Constitutional Law

Lap Dances, Wills, and You — The Legal Legacy of Anna Nicole Smith

Posted 2/27/2006

It is a classic American tale: Boy meets stripper, boy marries stripper, stripper goes to court to get the dead boy’s estate. Of course, in this case, the “boy” was 90-year-old oil magnate Howard Marshall and the stripper is the buxom reality-TV star Anna Nicole Smith. The court is none other than the U.S. Supreme Court, where Anna’s appearance Tuesday will draw more coverage than it would if Chief Justice John Marshall returned from the dead for the argument.
In the case of Marshall v. Marshall (Smith’s legal name is Vickie Lynn Marshall), the characters are more interesting than are the issues. Continue reading “Lap Dances, Wills, and You — The Legal Legacy of Anna Nicole Smith” →

Congress, Constitutional Law, Politics

How to End the Gay Marriage Debate: Civil Unions and You

Published 4/2/2006

With mid-term elections approaching, politicians are once again returning to one of their favorite themes: protecting the sanctity of marriage. When same-sex marriage is raised, citizens quickly forget about rampant corruption in Congress, towering budget deficits, or even the Iraq war. Not surprisingly, therefore, a constitutional amendment has been cited as a legislative priority by both President Bush and Republican leadership. The message is clear: What politics and religion have joined, let no one pull apart.
The fact is that the same-sex marriage fight is one that advocates on both sides would hate to end. Money is pouring in, membership rolls are expanding, and advocates have an issue that borders on obsession for many Americans. Continue reading “How to End the Gay Marriage Debate: Civil Unions and You” →

Columns, Congress, Constitutional Law, Media, Politics

Down to the Fourth Estate: The Failure of the American System to Protect Liberty

Published 5/16/2006

This month, Congress is faced with a most inconvenient crime. With the recent disclosure of a massive secret database program run by the National Security Agency involving tens of millions of innocent Americans, members are confronted with a second intelligence operation that not only lacks congressional authorization but also appears patently unlawful. In December, the public learned that the NSA was engaging in warrantless domestic surveillance of overseas communications — an operation many experts believe is a clear federal crime ordered by the president more than 30 times.
What is most striking about these programs is that they were revealed not by members of Congress but by members of the Fourth Estate: Journalists who confronted Congress with evidence of potentially illegal conduct by this president that was known to various congressional leaders.

In response, President Bush has demanded to know who will rid him of these meddlesome whistle-blowers, and various devout members have rushed forth with cudgels and codes in hand.

Now, it appears Congress is finally acting — not to end alleged criminal acts by the administration, mind you, but to stop the public from learning about such alleged crimes in the future. Members are seeking to give the president the authority to continue to engage in warrantless domestic surveillance as they call for whistle-blowers to be routed out. They also want new penalties to deter both reporters and their sources. Continue reading “Down to the Fourth Estate: The Failure of the American System to Protect Liberty” →

Constitutional Law, Justice, Politics

The Insanity Defense and the Future of Faith-Based Killings

Published 5/29/2006

In the National Gallery of Art in Washington hangs a cherished Rembrandt titled Abraham’s Sacrifice.
It is an etching of Abraham about to slay his son, Isaac, upon the orders of God, to show his faith. The scene from Genesis 22:1-12 is repeated in stained glass windows, paintings and other displays worldwide. It is also a scene being repeated in real life by demented individuals who believe that they have been given divine instructions to slay their loved ones.

In the past few months, the nation has found itself again in the middle of one of the law’s greatest quagmires: how to define insanity, and when it should be a defense. Continue reading “The Insanity Defense and the Future of Faith-Based Killings” →

Constitutional Law, Supreme Court

The Roberts Court: Seeing is Believing

Published 7/5/2006

With the end of the first term of the Roberts court, some liberals seemed to give a sigh of relief that the new conservative majority had not returned the nation to an antebellum legal system. But on closer inspection, the past term was no cause for hope, let alone celebration, for uneasy liberals, moderates or libertarians.
To the contrary, the only comfort these groups should take from the past term is that it will likely prove far better than the coming term when the court is poised to hear cases involving affirmative action, abortion, environmental law and other hot-button issues. Continue reading “The Roberts Court: Seeing is Believing” →

