The United States Constitution

A forum for discussing the meaning of the United States Constitution for our political process.

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Location: Middleton, Massachusetts, United States

I am concerned about the direction of the United States economy and politics, and about our declining influence in the world. I feel we are losing our moral and ethical bearings.

Wednesday, August 30, 2006

The Constitution - What Does Religion Have to Do With It?

There's certainly been a lot of discussion about the role of God and religion in our political life, that somehow the United States of America is a Christian country. The implication is that non-Christians are merely tolerated, and whatever rights non-Christians have can be revoked at the whim of the majority. (Full disclosure - I'm Jewish. This kind of talk makes me extremely uncomfortable.) Has Pat Robertson actually read the Constitution or the works of the Founding Fathers?

This got me to wonder: what does the Constitution say about God and religion? The answer: not much. There is no reference to God or any higher power in the Constitution, or any of the Amendments, for that matter. Interestingly, there is plenty of reference to God, nature's God, and Divine Providence, in the Declaration of Independence. But of course, the signers of the Declaration knew that by signing the document they placed themselves in mortal danger. I guess there are no atheists in a foxhole. As far as reference to religion, in the baseline Constitution (without the Amendments), there is exactly one reference. It's a simple, yet powerful phrase, in Article VI, Paragraph 3: religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

That includes any public officer, from the President, members of Congress, the Courts, down to state and local officials. Everyone. No exceptions. Forever and ever. OK, so 42 out of 43 of our Presidents were Protestants of various denominations. Richard Nixon was a Quaker, but that didn't stop him from prosecuting the Vietnam War. The lone exception, President Kennedy, was a Catholic who during the 1960 campaign had to appear before a panel of Protestant divines to assert that he was not a tool of the Vatican. That's just the luck of the draw, somewhat like tossing a penny 43 times and having it come up heads 42 times. If the voters prefer white, Anglo Saxon, Protestant, males, so be it.

The subject of religion raised its head during the discussion over the Bill of Rights. A substantial number of people felt that the Constitution should spell out additional guarantees of freedom. What we know as "freedom of religion" was right at the top, and of course it was incorporated into the First Amendment.The reference to religion is short - 16 words - in 2 clauses:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof

According to the Establishment clause (...respecting an establishment of religion...) Congress cannot create a law that creates a state religion. One could argue that because of culture and history, that most of us celebrate Christmas, that we sing "God Bless America", or whatever, that America is a Christian country. It's just that Congress can't pass a law that states that America is a Christian country and then perhaps limit non-Christians from full participation in our political life.

Additionally, according to the Free Exercise clause (...or prohibiting the free exercise thereof) Congress cannot prevent someone from expressing their religious beliefs in a manner they see fit. So Congress cannot create a law that prevents Moslems from attending a mosque or Jews from a synagogue.

The Founding Fathers tended to view religion as a private matter. George Washington forcefully and eloquently expressed the attitude of the Federal government in a letter to the warden of Truro Synagogue, the oldest synagogue in the United States:

The Citizens of the United States of America have a right to applaud themselves for having given to mankind examples of an enlarged and liberal policy: a policy worthy of imitation. All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of once class of people, that another enjoyed the exercise of their inherent national gifts.

For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support. It would be inconsistent with the frankness of my character not to avow that I am pleased with your favorable opinion of my Administration, and fervent wishes for my felicity. May the children of the Stock of Abraham, who dwell in this land, continue to merit and enjoy the good will of the other Inhabitants; while every one shall sit in safety under his own vine and figtree, and there shall be none to make him afraid.

Washington saw religion as a private matter. The word "toleration", which implied an official religion where the majority tolerated minority religions, should be relpaced by "freedom", where all religions are treated equally and we can each sit under our own vine and fig tree without fear.

Madison, in Federalist Paper 10, wrote:

A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source.

In other words, each religion is, in essence, a special interest group. Religious diversity should be encouraged - the more of it, the stronger our country.

Jefferson felt the same way. In an 1802 letter to the Danbury Baptist Association, he wrote:

Believing with you that religion is a matter which lies solely between man and his god, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between church and state.

That letter was the first reference to "separation of church and state".

There were very few cases related to religion that made it to the Supreme Court until as late as the 1940s. The first major case that tested the Establishment Clause was Everson v. Board of Education (1947), in which the Supreme Court held that a New Jersey law that allowed reimbursement to parents for bus transportation to parochial school was constitutional. One could mark the start of the "culture wars" about religion in our society from this date. It's all based on the conflict between the Establishment Clause and the Free Exercise Clause of the First Amendment. I'll discuss subsequent case law in a future episode.

Monday, August 28, 2006

Necessary and Proper - The Boundary Between State and Federal Power

Articles of Confederation - Page 1The Constitution not only separates power among the legislative, executive, and judicial branches of the Federal government, but also attempts to separate power between the Federal government and the states. This is an attempt by someone who has zero formal legal training, but who is an amateur historian and intelligent enough to understand the plain text of the Constitution, to try to understand where Federal power ends and state power begins.

