From ScotusBlog: Google’s book-copying project survives challenge

The court had to define what the phrase "fair use" means. A majority on the court agreed that it applied to Google's book copying project. The case is Authors Guild v Google.

- Click here for background on the case.

And click here for Campbell v Acuff-Rose Music, Inc, the precedence for it - it involves a rap group's use of "Oh Pretty Woman."

Here is the commentary from ScotusBlog:

- Click here for the post.

A massive book-copying project by Google, giving its customers a chance to search the texts of more than twenty million volumes, survived a broad copyright challenge in the Supreme Court on Monday. With no noted dissents, the Justices voted to leave intact lower courts’ conclusion that what Google is doing with the project amounts to legal “fair use,” even of the volumes protected by exclusive rights.

Justice Elena Kagan, without explaining why, did not take part in the Court’s consideration of an appeal by the Authors Guild, a professional society of writers, joined by three authors whose books were copied: Jim Bouton, Joseph Goulden, and Betty Miles. The case is Authors Guild v. Google, Inc.

The challengers, in their appeal, argued that the lower court decisions awarding Google a summary victory deviated sharply from the traditional view that one who copies a protected creative work can only claim the legal defense of “fair use” if the copying satisfies the four factors that Congress spelled out in federal law.

What happened in this case, the challengers argued, was that lower courts permitted Google to rely upon its claim of “fair use” by inventing a new legal concept — that is, so long as the one who makes copies “transforms” the work into another, culturally useful mode, then it is legal. That, the guild and the authors asserted, “empowers judges to approve any re-use of copyrighted works that those judges deem socially beneficial.”

For more on the subject:

- What is Fair Use?
- U.S. Copyright Office Fair Use Index.

What does "lawful presence" mean?

The meaning of the phrase seems to lie at the heart of the dispute over the legality of the president's deferred action policies regarding two classes of undocumented immigrants. The case - United States v Texas - was argued today before the court. One of the arguments opponents to the executive actions made was that the use of the phrase in the regulations was the same as a creating a whole new immigration law. Supporters seemed to suggest that was not the case and that the policy would be effectively the same whether or not the phrase existed in the original memorandum setting out the policy.

- Click here for it.

Here's language form the brief submitted by the state of Texas detailing their complaint. which ultimately boils down to the president usurping legislative power which properly belongs to Congress:

- Click here for the brief.

The Executive Branch unilaterally created a program—known as DAPA—that will grant “lawful presence” and eligibility for work permits to over four million aliens who are present in this country unlawfully. “Lawful presence,” an immigration classification established by Congress, allows aliens to receive numerous benefits—such as Medicare, Social Security, the Earned Income Tax Credit, and unemployment insurance. And Congress has created a detailed, complex statutory scheme for determining when an alien may lawfully enter and be present in this country. 

The Executive claims the power to ignore these statutes and unilaterally deem lawful the presence of any unauthorized alien it chooses not to remove. Moreover, the Executive asserts that it may do so for mil- 2 lions of aliens without even using conventional noticeand-comment procedures. But the Executive does not dispute that DAPA would be one of the largest changes in immigration policy in our Nation’s history. The President himself described DAPA as “an action to change the law.” Pet. App. 384a; R.69.1 There is no statutory or constitutional authority for such a change. 

- The adminstration's response is here.

ScotusBlog adds the following:

- Click here for it.

At repeated points during the argument, it appeared that the Obama administration might actually be able to salvage its policy as both legal and enforceable (if the lawsuit were allowed to go forward) by simply deleting from the regulations in dispute a two-word phrase: “lawful presence.” It was very clear during the challengers’ argument — by lawyers for the twenty-six states and for the U.S. House of Representatives — that the phrase carries enormous meaning for them, that they see it as the equivalent of a whole new immigration law enacted by the White House, not Congress.

At one point, Justice Anthony M. Kennedy, who could wind up holding a decisive vote, appeared to hint that he agreed that this is what happened, that in this instance, the normal order of government policymaking had been turned “upside down,” as he put it.
The Obama administration’s lawyer sought to defuse that complaint by telling the Court, in response to several questions about the phrase, that it stands for nothing whatsoever, and could simply be deleted without affecting the policy in any way. But, if that is the solution, would it be enough to generate five votes in favor of the policy.

