Category: Constitutional Law

Columns, Congress, Constitutional Law, Politics

Too Clever by Hafl: The D.C. Vote in Congress

January 25, 2007 Thursday

One of the most anticipated pieces of holdover legislation for the 110th Congress is the D.C. Fair and Equal House Voting Rights Act, giving the District of Columbia a single vote in the House of Representatives and balancing that Democratic vote with a fourth district for Utah. While heralded as a historic and long-overdue reform for the District’s non-voting citizens, the legislation is a constitutional and practical nightmare. It is an example of being too clever by half – trying to do the right thing without doing it in the right way. Continue reading “Too Clever by Hafl: The D.C. Vote in Congress” →

Columns, Congress, Constitutional Law, Politics

The Return of the Equal Rights Amendment

April 16, 2007 Monday

HEADLINE: The Revival of The Equal Rights Amendment

For decades, the dream of cryonics has been to freeze clinically dead people for long periods so that they can be brought back to life in the future when a cure for their fatal ailment has been found. This month, the first successful cryonic experiment occurred in Congress with the sudden resuscitation of the long-dead Equal Rights Amendment, now called the Women’s Equality Amendment. Continue reading “The Return of the Equal Rights Amendment” →

Columns, Congress, Constitutional Law, Justice

The Case for the Impeachment of Alberto Gonzales

Published August 2007 Roll Call

HEADLINE: The Case for the Impeachment of Alberto Gonzales

There is much about the current controversy over Attorney General Alberto Gonzales that would have perplexed the framers. Perhaps the most surprising would have been the relative passivity of Congress in the face of allegations of crimes by the nation’s chief law enforcement officer.

Long before the advent of special prosecutors and blue ribbon commissions, the framers created a system designed precisely for this type of situation: impeachment.

Article II, Section 4 of the Constitution expressly allows for the impeachment and conviction of any “civil officers” guilty of “high Crimes and Misdemeanors.” It is not necessary that such offenses be actual crimes for impeachment. James Madison described many acts of negligence that would be grounds for impeachment, including notably the “wanton removal of meritorious officers.”

The only Cabinet officer to be impeached was William Belknap, a former secretary of War who was charged with accepting bribes for contracts associated with the Indian Territory. The 1878 impeachment made it all the way to the Senate despite the fact that Belknap was no longer in office. While only three Senators believed him to be innocent, he narrowly escaped conviction on jurisdictional grounds by resigning from office. Belknap is buried at Arlington National Cemetery, ultimately succumbing to a “stroke of apoplexy” not long after his impeachment.

The impeachment of Cabinet officers has proved largely unnecessary because most officers gracefully have withdrawn or, when necessary, presidents have encouraged them to attend to “family matters.”

Not only has Congress given ample time and opportunity for Gonzales to step aside, it has withheld action despite highly compelling allegations of criminal conduct. On its face, the current record likely would satisfy most grand juries as sufficient to indict on at least some of the allegations. Indeed, many of Gonzales’ defenses to allegations of false statements routinely are raised by defendants in past cases – and uniformly rejected by his own department in cases such as the Scooter Libby prosecution.

This is not to say that Gonzales does not have valid defenses to make. The point of the House investigation is to determine whether impeachment is warranted, and there is ample record to justify such an inquiry. Consider just a few of the more compelling potential articles for impeachment:

Article One: Violations of Federal Criminal Provisions on Warrantless Surveillance. The National Security Agency program implemented by the Bush administration clearly and unambiguously violated the Fourth Amendment as well as federal law, which defines such warrantless surveillance as a federal crime. Yet this article could prove embarrassing to some Democratic Members who secretly were informed of the unlawful program. Moreover, the person most responsible for these crimes is the president and Democratic leaders repeatedly have stated that they will not consider any impeachment of President Bush.

Article Two: Obstruction and Misleading of Congress in the Course of Its Oversight Responsibilities. Gonzales has demonstrated a clear record of misleading Congress in its effort to investigate violations of the Constitution and international law. Examples of such conduct are numerous. For example, in his January 2005 confirmation hearing, Gonzales was asked by Sen. Russ Feingold (D-Wis.) whether the president could lawfully “authorize warrantless searches of Americans’ homes and wiretaps of their conversations.” Gonzales publicly dismissed the suggestion as merely a “hypothetical situation” when he knew the president had done precisely that for more than three years. Likewise, in April 2005, Gonzales told Congress that “there has not been one verified case of civil liberties abuse” under the USA PATRIOT Act. It was disclosed later that Gonzales had received various reports of precisely such violations, including one shortly before the hearing.