The Founding Fathers sought to strike a balance between Federal and state authority. Think of the balance as a pendulum. The Revolution's purpose was to rebel against what the colonists felt was excessive central authority. After the Revolution succeeded, the governing document of the successor government, the Articles of Confederation, the pendulum swung towards the individual states, perhaps too much so.

The Articles of Confederation was the basis of our government from 1781 until June 21, 1788, when New Hampshire ratified the Constitution. Sovereignty was explicitly reserved for each state. Article II states:

Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.

Article III states that the Confederacy (that was the term they used, the seceding Southern states borrowed it during the Civil War) was a "firm league of friendship". The powers of the central government were limited to things like conducting foreign relations and declaring war, making trade among the states flow smoothly, and resolving disputes between states. Everything else was the province of the states. In other words, the powers of the central government were listed (or enumerated), limited to those powers the states, the ultimate source of sovereignty, were willing to relinquish.

One of the problems with this arrangement is that it lacked enforcement teeth. The Confederation Congress could not tax the states to, say, raise an army. It could only request the states for funds. There is one legislative chamber, the Congress, and no executive branch. When Congress adjourned, which could happen any time during the year, there was effecitvely no central government. Plainly, the powers of the national government needed to expand for this arrangement to work, without giving the Federal government excessive power.

The Constitution continued this philosophy of enumerating the powers of the Congress. Article I Section 8 lists, in separate paragraphs, the powers of Congress, expanding on the Articles. Congress can now do things like borrow money, create bankruptcy laws, create Federal courts, establish post offices, create copyright law, and establish a national capital (the future District of Columbia) - powers which were not available under the Articles of Confederation.

The last paragraph of Article I, Section 8, is a curious one. It states that Congress has the power:

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

The first 17 paragraphs specifically enumerate Congressional power. This last, 18th, paragraph, is open ended and has been the subject of much controversy, so much so that the Wikipedia article on the clause states that "the neutrality of this article is disputed". To me, this paragraph provides the teeth that the Articles of Confederation lacked. Congress can raise an army, but can it levy taxes on the states to fund the army? Congress can regulate commerce among the several states. If a commercial transaction occurs solely within the boundaries of one state, can it affect interstate commerce? If the "necessary and proper" clause is interpreted too broadly, there may not be much sovereignty left to the states.

These questions were already apparent during the ratification phase of the Constitution. The explicit provision of Article II of the Confederation that whatever powers are not reserved for Congress are left to the states is not in the baseline Constitution text. In addition, the Articles specified certain freedoms, such as freedom of the press, as reserved to the states. A number of smaller states were afraid of being swallowed up by Federal "tyranny". They insisted on amendments specifying specifically what Congress could not do, as well as an explicit reservation of state power. This was a big factor in the adoption of the Bill of Rights, which includes things Congress cannot do, such as the First Amendment guarantees. Also, the 10th Amendment reads:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

This is substantially Article II of the Articles of Confederation, with the addition of "or to the people". In the early 19th century, the John Marshall court defined the boundary between state and Federal power a bit more clearly, with the pendulum shifting definitely toward the Federal. In Gibbons v. Ogden, which I previously discussed, a Federal steamboat charter was held to be superior to a state steamboat charter. In McCullogh v. Maryland, Court ruled that the state of Maryland could not impose a tax on the National Bank of the United States - that the power to tax is the power to destroy. The pendulum has swung back and forth in the 200 years of our history. In recent history, from the New Deal to the early 1990s, the Federal powers seem to have expanded. The Rehnquist Court introduced a concept called the "New Federalism" which may be a bit of a return to state sovereignty.

Additional resources:

Sunday, August 27, 2006

Go to Law School For Free

Well, sort of :-). Neil Wehneman, who's now, I assume, a second year law student at the University of Cincinnati, podcast all of the lectures he attended as a first year law student, and, at his own expense, made them available to us for free. Go to Life of a Law Student to subscribe.

When I say all of his courses, I mean it. He took the following:

Neil has a great radio presence. He's devoted a great deal of time, and some of his own money, to committing his lectures to digital audio. I hope this helped his grades. Actually, I'm sure it did. I've done a bit of teaching in my time and I feel that trying to explain concepts to others is the best way of learning. I'll be including relevant episodes of the lectures he attended in my future podcasts.

If you're wondering what law school is all about, or are simply curious about the law, you should definitely check out Life of a Law Student.

Thursday, August 17, 2006

What is Interstate Commerce?

Aaron Ogden (he of Gibbons v. Ogden)Article 1, Section 8, Clause 3 of the Constitution states that the Congress shall have power:

to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.

This is informally known as "the commerce clause" - sixteen seemingly innocent words from which have sprung volumes of laws, commentaries, and disputes. Why even include such a clause? The reason - what if a state like New Jersey was able to charge tariffs or prevent ships from New York from entering their waters? If a shipment had to cross many states, say from Massachusetts to Virginia, and each state had different laws about weights and measures, or what could be carried on their roads, it would be difficult to do business. The Founding Fathers felt that there is a national interest in encouraging the flow of goods from one state to another.

