Constitutional Law Prof Blog

Daily Read: Reconsidering State Action and Reconstruction

Political Science Prof Alec Ewald reviews Pamela Brandwein's book, Rethinking the Judicial Settlement of Reconstruction in Law & Politics Book Review here. 

Brandwein (pictured), a political science professor, has written a "bold revisionist book, sure to challenge the assumptions of anyone who has written on or taught Reconstruction-era Constitutional history," according to Ewald.

It's Brandwein's focus on the state action doctrine that will most interest conlawprofs.   Here is Ewald's ultimate assessment:

The total disenfranchisement of southern blacks after 1891 had many causes, but “[a] ‘closed’ doctrine of state action, one that shut the door on federal efforts to protect black rights, was not among them” (p.183). When we talk about the state-action doctrine, we are talking about a messy thing rather than a bright line. But the cases themselves, and particularly those all-too-quotable lines from the Civil Rights Cases, can seduce us into thinking the Court of the early 1880s drew a sharp boundary around all non-governmental action and declared it completely off-limits for the federal government. Brandwein shows it wasn’t so.

A good review can tell us whether or not the book is worth our time.  Ewald demonstrates that Brandwein's book is a necessary one for anyone teaching or writing on state action.

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Constitution Day (and Week) 2012

From the 2012 Presidential Proclamation, declaring September 17, 2011, as Constitution Day and Citizenship Day, and September 17 through September 23, 2011, as Constitution Week.

In the summer of 1787, delegates from the States gathered in Philadelphia to build a new framework for our young republic.  Our Constitution's Framers represented diverse backgrounds, and on key issues, they were divided.  Yet despite their differences, they courageously joined together in common purpose to create "a more perfect Union."  After 4 months of fierce debate and hard-fought compromise, the delegates signed the Constitution of the United States.

For more than two centuries, the Constitution has presided as the supreme law of the land, keeping our leaders true to America's highest ideals and guaranteeing the fundamental rights that make our country a beacon of hope to all peoples seeking freedom and justice.  Together with the Bill of Rights, our Constitution is the backbone of our government and the basis of our liberties.  Even while retaining its structure, our founding document has grown with our Nation's conscience, amended over the years to extend America's promise to citizens of every race, gender, and creed.

Americans are defined not by bloodlines or allegiance to any one leader or faith, but by our shared ideals of liberty, equality, and justice under the law.  We are a Nation of immigrants, built and sustained by people who have brought their talents, drive, and entrepreneurial spirit to our shores.  Generations of newcomers have journeyed to this land because they believed in what our country stands for.

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[image: "Scene at the Signing of the Constitution of the United States" by Howard Chandler Christy, 1940 via]

 

Daily Read: Ashe on Religion Clauses

Are the First Amendment's Religion Clauses good for women? 

ConLawProf Marie Ashe suggests not, at least as the constitutional provisions have been interpreted by the Supreme Court since 1879.

The article, Women’s Wrongs, Religions’ Rights: Women, Free Exercise, and Establishment in American Law, 21 Temple Political & Civil Rights Law Review 163, is available on ssrn. 

It's a must-read for anyone teaching First Amendment or doing scholarly work on the history or current construction of the Religion Clauses.

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[image: The Baptism of Pocahontas, by John Gadsby Chapman, circa 1840, via]

July 4: Declaration of Independence

The Declaration of Independence, signed on July 4, 1776, is the textual basis for the "Fourth of July" or "Independence Day" holiday. 

Drafted by Thomas Jefferson, the document itself (or what we have come to consider the document but is actually a 1823 transcription) is on view at The National Archives.

The text is also available on the National Archives website.

The status of the Declaration of Independence as a foundational document is undisputed.  However, its status as quasi-constitutional is subject to debate.

Unlike in the 2010-2011 Term, however, the United States Supreme Court did not seem to cite the Declaration of Independence even once in this past Term's opinions.

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Constitution Bashing?

As ConLawProf Sandy Levinson rightly observes in an Op-Ed in today's NYT, "the Constitution is enveloped in near religious veneration."  Although perhaps this isn't so right, at least in some circles.

His own op-ed, for example, argues that the Constitution itself is responsible for current political pathologies. He singles out the Electoral College and the composition of the Senate for special note, both of which result in states such as New York, California, and Texas being diminished.

