Sheridan: Con-Law

CONSTITUTION SUSPENDED FOR A WEEK

Did you know that Congress could suspend the Constitution for a week at a time for as long as it likes?

Neither did I.

The news is that Congress has passed a bill that the president likes, make that 'loves,' and will thus sign forthwith.  The gist of the new bill, per the New York Times's Eric Lichtblau, is here:

The deal, expanding the government’s powers in some key respects, would allow

intelligence officials to use broad warrants to eavesdrop on foreign targets and conduct

emergency wiretaps without court orders on American targets for a week if it is

determined important national security information would be lost otherwise. If approved,

as appears likely, it would be the most significant revision of surveillance law in 30 years.

The full article is below.

Last week, the Supreme Court, in Boumediene v. George W. Bush, President of the U.S., held, in a 5:4 decision written by Associate Justice Anthony M. Kennedy, again the swing-vote, stated that the Constitution was intended to be our rock and our anchor in the most trying of times, such as emergencies, like the attack on Pearl Harbor and 9-11. 

Yet today we see Congress suspending the Fourth Amendment if the FBI or another governmental agency finds itself all in a lather because the latest bad guy they're tracking, and want to wiretap or otherwise bug, can be said to be trying to destroy the world, or the U.S., or even, perish forbid, San Francisco.

I don't get it.  The police are required by law to observe the Fourth Amendment (Search and Seizure limitations, such as no general search and the requirement to obtain a warrant particularly describing the person, place, and thing sought to be searched and/or seized) even when chasing mass murderers.  We don't have a serial killer exception to the Fourth Amendment. 

So where does Congress get off purporting to suspend the Constitution's warrant requirement for a week at a time just because some cop (they're all cops) says "This is an emergency."  When my garage door opener fails to function correctly, that's an emergency.  Some bad guy might sneak into the building and break into cars or shake doorknobs.  The problem is that there is no accepted definition of an emergency.

When may the police listen in on your conversations?  Whenever they feel like it.  "Oh, we thought it was an emergency..." 

Yeah, right.

Before I declare the new law to be unconstitutional on its face, I have to recognize this:

The fact of the matter is that we've had an emergency exception to the Fourth Amendment for decades.  The case in San Francisco had it that two police detectives were listening outside a door, a door that could be yours.  They were listening for sounds of occupants that could be associated with packaging or using narcotics.  What the cops heard was a warbling sort of sound.  So they kicked in the door without warning or warrant.  The resulting seizure of drugs was upheld based on the we-make-this-stuff-up-as-we-go-along doctrine called "exigent circumstances," which is legalese for "emergency."  The cops testified that the warbling sound appeared to them as though made by a human in distress. 

Yes, it turned out to be pigeons, but the testimony was enough to save the search and obtain a conviction, which was upheld by the California Supreme Court. 

I no longer remember the name of the case, but if it turns out to be Roberts I wouldn't be surprised.  The cops, or one of them, met a bad end.  You'd never want to trust anything he said.  I knew him, and prosecuted several of his cases.  His true colors came out long afterwards.  Young DAs tend to believe their cops.

My guess is that the lower courts, and maybe the Supreme Court, will uphold the new statute on grounds that Congress is only doing what the courts have done all along, that is, recognize that exigent circumstances permit security forces to drive tanks through the Fourth Amendment. 

You read it first here.

THROW OUT THAT CONSTITUTION: A NATION OF CHICKENSH*TS

We either have a Constitution or we don't.

It happens that we do.

Men, and women, have fought face down in the mud to preserve it.

Yet we have judges, who are sworn upon their oath to protect and defend it, who seem only too eager to toss it aside as though none of this mattered, out of fear.  Fear of bogeymen called "terrorists."

Yes, we have terrorists.  They can blow up anything they get near wearing suicide vests strapped with dynamite, and vehicles filled with "bird shit and diesel oil" as a friend who works in the biggest iron mine in the world terms it.  This would be the Frog, who drives a 240-ton dump truck in the Rio Tinto owned mine in Tom Price, the Pilbarra, Australia.  This mixture of primitive, easily obtainable ingredients is how they loosen the ore.

The operators of some baseball ballparks have taken to searching ("patting down") all the patrons of the national pastime who show up for the game.  Some have sued.  None successfully, as yet.  These patrons, red-blooded Americans, one presumes, do not like to have their privacy intruded upon by ballpark lackeys.

So they've sued.  And lost.

The latest, and most local, is below, in which patrons of the San Francisco 49'ers football team have sued and been told by San Francisco judge, and friend of the writer, Tim Reardon, in a 2:1 decision of the California Court of Appeal, First Appellate District, that they have no case, as in entering the ballpark with knowledge of the search policy, they've waived (given up) their Fourth Amendment right to be free of unreasonable search without a warrant. 

This Constitutional guaranty requires that before anyone may be searched that an individualized suspicion of wrongdoing fall upon them because of something that they did, not who they were by race, ethnicity, or religion.  This means that before a cop can stop and frisk you, s/he must be able to state specifically the reason why you did something suspicious.  Going to a ballpark in America is not a suspicious act, at least not yet, but with paranoia (excessive fear, impervious to reason) as rampant as it appears, going to a sports event might soon be deemed a terrorist act.

At this point, the terrorists seem to have won. 

The sky is falling, say the appellate courts. 

The boogieman will getcha!

I'd thought we had more guts.

Had all the persons in the World Trade Center been screened for weapons on 9-11, they still would have died, because death came from the sky.