Gibbons v Ogden (1824), involving steamboat traffic between New York and New Jersey, established the right of Congress to regulate interstate commerce. Robert Fulton, the inventor of the steamboat, and Robert Livingston, from a highly politically connected New York family, granted Aaron Ogden, a New Jersey steamboat operator, the exclusive right to operate a steamboat between New York City and Elizabeth Point, New Jersey. The right was established under a New York state law. Thomas Gibbons had been operating a competing steamboat service under a Congressional law established before the Gibbons grant. Gibbons was prevented by Ogden from crossing into New York waters. Gibbons sued, claiming that he had that right under the Commerce clause - in other words, that the Congressional grant was superior to the Ogden grant.

The Court, with the majority opinion delivered by Chief Justice John Marshall, sided with Gibbons. The ruling established the right of Congress to regulate interstate commerce.

The debate doesn't stop there. A state still has power to regulate commerce within its boundary. So the unresolved questions are: when when does commerce become interstate? And what exactly does "commerce" entail?

The distinction might seem clear cut at first, but the Court rulings have evolved. Activity that occurred solely within the boundaries of one state have been ruled within the scope of the Commerce Clause, and thus regulated by Congress. A major test of the Commerce Clause was United States v. E. C. Knight (1895). E. C. Knight was a sugar manufacturer that controlled over 98% of the sugar refining in the United States. The company only operated in one state. Under the Sherman Anti-Trust Act of 1890, Congress sought to regulate the "sugar trust". The Court was asked to rule whether manufacturing constituted interstate commerce. In an 8-1 decision, the Court decided against the government - manufacturing was not by itself interstate commerce.

During the New Deal era, Congress again attempted to expand it's interpretation of interstate commerce. One law was the National Industrial Recovery Act (NRA - the Blue Eagle), which attempted to set health and safety standards for businesses. In Schechter Poultry Corp. v. United States (1935), the Court again sided with the state. The case involved a Brooklyn, New York chicken store, who was charged with selling an "unfit chicken" according to the NRA standards. The problem: Schechter only did business in New York, so the NRA statute didn't apply.

In the 1940s and proceeding into the civil rights era of the 1960s and 1970s, the Court's opinion began to change. In Wickard v. Filburn (1942), the Court ruled that even though Rosco Filburn, a wheat farmer, only grew and sold his wheat in one state, his action (exceeding the quota of the Agricultural Adjustment Act) affected interstate commerce because his wheat competed with wheat in other states. The Court ruled in favor of the United States.

In the 1960s, after the Civil Rights Act, the Interstate Commerce clause was found to include cases where, in one state, an act of racial discrimination was committed. The definition of interstate commerce, during the Rehnquist court, has been interpreted more restrictively, to favor state power. There is still ample room for interpretation of the Commerce Clause.

Additional resources:

Listen to this episode.

Tuesday, August 15, 2006

Are the Guantanamo Detainee Courts Legal?

Listen to this episode.

According to the Bush Administration, the Global War On Terror (or GLOT) is unprecedented - so unique, in fact, that our current court system is inadequate. Given the new situation, and invoking the wartime powers of Executive Branch, the Bush Administration has created, in effect, a new court system for the Guantanamo detainees.

The Administration argued that the Guantanamo detainees were, in effect, prisoners of war. However, unlike prisoners of previous wars, the detainees did not wear uniforms and were not soldiers of an established state. If they were, the rules of the Geneva Convention would apply, and they would be entitled to certain rights, such as:

  • the right of the defendant and the defendant's attorney to view the evidence against him

  • the right to discover how evidence was obtained, such as whether it was hearsay or induced by torture; and

  • the right to appeal

The test case, which the Supreme Court was asked to decide, was Hamdan v. Rumsfeld. Salim Ahmed Hamdan, a citizen of Yemen and a former driver for Osama Bin Laden, was captured in Afghanistan during the invasion, and held at Guantanamo. In July, 2004, he was charged with conspiracy to commit terrorism. The Bush administration tried him before a special military commission that had been set up for these types of detainees in 2002. In other words, Hamdan was not accorded the status of prisoner of war, in which case the Geneva Convention would have applied. In addition, the Administration determined that the standard Universal Code of Military Justice did not apply.

The Administration cited the Detainee Treatment Act (DTA) of 2005, a law passed by Congress regarding treatment of detainees, as the legal basis for this military commission. Congress also passed the Authorization to Use Military Force (AUMF), the 2001 resolution passed after 9/11 that many Democrats which they hadn't voted for.

The question was: is this enough for the Executive to create a special commission? Hamdan's lawyer didn't think so. He applied for a writ of habeas corpus, asserting that the commission was illegal.

