New York’s Trespass Act of 1783 offered relief for Patriots who had fled New York City during the time of the Revolutionary “by permitting them to recover damages from persons who had occupied or used their premises during the war.” Common law had typically required ”that actions for trespass must be tried where the property was located, but the act allowed Patriots to sue in any court where the defendant could be found.” It also denied the laws of war by prohibiting the accused of arguing that they had been acting “under orders of the occupying British army, and the act also prohibited the defendants from appealing to a higher court.” (Citations from Forrest McDonald, Novus Ordo Seclorum.)
The New York Trespass Act was but one of many factors that led to the creation of the written United States Constitution. Under the Articles of Confederation government, the states had almost unlimited authority to pass any laws they pleased. The only check on the state governments were the citizens of the several states. Unfortunately, the people themselves were often the impetus behind the enactment of unjust laws.
Louis Michael Seidman, a professor of Constitutional Law at Georgetown (surprise!), doesn’t think much of the Constitution as he explains in an op-ed in the New York Times:
Consider, for example, the assertion by the Senate minority leader last week that the House could not take up a plan by Senate Democrats to extend tax cuts on households making $250,000 or less because the Constitution requires that revenue measures originate in the lower chamber. Why should anyone care? Why should a lame-duck House, 27 members of which were defeated for re-election, have a stranglehold on our economy? Why does a grotesquely malapportioned Senate get to decide the nation’s fate?
Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.
As someone who has taught constitutional law for almost 40 years, I am ashamed it took me so long to see how bizarre all this is. Imagine that after careful study a government official — say, the president or one of the party leaders in Congress — reaches a considered judgment that a particular course of action is best for the country. Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action. Is it even remotely rational that the official should change his or her mind because of this divination?
Of course we should still obey those parts of the Constitution that Professor Seidman likes:
This is not to say that we should disobey all constitutional commands. Freedom of speech and religion, equal protection of the laws and protections against governmental deprivation of life, liberty or property are important, whether or not they are in the Constitution. We should continue to follow those requirements out of respect, not obligation.
Nor should we have a debate about, for instance, how long the president’s term should last or whether Congress should consist of two houses. Some matters are better left settled, even if not in exactly the way we favor. Nor, finally, should we have an all-powerful president free to do whatever he wants. Even without constitutional fealty, the president would still be checked by Congress and by the states. There is even something to be said for an elite body like the Supreme Court with the power to impose its views of political morality on the country.
What would change is not the existence of these institutions, but the basis on which they claim legitimacy. The president would have to justify military action against Iran solely on the merits, without shutting down the debate with a claim of unchallengeable constitutional power as commander in chief. Congress might well retain the power of the purse, but this power would have to be defended on contemporary policy grounds, not abstruse constitutional doctrine. The Supreme Court could stop pretending that its decisions protecting same-sex intimacy or limiting affirmative action were rooted in constitutional text. Continue reading
“The American Legion Auxiliary is the world’s largest women’s patriotic service organization. Through its nearly 10,500 units located in every state and some foreign countries, the Auxiliary embodies the spirit of America that has prevailed through war and peace. Along with The American Legion, it solidly stands behind America and her ideals.”
While the nation discusses and debates the attacks on religious freedom, a high school junior in Florida has put her academic reputation on the line to stand up for her faith. Margeaux Graham was selected this year to participate in a prestigious 9-day leadership event in her state’s capital. The American Legion Auxiliary (ALA) of Florida has an annual “Girls State” program whereby the participants “learn how to participate in the functioning of their state’s government in preparation for their future roles as responsible adult citizens.” It is a “nonpartisan program that teaches young women responsible citizenship and love for God and Country. They are awarded 3 college credits and rare notoriety in the college application process.
Margeaux is a faithful Catholic. That is, she takes her obligation to attend Mass as just that — her obligation. When she inquired about nearby Catholic churches to plan where she would attend, she was told by the staff that the only opportunity any of the girls would have to participate in a Sunday service is to attend the “non-offensive”, non-denominational service offered for all at the conference. The event takes place at the
University of Central Florida Florida State University and the cathedral is nearby the campus. [see update] A member of the national American Legion even contacted the Auxiliary to arrange for a priest to celebrate Mass on campus, and this accommodation was denied.
So Margeaux took action herself. She wrote to the organizers declining the invitation, with firm resolve, unless she was allowed to attend Mass. This is her letter, reprinted with permission. Mind you, she is a high school junior.
TO: American Legion Auxiliary Unit #21
FROM: Margeaux Graham
RE: Girls State 2012
DATE: May 7, 2012
I am regretfully writing this letter to formally inform you that I will be unable to attend Florida Girls State in June. I am extremely honored that you found me worthy to represent American Legion Auxiliary unit #21 and am devastated that I cannot participate. I attended orientation on May 6, 2012 and was informed by [name private] that I would not be allowed to attend Mass on Sunday.
My faith is very important to me, as it has been to countless Americans. This country was founded on the principles of religious and personal freedom, the fundamental rights that either you or your loved ones fought to protect. It is disheartening that the Florida Girls State program is structured in such a way that it prohibits participation of young women who have a strong conviction for their religious practices.
