Category Archives: Constitution

Justice Stevens Weighs In

Retired Supreme Court Justice Stevens has a new book out in which he makes the case for six Amendments to the Constitution.

  1. The “Anti-Commandeering Rule” (Amend the Supremacy Clause of Article VI) This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges and other public officials. in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
  2. Political Gerrymandering – Districts represented by members of Congress, or by members of any state legislative body, shall be compact and composed of contiguous territory. The state shall have the burden of justifying any departures from this requirement by reference to neutral criteria such as natural, political, or historical boundaries or demographic changes. The interest in enhancing or preserving the political power of the party in control of the state government is not such a neutral criterion.
  3. Campaign Finance – Neither the First Amendment nor any other provision of this Constitution shall be construed to prohibit the Congress or any state from imposing reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns.
  4. Sovereign Immunity – Neither the Tenth Amendment, the Eleventh Amendment, nor any other provision of this Constitution, shall be construed to provide any state, state agency, or state officer with an immunity from liability for violating any act of Congress, or any provision of this Constitution.
  5. Death Penalty- (Amend the 8th Amendment) Excessive Bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments such as the death penalty inflicted.
  6. The Second Amendment – (Amend the 2nd Amendment) A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms when serving in the Militia shall not be infringed.

Of course, the likelihood of passing any amendments in this politically polarized age is fanciful; lawmakers can’t even manage to pass what should be relatively noncontroversial legislation.

Nevertheless, these eminently rational suggestions provide plenty of food for thought.  Not to mention, an implicit condemnation of our unwillingness to come to terms with the realities of modern life.

Free Speech and Democratic Institutions

David Schultz is an election law expert who teaches at Hamline University and the University of Minnesota law school. (He and I also co-authored my last book, a Law and Policy textbook.) When the Court handed down the McCutcheon decision, he took to his own blog to analyze it. 

On one level the Supreme Court yet again issued a decision in which it examined one issue about American politics and elections–the role of money or the right of individuals to make political contributions–without adequately considering the broader impact of that decision on the actual performance of American democracy.  The Court treats in isolation one aspect of our political democracy–the right of an individual to spend money–without considering other competing values and how they come together to form a more complete theory about government, politics, and elections.  Yes individuals may have a right to expend for political purposes, and such an act may further an important value of free speech, but that is not the only act and value that must be furthered or considered in a democracy.

Democratic theorists such as Robert Dahl point out that a theory of democracy includes several values, such as voting equality, effective participation, enlightened understanding, control of the agenda, and inclusion.  For each of these values there is a need to construct institutions that  help sustain them or give them meaning.   Effective participation includes institutions that create for example free and fair elections, opportunities for non-electoral participation, and competitive parties. However, none of these values operates in isolation; a real concept of democracy requires that one understand how they interact, coming together to form a fuller theory of American Democracy.


Someone once said that the problem with the contemporary Supreme Court is that none of the Justices ever held elective office–that we’d be better served if one of these brilliant jurists had ever had to run for county sheriff.

It may be time to sign on to the effort to amend the constitution.

Et tu, L.A. Times?

An L.A. Times story that ran early last week focused on a new clause in Capital One’s credit card agreement–one of those lengthy, small-print “disclosures” that cardholders get periodically, and rarely read.

The story described an unusual clause in Capital One’s most recent contract iteration. The update sent to cardholders specified that “we may contact you in any manner we choose” and that such contacts can include calls, emails, texts, faxes or even a “personal visit.”

The L.A. Times story, written by someone named David Lazarus, characterized the “personal visit” warning as creepy and over the top–an understandable enough reaction. But in the course of criticizing the provision, he suggested that  Capital One might be violating the Fourth Amendment’s prohibition against unreasonable searches and seizures.

Excuse me while I hit my head repeatedly against this wall.

The L.A. Times used to be one of the nation’s premier newspapers. How is it that they have a reporter who doesn’t know that the Bill of Rights only restrains the government? How is it that no editor caught an error that egregious?

This is civics 101. Private parties cannot violate the Fourth Amendment. Only “state actors” (people acting on behalf of the government) can.  Ignorance of this absolutely foundational principle should disqualify one from being a journalist.

I’ll grant you, banks seem to occupy a highly privileged status, and too many bankers seem to consider themselves above the law. But whatever their pretentions, they aren’t government–at least not yet.

They ought to be worried about being punished for a lot of things, but “breaking” the Fourth Amendment isn’t one of them.

When we cannot rely on reporters to understand the most basic principles of the constitution, is it any wonder that the broader American public is civically illiterate?


The Law and the Debt….

I had lunch with an old friend yesterday–a former law school dean and noted legal scholar–and our talk turned to the current impasse over the debt ceiling. He asked me whether I was familiar with a 1935 Supreme Court case titled Perry v. United StatesI admitted I’d never heard of it.

