Category Archives: Constitution

What’s at Stake

Yesterday, the media frenzy was all about Chris Christie’s endorsement of “The Donald.” Of course, there has been something every day–the latest tweet, the most egregious insult, the latest analysis of how someone so manifestly unqualified has managed to get this far…

All of this media attention focused upon Trump–attention that has allowed him to suck all the oxygen out of Republican rooms–has had a number of unfortunate consequences. One of the less remarked of those consequences is that the so-called “establishment” candidates look more reasonable by comparison.

Even Trump can’t make Cruz look sane, but as political observers have pointed out, Rubio and even Kasich are on record taking positions that would have been unthinkable even ten years ago. Paul Krugman recently noted aspects of Rubio’s extremism:

[W]hat I do know is that one shouldn’t treat establishment support as an indication that Mr. Rubio is moderate and sensible. On the contrary, not long ago someone holding his policy views would have been considered a fringe crank.

Let me leave aside Mr. Rubio’s terrifying statements on foreign policy and his evident willingness to make a bonfire of civil liberties, and focus on what I know best, economics.

You probably know that Mr. Rubio is proposing big tax cuts, and may know that among other things he proposes completely eliminating taxes on investment income — which would mean, for example, that Mitt Romney would end up owing precisely zero in federal taxes.

What you may not know is that Mr. Rubio’s tax cuts would be almost twice as big as George W. Bush’s as a percentage of gross domestic product — despite the fact that federal debt is much higher than it was 15 years ago, and Republicans have spent the Obama years warning incessantly that budget deficits will destroy America, any day now.

What Krugman failed to note were Rubio’s extreme social policy positions; for one thing, he proposes outlawing abortion even in the case of rape and incest.

Not to be outdone, the presumably more moderate John Kasich recently defunded Ohio’s Planned Parenthood.

These are the candidates whose hoped-for elevation to the highest office in the land is motivating Mitch McConnell and his Senate colleagues to ignore their constitutional duty to consider an Obama Supreme Court nominee. (“Strict construction,” anyone??)

If the Senate Republicans manage to keep Scalia’s position open, the next President is likely to choose three Supreme Court Justices. If those choices are made by any of these candidates, America will be a very different country in short order. And it won’t be a country that most of us will recognize.

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Now Let’s Talk About “Originalism”

Yesterday, I considered the political food fight being waged over the nomination of a Justice to replace Scalia. Today, I want to consider Scalia’s much-ballyhoo’d judicial philosophy.

During his long tenure on the Court, there has been a great deal of attention paid to Scalia’s claim that he was a true–if “faint-hearted” (his description)– constitutional “originalist.” It is a claim uncritically accepted by political conservatives, but one that has been thoroughly debunked by both conservative and liberal legal scholars.

In 2012, the widely admired, brilliant, and very conservative Judge Richard Posner— the most cited legal scholar of this generation— deconstructed Scalia’s purported originalism in the New Republic. Posner’s review of a book about judicial philosophy co-authored by Scalia was an “emperor has no clothes” moment, and I urge anyone who values careful analysis to click through and read the whole thing. But I especially want to call attention to the following paragraph:

Scalia and Garner call Blackstone “a thoroughgoing originalist.” They say that “Blackstone made it very clear that original meaning governed.” Yet they quote in support the famous statement in his Commentaries on the Laws of England that “the fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law”…. Blackstone adds that “the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it.”

That last sentence, explaining that the true meaning of a law is to be determined by “considering the reason and spirit of it” is crucial. It is the root of the only practical approach to original intent. It requires judges to analyze the Constitution and the Bill of Rights in order to understand the values the Founders were attempting to protect, and to apply the law in a way that is faithful to those values–and to do so in situations that are highly unlikely to have been within the contemplation of those who drafted the Constitution.

The question, as I tell my students, is not: what did James Madison think about porn on the internet? Obviously, none of the Founders ever contemplated the internet. But they did contemplate–and quite clearly disapproved of–government efforts to censor expression.

The proper question, then, is: how do we apply the Founders’ judgment about the importance–the inestimable value— of free expression to “facts on the ground” they could never have imagined?

That process–discerning the principles that animated the Bill of Rights and applying those principles in new and unanticipated situations in order to protect the liberties the Founders  wanted to safeguard—is what is meant by a “living” Constitution.

Antonin Scalia was a brilliant man who used his brilliance to dissemble, to pretend (probably even to himself) that he was following a principled methodology that just happened to produce results consistent with his own political preferences and religious beliefs.

Posner is equally brilliant, and equally conservative–but far more intellectually honest.

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An Elastic View of Constitutional Responsibility

Okay–This week, it seems appropriate to talk about the late Justice Scalia, the battle over his replacement, and his much touted (albeit misunderstood and selectively applied) “originalism.”

Today, let’s consider where we are in the process for replacing Scalia.

Republicans in the Senate–notably McConnell and Grassley, who heads up the Judiciary Committee–have said they will refuse to participate in the Constitutionally-described process of “advice and consent.” Their argument, apparently, is that because this is an election year, and the President is in the last year of his tenure, he shouldn’t nominate a successor.

Between 1796 and 1988, at least 14 Justices have been confirmed during election years.