The only opportunity to participate in a Sunday service is presented in a “non-offensive”, non-denominational service. As a Catholic Christian I find it offensive that I am not allowed to attend Mass and am perplexed as to how this service could accommodate the beliefs of other religious groups, such as Jews, Muslims, Buddhists, Hindus, and all Christian religions. I am disappointed to see the lack of respect for religious creed from the Florida Girls State program by limiting participants to only one religious paradigm.
Miss [name private] made it quite clear that I had to choose between my faith and Florida Girls State. I was looking forward to attending with great zeal, the knowledge, experience, and friends gained would have been invaluable. My faith has made me who I am, it has shaped me into the young woman that you chose as your delegate, for me to deny my faith would be hypocritical. Words cannot express my disappointment that the Florida Girls State program is designed to only accommodate delegates who fit into a pre-determined religious belief system or none at all.
Good or bad, this is what you get with Newt Gingrich:
GOP presidential frontrunner Newt Gingrich said Congress has the power to dispatch the Capitol Police or U.S. Marshals to apprehend a federal judge who renders a decision lawmakers broadly oppose.
Gingrich says if there is broad opposition to a court decision, Congress should subpoena the ruling judge to defend his or her action in a hearing room.
When asked if Congress could enforce the subpoena by sending the Capitol Police to arrest a judge, Gingrich assented.
“If you had to,” Gingrich said. “Or you’d instruct the Justice Department to send the U.S. Marshall.”
Gingrich cites the 9th Circuit’s decision that reciting the Pledge of Allegiance is unconstitutional as a prime example of why such a reform would be necessary. It’s easy to use examples like this of judicial indiscretion in order to justify such drastic action. Yet what of judicial interventions where the Court and not the legislature is acting in accord with the Constitution? I can think of several examples where conservatives cheered – rightfully – when the Supreme Court overturned an act of Congress. In US v Lopez, US v. Morrison, and Citizens United v. FEC, just to name a few cases, the Supreme Court acted on the side of the Constitution as opposed to Congress, and did so presumably against the majority will. As we speak the Supreme Court is set to hear arguments about the individual mandate and other aspects of Obamacare, and once again conservatives (again rightfully) will be hoping for the Court to rule against the democratically elected branches.
No one is more aware than me of how out of control the judiciary has been, particularly since the age of FDR. What Gingrich and other populist-conservatives fail to appreciate is that the judiciary’s wholesale assault against the Constitution is but a symptom of what plagues this Nation. After all, how did we wind up with a judiciary willing to disregard the Constitution? They didn’t just appear out of magic. Years of progressive education instilled these judges with an attitude that the Constitution is a “living, breathing” document that ought to bend to the whims of the age. More importantly, it was democratically elected leaders like FDR who put these men and women on the courts.
Furthermore, it is odd to suggest that one of the ways to stop the politicization of the judiciary is to further politicize the judiciary. Will judges act as independent arbiters of the Constitution if they know they are going to be hauled before the legislature for making the wrong call?
Long story short, I don’t think Gingrich is entirely wrong to highlight the problems of the judiciary. It absolutely must be a theme of this and any federal campaign. But Gingrich is missing the forest for the trees in singling out the judiciary when it’s an entire political philosophy – and, for that matter, political party – that is the problem.
Another thing that strikes me about this statement is how unrealistic it is. Even if Gingrich becomes president and has resounding Republican majorities in both Houses there is virtually no chance that anything like this will happen. This is mere bombast. Now, it is perhaps an exercise in rhetorical exaggeration used to highlight an important issue. But ultimately this reveals a problem that goes beyond Newt, and it is the absurdity of our presidential campaign system. Each candidate feels compelled to offer pie in the sky proposals in an effort to appeal to some constituency. Even more troubling is that the underlying attitude is that the president is some kind of emperor as opposed to the chief executive of a constitutional republic. Even though this particular proposal is likely going nowhere, it is a sad fact that the presidency has become a hyped up institution that has grown well beyond the powers outlined in the Constitution. So the ultimate irony is that while Newt is proposing a radical plan under the guise of restoring balance to the Constitution, he is only furthering the imbalance of the Constitution and the respective powers of each branch of government. And while the Star Wars prequels may have been otherwise useless, at least they taught us a valuable lesson about trying to “restore balance” to anything.
Hattip to Neo-Neocon. I have been reading judicial decisions for over three decades and few of them are better reasoned and written than that of Judge Roger Vinson striking down ObamaCare. Go here to read his ruling. My favorite portion of the decision is below. ( To get the full impact of it, I suggest you have the John Adams intro video below playing while you read it.) Continue reading
I’ll leave it up to others on the blog to discuss the merits of the compromise on taxes and unemployment benefits recently reached between President Obama and Congressional Republicans. For what it’s worth, I’d probably vote for it were I a member of Congress (shudder), but I do think that the Republicans could have pushed a little harder on certain measures.
What fascinates me as a student of American history are some of the reactions, and also some of the reactions to the reactions. First of all, Congressional Democrats have rejected the measure in a non-binding caucus vote. This has caused Jim Geraghty to ponder:
Normal? No. But I think this is a positive development in a way. Continue reading