Congress, Constitutional Law, Justice, Military

A War With All Flags and No Faces: Cracking Down on War Protesters

Published 8/16/2006

Dan Frazier seems an unlikely sort to spark a national firestorm. The soft-spoken former journalist runs a left-leaning website in Flagstaff, Ariz., offering political T-shirts and other items with such slogans as “Be Nice to America or We’ll Bring Democracy to Your Country.” It was one T-shirt, however, that made Frazier the Thomas Paine of the ready-to-wear rebel set. Last year, Frazier produced a T-shirt that read “Bush Lied … They Died.” He then listed the names of the fallen in Iraq: at the time 1,700 names (more than 800 short of the latest total).
One of those names belonged to Marine Cpl. Scott Vincent, who was killed in April 2004 by a suicide bomber. When his mother, Judy Vincent, saw her son’s name on the T-shirt, she was outraged and demanded legislative action in her state of Oklahoma. Various state legislators promptly made it a crime to use a soldier’s name or likeness for commercial gain without consent. Louisiana followed suit, and other states are considering such bills. Now, U.S. Rep. Dan Boren, D-Okla., has introduced a federal bill that would prohibit the use of the name or image of any current or former member of the military without permission.

The federal and state legislation raises serious constitutional questions.

In direct conflict with the First Amendment, the federal law would effectively prevent war critics from personalizing the true costs of the war. It is far more powerful for Frazier to say “Bush Lied … They Died” than the more common “Bush Lied … People Died.” It is precisely the type of personalization that war advocates have tried to prevent. Continue reading “A War With All Flags and No Faces: Cracking Down on War Protesters” →

Congress, Politics

The Page Scandal and a Congress That Simply Can’t Resist

Pubished 10/18/2006
In its waning months, the 109th Congress has finally achieved a status in politics that the 1919 Black Sox achieved in sports: It is a symbol of utter corruption. Over the past two years, the congressional scandals have traversed the universe from the gross to the grandiose to the grotesque: visits from call girls, gifts of Rolls Royces and fancy commodes, sweetheart deals for contractors, high-paying lobbyist jobs for underachieving children, free vacations for members and their families.
Yet, if the young boy saying “say it ain’t so, Joe” to Shoeless Joe Jackson perfectly summed up the betrayal of the 1919 World Series, the young male pages pursued by former GOP congressman Mark Foley of Florida perfectly summed up the betrayal of the 109th Congress. The public clearly suspects that, in dealing with Foley, House leaders were more concerned with protecting a House seat than a House page. In a CNN poll, 75% of Americans say the Republicans failed to act responsibly, and 52% believe a coverup was attempted.

If the page scandal captures the raw depravity that is the 109th Congress, the proposed solution captures its raw audacity. Faced with the abuse of children, some lawmakers have called for the removal of the children. First voiced by Rep. Ray LaHood, R-Ill., some members have indicated that they would terminate the page service after almost 200 years of tradition. As LaHood explained, “We should not subject young men and women to this kind of activity, this kind of vulnerability.” When asked whether he was suggesting that his colleagues cannot be trusted with children, he responded, “Well, that’s pretty obvious.” Continue reading “The Page Scandal and a Congress That Simply Can’t Resist” →

Congress

Cleaning Up Congress: Ethics and Reform

Published 11/13/2006

In her first statement after the Democratic takeover of the House, the presumptive new speaker, Nancy Pelosi of California, pledged that her party would create “the most honest, the most open and the most ethical Congress in history.”
History, however, should give citizens pause before they celebrate the dawn of a new day. Pelosi’s promise is eerily similar to the vows of her two predecessors. Continue reading “Cleaning Up Congress: Ethics and Reform” →

Congress, Constitutional Law, Politics, Supreme Court

Afffirmative Action and the Use of Race in Government Regulations

Published 12/5/2006

On Monday, the Supreme Court once again ventured into the quagmire of affirmative action. In two cases, the court will decide whether it is permissible to use race as a criteria in the selection of students on the elementary or high school levels — three years after the court barely sustained the use of such policies on the university level.
Even after many decades, affirmative action remains one of the most contentious issues in our society. Yet, like abortion, there appears to be less, not more, true dialogue. Many people who are uncomfortable with these programs remain silent in fear that their concerns will be misconstrued or mischaracterized. Continue reading “Afffirmative Action and the Use of Race in Government Regulations” →

Congress, Politics

Oaths and the Quran

Published 1/3/07
A HISTORY

The historical and legal basis for oaths is often misunderstood. As with many of our legal traditions, the role of the legislative oath was inherited from England, where its original purpose was anything but inspiring. In the 16th century, the crown used legislative oaths to disqualify any member who did not recognize the king as both the spiritual and temporal sovereign – an effective ban on any faithful Catholic serving in Parliament. Continue reading “Oaths and the Quran” →