From Scotusblog: Argument preview: Justices to consider whether a car dealer’s service advisor is a “salesman,” exempt from overtime rules under the Fair Labor Standards Act

More on how the Supreme Court defines words. The case at issue is Encino Motorcars v. Navarro.

Here is what's at issue:

Whether “service advisors” at car dealerships are exempt under 29 U.S.C. §213(b)(10)(A) from the Fair Labor Standards Act's overtime-pay requirements.

- It involves something called the Chevron Deference, as well as how statutory language should be interpreted.

- Click here for the article.

The Justices should have a relaxing moment with Encino Motorcars v. Navarro, next week’s dispute under the Fair Labor Standards Act (FLSA), one of the simplest cases of the entire Term. The FLSA, as presumably all of you know, obligates employers to pay overtime pay to qualifying employees who work more than forty hours in a week, but has exceptions that take large swaths of the workforce out of its protection. Several of those exceptions govern salesmen of various kinds – no references to “salespersons” in this FDR-era statute! The relevant exception here covers any “salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles.” The subject employees are service advisors at car dealers – who neither sell cars nor service automobiles, but sell the servicing of automobiles.

. . . Against that history, the employee (respondent Hector Navarro) naturally contends that the language is sufficiently ambiguous to warrant Chevron deference to the DOL reading; the employer (petitioner Encino Motorcars) contends just as vigorously that the language is so plain that the courts owe no deference to the shifting views DOL has adopted through the years. In the end, then, the case centers on the statute’s simple reference to any “salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles.”

The arguments on that point are carefully drawn. The employer emphasizes the strange line-drawing that flows from the DOL view: all agree that employees selling cars are covered and that employees servicing cars are covered; it is strange to exclude those who sell the servicing of cars. As Paul Clement (counsel for the employer) quips, “it would be nonsensical to suggest that a salesman primarily engaged in the selling of automobile servicing is engaged in neither selling nor servicing automobiles.” Parsing the language, Clement contends that service advisors are covered because they are “primarily engaged in . . . servicing automobiles.”

On the other side, Stephanos Bibas and the Supreme Court Clinic at the University of PennsylvaniaLaw School’s Supreme Court Clinic, representing Hector Navarro and his fellow employees, tender a tour de force of close linguistic analysis. Rife with citations to Strunk & White, Black’s Law Dictionary, and of course Antonin Scalia and Bryan Garner’s Reading Law: The Interpretation of Legal Texts, they rest on the obscure interpretive canon “reddendo singula singulis” – literally “applying separate words to separate subjects.”

From the Washington Post: Obama can appoint Merrick Garland to the Supreme Court if the Senate does nothing

An interesting take on the Garland nomination - one from a previous Supreme Court Clerk that includes a look at ambiguity within the Constitution.

- Click here for the article.

. . . the Senate has simply refused to consider President Obama’s nomination of Judge Merrick Garland to the Supreme Court. Meanwhile, dozens of nominations to federal judgeships and executive offices are pending before the Senate, many for more than a year. Our system prides itself on its checks and balances, but there seems to be no balance to the Senate’s refusal to perform its constitutional duty.

The Constitution glories in its ambiguities, however, and it is possible to read its language to deny the Senate the right to pocket veto the president’s nominations. Start with the appointments clause of the Constitution. It provides that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court, and all other Officers of the United States.” Note that the president has two powers: the power to “nominate” and the separate power to “appoint.” In between the nomination and the appointment, the president must seek the “Advice and Consent of the Senate.” What does that mean, and what happens when the Senate does nothing?

In most respects, the meaning of the “Advice and Consent” clause is obvious. The Senate can always grant or withhold consent by voting on the nominee. The narrower question, starkly presented by the Garland nomination, is what to make of things when the Senate simply fails to perform its constitutional duty.

It is altogether proper to view a decision by the Senate not to act as a waiver of its right to provide advice and consent. A waiver is an intentional relinquishment or abandonment of a known right or privilege. As the Supreme Court has said, “ ‘No procedural principle is more familiar to this Court than that a constitutional right,’ or a right of any other sort, ‘may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.’ ”

It is in full accord with traditional notions of waiver to say that the Senate, having been given a reasonable opportunity to provide advice and consent to the president with respect to the nomination of Garland, and having failed to do so, can fairly be deemed to have waived its right.

