The United States Constitution

Can the Governor of Texas Force 11 Year Old Girls to be Vaccinated Against HPV?

2007-02-12T08:51:00.000-08:00

Rick Perry, the Governor of Texas, signed an executive order that requires all Texas schoolgirls entering the 6th grade to be vaccinated against Human Papilloma Virus (HPV).

Here is the text of Governor Perry's order. Governor Perry claims he has the authority to do this because:

NOW THEREFORE, I, RICK PERRY, Governor of Texas, by virtue of the power and authority vested in me by the Constitution and laws of the State of Texas as the Chief Executive Officer, do hereby order the following:

Vaccine. The Department of State Health Services shall make the HPV vaccine available through the Texas Vaccines for Children program for eligible young females up to age 18, and the Health and Human Services Commission shall make the vaccine available to Medicaid-eligible young females from age 19 to 21.

Rules. The Health and Human Services Executive Commissioner shall adopt rules that mandate the age appropriate vaccination of all female children for HPV prior to admission to the sixth grade.

Availability. The Department of State Health Services and the Health and Human Services Commission will move expeditiously to make the vaccine available as soon as possible.

Public Information. The Department of State Health Services will implement a public awareness campaign to educate the public of the importance of vaccination, the availability of the vaccine, and the subsequent requirements under the rules that will be adopted.

Parents' Rights. The Department of State Health Services will, in order to protect the right of parents to be the final authority on their children's health care, modify the current process in order to allow parents to submit a request for a conscientious objection affidavit form via the Internet while maintaining privacy safeguards under current law.

The vaccine, Gardasil, is manufactured by Merck, one of the largest drug companies in the world and a significant contributor to Governor Perry's political campaigns. Merck is the same company which hid the deaths from heart attacks and strokes associated with its anti-arthritis drug, Vioxx, forcing Merck, under pressure, to pull Vioxx from the market.

According the the Merck-sponsored Web site, gardasil.com,

GARDASIL is the only vaccine that may help guard against diseases that are caused by human papillomavirus (HPV) Types 6, 11, 16, and 18:

• Cervical cancer

• Cervical abnormalities that can sometimes lead to cervical cancer

• Genital warts

HPV Types 16 and 18 cause 70% of cervical cancer cases, and HPV Types 6 and 11 cause 90% of genital warts cases. What about the other 30% of cervical cancer cases? Doctors still recommend a Pap test - a far cheaper and more effective way of detecting early cervical cancer. Also certain types of HPV cause anal cancer, which would lead one to conclude that boys who might potentially engage in homosexual acts should also be vaccinated.

Another interesting tidbit is that millions of us - just about anyone who has had any kind of sexual contact on a regular basis - have been exposed to HPV, without any side effects. For most of us, our body has natural defenses against HPV, once exposed. There's no way of knowing who has these defenses and who does not. If that weren't true, then there would be many, many more cases of cervical cancer than there actually are. Merck's commercials play on fear - even one case is too many. Of course, that is true, IF there's an open and shut case that Gardasil will actually prevent even one case. This is far from proven, at this stage of the game.

Note the waffling in the Merck claim, especially the use of the phrase "may help guard against". HPV is not one virus, but one of a family of at least 100 different strains of the virus. The vaccine is targeted at only 4 types of HPV - types 16 and 18, which may cause 70% of cervical cancer cases, and types 6 and 11, which may cause 90% of genital warts cases. There are a dozen types of HPV that may be involved with cervical cancer. Gardasil only targets two of them. This, of course, begs the question of whether if in the future, Merck or some other company develops a "vaccine" against the other 10 types of HPV, should these be mandatory as well? And what about specific vaccines against other cancers? How many shots will the states expect our children to receive before they will become stuck with so many needles their arms will look like pincushions? And what about the side effects - these have not been sufficiently explored yet. Is an epidemic such as Gullian-Barre syndrome - a result of the Asian flu vaccine side effect - in our future?

According to the about.com cancer site, Gardasil will cost between $300 and $500 per shot, which will be covered by Federal programs. Gardasil is the most expensive vaccine ever marketed in the United States. This is, of course, quite a bit of revenue for Merck, even if only Texas mandates the vaccine for every 6th grade girl. Gardasil was approved by the Centers for Disease Control (CDC) on June 8, 2006, specifically for girls. According to the CDC, not enough information is available to decide whether Gardasil should be given to boys as well.

The idea is that HPV is linked to the possibility of developing cervical cancer, that HPV is spread by sexual contact, and that vaccinating girls against this virus (vaccinating 6th grade boys apparently was not considered, though in most cases boys are involved as well as girls) will somehow prevent cervical cancer. Here are Governor Perry's words:

As governor of Texas, I will do everything in my power to protect public health. The executive order I signed last Friday will help stop the spread of human papillomavirus (HPV) and prevent cervical cancer in young women.

Some are focused on the cause of this cancer, but I remain focused on the cure. And if I err, I will always err on the side of protecting life.

If we could stop lung cancer, would some shy away claiming it might encourage tobacco use? This is a rare opportunity to act, and as a pro-life governor, I will always take the side of protecting life.

Merck is carrying on a massive lobbying effort for states to require women as young as 11 or 12 to undergo Gardasil vaccination. Here's a quote from the article:

Merck & Company is lobbying to have states pass legislation that would require women as young as 11 or 12 years of age to be “immunized” against a cervical cancer virus with a new drug recently approved by the FDA called Gardasil. At least 18 states are taking this initiative seriously enough to debate it. Michigan has already voted it down. But look at what they’re doing:

A top official from Merck’s vaccine division sits on the Women in Government business council, and many of the bills around the country have been introduced by members of Women in Government.

“Cervical cancer is of particular interest to our members because it represents the first opportunity that we have to actually eliminate a cancer,” Women in Government President Susan Crosby said. Here's a quote from the Women in Government Cervical Cancer position paper:

An HPV test is now available to detect high-risk types of the virus. When used in conjunction with a Pap test in women over 30 and older a doctor's ability to determine which women need early intervention increases to almost 100%.

I asked my son, who is a family practice physician and has researched this issue about this. He told me that the above statement is misleading because the Pap test remains the way to diagnose cervical cancer. The HPV "vaccine" does not add any certainty to the diagnosis. This is how lobbyists sow confusion among lawmakers.

Other states are jumping on the Gardasil bandwagon. In Arkansas, Dr. Jim Phillips, Director of Infectious Diseases at the Arkansas Health Division, voiced strong opposition to mandatory HPV vaccinations because it would encourage parents to opt out of all mandatory vaccinations. This, even though the Arkansas Cervical Cancer Task Force recommended mandatory HPV vaccinations for all girls age 9 to 12. There's enough Federal money to fund vaccines for uninsured Arkansas girls. However, if you can pay the $300 through your health insurance, Arkansas will force you to fork up the money.

In Virginia, Delegate Phillip Hamilton (R-Newport News) sponsored a bill - HB1914 - that would make it mandatory for all middle school girls to be vaccinated with Gardasil. As in other states, parents could opt out of the program by filling out a form.

The Roanoke Times editorial of February 7, 2007, opposes the measure. Here's a partial quote:

That should raise questions about the influence of Merck & Co., makers of the vaccine, called Gardasil.

Those questions are being asked in Texas, where last week Gov. Rick Perry signed an order requiring girls entering the sixth grade to get Gardasil beginning in September 2008.

His action sidestepped opposition in the Texas legislature and from some conservatives and parents' rights groups. They worry that the requirement would condone premarital sex -- since the viruses it protects against are sexually transmitted -- and interfere with how they raise their children.

Perry has ties to Merck. His former chief of staff is a lobbyist for the company, and Perry also received $6,000 from Merck's political action committee during his re-election campaign.

Merck has stretched its reach into other states considering similar laws, including Virginia. Since 1996, Merck has donated nearly $200,000 to candidates and political action committees in Virginia. Merck has given the House sponsor, Del. Phillip Hamilton, R-Newport News, $10,000 in the last decade.

Contrary to the fears of some, 10- and 11-year-old girls aren't likely to assume that this series of shots equates with permission to engage in premarital sex. That is not a good argument to oppose Merck's efforts to mandate the vaccine.

But there are others. While dangerous side effects aren't as likely with vaccines as with other drugs, such as Merck's Vioxx, it would still be prudent before making the vaccine mandatory to see whether any emerge now that it is in widespread use.

Also, many pediatricians and gynecologists aren't stocking the vaccine because they say insurance companies aren't adequately reimbursing them.

Finally, this premature move could blunt other companies' efforts to develop competing vaccines.

The finding that Gardasil protects against four HPV types, which together cause 70 percent of cervical cancers, is a breakthrough. But maybe one of Merck's competitors could improve on Gardasil's performance if Merck doesn't use legislation to prematurely corner the market.

Merck should spread the gospel of Gardasil, and let the health community and parents know of the vaccine's potential in the fight against cancer.

State legislators should not ignore that Merck stands to make billions in sales if Gardasil becomes mandatory across the country.

Merck's interests are served by mandating the vaccinations. Legislators should ensure that public health would also be served.

Campaign contributions aside, that argument has not been made convincingly.

Doctors are resisting stocking up on Gardasil, according to this Chicago Tribune article. In particular:

But in the real world, Gardasil is getting used less than doctors would like. Pediatricians and gynecologists across the nation are refusing to stock Gardasil because of its $360 price for the three doses required and "totally inadequate" reimbursement from most insurers.

Pediatricians, in particular, are rebelling, fed up after years of declining insurance reimbursement for vaccines, an explosion of new vaccines and fast-escalating vaccine prices.

Many practices must tie up $50,000 or more in vaccine inventory, insure the vaccines and spend lots of time on inventory management. They also must absorb the cost of broken or wasted vials, and they say that's not possible with most insurers reimbursing at just $2 to $15 over the $120 per dose charged by Gardasil's developer, Merck & Co.

This action raises both constitutional and health issues, such as:

Can the Governor of Texas issue such a decree even though the legislature is in session? It's news to a number of Texas legislators that the governor can rule by decree. Texas is not in any state of emergency. Governor Perry simply bypassed the legislative process in issuing his executive order.

Is mandatory vaccination allowed under the Texas Constitution? Governor Perry cites his executive powers as justification for his decree. Perhaps. If the legislation was not in session, and there was an imminent outbreak of something like bird flu that was a direct attack on public health, perhaps there would be no time for legislative deliberation. Given that the implementation of this decree is not supposed to occur until 2008, the "time is of the essence" argument doesn't seem to hold water. Why not dispense with the legislature altogether and just rule by decree, as dictators are accustomed to doing?

Is mandatory vaccination allowed under the United States Constitution? There is a constitutional conflict here because under the reserved powers clause, and in general, matters of public health are traditionally state matters, under the state's "police power". However, if there is an affect on interstate commerce, mandatory vaccination could be in the province of the Federal government.

Would the United States Supreme Court declare this particular decree unconstitutional, or perhaps require mandatory vaccinations? Who knows? The Court, especially these days, would probably allow a state to do what it deems best for the health and welfare of its citizens. If Pennsylvania requires doctors to jump through all sorts of hoops before performing an abortion, so be it. If Oregon wants to allow for medically assisted suicide, that might work as well. The Court could very well contribute to Merck's profits by upholding laws, pending in 18 states, forcing 6th graders to submit to the Gardasil vaccine, whether or not all the facts are in.

The Legal Status of an Indian Tribe

2006-12-09T11:10:00.000-08:00

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Yesterday, I chanced on an interesting article in the business section of my local paper. The Seminole Indians purchased the Hard Rock Cafe for $965 million. That's a pretty large amount of money. That got me to thinking - how did the Seminoles get all that money? Are all Indian tribes that rich? And in what capacity - as a nation or a corporation - did the Seminoles make the transaction? Are the individual Seminoles shareholders in the Seminole Corporation, citizens of the Seminole nation, or both? And how does a group become certified as an Indian tribe? Could I gather a few friends, maybe some of my 6,000+ MySpace friends, declare that we're a tribe, and go into the casino business? So, salivating over the prospect of casino riches, I decided to do a little research on how, exactly, an Indian tribe is set up. There's a long and winding road associated with the answer to the question.

As I mentioned in my article about the legal basis of Indian ethnic cleansing, the Constitution grants to Congress, in the Commerce Clause, the power to regulate commerce with the Indian tribes. There's also another area in which our government has dealt with Indian tribes - as a nation, like England or France. In that capacity, the President, with the advice and consent of the Senate, has concluded many treaties with Indian tribes, as nations. The idea that Indian tribes were nations was, at the time of the ratification of the Constitution, so self-evident that the tribes are not singled out as separate from a nation when the Executive is given the treaty making power. It was just assumed.

As an early example, from the administration of George Washington, the United States government signed a "treaty of peace and friendship" with the Iroquois nation, on November 11, 1794. The treaty is known either as the Pickering Treaty, the Calico Treaty (because calico cloth was the official method of payment), or the Treaty of Canandaigua (for the location, near Rochester, New York, where the treaty was signed. I quote from the Preamble and the first two articles.

The President of the United States having determined to hold a conference with the Six Nations of Indians, for the purpose of removing from their minds all causes of complaint, and establishing a firm and permanent friendship with them; and Timothy Pickering being appointed sole agent for that purpose; and the agent having met and conferred with the Sachems, Chiefs and Warriors of the Six Nations, in a general council: Now in order to accomplish the good design of this conference, the parties have agreed on the following articles, which, when ratified by the President, with the advice and consent of the Senate of the United States, shall be binding on them and the Six Nations.

Article I. Peace and friendship are hereby firmly established, and shall be perpetual, between the United States and the Six Nations.

Article II. The United States acknowledge the lands reserved to the Oneida, Onondaga and Cayuga Nations, in their respective treaties with the state of New York, and called their reservations, to be their property; and the United States will never claim the same, nor disturb them or either of the Six Nations, nor their Indian friends residing thereon and united with them, in the free use and enjoyment thereof: but the said reservations shall remain theirs, until they choose to sell the same to the people of the United States who have right to purchase.

You can read the entire text of the treaty here.

The Pickering Treaty has been formally observed continuously since then. Every year the Six Nations in New York receive calico as payment, and the Oneida Tribe of Wisconsin receives a check for $1,800, in accordance with its terms. The signing ceremony was reenacted on November 11, 2006 in Canandaigua. None of this, however, prevented the United States government from flooding 10,000 acres of Allegany Seneca Reservation land and the traditional Seneca religious building, the Cold Spring Longhouse, by the Kinzua Dam, in 1965, in violation of the 1794 Pickering Treaty. Apparently, when it comes to treaties with Indian nations (by some estimates, there have been over 400 of them solemnly sealed over the years), they are only enforced when it is convenient for the government. Imagine if the Indians wanted to flood midtown Manhattan and St. Patrick's Cathedral because they didn't think that the $24 payment in wampum was enough compensation for Manhattan.

The Pickering Treaty terms seem pretty clear. The Iroquois nation has a fee simple title to the land, complete with the "free use and enjoyment thereof", with the right to sell on terms agreeable to them, just like any landowner. Well, that was the plain meaning of the treaty in 1794. When the Supreme Court, led by Chief Justice John Marshall, (Johnson v. M'Intosh, 1823) actually ruled on whether the Native Americans could sell their land to a private party, the unanimous decision was that they could not because ultimate title belonged to the United States of America. Indians only had the "right of occupancy" because the Court held that the land was "discovered" by the European powers. Here's how Marshall stated it:

It is supposed to be a principle of universal law, that, if an uninhabited country be discovered by a number of individuals, who acknowledge no connexion with, and owe no allegiance to, any government whatever, the country becomes the property of the discoverers, so far at least as they can use it. They acquire a title in common. The title of the whole land is in the whole society. It is to be divided and parcelled out according to the will of the society, expressed by the whole body, or by that organ which is authorized by the whole to express it.

If the discovery be made, and possession of the country be taken, under the authority of an existing government, which is acknowledged by the emigrants, it is supposed to be equally well settled, that the discovery is made for the whole nation, that the country becomes a part of the nation, and that the vacant soil is to be disposed of by that organ of the government which has the constitutional power to dispose of the national domains, by that organ in which all vacant territory is vested by law.

In other words, the land was uninhabited until the white Europeans discovered it and it was only put to use when the white Europeans settled it. The native Americans became, by legal magic, invisible and unproductive.

If the Indian tribes were a nation, they were certainly a curious nation. They did not own their land. In an 1831 case, Cherokee Nation v Georgia, the Marshall court defined the Cherokees as a "domestic, dependent nation", as opposed, I guess to England, which was an international, independent nation. In Worcester v Georgia, an 1832 case, the Marshall Court held that only the Federal government, not the states, could negotiate treaties with Indian tribes. The Treaty of New Echota, made by the United States government with a few dozen Cherokees, many of whom were assassinated by the other 17,000 Cherokees who opposed it, which made "official" the removal of the Cherokee nation to Oklahoma, was a formal treaty, negotiated by the President and ratified by the Senate, in line with the ratification procedure for any treaty. By the terms of that treaty, the Cherokee Nation was supposed to be able to set up their independent government in Indian territory (present day Oklahoma), forever, without any interference from the white man. White settlement in Indian Territory was expressly forbidden.