This incorrect equality amongst states is also highlighted by Kevin Bleyer in his new book, Me The People.  To be sure, Bleyer is a comedy writer, but as he argues in the recent excerpt in Salon, "despite what the original Constitution of the United States says about the qualifications for statehood and the guarantee of representation," there are just some states that don't deserve their status.  One rationale for such disrespect: there are "more Americans in prison than in Nebraska."

For his part, Sandy Levinson focuses on Article V as "the worst single part of the Constitution" because it has made the US Constitution "among the most difficult to amend of any in the world."   He argues that the "near impossibility of amending the national Constitution not only prevents needed reforms; it also makes discussion seem futile and generates a complacent denial that there is anything to be concerned about."

Yet amending the Constitution - - - by repealing an Amendment - - - was a topic in a debate among Republican hopefuls for one of Missouri's two seats in the United States Senate.  The Amendment in question is the Seventeenth Amendment; "The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures."  Recall that prior to the Seventeenth Amendment, Article I §3 controlled: "The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof . .  ."   So, basically, the Seventeenth Amendment required direct election of Senators.

As the St. Louis Beacon reports, Senate hopeful (and current US Representative) Todd Akin thought a repeal of the Seventeenth Amendment might shift the balance back towards "states rights."  The other candidates were less interested in the issue.  Their respective statements are available on YouTube, linked at the St Louis Beacon article.  And there are certainly more scholarly discussions, including one between Todd J. Zywicki and Ilya Somin hosted by the Federalist Society last year. 

For those participating in summer institutes for undergraduates or comparative law programs, there is much fodder here.

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[image: 17th Amendment as ratified via]

Sunday Book Review: Mantel's New Novel

If you missed the first installment, Hilary Mantel's bestselling and Man Booker Prize winner, Wolf Hall, the second in the trilogy can nevertheless be started post-haste.  It's the just-released Bringing Up The Bodies. Stellar reviews appear in the NYT, and LA Times.  Novelist and intellectual Margaret Atwood, in The Guardian, noted that although this volume centers on the fall of Anne Boleyn, like its predecessor, it's really about "the deep, dark, labyrinthine, but strangely objective mind of Thomas Cromwell."

 

As Atwood wrote:

The historical Cromwell is an opaque figure, which is most likely why Mantel is interested in him: the less is truly known, the more room for a novelist. Cromwell rose from obscure and violent origins through a life abroad – sometime soldier, sometime merchant – to become England's top go-to man, the prime maker-and-breaker of fortunes and spines, secretly hated and despised, especially by aristocrats. He played Beria to Henry VIII's tyrannical Stalin: he did the dirty work and attended the beheadings, while Henry went hunting.

But what Atwood doesn't mention is that Thomas Cromwell (pictured above in the famous Hans Hoblein portrait which is discussed in Mantel's novels) is a lawyer.  A consumate lawyer.  In many ways, Cromwell is witness, and perhaps midwife, to the rise of English law, although law will not be sufficient to save him (presumably in volume III of the trilogy).

While some ConLawProfs find novels a guilty pleasure (or even not pleasurable!), the legal machinations and historical resonances of Bringing Up The Bodies make this novel a great summer read that could inform teaching and scholarship.

And for those who prefer to listen to books, the audiobook is available, with a sample (and a great description of Cromwell starting after about a minute, and including the description of the painting) here:

 

BringUpThe Bodies

 

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[Portrait of Thomas Cromwell by Hans Holbein, circa 1533, via]

In Memoriam: Nicholas deBelleville Katzenbach

Law students know him as the "Katzenbach" of Katzenbach v. McClung, 379 U.S. 29 (1964), the "Ollies BBQ case" upholding Congressional power under the Commerce Clause for the accomodations portions of the 1964 Civil Rights Act, and of Katzenbach v. Morgan, 384 U.S. 641 (1966), the "Puerto Rican voting case" upholding Congressional power under §5 of the Fourteenth Amendment for the Voting Rights Act of 1965.

Nicholas deBelleville Katzenbach served as Attorney General (and Acting Attorney General) in the LBJ Administration, litigating a host of civil rights cases. 

The NYT obituary highlights Katzenbach's actions during the civil rights era: "Perhaps his tensest moment came on June 11, 1963, when he confronted George C. Wallace in stifling heat on the steps of the University of Alabama in Tuscaloosa." 