All of the people in the Pentagon were screened for illegal weapons before entering that same day, and they died for the same reason.

I've driven by Giants stadium, another ballpark in San Francisco on game days and haven't yet noticed that all the cars are searched for bombs, or were diverted to prevent coming near the park. 

Yet all of the patrons are searched, apparently to prevent entrance by one vest wearing terrorist.

Perhaps it would have been better for the Court of Appeal to have ruled that patrons assume the risk of terrorists upon choosing to enter a ballpark, just as we do when we visit Union Square or Golden Gate Park.  Does Macy's screen patrons by frisking them first before entering the store?  They don't.  At least not yet.

It seemed to me that I was free to travel about the country without being molested, threatened, or harassed by overzealous cops.  That was the theory, at least.  I was once stopped and questioned at Lake Tahoe for wearing a London Fog raincoat, according to the cop.  No one at Tahoe had ever worn one of those before, I supposed.  As I was en route to a job interview with a casino boss who was known to the officer, I was allowed to pass, this time, at least.  I didn't enjoy the experience.  I dumped the raincoat.

Key to the reasoning of Justice Reardon is the notion that the ballpark is a private operation and that private operators are different than government regulators, which is a well-established and virtually uncontested distinction in America since the Civil Rights Cases of 1882 (109 US 3, 3 S.Ct. 18, 27 L.Ed. 835).  This package of cases held unconstitutional the Civil Rights Act of 1875, which made it a federal crime [for any white person] to deny any person (meaning, at the time, freed slaves, blacks) "the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude."

That certainly sounds good, doesn't it?  Why should that be held unconstitutional?  Aren't these the rights we guarantee all people today by virtue of the Civil Rights Act of 1964? 

Why do you think we needed the Civil Rights Act of 1964?  Because of the decision in the so-called Civil Rights cases which denied equal access to public accommodations such as public conveyances (railroads, ferries, taxis, buses, etc.) as well as parks, theaters, and restaurants.  The attitude of many whites at the time was that they were tired of doing good things for blacks, what with having fought a war to free the slaves.  The blacks, since the presidential election of Hayes over Tilden in 1875, were left to hang in the cold on their own, with significant disadvantages in wealth, education, social status, visible color, and on and on.  Blacks could starve, in other words, as far as a lot of whites were concerned.  What they couldn't do was to enter a theater or restaurant and eat alongside whites. 

The social gulf was immense, and has stayed that way ever since, with few exceptions, even today, despite legal protections in other areas such as in education, voting, and public accommodation.  We still see a great deal of private-choice segregation in housing.  The result is a self-perpetuating cycle of private decision-making which separates two identifiable groups as a practical matter, on the ground.

In the Civil Rights Cases, prosecutions and federal convictions, based on the Civil Rights Act of 1875, followed the denial of admission to an inn (the hotel-motel-restaurant of the day), a theater, and a railroad car of black people by the white owners of the premises who appealed to the U.S. Supreme Court.

Today we would say that these businesses were a significant part of interstate commerce and we would
say that as a result Congress had the power to legislate in this area.  That, in fact, is the theory on which the Civil Rights Act of 1964 was upheld, not on the basis of grand moralistic ideals.

But in 1883 the Commerce Power, and human sensibility among whites, meaning the justices, still needed further development before blacks would be allowed to benefit.

And so the Court held, in 1883, that the acts of private owners, unsupported by prohibited state action, were not matters on which Congress could regulate or prohibit.  Congress is not allowed to prohibit you from making private decisions such with whom you will go fishing, or party, or socialize, or marry.  Here you are free to make choices based on anything you want, including race, religion, ethnicity, hair-color, and the like.  Why?  Because the Constitution regulates mainly government activity, and your private choice is not government activity (prohibited state action).

So this becomes a major distinction in American law, to this day.

Thus, it is not the State of California which requires all patrons of the ballpark to be searched, but the operators of the privately built ballpark.

Would it make a difference whether the ballpark were built with municipal funds?  Or enjoyed, as they do, special City and County of San Francisco police protection at public expense?

Perhaps.

Suppose the municipality subsidizes the team owners in order to attract them to locate here, as often happens, allowing them to keep the lions share of parking and concession sales revenues.

Since a great deal of allegedly private activity is supported by not only the general governmental protection system, corporate, legal, etc., and enjoys licenses to serve alcoholic beverages, we've developed a doctrine which holds that if private activity is too "entwined" (commingled) with public support activity, it can be held public by osmosis, no longer private.

Would it make a difference in the ball park case whether the operators were so entwined (or intertwined) with public authority so as to be deemed to be exercising a power (to search) usually reserved to state officers?  (Private persons can exercise a power of search, such as shop owners who detain suspected shoplifters).

It makes no difference if a court holds that the patron has waived his constitutional right to be free from illegal search by virtue of just showing up at the park and trying to pay to enter.

It is common for persons convicted of a crime, particularly a crime of possession of contraband such as drugs, weapons, theft, as well as crimes of violence, to plea bargain away their right to be free of police or probation officer search for the period of probation, most commonly three years.  They agree to be subject to the search of their person, place, or residence in the day or night with or without probable cause by any police office.  This waiver, however, only occurs after the individual has been represented by counsel and signs a detailed waiver form indicating that he is giving up important constitutional rights.

Walking into a ball park is not that.

The important thing in taking a waiver is that the person knowingly, intelligently, and voluntarily give up certain rights, then it's okay.  Boykin, Tahl, and Mills are case that come to mind.