From Slate: Samuel Alito’s Sixth Amendment Denialism

For our look at constitutional meaning - apparently there is a dispute on the Supreme Court about what aspects of a trial procedure are and are not covered under the "right to a speedy and public trial."

- Click here for the article.

Monday’s case, Betterman v. Montana, is not strictly about the evils of plea bargaining. Rather, it poses a seemingly simple question: Once a defendant has accepted a plea deal, can the government detain him for 14 months before giving him a sentencing hearing?

You might respond to this question by reciting the Sixth Amendment, which states that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” Even by the measure of our perpetually clogged-up court system, 14 months is not “speedy,” and so Brandon Thomas Betterman—the defendant here who spent all that time waiting for a hearing—should win. But Montana disagrees, insisting that Betterman’s right to a speedy trial was never violated. That’s because, in Montana’s telling, a sentencing hearing isn’t a trial at all, and so isn’t subject to the Sixth Amendment’s speedy-trial guarantee.

There are two problems with that argument, not including the fact that it would upend 50 years of precedent. The first was highlighted repeatedly throughout the morning by Justice Elena Kagan, whose vim is invigorating on an otherwise torpid court. (I counted at least four catnaps by three justices over the course of the hour.) A delay in court proceedings, Kagan noted, may “impair the defense”: Evidence disappears; witnesses scamper off; memories fade. This problem is present in both conventional trials and sentencing hearings.

“You know,” Kagan tells Montana Solicitor General Dale Schowengerdt, “in most cases these days, most of the actual adjudication of contested issues goes on in sentencing rather than at the trial stage, given that we don’t have very many trials anymore.”

From the Pew Research Center: 5 facts about the Supreme Court

Mostly facts about the public's attitude about the Supreme Court.

- Click here for the article.

A summary:

1 - Unfavorable opinions of the court reached a 30-year high after the end of last year’s momentous session.

2 - There is a wide partisan gap in views of the court.

3 - Partisans have starkly different views over how the justices should interpret the Constitution.

4 - In the wake of last session’s major decisions, views of the court’s ideology have shifted and become more politically polarized

5 - The justices of the court are a mystery for most Americans.

Apparently only 32% of Americans knew who Antonin Scalia was.

From the Los Angeles Times: Is Ted Cruz a 'natural born Citizen'? Not if you're a constitutional originalist.

I want to walk through this article - slowly - my dual credit classes this week and next because it perfectly illustrates what I want you to write about this semester: The conflict over constitutional interpretation.

I posted previously about the issue of whether Senator Cruz's birth in Canada means he cannot be president because he is not a "natural born citizen" as required in the Constitution. According to this author, the answer depends on how one interprets the Constitution. And ironically, the way the senator interprets it is the one that says he is not.

- Click here for the article.

There are three leading theories of how to interpret the Constitution today. One is textualism: the Constitution means what its words say. The historical context of the words is important when a modern plain meaning is not self-evident. A second theory, adopted by many liberals, relies on a “living Constitution”: the Constitution means what is most consistent with fundamental constitutional values as applied to present circumstances. The third theory, championed by many leading conservatives, is originalism: The Constitution means what ordinary people would have understood it to mean at the time it was ratified, which is 1788.

Under either a textualist or a “living Constitution” theory, Cruz is a “natural born Citizen,” eligible to be president; under an originalist view, however, he isn't. It's the conservative theory that would exclude the conservative Cruz from presidential eligibility.

To an originalist, a “natural born Citizen” is a person who is a citizen of the United States under “natural” principles of law in 1788. Two such principles were then in play in the U.S. Jus soli — the law of soil — was the principle that a child was subject or citizen of the sovereign who ruled the land or seas on which the child was born. Jus soli was viewed as a part of the common law of England, which was adopted by the American states. Jus sanguinis — the law of blood — held that a child's citizenship flowed from the parents' allegiance, regardless of place of birth. This principle was prevalent in continental Europe, and in England it was the basis for an exception to jus soli for children born there to foreign ambassadors.