This arrangement worked until enough whites wanted to steal the land promised to the Indian "forever". By the eve of the Civil War, each tribe that was "relocated" to Indian Territory had its own fragment of land. The land intended for the Cherokee Nation and other relocated tribes was already occupied by other Indian tribes, principally the Osage and the Qawpaw, as the official Oklahoma history Web site explains. By a treaty of 1808, amazingly, the Osage were promised the entire state of Oklahoma in return for relocating from Kansas. In other words, far from being empty, uninhabited prairie, Indian Territory was already populated. The tribes from the east were given land stolen from the tribes already living in Indian Territory. A competition for food and land among the relocated tribes and the tribes already living their ensued.

When the white Europeans, such as ranchers, farmers, and mining companies, discovered that Oklahoma land and resources were valuable, the government needed to come up with a legal way to circumvent the inconvenient treaties they had made with the various Indian tribes. The most important law passed by Congress was the Dawes Act, enacted in 1887. Section One authorizes the President to survey Native American tribal land and divide the arable area into allotments for the individual Native American. It says that the head of any household will receive 160 acres (647,000 m²), and each single individual above the age of 18 and each orphan will receive 80 acres (324,000 m²), and each minor will receive 40 acres (162,000 m²). In other words, native American tribal land was converted to individual homesteads for each Indian who could prove to the satisfaction of the United States Government that he or she was a proper member of the tribe. The result of the Dawes Act was to destroy the tribal rights, negotiated by treaties, that the government was supposed to preserve. The Dawes Act also destroyed the Indian tribal culture. Each Indian had to enroll in the Dawes Roll, and, in a process hauntingly similar to what the Nazis did in Germany, prove that they had the required amount of Indian blood. By the way, if you were of mixed Indian ancestry - say 50% Cherokee and 50% Osage - you had to choose, which meant that you were deprived of the tribal rights of the other tribe. Hitler had similar rules about percentage of Jewishness to make you eligible for the gas chamber. The idea of dealing with the tribes as sovereign nations was dead as a doornail. In fact, in 1871, Congress passed a law which forbade the President from negotiating any more treaties with Indian tribes.

Check out this collection of documents related to the Dawes Act from PBS.

In my US history textbook published in the 1950s, I remember a picture of the famous Oklahoma Land Rush of 1889. There were all those wagons and horses lined up at the Oklahoma border, waiting for the starter to give the signal to occupy the empty land across it. In reality, the land was overcrowded with Indians trying to survive. The land was not empty - it was stolen from the Cherokees and other tribes who had solemn treaty obligations to it. The government pressured the tribes to cede "unassigned lands" - those lands where there were no formal Indian settlements - for white settlers - for minimal compensation. So the Oklahoma Land Rush should more properly be called the Oklahoma Land Theft.

With each Indian reduced to his own homestead, and with little knowledge of this contorted history, unscrupulous white land agents took advantage of the Indians, effectively stealing whatever allotment was supposed to be available, and impoverishing those who still remained. This Indian privatization scheme was disastrous to the native Americans.

This situation was partially relieved only in the New Deal era, with the passage of the Indian Reorganization Act of 1934 (also known as the Wheeler-Howard Act or the Indian New Deal). The terms of the Act allowed the Indian tribes to organize as a tribe, appoint legal counsel, and negotiate contracts. A tribe could adopt its own "constitution", subject to approval by the Secretary of the Interior. Although the Act did not fully restore Indian tribes to complete nationhood, it did provide the legal foundation for contracts such as the Seminole contracts with gambling casinos.

Although there have been various twists and turns - a potentially disastrous twist occurred during the 1950s, in the Eisenhower administration, when the policy of "terminating" Indian tribes, basically returning them back to the Dawes Act era, was tried and failed - the Wheeler-Howard Act is the basic document underpinning the legal status of Indian tribes. Termination was nearly a disaster for the Menominee tribe (the government wanted to make a state park out of the Menominee tribal land) and the Colville River tribes. So can I get a group of my friends together, declare ourselves as a tribe, and get in on the casino action? Not exactly. We have to prove that we're biologically and genetically Indian, get the historians and anthropologists in on the action to prove that our ancestors acted as a tribe, and then apply to the US government for certification. Some tribes, like the Lumbee in North Carolina, have been trying for over 100 years. Maybe there's a loophole somewhere - can I be adopted by an official tribe? Any of my native American MySpace friends, please contact me (ira@irakrakow.com) - I'm available!

The Native American Source for the Declaration and the Constitution

2006-12-06T11:11:00.000-08:00

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In the standard high school history textbooks, the primary sources of the ideas behind the Constitution are almost entirely from western Europe. We read about English common law, laws from ancient Greece and Rome, and French civil law. Then, by some sort of magic, the Framers added their original genius, ideas about democracy, separation of powers, federalism, and so on, to the mix and, behold, the Constitution was created.

All well and good. Certainly ancient Greece and Rome, medieval England, and the minds of Washington, Franklin, Jefferson, and others were vital contributions to the ideas of the Declaration of Independence and the Constitution. But one source, hiding in plain sight, so to speak, is frequently overlooked. This is the contribution of native Americans, particularly the Iroquois, to the mix. The Iroquois constitution, called the Great Law of Peace, or Gayanashagowa, contains many echoes of our Constitution, and in a number of respects, is more advanced in thought than the Constitution that resulted from the Convention of 1787.

This is not something I made up. If you read the original documents from the time, from people like Benjamin Franklin and George Washington, you will easily see that they deeply acknowledged their debt to the Iroquois and other native Americans. It's no accident that the protestors at the Boston Tea Party chose to disguise themselves as Indians. They did this out of respect for the democratic and free nature of Indian society - something they were trying to establish in the face of what they considered British tyranny.

Who were the Iroquois? Here's how the Wikipedia article on the Iroquois describes it:

The Iroquois Confederacy (Haudenosaunee, also known as the League of Peace and Power, Five Nations, or Six Nations, mostly Six nations now a days) is a group of First Nations/Native Americans. It was made up of six tribes: the Mohawks, the Oneidas, the Onondagas, the Cayugas, and the Senecas. A sixth tribe, the Tuscarora, joined after the original five nations were formed. They are also sometimes called the people of the Long house. They are often referred to as Iroquois, a term that some members of the group consider derogatory.

The Union of Nations was established prior to major European contact, complete with a constitution known as the Gayanashagowa (or "Great Law of Peace") with the help of a memory device in the form of special beads called wampum that have inherent spiritual value (wampum has been inaccurately compared to money in other cultures). Most anthropologists have traditionally speculated that this constitution was created between the middle 1400s and early 1600s. However, recent archaeological studies have suggested the accuracy of the account found in oral tradition, which argues that the federation was formed around August 31, 1142 based on a coinciding solar eclipse (see Fields and Mann, American Indian Culture and Research Journal, vol. 21, #2). Some Westerners have also suggested that the Great Law of Peace was written with European help, although some dismiss this notion as racist.

The Iroquois were not simply passive observers of the conflict between the French and British. They were a formidable military power. In fact, they held the balance of power in the West for the 17th and 18th centuries. According to Francis Parkman, the famous 19th century historian, the Iroquois were at the height of their power in the 17th century, with a population of around 12,000 people. Our image of native Americans comes mainly from those John Ford westerns, that they were savages who scalped innocent white settlers who just wanted to farm on the empty prairie. This is not how Benjamin Franklin, who negotiated a treaty with the Iroquois, saw them.

"It would be a strange thing if six nations of ignorant savages should be capable of forming a scheme for such a union and be able to execute it in such a manner as that it has subsisted ages and appears insoluble; and yet that a like union should be impractical for ten or a dozen English colonies.

At the time, Franklin proposed a plan, called the Albany Plan of Union, based on the Great Law of Peace, to unite the colonies. About 40 Iroquois representatives, led by Chief Hendrick of the Mohawk, urged such a union because it had worked so well for the Iroquois. The white "savages", unfortunately, could not agree. A number of historians cite the Albany Plan as a predecessor to our Constitution. They don't always mention that its basis was a native American constitution that had been functioning continuously for hundreds of years.

On June 11, 1776, the Continental Congress, in the midst of debating the text of the Declaration of Independence, formally invited visiting Iroquois chiefs into the meeting hall. Read about it here. There a speech was delivered, in which they were addressed as "Brothers" and told of the delegates' wish that the "friendship" between them would "continue as long as the sun shall shine" and the "waters run." The speech also expressed the hope that the new Americans and the Iroquois act "as one people, and have but one heart." After this speech, an Onondaga chief requested permission to give Hancock an Indian name. The Congress graciously consented, and so the president was renamed "Karanduawn, or the Great Tree." Like I said, I'm not making this up.

Recent historians have taken note of the Iroquois contribution to our political thought. At a conference at Cornell University in 1987, the 200th anniversary of the Ratification of the Constitution, 200 historians and scholars gathered to examine how the Great Law of Peace was indeed the source of the Constitution. Here's how it was described:

Faithkeeper Oren Lyons, an Onondaga, states The Great Law of Peace includes "freedom of speech, freedom of religion, [and] the right of women to participate in government. Separation of power in government and checks and balances within government are traceable to our Iroquois constitution—ideas learned by colonists."

The central idea underlying Iroquois political philosophy is that peace is the will of the Creator, and the ultimate spiritual goal and natural order among humans. The principles of Iroquois government embodied in The Great Law of Peace were transmitted by a historical figure called the Peacemaker. His teachings emphasize the power of Reason to assure Righteousness, Justice and Health among humans. Peace came to the Iroquois, not through war and conquest, but through the exercise of Reason guided by the spiritual mind. The Iroquois League is based not on force of arms or rule of law, but spiritual concepts of natural law applied to human society.

At the planting of a Tree of Peace in Philadelphia in 1986, Mohawk Chief Jake Swamp explained, "In the beginning, when our Creator made humans, everything needed to survive was provided. Our Creator asked only one thing: Never forget to appreciate the gifts of Mother Earth. Our people were instructed how to be grateful and how to survive.

"But during a dark age in our history 1000 years ago, humans no longer listened to the original instructions. Our Creator became sad, because there was so much crime, dishonesty, injustice and war.

"So Creator sent a Peacemaker with a message to be righteous and just, and make a good future for our children seven generations to come. He called all warring people together and told them as long as there was killing there would be no peace of mind. There must be a concerted effort by humans for peace to prevail. Through logic, reasoning and spiritual means, he inspired the warriors to bury their weapons and planted atop a sacred Tree of Peace."

Here's a description of the Great Law of Peace, from the Official Six Nations Web Site. Peace was more than the absence of war - the Iroquois considered it as harmony with nature, one's surroundings, and one's brothers.

Here's the text of the Great Law of Peace.

You can read the excellent book Forgotten Founders, by Bruce Johansen, online, for free. Mr. Johansen examines not only the Great Law of Peace, but also other native American influences on the Declaration of Independence and the Constitution. The Great Law was far more democratic than either document. Women had full equality - in fact, they sort of ran the show. The men turned in all their assets, except for their guns and arrows for fighting, to the women to manage. The long house was a true democracy, where everyone could speak their mind. Ideas such as free speech, later incorporated into the Bill of Rights, were first written down here. The idea of separation of powers and federalism was not only written down but practiced. Each nation preserved its own sovereignty but also agreed to the rights of the Iroquois nation for matters such as defense. The Iroquois didn't have to wrestle with the "peculiar institution" of slavery because it was unknown. A modern historian, faced with all the facts, could easily conclude that the Constitution was based on this native American document and then was debased by the fierce political horsetrading that occurred at the Convention in 1787. Maybe this is too extreme a position. At the least, however, the contributions of the native Americans to our fundamental documents should be both acknowledged and celebrated, instead of being invisible.

By the way, the thing about scalping - it was a European invention. The British placed a bounty on the scalp of an Indian. The Indians considered scalping as barbaric and only resorted to it out of self defense. Makes you think about who the savages really were.

How the Seminoles Resisted Ethnic Cleansing From Florida

2006-12-01T13:58:00.000-08:00

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After you read this post, you won't look at a 20 dollar bill - the one with Andrew Jackson's face on it - the same way again. When you think of the wars in American history, a standard list - including the French and Indian War, the American Revolution, the War of 1812, the Civil War, World War I, World War II, Vietnam, and Iraq - come to mind. What about the Pequot War, King Philip's War, Pontiac's Rebellion, the Creek War, or the Black Hawk War? These were also wars we fought (King Philip's War was the bloodiest, pound for pound, in our history), but they're invisible. The reason - the "enemy" was native American. In this episode, I will discuss how the Seminole Indians fought three wars in Florida, holding the United States Army at bay for nearly 4 decades, resisting the Indian removal policy. The Seminoles, in fact, were never defeated in the field.

In the last episode, I discussed how the Cherokee nation was forcibly "removed" to Oklahoma in the 1830s, along paths which are now known collectively as the Trail of Tears. The driving force behind this ethnic cleansing was Andrew Jackson, 7th President of the United States, known as Sharp Knife because of his lifelong dedication to Indian ethnic cleansing, by lies and deception if possible, by force if necessary. Congress gave President Jackson the authority to relocate the Indians to Indian Territory (present day Oklahoma) by passing the Indian Removal Act of 1830. The Cherokees, who had built a nation according to the white man's ways, decided to work through the legal system, and did not resort to armed resistance. In this episode, I will discuss the Seminoles in Florida, who resisted fiercely, fighting three wars against the full might of the United States army, wars lasting 4 decades, in guerrilla fashion - hiding out in the mosquito and rat infested swamps of the Everglades, until both sides essentially tired of the struggle. The Seminoles were never defeated on the battlefield. At the end, the remnant bands retired to the remote parts of the Everglades until well into the 20th century, when the crush of development forced the Seminoles to settle more into the white man's ways.

Who are the Seminoles? According to the white man, they're one of the Five Civilized Tribes, the others being the Creek (also called Muskoki), Cherokee, Chickasaw, and Choctaw. By "civilized", the white man's view is that, unlike all the other Indian tribes, such as the Plains Indians, they adopted the white man's ways. This of course is blatant nonsense. Many of the tribes east of the Mississippi, such as the Iroquois, were as "civilized" as any white groups. Foods like corn, squash, beans, and succotash, that we eat on Thanksgiving and in daily life, are of Indian origin. Many Indians were farmers, some were large landowners. Nevertheless, in spite of their civilized ways, they were for the most part "relocated" west of the Mississippi. The reason had nothing to do with civilization. Instead, it was the white man's hunger for land and, in the case of the Cherokees, gold. They were forced to relinquish their land and other assets for land in Indian Territory (present-day Oklahoma) with the promise that the area would be theirs exclusively, with white settlement banned. In the next episode, when I explain the real story behind the "Oklahoma Land Grab", I'll set the record on that score straight.

According to the Official Seminole Tribe Web Site, the ancestors of the Seminole tribe have lived in the southeastern states (Florida and Georgia mainly) for 12,000 years. When the Spanish "discovered" Florida in 1513, about 200,000 Maskoki speaking peoples lived there. The origin of the word Seminole is obscure. One theory is that it is a corruption of the Spanish word "cimarrones", which means free people. The Seminoles are closely related to the Creeks and concentrated along the border between Florida and Georgia.

We tend to think of the War of 1812 as a fight between Great Britain and the United States. Of course, they did fight each other, in such events as the Battle of Lake Erie, the seige of Fort McHenry (Baltimore), the burning of Washington, DC, and the Battle of New Orleans. But relatively unnoticed, a large part of the war consisted of fighting Indian tribes along the western and southern frontier. One of these tribes was the Creeks. The Creek War (1813-1814) started out as a civil war between those Creeks who wanted to remain living in traditional ways (the Red Sticks), and those who wanted to become more "civilized", according to the ways of the White man (the White Sticks). On August 30, 1813, at Fort Mims, Alabama, the Red Sticks killed 500 people in the Massacre of Fort Mims. This event prompted the United States to become involved on the side of the White Sticks, with the goal of clearing Alabama for white settlement. Under the command of Andrew Jackson, eventually the United States army prevailed, at the Battle of Horseshoe Bend (March 27, 1814). According to the terms of the Treaty of Fort Jackson (August 9, 1814) - did you ever hear about this treaty in your history classes? - the Creeks gave up much of what is now the State of Alabama, and a chunk of south Georgia bordering Florida.

During this period, Florida was a Spanish territory. The Florida-Georgia border was considered insecure, especially for southern slaveholders, because Florida was a haven for runaway slaves. Some of the Creek bands who escaped from the Creek War wound up in Florida, building towns, and sheltering runaway slaves. In addition, our government considered Spain as a security threat.

As I mentioned earlier, the official White House biography is silent on what Andrew Jackson was doing between his victory in the Battle of New Orleans in 1815 and his inauguration as President in 1828. He didn't just retire to the Hermitage and sip mint juleps. Most of the time he was fighting Indians, including the Seminoles. The First Seminole War erupted over forays staged by U.S. authorities to recapture runaway black slaves living among Seminole bands, who stiffly resisted. In 1818, Major General Andrew Jackson was dispatched with an army of more than 3,000 soldiers to Florida to punish the Seminole. After liquidating several native settlements, then executing two British traders held for reportedly encouraging Seminole resolve, General Jackson captured the Spanish fort of Pensacola in May 1818 and deposed the government. Jackson did more than fight the Seminoles. He instigated a crisis between the United States and Spain, making war without any authorization from Congress or the President (Monroe at the time). His strategy worked, because in 1819, as a result of the Adams-Onis Treaty, Spain ceded Florida to the United States.