You can argue legal doctrine all you want, but what underlies the arguments is that the outcome depends on how afraid you are that if you don't allow certain preventive action, some dire thing will happen.

After Pearl Harbor, rounding up Japanese-Americans on the West Coast seemed reasonable to whites who didn't know or care about Japanese-Americans.  The fear was that a few may turn out to be spies, and the Empire of Japan had just sunk our battleship fleet in Honolulu, leaving the Coast open to invasion.  San Franciscans had nightmares about the Japanese fleet showing up and entering the Golden Gate.  A Japanese with a lantern in a window, or on a fishing boat, was all that was needed.  Therefore, round them up.  Paranoia.  Fantasy is always based on at least the merest bit of fact.  Fossilized dinosaur bones have been found in China for millenia.  They look like large bird egg bones.  Very large.  Now you know where the idea of dragons come from.  From a scrap we invent wondrous, magical, scary, fairy tales.

After the Civil War, depriving blacks of civil rights to public accommodations seemed reasonable, to whites.  In 1896, building on the 1883 case, the Court held in Plessy v. Ferguson, that when it came to railroad passenger cars, blacks could be kept separate from whites so long as the accommodations provided to blacks were equal.  Hence white and black cars, white and black restrooms, white and black water fountains, white restaurants and blacks could be served out the back window, white and black schools, white and black sections of the beach or park, and many more, as the idea was pervasive that blacks were somehow impure and whites didn't want to suffer impurity, as in the Indian caste system where the progressive levels of impurity reach from the Brahmins at the top, on down to the Untouchables at the bottom.

Judge Reardon, a former college champion prize-fighter at Notre Dame, is apparently afraid that if thousands of fans are admitted to the ballpark without being searched, Ali-the-Terrorist, representing Al Qaeda, will blow up the bleachers and all who take the sun there.  That would be bad for fans, for baseball, and America.  I grant that.

Yet I still maintain that it is wrong to search all of these people, waiver or not.  If we are so afraid that Ali will hit today, or any day, call off the game.  There is no constitutional right on the part of a ballpark owner to stage a spectacle at which thousands of members of the public will come and be blown up by a terrorist.  Ballpark owners are in the same boat with the rest of us.  We all take risks every day we walk in public on the street.  Yet we don't search all pedestrians.

If we are  not fearful of Ali striking today, allow the game and let the people in, but keep a sharp eye peeled for Ali, not Maeve O'Brian, the proverbial 60-year-old Irish woman.  Perhaps different at Wembley Stadium in Britain where you might want to search O'Brian.  Very few O'Brians support Al Qaeda in America, I suspect.

Yet we say that now is different. Ballpark operators are responsible for the safety of their patrons.  Yes, and so are cities which have public places to gather, yet we do not condition their use on a waiver of constitutional rights.

And when we give up those rights without a fight, we are sheep led to the slaughter.

We ought to be made of sterner stuff.

CONSTITUTION BROKEN, CAPTURED BY MORONS

Yesterday I wrote that Congress was broken.  Today I find out it's the whole Constitution that's broken.

Conlawprof Sandy Levinson, one of the most perceptive, has an Op-ed entitled "Our Broken Constitution" in today's L.A. Times.

Among his main points?

We've got a president who most in the country no longer support for his disastrous and sometimes illegal and unconstitutional policies, yet we're stuck with him, unlike in a parliamentary democracy such as Great Britain, where a no-confidence vote is enough to force a new election.

Also states like California, with 35 million people, have two senators, the same as a state like Wyoming, which has a half million residents.  That's a 70:1 disparity in voting power, in favor of the cowboys of Wyoming.  Prof. Levinson explains some of the implications, all bad, except for Wyoming and the other smaller states.  In Britain before the great Reform Bill in the early 19th century, 1832 if memory serves, they called such empty voting districts "Rotten Boroughs."  We've got rotten states, no disrespect to the people of the great state of Wyoming, pipsqueak that it is.

Next time the president tells you we have to go to war to spread democracy, ask if he's referring to California and New York, which could use a lot more, or Wyoming, the Dakotas, Rhode Island, and Delaware, which could stand a bit less.

Reminds me of Walt Kelly's cartoon character "Pogo" who famously said,

We have met the enemy and he is us.

And Thomas Wolfe's (1900-1938), We're fighting "to make the world safe for hypocrisy."

'Where've they got you stationed now, Luke?' said Harry Tugman...

'At the p-p-p-present time in Norfolk, at the Navy base', Luke answered, 'm-m-making the world safe for hypocrisy.'

                       [Look Homeward, Angel_ by Thomas Wolfe. 1929]

The reference is to Pres. Woodrow Wilson, who promised that World War One, aka The Great War (1914-1918), the "war to end all wars," was being fought "to make the world safe for democracy."

We've been captured by morons, and we've been warned.

This is not a good way to go, I'm afraid.

When someone tells you to get ready to sacrifice your son in the name of some great pie-in-the-sky ideal, this is the time to start looking around at his options.  Which reminds me of an attorney I was driving to court with on the eve of the 1991 Persian Gulf War and expressing unease at the country going to war, regardless of the cause.  He pointed out that during the Vietnam War, when he was a student at Princeton, his parents had rented him an apartment in Canada, in case his name was selected for the draft, which it wasn't. 

We lost eight soldiers the other day in suicide attacks in Baghdad. 

The Iraqis lost dozens and dozens in calculated, sectarian, torture-murders.

Every day. 

Democracy. 

Hypocrisy.

America.