Congress, Constitutional Law, Politics

The Truth About The Oath — Keith Ellison and the Quran

Published 1/3/2007

By Jonathan Turley
The newest member of the Minnesota delegation, Keith Ellison, would appear to be the very model of a god-fearing congressman whom conservatives have longed for. Yet Ellison has been denounced as a constitutional blasphemer after discussing his upcoming oath of office. The problem was not with Ellison’s oath, but with his god — Ellison is Muslim (our nation’s first in Congress) and intends to use the Quran today to pledge to serve faithfully before Allah.
Judging from the outcry, one would think that Ellison wanted to use the January edition of Penthouse. America’s permanently angry class of religious zealots has organized protests. Some have called for a law requiring that all members use the Bible — regardless of whether they believe a single word in it. They do not expect Ellison’s conversion, they just want him (and presumably the two new Buddhist members) to pay tribute to their faith system. Continue reading “The Truth About The Oath — Keith Ellison and the Quran” →

Congress, Constitutional Law, Military

Can Congress Stop This War? You Bet.

Published 1/17/2007
Over the next week, Congress will vote on a non-binding resolution denouncing President Bush’s decision to send more troops to Iraq. Many people have already noted that with thousands of dead soldiers and hundreds of billions of dollars lost, Congress might be able to manage more than a legislative “Dear John” letter. Yet, if you listen to the president and some Democratic leaders, Congress can do little to stop the hemorrhaging of lives and treasure.
The truth is that there is a lot that Congress could do. Among other things, it could stop the war. But neither the president nor many Democrats want to publicly entertain such a possibility. Indeed, the president has insisted, again, that he alone makes such decisions. When asked about what Congress can do if it opposes his build-up, Bush was dismissive and said, “Frankly, that’s not their responsibility.” Of course, the president acknowledged, “They could try to stop me from doing it … but I made my decision, and we’re going forward.”

Democratic leaders seem to be encouraging the same view of an unchecked executive. The new chairman of the Senate Foreign Relations Committee, Sen. Joe Biden, D-Del., and other members suggested last week that it may be unconstitutional for Congress to cut funds for an escalation. Continue reading “Can Congress Stop This War? You Bet.” →

Congress, Constitutional Law, Military, Politics

War and Presidents: Military History Magazine Cover Story July 2007

PRESIDENTS AT WAR

The President sat in the Oval Office and staring intently at his Secretary of State. It would fall to him to either order the United States to war or to consult with Congress. He had already stated his intention to fight the enemy anywhere in the world to protect the nation at home. It was time to make good on his promise: “We’ve got to stop the sons of bitches, no matter what, and that’s all there is to it.”

It is a scene that could have been taken easily from the first term of President George W. Bush and his commencement of military action in Afghanistan and Iraq. However, it was not Islamic terrorists but communists that was the scourge in June 1950 and the president was Harry S. Truman. He was committed to the Truman Doctrine to oppose communist expansion around the world and 135,000 communists were on the march across the 38th parallel. It was a decision that would unleash the Korean War. Within days of Truman’s statement, the Army 4th Infantry Division would engage the North Koreans at Osan, suffering heavy losses – all without congressional notice, let alone authorization. Continue reading “War and Presidents: Military History Magazine Cover Story July 2007” →

Congress, Constitutional Law, Supreme Court, Testimony

Testimony on Kelo and the Supreme Court’s Eminent Domain Ruling in Kelo

STATEMENT OF JONATHAN TURLEY, PROFESSOR OF PUBLIC
INTEREST LAW, THE GEORGE WASHINGTON UNIVERSITY
LAW SCHOOL
SEPTEMBER 7, 2005

House Agriculture Committee

Mr. TURLEY. Thank you very much, Mr. Chairman. It is an honor
to appear here before the members of this committee.
As we all know, there is a firestorm of controversy of the Su-
preme Court case, which I also believe was wrongly decided, even
though I have argued in the past, in academic pieces, for the ex-
pansion of public use. In some context, I thought this decision was
facially wrong, and I don’t see how the Court came to its conclu-
sion, which required it to negate portions of the takings clause, to
effectively make them nonexistent. The clause makes a reference to
public use. We interpret constitutional amendments so that words
mean something. And in this case, the public use reference didn’t
even amount to a speed bump for the Court on its way of effectively
negating the protections of the clause. Continue reading “Testimony on Kelo and the Supreme Court’s Eminent Domain Ruling in Kelo” →