The Seminoles continued to be a problem for the United States. In 1823, under the terms of the Treaty of Moultrie Creek - another one you've probably never heard of - some of the Seminoles agreed to relocate to a reservation area in central Florida. This still didn't stop conflict between Seminoles and whites over the treatment of runaway slaves.

After the Indian Removal Act of 1830 was passed, the official United States policy under President Jackson was relocation to Oklahoma. I already discussed how the Cherokees were relocated. They went peaceably, with horribly tragic results. The government expected the same scenario with the Seminoles. In 1834, by the Treaty of Payne's Landing - another treaty that I'm sure is on the tip of your tongue - the Seminoles were ordered to relocate to Indian Territory in 1835. In 1835, President Jackson ordered the Seminoles to start moving west. Here's how the Wikipedia article describes it:

In March 1835 Thompson (Jackson's agent) called the chiefs together to read a letter from Andrew Jackson to them. In his letter, Jackson said, Should you ... refuse to move, I have then directed the Commanding officer to remove you by force. The chiefs asked for thirty days to respond. A month later the Seminole chiefs told Thompson that they would not move west. Thompson and the chiefs began arguing, and General Clinch had to intervene to prevent bloodshed. Eventually, eight of the chiefs agreed to move west, but asked to delay the move until the end of the year, and Thompson and Clinch agreed

Five important chiefs resisted the order. One young warrior, Osceola, said:

The white man shall not make me black. I will make the white man red with blood; and then blacken him in the sun and rain ... and the buzzard live upon his flesh.

Osceola made good on his threat. Although about 3,000 Seminoles voluntary relocated to Indian Territory following their version of the Trail of Tears, Osceola's band of 300 to 500 insurgents managed to hold off a sizeable fraction of the United States Army from 1835 to 1842. One estimate of the cost of the Seminole War was $30,000,000 to $40,000,000 - a huge sum for its time. At its height, the Army had 9,000 soldiers pursuing the Seminole bands. There were significant battles in what is now Dade and Broward Counties in South Florida. The Second Seminole War was the most expensive Indian war in United States history, lasting longer than any war the United States fought between the American Revolution and Vietnam.

The story of Osceola's capture by deceit was considered a black mark in American military history at the time. Here's the story from the Wikipedia article about Osceola:

On October 21, 1837, on the orders of U.S. General Thomas Sidney Jesup, Osceola was captured when he arrived for supposed truce negotiations in Fort Payton. He was imprisoned at Fort Marion, St. Augustine, Florida. Osceola's capture by deceit caused uproar even among the white population and General Jesup was publicly condemned. Opponents of the contemporary administration cited it as a black mark against the government. The next December, Osceola and other Seminole prisoners were moved to Fort Moultrie, South Carolina. There painter George Catlin met him and convinced him to pose for him for two paintings. Robert J. Curtis painted an oil portrait of him. These pictures inspired a number of other prints, engravings and even cigar store figures. Afterwards numerous landmarks, including Osceola Counties in Florida, Iowa, and Michigan, have been named after him, along with Florida's Osceola National Forest. Osceola died of malaria on January 20, 1838 less than three months after his capture, and was buried with military honors.

By 1843, both the Seminoles and the US army were exhausted. No formal treaty ended the war. The Seminoles are the only tribe that never signed a peace treaty with the United States government. The remnants of the Seminoles retreated to the Everglades and the Army units withdrew. Peace reigned for a while. Florida entered the Union as a slave state in 1845. The government tried to remove the remaining Seminoles from Florida, prompting a third Seminole war from 1855 to 1858. Scattered bands of Seminoles lived off the land until well into the 20th century.

In recent years, the Seminoles of Florida have recovered. The tribe runs a number of profitable enterprises, such as gambling casinos, eco-tourism, cheap tobacco shops, and resorts, as a visit to their Web site shows. If you're ever in Hollywood, Florida, not too far from Fort Lauderdale, pay a visit to their headquarters on Stirling Road and I-441. The logo of the Florida Seminoles features Chief Osceola - it has the official seal of approval of the Seminole tribe. There are also about 3,000 Seminoles in Oklahoma.

How the Cherokees Were Removed to Oklahoma

2006-11-24T10:48:00.000-08:00

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This episode, certainly appropriate for Thanksgiving, describes how the Cherokee Indian Nation, the original inhabitants, for thousands of years, of Georgia, North Carolina, Alabama, and other southeastern states, were ethnically cleansed (the term used at the time was "removed") to Indian Territory, a dry prairie, a totally hostile environment, even though they had lived in peace with their white neighbors. I described the legal basis, the doctrine of acquisition by conquest created by John Marshall and the Supreme Court, for this in the last episode.

The forced "removal" of the Cherokees, along what is now called the Trail of Tears (in the Cherokee language, it's Nunna daul Isunyi—"the Trail Where We Cried.") began on May 23, 1838, from near what is now Chattanooga, Tennessee. This is merely one horrible act (and hardly the final one) in a drama filled with lies, deception, broken promises, and (yes) good but misplaced intentions in our Native American policy. Professor Francis Paul Prucha, SJ, of Marquette University, a distinguished historian of our Native American policy, wrote that there were only four possible solutions to the Indian-white man conflict: genocide (exterminate the race), integration (Indians live like white people), protect the natives where they lived, or removal. By 1838, genocide had actually worked, for the most part, in the New England and Middle Atlantic states. For example, King Philip's War (1675-1676), one of the most bloody and costly in American history. It resulted in the elimination of The Narragansett, Wampanoag, Podunk, Nipmuck, and several smaller tribes, (about 3000 Indian soldiers in all) while the Mohicans were greatly weakened. Integration was not what the Indians really wanted. Protecting the natives where they lived was not practical because the white squatters were gobbling up Indian land and the United States did not have enough military might, or will for that matter, to protect the tribes. So the most humane option, according to Andrew Jackson and the other authors of Indian removal, was for the Indians to "relocate" - sort of the Final Solution of the Indian Question - resettle to a land where the Indians could live according to their tribal ways and the whites could "develop" the lands from which the Indians were emptied.

There was also a security aspect to Indian removal. Like some of us believe that all Muslims in the United States are a threat to our national security, Indians were regarded as a security threat as well. This argument had some merit. It's no accident that the war called the Seven Years War in Europe (1756-1763) was called the French and Indian War in the United States. Indeed, many of the Indian tribes in the west (the Iroquois, siding with the British, were a significant exception) sided with the French against the British colonists. Pontiac's Rebellion (1763-1766) was an uprising by Indians around the Great Lakes area, against the harsh treatment of the Indians by Lord Jeffrey Amherst, the namesake of Amherst College in Massachusetts. The British used Indian spies against the Americans in the Revolutionary War.

After our independence, there was constant tension and a number of wars fought between the white settlers and the Indians. Fighting Indians was sort of a rite of passage for many political leaders in the first half of the 19th century. During the War of 1812, Chief Tecumseh attempted to unite the Indians in the west into a coalition to drive the white settlers out. Tecumseh's army was defeated at the Battle of Tippecanoe, by the Governor of the Indiana Territory, William Henry Harrison, who became a hero as a result of this victory. Harrison ran successfully under the slogan "Tippecanoe and Tyler too", to become our 9th President in 1841. Unfortunately for Harrison, he only served one month because he died of pneumonia because of all the job seekers who beseiged him when he assumed the office of the President. One of the less publicized parts of Abraham Lincoln's biography is that he was a soldier in the Black Hawk War (1832), which drove the Sac and Fox Indian tribe out of Illinois, as a young man. Another President, Zachary Taylor, also fought in the Black Hawk War. So you can think of Jackson's Indian policy as being "tough on defense" - a very popular position in the "red state" West.

By 1830, the Cherokee Nation was the largest Indian group east of the Mississippi. When I call them a nation, I'm only using the term they called themselves. They had established a functioning government, with its capital at New Echota, Georgia; a written Cherokee language developed by Sequoyah; and even a Cherokee Constitution, modeled after the United States Constitution. The Constitution was written by principal Chief John Ross and Major Ridge, the speaker of the Cherokee National Council, and adopted on 26 July 1827, declaring the Cherokee Nation to be a sovereign and independent nation. Many Cherokees became Christian. As I mentioned in my last episode, they petitioned the Supreme Court, in Cherokee Nation vs. Georgia, as a sovereign nation, even though the Marshall Court struck down their petition. That's not the end of the story - more on that later. The point is that the Cherokees were not savages. They adapted to white ways, creating a government far more functional than the current one in Iraq.

Why did many Georgians want Cherokee removal? After all, the Treaty of Hopewell (1785), signed between the Cherokees and the US government, defined an agreed boundary between the Cherokee and United States nations. Our government encouraged the Cherokees to develop white ways, and as we have seen, they did. With the Compact of 1802, the state of Georgia relinquished to the national government its western land claims (which became the states of Alabama and Mississippi). In exchange, the national government promised to eventually conduct treaties to relocate those Indian tribes living within Georgia, thus giving Georgia control of all land within its borders. In 1823, Creek chief William McIntosh, as an agent of the United States, attempted to bribe prominent Cherokee leaders to make major land cessions to the US. The $12,000 offer was rejected. In 1824, the Legislative Council sent John Ross, Major Ridge and other Cherokee leaders to Washington in an attempt to persuade President James Monroe to negate the Georgia Compact of 1802. The meeting ended in a stalemate, with the Cherokee refusing to cede their lands and Monroe refusing to negate the Georgia Compact.

The land claims issue heated up after gold was found on Cherokee land in north Georgia, sparking the Georgia gold rush - this before the California gold rush. In 1829, the Georgia legislature requested the US government to enforce the Compact of 1802, to confiscate Cherokee land. In 1830, at the urging of President Jackson, Congress passed the Indian Removal Act, which authorized Congress to make treaties with the Indian tribes to exchange their ancestral land for land west of the Mississippi. The Act did not remove any Indians. It just legalized their resettlement, eventually to Indian Territory, the current state of Oklahoma.

The first removal treaty signed after the Removal Act was the Treaty of Dancing Rabbit Creek on September 27, 1830, in which Choctaws in Mississippi ceded land east of the river in exchange for payment and land in the West. The overwhelming majority of Cherokees opposed removal. But Jackson was persistent. He negotiated a treaty with a tiny, unrepresentative faction of the Cherokees, called the Treaty of New Echota, in 1836. When the Cherokees found out about this, they sent a petition with 16,000 signatures to Washington to express their opposition to the treaty. The Treaty was ratified by the Senate, as all treaties must be, by a vote of 31-15, which meant (a 2/3 majority being required to ratify a treaty) that the treaty passed by one vote. Eventually, most of the principal negotiators of the treaty were assassinated by other Cherokees. Nevertheless, having an authorized treaty negotiated by a tiny fraction of the Cherokee nation, the United States government proceeded with Cherokee removal. The actual removal was due to start two years after the Treaty of New Echota, in May, 1838. By that time, Jackson was out of office. The removal was done by Martin Van Buren, Jackson's vice-president, who became President in 1837.

There was significant opposition, especially in New England, against the Indian Removal Act. The famous essayist Ralph Waldo Emerson wrote a letter protesting the Cherokee removal to President Van Buren. Here's an excerpt:

The newspapers now inform us that, in December, 1835, a treaty contracting for the exchange of all the Cherokee territory was pre-tended to be made by an agent on the part of the United States with some persons appearing on the part of the Cherokees; that the fact afterwards transpired that these deputies did by no means represent the will of the nation; and that, out of eighteen thousand souls composing the nation, fifteen thousand six hundred and sixty-eight have protested against the so-called treaty. It now appears that the government of the United States choose to hold the Cherokees to this sham treaty, and are proceeding to execute the same. Almost the entire Cherokee Nation stand up and say, " This is not our act. Behold us. Here are we. Do not mistake that handful of deserters for us ; " and the American President and the Cabinet, the Senate and the House of Representatives, neither hear these men nor see them, and are contracting to put this active nation into carts and boats, and to drag them over mountains and rivers to a wilderness at a vast distance beyond the Mississippi. And a paper purporting to be an army order fixes a month from this day as the hour for this doleful removal.

Nevertheless, under the command of General Winfield Scott, the removal proceeded. Initially, the removal was supervised by the army, but later the Cherokees themselves supervised their own removal. There actually is not one Trail of Tears but instead, a number of trails, as this map shows. Estimates of the number of Cherokee who made the trek vary, although a number between 15,000 and 17,000 is generally accepted. Somewhere between 2,000 and 4,000 Cherokees perished along the route. The winter was especially harsh and frostbite deaths were common. The Cherokees crossed frozen rivers in the dead of winter wearing light clothes and moccasins. Food was scarce. The destination, later becoming Tahlequah, Oklahoma, was harsh and desolate. The Cherokees had to compete with other Indian tribes for food and water.

Amazingly, the Cherokees reconstituted themselves and even had periods of prosperity. They are now the largest organized Indian tribe in the United States. There have been some leadership crises in recent times, so in many respects they have adopted the white man's ways all too well. They say that history repeats itself, first as tragedy, and second as farce. Someone added "and third, as tourist trap". These days, you can hike or drive the Trail of Tears National Historic Trail. I'm sure that, along the way, you can eat what the Cherokees couldn't eat, stay at the Trail of Tears Sports Resort, and buy an authentic Cherokee squaw doll. There are also a number of Cherokee bands outside of Oklahoma. In North Carolina, a number of Cherokees escaped from the Federal manhunt or were located in a remote area outside the dragnet. Today, you can visit Cherokee, North Carolina, home of the Eastern Band of Cherokees, officially recognized by the US government. There's great hunting and fishing, demonstrations of native arts and crafts, a museum, gift shops, and more. It's important that we don't forget this incredibly awful chapter of our history, because it could repeat itself.

The Legal Basis for Native American Ethnic Cleansing

2006-11-21T18:12:00.000-08:00

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This is the first of two episodes in which I will discuss how we cleared out the native Americans (I'll use the word Indians, in spite of it's political incorrectness, in my discussion because that was the word used at the time), from the lands east of the Mississippi River. It's a sad and embarrassing story which has largely been papered over in our official accounts, such as in high school, and even some college, textbooks; and, as I mentioned in the last episode, in Jackson's official White House biography. Last night, I saw the football game between the New York Giants and the Jacksonville Jaguars, played in Jacksonville, Florida. Jacksonville is named after the central figure of our story, Andrew Jackson, the 7th President of the United States. Jackson is responsible for the US conquest of Florida, our purchase of Florida from Spain in 1819, and he was military governor of Florida in 1821. He cleaned out Florida of the native Seminoles and Creek Indians. So it's not inappropriate that northern Florida's largest city is named after him. He's certainly portrayed as an American hero, he certainly "opened the West" to settlement for American white people, and he acted out of what he thought of as noble intentions. But in the process, the man the Indians called "Sharp Knife" also became the architect of Indian removal, which in its effect was little different from the ethnic cleansing policy of Slobodan Milosevic or the forced removal of the Armenians into the desert by the Turks during World War I. In this episode, I will discuss the legal basis for our Indian ethnic cleansing policy. The featured player here is none other than John Marshall, the original judicial activist who did so much to expand Federal power into areas the Framers never thought of. In the next episode, I will explain how Andrew Jackson used these legal tools, as well as some others that he created, to remove the Indians, in the name of national security, from land that was their home for centuries to the barren, unproductive plains west of the Mississippi, along the Trail of Tears.

The Constitution refers to Indians directly only once, in the Commerce Clause, part of Article I, Section 8, which gives Congress the power:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

With respect to the Indian tribes, this raises more questions than it answers. First, Indian Tribes have a different status from "foreign nations". They are clearly some type of nation because both the Federal government and the states had signed "treaties" with Indian tribes. For example, On November 28, 1785, the Treaty of Hopewell was signed between the US Representative Benjamin Hawkins and the Cherokee Indians. The treaty laid out a Western boundary of settlement for the Colonials. In 1786, the US government also signed treaties with the Choctaws and the Chicasaws. Treaties are normally signed between sovereign nations. What kind of nation did we think the Indian tribes were? If they did not have full sovereignty, what was its scope?

After the French and Indian War ended, in 1763, the British Parliament enacted the Proclamation of 1763. Many of the Indian tribes had allied with the French in the French and Indian War. Parliament, desiring peace with the tribes and expansion of the profitable fur trade in the West, proclaimed a line, called the proclamation line, roughly corresponding with the Appalachian mountains. British colonists could not settle west of that line. In addition, Indian tribes and white settlers could not enter into property contracts because the British government believed that native lands belonged to the Crown. Clearly, the British saw the Indian tribes as enough of a "nation" that they could negotiate treaties with them, although not enough of a nation that it doesn't own the land underneath them.

The colonists felt constrained to the coastal areas by these rules. The restrictions on land purchases were as much of a restriction on American liberty as, say, the Stamp Act. Land speculation in pre Colonial America was something like venture capitalism today - a way to make easy money. Our Founding Fathers were eager participants in these ventures. George Washington, for example, was one of the largest landowners in Virginia, listing his occupation as "surveyor and mapmaker". Washington, as President, chose the site for the District of Columbia. It was probably not an accident that the District was near much property that Washington and his family owned. By happy coincidence the District of Columbia was both a great location for our nation's capital and a profitable venture for the Washington family.