Bush.

Us.

POP QUIZ

From the Chronicle of Higher Education:

A Pop Quiz for Constitution Day

By LAWRENCE DOUGLAS and ALEXANDER GEORGE

In late 2004, Congress passed a law (118 Statute 2809, 334-45 [§ 111]) mandating that "each educational institution that receives federal funds for a fiscal year shall hold an educational program on the United States Constitution on September 17 of such year for the students served by the educational institution." Sadly hundreds, if not thousands, of American institutions of higher education failed to stage Constitution Day events in 2005, the first year of mandated observance — thereby imperiling their federal subsidies. In an effort to help colleges and universities comply with federal law, we have prepared the following quiz that can be distributed to professors, administrators, and students alike.

(Because September 17 falls on a Sunday this year, Constitution Day will officially be observed on Monday, September 18.)

1. The Constitution was drafted in the summer of 1787 by:

1. A multicultural body that reflected the broad diversity of America of the day, including women, Native Americans, free African-Americans, and slaves
2. 55 white, privileged Protestant men
3. 54 white, privileged Protestant men and one slightly confused white Catholic male thrown in for good measure
4. Moses

2. Who believed that the American Constitution should be set aside and rewritten every generation?

1. The liberal senator from Massachusetts
2. Nikita Khrushchev
3. Satan
4. Thomas Jefferson

3. What are the first words of the Constitution?

1. "Oh say can you see"
2. "Yo, peeps"
3. "We, the People"
4. "In the beginning"

4. Where is the Constitution?

1. In the National Archives
2. In the Oval Office wastebasket
3. In an undisclosed secure location
4. In Senator Byrd's pocket

5. Who engrossed the Constitution?

1. Activist Supreme Court justices
2. Franklin D. Roosevelt
3. Jacob Shallus, the Engrosser
4. Dolley Madison

6. Article One, Section Eight enumerates the explicit powers of Congress. Included is the power to "regulate commerce ... among the several states." That power to regulate interstate commerce authorizes Congress to:

1. Do anything it wants
2. Do virtually nothing
3. Do anything it wants except ban the carrying of automatic weapons in the vicinity of public schools
4. All of the above

7. Article One, Section Eight further declares that it falls to Congress "to declare war." This means:

1. Congress may cravenly delegate its war-making powers to the president.
2. Congress may cravenly delegate its war-making powers to the president.
3. Congress may cravenly delegate its war-making powers to the president.
4. All of the above

8. Article Two stipulates that "no person except a natural-born citizen" can be president. As a consequence:

1. No one born by cesarean can be president.
2. Progeny of alien insemination cannot be president.
3. Those born in Guantánamo Bay prison must take their case before the Supreme Court.
4. Arnold Schwarzenegger is out of luck.

9. Article Two stipulates that the president will appoint judges of the Supreme Court with the "advice and consent of the Senate." This means:

1. Senators may ask a nominee questions about everything except what he or she believes the Constitution means.
2. Senators may ask a nominee any question but mustn't expect the nominee to remember any of his/her opinions about any contested legal issue debated in the last 30 years.
3. Senators may ask any question as long as it does not bear on any legal memos, articles, or decisions drafted by the nominee in the last 30 years.
4. The president will advise, and the Senate will consent.

10. Those who believe the Constitution should be interpreted according to the original intentions of the framers overlook the fact that:

1. The framers failed to leave behind complete records by which all their intentions could be reconstructed.
2. Different framers had different views, making it impossible to speak of a univocal intent of the framers regarding almost anything.
3. Society has so evolved that it is absurd to speak of the framers' intentions with respect to the constitutionality of electronic wiretaps, copyright issues governing digital media, stem-cell research, and other matters of great import today.
4. The leading framers intended that their specific intentions should not control future interpretations of the Constitution.
5. All of the above

11. The Ninth Amendment states that "the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." The Supreme Court has treated that language as:

1. The constitutional foundation for a broad range of unenumerated rights
2. Excluding the right to be free from indoctrination about the Constitution on September 17 of each year
3. Irrelevant
4. Embarrassing

12. The 14th Amendment guarantees the equal protection of the laws. This means:

1. States are empowered to adopt a broad range of affirmative-action programs in order to deliver on the Constitution's promise of equality.
2. States are forbidden from adopting affirmative-action programs because these make hash of the Constitution's promise of equality.
3. Both a and b
4. It all depends on Justice Kennedy.

Correct answers: 1. c; 2. d; 3. c; 4. a; 5. c; 6. c; 7. d; 8. d; 9. a-d; 10. e; 11. c, d; 12. c.

Lawrence Douglas is a professor of law, jurisprudence, and social thought at Amherst College and the author, most recently, of the novel The Catastrophist (Other Press, 2006). Alexander George is a professor of philosophy at Amherst and the creator of the Web site AskPhilosophers.org

ACTIVIST PRESIDENTS

So, does this make GWB an 'activist' president?

If there's one thing I hate more than an 'activist' judge who reads the Constitution any which way to serve his political agenda, especially if it's in the wrong direction, it's an activist president who does the same thing.

Under the Foreign Intelligence Surveillance Act (FISA), a special secret court (a contradiction in terms, but let's ignore that for a moment, shall we?) is set up that meets in the Department of Justice building in Washington.  Hand-picked (by the Chief Justice of the United States) federal judges go in there and listen to lawyers from the DOJ explain why they need to spy on Americans or others in the U.S. who are suspected of being terrorists, or of cooperating with them, or who will lead our counterspies to them.