The principle of jus sanguinis in 1788 applied to patrilineal descent only: A person born in a foreign country was viewed as a “natural born Citizen” of his or her father's country. However odious it seems today, a child born of a woman whose citizenship was different from her husband's — much rarer then than today — could not be a “natural born Citizen” of the mother's country. That idea wasn't even considered until 1844 in Victorian England.

The upshot is that to an originalist, someone like Cruz — born in a foreign country (and therefore not a natural born citizen of the United States by jus soli) and to a Cuban citizen father (and therefore not a natural born citizen of the United States by jus sanguinis ) — is not eligible to be president.

Update: Harvard scholar: Ted Cruz's citizenship, eligibility for president ‘unsettled’

A noted legal scholar sees merit in the above argument.

A federal district judge allows another lawsuit against the Affordable Care Act to go forward

ScotusBlog describes the case - and states that it breaks new Constitutional ground. This should be of interest to 2305 students who are starting to dig into Article One of the U.S. Constitution. It involves who controls the national purse strings. this story also illustrates the checks and balances - albeit one of the more unusual ones.

- Click here for the article.
- Click here for the ruling.

It looks at a key part of Article One - one we talked about in class last week, the appropriations clause - and asks whether the House of Representatives has standing to sue the executive branch in how it is implementing the law it passed a few years back.

From the decision: 

Article I of the United States Constitution established the Congress, which comprises a House of Representatives and a Senate. U.S. Const. art. I, § 1. Only these two bodies, acting together, can pass laws—including the laws necessary to spend public money. In this respect, Article I is very clear: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law . . . .” U.S. Const. art. I, § 9, cl. 7.

Through this lawsuit, the House of Representatives complains that Sylvia Burwell, the Secretary of Health and Human Services, Jacob Lew, the Secretary of the Treasury, and their respective departments (collectively the Secretaries) have spent billions of unappropriated dollars to support the Patient Protection and Affordable Care Act. The House further alleges that Secretary Lew and Treasury have, under the guise of implementing regulations, effectively amended the Affordable Care Act’s employer mandate by delaying its effect and narrowing its scope.  

The Secretaries move to dismiss, arguing that the House lacks standing to sue. They argue that only the Executive has authority to implement the laws, and urge this Court to stay out of a quintessentially political fight in which the House is already well armed. The House opposes, adamant that it has been injured in several concrete ways, none of which can be ameliorated through the usual political processes. The only issue before the Court is whether the House can sue the Secretaries; the merits of this lawsuit await another day

And the judge says it can go forward with that issue.

ScotusBlog explains the nuances of the House of Representatives complaint:

As part of the ACA’s policy of helping millions of lower-income Americans to obtain health insurance at affordable rates, the law has a variety of subsidy provisions. The Supreme Court in June upheld the system that provides lower-income consumers with a form of tax credit to help them afford policies that are sold on insurance marketplaces (or “exchanges”); that financial provision is not at issue in the House’s lawsuit. But the lawsuit explicitly targets a mechanism to encourage health insurance companies to reduce the costs of coverage for lower-income individuals.

The House claimed in court that, although Congress has in fact voted the funds to pay for the subsidy system keyed to the insurance exchanges, it has never approved any funds to cover the expense of the cost-sharing approach — technically, the “cost-sharing offsets.” The ACA required insurance companies taking part in the new program to specifically reduce the co-pays charged to consumers when they visit doctors’ offices or other health facilities. The federal government then steps in to reimburse the insurers for absorbing those costs.

In going to court, the House contended that the Obama administration has asked for, but never obtained, actual legislation appropriating those reimbursement funds, but instead has simply taken the money out of accounts at the Treasury and sent checks to the insurers. This, it argued, was a direct violation of the Constitution’s command that no federal funds may be spent unless approved, in advance, by Congress.

The administration has argued in response that the ACA itself provided all the authority that the government needed to finance the cost-sharing provision, so there was no need to ask Congress explicitly to put up the money. Officials also have disputed the House claim that they did, in fact, ask for appropriations.

What does "subject to the jurisdiction thereof" mean?

It's the qualifier in the opening sentence of the 14th Amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.

The Federalist Blog explains what it means.

- Click here for the post.