After the Revolution, with the Proclamation of 1763 null and void, there were a number of schemes to purchase western lands, which led to disputes about whether land purchases, say from an Indian tribe to a white settler, were legal. If an Indian tribe is a nation, capable of entering into a binding treaty with the United States, surely the tribe can sell some of its land to whoever it wants to, right?

Well, not exactly. The John Marshall Supreme Court grappled with this, and other Indian related questions, defining the legal status of Indian tribes in a way that made Jackson's Indian ethnic cleansing legal and constitutional. The most important case, Johnson v McIntosh, 1823, (you'll see McIntosh written as M'Intosh) involved two conflicting land claims over a vast area of what is now part of the states of Illinois and Indiana. Here are the facts of the case, from the Wikipedia article:

Thomas Johnson bought land from Piankeshaw Indian tribes in 1773 and 1775. The defendant, William M'Intosh (pronounced "McIntosh"), subsequently obtained a land patent to this same land by the United States government. The plaintiffs, lessees of the son and grandson of Thomas Johnson who had inherited the land in the interim, brought an action for ejectment against Mr. M'Intosh in the Illinois District Court, claiming that it was theirs by virtue of their grandfather's purchases in 1773 and 1775. Plaintiffs contended that their title ran directly from the Native Americans who owned the property and therefore it was superior to defendants’ title. Defendant M’Intosh, on the other hand, maintained that the land belonged to him by virtue of the United States’ land patent. The District Court of Illinois the district court held that defendant M’Intosh’s claim was superior on the grounds that the Piankeshaw were not able to actually convey the land because they never “owned” it in the traditional sense of the word. The Plaintiffs requested review of the decision which granted title to the property in that state to defendant M’Intosh on the basis of the land grant from the United States.

The Supreme Court unanimously ruled that the United States government grant was superior. The "title search", so to speak, by the Court, started in 1609, when the Indians inhabited the entire land and had title to it. The Indians, according to the decision, owned:

the whole of the territory, in the letters patent described, except a small district on James River, where a settlement of Europeans had previously been made, was held, occupied, and possessed, in full sovereignty, by various independent tribes or nations of Indians, who were the sovereigns of their respective portions of the territory, and the absolute owners and proprietors of the soil; and who neither acknowledged nor owed any allegiance or obedience to any European sovereign or state whatever.

So why couldn't they sell their property, like any other owner? Marshall, as in Marbury v Madison, where he created the principle of judicial review where it hadn't existed before, creates the theory of "acquisition by discovery". Marshall wrote:

However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear; if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned. So, too, with respect to the concomitant principle, that the Indian inhabitants are to be considered merely as occupants, to be protected, indeed, while in peace, in the possession of their lands, but to be deemed incapable of transferring the absolute title to others.

The Indians live on the land "merely as occupants", while they are "in peace". They do not have title to the land. They only can stay on the land at the suffrance of the ultimate owner, the United States of America. In The Cherokee Nation v The State of Georgia (1831), the Court went further. When President Jackson, acting on the basis of the Indian Removal Act of 1830, ordered the Cherokee tribe to move from their ancestral home in Georgia, the Cherokees, acting as a nation, appealed directly to the Supreme Court to stop it. The Marshall Court ruled that the Cherokees were not a sovereign nation but instead a "denominated, domestic, dependent nation", and denied the Cherokees a hearing. Marshall wrote:

They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases. Meanwhile they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.

They look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the president as their great father. They and their country are considered by foreign nations, as well as by ourselves, as being so completely under the sovereignty and dominion of the United States, that any attempt to acquire their lands, or to form a political connexion with them, would [30 U.S. 1, 18] be considered by all as an invasion of our territory, and an act of hostility.

An excellent, detailed book about the history of the doctrine of discovery and acquisition by conquest is Conquest by Law: How the Discovery of America Dispossessed Indigenous People and their Lands, by Professor Lindsay G. Robertson, Professor of Law at the University of Oklahoma. This "discovery doctrine" has been enshrined not only in our law but in the laws of other countries, such as Canada and Australia, in treating their native population.

The Election of 1824 - When (Some of) The Candidates Decided the Outcome

2006-11-16T17:18:00.000-08:00

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Picture this: an election where there was only one party, but with four main candidates all from that party. The people in 3/4 of the states get to vote for Presidential electors who are supposed to vote for the candidate of their choice. In the other 1/4 of the states, no elections are held for President because the legislature gets to pick the electors. None of the 4 candidates gets a majority of the vote, which throws the election into the House of Representatives. In a back room deal, the candidate who received the most popular votes in the states where elections were held for President is frozen out by the other 3 candidates, who choose one of their own as President, with the understanding that he appoint another of them as Secretary of State That's roughly what happened in the Election of 1824, an election which ranks with the elections of 1800, 1876, and 2000, as examples of why our Presidential election process is, and has always been, seriously flawed.

In 1824, there was only one national political party, called the Democratic-Republicans, which was the legacy of Jefferson's Republican party. The other political party, the Federalists, had been discredited by their opposition to the War of 1812. By 1816, they had disappeared, so that James Monroe, had an easy time becoming our fifth President. In the Election of 1816, Monroe, President Madison's Secretary of State, received 183 electoral votes to 34 electoral votes for his Federalist opponent, Rufus King. In the Election of 1820, Monroe received every electoral vote except one. Monroe's Presidency was called the era of good feelings because of the lack of controversy surrounding his election.

Monroe had opposed the ratification of the Constitution, joining the Virginia anti-Federalists. He certainly wasn't alone in Virginia. Thomas Jefferson and Patrick Henry also had opposed ratification, believing that the Constitution gave too much power to the central government. Yet, like Jefferson, he ended up expanding Federal power as President. Monroe's contribution was the Monroe Doctrine of 1823, in which he declared that the United States would take action against any European power that attempted to colonize the Americas (including Latin America). Certainly this was a bold step, a young country flexing its muscle.

By 1824, the President and both houses of Congress were all members of the same party. No matter - the Era of Good Feelings came to an abrupt end as a result of this tumultuous election. The winner of the popular vote (in those states where a Presidential vote was conducted) was Andrew Jackson, the war hero from Tennessee. Most of the standard textbooks cite Jackson's rise to national prominence as a result of the Battle of New Orleans, a battle which took place after the Treaty of Ghent, ending the War of 1812, was signed, and so was totally unnecessary. His record after that is not emphasized so much, or is omitted, as it is in the official White House biography of Jackson. Most of his military activity during (and after) the War of 1812 was centered around a different enterprise: fighting the Indian tribes. Jackson's traditional nickname is Old Hickory. From the Indian point of view, he has a different nickname - Sharp Knife - because of his viciousness and cruelty during the so-called Indian wars. During the War of 1812, commanding the Tennessee militia during the Creek War, he took on the Creek Indians and defeated them at the Battle of Horseshoe Bend. His main accomplishment as an Indian fighter occurred during the First Seminole War, in which he conquered Florida. Indeed, after the Adams-Onis treaty of 1819, in which Spain ceded Florida to the United States, Jackson became military governor of Florida in 1821, starting a regime which can be described as Indian ethnic cleansing. It was for these activities, more than the Battle of New Orleans, that gave Jackson his popularity in the Election of 1824.

The other potential candidates were John Quincy Adams of Massachusetts, the Secretary of State; William H. Crawford of Georgia, the Secretary of the Treasury; Congressman Henry Clay of Kentucky, the Speaker of the House; and John C. Calhoun of South Carolina, the Secretary of War. Crawford received the nomination of the caucus in Washington, but it was sparsely attended and was widely attacked as undemocratic. In 1823, Crawford suffered a stroke. Even though he recovered in 1824, this crippled his bid for the presidency. Calhoun initially was a serious candidate for the presidency, but he opted instead to seek the Vice Presidency and backed Jackson after seeing the popularity of Crawford in the South. Both Adams' and Jackson's supporters backed Calhoun, giving him an easy majority. Remember, the 12th Amendment mandated separate voting for President and Vice President, so that made Calhoun a shoo-in for Vice President.

Since no candidate for President received a majority, the 12th Amendment mandated that the election be decided by the House of Representatives among the candidates (Jackson, Adams, and Crawford) receiving top 3 electoral votes. Clay, who received the 4th highest number of electoral votes, was not among those to be considered. However, he was Speaker of the House, and so had considerable influence. Adams' victory shocked Jackson, who expected that, as the winner of a plurality of both the popular and electoral votes, he should have been elected President. When President Adams appointed Clay his Secretary of State, essentially declaring him heir to the Presidency—Adams and his three predecessors had all served as Secretary of State—Jackson and his followers accused Adams and Clay of striking a "corrupt bargain". The Jacksonians would campaign on this claim for the next four years, ultimately leading to Jackson's victory in the Adams-Jackson rematch in 1828.

After John Quincy Adams was defeated (he was so embittered against Jackson that he refused to attend Jackson's inauguration, just as his father, John Adams, refused to attend Jefferson's inauguration in 1801), he ran for Governor of Massachusetts and lost, and then became a representative from Massachusetts from 1831 until his death in 1848. His character became a cameo role in the Stephen Spielberg movie, Amistad, because he represented the mutineers before the Supreme Court and won their freedom. Henry Clay, try as he might, never became President but had one of the most distinguished careers in the history of the House of Representatives. He authored both the Missouri Compromise of 1820 and the Compromise of 1850, attempting to hold North and South together over the question of slavery. In spite of his efforts, the country was ripped apart by the issue, triggering the Civil War and southern secession after the election of Lincoln in 1860.

Roe v Wade - The Inside Story

2006-11-14T11:03:00.000-08:00

Read the text of all my episodes at http://www.irakrakow.com/constitution.

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Here's a Final Jeopardy Question: "Who were the only two Supreme Court Justices who were kindergarten classmates?" The Final Jeopardy Answer: "Warren Burger and Harry Blackmun". Both Burger and Blackmun were appointed by President Nixon who, in 1972, campaigned against a woman's right to an abortion. In Supreme Court history, they were known as the Minnesota Twins, a reference both to the baseball team and the Twin Cities of Minneapolis and St. Paul. Yet, on January 22, 1973, one day after Nixon was inaugurated for his second, and ultimately incomplete, term, the Supreme Court, with Warren Burger as Chief Justice and the majority opinion authored byJustice Harry Blackmun, handed down the historic Roe v. Wade decision, establishing a woman's right to an abortion as a constitutional right. How did this happen? The story, many of the details of which were researched by Bob Woodward and Scott Armstrong in their book The Brethren: Inside the Supreme Court, shows that the 9 justices, far from simply sitting around a table reading law books all day and impartially judging each case based on the Constitution, are, like any 9 colleagues in an office, human beings with varying degrees of ego, intelligence, and jealousy. The story also brings to light some of the inner workings of the Court - workings that were never thought of by the Constitution's framers but which nevertheless are vital to how the Court arrives at its decisions.

The Supreme Court is a different type of workplace than your typical office. None of the justices, in theory, get to pick each other. Instead, according to how the Constitution set the process up, the President nominates each Justice, and he (or she) is confirmed (or not) with the "advice and consent" of the Senate. The justices who decided Roe v. Wade were nominated by 5 different Presidents - Franklin D. Roosevelt (William O. Douglas), Eisenhower (William Brennan and Potter Stewart), Kennedy (Byron R. White), Johnson (Thurgood Marshall), and Nixon (Burger, Blackmun, Lewis Powell, and William Rehnquist). Not only were the Presidents different in personality and background, so were there Supreme Court appointees. The difference, of course, is the the Supreme Court justices are forced to work together, decide on cases which affect all of our lives (sometimes to the point of life and death - a death penalty case in 1972, decided by 5-4, determined whether or not 700 people on death row would live or die), and, on occasion, even show that they act as one harmonious whole.

Sometimes, these petty prejudices and egos become public knowledge. There is an annual tradition that at the beginning of each term, the justices sit for a photograph. You've probably seen a few of them - the justices are solemn faced in their black robes, sitting there like high school seniors in a graduation picture. In 1924, Justice James McReynolds, a racist and anti-semite, refused to sit next to Louis Brandeis, the first Jewish Supreme Court Justice. By custom, which dictates many of these Supreme Court practices (including things like who gets the coffee), he belonged there on the basis of seniority. The result: the 1924 Supreme Court Official Picture shoot was cancelled. McReynolds also refused to speak to Brandeis for three years following Brandeis's appointment and when Brandeis retired in 1939, did not sign the customary dedicatory letter sent to justices on their retirement. Yet they still managed to decide critical cases for decades.

The Court that decided Roe v. Wade did not have this type of problem. However, there was plenty of in-fighting and ego bruising battles. Nixon appointed Burger in 1969 to succeed Earl Warren, who was perceived as a liberal interventionist, especially in areas like school desegregation and civil rights, as Chief Justice. Nixon wanted the Court to follow a more conservative, go-slow attitude, especially in civil rights. This was the era of school busing and integration, real political hot buttons. Burger was a conservative Minnesota judge. The Chief Justice, although he has the same one vote as any of the other justices, has a chance to put his (or her, even though there haven't been any woman Chief Justices yet) stamp on the Court. We tend to think of "the Warren Court", "the Burger Court", "the Rehnquist Court", or "the Roberts Court", even though the composition of the court changes during the Chief's term due to death, retirement, and resignation.

The Chief's influence, however, is greater than any of the other justices. One example, which is important to our story, is that the Chief gets to select the Justice who writes the majority opinion, if the Chief is in the majority. However, if the Chief is not in the majority, the senior associate justice (in this case, Justice Douglas), gets to select the Justice who writes the majority opinion. The selector can, of course, select himself. Since the author of the majority opinion gets to shape the law and precedents, this is important.

Appointed in 1969, Burger had only been Chief Justice for a short time. His kindergarten playmate, Harry Blackmun, was appointed in 1970, a relatively short time compared to, say Justice Douglas who had been on the bench since 1939. Burger and Blackmun continued their friendship, as they also went to the same elementary school, in Dayton's Bluff, a working class suburb of St. Paul, Minnesota. Even though they went to different high schools and their law careers sent them their separate ways, they remained in close contact. Blackmun was best man at Burger's wedding in 1933, for example. So at the time of Roe v Wade, both Burger and Blackmun still had not placed their stamps on the Court.

How Blackmun came to sit on the Supreme Court is a story inside our story. Blackmun was hardly Nixon's first choice to replace Justice Abe Fortas, who resigned under a cloud of scandal in 1969. Fortas, while sitting on the Court, had been receiving a $20,000 a year payment as a consultant for the Wolfson Foundation. Wolfson had been convicted of securities fraud, serving a year in prison. When it became public knowledge that Fortas was on the payroll of a convicted felon's foundation, he was forced to resign.

Blackmun was Nixon's third attempt at appointing the replacement for Fortas. Nixon first nominated Clement Haynsworth, from Greenville, South Carolina, a judge on the Fourth Circuit Court. It turned out that Haynsworth had decided on cases in which he had a financial interest, and he had expressed segregationist views. The Senate, controlled by the Democrats, defeated his nomination, 55-45, with 17 Republicans also voting against him.

Nixon's next nominee was Judge Harold Carswell, from Georgia, a judge on the Fifth Circuit Court. Nixon, persisting in his southern strategy of hiring judges who wanted to go slow on integration, went a bit too far on this nomination. It turned out that Carswell had expressed white supremacist views while running for office in Georgia. He fought against integration of a public golf course in Georgia. The American Bar Association labeled Carswell "mediocre", which prompted one of his Senate supports, Roman Hruska, to proclaim, "Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they?". The Senate killed the Carswell nomination, 51-45. Carswell eventually retired from the bench, unsuccessfully ran as the Republican Senate candidate in Georgia, and was arrested for exposing himself to a boy in a mens room.

After twice being bloodied so badly, Nixon needed a nominee who could pass through without a fight. Chief Justice Burger, according to Woodward, was also concerned that the prestige of the Court would suffer as well. Blackmun, Burger's kindergarten playmate, held steady, conservative views. Before becoming a judge, Blackmun was the chief lawyer for the Mayo Clinic, the prestigious Minneapolis medical organization. This would turn out to be important for his Roe v Wade decision. The background check, done by William Rehnquist, who was then Assistant Attorney General but later became Blackmun's colleague on the Supreme Court, didn't turn up any red flags. Blackmun, Nixon's third choice, was confirmed unanimously, without incident.

The Roe decision, from the start, was designed to be the signature decision for both Burger and Blackmun. Who was Jane Roe? The case originated in Texas in March 1970 at the behest of young attorneys Linda Coffee and Sarah Weddington. Coffee and Weddington filed suit on behalf of Norma L. McCorvey ("Jane Roe") who claimed her pregnancy was the result of rape. Wade was the Texas Attorney General, responsible for enforcing the Texas abortion law. Jane Roe is the female equivalent of John Doe, a name used to hide someone's real name. The appeal process, of course, took a lot longer than McCorvey's pregnancy, and she ended up delivering the baby and surrendering the child for adoption.

