Category Archives: Constitution

Last month, the Supreme Court was an equal-opportunity disappointer, handing down one decision that enraged conservatives and one that outraged liberals. Permit me to make myself even more unpopular than usual (no mean feat) by suggesting that both decisions were correct.
The first ruling came in Boumediene v. Bush, in which the Court upheld the right of detainees at Guantanamo to file habeas corpus petitions. Any competent lawyer could have predicted the result; the most worrisome feature of the ruling (to me) was that it was a 5-4 decision. The theatrics from predictable sources may have obscured what the ruling did and didn’t do. It didn’t order Guantanamo closed. It didn’t require that the detainees be freed. It didn’t even require that they be given full trials.
The right of habeas corpus guarantees prisoners only the most bare-bones fundamental fairness; it allows people who have been imprisoned to challenge government’s right to hold them. It allows them to demonstrate that they are being held in error—that they aren’t who the government says they are, or that they were not involved in the actions for which they are being held. Allowing someone to say, “hey—you’ve got the wrong guy” hardly endangers America.
Nor will the ruling unleash the routinely predicted “floods of litigation.” Every one of the 2.2 million prisoners currently held in the U.S. criminal justice system can file a habeas petition. Letting 335 Guantanamo detainees do so as well is hardly going to overwhelm the system.
In District of Columbia v. Heller, the Court struck down the nation’s most restrictive gun law, and finally settled the question whether the Second Amendment protects a personal or collective right—that is, whether the Amendment’s authors were referring only to militias, or whether they were also protecting an individual right to gun ownership. The screaming this time came from liberals, but it was no less over-the-top.
First of all, the Court did not invalidate all efforts to regulate firearms. The ruling simply said that a personal right exists, and government therefore has the burden of justifying regulations that propose to restrict or infringe that right, just as we insist that government must justify other efforts at regulation that may restrict personal liberty. The Court said the ordinance in question—which required, among other things, that a handgun kept in the home be disassembled—went too far.
Both sides have substantially inflated the likely effect of Heller. Purists who believe the Second Amendment protects their right to build small nuclear devices in their back yards are gleefully planning challenges to far more reasonable regulations that are quite likely to pass constitutional muster. For their part, doom-and-gloom gun control advocates have conveniently overlooked the fact that a majority of state constitutions explicitly protect a personal right to gun ownership. (While states cannot restrict rights guaranteed by the U.S. Constitution, they are free to offer their citizens more extensive protections.)
You can quibble with the details, but the Court got these right.

Comments

Amazing. In his most recent bid to avoid anything remotely similar to accountability, Dick Cheney has taken the position that the Vice-President of the United States is not part of the Executive Branch.

 

That sound you hear is generations of Constitutional law professors dropping their teeth.

 

A bit of backgound: The National Archives oversees classified documents. An Executive Order requires that all members of the Executive Branch who are entitled to see such documents cooperate with the National Archives to ensure that sensitive materials are protected. For the past four years, Cheney has simply refused to comply. When the folks at the National Archives appealed to the Justice Department (the proper channel, however futile an appeal to Alberto Gonzales is likely to be), Cheney simply claimed that this law—like so many others—doesn’t apply to him, because he is not part of the executive branch.

 

As Maureen Dowd mused in the Sunday New York Times, “Even in my harshest musings about the vice-president, I never imagined that he would declare himself not only above the law, not only above the president, but actually his own dark planet—a separate entity from the White House.”

 

As other commentators have noted, this position raises some fascinating questions, among them why, if Cheney isn’t a member of the Executive Branch, he keeps claiming Executive privilege.

 

Or why, since the clear language of the Executive Order applies to anyone “entitled to receive classified documents,” it even matters, for purposes of the rule’s application, what he calls himself.

 

As Representative Rahm Emanuel recently stated, announcing legislation to remove the Vice-President’s office from an upcoming funding bill,  “The Vice President has a choice to make. If he believes his legal case, his office has no business being funded as part of the executive branch. If he demands executive branch funding, he cannot ignore executive branch rules.”

 

This bizarre episode would be funny if it didn’t point up a tragic truth: this is an Administration that does not adhere to nor operate under the most fundamental American value—the value of the rule of law.