On June 29, 2006, the Supreme Court decided, in a 5-3 decision, that Hamdan was correct. This military commission was illegal because it violated both the Universal Code of Military Justice and the Geneva Convention. Justice Roberts recused himself because he had ruled on the matter in a lower court before becoming Chief Justice. A number of commentators thought Justice Scalia should have recused himself as well because he made some remarks essentially saying that these people were not entitled to these rights, before he heard the case. But Justice Scalia stayed on the case, becoming one of the dissenters.

Thus, according to the Supreme Court decision, even the Guantanamo detainees, even if they are not US citizens, have some rights. In a case decided earlier, Hamdi v. Rumsfeld, the Court decided that a US citizen (Mr. Hamdi had dual US and Saudi Arabian citizenship) had a right to habeas corpus. The court left open the option for Congress to pass a law to revise the authority of military commissions. Justices Scalia, Alito, and Thomas each wrote dissenting opinions that left this option open.

The conclusion of all this is muddled at best. I found an excellent discussion of the impact of Hamdan v. Rumsfeld at the American Constitutional Society. You can listen to it here. Even the experts are divided. To be continued.

Additional resources:

Monday, August 14, 2006

Is an Indigent Person Always Entitled to a Lawyer?

Listen to this episode.

Clarence Earl Gideon (v. Wainright)Here's an interesting question I wondered about: Does the Constitution guarantee that an indigent person (someone who cannot afford a lawyer) is entitled to have a court-appointed lawyer? I found out that the Supreme Court has modified its thinking about this question over the years.

The Sixth Amendment to the Constitution states:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Seems straightforward enough. If someone is accused of a felony, and he cannot afford a lawyer, he must have a lawyer appointed for him. Otherwise, he would be denied the 6th Amendment right seemingly granted to him.

Furthermore, the Due Process clause of the 14th Amendment, which states that ""No person shall be... deprived of life, liberty, or property, without due process of law...." , would appear to be violated as well. The impoverished defendant, unable to get a lawyer, would potentially be deprived of his liberty, thus violating at least 2 Constitutional rights.

Has the Supreme Court ruled consistently on this? Not by a long shot! A celebrated case, Betts v. Brady, was decided in 1942, illustrates this. Mr. Betts was indicted for robbery in Maryland. He asked for a lawyer before his trial. The judge refused his request, forcing Betts to represent himself. The Maryland law only required counsel for certain capital crimes, such as murder or rape. Counsel was not required for robbery, even though it was a felony. Betts lost the case, and went to jail. He petitioned for a writ of a certiorari, asking the Supreme Court whether his conviction was constitutional or not.

This seems like an open and shut case. Nowadays, if a defendant represented himself or herself, we would presume that he or she would not get a fair trial. In this 1942 case, however, the Court ruled, by a 6-3 vote, that Betts did indeed get fairly treated. The majority opinion, written by Justice Owen Roberts, framed the ruling as follows:

The question we are now to decide is whether due process of law demands that in every criminal case, whatever the circumstances, a state must furnish counsel to an indigent defendant. Is the furnishing of counsel in all cases whatever dictated by natural, inherent, and fundamental principles of fairness?

Roberts answered "no", that the right to counsel in a criminal case could be legislated by the states on a case by case basis. This opens up a huge can of worms. What's to prevent a state from passing a law that excludes the right to counsel for so many circumstances that the 6th Amendment becomes irrelevant? Justice Hugo Black, who I mentioned in the Korematsu case as having justified the internment of Japanese Americans during the war, this time said in his dissenting opinion:

"The right to counsel in a criminal proceeding is 'fundamental.' "

Mr. Justice Black's opinion was, of course, the minority opinion in 1942. It took 21 years before the Court came around to his way of thinking. The 1963 case was Gideon v. Wainright. The circumstances were similar to Betts v. Brady. Mr. Gideon, like Mr. Betts, was accused of robbery, in his case of a pool hall in Panama City, Florida. He appeared in court, declared that he was too poor to afford a lawyer, was forced to act as his own counsel, and was convicted. He received a 5 year prison sentence. He appealed to the Supreme Court, asserting that his 14th Amendment right of due process had been denied him. The Court appointed Abe Fortas, a prominent attorney who eventually became a Supreme Court justice, to represent him.

In a unanimous decision, on March 18, 1963, the Court unanimously ruled, 9-0, that Gideon was correct and his conviction was overturned. The majority opinion, in a dramatic twist of fate, was delivered by Justice Hugo Black. As he had wanted in 1942, the right of an indigent defendent to legal counsel became a fundamental right that a state could not ignore.

Gideon v. Wainright was the subject of a wonderful book by Anthony Lewis, called Gideon's Trumpet. It was also the subject of a movie. In 1966, the "fundamental right" was expanded again. The case of Miranda v. Arizona required that when a person could potentially become a defendant in a criminal case, the police must warn him or her. This is the famous "Miranda warning" - you know - you have the right to remain silent, anything you say may be used against you, you have the right to an attorney, etc., etc.

I think this story shows the genius of our system. Sometimes the system makes an error, but eventually, there is the potential to correct the mistake. Many times it actuallly happens that way, as it did here.