This fact brought up a legal issue, relevant to the Supreme Court reviewing the case. The process, called "granting cert", requires that the appellant (the person making the appeal) have "standing" - i.e., that he or she woould be affected by the decision. Since by the time the Court had the cert petition, McCorvey had delivered the baby, did she have standing? In granting cert, the Court reasoned that because of the length of the appeals process, nobody would ever have standing and they could therefore never rule on the underlying abortion issue. Since they viewed the issue as meriting review, they granted the cert petition.

Roe v Wade was first argued on December 13, 1971. It was reargued on October 11, 1972. The decision was handed down on January 22, 1973. We're talking over a year here. Blackmun, who was known for his delays in writing opinions, took his time on this one, with extensive drafts and revisions. His early drafts focused neither on the right of the mother to have an abortion, nor on whether the fetus is a living being, entitled to 14th Amendment protection. Instead, Blackmun, the former chief lawyer for the Mayo Clinic, focused on the freedom of the doctor to perform abortions. Blackmun had worked closely with doctors, respected them highly, and wanted to ensure that they could practice medicine to the maximum of their professional skills. He considered that the Hippocratic Oath forbade abortions, but in practice abortions had been practiced throughout recorded history, from ancient Egypt and Greece to the present. The relevant sentence in the Hippocatic Oath is:

I will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner, I will not give to a woman a pessary to produce abortion

In fact, he spent the summer of 1972 buried in the library of the Mayo Clinic researching this history. This aspect of the abortion controversy is overlooked today. States such as Pennsylvania, as I described in my episode about Planned Parenthood v Casey, can pass laws dictating what doctors may or may not say and do in abortion matters.

In later drafts, Blackmun added references to the right of privacy. He was influenced by Justice Douglas, who had written about the penumbras, i.e., implied rights to privacy, in Griswold v Connecticut, a 1965 case involving a Connecticut contraception law that I discussed earlier. Douglas wrote the majority opinion in Griswold. He also was influenced by Justice Brennan, a Catholic who was a strong advocate of privacy rights and who would vote with the majority in Roe.

Blackmun had to come up with a formula that would not allow abortions up to actual birth. His fellow Twin, the Chief, had said that he would not join Blackmun's opinion if he did that. Blackmun had to determine at what point the fetus was viable, and at that point a state interest in its life was created. Blackmun came up with a "trimester" formula, dividing the 9 months of childbirth into 3 3 month periods, which both provided some guidance and dodged the question of when life starts. In the first trimester, he held, a woman had an unqualified right to an abortion. In the second trimester, the right to an abortion was still available but states could make laws to protect the health of the mother. In the third trimester, somehow the rights of the fetus get into play and by some magic the rights of the mother and the fetus had to be balanced. Abortions could even be prohibited. Blackmun didn't pretend to make a medical determination of when the fetus is viable, so he used words like "approximately" in his decision.

The 7-2 decision, Blackmun, Burger, Douglas, Brennan, Stewart, Marshall, and Powell in the majority; White and Rehnquist dissenting, was handed down on January 22, 1973. White and Rehnquist could not find any text in the Constitution that stipulated that a woman had a right to an abortion. The date is significant. Nixon, who had run against a woman's right to an abortion, had been inaugurated on January 20, 1973, two days before. The Chief has some leeway in announcing exactly when a decided case is publicly announced. Burger, the Chief Justice, ever the political animal, did not want to emabrrass Nixon with the Roe decision coming before Nixon's inauguration, so he delayed the decision date until two days after.

The abortion issue will be revisited in the Court's current session. The Court has agreed to rule in the Carhart case, in which a Nebraska doctor is challenging the state's ban on so-called "partial birth abortions". Perhaps the Court will rule definitively on when life begins and how much Blackmun's trimester formula applies. Perhaps not.

Reapportionment - The Failure of One Person One Vote

2006-11-06T10:57:00.000-08:00

Read the text of all my episodes at http://www.irakrakow.com/constitution.

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There has been an attempt to correct some of the flaws in the Constitutional system of allowing the states almost total freedom in deciding who is allowed to vote. I'm referring to the reapportionment movement, the way that each state legislature carves out Congressional districts. The movement is recent - it dates from the Civil Rights movement of the 1960s - and it involves significant reinterpretation of the Constitution by both the Supreme Court and Congress. I don't think it's worked too well.

First, some background. As I wrote in my episode about whether One Person, One Vote is a Constitutional right, according to Article 1, Section 2:

...the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.

Each state legislature gets to carve up its map to draw Congressional districts, as well as for legislative districts, with no Federal oversight. Each representative is elected within a geographical area called a Congressional district. Further in Article 1, Section 2, the Constitution states:

The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative;

Currently, there are 435 members of the House of Representatives. The number of representatives for each state is determined by a census, which is taken every 10 years. The first census occurred in 1790, and there has been a census every 10 years since. Every state has at least one representative. In 1911, Public Law 62-5 set the membership of the US House of Representatives at 433. When Arizona and New Mexico were admitted to the Union, the number went up to 435, which is what it is today.

The last census occurred in 2000. Congressional reapportionment occurs in the next year after the census. The last reapportionment took place in 2001. By a complicated formula, taking into account that each state gets at least one representative and using the Equal Proportions Method (described here), the result is that, roughly, there is one representative for about 650,000 people.

Of course, none of this applies to the District of Columbia, (Washington, DC, our nation's capital). Washington, DC, a city of about 550,000, has no Senators nor members of the House of Representatives. Instead, Congress has the total authority to dictate all laws relating to the District of Columbia. This is a specific, enumerated, Constitutional power, set up in Article 1, Section 8, which reads that Congress has power:

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;

Washington, DC is governed by the Council of the District of Columbia. The Council can pass any laws it wants but, as I mentioned before, Congress can veto any of them. So the residents of our nation's capital are governed by a Congressional dictatorship. It took a Constitutional amendment (the 23rd Amendment, ratified in 1961) to give the residents of the District of Columbia the right to select electors for President. If any of the 550,000 people who live in the District of Columbia want representation in Congress or the Senate, they can move to Wyoming (population 509,254, according to the 2000 census). I believe Dick Cheney is still a Wyoming resident. Meanwhile, they'll just have to get over it, just as they have since the Founding of our Nation.

Thus, in the year after the census (the year that ends in 1, the last year being 2001), each legislature finds out how many representatives it has and then can redraw its Congressional. From 1787 to 1962, this redistricting procedure was entirely up to the politicians in each state legislature. It's been a political process from the beginning. In fact, the term for prejudicial redistricting, called gerrymandering, originated in the early days of our republic. I'll quote from the wikipedia article:

Gerrymandering is a controversial form of redistricting in which electoral district or constituency boundaries are manipulated for an electoral advantage. The word "gerrymander" is named for the American politician Elbridge Gerry (July 17, 1744 – November 23, 1814),^[1] and is a combination of his name and the word "salamander," which was used to describe the appearance of a tortuous electoral district Gerry created in order to disadvantage his electoral opponents. "Gerrymander" is used both as a verb meaning "to commit gerrymandering" as well as a noun describing the resulting electoral geography. Ideally, it is pronounced with a hard G, as with Elbridge Gerry's actual name, but the "jerry" pronunciation is now the normal pronunciation [1].

Gerrymandering may be used to advantage or disadvantage particular constituents, such as members of a racial, linguistic, religious or class group, often in the favor of ruling incumbents or a specific political party.

Hey, it started in my state of Massachusetts. I think there should be a big statue of Elbridge Gerry in front of the State House. In practice, many state legislatures have been set up to favor rural interests over urban interests. Did you ever wonder why the capitals of many states are in some backwater town, far away from the largest city or cities in the state? How about Jefferson City, Missouri (population about 38,000, smaller than not only Kansas City, St. Louis, Joplin, Springfield, Independence, but also a number of suburbs of Kansas City and St. Louis)? Montpelier, VT, a flyspeck, by Vermont standards, compared with Burlington, Rutland, or Brattleboro? Pierre, South Dakota? Springfield, Illinois, compared with Chicago? Or even Albany, New York, a bit smaller than New York City, Buffalo, Syracuse, or Rochester?

The reason is that rural interests have dominated urban interests in state legislatures. These politicians have drawn the districts to favor the rural voters. This is yet another aspect of how far from "one person one vote" our electoral system became.

An attempt to change the redistricting process started in the 1960s, as part of the Civil Rights movement. After all, most of the rural areas in this country are overwhelmingly white. Blacks tend to live in the larger cities. There is a racial aspect to the imbalance between rural and urban areas.

Until 1962, the Supreme Court, when it agreed to rule on reapportionment cases, sided with the state legislatures, not touching their authority to do what they wanted. The Court considered that redistricting was a "political question", best left to the legislatures. The case of Baker v Carr, which Chief Justice Earl Warren believed was the most important case of his court (even more important than Brown v Board of Education which started the process of ending segregation), changed that. The facts of Baker v Carr were simple. A Tennessee Republican, Charles Baker, who lived in Memphis, the largest city in the state, complained that, although the Tennessee Constitution required that the state redistrict every 10 years, the state had not redistricted since 1900, 60 years before. By the time of the lawsuit, Shelby County, where Memphis is located, had 10 times the population as some of the rural districts of Tennessee. Thus he claimed that Memphis was underrepresented. The defendant, Joe Carr, was Secretary of State for Tennessee, responsible for enforcing redistricting law.

One might think this was totally obvious and that the Court should have ruled unanimously and quickly. However, as I mentioned before, the Court had refused to rule about political questions. One of the justices, Charles Whitaker, became so physically ill as a result of this case that his tenure as justice was shortened. He ended up not voting because he was so conflicted about the case. Justice Felix Frankfurter declared that "courts should not enter this political thicket". The final 6-2 decision (Warren, Brennan, Black, Douglas, Clark, and Stewart in the majority; Harlan and Frankfurter dissenting) held that the 14th Amendment implied that there was a fundamental "one person one vote" right and that when a case that threatens this right comes before the Court, the Court has a right to rule on it to protect that fundamental freedom. The word the Court used was "justiciable", which meant that the Court could intervene. In Baker, the Court remanded the case back to the district court in Tennessee, ordering it to come up with a redistricting plan.

And intervene the Court did. In 1964, two cases, Reynolds v Sims and Wesberry v Sanders, the Court actually ruled on whether specific redistricting plans in Georgia (legislative districts in Reynolds and Congressional districts in Wesberry) were constitutional. The Court established that "one person one vote", at least as far as redistricting is concerned, is the law of the land. The Court was effectively making law even though it was not elected to do that - it's purpose, at least according to the Constitution, was to interpret existing law.

Among the more egregious pre-Reynolds disparities (compiled by Congressman Morris K. Udall):

In Connecticut one House district had 191 people; another, 81,000.

In New Hampshire one township with three people had a state assemblyman; this was the same representation given another district with 3,244. The vote of a resident of the first township was therefore 108,000 percent more powerful at the Capitol.

In Utah the smallest district had 165 people, the largest 32,380 (196 times the population of the other).

In Vermont the smallest district had 36 people, the largest 35,000, a ratio of almost 1,000 to 1.

Los Angeles County, California; with 6 million people, had one state senator, as did the 14,000 people of one rural county.

In Idaho the smallest Senate district had 951 people; the largest, 93,400.

Nevada's 17 State senators represented as many as 127,000 or as few as 568 people, a ratio of 224 to 1.

The Voting Rights Act of 1964 was a landmark law that outlawed the poll tax and literacy tests, and additionally required Federal registration of voters in areas that had less than 50% of eligible minority voters registered. President Bush extended the Voting Rights Act by 25 years in 2006. It has many complicated provisions.

Nowadays, redistricting cases are a source of full employment for an army of constitutional lawyers. It's a bipartisan effort - both Democrats and Republicans file these cases depending on whether or not their side will gain or lose. Has all this established one person one vote on the ground? Hardly. If redistricting isn't a political question, I don't know what is. Here's a recent example: the Texas legislature redrew the Congressional districts in 2003. This was no accident. The Republicans won control of the Texas legislature in 2002 and they wanted to increase the number of Republican seats in Congress. Some interesting questions - this redistricting occurred not as a result of the census, but as a result of a state election. If, say, the Democrats win in the next election, can they re-redistrict to increase their Congressional representation? Texas had, in fact, redistricted in 2001, along with all the other states, as a result of the national census.

Another question - the League of Latin American Citizens charged that one of the districts - district 23 - was gerrymandered along racial lines. They sued Rick Perry, the governor of Texas. The case made it to the Supreme Court as League of Latin American Citizens v Perry (2006). The Court ruled, first, that Texas could redistrict in 2003; and second, that District 23 was unfairly drawn. To me, this opens the door to a lot of Supreme Court micromanaging of the redistricting process. By the way, the Republicans did pick up 6 seats in Congress in 2004, partially as a result of the redistricting they did in 2003. Take a look at your state's Congressional district map. What kind of animals do you see?

Is "One Person One Vote" A Constitutional Right?

2006-11-03T09:47:00.000-08:00

You might think, because the Constitution begins with the phrase, "We, the People of the United States of America", that the Framers wanted all of our votes to count equally. Nothing could be further from the truth. Those (and these include current justices such as Clarence Thomas and Antonin Scalia) who wish to return to the original intent of the Framers whenever the constitutionality of a law is in question, will necessarily also force a return to the anti-democratic rules embodied in the Constitution.

Are you surprised? The Constitution indeed acknowledges that the people, instead of, say, the king or the nobles, are the source of the political system established by the Constitution. However, we need to examine that system itself in order to see if each person's vote was valued equally. A simple reading of how members of each branch of government (the House of Representatives and the Senate, the President, and the Supreme Court and lower Federal courts) are chosen, will reveal this.

According to Article 1, Section 2:

The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.

The members of the House are chosen by the people, but the only requirement for voters is that they qualify to vote in the same way that the "most numerous branch of the state legislature" qualify. Whatever the state voter qualification laws are - including hanging chads, electronic voting machines that don't count or count backwards, paper ballots, whatever - will work fine. In all states, this limited suffrage to adult white males. White women, native Americans, and slaves could not vote. Additional restrictions could, and did, mean having to own a certain amount of property (slaves count, of course) or to belong to a certain religious group. These were perfectly constitutional. Some states had more inclusive voting rules. In New Jersey, for example, white women were allowed to vote until 1807, when the vote was taken away from them. In four states, free blacks were allowed to vote if they satisfied the property requirements. In any case, we are far from the "one person one vote" principle.

Actually, some adult white male voters counted more than others. Article 1, Clause 3, states in part:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons

"...all other persons" meant slaves. The vote of a southern planter with slaves was worth more than the vote of a free white man without slaves. Call it "one person, 1 + (number of slaves) * 3/5 votes".

The Senate was not directly elected by the people. Article 1, Section 3 states in part:

The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof, for six years.

The eligible voters (each state could determine these) voted for state legislators, who in turn voted for the Senators. The Lincoln-Douglas Debates of 1858 were debates between the two candidates for Senator of Illinois. The debates took place in the county seats of each of the Illinois counties. The voters did not vote directly for either Lincoln or Douglas, but rather for state legislators who, presumably, would vote that way. Indirect election of senators in this fashion was the rule until 1913, when the Seventeenth Amendment mandated direct election of Senators.

An additional departure from "one person one vote" derived from the nature of the Senate. With two Senators from each state, a voter from a more populated state such as New York was worth less than a voter from a less populated state such as Rhode Island.

The President was also indirectly elected. The voters voted for electors, not for the Presidential candidate directly. The electoral college consisted of the total number of representatives, plus 2 for the senators. This formula also favored the smaller states somewhat.

The Supreme Court justices are nominated by the President, "by and with the Advice and Consent of the Senate". The voters did not participate in voting for Supreme Court justices.

Those were the guidelines set forth in the Constitution for voters; very far from One Person One Vote. Subsequent amendments extended the voting franchise to freed slaves (15th Amendment, 1870), and to women (19th Amendment, 1919), and to citizens above the age of 18 (26th Amendment). The 13th Amendment, ending slavery, rendered the 3/5 rule null and void. The basic constitutional guidelines for electing members of the 3 branches of government, however, remained.

Suppose you have absolute proof that your vote wasn't counted, for example, that the voter tally in your precinct never was included in the grand total. Can you sue the state? ABSOLUTELY NOT - that's against the Constitution. The 11th Amendment states:

The Judicial powers of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

States have sovereign immunity from lawsuits. The only way a state can be sued by a citizen is if the state waives its sovereign immunity. If your side didn't win the election, and the other side controls the state legislature, good luck trying to get the legislature to allow you to sue.

Voter suppression (not allowing certain groups to vote in the first place) and electoral fraud (not counting the voters who would be unlikely to vote for your side) are as American as applie pie. The most blatant form of voter suppression - the poll tax, used to discourage African-Americans from voting - was outlawed by the 24th Amendment in 1964. The Voting Rights Act of 1965, which President Bush extended for 25 years in 2006, outlawed literacy tests, which were also used in discriminatory ways to discourage voting by African Americans. So the more obvious forms of voter suppression have been outlawed. However, since the voter rolls are still maintained by state and local officials, and there is no recourse for the individual voter, there's plenty of potential for fraud.

