Here is today’s column from USA Today. Yesterday, the D.C. Vote bill was temporarily pulled from the floor due to the threat of an gun rights amendment. The NRA has threatened to “score” the vote — meaning that members who vote against it would be given a lower score in the annual rankings. This is only a temporary withdrawal as Democrats scramble to deal with the challenge. A similar amendment passed in the Senate after being introduced by Sen. John Ensign of Nevada by a comfortable margin.
D.C.’s speed bump: the Constitution
Congress’ effort to give District a vote is misguided, dangerous
By Jonathan Turley
The expected passage this week of legislation to give the District of Columbia a vote in the House is understandably a matter of great celebration for Washington residents. It is far less of a celebratory moment for many constitutional scholars. In passing this bill, Congress will commit a premeditated unconstitutional act of ignoring the clear text and history of the Constitution to create a new form of voting member. For the first time since the founding of the Republic, members will claim the authority to allow non-state representatives of its choosing to vote in Congress.
There is little debate that the voting status of Washington is obnoxious and should be corrected. Nonetheless, the great wrong done to District residents cannot be righted by violating the Constitution. In 1977, Congress proposed an amendment to give Washington full voting rights like a state. It failed. Now, unable to amend the Constitution, Congress seems resolved to simply ignore it.
Under Article I Section 2, the Framers mandated that “the House of Representatives shall be composed of members chosen every second year by the people of the several states.” The term “several states” in this clause has been read by the Supreme Court and supporters of this bill as meaning actual states. The District was created with the express purpose of being a non-state entity.
That should end the debate, but advocates hope that Congress’ plenary authority over the District might trump provisions like that Composition Clause — an absurd notion for many constitutional scholars. While the District Clause is part of a relatively minor provision dealing with forts, installations and territories, the Composition Clause is one of the cornerstones for the entire legislative branch. To trump the Composition Clause would be akin to a dingy sinking a battleship.
The Framers’ thinking
Although some might find their reasons incomprehensible today, the Founders had reasons for wanting a capital represented by Congress as a whole instead of a single representative. In 1783, Congress was forced to flee Philadelphia by an angry mob of Revolutionary War veterans demanding their long-overdue back pay. When Congress called on state officials to call out the militia, they refused. The Framers were intent on never relying again on any state for their protection. They also did not want any individual member to have the singular honor or the authority to represent the nation’s capital. The control and representation of the capital would be shared by all the representatives.
The implication of this compromise was obvious and not uniformly popular at the time. Indeed, no one less than Alexander Hamilton proposed an amendment to guarantee voting rights for the capital’s residents. He lost. Others soon came to dislike the arrangement. The original District was a diamond shape (surveyed by George Washington) composed of ceded territory from Virginia and Maryland. Soon after ratification, Virginians chose to “retrocede,” or return, to Virginia. Notably, the remaining District residents rejected retroceding to Maryland, choosing the benefits of being capital residents over being conventional constituents.
A destabilizing precedent
Political convenience has overridden constitutional principle. To sell this ill-conceived plan, sponsors resorted to trading a new vote for the “red” state of Utah for a vote for the “blue” District. To their credit, some Utah delegation members denounced the bill as unconstitutional. In doing so, Congress will create a second constitutional problem by creating an “at large” district in Utah (to avoid forcing members to hold special elections for newly configured districts). The result is that Utahans will be the only citizens represented by two House members — their original lawmaker plus an at-large representative — in violation of the constitutional concept of “one man, one vote.”
What Congress is about to do is dangerous and destabilizing. In claiming the inherent authority to create a new form of voting member, future Congresses could manipulate the voting rolls by creating new seats for any other territory or reservation. For example, Puerto Rico (with a population of 4 million U.S. citizens) would have equal claim to six seats.
I, and others, have put forward plans that range from retrocession to a constitutional amendment. If our Constitution is a covenant of faith among citizens, it is nothing short of a constitutional sacrilege to change the very structure of Congress to avoid seeking a constitutional amendment. In a nation committed to the rule of law, it is as important how we do something as what we do. The Washington vote legislation is an unworthy means to a worthy end.
Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s board of contributors. He has testified at the hearings on the D.C. vote in both the House and the Senate.
USA Today March 4, 2009
Prof. Turley, I believe that your position on this is the only one that makes constitutional sense. The proposed legislation permits populism to trump the law. It is particularly ironic that this bill is moving forward at the same time that the Obama administration is grappling with ways to deal with the rampant lawlessness which characterized the Bush presidency.
In my experience, this is the type of legislative misconduct one usually associates with local government. The typical scenario is as follows: (1) in response to citizen complaints, a city council or county commission proposes an ordinance to regulate or prohibit some sort of activity (usually involving personal conduct); (2) the city or county attorney advises the body that the proposed ordinance is unconstitutional; (3) the ordinance is approved despite the legal opinion; (4) the ordinance is challenged and tens of thousands of tax dollars are spent in a useless defense; (5) a court strikes down the ordinance on one or more constitutional grounds; (6) the legislative body attacks the “liberal judiciary” for thwarting the will of the people.
I am in favor of providing real respresentation to D.C. residents, but, as you have pointed out, there are several ways to accomplish that goal in a lawful manner. Congress should know better.
MikeA:
in that vien of thought, I live in a county that I think goes overboard in land use restrictions. Not being a lawyer I would like to ask you and any other lawyers that may know a little something about takings.
We have what are called resource protected areas (RPA) that restrict a land owners right to build or use his property. For instance I had someone call me because they have a garden in the RPA and are now subject to fines and penalties because some of the top soil from the garden washed into their neighbors yard.
You cannot build anything within these RPA’s and so in my mind you are restricted from using your land to the fullest extent. These are not easements and no compensation has been given by the county for these areas.
Is this a violation of the constitution? As far as I know no one has ever challenged this in court. The county has done this through the states Chesapeake Bay Act which is to ostensibly save the bay.