Additional resources:

Saturday, August 12, 2006

Bowers v. Hardwick (1986)

Listen to Bowers v. Hardwick episode.

Is a state law that makes homosexual acts between two consenting adults a felony constitutional? This was the question the Supreme Court had to answer in deciding whether a Georgia law that criminalized oral or anal homosexual acts was constitutional.

Generally, these types of laws are called sodomy laws. The question was whether consensual sodomy was a protected right of an individual under the 14th Amendment's due process clause. In a sense, this is a follow-up to Griswold v. Connecticut, a case I discussed in an earlier post, in which the Court ruled that there is a right to privacy allowed (in that case, for married couples to receive birth control counseling) and that the government cannot take away this right. Here, 21 years after that 1965 ruling, the question is whether gay sex is included as well.

The case involved Michael Hardwick, a bartender at a gay bar in Atlanta, Georgia. He was targeted by a police officer for harassment. In 1982, an unknowing houseguest let the officer let into Hardwick’s home the officer went to the bedroom where Hardwick was engaged in oral sex with his partner. The men were arrested on the charge of sodomy. Charges were later dropped, but Hardwick brought the case forward with the purpose of having the sodomy law declared unconstitutional. The American Civil Liberties Union (ACLU) was looking for a case to test the Georgia law. This looked like a good one because in addition to the sodomy issue, Hardwick was being harassed by a policeman. The policeman, Mr. Torrick, who served Mr. Hardwick with a warrant on a charge of throwing a beer bottle in a trash can.

Professor Laurence Tribe, the famed Harvard University civil rights lawyer, argued the case before the Supreme Court.

Hardwick won his case in the Federal District Court. However, Bowers, the Attorney General of the state of Georgia, asked the Supreme Court to reverse the lower court decision.

The Supreme Court ruled, in a 5-4 decision, that Bowers was correct and that the Georgia sodomy law was consitutional. After all, if you do a text search on the word "homosexual" or "sodomy" in the Constitution, you won't find a match. And while there is a right to privacy, that right doesn't extend to homosexual sex, consensual or not. The majority opinion, written by Justice Byron "Whizzer" White, states:

Precedent aside, however, respondent would have us announce, as the Court of Appeals did, a fundamental right to engage in homosexual sodomy. This we are quite unwilling to claim that a right to engage in such conduct is 'deeply rooted in this Nation's history and tradition' or 'implicit in the concept of ordered liberty' is, at best, facetious."

Chief Justice Warren Burger added, in a concurring opinion:

"To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching."

Justice Louis Powell was the swing vote in thie 5-4 decision. According to an urban legend, he claimed that he had never known any homosexuals, although it turned out later that one of his law clerks was gay.

So the opinion of the highest court of the land was that state sodomy laws were constitutional. In practice, many states, with the gay rights movement becoming more politically prominent, repealed these laws. The Supreme Court eventually joined this chorus and in 2003, in Lawrence v. Texas, ruled that sodomy laws were indeed unconstitutional. It's said that the Supreme Court follows the election returns. In 1986, homosexuality was stigmatized much more, especially with the growth of the AIDS epidemic. In 2003, many elections were decided by the gay and lesbian vote.

Additional resources:

Thursday, August 10, 2006

Korematsu v. US (1944)

Fred Korematsu

Listen to this episode.

Can the United States government , in time of war or national emergency, intern a group of Americans of a certain race or nationality, on the basis that it poses a threat to national security? This is exactly what happened to Japanese Americans living on the West Coast of the United States. President Franklin Roosevelt, on February 19, 1942, shortly after the Japanese bombed Pearl Harbor, Hawaii, issued Executive Order 9066, giving the army the authority to condemn Japanese Americans (120,000 of them) to internment camps. The most famous of these camps was Manzanar, in the California desert. Japanese Americans (remember, these were American citizens, the vast majority not charged with any crimes, who had lived peacefully among their neighbors) were forced to sell their property at low prices and were displaced into totally alien, stark places, with barbed wire. Effectively, they were concentration camps in all but name.

Fred Korematsu (pictured above), a Japanese American man, evaded the Army order to go to an internment camp because he refused to be separated from his non-Japanese girlfriend. He had not committed any crime. He was eventually arrested. He hired an ACLU lawyer to appeal his case, which eventually wound up in the Supreme Court. By a 6-3 decision, the Court sided with the government. This is an excerpt from the majority decision, written by Justice Hugo Black:

Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and finally, because Congress, reposing its confidence in this time of war in our military leaders-as inevitably it must-determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short. We cannot-by availing ourselves of the calm perspective of hindsight-now say that at that time these actions were unjustified.

In other words, because we are at war, if the military decides that a certain group needs to be interned, that's enough. It doesn't matter if most of the group members are law-abiding citizens. Not having committed a crime is not a defense.