In case of emergency, the FBI, say, can act first to plant a bug, or the functional equivalent in today's high-tech world, and ask permission later.

So the president didn't really need to go outside the Constitution to authorize a program of secret spying on us.

But Attorney-General Gonzales, the president's legal yes-man, says that it wasn't a secret and that Congress was kept informed, etc.

But Sen. Harry Reid of Nevada, the leader of the Democrats, says this is Bush-waa:

"...Under current Administration briefing guidelines, members of Congress are informed after decisions are made, have virtually no ability to either approve or reject a program, and are prohibited from discussing these types of programs with nearly all of their fellow members and all of their staff."

What this means is that the few members of Congress who are told anything about an illegal practice can't do anything about it anyway, for that would be giving up the secret.

This is a little crazy, what?

Does this pass rational basis?  Not in my world.

I wonder what the president has to do to do anything illegal under the Bush doctrine?

Let's see:  the president can kidnap, torture, hold people indefinitely without bringing them to court, send them on an airborne merry-go-round to foreign lands where so they can be tortured without our getting blood directly on our hands.  He can twist the Authorization to Use Military Force (AUMF) passed at his request to authorize the use of the military in Iraq to permit him to disregard the FISA law AND the Fourth Amendment that he is sworn faithfully to defend.

The Bush Doctrine seems to be that "if I dream it up and want it, it's legal."

How is this different than King John, who met his comeuppance at Runnymede in 1215 when the barons, at sword-point, forced him to sign Magna Carta, the relevant portion of which you can read in the upper left margin of this blog?

Answer:  Congressmen and women wear no swords...

Where are OUR barons at Runnymede when we need them?

Oh, no ones estate is at risk, so don't expect them to show?

I'm putting my money on Baron Feingold of Wisconsin, backed by Baron Reid.

Baron Spector will be in the tent, I'm sure, even though he's a member of the King's party.

Here's a photo [click to enlarge] of the American Acre at Runnymede where the American Bar Association set up a memorial in observance of our indebtedness to the barons and the rule of law despite an unruly king:

Here's a photo of the barons forcing King John to sign Magna Carta.  He's the one with the feather.  The photo is in Black & White because this is the early days of photography, I guess...

Check the guy in the middle. Is he resting both hands on his sword?  If so, he's the one you don't want to fool around with if you're the king.  No metal detectors in those days...they could attend to business.

The president is claiming, this evening, that he was acting legally.

If the president claims that his acts are legal, does that make them legal?

If so, then Pres. Nixon acted legally in authorizing the Watergate break-in, and the burglars, called 'plumbers,' who were convicted of crimes, had a good defense, which, of course they didn't.

I suppose we could hang a sign around that president's neck that says:  "I am the President.  What I say is law.  I can do no wrong.  Neither Constitution nor statute can control anything I do, for I act to protect the American people against evildoers and terrorists.  9-11. QED."

Does this make you feel more secure, to see GWB walk around with a sign like that around his neck?

Oh, Barons, where are you!?

Here's a cool Magna Carta site.

Dahlia Lithwick's take on King George is below:

A LIVING DOCUMENT

Tonight on MSNBC-TV Brian Williams is interviewing Pres. George W. Bush about the Iraq War and the decisions relating to it.

President Bush cited as progress in the war effort that Iraq had adopted a constitution which the Iraqis will in the future improve on.

We improved on our own Constitution the president said, "It's a living document."

I almost fell out of my chair to hear the conservative, Republican president characterize the Constitution as a "living document," considering that Justice Scalia, one of the most conservative constitutional law interpreters on the planet, dislikes that characterization with an intensity that would be difficult to overstate.  As best I understand him, the constitution is a piece of paper that was written in 1787 and the text hasn't changed at all, except for an amendment here and there.  All the rest of constitutional law is less legitimate stuff read into the Constitution by 'activist' judges, particular the liberal ones of the Warren Court.  You know, the Court that declared segregation a violation of equal protection when based on race in the public arena, such as schools, at first, and polling booths, restaurants, hotels, parks, beaches, golf courses, etc., later, with a boost from the Civil Rights Acts of 1964 and 1965, which the Court found constitutional over opposition; and the Court that uncovered a right of privacy in 1965 in the Constitution in a decision called Griswold that led to Roe v. Wade and Lawrence v. Texas.

I'm glad to hear my president say on national TV that the Constitution is a living document, just as so many students claim on exams (they also say that it 'evolves,' but I don't want to get into evolution here.  I'm still looking for the intelligent design).  I guess this tells Justice Scalia that his view of the Constitution is not shared by all conservative Republicans.

Bush for the Supreme Court!

IRAQ

We invaded Iraq on the pretext that Saddam had WMD.  Well, he acted like he had WMD and didn't come clean when spread-eagled up against the wall.  So we went in and toppled him, because he was a bad actor, WMD or not.  We're glad he didn't have them.

We've been surprised by the insurgency.

There's also a constitutional convention underway.

This leads a few folks to wonder whether it's possible to draw up a constitution for a place like Iraq.  The Kurds in the north want to be free, the Shia in the south want no part, and the Sunni want to run the show or go home with their football.

In other words, they don't want to be in bed together.  But a constitution is a marriage contract, for better or for worse, for now and forever, unless, of course, there's a civil war such as the one we had between the North and the South.

You don't need a written contract spelling out all the what-ifs in order to have a marriage, any more than you need a written contract (or constitution) to have a country.  Britain has no written contract.  We do.  We still had a civil war.  So did Britain.