Apparently, this tradition will continue come next Tuesday, Election Day. Yesterday, I saw the HBO documentary Hacking Democracy. It's a powerful expose of the security flaws in the voting machines made by Diebold Corporation. Diebold is a prominent contributor to the Bush campaign. It's CEO wrote a letter promising to deliver Ohio to Bush in 2004. This time around, the Congressional races in states like Ohio, Virginia, and Missouri are crucial. The documentary featured a demonstration of how the memory cards in the voting machines, as well as the Microsoft Access database called GEMS, which does the actual vote tally, can be changed without leaving any trace. As a developer of customized databases, I happen to know something about this, since I use SQL databases such as Access every day. Just from looking at the screen shots, I could tell that the tallying software uses Microsoft's ActiveX Data Objects, and an apparently unprotected copy of Microsoft Access. This is a security nightmare. A simple SQL UPDATE statement, such as:

UPDATE vote_totals SET vote_count = 1000000 WHERE candidate like '%KRAKOW%';

could get me a million votes. The hacker also could just change the particular row for the candidate's totals manually. This table editing is the first thing any of the millions of Access users learns. Diebold's voting machines will be used on Tuesday to count the votes in Cleveland, Ohio's largest city, and in many other places critical to the electoral decision.

I'm shocked and scared for our country. I've been duped all my life into believing that my vote counts exactly the same as Antonin Scalia's. I still plan to vote, but afterwards I will stop by at my favorite house of worship and exercise my First Amendment right to the Free Exercise of my religion. I suggest all of you do the same.

Is a Massachusetts Gay Marriage Legal in All States?

2006-10-27T11:05:00.000-07:00

Share your views about the Constitution with the world.

I am a citizen of both the United States of America and the Commonwealth of Massachusetts. Massachusetts is the only state (even though Massachusetts, like Kentucky, is technically a Commonwealth, for legal purposes Massachusetts is a state as well) where same sex marriage is legal. Are all the other states, and the Federal government as well, required to recognize a Massachusetts same sex marriage? I will also discuss civil unions, such as the recent New Jersey ruling, as a possible alternative to gay marriage. My totally untutored legal brain, based on a simple reading of the United States Constitution, says "yes" to both questions. Article 4, Section 1 states, in part:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.

Getting married in Massachusetts (it's something I actually have done and it's still legal and binding as far as I know) is certainly a public act of Massachusetts. If my wife and I (we're a heterosexual couple) move to Florida, we're still married as far as Florida is concerned. Is marriage a proper area in which Massachusetts can pass laws? Absolutely! Article 1, Section 8 specifically lists all the areas in which Congress can pass laws. These are the so-called enumerated powers. Last time I looked, marriage was not on the list. Just to drive home the point, the 10th Amendment states that:

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.

Each state is thus free to set its own marriage laws, free of Federal intervention. By tradition, that's exactly what has happened, producing different rules for marriage and divorce, property rights, child custody, contract rights, estates and trusts, and so on, in each state. For example, if you get divorced in California, a community property state, all the assets acquired during the marriage, no matter how the asset is titled, is deemed to be held 50/50 by each spouse. In Massachusetts, the asset's ownership is based on how it is titled. If the car is titled in my name I own it 100%, for example. So if a homosexual couple marries in Provincetown, Massachusetts and later divorces in San Francisco, California, the same rules should apply as (perish the thought) a divorce action between me and my wife in California.

Another example - suppose a gay couple married in Massachusetts adopts a child in Massachusetts, moves to California, and one spouse refuses to pay child support. Can the other spouse sue in California (or Massachusetts) for child support? Will California abandon the child, or seize the child from the parents, or refuse to honor a Massachusetts child support order? Certainly the child support obligations apply to my marriage and children, no matter what state I live in.

The Constitution seems clear. The other 49 states, and the Federal government, must recognize the validity of any marriage under the laws of Massachusetts. To do otherwise is to violate the original intent of the Constitution's framers. To change this, you need an amendment to the Constitution. Of course, an amendment is a difficult thing to pass, requiring a 2/3 vote of both houses of Congress and ratification by 3/4 of the state legislatures.

Opponents of gay marriage have tried to get around the amendment route by pushing for laws, at both the Federal and state level, to forbid gay marriage, or where it exists, to limit its scope in some way. This opposition has been bi-partisan, with its start in the Clinton administration. The Democrats have been particularly wishy-washy on this issue because they have significant support in the gay community. However, for political reasons, they don't want to offend potential voters, such as devout Catholics, either. So they flip flop, straddle the fence, and try to please both sides.

President Clinton, during his term, stated that he was opposed to gay marriage. I assume that's still his position, as well as the position of his wife, the junior Senator from New York. When Senator Kerry ran for President, he also stated that he was opposed to gay marriage, but that he supported civil unions.

The campaign to limit gay marriage started with the Defense of Marriage Act (DOMA), passed by Congress by a vote of 85-14 in the Senate and a vote of 342-67 in the House of Representatives. The Act was signed into law by President Bill Clinton on September 21, 1996. Its main provisions (I'm quoting from the Wikipedia article) are:

No state (or other political subdivision within the United States) need recognize a marriage between persons of the same sex, even if the marriage was concluded or recognized in another state.

The Federal Government may not recognize same-sex or polygamous marriages for any purpose, even if concluded or recognized by one of the states.

The motivation behind the Defense of Marriage Act was a reaction to a Hawaii Supreme Court ruling in 1993 (the case of Baehr v. Lewin) in which the Court ruled that Hawaii needs to show a compelling state interest if it is to prohibit same sex marriage. In other words, the DOMA was a defense against the possibility that a state might legalize gay marriage.

The Defense of Marriage Act is still on the books. The Supreme Court has not ruled on its constitutionality, even though it has had opportunities to do so. Federal agencies, such as the Internal Revenue Service, have issued rulings consistent with the Defense of Marriage Act. In Massachusetts, same sex couples can file as married; however, they are not considered married for Federal income tax purposes. This makes the determination of income and tax very complicated, as this document from the Massachusetts Department of Revenue illustrates.

The New Jersey Supreme Court ruled, on October 25, 2006, that homosexuals are entitled to the same benefits as heterosexuals, and ordered the state legislature to pass a law within 180 days to give equal rights to same sex couples. This seems odd - the court ordering the legislature to pass a law, with a deadline no less! I don't believe the United States Supreme Court can order Congress around like that. New Jersey, like Vermont, already allows same sex couples to apply for domestic partnership status, like a civil union. Civil unions seems to me a kind of inferior class, something like "separate but equal" than full marriage. It doesn't feel like the right solution to me - grant either full marriage status or nothing.

Opponents of gay marriage are moving on a number of fronts. A number of state legislatures have passed laws defining marriage as the union of one man and one woman. Here's the current status, state by state, according to this Wikipedia article:

Connecticut, Vermont, and California have created legal unions that, while not called marriages, are explicitly defined as offering all the rights and responsibilities of marriage under state law to same-sex couples. Maine, New Jersey, the District of Columbia, and Hawaii have created legal unions for same-sex couples that offer varying subsets of the rights and responsibilites of marriage under the laws of those jurisdictions. In contrast, nineteen states have constitutional amendments explicitly barring the recognition of same-sex marriage, confining civil marriage to a legal union between a man and a woman. Forty-three states have statutes defining marriage to two persons of the opposite-sex, including some of those that have created legal recognition for same-sex unions under a name other than "marriage."

At the Federal level, if the Defense of Marriage Act is declared unconstitutional, proposals for a Constitutional amendment to define marriage as the union of one man and one woman have been written. The Federal Marriage Amendment, which failed to pass the Senate, is one such proposal.

To me, the debate is a constitutional and legal minefield. If the Federal government wants to use constitutional amendments to legislate morality, why stop at marriage? The 18th Amendment, which outlawed the sale of alcohol "for beverage purposes" because of the danger to the public health, proved to be a disaster, requiring another amendment (the 21st) to repeal it. Some opponents of gay marriage have cited the second clause of Article 4, Section 1:

...And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

to support the idea that Congress can overrule state action. I believe this opens a Pandora's box. Congress would be able to override any state law. What if a state allows a color blind person to get a drivers license? Could Congress pass a national driver's license law to overrule this? What if I have a license from such a state and show up in another state to rent a car? If the state refuses to honor my driver's license, this would seriously disrupt interstate commerce.

The bottom line is that the constitutionality of all these laws is yet to be tested and none of the Federal branches - the Executive, the Legislative, nor the Judicial - wants to touch this particular legal third rail.

Was Vice President Aaron Burr Guilty of Treason?

2006-10-23T11:03:00.000-07:00

Here's my suggestion for a Final Jeopardy Answer: "Who was the only Vice President who was tried for treason?". I'll even add a hint: "He also was the only Vice President who killed a political opponent while in office". Think of Dick Cheney with better aim.

Give up? The answer is Aaron Burr (1756-1836), our third Vice President, Thomas Jefferson's running mate. As I described in my episode on the Election of 1800, he tied Jefferson in electoral votes, which led to the election being decided by the House of Representatives. With all the political intrigue rampant in that election, Burr could easily have become our third President instead of Jefferson.

Who was this enigmatic man? Aaron Burr, Jr., descended from an influential and powerful family. His father, Aaron Burr, Sr., was President of Princeton University. His maternal grandfather was Jonathan Edwards, a famous Puritan preacher. He majored in theology at Princeton, but eventually switched to law. By all accounts, he aspired to a political career.

Burr had a distinguished Revolutionary War career. He volunteered in 1775, participated in Benedict Arnold's march to Quebec, and joined General Washington's staff in 1776. He spent the winter at Valley Forge.

After the War, he married and started a successful law practice in New York. At one time, his law partner was Alexander Hamilton. His political aspirations were rewarded when Governor Clinton named him Attorney General in 1789. He was elected Senator in 1791, defeating Alexander Hamilton's father-in-law, Philip Schuyler, and served 6 years. Hamilton believed Burr had stolen the election. Burr became an influential member of the anti-Federalist Democratic party. New York's ratification of the Constitution was by no means a done deal. In fact, only one New York delegate - Alexander Hamilton - ratified the Constitution. It was no accident that two of the three authors of the Federalist Papers, Hamilton and Jay, were from New York. Burr was in the anti-Federalist camp. Because of his political views, and of his power in the New York Democratic party, he proved an attractive running mate for Thomas Jefferson. They basically ran as the anti-Federalist "ticket", first unsuccessfully in 1796 and then successfully in 1800.

Burr became Jefferson's Vice-President from 1801-1805. As Vice President, Burr was also President of the Senate. During his term, he ran for Governor of New York as an independent but was defeated by the Republican candidate, Morgan Lewis. Hamilton and Burr had, by that time, become political rivals. Hamilton supported Jefferson over Burr in the Election of 1800, as well as Lewis over Burr in the New York governor's election. The enmity had bcome so great (there were also some nasty personal articles about Hamilton's bastardy as well) that Hamilton and then Vice President Burr fought a duel. On July 11, 1804, they dueled in Weehawken, New Jersey. Hamilton fired first, missing Burr. Burr's shot hit Hamilton, piercing his liver and spine. Hamilton was evacuated to New York and died there.

After the duel, Burr's political career was effectively over. Although dueling was illegal in both New York and New Jersey, Burr was never tried for murder and he completed his term as Vice President. After his term ended, he fled to Philadelphia. There, he allegedly hatched a plan with his Princeton classmate, Jonathan Dayton, with the goal of creating a new nation out of a number of Spanish held territories in the Southwest, in what is Texas today. Burr's supporters claimed that he had simply leased 40,000 acres in Texas and wanted to retain title to it. However, Burr did have contact with General James Wilkinson, the Governor of Louisiana who was secretly in the pay of Spain, and Harman Blennerhassett, an Anglo-Irish aristocrat who owned land on the Ohio River. There were promises of help from Great Britain and Spain, and local Creoles in Louisiana were recruited as possible allies for this new southwestern "republic". Burr also recruited soldiers for this plot.

Wilkinson, afraid that the plot would fail, betrayed Burr to Jefferson. Burr was captured and, in 1807, was tried for treason before the circuit court at Richmond, Virginia. At that time, Supreme Court justices "rode circuit", presiding over the regional Federal circuit courts during the off-term period. The trial judge was none other than John Marshall, the Federalist Chief Justice of the Supreme Court, and Jefferson's political foe. By the way, in Marbury v. Madison, the famous case on which Marshall established the principle of judicial review, Marshall was actually ruling on whether his act of not giving Marbury his commission was constitutional or not. By our current rules of judicial ethics, he should have recused himself.

It's important to note that, even though Jefferson had purchased the Louisiana territory from Napoleon, the Louisiana Purchase had not been officially accepted by Congress. The definitive annexation and boundaries of the Louisiana Territory did not become final until 1819, by the Adams-Onis Treaty. Jefferson was having second thoughts. Also, there was sizeable local opposition from local planters and soldiers to the annexation. Was Burr raising an army to liberate these lands and set up a republic under his control?

The Burr treason trial was the trial of the century, even though the century was barely 7 years old. The case turned on some letters that Jefferson possessed, that Marshall requested. Jefferson claimed "executive privilege", thus establishing that defense many years before Nixon did the same in the Watergate era. In the end, Burr was acquitted of treason because the court ruled that the government had not proved that he committed the overt act, in the presence of two witnesses, required by the Constitution. Whether this is a purely legal decision or an act of political revenge against his hated rival is something you can decide.

PBS, for the American Experience series, produced a documentary on the Hamilton-Burr duel and the Burr treason trial. After the trial, Burr fled to Europe, had a number of mistresses, and was even sued for adultery when he was in his 80s. By any standard, he had the most checkered career of any Vice President in our history. There's an interesting fictionalized biography, called simply Burr: A Novel, by Gore Vidal, that tells this story from Burr's eyes. Sometimes biographies of people like Jefferson and Marshall read like the lives of the saints. This one is a bit more earthy, and certainly paints Burr in a more favorable light than most history books do.

World War II Treason Cases (Tokyo Rose, Nazi Plotters) and Gadahn

2006-10-18T11:14:00.000-07:00

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The Bush administration has recently decided to try Adam Gadahn, an American citizen, for treason, for making tapes for Al Quaeda. Gadahn, 28, of Santa Ana, California, was indicted last Wednesday by a Federal grand jury for allegedly making tapes that called for the death of Americans and for attacks on United States targets.

Mr. Gadahn, aka "Azzam al-Amriki" (Azzam the American), grew up on a goat farm in Orange County, California. He praised the 9/11 attacks as "the blessed raids on New York and Washington". On one tape, he is actually introduced by Ayman al-Zawahiri, Osama bin Laden's second in command. He stated that "the streets of America shall run red with blood". There's a million dollar reward, from the Rewards for Justice Program, for information leading to the arrest and conviction of Mr. Gadahn. Deputy Attorney General Paul McNulty believes there is a solid case for treason, a charge that has not been brought for over 50 years, for World War II defendants.

In this episode, I will discuss the treason cases arising out of World War II and give my understanding, as an ordinary citizen just trying to understand the law, of what the government has to prove in the Gadahn case, based on these cases. Three of the cases relate to Nazi Germany (Cramer v United States, ex parte Quirin and Haupt v United States), and two relate to Japan (Tokyo Rose and Kawakita).

First, what is treason? Treason happens to be the only crime that is explicitly defined in the Constitution. Article 3, Section 3 states:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

The Framers were afraid that a tyrannical executive (the King of England) could arbitrarily define the crime to include anyone the king wanted to condemn, and therefore they set a high standard of proof. The government needs to establish an overt act, in the presence of at least two witnesses, evidenced in open court. In addition, relatives of the accused are not supposed to be tainted by the treason verdict. This proved to be at issue in one of the cases - Haupt v. United States - which centered on the father of one of the persons convicted of treason.

World War II, as I mentioned in the episode about whether or not we are at war, was the last war where the United States followed the Constitutional procedure for declaring war. Japan attacked us at Pearl Harbor, Roosevelt asked Congress for a formal declaration of war on December 8, 1941, Congress approved the declaration, Germany then declared war on us, and we declared war on Germany. So we were officially, legally, and constitutionally at war with both Nazi Germany and the Japanese Empire - official state enemies with soldiers in uniform.

The cases related to Nazi Germany are Cramer v. United States, ex parte Quirin and Haupt v. United States. The cases centered around Operation Pastorius, a failed attack by Nazi Germany on the United States, staged in June, 1942. Eight Germans who lived in the United States, Ernest Burger, Herbert Haupt, George John Dasch, Edward Kerling, Richard Quirin, Heinrich Heinck, Hermann Neubauer and Werner Thiel, were recruited for the operation, masterminded by Admiral Canaris, the head of the German Abwehr, their Secret Service. They were smuggled into the United States on two U-boats, the U-202 and U-584. Their mission was to sabotage United States hydroelectric plants at Niagara Falls, ALCOA plants in Illinois, Tennessee, and New York; locks on the Ohio River near Louisvill, Kentucky, a cryolite plant in Philadelphia, Pennsylvania; Hell Gate Bridge in New York, and Pennsylvania Station in Newark, New Jersey.