According to legal historians, Senate Republicans would have to reach back to the mid-1800s to find an instance in which the Senate blocked a nominee for reasons having nothing to do with the individual who’d been nominated—that is, just to obstruct the sitting President.

As a post from the Brookings Institution put it: the Republicans’ behavior is a repudiation of both the Constitutional separation of powers and the Constitution’s definition of a Presidential term.

And I thought they claimed to be “strict constructionists”!

The bottom line is that there is simply no precedent for the Senate refusing to discharge its constitutional duty to advise and consent, and if I had to guess, I would predict that McConnell et al will back away from that refusal once they recognize the extent of the political risk involved. (Of course, I’ve been wrong before when I have predicted rational behaviors from crazed partisans…)

Tomorrow, a decidedly critical consideration of Scalia’s controversial jurisprudential legacy…..

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Allow Me To Repeat Myself

File this one under “here we go again.”

Common Cause, the Brennan Center and other nonpartisan organizations are warning about the dangers of an effort to call a Constitutional Convention, purportedly to consider a “balanced budget amendment” to the U.S. Constitution.

A balanced budget amendment is a truly bad idea but a Constitutional Convention is an even worse idea, as constitutional interpreters as different as Harvard’s Lawrence Tribe Supreme Court Justice Antonin Scalia, and former Chief Justice Warren Burger  have  explained.

So what is all the fuss about?

As I wrote in 2014, lawmakers frustrated by their inability to change government policies of which they disapprove, and unable to amend the Constitution through the process that has given us all of the amendments we have, will periodically propose convening a Constitutional Convention.

Thus far, none of these efforts have yet succeeded—for which we should be very grateful.

Why do I say we should be grateful?

When activists clamor for wholesale changes or major revolutions in the status quo, they always assume that the changes that ultimately emerge will reflect their own preferences and worldviews. History suggests that’s a dangerous assumption.

As an alert from Common Cause and the Brennan Center recently warned,

The effort to call a constitutional convention to pass a balanced budget constitutional amendment is being led in part by the American Legislative Exchange Council (ALEC), an organization consisting of corporations and conservative state legislators. Advocates of such a balanced budget amendment claim that 27 states already have passed such calls. A major effort is underway in 2016 to obtain the seven more states they believe they need to reach two-thirds of the states, the number required by the constitution to call a constitutional convention.

It isn’t just ALEC. A variety of proponents of systemic change—liberal and conservative—want the states to convene a Constitutional Convention under provisions of Article V of the Constitution. They usually insist that the convention could be limited in scope to just their pet change.

Constitutional scholars disagree. The great weight of authority makes it clear that once a Convention is called, anything and everything would be on the table.

But the risk isn’t simply that a Convention could rather easily be hijacked by people who disagree with the conveners about the nature and extent of needed changes. There is also a real danger in calling together a group of people and asking them to amend a document that few of them understand.

Anyone who thinks that the public officials who take an oath to uphold the Constitution have actually studied it and understand it–are in denial. What they might do inadvertently to the Constitution is anyone’s guess.

As a recent USA Today editorial put it,

This year’s presidential election has seen more than its share of bad ideas, including deporting 11 million people, bombing Syria and Iraq until the sand glows, and enacting massive tax cuts or equally massive spending hikes.

To these we can add another: Sen. Marco Rubio’s call for a constitutional convention to draft amendments to balance the federal budget and impose term limits on judges and members of Congress.

Rubio’s convention is an invitation to constitutional mayhem and, even if it went as planned, his proposals could further poison our politics and hobble American leaders at moments of crisis.

And that’s the best-case scenario.

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Think “It Can’t Happen Here”? It Does.

According to recent media reports, a former Kansas state employee has filed a federal wrongful termination lawsuit, alleging that the employee’s dismissal was founded on her refusal to attend bible and prayer services in Secretary of State Kris Kobach’s office.

The defendants have admitted that regular evangelical church services were held in Secretary of State Kobach’s office–led by a “voluntary minister” with something called the “Capitol Commission,” a ministry focused solely on evangelizing Kansas’ government leaders.

I guess they missed that whole “no religious test for public office” part of the U.S. Constitution.

Coming on the heels of Kentucky’s Kim Davis (“I won’t do my job unless I can impose my religious views on others”) controversy, the news from Kansas has prompted a number of Hoosiers to shake their heads and make sympathetic noises–tsk-tsking not just about Kentucky and Kansas but also about presumed behaviors in other “backward” Bible Belt states.

As if it weren’t happening right here in Indiana.

I have former students working in the Pence Administration, and their stories are consistent and every bit as disturbing as those coming out of Kansas. These students report (nervously, after extracting sworn promises not to identify them or their agencies) receiving persistent email “invitations” to attend prayer meetings in the Governor’s office, being required to hire otherwise unqualified personnel who “go to the right church,” being criticized for the absence of bibles on their desks…and dealing with superiors who have no experience with or interest in governance and even less tolerance for public servants unwilling to approach their positions as “ministries.”

Several of those former students have left government, and they aren’t alone. (Although our crack media has failed to note or report on the matter, I’m told the turnover of agency executives during the Pence Administration has far exceeded the usual rate.)

If we still had reporters, an investigation of this Administration’s preoccupation with religion and its imposition of constitutionally forbidden religious tests would make interesting reading.

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