Professor,
Mike A said it for me with his summation “I am in favor of providing real representation [sic] to D.C. residents, but, as you have pointed out, there are several ways to accomplish that goal in a lawful manner. Congress should know better.”
After reading what Mike A. wrote, I think that all public servants within local, State, and Federal governments must be required to take the online ‘Professor Turley’s U.S. Constitution Remedial/ First-time Course’ that requires at least a C passing grade. Most will fail, but there will be Remedial Courses II, III, IV….The test will not be dumbed-down or graded on a curve, given the gravity of the subject matter.
Those refusing to take the test—or those who repeatedly fail the remedial RC XX’s—must listen to looped Barry Manilow tapes with ‘Copacabana’ played at an every-other-song interval coupled with preludes/interludes of Minnie Riperton’s ‘Lovin’ You’… La la la la la la la… do do do do do’s complete with that maniacal falsetto scream crescendo.
Rampant ignorance of the U.S. Constitution deserves the deployment of strong, swift, and permanent rehabilitative measures.
“Lovin’ You”.
Gak!
Thanks, FFLEO. Thanks A LOT!
Well . . . time to start humming the theme to “I Dream of Jeanie”.
But the rest of it’s not a bad idea. If you swear to protect something, you should demonstrate you understand that something.
Well Buddha, to paraphrase something you say “One lives to be of service” I just provided you the service of not 1, but 2 ear worm songs….2 for the price of 1. Enjoy!
This issue reminds me of the Civil Rights Movement of the sixties. Every thinking person said racial discrimination was an evil anomaly from our past but the legislatures stood idly by, lamenting the perceived opposition of the Constitution and entrenched state law. The Warren Court found an interpretation to correct the evil much to their credit. We all respect the Constitution and its profound effect on our lives, but as we do with our family, we must admit when it is foolish, short-sighted, or plainly wrong. It is our duty to amend it or correct it through the operation of law, lest we become slaves to cellulose. I think this is what Congress intended to do, albeit clumsily. I hold them in no ill-regard for the effort.
“Though we may say with confidence, that the worst of the American constitutions is better than the best which ever existed before in any other country, and that they are wonderfully perfect for a first essay, yet every human essay must have defects. It will remain, therefore, to those now coming on the stage of public affairs, to perfect what has been so well begun by those going off it.”
–Thomas Jefferson to T. M. Randolph, Jr., 1787.
Professor Turley, Mike Appleton, et. al.:
“In passing this bill, Congress will commit a premeditated unconstitutional act of ignoring the clear text and history of the Constitution to create a new form of voting member. For the first time since the founding of the Republic, members will claim the authority to allow non-state representatives of its choosing to vote in Congress.”
I beg to differ; and here’s the short of it:
The constitution has nothing to do with enfranchising or disenfranchising the people residing on the land formerly known as “Part of Maryland”
The truly unconstitutional act was the Organic Act of 1801.
To begin, sovereignty runs with the land; period. This has been the case from feudal times up to the present; e.g. the entire theory of eminent domain. (See ‘Nichols on Eminent Domain,’ Section One)
Accordingly, the federal constitution is not controlling in all matters. “The attribution of supremacy to the Constitution on the ground solely of its rootage in popular will represents a comparatively late outgrowth of American Constitutional theory. Earlier the supremacy accorded to the constitutions was ascribed less to their putative source than to their supposed content, to their embodiment of essential and unchanging justice.” (
i The ‘Higher Law,’ Background of the Law of Eminent Domain,
6 Wis. L. Rev. 67, 68 (1931)
In 1776, Maryland (along with 12 other colonies) appealed “to the Supreme Judge of the World for the Rectitude of [its] Intentions, [and did], in the Name, and by Authority of the good People of [Maryland] solemnly published and Declared [Maryland] to be Free and Independent; that [it is] absolved from all Allegiance to the British Crown, and that all political Connection between [it] and Great-Britain, is …totally dissolved; and that as a FREE AND INDEPENDENT state it has
full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which INDEPENDENT [SOVEREIGN] STATES may of right do.”
By signing on to the Declaration (a/k/a ‘preliminary subdivision plat against tyranny, a condition precedent to Pleasing Divine
Providence in an action to subdivide the land of King George by prohibiting tyranny from all land situate therein), Maryland not only Declared its sovereign independence from the crown, but all those 13 colonies subdivided sovereign title of said land into 13 distinct estates of sovereignty, or States.
In drafting The Declaration Of Independence, Thomas Jefferson relied on the Equitable Principle of Appealing to “The Higher Law,” in deducing his Lockean/Equitable justification for a proposed subdivision with the Crown. This was nothing new, since “[Appealing to the Equitable Principles of The Higher Law] was the theory of the Declaration of Independence and of the leaders of the American Revolution goes without saying, and through its acceptance by the American bench and bar it became the guiding theory in the development of the principles of our constitutional system.” id at 68
Jefferson’s appeal the “Higher Law” as a means of redress and remedy was by no means unique. In fact, it was “the theory of Plato and Aristotle; of Aeschylus, Sophocles, and Euripides. Through the Stoics, it found its way into Roman Jurisprudence, where it was welcomed as an explanation of the jus gentium, and was championed by the greatest of Roman jurists, including Gaius, Ulpian, and Cicero. Of almost universal acceptance during the Middle Ages, it became, primarily through the writings of Grotius, an explanation of, and a sanction for, international law, very much to the later’s benefit.”
i (id)
Cession of sovereignty, from ‘the People of the State of Maryland’ to ‘Maryland’, subject to the Declaration, established a DEFEASIBLE ESTATE OF SOVEREIGNTY within the State of Maryland and a possibility of reverter vested INDEFEASIBLY within THE PEOPLE. The People’s right of sovereign reverter is not only a
logical consequence of the formation of the social compact, but a necessary keystone to the structure and formation of this republic.