It's worth reading in full, but this captures the basic argument:

Because the purpose of the Fourteenth Amendments first section was to end the denial of those fundamental rights that belong to all citizens by virtue of their citizenship under Article IV, Sec. II of the U.S. Constitution was imperative to first define citizenship of the United States. Otherwise, a State could refuse to recognize newly emancipated slaves as citizens by withholding the right to sue, make contracts, due process, purchase property, etc. Therefore, the Fourteenth Amendment acts to recognize all persons as citizens who do not owe allegiance to some other government when naturalized or born.

The last sentence is the kicker, and it applies to - for example - children born of foreign ambassadors and to members of an invading army. Not only are they not allegiant to the United States, they are not subject to its rules - though that's probably more true of the diplomats. Those who argue that the children of illegal immigrants should not be covered under 14th Amendment raise the question of allegiance, but there still remains the question of whether they are subject to the laws of the state. They are. So that complicates things.

The U.S. Constitution's Property Clause

Disputes about the constitutionality of the Antiquities Act center on the following part of the Constitution. This is known as the Property Clause:

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

This provides the constitutional authority for the act.

Here are links for background related to this clause:

- Heritage Foundation: The Property Clause.
- The Founders' Constitution: Article 4, Section 3, Clause 2.
- CRS: Federal Land Ownership: Constitutional Authority and the History ofAcquisition, Disposal, and Retention.
- University of Kentucky: Congressional Discretion under the PropertyClause.
- William and Mary: Proclamations, National Monuments, and theScope of Judicial Review under the Antiquities Actof 1906.

But questions remain about the interpretation of the clause.

The DC Circuit Court dismissed a case arguing that President Clinton violated the Constitution when he used the act to declare six national monuments.

- Click here for Mountain States Legal Foundation v. Bush.

As I can see it - there has yet to be an authoritative limit placed on the extent of this clause. This is important because, as you should be aware, the United States expanded rapidly after the Constitution was ratified. The federal government took control of lands that were not already states, and was the primary driver in efforts to grab additional lands to the west. These efforts included the Louisiana Purchase and the Mexican-American War.

While lands became states over time, much of the land within it remains federal territory. Texas is different because since it was a sovereign nation for a few years, it owns the bulk of its public lands. Western states continue to try to expend their control - if not ownership - of these lands.

The Elections Clause of the U.S. Constitution - and - What is a legislature anyway?

The Arizona Case below involved an interpretation of the following language:

"The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

Seems simple enough, but the case boils down to what "the Legislature thereof" refers to. The majority decision describes the conflict here:

The Arizona Legislature’s complaint alleged that “[t]he word ‘Legislature’ in the Elections Clause means [specifically and only] the representative body which makes the laws of the people,” App. 21, ¶37; so read, the Legislature urges, the Clause precludes resort to an independent commission, created by initiative, to accomplish redistricting. The AIRC responded that, for Elections Clause purposes, “the Legislature” is not confined to the elected representatives; rather, the term encompasses all legislative authority conferred by the State Constitution, includ­ Cite as: 576 U. S. ____ (2015) 3 Opinion of the Court ing initiatives adopted by the people themselves.

Some background info on the clause itself:

- The Heritage Foundation:  Election Regulations.
- The Founders' Constitution: Article 1, Section 4, Clause 1.

The Supreme Court rules that independent redistricting boards are constitutional

The case is Arizona State Legislature v. Arizona Independent Redistricting Commission. It's another 5-4 ideological vote with Anthony Kennedy as the tie breaker.

For more:

ScotusBlog: Arizona State Legislature v. Arizona Independent Redistricting Commission.
Oyez: Arizona State Legislature v. Arizona Independent Redistricting Commission.

We spent some time on this case in the spring when it was argued because it allowed us to look at the elections clause of the constitution as well as investigate what the word "legislature" could possibly mean. Such commissions allow a non-partisan group to draw congressional district, which makes them more competitive since there is no stake in the outcome. The majority party in state legislatures has an incentive to pad its lead over the minority party and tends to draw districts that are not competitive, This tends to suppress voter turnout since there's little need to show up in general elections.

Here are the facts of the case from Oyez:

Until 2000, the Arizona State Constitution granted the State Legislature the ability to draw congressional districts, subject to the possibility of a gubernatorial veto. In 2000, the Arizona voters passed Proposition 106, which amended the state constitution to remove the congressional redistricting power from the legislature and vest it in the newly created Arizona Independent Redistricting Commission (IRC).