The Court was split, 6-3. Here is an excerpt from a dissenting Justice, Mr. Murphy:

This exclusion of 'all persons of Japanese ancestry, both alien and non-alien,' from the Pacific Coast area on a plea of military necessity in the absence of martial law ought not to be approved. Such exclusion goes over 'the very brink of constitutional power' and falls into the ugly abyss of racism.

The story doesn't end here. In the 1980s, a lawyer, Peter Irons, came across evidence that Charles Fahy, the Solicitor-General of the United States, had deliberately fabricated reports from the FBI that Japanese Americans posed no security risk to the United States. In 1983, Irons filed a suit to overturn Korematsu's conviction, which the judge approved.

In 1988, President Clinton awarded Mr. Korematsu the Presidential Medal of Freedom.

In his later years, Mr. Korematsu was an active advocate in cases where he saw other groups being persecuted in similar ways to the Japanese Americans. He filed a friend of the court brief on behalf of Mr. Padilla, one of the Guantanamo detainees. He also spoke out against discrimination against Arab Americans.

Could this happen today? The legal framework, amazingly, is still in place. The law that FDR used dates back to John Adams. It is the Alien Enemy Act of 1798, one of the Alien and Sedition Acts passed when the fear was war with France.

Additional Resources:

FCC v. Pacifica (1978)

Can the Federal Communications Commission revoke a radio station's license on the basis of obscenity?

George Carlin - Filthy Words

The First Amendment of the Constitution states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

In 1973, a father complained to the FCC that his 11 year old son heard a broadcast on radio station WBAI, owned by the Pacifica Foundation. The broadcast was called "Filthy Words", by comedian George Carlin. In response, the FCC wrote to Pacifica, asserting its right that, "associated with the station's license file, and in the event subsequent complaints are received, the Commission will then decide whether it should utilize any of the available sanctions it has been granted by Congress." In other words, the FCC threatened to revoke WBAI's broadcast license if it received any similar complaints.

I lived in New York and was a regular WBAI listener. WBAI and Pacifica were the ancestors of alternative radio, which now includes the likes of Howard Stern. I think you will agree that the Carlin monologue was tame compared to Howard Stern. By the way, George Carlin was not involved in the lawsuit, even though it is informally known as the "Carlin case".

The case revolved around whether Carlin's monologue, which was clearly free speech, could be broadcast on a Federally regulated channel, namely the FCC-licensed radio station WBAI. A radio station is a public channel, and part of the FCC mandate is to protect children from "indecent" speech. The Court had to tread a fine line between asserting the right of free speech against the obligation to protect young children from potentially threatening speech.

The Court indeed was sharply divided. The ruling was a 5-4 decision which asserted that the FCC indeed had the power to apply sanctions, up to loss of license, against a radio station that broadcast "indecent but not obscene" (whatever that means) material at a time when children were most likely to be listening.

This "seven dirty words" monologue(which I wouldn't dare to repeat because I don't want to become the subject of a Supreme Court Case) became George Carlin's signature stand-up routine. He modified it slightly for his album "Class Clown". Since then, the definitions of "indecent" and "obscene" have become even more controversial.

The constitutional issue of free speech vs. government regulation of the public airwaves (now including cable and network television, the Internet, blogs, and even podcasts) is still potentially the subject of future lawsuits. Eric Idle famously recorded a song that he dared the FCC to censor.

Additional resources:

The Federalist Papers Podcast

I just came across an extraordinary podcast, to which I urge all of you to listen. It's a podcast of The Federalist Papers. Here's the introduction, from their site:

The Federalist Papers are a series of 85 essays written between October 1787 and May 1788. They were composed by three different authors: Alexander Hamilton, John Jay and James Madison, all under the single anonymous pseudonym 'Publius'. Initially published in three New York newspapers, they subsequently appeared in newspapers across the fledgling nation. In these papers, Publius argues for implementation of the United States Constitution, which had been sent to the states for ratification in the Fall of 1787. Today, these essays serve as a primary source for the interpretation of the Constitution. In our time, as we engage in efforts to spread democracy and liberty, and to maintain them here at home, it is worthwhile to remember the original impulses and philosophies that produced the United States government.

The project started in May, with 2 episodes per week, each episode dedicated to a specific paper. The first 17 papers have been published, as of today (August 9, 2006). Just as an example, Listen to Federalist 1.

You can subscribe to The Federalist Papers Podcast by following this link. also publishes other audio (including audio of the US Constitution).

For additional background, see the Wikipedia article on the Federalist papers, as well as the Wikipedia article on the anti-Federalist papers. (There are always two sides to the story.)

Wednesday, August 09, 2006

Griswold v. Connecticut (1965)

Does the Constitution guarantee a right to privacy?

Estelle Griswold, Executive Director of Planned Parenthood

If you do a text search for the word "privacy" in the Constitution, you won't find it. There are a number of paragraphs that seem to imply that there is a right to privacy, such as the Fourth Amendment, which states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The people who advocate about Internet privacy and government intrusion into privacy frequently base their argument on the 4th Amendment. They also cite the 14th Amendment, Section 1, which states:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This clause is sometimes called the "due process" clause.