Article Three: Perjury – January 2005. The January 2005 statement constitutes an actionable allegation of perjury given the context. We have learned since then that Gonzales was deeply involved in the program as well as efforts to overcome internal critics of the program from Acting Attorney General James Comey to FBI Director Robert Mueller.

Article Four: Perjury – April 2005. Gonzales’ statement in April 2005 also is a valid basis for articles of impeachment. At the time of the statement, Gonzales was aware that many Americans opposed the act as relying too heavily on self-monitoring and self-control by the Justice Department. Finally, he was presumably aware that violations were found by internal monitors since he received various reports of those violations and those reports were directly relevant to his testimony.

Article Five: Perjury – February 2006. In a February 2006 hearing, Gonzales testified that “there has not been any serious disagreement about the [program].” In fact, we have learned that there was considerable opposition to the program that prompted the extraordinary confrontation at the sickbed of former Attorney General John Ashcroft. Indeed, it is now known that a March 10, 2004, meeting with Congressional leaders was called to inform them of such opposition and the possible need for legislation.

Article Six: Perjury – March-April 2007. On March 13, Gonzales publicly stated that he “was not involved in seeing any memos, was not involved in any discussions about what was going on” with regard to the firing of eight U.S. attorneys. Then, on April 19, he repeated this position to Congress and explained that “I haven’t talked to witnesses because … I haven’t wanted to interfere with this investigation.” These statements appear to be patently false. One of the central figures in the scandal, former Gonzales aide Monica Goodling, testified that Gonzales did question her about her recollection of the facts. Notably, she had gone to Gonzales to ask for a favor: to transfer out the office. Gonzales used this time, when Goodling most needed his intervention, to ask her about her recollection of events – questioning that Goodling stated made her feel “uncomfortable” at the time.

Article Seven: Perjury – July 2007. Most recently, Gonzales testified that a critical confrontation at Ashcroft’s hospital bed “was not about the terrorist surveillance program that the president confirmed.” He was asked about this incident given his prior statements that there was no serious disagreement over the domestic surveillance program. Gonzales’ statement has been directly contradicted by other testimony, most notably that of FBI Director Mueller.

However painful or costly such proceedings might prove, there are far greater costs in ignoring such conduct. Congress cannot continue to call on others to address this controversy. The framers gave Congress the authority to act in the face of defiant contempt or misconduct by civil officers. It should now act as the framers envisioned: fairly but firmly with the initiation of impeachment proceedings.

Jonathan Turley is the Shapiro professor of public interest law at George Washington University Law School.

Constitutional Law, Justice, Politics

Polygamy and Hypocrisy

Posted 10/3/2004

Polygamy laws expose our own hypocrisy
By Jonathan Turley
Tom Green is an American polygamist. This month, he will appeal his conviction in Utah for that offense to the United States Supreme Court, in a case that could redefine the limits of marriage, privacy and religious freedom.
If the court agrees to take the case, it would be forced to confront a 126-year-old decision allowing states to criminalize polygamy that few would find credible today, even as they reject the practice. And it could be forced to address glaring contradictions created in recent decisions of constitutional law.

For polygamists, it is simply a matter of unequal treatment under the law.

Individuals have a recognized constitutional right to engage in any form of consensual sexual relationship with any number of partners. Thus, a person can live with multiple partners and even sire children from different partners so long as they do not marry. However, when that same person accepts a legal commitment for those partners “as a spouse,” we jail them.

Likewise, someone such as singer Britney Spears can have multiple husbands so long as they are consecutive, not concurrent. Thus, Spears can marry and divorce men in quick succession and become the maven of tabloid covers. Yet if she marries two of the men for life, she will become the matron of a state prison.

Religion defines the issue

The difference between a polygamist and the follower of an “alternative lifestyle” is often religion. In addition to protecting privacy, the Constitution is supposed to protect the free exercise of religion unless the religious practice injures a third party or causes some public danger.

However, in its 1878 opinion in Reynolds vs. United States, the court refused to recognize polygamy as a legitimate religious practice, dismissing it in racist and anti-Mormon terms as “almost exclusively a feature of the life of Asiatic and African people.” In later decisions, the court declared polygamy to be “a blot on our civilization” and compared it to human sacrifice and “a return to barbarism.” Most tellingly, the court found that the practice is “contrary to the spirit of Christianity and of the civilization which Christianity has produced in the Western World.”

Contrary to the court’s statements, the practice of polygamy is actually one of the common threads between Christians, Jews and Muslims.