The WaPo obituary places him at the center of government during a turbulent era: "Katzenbach’s time in government was like a history of government in the 1960s: The Bay of Pigs. The Cuban Missile Crisis. Integration of schools. The Warren Report. The Civil Rights Act. Vietnam."   It also links him as a source for Robert Caro's biography of LBJ.

The ACS Blog has a moving personal remembrance by Estelle Rogers. 

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[image: Katzenbach, 1968, via]

 

Sunday Book Review: Robert Caro on LBJ

The book of the week is definitely Robert Caro's fourth (and next to last) volume of the biography of Lyndon Baines Johnson, the 36th United States president.  In over 700 pages, Caro discusses and documents five tumultuous years in the life of LBJ - - - and in the nation's life - - - roughly from 1960 until 1964. 

It's a period that includes the assination of JFK with LBJ assuming the presidency.  LBJ's oath of office, observed by Jackie Kennedy, is captured in an iconic photograph (right via).  Caro's details of the event are based in part on interviews with the photographer.

The NYT Sunday book review has a front page review by the United State's 42nd president, Bill Clinton. In a passage that might give some pause given Clinton's own problems, Clinton writes:

As Caro shows in this and his preceding volumes, power ultimately reveals character. For L.B.J., becoming president freed him to embrace parts of his past that, for political or other reasons, had remained under wraps. Suddenly there was no longer a reason to dissociate himself from the poverty and failure of his childhood. Power released the source of Johnson’s humanity.

The NYT also has a review by Michiko Kakutani and a worth watching, if quite brief, video discussion between NYT's Sam Tanenhaus and author Robert Caro. 

NPR also has a terrific review as well as an excellent interview by Steve Inskeep with Caro, stressing his writing process.  Inskeep provides more insight and his own observations, including critiques of Caro's work, in an essay in The Washington Post.  C-Span will air a two-part interview with Caro.

Caro vows to finish the final volume of the biography, which will cover the period until LBJ's death in 1973.  It will undoubtedly include LBJ's nomination and the Senate's confirmation of Thurgood Marshall to the United States Supreme Court.

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National Day of Prayer/ National Day of Reason

This year, as President Obama issues the proclamation of a National Day of Prayer for May 3, it includes an invitation to "all citizens of our Nation, as their own faith directs them, to join me in giving thanks for the many blessings we enjoy, and I call upon individuals of all faiths to pray for guidance, grace, and protection for our great Nation as we address the challenges of our time." 

Obama's proclamation is pursuant to 36 U.S.C. § 119 passed by Congress in 1988 and signed by Ronald Regan, declaring the First Thursday in May as the "National Day of Prayer."

While a district judge had enjoined the National Day of Prayer in 2010 as violating the Establishment Clause, the Seventh Circuit later ruled that the Freedom from Religion Foundation lacked standing to bring a claim for relief.  Importantly, the Seventh Circuit stated that even if "this means that no one has standing, that does not change the outcome."

However, May 3 is now also the "National Day of Reason," supported by the American Humanist Association. Congressperson Pete Stark of California has made a statement on the floor of the House of Representatives recognizing the National Day of Reason as celebrating "the application of reason and the positive impact it has had on humanity. It is also an opportunity to reaffirm the Constitutional separation of religion and government."  There is also a petition seeking President Obama's recognition of the National Day of Reason:

"We therefore respectfully ask that you issue a proclamation recognizing the National Day of Reason on May 3rd, 2012 in order to promote the importance of reason and to give secular Americans the same sort of governmental recognition that religious Americans receive on the National Day of Prayer. Regardless of our religious beliefs or lack thereof, we are all Americans."

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[image: Erasmus, renowned humanist and theologian, Portrait by Hans Holbein, circa 1523, via]

Live Streaming of "Living Originalism" Conference

On April 27 and 28, 2012, Yale Law School will host a conference on constitutional interpretation and change in conjunction with the publication of Professor Jack Balkin’s book, Living Originalism (Harvard University Press 2011), with many exciting panelists.

Not at the conference?  Watch the live stream.

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Canadian Perspectives on Revisiting Roe v. Wade

Canadian Law Prof Sonia Lawrence (pictured right) starts her Jotwell post "Womb as Wedge" this way:

Sitting in Toronto or maybe Bristol, we have a tendency to watch American politics with both fear and amusement, rather like (or so I hear) some people watch Jersey Shore or Keeping up with the Kardashians: Who are these people? Why do they behave this way?

Questions worth asking, certainly. 

