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Constitutional amendments from the folks who love it most

December 8, 2010 by 1 Comment

Indubitably, during the recent election, one of the major rallying points of Tea Party aligned voters  was the US Constitution and its interpretation. Indeed, although the Tea Party started out as primarily a revolt against perceived spending policies of the Obama Administration and the Democratic controlled Congress (for example, the Affordable Health Care for America Act and the Troubled Assets Relief Program I and II ) during a troubled economy,interpretation of the Constitution has become a point of particular interest to many of those who consider themselves to be members, or supporters, of the Tea Party. Within that group can be found different veins of thought, including those who support nullification of federal laws through state action, devoted readers of Cleon Skousen’s “5000 Year Leap,” and, of course,  Glenn Beck. (And by mentioning any of them here, I do not mean to disparage them or diminish, but merely to observe they are out there).

What has been increasingly interesting to me  has been the opinion by many of these same people that the Constitution itself needs to be amended. Joe Pyrah, a reporter for the Daily Herald in Provo, Utah, recently (read: “today”) noted on in a blog post at the Sausage Grinder that “it’s clear that lawmakers who hold up the Constitution as the document we most need to get back to aren’t entirely happy with it.” He was speaking, of course, about the myriad of bills proposed by Utah legislators that deal with editing  amending the Constitution. Among them that he noted:

  • Joint Resolution Urging Congress to Call a Constitutional Convention on the Process for Repeal of Federal Laws
  • Joint Resolution Applying for an Article V Amendments Convention
  • Joint Resolution Urging Congress to Repeal the Fourteenth Amendment to the Constitution
  • Joint Resolution Urging Congress to Repeal the 16th Amendment to the United States Constitution
  • Concurrent Resolution Urging Congress to Pass Balanced Budget Amendment to U.S. Constitution

Is it strange, and a little hypocritical, that the same people who are calling on Congress to follow the Constitution in the passage of laws are the same who are calling on Congress to amend the Constitution. There was great outcry when the health care reform act was passed, and while there are arguments that it was marginally constitutional, it did not help that its proponents dismissed the constitutional questions. You recall the press conference when Speaker Nancy Pelosi was asked what part of the Constitution allowed Congress to mandate health care–she scoffed, an act sure only to raise opponents ire, not support.

When those  very same opponents of government intervention turn to the Constitution as their ally, and then start advocating amending it, there are those who laugh. However, perhaps they laugh to soon. The Constitution is designed to be amended.

At the root of the assumptions about Tea Party supporters–often even calling themselves “Constitutionalists”–is the belief that Tea Partiers believe that the Constitution is a sacred document, something sprung out of the heads of the Founding Fathers much the same as Athena sprang from Zeus’ head.

Contrary to popular opinion, however, the Founders were not a monolithic group of individuals sharing a common interpretation of how the American government should work.  In fact, they were a bickering bunch of politicians, albeit brilliant ones, who recognized the mutual benefit of uniting their thirteen states in a federated union. Federalism, the result of their compromises in 1989, is a unique American model that is unmatched elsewhere in the world, before or since.

Among the compromises agreed upon in the Constitution is the ability to amend that document. It was well understood that society would changed, the nation would grow, and that there were problems that the Founders just did not want to deal with. Most notable among the these issues were the rights added during the first Congress and known today as the Bill of Rights. Also notable were issues like slavery and the right of all to vote.  While there were those amongst the drafters who believed these things were important, the issues became a block to the compromise necessary to establish a “more perfect union.” It wasn’t  a perfect union; just more perfect one.

And today, neither Tea Party supporters nor their detractors believe that the Constitution is perfect. In fact, the place they diverge most often is in their policy arguments, not in their Constitutional interpretation. However, when policy arguments fail, it is to the document that we turn. When there are problems that need resolving, we evaluate whether their are sufficiently grave that the Constitution guide them and control the resolution of those problems.

For example, let’s take from above one of the resolutions proposed before the Utah legislature, that one “Urging Congress to Call a Constitutional Convention on the Process for Repeal of Federal Laws.” At first glance, this one appears to be the same as that recommended and sponsored in a bill before Congress by Utah’s Rep. Rob Bishop. (see “Amending the Constitution? A BFD”) Written almost simplistically, the purpose of this bill is to strengthen the principles of the 10th Amendment by allowing states more of a say in what the federal government does. Up until the 17th Amendment, Senators were selected by state legislators and were therefore more responsive to the dictates of elected state leaders, those tasked with managing a state’s government. Since the 17th Amendment, however, Senators have been elected directly by the people of the state. The argument goes that because voters are less aware and less responsive to the needs of the state as a whole, Senators are no longer responsive to the state in the manner they were previously. It’s a republic versus democracy type argument; one side wants the Senate, and Senators, closer to the state as an entity and the other side wants the Senate to be responsive to the people directly. With the proposed amendment, the Constitution would be amended to create a process that would put states back at the negotiating table, a chance to give their say about federal laws. In short, it shifts some of the balance of power towards the states. (And, by way of apropos, the convention is limited to just that question in order to prevent the entire Constitution from being rewritten).

What does that sound like to me? Like the same debate that happened in the halls in Philadelphia while the drafters argued over the form the Constitution would take. Who would have more power: the states or the central (what we call federal) government? This isn’t because these law makers don’t “love” the Constitution–rather, it is a policy debate over who should be making laws that affect the citizens of the United States in Utah. It’s a fair debate, and amendment is a fair way to go about making these policy changes happen.