Iraq is trying to patch together a marital contract for three groups of people who are stuck in bed together, don't want to be there, and have no place to go.  They either have to figure something out to keep the peace or its like putting three Siamese fighting fish in the same tank.  Two of them fail to thrive and the survivor doesn't feel so good.

I hope that with the help of the neighbors Iraq can patch something together.  I may feel a little odd about having toppled a dictator in the name of WMD who doesn't have WMD, in hindsight, and to "restore democracy," which we always say but rarely enforce, and when we do it turns out that they have less democracy than we do, and women are still treated like slaves, and a regressive form of shari'a, Islamic law is imposed, but that's hard cheese for me, isn't it.

TOO HARD TO THINK OF EVERYTHING

Attorney Ed Weil of the California Attorney-General's office must've gotten a wee tired of all the fol-de-rol attending the latest effort to (re)-shape the U.S. Supreme Court in the image of the president's party, so he did what you might expect a lawyer to do.  He took pen, or keyboard,  to hand, and shot off the following to the S.F. Chronicle.

I'm thinking that maybe he'd like to see the conservative nominee, John Roberts, no relation to Julia so far as I know, be a bit more liberal if he's confirmed. 

I'm expecting Roberts to act as a combination of moderate to conservative in a conservative direction, and am willing to take bets on that.  Who knows, he may strike a blow for liberty some day, the way Justice Anthony M. Kennedy has in Lawrence. 

Conservatives like liberty, especially for themselves. 

It's when they extend it to the disfavored classes that conservatives shine.  This is not something that happens every day, so when it does, it's remarkable.

When you launch a ship, you never know what seas it will sail and storms weather.  The best you can hope for is a sound hull, sturdy crew, and wise captain.

Or, to switch the metaphor, the president as baseball team manager, waves to the bullpen for the new young phe-nom to come onto the field, as Sandy-babe is leaving the mound after pitching a tremendous game for a lot of innings.  Roberts takes a few warm-up pitches before the Senate, and then starts dealing.

'Attababy, Roberts, right here, baby...

On another note, the Conlawprofs were discussing the significance of a nominee's membership in an organization such as the Federalist Society, which drew this response from DEB:

It's pretty foolish to ask about membership in the Federalist Society because from personal experience, I can tell you that members range from moderate conservatives (more moderate than, say, O'Connor or Kennedy) to Christian rightists to anarchist individualists. 

Judicial philosophy ranges from Borkean anti-judicial review views to Randy Barnettian presumption of liberty. 

In short, membership in the Federalist Society tells  you nothing about a nominee except that he or she is not "on the left", which one presumes would be true about any Bush Supreme Court nominee.

HOW MANY CONSTITUTIONS DO WE HAVE TODAY?

We've got more Constitutions than you may have imagined.  Let's see, there's the one invented in:

1787, as modified in 1791 with the addition of the Bill of Rights. 

The U.S.A. opened for business in New York City in 1789, you'll recall, after a long period of operation under the Articles of Confederation.

We officially declared independence publicly on July 4, 1776.  Yesterday was our birthday, celebrated with fireworks.

Then there was some drafting time while the fighting went on, bringing the date the Articles were agreed on to Nov. 15, 1777.

Then there had to be some time for this first constitution to be ratified by the member states.  occurred on March 1, 1781.

Everything takes so long to do!

So that's when we got our first Constitution, the Articles of Confederation.

That one was good enough to keep us sailing after separation from the Mother Country, Great Britain, King George III, Parliament and all those Redcoats quartered in Patriot homes with our daughters'n'all.  But it turned out to be no good for trade, and the newborn nation was deeply in debt and bankrupt.  We owed the Dutch, the French, the states, and a lot of private bankers and lenders.  Those were brave venture capitalists, lending money to the likes of us in those days.

We could call the Articles the Constitution, Version 1.0

Let's call the 1787/1791 version, the one in the Framers' minds Version 2.0 and Ver. 2.1, with the Bill of Rights.  This was good to get us going but it stunk in other respects, for in order to get us going the North had to compromise with the South to look the other way on slavery and the slave trade, which are two different issues.  You could prohibit importing slaves (and drive up their value on resale, the home-grown variety being, perhaps more useful as more acculturated to subservience) which the South didn't rebel over, but you couldn't prohibit owning slaves.  That would've seemed to the South as a prohibition on farming.  So this Constitution had to go and it was going to take a very big war to do it.

But the Framers still didn't get the Constitution right even after adding the Bill of Rights as part of a deal to get the thing ratified at all.  States weren't supposed to be able to be sued, but someone successfully sued a state and all hell broke loose, with Congress immediately amending the Constitution to add Amendment 11 in 1797 that protected the States from being hauled into court and forced to pay money damages by mere people.  This will be Ver. 2.1.1. 

That case, incidentally is Chisholm v. Georgia (1797) where Chisholm, the administrator of an estate, sued the State of Georgia to recover money the state had borrowed to fight the Revolution from the guy who died.  Chisholm collected, Georgia appealed, and lost in the U.S. Supreme Court.  Georgia got Congress to amend the Constitution to invalidate the Supreme Court decision and settled out of court with the estate for a few cents on the dollar, but we're still stuck with the Eleventh Amendment.

