever claiming Lincoln's actions violated laws enacted by Congress. I wrote about this issue back in 2005:
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while we ought to be alarmed by the various ways in which the government is attempting to go under, over, and around our Bill of Rights, the battle will never be “won.” The price of liberty is eternal vigilance.
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Senator Jefferson Beauregard Sessions, III has proposed an extraordinary Constitutional theory - that 14 Senators have the power to amend the Constitution. First, let us revisit Sessions' views on Senate confirmation of judicial nominees:
“One of the many reasons why we shouldn't have a filibuster, an important one, is Article I of the Constitution. It says the Senate shall advise and consent on treaties by a two-thirds vote and simply 'advise and consent' on nominations,” he said in a 2003 floor statement. "Historicaly, we have understood that provision to mean -- and I think there is no doubt the Founders understood that to mean -- that a treaty confirmation requires a two-thirds vote, but confirmation of a judicial nomination requires only a simple majority vote."
While this reading of Article I is not supported by the text, what is really extraordinary is Sessions' views on how the Constitution can be amended:
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The United States Supreme Court has repeatedly warned that “government may not promote or affiliate itself with any religious doctrine or organization.” .... This limitation on government action is based on the clear understanding of our founders that “a union of government and religion tends to destroy government and to degrade religion.”
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David Vitter does not like that the Census counts all the "Persons" in the United States:
Sen. David Vitter (R-La.), who is sponsoring an amendment to an appropriations bill that would require illegal immigrants list their status on next year's Census, said late Wednesday that Senate Majority Leader Harry Reid (D-Nev.) wants them counted amongst the general population instead. The senator claimed that Reid wants illegals to be counted in the 2010 Census so that left-leaning states with high illegal immigrant populations could increase the size of their congressional delegations.
Senator Vitter does not like them brown people being counted. Unfortunately for him, the Constitution provides that "Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State [. . .]"
So much for originalism (though Vitter seem unable to read English as he has said "“I don’t believe that this is what our founding fathers had in mind when they laid out our current system of representation[.]” BTW, what do the Texans have to say about this?
Speaking for me only
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Radley Balko accuses those of us who ridicule the modern day John C. Calhouns in the Republican Party (see, e.g., Rick Perry and Tim Pawlenty arguing they can nullify federal legislation) as not taking the Tenth Amendment seriously. the problem with Balko's argument is twofold - (1) the theory of nullification was decided in 1865, when the North won the Civil War; and (2)the Tenth Amendment does not say what he thinks it does. Balko says we can look it up. Indeed we can. Here is what the Tenth Amendment says:
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 text makes clear that the key analysis is what powers were "not delegated to the United States." In essence, the Tenth Amendment is irrelevant to the argument. It is not "states rights" via the Tenth Amendment that determine whether the Congress can act, it is the rest of the Constitution that is at issue. Of course the main issues, given the jurisprudence, is the Commerce power. Tenthers like to ignore Gibbons v. Ogden, where Chief Justice John Marshall wrote:
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Washington and Oregon have assisted suicide laws that were passed by voters' referendums.
Montana is different. It rewrote its Constitution in 1972, and here are some of the rights it spelled out:
- All persons are born free and have certain inalienable rights. They include the right to a clean and healthful environment and the rights of pursuing life’s basic necessities, enjoying and defending their lives and liberties, acquiring, possessing and protecting property, and seeking their safety, health and happiness in all lawful ways.
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Orin Kerr writes in defense of stare decisis and I agree with his argument but it brought me to the question I present in the title.
As Al Franken might say, 'are the words stare decisis in the Constitution?' The answer is no. But a common law Judicial Branch IS in the Constitution. I would argue that the Constitution did indeed envision the principle of stare decisis. Which puts me in my mind of this article arguing that Justice Souter was one of our great common law Supreme Court Justices.
This is an Open Thread.
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