Deuteronomy contains a rule for the division of property in polygamist marriages. Old Testament figures such as Abraham, David, Jacob and Solomon were all favored by God and were all polygamists. Solomon truly put the “poly” to polygamy with 700 wives and 300 concubines. Mohammed had 10 wives, though the Koran limits multiple wives to four. Martin Luther at one time accepted polygamy as a practical necessity. Polygamy is still present among Jews in Israel, Yemen and the Mediterranean.

Indeed, studies have found polygamy present in 78% of the world’s cultures, including some Native American tribes. (While most are polygynists — with one man and multiple women — there are polyandrists in Nepal and Tibet in which one woman has multiple male spouses.) As many as 50,000 polygamists live in the United States.

Given this history and the long religious traditions, it cannot be seriously denied that polygamy is a legitimate religious belief. Since polygamy is a criminal offense, polygamists do not seek marriage licenses. However, even living as married can send you to prison. Prosecutors have asked courts to declare a person as married under common law and then convicted them of polygamy.

The Green case

This is what happened in the case of Green, who was sentenced to five years to life in prison. In his case, the state first used the common law to classify Green and four women as constructively married — even though they never sought a license. Green was then convicted of polygamy.

While the justifications have changed over the years, the most common argument today in favor of a criminal ban is that underage girls have been coerced into polygamist marriages. There are indeed such cases. However, banning polygamy is no more a solution to child abuse than banning marriage would be a solution to spousal abuse. The country has laws to punish pedophiles and there is no religious exception to those laws.

In Green’s case, he was shown to have “married” a 13-year-old girl. If Green had relations with her, he is a pedophile and was properly prosecuted for a child sex crime — just as a person in a monogamous marriage would be prosecuted.

The First Amendment was designed to protect the least popular and least powerful among us. When the high court struck down anti-sodomy laws in Lawrence vs. Texas, we ended decades of the use of criminal laws to persecute gays. However, this recent change was brought about in part by the greater acceptance of gay men and lesbians into society, including openly gay politicians and popular TV characters.

Such a day of social acceptance will never come for polygamists. It is unlikely that any network is going to air The Polygamist Eye for the Monogamist Guy or add a polygamist twist to Everyone Loves Raymond. No matter. The rights of polygamists should not be based on popularity, but principle.

I personally detest polygamy. Yet if we yield to our impulse and single out one hated minority, the First Amendment becomes little more than hype and we become little more than hypocrites. For my part, I would rather have a neighbor with different spouses than a country with different standards for its citizens.

I know I can educate my three sons about the importance of monogamy, but hypocrisy can leave a more lasting impression.

Columns, Constitutional Law, Justice

Miranda and the Supreme Court

The Washington Post
June 27, 2000, Tuesday, Final Edition

HEADLINE: ‘Miranda’–Confirmed but Barely Alive

BYLINE: Jonathan Turley

BODY:
“You have the right to remain silent . . .” It’s difficult to imagine what moviemakers would do without the required Miranda warning to top off the arrest scene in just about every cop film they produce. So yesterday’s 7 to 2 vote by the Supreme Court upholding Miranda as a constitutional principle should be a comfort to Hollywood. For criminal defendants, however, Miranda will continue to make better dramas than defenses despite yesterday’s ruling.

The survival of Miranda certainly came as a surprise to many who doubted both the decision’s original basis in the Constitution and its remaining support on a more conservative court than the one that handed down the ruling in 1966, when even Chief Justice Earl Warren could eke out only a 5 to 4 majority from a liberal court.

Yet, Warren’s most famous ruling was ultimately to be preserved by one of his most ardent critics, Chief Justice William Rehnquist. Putting to rest years of speculation over the viability and basis of the ruling, Rehnquist finally established that “Miranda is a constitutional decision” and, by extension, so are the progeny of cases that it inspired. As such, it is a rule that “Congress may not supersede legislatively.”

But despite the sweeping language of yesterday’s decision, there may be less to it than meets the eye. For while the Supreme Court is clearly unwilling to pull the plug, Miranda lingers at best on life support. In fact, the Miranda of the Warren Court died years ago. It succumbed not to a single blow of the conservative majority but to a thousand paper-cuts.

Over the years, the court has allowed a myriad of exceptions that make Miranda a mere symbolic presence in most federal cases. Because of these rulings, reversals of convictions under Miranda are relatively rare events.

For example, the court ruled in 1984 that Miranda warnings are not necessary when the police seek information “reasonably prompted by a concern for the public safety.” Under this “public safety exception,” the police can question a suspect about the location of a gun and then use the evidence against him in court.