Stuck?  With one of our vaunted constitutional guarantees?  They're not all vaunted.  Take the protection of slavery, for instance.  The Eleventh provides the states with something called sovereign immunity.  That doctrine comes down to us from the days of kings, called sovereigns.  What made the king a king was that he had the final say over everything in the kingdom.  He could take your land and your head just by his say-so.  The U.S. was an attempt to get away from kings.  Importing sovereign immunity was stupid.  States are responsible for their debts and wrongdoing just as you'n'me.  Or should, but for sovereign immunity.  Let the state buy an insurance policy, the way businesses do, if it wants business-operation protection, it'll be cheaper in the long run, perhaps.

Then we had this big Civil War that saved the Union and freed the slaves.  The slave trade had been stopped earlier, internationally, with the British Navy doing yeoman's service, to its great credit.  See Adam Hochschild's new book, Bury the Chains for the remarkable story of how slavery, so taken for granted for thousands of years that not even Jesus spoke out against it, was ended when some churchmen in England, Quakers, actually, got together and spent the next 140 years or so agitating against it.  Houghton Mifflin, 2005.

After the Civil War the 15 million or so slaves were freed.  Now we didn't have a slavery problem, we had a labor problem.  They had no jobs, no savings, no education, no home of their own.  And a lot of them were searching for lost spouses and children.  To make matters worse, the plantation owners, the former masters, some of them, tried to charge them rent for living in the former slave quarters.  The whites were not happy with all these newly freed, no longer subservient blacks.  Tensions grew. 

The president sent federal troops to the South, which the South did not like at all, Yankee troops on Rebel soil.  It was a bit like Osama Bin Laden objecting to U.S. troops on Muslim soil, resulting in 9-11.  Congress passed bills to Reconstruct the fallen South, hence the term, hated in the South to this day, of "Reconstruction," which was a sort of forced integration at the point of a bayonet. 

This ended in 1876 when we had a presidential election that went like Bush v. Gore in 2000, only instead of the Supreme Court picking the winner, Congress did, as the result of a deal, as most Congressional decisions are, because that's what politics is, deal-making, and you wouldn't want it any other way, would you.

Between the end of the Civil War, 1865 and 1872, the victorious North consolidated its military gains with legal ones, by amending the Constitution, Ver.2.1.1, with Amendments 13, 14, and 15, which guaranteed freedom for the former slaves, granted them citizenship, and provided them, and us, with equal protection, due process, and full privileges and immunities, whatever these might be. 

Oh yes, and the right to vote was also given to the newly freed slaves (but not white women, which gave birth to the Women's Suffrage movement which resulted a long time later in yet another amendment).

Let's call our post-Civil War Constitution with those three amendments Ver. 3.0 for the sake of simplicity.

We have quite a few additional amendments since, but I'm not going to apply Version numbers because the point I've made so far is enough to provide context for the next bit, which is why I'm writing this.

Right now we are experiencing a period of constitutional turmoil.  It's either easy to see because it's all around you, expressed in the cultural wars of the past three decades or more, maybe six decades, or it's hard to see because it's all around you and difficult to pick out.  No one said constitutional law was the easiest subject in the world to get a handle on.

Washington Post columnist E.J. Dionne has a column today inspired by the announced retirement of Associate Justice Sandra Day O'Connor from the Court a last week.  She hasn't actually stepped down, but is awaiting her replacement to be confirmed first, which may take awhile.

Meanwhile, all sides are gearing up toward a big shootout at the O.K. Corral, otherwise known as the United States Senate, which must consent to a presidential nominee to the Court.

Dionne points to a volume by Constitutional Law Professor Cass Sunstein of the University of Chicago who notes that O'Connor is a lot more conservative than she looks.  But the new thing in the land is that the conservative movement is feeling its oats and is suddenly advocating for sweeping change, where in the past it did not want to see sweeping change, such as brought about by FDR and his New Deal, and the more liberal court that replaced the Nine-Old-(white)Men of the Lochner Era (1905-1937).  Conservatives hated the Warren Court and especially the Original Liberal, Justice William O. Douglas, who gave us Griswold v. Connecticut (1964 or 5) and the Right to Privacy which has captured the land, with Roe v. Wade (1973, Abortion) and Lawrence v Texas (2003, liberty, equality, gay rights, sodomy) in its wake.

This is all too much for the Conservatives.  It's not like conservatives don't like privacy, and would object to their wives, girlfriends, and daughters having an abortion in embarrassing circumstances, it's just that they don't think that you or the rest of the country should have that right.  It reminds me of police officers who dislike advising suspects of their Miranda rights but insist on it when they or one of their family members finds himself in trouble.

Dionne cites Sunstein for the proposition that there is "a movement for "The Constitution in Exile"  -- a desire to roll back most of the developments in jurisprudence since the early 1930s.  This movement would strike down the regulatory state created during and since the New Deal."

I don't have a problem with discussing which regulations are useful and which are not, but the idea of dismantling the last half-century strikes me as like throwing the baby out with the bath water.

Why not just call the whole country-over-and-done-with and start all over from scratch?  You don't rebuild the hull in the middle of the ocean in the midst of a storm.

Which brings me to my point:  The Conservatives have their Constitution in their hearts and heads, while I have a different one, as do you.  We all have a view of what is right, and what should be right, if only I were king.  Each one of these Constitutions is a different version.  The one the Supreme Court tinkers with perpetually, or for as long as it's allowed, becomes the official one whether we like it or not.  The alternative is, ...you wouldn't want to contemplate the alternative, although Baghdad with its car bombings is probably close.

So we'll have a war of words and political might. 

Armageddon, they're calling it.