The Organic Act of 1801 was by definition an ‘execution of power, beyond right, which no one had a right to’; and therefore tyrannical. For neither the constitution of Maryland nor the Federal Constitution contained a specifically enumerated power to disenfranchise the people situate on the land k/f/k/a part of Maryland, their heirs, successors or assigns.
And that’s all I’ve got to say about that for now.
Excelsior!
Bob
Mespo,
“On every question of construction (of the Constitution) let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.” — (Letter to William Johnson, June 12, 1823)
I’m gonna venture a guess that Jefferson had no intention of contradicting what he set forth within the Declaration with that one.
“[The] object of the Declaration of Independence. Not to find out new principles or new arguments, never before thought of, not merely to say things which had never been said before; but to place before mankind the common sense of the subject, in terms to plain and firm as to command their assent, and to justify ourselves in the stand we are compelled to take. Neither aiming at originality of principle or sentiment, nor yet copied from any particular or previous writing, it was intended to be an expression of the American mind, and to give that expression the proper tone and spirit called for by the occasion. (Thomas Jefferson, letter to Henry Lee, 1825)
Apparently his home state was in agreement:
“There are certain natural rights, of which men, when they form a social compact, cannot deprive or divest their posterity; among which are the enjoyment of life and liberty; with the means of acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.“ Virginia Ratifying Convention, Proposed Amendments to the Constitution, 27 June 1788, (Extracted from Kurland, “The Founder’s Constitution,” p. 15)
Excelsior!,
Bob
Bob:
“…it [the Constitution] was intended to be an expression of the American mind, and to give that expression the proper tone and spirit called for by the occasion.”
********************
I think Jefferson meant mind in the “present” sense and Jefferson’s words present no contradiction to me.
Mespo,
Is it your contention that the Organic Act of 1801 was constitutional?
Mespo,
Is it your contention that the sovereign state of Maryland or the Federal Government were ever empowered to disenfranchise the people situate on the land k/f/k/a part of Maryland, their heirs, successors or assigns?
Or might such an action be rightly deemed an exercise of power beyond right which no one had a right to?
Bob,
Interesting take.
I’ll have to let that simmer a bit before I’ll comment further.
my question to the lawyers from a laymans perspective:
the founders were very smart even brilliant men, they were for the most part classically educated (greek, latin, etc.) they knew how to use the english language and wrote the constitution, bill of rights and the declaration in clear language.
In my mind the constitution, bill of rights, declaration are a set of principals to apply under any legal circumstance. And maybe this has to do with my backround in math but the laws of multiplication and addition cannot arbitrarily be changed and yield the original intent of the theorem.
Why then do we find it necessary to, through judicial review, change the constitution? Why is it so hard to use the constitution as it was written to address legal issues of today?
We have been adding and subtracting adequately for a couple of thousand years. In my mind every time a court sends down a decision the further we get from the original intent.
For example, the founders could never have anticipated the internet but the first amendment should apply to the internet as easily as it does to an 18th century pamphlet and the electronics arent they the same as canals were back then? Anything can be broken down into its elementary constituents and principles applied. So why do many think the constitution is an “evolving” document?
Parsimoniously paraphrasing Thomas Jefferson, I think that he considered the U.S. Constitution to be a dynamic document of *ideals* rather than a stale, static and constrictive parchment of ‘ideas.’
No, I aint no lawyer, but I aint no Yoo-like “anti-lawyer” neither…
FFLEO:
I look at it as a document of principles to apply in a given circumstance, like geometry you can have any triangle and figure out its area and sides with a couple of equations. It does not matter what size the triangle only that it is a triangle. So to the constitution and bill of rights, in my mind it is a set of principles to apply in any legal circumstance.
There is a huge difference between evolving and throwing the baby out with the bath water. As far as I’m concerned, the Articles are sacrosanct, but the framers made amendment difficult with good reason just as they made it an available option for good reason. It’s like skinning a building. Modifying the appurtenances is sometimes required for proper function as circumstances change, but if the frame is solid, don’t monkey with it. The Articles are clearly the frame and a damn good one too.
Buddha,
Never assume the existence of particular power in any sovereign; always check the math.
And Bron, if you’re reading, this is not just a conservative method of constitutional analysis but THE ONLY WAY to begin analyzing any constitutional issue.
And if you might be wondering “but what does Immanuel Kant have to do with this” simply put, Immanuel Kant always began and built his analysis with a form of the question “WHAT MUST BE TRUE.”
And that’s all I’ve got to say about that.
Bob
P.S.
BTW Bron, not only am I an avid defender of State’s Rights, but I can show why New York State truly deserves the title “The Empire State.” (See NYS Constitution 1777)
Excelsior!
Bob,
“Never assume the existence of particular power in any sovereign; always check the math.”
Most assuredly.
Bob,
In retrospect, “sacrosanct” was not the best word choice.
Buddha,
The chain of title runs something like this:
Form No. http://www.yale.edu/lawweb/avalon/diplomacy/britian/paris.htm
THIS INDENTURE, made 3rd day of September, 1783 between
His Britannic Majesty,
party of the first part, and
THE PEOPLE OF THE 13 ORIGINAL COLONIES, BY THE GRACE OF
GOD FREE AND INDEPENDENT
Parties of the second part,
WITNESSETH, In the name of the most holy and undivided Trinity, the party of the first part, in consideration of pleasing the Divine Providence to PROHIBIT TYRANNY, does hereby grant and release unto the party of the second part, the heirs or successors and assigns of the party of the second part
forever, fee simple determinable Sovereign Title in,
ALL that certain plot, piece or parcel of land, being The 13 Original Colonies, more particularly described within Article II of The Preliminary Articles of Peace
(attached hereto as Schedule “A”)
Said sovereign title being necessarily conveyed SUBJECT TO THE
DECLARATION OF COVENANTS AND RESTRICTIONS AGAINST TYRANNY
(More particularly described within Schedule “B” attached hereto)
recorded EARLIER, with a firm reliance on the protection of Divine Providence and running with all land described within Schedule “A,” forever.