Likewise, the court has limited the meaning of “custodial questioning” that triggers the Miranda protection. In a 1977 burglary case, the court found that Miranda did not apply when the chief suspect was “invited” to come to the police station to discuss the crime.

Once a person is in “custody,” the court has narrowed the definition of “interrogation” by holding that “voluntary statements” are not protected, even when made in response to statements by the police. Thus, in a 1980 case a suspect was arrested for murder, and the officers engaged in an anguished discussion of the possibility that children from a nearby school for the handicapped might find the shotgun used in the crime. The suspect promptly incriminated himself by telling them where the gun was. The court held that the officers could not have reasonably believed they would get such a response from the suspect.

Even after “interrogation” begins, the court has allowed for police to secure waivers through acts of deception. For example, the court upheld a waiver of Miranda rights in a 1986 murder case despite the fact that the police lied to a lawyer seeking access to the accused. After telling the lawyer that his client would not be interrogated, the police interrogated the suspect and secured a confession without ever disclosing that his family had hired a lawyer who was trying to see him.

Finally, even when the court recognizes a clear violation of Miranda, it has allowed police to use the evidence. For example, in one of many cases limiting the “exclusionary rule,” the court ruled in a 1971 case that such evidence could be used to “impeach” a defendant if he takes the stand in his own defense.

Ultimately, what saved Miranda from being overturned is probably more its mystique than its meaning. Miranda has become too interwoven in our legal and cultural fabric to simply be dispatched as no longer relevant. The court therefore preserved the body while allowing its spirit to drain away years ago.

There is a legitimate question as to whether Miranda is part of the Constitution, which does not expressly require a duty to inform defendants of their rights. But if it does indeed uphold a constitutional principle, there should be some substance to the protection. Otherwise, yesterday’s reaffirmation of Miranda as constitutional law is little more than a constitutional affectation.

Constitutional Law, Justice

UnAmerican Arrests: Trap and Arrest in Washington

The Washington Post
October 6, 2002 Sunday

HEADLINE: Un-American Arrests;
Mass detainments of the innocent may be the ultimate form of crowd control, but the tactic is unconstitutional.

BODY:

The urgent calls began late on the first day of the World Bank- International Monetary Fund protests: Students who were either reporters or bystanders had been swept up in mass arrests. The accounts had one common element: All the students were arrested while trying to comply with the law.

The D.C. and National Park Service police had used the same technique in each instance:

Surround the crowd. Tell its members to disperse or face arrest. And then, as people try to disperse, block their escape with rows of officers in riot gear and arrest them.

This happened to a number of student reporters from various universities who were arrested while older reporters were allowed to exit through police lines. One student photographer was clubbed by police while taking pictures. The students then were held in handcuffs on buses for as long as 10 hours before being taken to holding areas for the night, where they slept with one wrist handcuffed to an ankle. Police told them they would be held until Monday if they challenged the arrests but would be released immediately if they pleaded no contest.

Obviously, with thousands of protesters and fluid conditions, police can make mistakes. However, the practice of intentionally encircling large numbers of people for mass arrests, whether or not any law is being broken, was no mistake.

The protests occurred outside the dormitories of some George Washington students, and the university’s law school is located across from the International Monetary Fund and down the street from the World Bank. Many students who were arrested report that they were never told to disperse. The Constitution protects a person’s right to witness public events. While the city may prohibit protests without a permit, it is not allowed to arrest people who are not engaged in such protests. It must give people, including bystanders, an opportunity to leave the area. The error some people made last week was not in their understanding of the law but in their expectation that the D.C. police would comply with it.

The practice of preventing withdrawal seems calculated to maximize arrests in order to remove large numbers of people from the streets. This view is reinforced by the fact that hundreds of people were held until Saturday evening, then released in a perfunctory manner. While they could have been released within hours of their arrest, their continued detainment achieved the purpose of disrupting the protests.

Most officers showed professionalism and restraint during the demonstrations. Moreover, some protesters who sought to interfere with traffic or to protest without a permit were legitimate targets for arrest. But many seemed to have been taken into custody through the trap-and-arrest policy.

It is hardly difficult to make the D.C. streets as orderly as Beijing’s if police can arrest large numbers of people without cause. However, this technique is both distinctly unconstitutional and un-American.

The D.C. Council should investigate whether police:

* Prevented crowds from dispersing by closing off exit points as a prelude to arrest.

* Kept people in shackles for more than 24 hours.

* Used excessive force when people tried to disperse through police lines or in the course of the mass arrests.

* Held hundreds under the pretense of administrative delays in order to deplete the protests.