Another section of the Constitution cited for supporting the right to privacy is the First Amendment, which guarantees freedom of the press and religion. The First Amendment is sometimes called the "establishment clause" because it forbids the state from establishing a church (although these days one could argue that some people are trying anyway).

What does Griswold v. Connecticut have to do with all of this? In this case, the Supreme Court ruled that, even though there is no explicit Constitutional right to privacy, the combination of the clauses I mentioned earlier establish what Chief Justice Douglas called the "penumbra" of the right. In other words, the right to privacy exists even if not explicitly stated.

From the perspective of 2006, Griswold v. Connecticut sounds like a ludicrous case. Estelle Griswold, the Executive Director of Planned Parenthood of Connecticut, and a doctor affiliated with Planned Parentood, were arrested under a 1879 Connecticut law, for counseling a married couple about birth control. It's hard to believe that in 1965, in such a "liberal" state like Connecticut, this wouldn't be obviously legal, a situation where a doctor can discuss birth control in confidence with his or her patient. But these days, with the anti birth control lobby, prying legal eyes are still trying to interfere with what seems to be a basic right.

The Court decided that the Connecticut law was unconstitutional because there really is a right of marital privacy implied by the combination of all those constitutional guarantees. The justices were not unanimous in their decision. The vote was 7-2, with Justices Black and Stewart dissenting. Their dissents were the foundation for the idea of the "so called right to privacy". Some might call this case an example of judicial activism - the Court making new laws.

Tuesday, August 08, 2006

Marbury v. Madison (1803)

William Marbury

Marbury v. Madison was a landmark decision establishing the Supreme Court's power of judicial review - that the Supreme Court ultimately decides whether a law is constitutional. The case, decided in 1803, has an intriguing political background. Thomas Jefferson had become President in 1801, but before he took office, President John Adams, from the opposition Federalist party, created new courts and packed them with justices sympathetic to his political party. Jefferson refused to grant them a commission. One of the justices appointed by Adams, a man named William Marbury, sued Jefferson's Secretary of State, James Madison (a proxy for Jefferson), to force Madison to grant him a commission.

Listen to my podcast.

Additional resources:

Monday, August 07, 2006

Lincoln Suspends Habeas Corpus

Does the President, citing National Security, have the right to ignore the Constitution? Lincoln did this very thing in 1861. One paragraph in Article 1 Section 9 (Powers reserved for the Congress) of the Constitution states:

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.
President Lincoln, in 1861, after the Confederate bombarding of Fort Sumter, SC, asked the Governor of Maryland for troops against the Confederates. A unit of troops was prevented by a crowd from transferring trains in Baltimore. John Merryman, an officer in the Maryland cavalry, demolished a bridge to prevent federal troop movements.

Lincoln asked the Maryland Attorney General to suspend the Writ of Habeas Corpus in Maryland. His general, Winfield Scott, imprisoned Merryman in Fort McHenry. Merryman complained, asking to be released.

Thus Lincoln, in the earliest days of the Civil War, violated the Constitution by suspending the Writ of Habeas Corpus - even though only Congress could do it. The case eventually went to the Supreme Court, where Justice Taney ruled that Lincoln's action was unconstitutional. The case is a famous constitutional law called Ex Parte Merryman.

There's an interesting lecture about this case, as well as other constitutional oddities of the Civil War, called The War of Northern Agression. Steve Pratt, a well known lecturer on the Constitution, also explores little known aspects of the Gettysburg Address, the Emancipation Proclamation (no slaves were freed by it), and others.

You can subscribe to Steve Pratt's lectures

Friday, August 04, 2006

Akhil Amar Interview

The National Constitution Center recently interviewed Akhil Amar, the author of The Constitution: A Biography. Professor Amar fielded questions from high school groups. There were excellent questions about whether small states or large states won; how the slaveowners and the South in general won big time because of the 3/5 rule; how close the Constitution came to being not ratified; and more. This is a great resource. You can also subscribe to Constitutional Conversations.

Listen to the Akhil Amar interview.

Thursday, August 03, 2006

Amendments 11 - 27

From 1792 to 2006, over 200 years, there have only been 17 additional amendments. As mentioned before, the 21st Amendment repealed the 18th Amendment, so really that makes 16 amendments that are currently in force. As with other parts of the Constitution, a seemingly simple sentence has led to huge consequences. For example, the 16th Amendment, passed in 1913, consists of one sentence. It's the basis of the entire US income tax code. The first income tax return form consisted of one page. Why can't we return to the "good old days"?

Listen to Amendments 11 - 27.

The Bill of Rights

The first 10 amendments, called the Bill of Rights, were adopted in one year, 1791. They contain guarantees such as the right of the militia to bear arms, protection against unreasonable search and seizure, trial by jury, protection against self-incrimination, and so on. We take these individual liberties for granted, but as we see they were not included in the original Constitution. Individual liberties were an afterthought.

Listen to the Bill of Rights.