    But Lawrence quickly dismisses this view as smug and self-satisfied. In her review of Linda Greenhouse and Reva Siegel, Before (and After) Roe v. Wade: New Questions about Backlash, 120 Yale L.J. 2028 (2011), available on ssrn, Lawrence confirms the Greenhouse and Siegel view that "the focus on Roe is not just a faulty conclusion – it is a rhetorical strategy in and of itself."  And increasingly, it is not a strategy confined to the United States.

    Indeed, Lawrence argues that abortion law and politics in both Canada and the UK have become "Americanized," discussing Carol Sanger's recent lecture, as well as a motion to reconsider Canada's criminal code defining human being to be debated April 26.

    Thus, in a relatively short piece, Lawrence offers more "new questions" about "backlash" and Roe v. Wade," providing essential comparative constitutional law perspectives.

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Rehnquist on Jefferson - - - and life tenure on the Supreme Court

For the anniversary of the birth of Thomas Jefferson, born in Virginia April 13, 1743, one might celebrate by reading any number of books and articles about Thomas Jefferson's life, theorizing, and work, including The Hemingses of Monticello by Annette Gordon-Reed. 

There is also this small gem from Chief Justice William Rehnquist, writing in 1993: Thomas Jefferson and his Contemporaries, 9 Journal of Law & Politics 595 (available on hein, lexis, and westlaw).  Situating Jefferson in the controversies of the time, Rehnquist discusses the election of 1800, the impeachment trial of Justice Salmon Chase, and the oft-forgotten trial of Aaron Burr for treason over which Justice John Marshall presided.   Rehnquist wrote:

Jefferson reacted to Marshall's rulings by intimating that by quashing certain evidence, Marshall had intended from the very beginning of the trial to acquit Burr. His private letters refer to the “will of the judge”, “chicanery”, and, perhaps his lifelong favorite characterization of any Marshall ruling—“sophistry.” Jefferson proposed a remedy for what he saw as improper judicial partisanship, first by suggesting privately the necessity for a constitutional amendment to make it easier to remove federal judges, and second, by making a thinly veiled threat against Marshall in his annual message to Congress. Despite these suggestions and despite the introduction of a number of proposed amendments to change the judiciary's life tenure or make removal easier, Jefferson did not press the issue and Congress let the matter lie. . . . the struggle between the judiciary and the other two branches during Jefferson's presidency resulted in “a sort of drawn battle,” with no real change to the status quo ante bellum.

This "sort of drawn battle" is still ongoing.  There are many recent suggestions (e.g., here here) that federal judges should no longer have life tenure.  Controversial cases such as Bush v. Gore, Citizens United, and the pending ACA decision - - - like the treason charge against Aaron Burr - - - provoke reconsideration of the meaning of Article III.

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[image: Justice William Rehnquist's robe via]

Saturday Evening Review: What Would Elizabeth Cady Stanton Say?

Feminist icon Elizabeth Cady Stanton (pictured right) is frequently portrayed as an anti-abortion.  For example, bills such as The Susan B. Anthony and Frederick Douglass Act of 2011, H.R. 3541, and The Elizabeth Cady Stanton Pregnant and Parenting Students Services Act of 2005, S.1966, H.R. 4265, co-sponsored by 2012 Republican Presidential candidate Rick Santorum, sought to limit abortion and other reproductive rights in the name of Stanton (as well as anti-slavery hero Frederick Douglas).   Stanton's supposed anti-abortion views are also frequently cited in Supreme Court briefs to defeat an argument that abortion is central to women's rights by noting that early feminists were against the practice.

But was Stanton actually anti-abortion?

Professor Tracy Thomas argues that Stanton is an unlikely - - - and inappropriate - - - poster woman for the contemporary anti-abortion movement in a new paper entitled Misappropriating Women’s History in the Law and Politics of Abortion.   According to Professor Thomas, Stanton "did not talk about abortion per se" and "did not respond to the public campaign for the criminalization of abortion led by the medical profession with attacks on the growing autonomy of women."   Instead,

Stanton turned this debate to her priority of women’s rights, framing the question as one of the “elevation of woman” through equal legal and social rights. Stanton’s theory of “enlightened motherhood” placed women as the “sovereign of her own person” with sole responsibility for deciding when and under what circumstances to bear children. She defended women accused of infanticide, exposing the gendered legal system of all-male juries, legislatures, and judges that condemned them. Stanton’s life work labored for radical change to the patriarchy of society seeking liberal legal reforms of equal rights for women. Her ideology was about the “self-sovereignty” of women and against the regulation of women by men or the law.