 

From Abu Ghraib to Valerie Plame, from signing statements to Guantanamo, from the blatant politicization of the Justice Department to the recent revelations about FBI lawbreaking, Bush and Cheney persist in operating under their widely discredited, incoherent and self-serving theory of a powerful “unitary executive.” As a result, we are losing precious safeguards against government malfeasance that generations of Americans have fought and died to protect.

 

Maybe that sound isn’t Con Law professors’ teeth dropping. Maybe it is the sound of the nation’s Founders, spinning in their graves.

 

 

 

Comments

Op Ed Submission                                                        Sheila Suess Kennedy

January 21, 2007                                                          500 words

 

A Nanny State on Steroids                                                                                

 

You might think the Bush Administration would reconsider some of its more “creative” constitutional positions in the wake of the midterm elections. You would be wrong.

 

On January 11^th, Deputy Assistant Secretary of Defense Charles Stimson criticised law firms for offering pro bono (free) representation to detainees being held at Guantanamo. Stimson not only suggested that such representation amounted to “helping terrorists,” he went further. He urged the CEOs of corporations who employed them to “make those law firms choose between representing terrorists or representing reputable firms.”

 

And how do we know the detainees are really terrorists? Because the Bush Administration says so.

 

A letter signed by 100 law school deans criticized Stimson’s remarks as “contrary to the basic tenets of American law,” and reminded the Administration that providing such representation protects “not only the rights of detainees, but also our shared constitutional principles. In a free and democratic society, government officials should not encourage intimidation of or retaliation against lawyers who are fulfilling their pro bono obligations.”

 

The Defense Department subsequently repudiated the remarks. But Stimson is still there, and if he has been punished in any way, it hasn’t been reported.

 

If there are any doubts that Stimson’s sentiments are widely shared within the Administration, Alberto Gonzales has been busily putting them to rest. In recent testimony before one Senate committee, Gonzales insisted that Federal judges are “unqualified” to make rulings on national security policy, and should simply defer to the will of the President. At another hearing, Gonzales disputed the existence of the time-honored right to habeas corpus, arguing that habeas is just a “default rule” that can be waived in the interests of national security by the Commander-in-Chief. 

 

Gonzales seems confident that  Presidential power trumps that of both the courts and Congress; last June, he was quite matter-of-fact when he told another Senate committee that the President had personally killed a Department of Justice internal investigation into the process that justified the NSA domestic spying program. Apparently, once the President decides something is legal, it’s legal. (He is, after all, the “decider.”)   

 

And then there was the Signing Statement that accompanied the President’s signature on a postal reform bill on December 20, in which Bush claimed sweeping new powers to open Americans’ mail without a judge’s warrant. That claim was not only contrary to the bill he had just signed, but contrary to existing postal law, leading one commentator to call the Administration “a nanny state on steroids.”

Now, reports are emerging of a “purge” of U.S. Attorneys, most of whom were appointed by this Administration, and their replacement under an obscure provision of the Patriot Act that allows the President to bypass the usual Senate hearings. When questioned by Sen. Dianne Feinstein, the White House informed her that at least ten U.S. Attorneys would be replaced in this fashion. No one knows why, although there is speculation that some of those being forced out have been reluctant to follow Administration orders.

 

Checks and balances, anyone?

 

 

Comments

Nothing demonstrates the differences in Americans’ worldviews more vividly than disagreements over periodic efforts to ban flag “desecration.”

 

Many officeholders who are currently promoting this effort are, of course, doing so cynically, in a frantic effort to change the national dialogue and divert attention from a government that looks more dysfunctional every day. But many people support a constitutional amendment out of a sincere belief that such a move would demonstrate respect for the country and recognize the sacrifices so many of our soldiers have made over the years.

 

Many, if not most, of the amendment’s supporters readily acknowledge that flag-burnings are rare (according to the numbers I’ve seen, there have been fewer than 45 documented cases in the last half-century). Some of them will even concede that the passage of such an amendment is likely to spur more such acts of defiance rather than reducing that already low number. But putting a halt to some epidemic of civil disrespect is not the point; supporters don’t want to control social behavior, they want to send a “patriotic message.”