In 2012, after the IRC approved a new congressional district map, the legislature sued the IRC and argued that Proposition 106 violated the Elections Clause of the federal Constitution (Art I, Sec. 4, Clause 1)--which declares that "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof...."--removed redistricting authority from the legislature and therefore that the new district map was unconstitutional and void. The legislature also requested that the district court permanently enjoin the IRC from adopting, implementing, or enforcing the new congressional district map. The district court held that Proposition 106 did not violate the Elections Clause of the federal Constitution.

And the question posed to the court:

Did Proposition 106 violate the Elections Clause of the federal Constitution by removing the congressional districting power from the state legislature?

- Click here for the decision.

How to interpret the Constitution

We talked about this a bit in a couple classes. Disputes over interpretation are covered in the last few slides in section 6 where we take an overview of the Constitution. We hit these controversies in later sections of the class - but here's a novel take on the dispute.

- Click here for more from Troubletown.

The Top 21 Sources of Legislative History

This might be of interest to 2305 students since we are now looking at the judiciary and also discussing how the courts go about the business of interpreting the Constitution and statutory law.

One things some judges and justices look to - though some discount it - is legislative history. This helps judges understand what legislators were trying to accomplish when they passed a law they might be reviewing.

The blog of Nicholas J. Wagoner - which appears to be dormant - runs through the top 21 places judges may look to seek out legislative history.

- Click here for a description.

In order of importance they are:

1. Conference Committee Reports
2. Committee Debates and Bill Mark-ups
3. Committee Reports
4. The Status of the Person Speaking—Sponsor, Committee Chairman, Floor Leader, Etc.
5. Accepted and Rejected Amendments
6. Floor Debates
7. Planned Colloquy
8. Transcripts of Discussions at Committee Hearings
9. Prepared Statements on Submission of a Bill, in Committee Hearings, and at the Time of Floor Debates
10. Revised and Amended Statements
11. Actions on and Discussions About Separate Bills on the Same Topic
12. Prior Relevant Administrative Action or Judicial Decisions, with or without Congressional Acknowledgement
13. Executive Branch Messages and Proposals Whether from the President, Cabinet Secretaries, or from Independent Agencies
14. Analysis of Bills by Legislative Counsel
15. Analysis of Bills by Relevant Executive Departments
16. Related Statutes, Provisions, and Terms (click here)
17. Dictionaries (click here)
18. Statements by Executive Branch Administrators (click here)
19. Statements and Submissions by Lobbyists (click here)
20. Subsequent or Prior Unrelated, but Conflicting Legislation (click here)
21. Recorded Votes

The Pacificus-Helvidius Debate

Despite the fact that James Madison and Alexander Hamilton worked together on both the drafting of the Constitution and the campaign to get it ratified, they soon started to disagree with each other over aspects of the document - including the relative powers of the legislative and executive branches over foreign policy making, including war making powers.

Like the Federalist Papers, this argument was carried out in dueling essays, this time Madison and Hamilton were on opposing sides of the issue.

They were called the Pacificus-Helvidius Debates.

Here's a description of the debates from the Liberty Fund:

The Pacificus-Helvidius Debates of 1793–1794 matched Hamilton and Madison in the first chapter of an enduring discussion about the proper roles of executive and legislative branches in the conduct of American foreign policy. Ignited by President Washington’s Neutrality Proclamation of 1793, which annulled the eleventh article of America’s Treaty with France of 1778, the debate addressed whether Washington had the authority to declare America neutral, despite an early alliance treaty with France. Hamilton argued that Washington’s actions were constitutional and that friction between the two branches was an unavoidable, but not harmful, consequence of the separation of powers. Madison countered that Washington’s proclamation would introduce “new principles and new constructions” into the Constitution and contended that “the power to declare war and make treaties can never fall within the definition of executive powers.” In the introduction, Morton Frisch asserts that the debate between Hamilton and Madison helped to clarify “certain constitutional principles that we now associate with executive power generally” such as that foreign policy is essentially an executive function. Yet it is the open-ended character of our Constitution that has continued to allow different interpretations of the limits of the powers of government, a debate that continues to this day. Frisch writes in the introduction, “The open-ended character of some of the constitutional provisions afforded opportunities for extending the powers of government beyond their specified limits. Although not given prior sanction by the Constitutional Convention, such additions served to provide a more complete definition of powers without actually changing the ends of government.”