Of course, Stanton was not one of the framers of the Fourteenth Amendment and indeed, she refused to support the Amendment given its exclusion of women.  Nevertheless, Stanton's "originalist" views on the rights of women are often invoked and Tracy Thomas has provided vital historical sources, analysis, and arguments regarding Stanton's position. 

Thomas' article is sure to provoke its own analysis and arguments, and equally sure to be an important contribution in contemporary debates regarding the legal regulation of abortion.  It's a must-read for any scholar working on this controversial constitutional area.

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[image of Elizabeth Cady Stanton circa 1880 via]

Georgia History and the 14th and 15th Amendments

On March 8, 1957, the Georgia legislature argued that "the continued recognition of the 14th and 15th Amendments as valid parts of the Constitution of the United States is incompatible with the present day position of the United States as the World's champion of Constitutional governments resting upon the consent of the people given through their lawful representatives," and passed a MEMORIAL TO CONGRESS -- FOURTEENTH AND FIFTEENTH AMENDMENTS TO U.S. CONSTITUTION BE DECLARED VOID.

The remainder of the Memorial can be read here.

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(h/t Diane Marie Amann via)

 

MLK Day 2012

President Obama's Presidential Proclamation on Martin Luther King Day, 2012, includes these words:

At a time when our Nation was sharply divided, Dr. King called on a generation of Americans to be "voices of reason, sanity, and understanding amid the voices of violence, hatred, and emotion."  His example stirred men and women of all backgrounds to become foot soldiers for justice, and his leadership gave them the courage to refuse the limitations of the day and fight for the prospect of tomorrow.  Because these individuals showed the resilience to stand firm in the face of the fiercest resistance, we are the benefactors of an extraordinary legacy of progress.

Today, Dr. King is memorialized on the National Mall where he once spoke, a symbol of how far our Nation has come and a testament to the quiet heroes whose names may never appear in history books, but whose selflessness brought about change few thought possible.  Dr. King's memorial reminds us that while the work of realizing his remarkable dream is unending, with persistence, progress is within our reach.

On the MLK memorial itself, the "drum major" quote has been the subject of controversy and is being "corrected."  The government sponsored MLK Day of Service continues to include the Drum Major for Service Award, as well as the correct/full "drum major" quote:   "Yes, if you want to say that I was a drum major, say that I was a drum major for justice; say that I was a drum major for peace; I was a drum major for righteousness… We all have the drum major instinct.”  Excerpt from The Reverend Dr. Martin Luther King, Jr.'s "Drum Major Instinct" sermon, given on February 4, 1968.

For ConLaw scholars, it might also be a good day to (re)read Randall Kennedy's "Martin Luther King's Constitution: A Legal History of the Montgomery Bus Boycott," 98 Yale Law Journal 999 (1989) (available on JSTOR) or Camille Nelson's " The Radical King: Perspectives of One Born in the Shadow of a King," 32 New York University Review of Law & Social Change, 485(2008) (available on ssrn), or view MLK's last speech.

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[image: personal collection]

Ron Paul and The Federal Reserve

With Ron Paul reportedly becoming a "serious contender" in the presidential primary, there is renewed attention to his views on the Federal Reserve as "dishonest, immoral, and unconstitutional," encapsulated in his campaign slogan, "end the fed. " 

An extended video, Fiat Empire, now about 6 years old, is a good introduction to the issues. 

The argument supporting the unconstitutionality of the Federal Reserve can be summed up in the phrase "the poster child of unconstitutional private delegation," cited to John Hart Ely in Timothy Canova's article, Black Swans and Black Elephants in Plain Sight: An Empirical Review of Central Bank Independence, available on ssrn.  Section 4 of the article is a great overview and argument regarding the Federal Reserve.  (I assigned this section last semester in Constitutional Structures in conjunction with Free Enterprise Fund v. PCOAB which Canova also discusses, and showed a short clip from Fiat Empire; it was well-receoved by students.)

As Canova notes, concerns about the Federal Reserve arise both from the "populist libertarian right" and the "populist progressive left" :  When "Representative Ron Paul, a Republican libertarian from Texas, introduced a bill to subject the Federal Reserve to an audit by the Government Accountability Office (GAO)" it was "cosponsored on the left by such Democratic and progressive Congressmen as Dennis Kucinich from Ohio and Alan Grayson from Florida." 