As a followup article just noted, see this article from today's Wall Street Journal noting the polar opposites, Justices Breyer and Scalia, each of whom has his own view of what the Constitution means or should mean.  Scalia votes for what he conceives to be "original meaning" and hates the term "evolving constitution," while Breyer looks to "basic purposes," i.e. the values behind the Constitution, which means constant evolution with changing conditions in the Nation.

We've had a lot of other amendments, but the biggest changes, after getting replacing of the Articles of Confederation, Ver. 1.0 with the Constitution Ver. 2.0 was Ver. 3, after the Civil War.

The 1937 Constitutional revolution that got rid of the Lochner era was next, and that's what the fight is over today, whether we keep the developments of the decades since the Depression, or do we go back to the old ways of Jim Crow, no rights or protection for children, women, and the working man in the labor market, but plenty of protection and rights for corporations and capital.  And no protection for women as women, that is, if pregnant, they MUST become mothers, and must take what men serve them in other respects.

Can you see why they're calling the upcoming period Armageddon?

And we haven't even gotten into church-state relations where the far right seems only too happy to shove their religion down your throat, and I hope it tastes good.

I could go on, but this is just a blog...

WHOSE CONSTITUTION IS IT, ANYWAY?

When you start tinkering with the operating system, new and different things will happen in the applications programs.

Here are some of the momentous changes in our operating system:

1787  Constitution adopted, Philadelphia

1789  United States of America goes into business under new Constitution, HQ NYC.

1791  Bill of Rights adopted as quid pro quo for agreement to ratify Constitution earlier.

1860-1865  Civil War over states rights, nullification, secession, union, and slavery.

1865-1868  Civil War or Reconstruction Amendments 13 (anti-slavery), 14 (citizenship, due process, equal rights), 15 (voting) ratified to consolidate Northern Civil War gains.

1905-1937  "Old Court" of conservative judicial activists, aka "Nine Old Men," or "Four Horsemen of the Apocalypse" strike social and economic reform legislation as socialistic and anti-property; known as Lochner Era after emblematic bakery case.  Kill FDR anti-Depression measures, provoking his "court-packing plan," which fails to pass.

1936  Justice Roberts permanently switches voting allegiance from Four Horsemen to the liberal wing, upholding social reform legislation favorable to labor, costly to business, management, capital.  New Deal legislative programs such as Social Security, National Labor Relations Act protecting union activity, and Fair Labor Standards Act are upheld.

1937  Court announces, in Carolene Products case that it is going out of the business of judging constitutionality of ordinary social and economic reform legislation.  Serves notice in Footnote Four, however, that it will continue to oversee legislation that impairs:

(1) textual guarantees of Bill of Rights,

(2) levelness of political playing field, and

(3) rights of "discrete and insular" minorities who are helpless politically to protect selves.

1941-1945-1965  U.S. entry into WWII and fight against Hitler's racism results in effective postwar Civil Rights Revolution over next two decades.  FDR orders war work for blacks as well as whites, 1941; Truman orders Army to integrate, 1948. 

Shelley v. Kramer (1948) strikes racially restrictive deed covenants.  White flight to suburbs as blacks buy homes in formerly all-white neighborhoods.

Brown v. Board of Education (1954) kills 1896 Separate-but-Equal doctrine in public education.  Jim Crow falls and ideal of integration in schools is proclaimed but the main technique of busing is fought for next half century and counting.

1964  Arch-liberal Justice William O. Douglas, Griswold, finds a right of privacy in the shadows and radiations of Amends 3, 4, 5, & 9.  Congress passes Civil Rights in Public Accommodations Act of 1964.  Congress passes Voting Rights Act of 1965 with prohibition on states of altering voting rules without Justice Department pre-clearance first.

1973  Conservative Justice Harry Blackmun writes Roe v. Wade, constitutional right to abortion, as an outgrowth of privacy found by Douglas in Griswold.

2004  Conservative Justice Anthony M. Kennedy, in Lawrence v. Texas,  finds liberty right in 14th Amendment due process guaranty to protect privacy rights of gays.

Conservatives go wild following 30 years of culture-war in which they are down, but not for the count and live to fight another day.

2005  Culture war, social, economic, religious, and political conservatives gain control of White House with George W. Bush, Dick Cheney, and Karl Rove, of House with Bill DeLay of Texas, of Senate with Sen.Frist.  Fight over federal court nominations produces Democratic Party threats to filibuster and bring nation's business to a halt; called using the 'nuclear option,' as this hasn't happened since Sen. Strom Thurmond of South Carolina spoke for 24 hours against the 1957 Civil Rights Bill introduced by Sen. Lyndon B. Johnson.  Abolishing school-prayer, 9th Circuit threat to "Under God" in Pledge of Allegiance (Newdow), Gay Marriage after Lawrence, Evolution, and other hot-button issues mobilize Christian Republican Right.

Perfect storm of Christian Right forces threatens to repeal remains of New Deal, introduce federal support to Christian schools, and roll back the above under the banner of no more activist judges.

Activist judges are judges who pick the desired outcome and then figure out a legal path to get there.  Lochner Era was the era of conservative activist judges.  Conservatives now claim that the Warren Court introduced the era of liberal activist judges.

Conservatives see the pendulum as having shifted back to where they may be able to resume conservative activism in guise of killing liberal activism after so many decades.

This is the background to Jeffrey Rosen's article in today's Sunday New York Times Magazine appearing below.

The St. Petersburg Times has this article further exploring the roots of the New States Rights and how it is that conservatives flip-flopping on federal interference with state power, previously against and now for.