In Witness Whereof…
++++++++++++++++++++++++++++++++++++++++++++++++++++
Schedule “A” (Land Conveyed–see Article II)
http://www.yale.edu/lawweb/avalon/diplomacy/britian/prel1782.htm
Schedule “B” (Declaration of Covenants and Restrictions Recorded Earlier)
http://www.yale.edu/lawweb/avalon/declare.htm
And that’s all I have to say about that
Excelsior!
Buddha,
I posted a quick form of Deed or chain of title if you will; it had a few links to such things as the Treaty of Paris and the Declaration so it’s being looked at by the moderators.
FFLeo:
“No, I aint no lawyer, but I aint no Yoo-like “anti-lawyer” neither…”
*********
Regardless of who signs our paychecks we are all about the business of insuring that our freedoms outlive us. To that extent, welcome to you and all the others here to the Bar.
Bobesq:
I see that our constitution was largely based on New Yorks which was largely based on British law. Thank you for the link very interesting. The founders had a template and all this time I thought they had pretty much done it from scratch.
A toast to New York
Now I just have to figure this Kant fellow out!
Brom98:
“Why then do we find it necessary to, through judicial review, change the constitution? Why is it so hard to use the constitution as it was written to address legal issues of today?”
************
As Bob,Esq is apt to remind us, all legal documents, indeed all legal opinions, rest on certain historical assumptions. For example, when written, the Constitution afforded slaves 3/5 the value of freemen in counting population. Also the voting franchise was originally accorded only to male landowners. As the nation developed, these assumptions gave way to the social dynamic, and the law followed suit. Sometimes, as in the Civil Rights Movement the law led, but only reluctantly after the legislature abdicated. Even so, without the great Civil Rights legislation spurred by the Supreme Court cases, I doubt the Movement would have the profound effects that it did have. This is a roundabout way of saying that law is unlike the precise, logical tenets of mathematics. Rather it is more organic and hence human, with starts and stops, often times mirroring the erratic social progress. Though based in reason, the law must adapt and even occasionally recede as Cicero famously said, “When the reason for the law disappears, the law disappears.”
As I noted in an earlier post, it took almost 200 pages to solve de Feramt’s puzzle because mathematics progresses in efficient, linear and logical steps toward its inevitable conclusion. Our Constitution was designed for an expanding nation and population but took only took 6 pages including the base text, Bill of Rights,and the transmittal letter. It is framework not facade,and we are left to renovate it every so often as necessity and, as here, conscience dictate.
I like Justice Felix Frankfurter’s definition of law:
“Future lawyers should be more aware that law is not a system of abstract logic, but the web of arrangements, rooted in history but also in hopes, for promoting to a maximum the full use of a nation’s resources and talents.”
As those hopes change, so does law.
Thanks to Mike Appleton, Mespo72, and Bob, Esq. Your lawyering perspectives make this discussion especially educational and informative.
Bob,
Thanks! I’ve learned a couple of new things today. Excelsior indeed.
Bob,Esq:
I think the DC Organic Act was not unconstitutional merely poorly considered and incomplete. As you know, DC residents could vote for their representatives from 1790 to 1800 by virtue of their citizenship status in the two respective states. The Organic Act of 1801 simply forgot about these citizens and as Professor Dihn says disenfranchised them “by historical accident.”
I quote from the ABA position paper on the topic:
“The same constitutional authority was exercised by the very first Congress, in 1790, when
Congress accepted the cession by Maryland and Virginia of the ten-mile-square area constituting
the District and provided by statute that its residents would continue to enjoy the same legal
rights – - including rights to vote in federal and state elections – - which they had possessed under
Maryland and Virginia laws prior to acceptance by Congress of the Cession. Act of July 16,
1790, chapter 28, section 1, 1 Stat. 130. Under this federal legislation, residents of the District
were able to vote, from 1790 through 1800, for members of the United States House of
Representatives (and for members of the Maryland and Virginia Legislatures, which then elected
United States Senators).
Voting representation in Congress for District residents ceased in 1801, when the District of
Columbia became the Seat of Government, and Congress enacted the Organic Act of 1801,
which provided for governance of the nation’s capital but which contained no provision for
District residents to vote in elections for the Congress that had the “exclusive” power to enact the
laws which would govern them. Since the 1801 Organic Act also had the effect of terminating
District residents’ right to vote in any elections held in Maryland and Virginia, they were left
disenfranchised from voting for Members of Congress.”
The legislation seems thus defective in that the rights of those citizens were not considered. If we interpret that as disenfranchisement, then of course the Act is unconstitutional. If however, we deem the Act a product of legislative mistake or oversight,it seems to me Congress has every right to cure the legislation to make it constitutionally sound and thereby correcting this historic and historical injustice. So to answer your question directly, it all depends.
Bron98:
“I see that our constitution was largely based on New Yorks which was largely based on British law. Thank you for the link very interesting. The founders had a template and all this time I thought they had pretty much done it from scratch.”
Bron,
I didn’t say our constitution was based on New York’s and I apologize if I gave that impression. If you looked up the New York Constitution of today and found similarities that was due in no small part to dual federalism.
What I was trying to point out is that the State of New York adopted and made law the entire Declaration of Independence and has carried it over through all amended Constitutions to the present.
Significance? Huge. The Declaration, i.e. the restatement of social compact, bring equality and an irrefutable bedrock of individual rights to the forefront and not subject to further amendment.