Canova and others, including Joseph Stiglitz, Jeffrey Sachs, and Robert Reich have been named experts on a panel advising a United States Senator to "develop legislation to restructure the Fed and tighten rules on conflicts of interest, ensure that the Fed fulfills its full-employment mandate, increase transparency, protect consumers and reduce income inequality."  That Senator is Bernie Sanders, Independent-Vt.   And while Paul and Sanders may agree on some aspects of the Federal Reserve, they seem to be very far apart on health care reform.

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Bill of Rights Day 2011

Today is Bill of Rights Day, marking the 220th anniversary of the adoption of the United States Constitution's Bill of Rights.

In his Presidential Proclamation last week, Obama stated:

On December 15, 1791, the United States adopted the Bill of Rights, enshrining in our Constitution the protection of our inalienable freedoms, from the right to speak our minds and worship as we please to the guarantee of equal justice under the law. For 220 years, these fundamental liberties have shaped our national character and stirred the souls of all who dream of a freer, more just world. As we mark this milestone, we renew our commitment to preserving our universal rights and perfecting our Union.

Introduced in the First Congress in 1789, the Bill of Rights was born out of compromise. The promise of enumerated rights enabled the ratification of the Constitution without fear that a more centralized government would encroach on American freedoms. In adopting the first ten Amendments, our Founders put forth an ideal that continues to define our Nation -- that we can have both liberty and security, that we need not sacrifice the rights of man for the rule of law.

Throughout our country's history, generations have risen to uphold the principles outlined in our Bill of Rights and advance equality for all Americans. The liberties we enjoy today are possible only because of these brave patriots, from the service members who have defended our freedom to the citizens who have braved billy clubs and fire hoses in the hope of extending America's promise across lines of color and creed. On Bill of Rights Day, we celebrate this proud legacy and resolve to pass to our children an America worthy of our Founders' vision.

Some would argue, however, that the Bill of Rights does not enshrine "the guarantee of equal justice under the law" in the Constitution, given that the concept of individual equality does not appear in the Constitution until the Fourteenth Amendment passed after the Civil War. The Fourteenth Amendment also introduced the word "male" into the Constitution, in section 2 regarding voting, although section 1 uses the word "persons."

The "Bill of Rights" as ratified does primarily focus on "rights," but the original Resolution of Congress consisting of twelve amendments did not concern rights.  Instead, they concerned Congress itself:

Article the first . . . After the first enumeration required by the first Article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which, the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

Article the second . . . No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

The latter became the 27th Amendment, ratified more than two centuries later in 1992.

Still, it's a good day to reflect on the "Bll of Rights":

• Amendment 1. 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.
• Amendment 2. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
• Amendment 3. No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
• Amendment 4.  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.
• Amendment 5.  No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
• Amendment 6. 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 defence.
• Amendment 7. In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
• Amendment 8. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
• Amendment 9. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
• Amendment 10. 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.

 

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[image from National Archives via] 

Mark Twain and Constitutional Law

It's the 176th anniversary of the birth of Mark Twain, an anniversary that while not a usual celebratory number (100, 150, or even 175) has been attracting some attention.   

Mark Twain has also received a bit of attention from the United States Supreme Court in constitutional law cases.

Perhaps most obviously the pseudonymous Mark Twain appears in the context of the First Amendment right to be anonymous.  In McIntyre v. Ohio Elections Committee (1995), the Court held unconstitutional a state statute prohibited the distribution of campaign literature that does not contain the name and address of the person or campaign official issuing the literature.  Ms. McIntyre had distributed leaflets from “CONCERNED PARENTS AND TAX PAYERS” opposing a proposed school tax levy and was fined.  The Court's opinion by Justice Stevens noted that "Great works of literature have frequently been produced by authors writing under assumed names."  The supporting footnote first lists "Mark Twain (Samuel Langhorne Clemens)" as an American who first comes to mind, followed by O. Henry (William Sydney Porter), and expanded with reference to writers such as Voltaire, and even making a brief foray into the status of Shakespeare, a controversy now appearing in theatres.