Two of the Germans, Dasch and Burger, decided to back out of the mission and turned the others into the FBI. Eventually all 8 were arrested and put on trial by a special military court - something like the military commission that Bush got - in Washington, DC. All 8 defendants were found guilty and sentenced to death. FDR commuted Dasch's sentence to 30 years and Burger's sentence to life. The other 6 defendants were executed on August 8, 1942, in the electric chair of the District of Columbia jail and buried in a potter's field in the Anacostia section of Washington, DC. This was the largest legal mass execution in United States history. In 1948, President Truman commuted the sentences of Dasch and Burger, deporting them to the American zone of occupied Germany.

The three cases arising from Operation Pastorius may give some hints as to what the government needs to prove in the Gadahn case. In Cramer v US (1945), Anthony Cramer, a friend of two of the conspirators, had had a "few drinks" with them. He apparently was not aware of the plot. Although he had sympathy for the Fatherland, and had traveled to Germany for the 1936 Olympics, it was not clear what his sympathies to the Nazi regime lay. He was tried for treason, sentenced to life imprisonment, and made to pay a $10,000 fine. The Supreme Court, on appeal, ruled that these facts were not enough to support the crime of treason.

In Haupt v United States, Hans Haupt, the father of Herbert Haupt (one of the executed conspirators), was also convicted for treason, sentenced to life imprisonment, and made to pay a $10,000 fine. He had lent his son money, helped him purchase an automobile, and helped him get a job at the Norden bomb sight factory. In this case, the Court affirmed the conviction.

In ex parte Quirin,(ex parte means that the matter only concerns one side - Quirin - as opposed to the traditional plantiff v defendant format), the Supreme Court ruled in 1942 that the conspirators could be tried before a special military court. This ruling has been cited by the Bush Justice Department lawyers to support these special commissions.

The Tokyo Rose case shows how the media and propaganda machine can construct a story. You see it all the time - a movie that's "inspired by a true story" or "based on a true story". It's difficult to separate fact from fiction. The Japanese certainly broadcast US-English radio shows, intended to sap the morale of our troops, during the war. One of the broadcasters, Iva Toguri d'Aquino, a Japanese-American, had the misfortune of visiting Japan at the time of the attack on Pearl Harbor. She was visiting relatives. Stranded in Japan, needing work, and not speaking Japanese, she answered an ad for an English language typist for Radio Tokyo. Eventually she became an announcer for The Zero Hour, a radio program produced to demoralize our troops. She was one of a group of 12 announcers.

Iva consistently denied that she was a disloyal American. She never renounced her US citizenship. The US military investigated her immediately after the war and did not find any evidence of treason. However, Walter Winchell, a US radio personality, lobbied for putting her on trial for treason. In 1949, she was tried, on the basis of testimony of two "witnesses" (remember, according to the Constitution, you need two witnesses), and convicted. Her sentence was 10 years in prison. She served 6 years.

In the 1970s, information came out that the two witnesses lied. President Ford pardoned her on his last day in office. Iva Toguri d'Aquino died on September 26, 2006, at the age of 90.

Tomoya Kawakita, a Japanese American, was the last person tried and convicted of treason in the United States. He was convicted in 1952. He tortured American POWs as an employee of a Japanese mining company. He was sentenced to death. President Eisenhower commuted his sentence to life imprisonment in 1953. In 1963, President Kennedy, during the closing of Alcatraz prison where he was serving his sentence, pardoned him and deported him to Japan.

What can we conclude from all of this? Treason is difficult to prove, the facts and the result don't appear to be consistent, and the punishment (it's anywhere from 5 years in prison to death) seems arbitrary. Witnesses can be suborned and coerced. The media, as illustrated by the Tokyo Rose case, can whip up a frenzy. In the case of Mr. Gadahn, it seems unlikely that any al Quaeda operatives that might have witnessed his overt acts will testify in open court. With the special military commissions, they won't have to.

I have a modest proposal. Declare all the Guantanamo detainees enemy combatants. Line them against a wall and shoot them. Don't tell anyone. That will save us taxpayers a lot of money. Based on the laws recently passed, it appears that this is totally legal.

How did the Supreme Court Decide the Election of 2000?

2006-10-12T18:08:00.000-07:00

Listen to The Election of 2000

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As is well known, the Presidential election of 2000, between George W. Bush and Al Gore, hinged on the Florida electoral votes. Ultimately, it was decided by the Supreme Court, in the case of Bush v. Gore What constitutional issues were involved? In this episode, I will try to make sense out of the logic that the majority faction of the Court (even this is in dispute - was it 7-2 or 5-4) used. My sources are the Constitution, the actual text of the decision and the minority opinions, and articles from legal scholars. I also cite my previous episodes about the election of 1800 and the election of 1876. Amazingly, this was the 4th time in United States history that the candidate who became President had lost the popular vote. The others were the Election of 1824 (John Quincy Adams v. Andrew Jackson), The Election of 1876 (Hayes v. Tilden), and the Election of 1888 (Benjamin Harrison v. Grover Cleveland).

First, some background. On Election Night, November 7, 2000, based on exit polls, the TV networks and CNN had declared that Gore had won the Florida electoral votes, and thus the Presidency, only to reverse themselves a few hours later. State results tallied on election night gave 246 electoral votes to Bush and 255 to Gore, with New Mexico (5), Oregon (7), and Florida (25) too close to call at the time. Since 270 electoral votes are required to win, Florida would put either candidate over the top, and the other two states were irrelevant. (Gore eventually was determined to be the winner in New Mexico and Oregon.)

On November 8, 2000, the Florida Division of Elections reported that Bush had a majority of 1,784 votes. Since this was less than 1/2 of 1% of the votes cast, Florida state law mandated a recount of the machine tabulated votes. The recount, completed on November 10, resulted in a much smaller majority for Bush (327).

Florida's election laws allow a candidate to request a county to conduct a manual recount, and Gore requested manual recounts in four Florida counties: Volusia, Palm Beach, Broward, and Miami-Dade. The four counties granted the request and began manual recounts. However, Florida law also required all counties to certify their election returns to the Florida Secretary of State within seven days of the election, i.e., November 14. By the deadline, only Volusia County had finished the manual recount, leaving the Democratic-leaning counties of Palm Beach, Broward, and Miami-Dade with an incomplete manual recount.

Florida's Secretary of State, Katherine Harris, a Republican, requested these counties to show cause that they needed extra time beyond the deadline. She rejected their explanation, and announced that she would certify the ballots on November 18th. The Gore legal team sued to prevent Harris from doing this. The Florida Supreme Court agreed, issuing an injunction against Harris' contemplated action. On November 21, the Florida Supreme Court ordered Harris to accept the results of any manual recount completed by November 26th.

Both the Bush and Gore teams made a number of legal maneuvers. Harris certified the election on November 26th. Miami-Dade had started a recount and then stopped it because the County felt it couldn't complete the recount in time. Gore contested the certification in the Florida courts. The court ordered a partial recount of only certain types of votes (the "undervotes") in certain counties. Bush challenged this procedure. On December 9th, the Florida Supreme Court issued an injunction to stop the recount.

The Supreme Court took the case on December 11, and in an extraordinary display of speed, issued their decision, effectively stopping the recounts and awarding the election to Bush, just 16 hours later. Time was of the essence, because a certified list of electors was necessary by December 12th, 6 days before the meeting of the Electoral College on December 18th. Otherwise, Congress, as in 1876, would have had to certify the Florida electors.

What was the constitutional basis of their ruling? The majority decision, after citing the facts of the case, made the following comment:

The closeness of this election, and the multitude of legal challenges which have followed in its wake, have brought into sharp focus a common, if heretofore unnoticed, phenomenon. Nationwide statistics reveal that an estimated 2% of ballots cast do not register a vote for President for whatever reason, including deliberately choosing no candidate at all or some voter error, such as voting for two candidates or insufficiently marking a ballot....In certifying election results, the votes eligible for inclusion in the certification are the votes meeting the properly established legal requirements.

and goes on to write

The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College.

Indeed, the Constitution, in Article 2, Section 1, Clause 2, states:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors...

Basically, you cast your vote for electors in your state pledged to your candidate, and then cross your fingers that your state has in place a legal mechanism to count your vote. The procedure defined by the state should be controlling.

The Florida standard was to determine "the intent of the voter" - in other words, examine the evidence (hanging chads, dimpled chads, butterfly ballots, whatever) and try to figure out what the voter's intent was. This was the Gore position as well.

The Bush legal team, however, argued that since the recount used different rules in different counties, and, in the case of Broward County recount, different rules in the same county, not all votes were recounted in the same way. Of course, the Court's ruling, cited earlier, was that not all votes were originally counted the same way either. But no matter. Bush claimed that this is unfair treatment of votes violates the Equal Protection clause of the 14th Amendment. The Court agreed with Bush - the Florida Supreme Court needed to come up with a standard recount procedure, even thought the original vote was not subject to such a standard. According to the Court:

The contest provision, as it was mandated by the State Supreme Court, is not well calculated to sustain the confidence that all citizens must have in the outcome of elections. The State has not shown that its procedures include the necessary safeguards.

This contradicts what the Court wrote earlier. In the original vote, indeed of any Presidential election, not all votes are counted equally. So why should this happen in the recount? And if the Florida Supreme Court's ruling was unconstitutional, why stop the vote entirely? What kind of remedy is that for the alleged 14th amendment violation?

Indeed, this was Justice Breyer's argument in his dissenting opinion:

Nonetheless, there is no justification for the majority's remedy, which is simply to reverse the lower court and halt the recount entirely. An appropriate remedy would be, instead, to remand this case with instructions that, even at this late date, would permit the Florida Supreme Court to require recounting all undercounted votes in Florida, including those from Broward, Volusia, Palm Beach, and Miami-Dade Counties, whether or not previously recounted prior to the end of the protest period, and to do so in accordance with a single-uniform substandard.

In other words, continue the recount and count as many votes as possible.

The US Supreme Court trampled on state sovereignty. According to Rehnquist's concurring opinion, there's an exception for this:

In most cases, comity and respect for federalism compel us to defer to the decisions of state courts on issues of state law. That practice reflects our understanding that the decisions of state courts are definitive pronouncements of the will of the States as sovereigns...But there are a few exceptional cases in which the Constitution imposes a duty or confers a power on a particular branch of a State's government. This is one of them. Article II, §1, cl. 2, provides that "[e]ach State shall appoint, in such Manner as the Legislature thereof may direct," electors for President and Vice President. (Emphasis added.) Thus, the text of the election law itself, and not just its interpretation by the courts of the States, takes on independent significance.

Justice Ginsburg strongly dissented:

The extraordinary setting of this case has obscured the ordinary principle that dictates its proper resolution: Federal courts defer to state high courts' interpretations of their state's own law. This principle reflects the core of federalism, on which all agree...

She also write "I dissent", instead of "I respectfully dissent", probably reflecting her disdain at the verdict.

Here's my take - the 5 justices who ruled in favor of Bush did not want Congress to certify the Florida electors - with the possibility of a repeat of the Election of 1876 - and the possibility of overturning a Bush victory. December 12 was the absolute deadline, so Justice Breyer's idea of continuing the recount was a non-starter. That was the goal. The majority simply concocted some reasoning allegedly based on the Constitution to achieve the goal, thereby ignoring the wishes of the other 4 justices, the voters of Florida, and the will of the United States electorate. As Justice Scalia later remarked about debates on this case, "get over it".

The Election of 1876 - How the South Won the Civil War

2006-10-10T05:05:00.000-07:00

In the previous episode, I discussed the Election of 1800, in which Jefferson won the popular vote, but the question of whether he would win the electoral vote, and thus the election, was very much in doubt. In the end, the people's will prevailed, and Jefferson was declared the winner. The 12th Amendment, mandating separate electoral votes for President and Vice President, was supposed to resolve all disputes about the voting procedure once and for all. The 1876 election proved that, no matter what procedure was in place, stealing the Presidency was not only possible but it's what actually occurred. In addition, the consequences, notably the restoration of a legal system of slavery in all but name in the South, were catastrophic for the over 4 million former slaves. It all took place in the year of the 100th anniversary of the Declaration of Independence.

The Democratic Party candidate, Samuel Tilden, was Governor of New York. His candidacy was based on reforming the corruption that was rampant in the Grant administration. He had taken on corruption in New York by defeating Boss Tweed and the Tammany Hall machine. The Republican Party candidate, Rutherford Hayes, was Governor of Ohio who had fought in the Civil War. He also had a stellar reputation against corruption. In fact, his nickname was "Old Granny". His wife, who didn't drink alcoholic beverage, was known as "Lemonade Lucy".

In addition to corruption, the most important issue of the election was whether or not to withdraw Federal troops from all of the Southern states. The reason Federal troops were needed was that anti-black violence was rampant among the local white residents. Reconstruction - the process of ensuring that the newly freed slaves retained their civil and political rights - needed Federal muscle behind it. Even though the 13th Amendment (abolishing slavery), the 14th Amendment (ensuring all citizens have their civil rights), and the 15th Amendment (guaranteeing all citizens the right to vote) were part of the Constitution, enforcement of these rights was another matter. Vigilante groups such as the Ku Klux Klan became virtual governments in some states. In South Carolina, for example, President Grant imposed martial law and suspended habeas corpus because of Klan violence. The Republicans campaigned as the party of Lincoln, defenders of Reconstruction and the legacy of the Civil War. The Klan and the night riders wanted to intimidate voters to vote Democrat. Would Federal troops ever withdraw from all the Southern states? Could the Republicans claim to govern by consent of all the people if their power depended upon the army of occupation?

In the 1876 election, Tilden won the popular vote by 250,000, receiving a bit over 50% of the popular vote to 47% for Hayes. Just as in 2000, both the Republican and Democratic candidates initially thought that the Democratic candidate had won. However, later events eventually overturned the popular vote. The undisputed electoral vote count was 184 for Tilden and 165 for Hayes. However, 20 electoral votes (from Florida, South Carolina, Louisiana, and one from Oregon) were in dispute. In the case of the three southern states, two separate lists of electors, one favoring the Democrats and the other favoring the Republicans, were sent to Congress for certification. It was clear that Tilden had won in at least one of the states. Thus, Tilden seemed to have won both the popular vote and the electoral vote.

There appeared to be vote fraud in the contested states. In Louisiana, unofficial tallies indicated that Tilden had carried the state by over six thousand votes. However, the Republican-controlled returning board threw out the votes from several areas, citing fraud and voter intimidation; in all, over fifteen thousand votes (of which more than thirteen thousand were for Tilden) were discounted. There were ballot counting irregularities in Florida and Louisiana as well.

In the case of Oregon, there was a separate constitutional issue. The Constitution states that a Federal official cannot serve as an elector. One of the electors, John Watts, was a United States postmaster. He resigned his office a week after the election, before the meeting of the electoral college. However, the Democratic governor, LaFayette Grover, removed Watts, replacing him with C. A. Cronin, a Tilden supporter. The point is that Tilden only needed one elector to push him over the top, while Hayes needed all 20 disputed electoral votes.

Congress was also divided. The Republicans controlled the Senate. The Democrats controlled the House. The Congress, unable to agree on certification of the 20 disputed electors, created the Electoral Commission. They cited the Necessary and Proper clause to justify this legislation:

The Constitution, our great instrument and security for liberty and order, speaks in the amplest language for all such cases in whatever aspect they may be presented. It declares that the Congress shall have power `to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by the Constitution in the government of the United States, or any department or officer thereof.'

The Commission consisted of 15 members - 5 from the House, 5 from the Senate, and 5 from the Supreme Court. Originally the idea is that there would be 7 Democrats, 7 Republicans, and one independent. Justice David Davis, regarded as an independent, was supposed to be the swing vote. However, he was not given the seat. The final seat went to Justice Joseph Philo Bradley, a Republican. The lineup was thus 8 Republicans and 7 Democrats.

Some historians have argued that Democrats and Republicans reached an unwritten agreement (known as the Compromise of 1877) under which the filibuster would be dropped in return for a promise to end Reconstruction. This thesis was most notably advanced by C. Vann Woodward in his 1951 book, Reunion and Reaction. Other historians, however, have argued that no such compromise existed.

Under the terms of this agreement, the Democrats agreed to accept the Republican presidential electors (thus assuring that Rutherford B. Hayes would become the next president), provided the Republicans would agree to withdraw all remaining Federal troops from the southern states. Regardless of whether or not such a formal agreement existed, that's what happened. The Electoral Commission voted, 8-7, along party lines, to accept all the 20 disputed electors as for Hayes, and thus, 2 days before Inauguration Day, Hayes became President. Soon thereafter, Hayes withdrew all Federal troops from the South, effectively ending Reconstruction and placing the former slaves in the tender mercies of the Night Riders and the Klan, twisting (virtually and phyiscally) in the wind.

The era of Jim Crow and lynchings was the norm until the 1950s.

Hayes emerged as President, but he was damaged goods. His nickname was "His Fraudulency". Tilden, who was a rich corporate lawyer, retired from politics and devoted much of his portion to philanthropy. He donated a good portion of his wealth to build the New York Public Library on 5th Avenue and 42nd Street in Manhattan. Even though the Republican Hayes became President as a result of the 1876 election, the South was solidly Democratic until the 1970s. Democratic presidents such as Wilson and Franklin D. Roosevelt never seriously challenged the "Dixiecrats" and the system of segregation.