Click here for more on the debates. I find it interesting - and instructive - that we've been arguing about the nature of war making powers as long as we have.

"Dangerous and unusual" weapons

We're having fun in some classes trying to figure out what this term means.

Among the gun laws that DC v Heller argues do not violate the Second Amendment are those that restrict "the carrying of dangerous and unusual weapons." That seems pretty vague to me, so we're been tossing the idea around.

Its been suggested that all guns are dangerous - in addition to many other objects - but since they used the term, I suppose there is a distinction between guns that are dangerous and those that are. Or perhaps are less dangerous. Might these be the ones with long magazines and armor piercing bullets? Perhaps the gun itself is not so dangerous, but the peripheral equipment that makes it so.

I'm still not sure what to make of "unusual" weapons, not whether the weapons have to be both "dangerous and unusual."

We might want to keep batting this around for a while.

These links might be helpful:
- Dangerous and Unusual Misdirection.
- Dangerous and Unusual Weapons.
- No right to own a machine gun.
- United States v Henry.
- Second Amendment, Heller and Originalist Jurisprudence.

File this under unusual - maybe not dangerous.

Was the 14th Amendment meant to be color-blind?

Here's a great argument that it was not, and that legislation passed around the time the 14th Amendment was ratified - the 1866 Freedmen's Bureau Act - explicitly intended to provide extra opportunities to the recently freed slaves. This might potentially buttress arguments in favor of affirmative action today.

The author points out that this is an originalist argument, which conservatives tend to employ in other areas, but not here. The author thinks the conservatives are mimicking the liberal tendency to read the Constitution in moral terms, which allows for flexibility in interpretation.

New Textualism

For decades, conservatives have embraced an originalist approach to the constitution. Either the intent or the text of the Constitution should be the guiding force determining constitutional meaning. Liberals are apparently embracing originalism now and calling it "New Textualism."

Jeffrey Rosen comments on the development, and suggests that it would have helped the administration's argument supporting the individual mandate before the Supreme Court, but at a cost:

. . . the New Textualists—insist that arguments grounded in constitutional text and history can be deployed just as effectively to support liberal policies as conservative ones.

So far, the New Textualists have an impressive track record of winning over conservative justices and judges. But their ideas are being strenuously resisted by the liberal legal establishment—both by administration lawyers like Verrilli and an older generation of scholars, who fear their approach will ultimately lead to the downfall of landmark precedents, including Roe v. Wade.

More commentary on this approach:

- The Promise of New Textualism.
- The Case for New Textualism.
- Old Dictionaries and New Textualists.
- Laying Claim to the Constitution.

The Constitution in Exile Movement

Jeffrey Rosen of the New Republic thinks that a recent opinion written by Janice Rogers Brown indicates that the Constitution in Exile Movement - the group of conservative legal scholars and judges who are intent on rolling back New Deal policies - is about to make waves and take a more active role in making decision on economic regulation.

He predicts that we will soon be seeing more conservative judicial activism. I strongly suggest a read.

Reactions to the Day Three Health Care Arguments

Again, as compiled by Andrew Sullivan.

Good take on limiting principles from Akhil Reed Amar - Yale Constitutional Law prof:

The most important limit, the one we fought the Revolutionary War for, is that the people doing this to you are the people you elect. That’s the main check. The broccoli argument is like something they said when we were debating the income tax: If they can tax me, they can tax me at 100 percent! And yes, they can. But they won’t. Because you could vote them out of office. They have the power to do all sorts of ridiculous things that they won’t do because you’d vote them out of office. If they can prevent me from growing pot, can they prevent me from buying broccoli? Perhaps, but why would they if they want to be reelected? So if you ask me what the limits are, I’d say read McCulloch vs. Maryland. And reread it. And keep reading it till you understand it. The Constitution is a practical document,. it’s designed to work. And the powers are designed to be flexible in order to achieve the aims of the document.


Commentators have noted that the tone in the Supreme Court is increasingly hostile towards Congress, suggesting that they are prepared to take an activist and aggressive stance towards their view of legislative power and not defer to the political branches.