“The Declaration was and is a legal instrument, a juristic act of ultimate solemnity, effecting the most fundamental constitutional change, a change in the very source and foundation of law. It is par excellence constitutional. It is our one legal document on which all else rests. It enunciates the theory of law, of ultimate constitutional law, on which the signers based their claim of power and right to effect this great legal-constitutional change. The force and thrust of the [the Second Paragraph], as a permanent commitment of the nation, must be appreciated in that light.” (Charles L. Black, One Nation Indivisible, 65 S.J. Law Rev. 27 (1991))
On the Federal level, the same is accomplished via the restatement of social compact combined with the Ninth Amendment and the P&I clause of the 14th Amendment.
The beauty of New York is that it acted as a defacto recording office for our “Declaration of Covenants and Restrictions Against Tyranny” by including it in their first Constitution word for word; and thereby, via the magic of the equal footing doctrine, making it applicable to the other 12 original colonies.
Well, it’s 6am, I need coffee.
SIYOM,
Bob
Mespo,
Quick note:
I fail to see how the element of intent has any bearing on the determination of whether an act is unconstitutional.
One could argue, however, that the act was NON-constitutional; which brings us back to the Lockean definition of tyranny.
Such acts, if one were to adopt the UCC 2-207 knock out rule of analysis, would negate certain portions of the constitution itself; e.g. the 3/5th’s compromise, the fugitive slave clause, etc. since they all represent exercises of power beyond which nobody had a right to.
More later,
Bob
Mespo:
But as Buddha said above we can change the constitution through amendment and I have no issue with that as it is part of the original document. My concern is that the constitution has been battered by judicial review and case law.
If I were a judge I would go to the original document to look at what priciples would apply in a particular case and read the thoughts of the founders. It could be my ignorance that causes me to think this way, but I believe that the constitution is a set of principles laid out for a civil society to follow and should be strictly ahered to and changed only through the amendment process.
Why has case law become the law of the land? In my mind it is like making lemonade, the initial serving is good but if you keep refilling the pitcher with water with a little lemonade left in the bottom at some point you are drinking water.
Bobesq:
I read the charter of liberties and priveledges from 1683 and have not yet read the one from 1777. While not the first constitution of New York I was impressed by the fact that a number of sections were similar to the federal constitution.
Thank you for the idea and I will try and read the 1777 constitution today.
here is a link to New York’s charter of liberties and priveledges from 1683 if anyone is interested.
http://www.montauk.com/history/seeds/charter.htm
Bron, the authority for case law is in the words of the original Constitution itself.
Art III, section one states “The judicial power of the United States, shall be vested in one supreme Court….”
Sec. 2 states that the “judicial Power shall extend ot all Cases in Law and Equity arising under this Constitution….”
Sec. 2 also gives the Supreme Court original or appellate jurisdication, depending on the parties to the case.
Read these together. The Constitution itself uses the word “cases.” If a case arises that involves the meaning of the Constitution, it is covered by the judicial power. The Supreme Court has jurisdiction to resolve the case, and to do this it has to determine the meaning of the Constitutionalk provisions applicable to that case. Art VI makes the Constitution the supreme law of the land.
So the concept of case law interpreting the Constitution is built in to the Constitution itself.
Bron98:
“…but I believe that the constitution is a set of principles laid out for a civil society to follow and should be strictly ahered to and changed only through the amendment process.”
****************
A little wisdom from a fellow who knew a little about constitutional democracy:
“Rules are for the guidance of wise men and the obedience of fools.”
–W.S. Churchill quoting WW2 fighter pilot Douglas Bader
Bron,
In short, case law or common law figures into the equation because times and situations change. There are three ways to make a law. Legislation, executive action and common law. The way common law works is kind of an efficiency matter. When a court is presented with facts that are similar to a past adjudication, they are bound to follow that earlier decision by stare decisis. Stare decisis is the principle that you should stand by a ruling that has already been decided. Now the ruling part is important, because the principle of stare decisis applies to rulings only, the “what” of a case, but not the “how” or the “why”. How and why change and thats how matters of first impression end up before the court. You can see how this retention of rulings is an efficiency.
A large part of the conflict arises when case law interacts with legislation and regulation. As to why is it used here, common law is the English tradition and it’s used in many parts of the world where the English used to hold sway.
Contrast this with Civil Law, based in the Napoleonic tradition, which is in fact used in Louisiana to this day. This tradition is rooted in the Roman’s Corpus Juris Civilis and the Code of Justinian, but it is essentially the codification of case law. A distillation. Critics of the civil law approach think this ossifies the law, but I can tell you from experience that is not the case. It’s just a different, but equally valid, method of retaining accretions of wisdom from previous decisions. It also makes the law a bit easier to access IMHO. But both English common law and Roman civil law are examples of case law systems only really differing in methods of collection and application (you’d cite Code instead of a case).
The other two major structures are socialist law and Islamic law. Some argue that socialist law is merely case law seen through a command economy lens as practiced by the Soviets. While I tend to agree with this, I’ll have to say my exposure to Soviet law is minimal. Any Soviet law experts out there, feel free to chime in.
Islamic law . . . do I really need to go into what’s wrong with that system? Aside from being based in a religious document, it’s incredibly intrusive and inflexible. Sharia is an evil upon the world. Think of what would have happened if the RCC had been responsible for determining the law. Well, actually, you don’t have to imagine the consequences, just look at the Inquisition. Thankfully, Canon law did not take hold in Europe the way Sharia took hold in the ME. Books of religion are horrific bases for a legal system.
I hope that answers your question.
mespo,
Got to love that Churchill.
Mespo,
To paraphrase Rick from “Casablanca”
“When it comes to constitutional analysis, you’re a true democrat.”
Personally, I consider the ‘true democrat’ approach to the constitution to be one of the primary causes for the horrific decisions in Griswold on both sides of the bench.
Vince Treacy:
Article III did not give the Supreme Court any textual power of Judicial Review. Furthermore, Article III did not give the Supreme Court the power to revise or expand its own power to include Judicial Review without a Constitutional Amendment (e.g. Marbury, Hunter, Cohen, etc.)