The parallels to the Election of 2000 are haunting - the Democratic candidate won the popular vote, the Florida electoral vote count was in question, a justice was pivotal in the final decision. To prevent a repeition of 1876, Congress passed the Electoral Count Act in 1887, making the state executive, instead of Congress, the body that certifies the electors. This is, of course, what Katherine Harris and Jeb Bush did in 2000 for the Florida electors.

Additional readings:

Cartoons from Harper's Weekly related to the Election of 1876 (Thomas Nast)

Harper's Weekly Web Site devoted to the Election of 1876

1876 by Gore Vidal - fact-based novel, describes the tenor of the times.

Centennial Crisis, by Chief Justice William H. Rehnquist - laments "political proclivities" of the justices of the Supreme Court in 1876.

Fraud of the Century, by Roy Morris - another interpretation

The Election of 1800 - The Most Messed Up Election in US History

2006-10-04T08:23:00.000-07:00

Share your views about the Constitution with the world.

You might think that the 2000 Presidential election, between George Bush and Al Gore, complete with hanging chads and a unilateral proclamation from the Supreme Court declaring Bush as the victor, was the most messed up election in our history. Compared to the election of 1800, which ultimately resulted in the election of Thomas Jefferson as 3rd President of the United States, it was a walk in the park. Thanks to the way the President was elected, as written in the Constitution, that election became nothing less than a full-blown constitutional crisis, threatening to tear that document, and our nation, into shreds.

In this episode, I will give you a brief explanation of why this is so. The story has many twists and turns, thus a comprehensive explanation is beyond the scope of this podcast episode. I only want to stimulate your interest.

The original procedure for electing a President is written in Article 2, Section 1 of the Constitution.

Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.

The electors shall meet in their respective states, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same state with themselves. And they shall make a list of all the persons voted for, and of the number of votes for each; which list they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate. The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. The person having the greatest number of votes shall be the President, if such number be a majority of the whole number of electors appointed; and if there be more than one who have such majority, and have an equal number of votes, then the House of Representatives shall immediately choose by ballot one of them for President; and if no person have a majority, then from the five highest on the list the said House shall in like manner choose the President. But in choosing the President, the votes shall be taken by States, the representation from each state having one vote; A quorum for this purpose shall consist of a member or members from two thirds of the states, and a majority of all the states shall be necessary to a choice. In every case, after the choice of the President, the person having the greatest number of votes of the electors shall be the Vice President. But if there should remain two or more who have equal votes, the Senate shall choose from them by ballot the Vice President.

Some important points that impact this story:

Each state legislature, not the people, votes for the electors, who then vote for the President.
Each state, independently of the other states, can make its own rules about how the electors are chosen. In 1800, there were 16 states. That meant 16 different procedures for electing the electors.
The electors in each state then vote for President.
Once that is done, the votes are talllied and sent to the Senate and the House of Representatives.
In the presence of the President of the Senate (i.e., the Vice-President), the votes from each state are certified. Each state's tally needs to have the person's name and the number of votes.
If a person has more than 50% of the vote, he becomes President.
If nobody has a majority, and there isn't a tie between #1 and #2, the House can choose a President from the top 5 candidates. The votes are "taken by the states" - one state one vote.
If there is a tie between #1 and #2, the House can choose a President from #1 and #2.
No matter what, whoever has the second most votes of the electors becomes Vice President.
If there is a tie for #2, the Senate chooses the Vice-President from the tied candidates.

You might think the Framers covered all the possibilities. Why did they come up with such an elaborate scheme? The reason: they feared direct democratic elections, equating that with mob rule. Their preference was representative democracy, where the people voted indirectly. James Madison, writing as Publius in Federalist 10, expressed it thus:

it may well happen that the public voice pronounced by the representatives of the people, will be more consonant to the public good, than if pronounced by the people themselves convened for the purpose.

Representative government would cure the problem of "factions", by which he meant special interests. At the time of ratification, it was assumed that George Washington, who seemed to be above faction, would become President. The Framers wished that similarly minded men who viewed the national interest as more important than petty party interest, would become President by the operation of the electoral mechanism they set up.

This vision worked for the first two elections, 1788 and 1792, when Washington was the clear winner and John Adams was his trusted Vice President. By the Election of 1796, however, the wheels were starting to fall off the horse. Two factions - the Federalists and the Republicans - for larger and smaller government - had emerged. By 1796 they had assumed the characteristics of political parties.

In the Election of 1796, the winner, John Adams, was a Federalist, and the runner up, Thomas Jefferson, was a Republican. By the electoral process set up in the Constitution, with one list to determine both President and Vice President, that meant that Adams became President and Jefferson became Vice President. Of course, if the originalist electoral college rules applied in 2000, either Bush would be President and Gore would be Vice President, or vice versa (depending on how many hanging chads you count). The result: the Adams administration was "divided government" with a vengeance. There was a possibility of war with either Great Britain or France. Adams and the Federalists were pro-British; Jefferson was pro-French. Some really ugly events, such as the Alien and Sedition Acts and the XYZ Affair, punctuated the Presidency.

All of this came to a head in the Election of 1800. Many of the scenarios the Framers thought of came to pass in this election. Some that they hadn't thought of also came to pass. Here's what happened:

Thomas Jefferson, the Republican candidate, won the popular vote, like Al Gore in 2000. Would the electoral process make him President?
Jefferson and Aaron Burr ran as the Republican "ticket". The plan was for Burr to become Vice President by having one Republican elector vote for another candidate as Jefferson's running mate. Unfortunately for the plan, the elector didn't do that. All the Republican electors cast their 2nd vote for Burr. The result: the electoral vote was tied, 73 to 73. By rule (sounds like an NFL referee did this one), the election was thrown into the House.
The House was Federalist-dominated, because it was a "lame duck" House. Even though the Republicans had won the House, the Constitution mandated that the House meet from the first Monday in December, 1800. The next administration wasn't scheduled to start until March 4, 1801. In this case, the Federalist-dominated members had lost, but because of the electoral process they had the opportunity to choose the President and, perhaps, override the people's choice.
Jefferson had an ace up his sleeve. As Vice President, he was President of the Senate. According to the process, the electoral votes were to be counted "in his presence". He did a bit more than just stand there while the votes were being counted. The Georgia electoral tally did not have the popular vote tally and could have been disallowed, resulting in a new election. However, Jefferson certified the Republican electors who, by happy coincidence, were pledged to him.
Since the election was to be decided by the House, the Constitution allowed them to select from among the top 5 candidates. The House could have chosen a Federalist candidate such as Pinckney, Adams, or John Jay, instead of Jefferson.
The election procedure, just for this, was "one state one vote". Since there were 16 states, 9 of them would have to agree. Only 8 states were in the Jefferson column. The first 35 ballots could not produce a 9 state majority.
On the 36th ballot, thanks to the scheming of Alexander Hamilton of New York and Bayard of Delaware, the Federalists caved in to the popular vote and got their states to vote for Jefferson. The result was that Jefferson became President and Burr Vice President - just what the voters wanted. The scheming cost Hamilton his life. In 1803, Hamilton and Burr fought a duel. Hamilton purposely missed his first shot. Burr did not, fatally injuring Hamilton.

My main source for this is Professor Bruce Ackerman's excellent book, The Failure of the Founding Fathers, as well as the Wikipedia article on the Election of 1800. There's more to this tale. During this lame duck period, John Adams and the Federalists created new courts and packed them with Federalist judges, whom the Republicans called "midnight judges". Additionally, he appointed the Federalist Secretary of State, John Marshall, as Chief Justice - after John Jay, who had been Chief Justice earlier and had resigned, refused the honor. As a result, the judiciary was Federalist-dominated. This is the political background to the famous Marbury v Madison ruling, which established judicial review, and which I discussed in a previous episode.

As for the original Presidential electoral process, everyone was so horrified by the Election of 1800 - during the deliberations, Federalist militia from the North and Republican militia from the Southern states were preparing to fight - that a call for reform of the process went out. The result was the 12th Amendment, the main provision of which was to have two separate lists for President and Vice President. Eventually, electors became rubber stamps for the popular vote in each state. The 12th Amendment procedure is in effect today, and was the procedure in the election of 2000. Of course, in 2000, unlike in 1800, the electoral vote reversed the popular vote.

How does the Military Commissions Act of 2006 Challenge the Constitution?

2006-09-29T12:56:00.000-07:00

Today is a historic day. By a vote of 65-34, the Senate passed the S3930 - Military Commissions Act of 2006. There are some minor variations with the House version, but it's a done deal. President Bush might sign it as soon as tomorrow. The following Democratic Party senators voted for it: Carper (Delaware), Johnson (South Dakota), Landrieu (Louisiana), Lautenberg (New Jersey), Lieberman (Connecticut), Menendez (New Jersey), Nelson (Florida), Nelson (Nebraska), Pryor (Arkansas), Rockefeller (West Virginia), Salazar (Colorado), and Stabenow (Michigan). On the Republican side, Senator Arlen Specter (R-PA) declared that the abrogation of habeas corpus would set our legal system back 900 years. Yet, he voted for it. Senator John McCain (R-AZ) worried that the President's power to dispense with the Geneva Convention might be dangerous to our troops who might be tortured by a foreign government that might do the same unto them. He voted for it as well.

I'd like to provide a summary, based on my understanding of the online comments I've read, of the effect of the Military Commissions Act of 2006 on the Constitution.

The Military Commissions Act:

Authorizes the President to establish military commissions to prosecute detainees taken into US custody, either overseas or within the United States.

Gives these commissions the power to determine punishment, up to and including death.

Permits the use of testimony obtained by “cruel, inhuman or degrading treatment” if the torture took place before December 30, 2005, when it was banned by Congress.

Permits hearsay evidence.

Allows prosecutors to withhold from defendants evidence given to a jury, if it involves classified information, and substitute unclassified summaries.

Strips US courts of jurisdiction over detainees, and strips detainees of their right to seek a writ of habeas corpus.

Writing in The Los Angeles Times, Yale Professor Bruce Ackerman points out a number of interesting details in the Act. The President can seize anybody who has "purposefully and materially supported hostilities against the United States.", such as contributing to a Muslim charity. This grants the president enormous power over citizens and legal residents. Senator Patrick Leahy, ranking member of the Senate Judiciary Committee, cited this scenario:

Imagine that you are a law-abiding, lawful permanent resident. In your spare time, you do charitable fundraising for international relief agencies that lend a hand in disasters. You send money abroad to those in need. You are selective in the charities you support, but you do not discriminate on grounds of religion. Then one day there is a knock on your door. The Government thinks that the Muslim charity you sent money to may be funneling money to terrorists, and it thinks you may be involved. And perhaps an overzealous neighbor who saw a group of Muslims come to your house has reported “suspicious behavior.” You are brought in for questioning.

In that case, you could be dragged into this special military commission, with the rules of evidence outlined above. No Bill of Rights guarantees, such as trial by jury or the right to see all the evidence against you, apply. If you are a legal resident but not a United States citizen, you are cut off from habeas corpus relief as well. You can be withheld indefinitely, until the end of the war (which the President has said will last generations), upon the word of the President of the United States. You cannot sue in any United States civilian court. You may (or may not, at the President's discretion) be granted a Combatant Status Review Trial. You may rot in jail for the duration.

The American Civil Liberties Union points out other conflicts between this Act and the Constitution. The President gets to define what is or is not torture. According to Paragraph 8(a)(3), "the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions". In addition, paragraph 8(a)(2) states that "no foreign or international source of law shall supply a basis for a rule of decision in the courts of the United States in interpreting the prohibitions". In other words, the President can decide that the Geneva Convention Article 3 rules about torture don't apply.

I see two Constitutional problems here. Two clauses in Article I, Section 9, are violated. These are:

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.

No bill of attainder or ex post facto Law shall be passed.

We've already discussed the abrogation of habeas corpus. The Supreme Court, after the Civil War, in ex parte Milligan, ruled that when a civilian court exists, a US citizen cannot be tried in a military court, thus declaring that Lincoln's suspension of habeas corpus during the Civil War was unconstitutional. This 2006 Act allows the President to unilaterally abrogate (make null and void) the Geneva Convention, a treaty duly signed and committed law of the United States. This is unconstitutional. On its face, it's an ex post facto law.

By its plain language, the Act would deny all access to the courts of any alien “awaiting” a Government determination as to whether the alien is an enemy combatant, a determination that the Government would be free to delay as long as it liked—for years, for decades, for the length of the conflict which is so undefined and may last for decades or more.

I've already discussed Hamdan v Rumsfeld and Lincoln's suspension of habeas corpus during the Civil War. Please refer to these episodes. The Hamdan case, obviously, would never reach the civilian court. Lincoln's suspension of habeas corpus, which started in Maryland, at least addressed a defined threat to the Union - that Washington, DC would be surrounded by anti-Federal states.

We're left with government by the whim of the President of the United States and the Secretary of Defense. They're basically saying to everyone else, "trust us to do the right thing". Perhaps that's always the basis of government, but now we are stripped of the structure of checks and balances and separation of powers that has served us so well over the life of our republic. Let's hope they really can be trusted.

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

2006-08-30T09:10:00.000-07:00

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:

...no 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.

Necessary and Proper - The Boundary Between State and Federal Power

2006-08-28T10:26:00.000-07:00

The 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:

Text of the Articles of Confederation, from University of Oklahoma Law School

Articles of Confederation Wikipedia article

"Necessary and Proper" Clause Wikipedia article

Article I Section 8 Enumerated Powers Wikipedia Article

McCullogh v. Maryland (1819) Wikipedia article

McCullogh v. Maryland decision, from findlaw

New Federalism discussion, from Wikipedia

Go to Law School For Free

2006-08-27T10:20:00.000-07:00

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:

Civil Procedure I

Civil Procedure II

Constitutional Law I

Constitutional Law II

Contracts

Criminal Law

Introduction to the Law

Property Law

Torts

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.

What is Interstate Commerce?

2006-08-17T09:27:00.000-07:00

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:

Landmark Cases - Gibbons v. Ogden. Poses several interesting questions about the case and interstate commerce.

Gibbons v Ogden wikipedia article

John Marshall's opinion

Schechter Poultry Corp v US wikipedia article

Wickard v Filburn wikipedia article

Listen to this episode.

Are the Guantanamo Detainee Courts Legal?

2006-08-15T13:20:00.000-07:00

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:

Hamdan v Rumsfeld Wikipedia article

Hamdan v Rumsfeld (Findlaw), including dissenting opinions

"Deceptive Amicus Brief of Senators Kyl and Graham" - asserts they tried to mislead the Supreme Court to prevent disclosure of torture at Guantanamo

Listen to American Constitution Society discussion

Hamdi v Rumsfeld Wikipedia article

Hamdi v Rumsfeld (Findlaw)

Is an Indigent Person Always Entitled to a Lawyer?

2006-08-14T16:12:00.000-07:00

Listen to this episode.

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:

Betts v. Brady wikipedia article

Betts v. Brady ruling, from FindLaw

Gideon v. Wainright wikipedia article

Gideon v. Wainright ruling, from Findlaw

Review of Gideon v. Wainright on Court TV

Biography of Clarence Earl Gideon

Miranda v. Arizona wikipedia article (includes Miranda warning)

Miranda v. Arizona, from FindLaw

Bowers v. Hardwick (1986)

2006-08-12T09:37:00.000-07:00

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 do....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:

Wikipedia article on Bowers v. Hardwick

Cornell Law Documents on Bowers v. Hardwick

Biography of Laurence Tribe

Lawrence v. Texas - the case that reversed Bowers v Hardwick

Korematsu v. US (1944)

2006-08-10T18:39:00.000-07:00

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:

Text of Executive Order 9066

Manzanar Historic Site

Text of Korematsu v. United States, including dissenting opinions

Alien Enemy Act of 1798

FCC v. Pacifica (1978)

2006-08-10T12:27:00.000-07:00

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

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:

FCC v. Pacifica Wikipedia article

The Seven Dirty Words

George Carlin biography

Eric Idle (Monty Python) FCC Song

The Federalist Papers Podcast

2006-08-10T10:49:00.000-07:00

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.

Americanaphonic.com 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.)

Griswold v. Connecticut (1965)

2006-08-09T04:32:00.000-07:00

Does the Constitution guarantee a right to privacy?

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.

Listen to this post

Hear the arguments before the Court

Read the Wikipedia article

Full text of the case, including concurring and dissenting opinions

Marbury v. Madison (1803)

2006-08-08T10:15:00.000-07:00

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:

Wikipedia article on Marbury v. Madison

Text of this podcast

Lincoln Suspends Habeas Corpus

2006-08-07T07:12:00.000-07:00

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.

Akhil Amar Interview

2006-08-04T11:34:00.000-07:00

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.

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Amendments 11 - 27

2006-08-03T17:46:00.000-07:00

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

2006-08-03T17:43:00.000-07:00

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

2006-08-03T17:41:00.000-07:00

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

2006-08-03T17:40:00.000-07:00

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

2006-08-03T17:38:00.000-07:00

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

2006-08-03T17:35:00.000-07:00

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

2006-08-03T17:33:00.000-07:00

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

2006-08-03T17:29:00.000-07:00

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

2006-08-03T17:23:00.000-07:00

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.

Preamble

2006-08-03T17:20:00.000-07:00

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

2006-08-03T16:53:00.000-07:00

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.