Other references to Twain support Twain's reputation as an eminently quotable writer.  William Douglas, dissenting in a First Amendment case regarding the notorious Smith Act, deploys a Twain quote as the opening salvo:

When we allow petitioner to be sentenced to prison for six years for being a ‘member’ of the Communist Party, we make a sharp break with traditional concepts of First Amendment rights and make serious Mark Twain's lighthearted comment that ‘It is by the goodness of God that in our country we have those three unspeakably precious things: freedom of speech, freedom of conscience, and the prudence never to practice either of them.

Scales v. United States (1961) quoting Twain, Following the Equator (1903).   And Justice Harlan, dissenting in the reapportionment case of Whitcomb v. Chavis (1971), discusses the mathematical and theoretical models regarding vote dilution and includes as the entirety of a footnote this: " 'There is something fascinating about science. One gets such wholesale returns of conjecture out of such a trifling investment of fact.’ Mark Twain, Life on the Mississippi 109 (Harper & Row., 1965)."

The most recent constitutional law citation to Twain is not to one of Twain's pithy aphorisms, but to a simple observation in the nature of a travelogue.  Justice Stevens, once again uses Twain in his opinion for the Court, but this time in the text rather than a footnote:

The relevant facts are undisputed. . . .  All agree that Lake Tahoe is “uniquely beautiful,”  that President Clinton was right to call it a “ ‘national treasure that must be protected and preserved,’ ”  and that Mark Twain aptly described the clarity of its waters as “ ‘not merely transparent, but dazzlingly, brilliantly so’  [citations omitted].

The case is Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (2002), quoting Mark Twain, Roughing It 174-175 (1872),in which the Court rejected a takings clause challenge to a moratorium on building in the area surrounding Lake Tahoe. 

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[image via]

The First President's Thanksgiving Proclamation

By the President of the United States of America, a Proclamation.

Whereas it is the duty of all Nations to acknowledge the providence of Almighty God, to obey his will, to be grateful for his benefits, and humbly to implore his protection and favor-- and whereas both Houses of Congress have by their joint Committee requested me to recommend to the People of the United States a day of public thanksgiving and prayer to be observed by acknowledging with grateful hearts the many signal favors of Almighty God especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness.

Now therefore I do recommend and assign Thursday the 26th day of November next to be devoted by the People of these States to the service of that great and glorious Being, who is the beneficent Author of all the good that was, that is, or that will be-- That we may then all unite in rendering unto him our sincere and humble thanks--for his kind care and protection of the People of this Country previous to their becoming a Nation--for the signal and manifold mercies, and the favorable interpositions of his Providence which we experienced in the course and conclusion of the late war--for the great degree of tranquility, union, and plenty, which we have since enjoyed--for the peaceable and rational manner, in which we have been enabled to establish constitutions of government for our safety and happiness, and particularly the national One now lately instituted--for the civil and religious liberty with which we are blessed; and the means we have of acquiring and diffusing useful knowledge; and in general for all the great and various favors which he hath been pleased to confer upon us.

And also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations and beseech him to pardon our national and other transgressions-- to enable us all, whether in public or private stations, to perform our several and relative duties properly and punctually--to render our national government a blessing to all the people, by constantly being a Government of wise, just, and constitutional laws, discreetly and faithfully executed and obeyed--to protect and guide all Sovereigns and Nations (especially such as have shewn kindness unto us) and to bless them with good government, peace, and concord--To promote the knowledge and practice of true religion and virtue, and the encrease of science among them and us--and generally to grant unto all Mankind such a degree of temporal prosperity as he alone knows to be best.

Given under my hand at the City of New York the third day of October in the year of our Lord 1789.
George Washington

 

While the holiday did not become an official part of the United States legal and cultural history until much later, Washington's proclamation is important for constitutional law professors and historians considering the holiday in the context of the Establishment Clause of the First Amendment.

RR
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LOC Posts "Father Chief Justice," a Constitutional Play

Actor, playwright, and Con Law Prof Paul Baier (LSU) staged his play "Father Chief Justice" Edward Douglass White and the Constitution last spring at the Library of Congress.  The LOC has now posted the play on its web-site and on YouTube; we embedded it here:

 

The cast is very impressive:

• Charles J. Cooper as Chief Justice White
• Ronald S. Flagg as Justice Harlan
• Tom Goldstein as Justice Brandeis
• Donald A. Hoffman as Justice Holmes
• Roberta I. Shaffer as Fanny Holmes
• Jacob A. Stein as Justice Holmes
• Paul Baier as Professor Richard Henry Jesse

Check it out.

SDS