Whether or not their a big enough deal to amend the Constitution, though, is another debate entirely…because amending the Constitution is  B.F.D.

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Filed Under: Questionable Laws and Lawmakers Tagged With: , , , , , , , , ,

Money and Free Speech

July 6, 2010 by Leave a Comment

In favor of campaign finance laws that limit speech, have you ever heard the argument that “money isn’t speech?”  Truth of the matter is, it’s probably not.  But there’s a caveat…

Apply this argument to other constitutional rights, and the argument starts to dissipate like dew in the morning sun.  Says Eugene Volokh, a constitutional scholar:

Likewise, money isn’t education, and it isn’t lawyering. Yet a law that capped private school tuitions at $2000 (not just limited the amount of government-provided scholarships, but capped private spending by parents for tuition) would be a serious, likely unconstitutional, burden on the right to educate one’s child at a private school. Likewise, a law that barred wealthy defendants from spending more than $20,000 — or even $200,000 — for assistance of counsel would violate the Sixth Amendment. Even if for some reason you thought that these laws should be upheld, the response that “it is quite wrong to equate money and [education / lawyering]” would be an unsound response.

Similarly, we wouldn’t say “air travel is speech,” or “computing power is speech.” Yet surely a law that would limit the use of air travel or computers in political campaigns would be understood as a serious restriction on speech.

Get it?  Money isn’t speech, but it does enable people to act on all the other rights ensured by the constitution.  There’s a reason that the founders wanted to protect life, liberty and property and designed the constitution to do as much.  They understood that all those rights didn’t matter if people were not allowed to spend their money as they saw fit.  And it’s fitting to recall, in this week just after we have celebrated Independence Day, just how they pledged their property in the Declaration of Independence:

And for the support of this Declaration, with a firm Reliance on the Protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

(Thanks to Peter Sherman at the Congress Shall Make No Law blog for the note and the idea)

Filed Under: Constitutional Law, First Amendment Tagged With: , , , , , , , , , ,

Christianity and the Common Law

February 23, 2010 by Leave a Comment

Of all my posts, the question I tweeted a few weeks back about Christianity and the common law has gotten the most views, much to my surprise.  Despite the attention, I have no idea whether Christianity is a part of the American legal system’s common law.  Justice and mercy, and crime and punishment, the language of contracts and torts can all find correlating vocabulary in the Christian syntax and doctrines.  But is Christianity itself a part of the common law?  And has it ever been?

Naturally, my first stop to find out was Google.  My search was something along the lines of  ”christianity as part of the common law” and nearly all my results referred back to Thomas Jefferson.  Interesting…

Apparently, according to some sources, in the early days of the American republic the question of whether or not Christianity was part of the common law was a point of discussion in the legal community.  Thomas Jefferson mentions it repeatedly in letters to associates and in his notes as early as the 1760s and on until the 1820s.  In a celebrated letter to Major John Cartwright, Jefferson argued that Christianity was not part of the common law but had been foisted into the law as an act of judicial legislation (what we now call judicial activism).  Incidentally, this is the same letter that gave rise to Jefferson’s famous quote about a “wall of separation”  between church and state.  The argument against Christianity as a part of the common law was that because the common law was rooted in Anglo-Saxon history to before the advent of Christianity in Britain, it was a late comer to the legal system and had therefore never been a basis for the common law.

Justice Story, of the US Supreme Court and a devout Unitarian, did not agree with Thomas Jefferson, and in 1833 he rebutted Jefferson’s attack on Christianity in the Cartwright letter.  However, his response was regarded as largely weak.  For example, he noted that reviling was the root for the English common law doctrine of criminal libel.  However, Story’s argument is often seen to have boiled down to a support for legislation that prosecuted for blasphemy, the very thing that Jefferson argued was not prosecutable in his letter to Cartwright.

Other quotes at the time seemed to support Story’s perspective, viewing Christianity as a way to guide and provide for the virtues that would protect society.  Matthew Hale said “Christianity is part of the Common Law of England.”

For a look from Jefferson’s work on the topic, check here,  here and here.

Despite the dissent from Christianity as part of the common law by Jefferson, the discussion and application to Christianity as part of the common law persisted until at least 1927, when it last was cited in a case before the Pennsylvania Supreme Court.

Some might suggest that there are those today who see Christianity as part of the common law.  The US Supreme Court’s chambers has a large image of Moses on its fascia and on its wall among the great law givers of history. Recently, a decision by the Supreme Court allowed a monument depicting the 10 Commandments to remain in on an Alabama court’s property, ruling it was not an endorsement of Christianity but of the supremacy of the rule of law.

James Madison, the bookish and quiet little man we call the Father of the Constitution, was the champion of the Bill of Rights.  Of the 19 amendments to the constitution that he proposed, only 10 were passed, but among those the most important to him was the First Amendment with its grant of the freedom to worship according to the dictates of one’s conscience.  Despite this, it was 1833 before the last state did away with any established religion under state laws.  Today, we take it for granted that religions do not receive any preference from government.  But asking the question–is Christianity a part of the common law?–raises the question of whether there are roots of todays legal system in the past, even the distant past.

Do you see Christianity in the common law?

Filed Under: First Amendment, SCOTUS, The Common Law Tagged With: , , , , , , ,