Article 7 - Legal Status

This article has one sentence - 9 states are needed to ratify the Constitution. This shows how fragile the acceptance process actually was. Even with the huge concessions relating to slavery that the Northern states gave to the Southern states, there was a possibility that not all of the 13 states would ratify. In fact, when George Washington was inaugurated as President in 1789 - two years after the Constitutional Convention of 1787 - there were still two states (Rhode Island and North Carolina) had not ratified the Constitution. Imagine what would have happened if they ultimately decided not to.

Listen to Article 7.

Article 6 - Ratification

In three paragraphs, the Constitution makes no bones about its legal importance. The Constitution is "the supreme law of the land". That's why it's so important and why many people invoke the Constitution to support their views. Unfortunately, fewer people actually read it, which is one of the reasons I created this blog and why the National Constitution Center is such a wonderful place.

Listen to Article 6.

Article 5 - Amendment

The Founding Fathers recognized that because of changing circumstances it might be necessary to change the Constitution. They wanted to make sure that this process would not happen too easily because that might make the government structure unstable. So they created a fairly complicated process for amending the Constitution, requiring the consent of 2/3 of both Houses of Congress and 3/4 of the state legislatures.

This seems to have worked out well. There are currently (as of August 1, 2006) 27 amendments to the Constitution. Ten of them (the Bill of Rights) were added in one swoop in 1791. Usually the amendments approved were for significant changes. However, when the 18th Amendment, an attempt to outlaw alcoholic beverages, was adopted, it was ignored so much that the 21st Amendment was passed to repeal it. Franklin Roosevelt's first Presidential race had as one of its main platform planks the repeal of the 18th Amendment. Even though our country was in the worst economic crisis in its history, the repeal of Prohibition was considered a huge issue.

Listen to Article 5.

Article 4 - The States

After describing the powers of the three branches of the national government, Article 4 describes what powers are left to the states. The boundaries of these powers was a source of deep controversy, and indeed the question of "states rights" versus "Federal rights" led directly to the Civil War. It was not decided peacefully. I wondered about that problem during the time when we were guiding Iraq to create a constitution in a few months. How could we expect a successful outcome when it took us over 80 years to resolve the question by waging the bloodiest war in our history? Indeed, the question is not totally resolved even today.

Listen to Article 4.

Article 3 - Judicial

Article 3 is the foundation of the powers of the Supreme Court and the Appellate Courts of the United States. It contains only 3 sections, even shorter than Article 2. These courts were designed to check both the legislative and the executive branches.

Listen to Article 3.

Article 2 - Executive

Article 2 contains only 4 sections, which can easily fit in one page, from which all the powers of the President are derived. Our system of government is designed so that the President can check the power of the legislature, and (presumably) vice versa. The President must be a United States citizen at least 35 years of age.

Listen to Article 2.

Article 1 - Legislative

The Constitution is logically divided into 7 articles. It's a remarkably short document. I was able to create all these MP3 files in a morning.

Article 1 (I'll use the Latin numerals even though the Constitution uses Roman numerals. We're more accustomed to Latin numerals) discusses the House of Representatives and the Senate - the two branches of our legislature, which is responsible for making our laws. The House is representated by population. The larger the state, the more representatives. The Senate is represented by state. Each state, no matter how large, has two Senators. The idea is to balance the interests of the states with large population (who could be expected to dominate in the House) with the interests of the states with small population (who could have a more equal playing field in the Senate).

Whether the Founding Fathers achieved that balancing goal is an interesting question. Compounding the question is that slaves were considered, for the purpose of representation in the House, as 3/5 of a person - even though they didn't vote! This created a huge advantage for the Southern states, and in fact was an incentive for Southerners to add to their slave property. The South, up to the Civil War, dominated the national government - including the Presidency - because of this. Evil was thus rewarded.

Listen to Article 1.


I'm starting this blog by posting an audio file of the Preamble of the Constitution - one sentence that describes the vision of the Founding Fathers. Considering that most introductions run on and on for 10 pages or more, this is an amazing accomplishment.

Listen to the preamble.

John Edwards Interviews Jimmy Carter

I came across a great interview that former Senator (and Vice Presidential candidate) John Edwards did with former President (and Governor of Georgia) Jimmy Carter.

Listen to John Edwards interviewing Jimmy Carter.

Here's an excerpt, taken from Political Science and Social Oddities:

"To improve our country's reputation as the only superpower on earth: I think that everyone in the world should look to Washington and say there is a mighty nation that believes in peace, not pre-emptive war. That tries to address the inevitable conflicts that exist among people and within nations and between nations by using our tremendous and unchallengable military and economic power for peace."

There are plenty of other zingers from President Carter, such as the real generational differences between Bush 43 and Bush 41, the idea that Bush 43 is the first President to explicitly favor the extremely rich over the rest of us, and the way this President hijacks religion

This is one of a series of interviews Senator Edwards has done. You can subscribe to it. You can also join his group, the One America Committee.

By subscribing to the newswire, you can keep up to date on other exciting audio and podcasts that I've found.