Let’s examine one example of what Bron might be worried about.
My mind drifts back to the afternoon of December 9, 2000 when Lord Scalia and cadre issued a certain Stay:
Article III did not give the Supreme Court the power to override Article II through injunctive relief or otherwise. And Article
III did not appoint the Supreme Court as the People’s proxy or attorney in fact, nor did it declare the People incapacitated and appoint the Court as their Guardian to select a President for them.
Yet what happened? That’s right, the Court acted as if Article IV’s guarantee of a republican form of government didn’t exist and made Madison and Hamilton roll in their graves by violating the separation of powers doctrine at the highest level possible.
Got to side with Bob there. SCOTUS really screwed up when they appointed the President. But thanks to the above postings, I now truly understand the depth of loathing Bob carries for Scalia. Not that Scalia doesn’t deserve it.
Thank you to all that took the time to reply to my question(s).
Your thoughtfulness is appreciated.
Bron98,
As an atheist, I do not subscribe to the supernatural; however, your transformation from what you were less than a month ago is quite remarkable. Perhaps someone else was using your screen name…
More than likely, the change is ascribable to your interactions with those other most intelligent persons within this blawg. Whatever the reason, you have become a welcome contributor and many of your questions garner good debate and information.
Perhaps liberal, civil libertarian thinking—so often espoused here—is not so destructive and counterintuitive to conservative ideologies, after all.
The text of Article III does give the Supreme Court judicial power and jurisdiction over cases arising under the Constitution, that is, judicial review.
FFLEO:
I was just a jackass with a hair up my ass. I am a pretty firm believer in individual liberty and responsibility if and when I can determine that that is what it is (that was a precise construction)
Actually I think you will find that most conservatives think like I do on civil liberties. I think people confuse us with the moral majority, which actually scares me as I have no desire to live in a theocracy.
But anyway thank you and I really enjoy this site, you do learn a great deal here. It is like sitting at the right hand of Aristotle and the left hand of Plato with Cicero and Epicurus nearby and Thomas Jefferson whispering in your ear.
Vince:
“The text of Article III does give the Supreme Court judicial power and jurisdiction over cases arising under the Constitution, that is, judicial review.”
Huh?
“The Constitution does not expressly provide for judicial review.”
http://www.law.umkc.edu/faculty/projects/FTRIALS/conlaw/judicialrev.htm
See also “A Critical Guide to Marbury v. Madison,” William W. Van Alstyne, Duke Law Journal, 18 . pp. 1-47. (1969)
http://eprints.law.duke.edu/544/
Bron98:
“More than likely, the change is ascribable to your interactions with those other most intelligent persons within this blawg. Whatever the reason, you have become a welcome contributor and many of your questions garner good debate and information.”
************
Hear, hear! “In the same way, I tell you that there will be more joy in heaven over one sinner who repents than over ninety-nine righteous people who don’t need to repent.” Luke 15:7 (ISV)
Bob,Esq:
A little of the genius of CJ John Marshall (in whose courthouse I go on a daily basis) explaining judicial review, from his magna opus, Marbury v. Madison:
“This original and supreme will organizes the government, and assigns, to different departments, their respective powers. It may either stop here; or establish certain limits not to be transcended by those departments.
The government of the United States is of the latter description. The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction, between a government with limited and unlimited powers, is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.
Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.
If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power, in its own nature illimitable.
Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.
If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.
It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.
So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.”
Bob, that is interesting speculation about the (very) minority view that the Supreme Court cannot invalidate a congressional enactment, but it is just that — speculation. IT IS NOT THE LAW.
Judicial review is set forth in the express words of Article III and the Supremacy Clause. When a case arises under the Constitution, Article III gives the Supreme Court the judicial power and jurisdiction to resolve that case. The words could not be clearer. If an enactment by Congress violates the Constitution, then the Supreme Court may rule that it is invalid as a necessary step in resolving a case or controversy before it.
See United States v. Nixon 418 U.S. 683. According to the Wiki summary, QUOTE The unanimous decision held that the Supreme Court has not only the power established in Marbury v. Madison to rule a law invalid for conflicting with constitutional provisions but also power to decide how the Constitution limits the President’s powers; that the Constitution provides for laws enforceable on a president; and that executive privilege does not apply to “demonstrably relevant” evidence in criminal cases. UNQUOTE
From the decision: QUOTE Notwithstanding the deference each branch must accord the others, the “judicial Power of the United States” vested in the federal courts by Art. III, 1, of the Constitution can no more be shared with the Executive Branch than the Chief Executive, for example, can share with the Judiciary the veto power, or the Congress share with the Judiciary the power to override a Presidential veto. Any other conclusion would be contrary to the basic concept of separation of powers and the checks and balances that flow from the scheme of a tripartite government. The Federalist, No. 47, p. 313 (S. Mittell ed. [418 U.S. 683, 705] 1938). We therefore reaffirm that it is the province and duty of this Court “to say what the law is” with respect to the claim of privilege presented in this case. Marbury v. Madison, supra, at 177. UNQUOTE
To repeat, as held in Marbury, and unanimously reaffirmed in Nixon, it is the duty of the Supreme Court to say what the law is. That is the law of the land. To be a lawyer, that is the answer you have to give on the bar exam.
If it is unsatisfactory, put in an amendment to change it.
Everyone, for a list of laws enacted by Congress and invalidated in whole or in part by the Court, go to:
http://www.gpoaccess.gov/constitution/pdf2002/046.pdf
It is a very long list of over 40 pages of laws that are no longer enforceable because of judicial review. It reflects the settled legal doctrine of judicial review of federal legislation by the Supreme Court. It would be very suprising if all those cases were based on a misunderstanding.