Perry, it turns out, is pretty compelling precedent for the proposition that the United States cannot constitutionally be permitted to default on its obligations. The Court relied primarily on language in Article 1, Section 8 of the Constitution, although it also cited Section 4 of the 14th Amendment. My friend sent me a legal memorandum that he had co-authored on the subject. That memorandum included the following paragraph:

In short, the core holding of Perry is that the constitutional “Power” of Congress “To borrow Money on the credit of the United States” carries with it a concomitant duty to pay ― and not to default. While some members of the Court held differing views on the correct factual resolution of the Perry case, all nine justices, including four dissenters, agreed that the United States could not, within constitutional limits, default on its financial or contractual obligations.

The case has been cited with approval by the Supreme Court several times–most recently in 2005.

My friend’s legal conclusion is blunt: If default would be unconstitutional, then the Debt Ceiling Act is unconstitutional if it is read to require default. Since there are a number of federal statutes that confer power on the President and Secretary of the Treasury to borrow money–statutes that are routinely used when the debt ceiling isn’t an issue– and since an unconstitutional Act is void, those statutes would (again, according to the memo) continue to authorize the President to pay the country’s debts.

Makes sense to me, but this is definitely not an area of expertise for me.

Of course, if the President were to follow Perry and pay the nation’s debts, the Obama haters would immediately move to impeach (they would impeach him for breathing if they could).

It’s hard to envision a successful impeachment for actions taken to avoid an international economic catastrophe–but then, it used to be hard to envision a Congress as insane as this one.

Who’s An Originalist?

I see where Justice Scalia has been claiming to be the Court’s one true originalist again.

“Originalism” is one of those words that gets thrown around a lot–mostly by people who (unlike Scalia) don’t understand how law works, or how “original intent” actually operates to guide today’s judges.

When I ask students who profess to be originalists to define the term, the answers generally   come down to a desire for constitutional fidelity–an admirable desire and one that I certainly share.  The devil, as usual, is in the details. What, exactly, do we mean by fidelity to the Founder’s original intent?

If originalism meant–as some insist–that courts must read the constitutional text through the eyes of the Founders as those gentlemen saw their world in 1786, the Constitution would have outlived its usefulness many years ago. Such assertions betray a lack of understanding about what constitutions are, and how they function.

Constitutions aren’t statutes prescribing or proscribing specific actions; they are broad frameworks of values, statements of important principles to which statutes, ordinances and government actions must conform.

I sometimes ask my students what James Madison thought about porn on the internet. Those who actually know who James Madison was (a subject I have dealt with elsewhere) will laugh; obviously, whatever Madison may or may not have thought about pornography, he didn’t anticipate the invention of broadcast media, let alone the internet. But Madison (and Jefferson and Hamilton and all the rest) did think about the importance of free expression, about the individual’s right to access information and exchange ideas without fear of government censorship.

Madison and the other Founders intended to privilege and protect the principle of free speech. Fidelity to that original intent requires contemporary judges to protect free expression in situations the Founders could never have imagined. That’s what is meant by legal scholars who talk about the “living constitution”–fidelity to the values protected by our Constitution and Bill of Rights and their consistent application to new “facts on the ground.”

We can agree or disagree about whether a given decision is faithful to the principle or value that the Founders were trying to protect, but we need to recognize that social change necessarily requires the application of the Constitution and Bill of Rights to a constantly evolving civic landscape.

When someone like Justice Scalia pontificates that judges have “the power to say what the law is, not the power to change it,” he is selling snake-oil. Every decision that applies settled legal principles to a new set of facts “changes” law, if only incrementally. That is how the common-law system works, and Scalia is smart enough to know that–and smart enough to know that most Americans don’t. His “originalism” allows him to pretend that his favored ideology is really principle; that he is only a sort of legal automaton looking at the world through the Founders’ eyes.

Over at Dispatches from the Culture Wars, Ed Brayton recently said it best:

“Scalia is neither a faint-hearted or stout-hearted originalist. He is a convenient originalist. He’s an originalist when it leads to the result he wants and he’s not an originalist when it doesn’t. His ruling in Raich is a perfect example. And he’s perfectly happy contradicting himself to reach the result he prefers. Just compare his ruling in Raich to his ruling in the challenge to the Affordable Care Act last year. In Raich he agreed that the interstate commerce clause gave Congress the power to regulate the growth of marijuana for personal use — an action that is neither interstate nor commerce — despite that being legal under state law. In the ACA case he argued that the interstate commerce clause did not give Congress the power to regulate the health insurance market, which is, by any definition, a matter of interstate commerce. Ironically, Scalia is exactly what he has for decades accused liberals of being, a results-oriented judge.”

Indeed. And intellectually dishonest about it, to boot.