If the council finds that there was such a policy, police management (including Chief Charles Ramsey) should be held accountable. A trap-and-arrest policy may be the ultimate form of crowd control, but it is neither a constitutional nor a commendable practice. Unless there is an investigation and corrective action is taken, this convenient policy of crowd suppression is likely to become standard operating procedure in our nation’s capital.

Constitutional Law, Justice, Politics

Right Goal, Wrong Means: A Vote for the District of Columbia

The Washington Post
December 5, 2004 Sunday

HEADLINE: Right Goal, Wrong Means

BODY:

Many D.C. citizens have been elated to hear about a plan to make the city into a congressional district — without the need for a constitutional amendment. That’s understandable. Residents of the District are in the unenviable position of paying taxes and yet having no true voting representative in Congress. However, the plan, known as the District of Columbia Fairness in Representation Act, would achieve a noble goal by ignoble means.

The bill, the brainchild of Rep. Thomas M. Davis III (R-Va.), chairman of the Government Reform Committee, would expand the number of House members from 435 to 437 to allow for a congressional district in Washington. To satisfy Republicans, Davis’s bill also would give Utah an additional district.

Utah, which fell just a handful of citizens short of another congressional seat in the last census, is expected to get an additional district as a result of the 2010 census. Under Davis’s plan, it wouldn’t have to wait.

Davis appears to genuinely favor a voting member for the District, and he saw an opportunity for a trade. “I don’t feel it’s a sign of weakness in our system to have to consider politics as part of the process,” he said. “Political considerations are neither good nor bad, they simply are.”

However, in matter of constitutional interpretation, politics is a poor substitute for principle. One of the greatest burdens of being a nation committed to the rule of law is that how we do something is as important as what we do. The Davis proposal would subvert the intentions of the Founders by ignoring textual references to “states” in the Constitution as the sole voting members of the houses of Congress. It also would create a city of half-formed citizens who could vote in the House but not in the Senate.

The controversy began almost 222 years ago with a riot. On Jan. 1, 1783, a large group of Revolutionary War veterans marched on Philadelphia, demanding their long-overdue back pay. Congress demanded that Pennsylvania turn out the militia to quell the rioters, but it refused. Congress then fled, first to Princeton, N.J., then to Annapolis and ultimately to New York City.

By the time congressional leaders gathered again in Philadelphia in 1787 to draft a new Constitution, one issue was prominent on many legislators’ minds: the creation of a federal district for the seat of government that would not be a part of any state. The members of Congress wanted to avoid, in the words of James Madison, the unwarranted “imputation of awe or influence” afforded to the host state of a permanent capitol.

The result was Article I, Section 8, of the Constitution, which created a federal enclave exclusively under the authority of the federal government. Virginia and Maryland agreed to pony up land for the enclave, which was gratefully accepted by Congress in 1790. Later, Congress gave some of Virginia’s land back. (The caged stones marking the original parameters of the federal district still can be seen in Northern Virginia.)

Not only does the Constitution not give the federal district a voting member in either house, it created the District precisely to be a non-state under the authority of the states represented in Congress. Article I, Section 2, specifies that members of the House are to be chosen “by the People of the several states.” Likewise, Article I, Section 3, refers to a Senate composed of two senators “from each state.” The makeup of these houses was a delicate balance, and it was a primary focus of the Constitutional Convention.

While the courts have recognized that Congress could give the District many of the same institutions and procedural rights as states, they have never suggested or ruled that Congress can create a new, fully voting member of Congress without a constitutional amendment. Indeed, when Congress wanted to give D.C. residents a voice in the election of the president, it passed the 23rd Amendment, ratified in 1961. That change notably gave the District electoral votes to which it “would be entitled if it were a State.”

Now, after failing in 1978 to ratify a similar amendment on voting rights for the District in both houses, voting-rights advocates want to avoid the constitutional process through a simple vote in Congress. Thus the Davis proposal becomes a celebration of contemporary politics over constitutional principle.

The way to achieve full representation for citizens of the District is to return the city to Maryland and reduce the federal enclave to the core of Capitol Hill and a few of its closest blocks. That is precisely what occurred when the Virginia land taken for the District was “retroceded” to the commonwealth in 1846.

Of course, strong political forces in the District and Maryland would not support retrocession. For one thing, Robert L. Ehrlich Jr. likely would be the last Republican to hold the governorship of that state for some time. Yet before we create hybrid constitutional entities, we should use the most obvious vehicle for giving voting rights to D.C. citizens without a constitutional amendment.

The amendment and retrocession processes are hardly easy, but, to paraphrase Davis, such constitutional considerations “are neither good nor bad, they simply are.”