Mespo,
I’m fully aware of the reasoning of Marshall in Marbury; right down to the ordering of his reasoning– i.e. saving the rabbit out of the hat trick for last.
However, let’s be clear; I’m not arguing against judicial review per se. I’m simply restating the obvious fact that it’s not a specifically enumerated power. And because Marshall had no authority to create or exercise a power that was not specifically granted to the Court, it must be deemed in the same light in which Marshall saw it; i.e. an implicit privilege to fulfill a ‘solemn’ duty, imposed by the oath of loyalty, to preserve our republican form of government via the separation of powers doctrine.
Thus Marshall ends with: “Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? if it is closed upon him, and cannot be inspected by him?
If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime.”
Accordingly, when SCOTUS acts as an oligarchy of nine by issuing a ruling that is repugnant to the constitution as a matter of definition, all those bound by the oath have a solemn duty to recall that Judicial Review is not an absolute constitutional power by disregarding said ruling and punishing the Justices for ‘bad behavior.’
Finally, one of the main reasons for the decline of this country’s legal system has EVERYTHING to do with filling the seats of Capitol Hill with congressmen who wouldn’t know the basic principles constitutional law, much less maintaining a republican form of government as guaranteed by Article IV, if they were pissing on them.
SIYOM,
Bob
Vince,
I honestly don’t know what to say.
You said: ““The text of Article III does give the Supreme Court judicial power and jurisdiction over cases arising under the Constitution, that is, judicial review.”
That’s flat out wrong.
You even quoted text saying so: “the Supreme Court has … THE POWER ESTABLISHED IN Marbury v. Madison to rule a law invalid for conflicting with constitutional provisions”
The mere fact that we have accepted for two centuries Marshall’s weaving of an implied power of judicial review does not diminish the fact that Article III can only be amended pursuant to Article V.
The constitution grants no rights whatsoever but rather gives form to our republic via SPECIFICALLY ENUMERATED POWERS. Failure to remain cognizant of these fundamental truths leads exactly to what Ben Franklin warned about.
See what I wrote to Mespo above.
Bob, Esq & Vince:
It is indisputable that the doctrine of judicial review does not appear within the four corners of the US Constitution nor its amendments. It is likewise true that Marshall created the doctrine for both practical and philosophical reasons. Marshall drafted the opinion before the case even got to his Court though he knew it would eventually get there.
Marshall was a true nationalist in the sense that he believed the Constitution would best be used as a national Charter to unify the Nation. Having lived through the days of the Articles of Confederation, he was keenly aware of the shortcomings of that anti-federalist document. It’s worth noting that on January 21, 1786, the Virginia legislature invited the other states to send delegates to Annapolis, Maryland to discuss amending the Articles to reduce inter-state conflicts. The Annapolis Convention was the precursor to the Constitutional Convention in Philadelphia one year later. Marshall was in the Virginia legislature and serving on the Council of State at the time, and was instrumental in supporting the sparsely attended meeting of state representatives. In 1787, Marshall attended the Constitutional Convention in Philadelphia with the Virginia delegation, and together with James Madison and Edmund Randolph, Marshall led the fight for ratification of the document containing provisions calling for a strong national government as opposed to Patrick Henry and Thomas Jefferson (his cousin and leader of the Democratic-Republican Party/D-R), who wanted a document with less central control and more power for the constituent states. Marshall was especially active in defense of Article III, which provides for the Federal judiciary.
Against this backdrop, it was easy to see that once Marshall ascended to the High Court he would do nothing to diminish the powers of the central government, nor the federal judiciary. This of course meant reserving as much power as possible for the federal courts which were considered, by some, to be subservient to the state courts. Marshall knew that to be taken seriously he would have to stake out a position empowering the federal courts, but not directly attacking the power of Congress, which at the time was considered the most powerful among the branches of government, with the judiciary a decidedly last place finisher in terms of importance.
Jefferson’s election in 1800 and the sweeping in of his D-R Party into the Congress boded ill for the federal judiciary given Jefferson’s anti-federalist political philosophy. Among the first acts of the new Congress was the repeal of the Judiciary Act of 1801 that was passed by the lame duck Congress just before Jefferson took the oath of Office in March, 1801. The 1801 Act greatly expanded the reach and size of the federal courts. The D-R’s, anti-federalists all, passed a new Judiciary Act (1802) which directly challenged the role of the Supreme Court and forced it to operate under the restrictive dictates of the old Judiciary Act of 1789. It also shortened the Court’s term and even canceled its second term of June of 1802. In doing so, the new Congress could delay any challenge to the new Judiciary Act until well-after the law was in effect.
Marshall was not blind to this challenge to the federal judiciary and to the notion of a strong central government, having been an accomplished legislator in his own right and a champion of federalism during the Convention. Seizing on a rather obscure case of a Justice of the Peace whose commission was not delivered on time for him to assume his office, Marshall cleverly held that Marbury, the unlucky JOP nominee, had a right to his commission but that the Court was powerless to enforce the right through the writ of mandamus as the Act enabling that enforcement was at odds with the Constitution. The brilliance is in giving the D-R’s what they desperately wanted, which was to deny the seating of these so-called “Midnight Judges,” but in so doing, establishing conclusively that the Supreme Court could effectively block any Act passed by the D-R Congress on constitutional grounds. In giving the D-R Congress a minor victory, Marshall enshrined the notion of the Court’s role as final arbiter in deciding the constitutionality of laws enacted by the Congress. He also partially gutted the old Judiciary Act of 1789. The elegance of Marshall’s decision was that the D-R’s could hardly be heard to complain since, in essence, they had “won” the case–but, as we have seen, had actually lost the philosophical war.
“The constitution grants no rights whatsoever.”
Wrong. It does establish rights.