 

Those of us who look at this proposal with dismay are not—as the Ann Coulters of the world insist—traitors, terrorists or anti-American provocateurs. Actually, we believe we are the real patriots. We just define patriotism differently.

 

The United States Constitution and Bill of Rights gave America the best, most workable, most enlightened governing structure yet devised. Certainly, it is the system most respectful of individual dignity and autonomy. The flag—the cloth emblem that legend tells us was devised by Betsy Ross—is a physical symbol of that system. People honor the flag by respecting the Constitution, and they desecrate it when they elevate the piece of cloth over the principles and values that make it worthy of respect.

 

When we approve government actions inconsistent with our most basic governing premises, we are desecrating the flag.

 

When those we elect to high office routinely ignore the foundations of republican government—separation of powers, accountability, the insistence that—as John Adams put it—we are “a government of laws, not men,” they are desecrating the flag.

 

When our lawmakers intrude in areas that are simply no business of the government, whether it’s Congress insisting that fourteen state court decisions have been wrong, and Terry Schaivo’s feeding tube cannot be disconnected, or South Dakota lawmakers deciding that it is their place to criminalize a woman’s decision to terminate a pregnancy, or a Pennsylvania school board deciding that their religion should be taught in lieu of science in public school classrooms, those lawmakers are desecrating the flag.

 

A President who unilaterally designates people as “enemy combatants” and imprisons them indefinitely without permitting review of that designation by the courts, or who issues “signing statements” declaring that he has no obligation to comply with acts of Congress he doesn’t like, is desecrating the flag.

 

I have a radical suggestion: let’s honor the flag by insisting that our elected officials respect the Constitution it symbolizes. 

Comments

In March, the Maryland legislature held a hearing on the state’s proposed constitutional amendment prohibiting gay marriage. Jamin Raskin, professor of law at American University—a noted constitutional scholar—had been invited to testify. When he concluded his remarks, Republican Senator Nancy Jacobs said: "Mr. Raskin, my Bible says marriage is only between a man and a woman. What do you have to say about that?"

Raskin replied, "Senator, when you took your oath of office, you placed your hand on the Bible and swore to uphold the Constitution. You did not place your hand on the Constitution and swear to uphold the Bible." The room erupted into applause, and the exchange has since circulated widely on the internet.

 

I thought about that story when I saw that the Center for Inquiry is sponsoring Ten Amendments Day. There is a special website—www.tenamendments.org—devoted to the Bill of Rights, with special emphasis on the First Amendment liberties of speech and conscience. The local chapter plans a May 7th event at IUPUI, with a reading of the Ten Amendments, videos on Freedom of Religion and Freedom to Dissent, and a panel discussion.

 

The impetus for Ten Amendments Day was “Ten Commandments Day,” an effort by Christian Right groups to rally support for posting the Ten Commandments in government buildings. Such postings would require amending the First Amendment, since the Establishment Clause forbids government endorsement or promotion of religion.

 

Whatever the reason, Ten Amendments Day is a great idea. Too few Americans know much early American history; fewer still have ever read the Constitution or the Bill of Rights, or the Federalist Papers and the arguments for and against the addition of a Bill of Rights to America’s constitution. Without that background, it is impossible to appreciate how radically America’s constitutional system changed what was then thought to be the natural order of things.

 

Before the United States, the right of a government to exercise authority over its individual subjects was taken for granted—indeed, it was thought to be divinely ordained. America’s Founders asked audacious, previously unimaginable questions: what is the proper role of the state? What are the limits of its legitimate authority? Do individual citizens have rights that governments must respect? If so, what are those rights?

 

Democratic processes are important, but America was not originally conceived as a democracy as we currently understand that term. The emphasis was on individual liberty, and the creation of checks and balances intended to limit the reach of official power. As important as many other governing innovations were, and have been, the real genius of the “American experiment” was this recognition that government’s power over the individual conscience must be limited—that the important question was not “who is right and who is wrong” but “who gets to decide.”    

 

Raskin’s riposte went to the heart of that important truth: Americans consult a wide variety of holy and inspirational texts for moral guidance, but we all pledge to uphold the same Ten Amendments.   

 

 

Comments