It also establishes a government with a “judicial Power.” That is the power to judge “Cases.” It vests the power in a “supreme Court.” It gives that court “Jurisdiction,” that is, the power to decide, cases. The judicial power extends to cases “arising under this Constitution.” That Constitution is the “supreme Law of the Land.” Which of these words do you not comprehend? The Court resolves cases, and if the law before it is inconsistent with the Constitution, then the Constitution prevails over the law.
Supreme Court enforcement of the Constitution is within its “four corners”, since the words of the Constitution itself expressly established a system in which cases would arise under it, and be resolved by the Supreme Court, with the Constitution supreme.
Squire Bob, it is not an implied power because it is set out in the words of the Constitution.
Also, JT and I think you are wrong about the DC voting rights in Congress, because it changes the composition of the Congress written in the words of Article I, and is thus inconsistent with the representative republican form of government established by the Constitution. If it is ever enacted into law (now unlikely), it will be very probably be held unconstitutional by the courts.
Mespo:
you crack me up! I love your sense of humor and your wit.
Vince:
““The constitution grants no rights whatsoever.”
Wrong. It does establish rights.”
***********
This dispute is more than semantics. In the collective mind of the framers, the Constitution does not “establish” rights, it recognizes certain inalienable rights.* It is also indisputable that the words “judicial review” are not found in the Constitution, and further that the notion was inserted by Marshall for the reasons I cited above. You may also feel that the concept is implied in the terms of the document, but that is likewise the basis for much interpretation. Judicial review predates the Constitution in the common law back to Lord Coke in Dr. Bonham’s Case, 8 Co. Rep. 107a (1610), and could have easily been explicitly incorporated into its terms.
*From 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. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,…”
Bron98:
Beats me that the world is so funny!
VT, even though I know what you mean, this is where words get minced like garlic and basil in a marinara.
Rights confer power and are not granted by, but are rather protected under, the Constitution.
‘It’s in there’, as they say…
Mespo:
“It is indisputable that the doctrine of judicial review does not appear within the four corners of the US Constitution nor its amendments. It is likewise true that Marshall created the doctrine for both practical and philosophical reasons. Marshall drafted the opinion before the case even got to his Court though he knew it would eventually get there.”
Mespo, you’re preaching to the choir; albeit a tad off-key. Please re-read what I wrote to you earlier about the implied power arising necessarily in connection with upholding a ‘solemn duty’ to defend the constitution and the republic in lieu of turning said oath into ‘solemn mockery.’
Stated another way, my point is that the power of judicial review is far less rooted in formal law and far more rooted in the initial epistemic inquiry “are we remaining loyal to the document and how do we know?” So long as the Justices remain as intellectually honest as Marshall, the origin of the power is far less relevant than crafting an equitable remedy expressing said loyalty to the document.
The other view, i.e. that the power is firmly settled, absolute and unquestionable is the door way to completely forgetting how the constitution is structured and the order of operation by which it functions.
Allow me to illustrate as I reply to Vince here:
Vince,
You say that the Constitution ‘establishes’ rights; however the founders, such as Hamilton, would remind you that you’re wrong.
POWER CONFERS RIGHTS; NOT VICE VERSA.
As Hamilton reminded us in Fed 84:
“I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.”
Furthermore, the Constitution is ALL ABOUT STRUCTURE. While I may despise Antonin Scalia, my hatred of the man does not negate the truth of his words:
Scalia: “What the people care about, what affects them is the Bill of Rights …. That is a profoundly mistaken view …. For the fact is, that it is the structure of the government, its constitution, in the real sense of the word, that ultimately destroys freedom. The Bill of Rights is not more than ink on paper unless … it is addressed to a government which is so constituted that no part of it can obtain excessive power….”
Whenever we forget the foregoing, we run into the trap of reaching the tragic conclusions that Hamilton warned about simply by adopting an incorrect order of operations.
Again, the order of operations is “RIGHTS CONFER POWER; NOT VICE VERSA.”
Here’s a mathematical example of disregarding order of operations:
Three friends have a nice meal together, and the bill is $25
The three friends pay $10 each, which the waiter gives to the Cashier
The Cashier hands back $5 to the Waiter
But the Waiter can’t split $5 three ways, so he gives the friends one dollar each and keeps 2 dollars as a tip.
They all paid $10 and got $1 back. $10-$1 = $9
There were three of them 3 X $9 = $27
If they paid $27 and the waiter kept $2: $27+$2=$29
Where did the other dollar go? $30 – $1 = $29
http://www.mathsisfun.com/puzzles/where-did-the-dollar-go–solution.html
Finally, if you truly have your mind set on:
“Squire Bob, it is not an implied power because it is set out in the words of the Constitution.”
then far be it from me to convince you otherwise. Perhaps Professor Turley can convince you.
Otherwise, let me conclude with a quote from the ratifying convention from New York expressing a dire concern that someone like Marshall would come along and pull a rabbit out of his hat like he did in Marbury:
“That the jurisdiction of the Supreme Court of the United States, or of any other court to be instituted by the Congress, is not in any case to be increased, enlarged, or extended, by any faction, collusion, or mere suggestion; and that no treaty is to be construed so to operate as to alter the Constitution of any state.”
I’ve spent far too much time on this topic.
SIYOM,
Bob
Mespo & Patty,
Thanks. I just wasted a half hour making a lengthy argument that essentially repeats the points you made.
Excuse me whilst I wrap my lips around a revolver.
lol
Now now Bob! It’s not all that serious. If it’s any consolation, that was quite entertaining.
Squire Bob, sorry you wasted all that time on an argument that is wrong.
Bobesq:
Make sure it is only a chocolate facsimile thereof. It will have the same peaceful effect without the trauma.
hmmmm chocolate handguns (drool)
Now there’s a product liability case just waiting to happen!
Bob,Esq:
I was being supportive!
Mespo,
I know and I appreciate it; it’s just that I always find myself trying to reconcile and clarify the matter (at least for myself) whenever I revisit it.