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Vocapedia > USA > U.S. Constitution


U.S. Constitution,

Bill of Rights (Articles 3 to 12),

constitutional rights, laws


On June 21, 1788,

the Constitution

became the official framework

of the government

of the United States of America

when New Hampshire became

the ninth of 13 states to ratify it.





Bill of Rights > On October 2, 1789,

Congress sent

12 proposed amendments to the Constitution

to the states for ratification—

including the 10

that would come to be known

as the Bill of Rights.


There were 14 original

manuscript copies,

including the one displayed

at the National Constitution Center

—one for the federal government

and one for each of the 13 states.


 Only 10 of the amendments

were ultimately ratified in 1791

and became the Bill of Rights.






Jack Ohman


June 29, 2022



character: former President Donald Trump



















George Washington



by Gilbert Stuart (1755 - 1828)

Oil on canvas

1796 ca. - 1805

Sight measurement

Height: 28.75 inches (73 cm)

Width: 23.63 inches (60 cm)


Cat. no. 31.00004.000



















Thomas Jefferson



by Thomas Sully (1783 - 1872)

Oil on canvas


Sight measurement

Height: 28.5 inches (72.4 cm)            Width: 23.63 inches (60 cm)


Cat. no. 31.00006.000







































USA > The Constitution of the United States of America        UK / USA

































































The U.S. Constitution

forbids government officers

to take emoluments

— gifts or money —

from foreign governments

and officials






The Constitution > Electoral college






The United States Constitution > The Framers








The United States Constitution > The Founding Fathers






The United States Constitution > The Founders






justices > interpret the Constitution






"dead" Constitution























19th Amendment to the U.S. Constitution:

Women's Right to Vote        USA        1920


"The right of citizens of the United States to vote

shall not be denied or abridged by the United States

or by any state on account of sex."


The amendment guarantees

all American women the right to vote.


Achieving this milestone

required a lengthy and difficult struggle;

victory took decades of agitation and protest.


Beginning in the mid-19th century,

several generations

of woman suffrage supporters

lectured, wrote, marched, lobbied,

and practiced civil disobedience to achieve

what many Americans considered

a radical change of the Constitution.


Few early supporters

lived to see final victory in 1920.























Twenty-Fifth Amendment    1967
























27th Amendment to the U.S. Constitution

















USA > the Fifteenth Amendment (...)

outlawed racial discrimination

at the polls.

(source in next edition).        UK / USA




The citizenship portion of the 14th Amendment

was tied together with the idea of suffrage for all men.


If Black men were made citizens, for the most part,

they could also be made voters.


(This didn’t work as smoothly as some had thought.

It would require the adoption of the 15th Amendment

two years later, in 1870,

to guarantee that right, as it read:


“The right of citizens of the United States to vote

shall not be denied or abridged

by the United States or by any State

on account of race, color,

or previous condition of servitude.”)


One of the heroes of the 14th Amendment

as well as the 13th Amendment,

which abolished slavery

 was Representative Thaddeus Stevens of Pennsylvania.


He badgered Lincoln on abolishing slavery

and he helped to write the 13th Amendment.



he gave the closing remarks

on the debate of the amendment.


As the National Endowment for the Humanities has noted,

when the House passed the bill

that authorized the 13th Amendment,

Stevens said,


“I will be satisfied if my epitaph shall be written thus,

‘Here lies one who never rose to any eminence,

and who only courted the low ambition to have it said

that he had striven

to ameliorate the condition of the poor, the lowly,

the downtrodden of every race and language and color.’ ”


Stevens would also help write the 14th Amendment,

and in the lead-up to it

he was quite prescient on “universal enfranchisement,”

offering words then that we would do well to heed today.


In January of 1868,

Stevens wrote in The New York Times:


So far as I took any position with regard to Negro suffrage,

it was and is that universal suffrage is an inalienable right,

and that since the amendments to the Constitution,

to deprive the Negroes of it

would be a violation of the Constitution

as well as of a natural right.


True, I deemed

the hastening of the bestowal of the franchise

as very essential to the welfare of the nation,

because without it I believe

that the Government will pass

into the hands of rebels and their friends,

and that such an event

would be disastrous to the whole country.


With universal suffrage,

I believe the true men of the nation

can maintain their position.


Without it,

whether that suffrage be impartial, or in any way qualified,

I look upon this Republic as likely to relapse into an oligarchy,

which will be ruled

by coarse copperheadism and proud conservatism.


Copperheads were Northern Democrats,

mostly in the Midwest,

who opposed the Civil War and emancipation

and wanted to negotiate a compromise

with the South to preserve the Union.


The name comes from the copperhead snake,

a notoriously sneaky serpent.


But the 14th Amendment would go on

to be passed and ratified,

and it signified the birth of Black citizenship.


The day is such an important marker of citizenship that

when the first Black senator, Hiram Revels of Mississippi,

arrived in Washington to be seated in 1870,

his being seated was objected to by conservative congressmen,

some arguing that he had only been a citizen

since the ratification of the 14th Amendment two years earlier

and thus didn’t meet the citizenship requirements for a senator.


(By the way,

Revels was born in America

and fought in the Civil War.)






































14th Amendment / Amendment XIV > Section 1 - ratified on July 9, 1868


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.


No state shall make or enforce any law

which shall abridge the privileges

or immunities of citizens of the United States;


nor shall any state deprive any person of life,

liberty, or property, without due process of law;

nor deny to any person within its jurisdiction

the equal protection of the laws.






























U.S. Constitution > Bill of Rights > Eighth Amendment        1789-1791


'Excessive bail shall not be required,

nor excessive fines imposed,

nor cruel and unusual punishments inflicted.'

Most often mentioned

in the context of the death penalty,

the Eighth Amendment

prohibits cruel and unusual punishments,

but also mentions “excessive fines” and bail.


The “excessive fines” clause

surfaces (among other places)

in cases of civil and criminal forfeiture,

for example when property

is seized during a drug raid.






























U.S. Constitution > Bill of Rights > Fifth amendment rights        1789-1791


'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.'









The Fifth Amendment creates a number of rights

relevant to both criminal and civil legal proceedings.


In criminal cases,

the Fifth Amendment

guarantees the right to a grand jury,

forbids “double jeopardy,”

and protects against self-incrimination.

It also requires that “due process of law”

be part of any proceeding

that denies a citizen “life, liberty or property”

and requires the government to compensate citizens

when it takes private property for public use.
















Amendments > Bill of Rights        1789-1791


On September 25, 1789,

the First Congress of the United States therefore proposed

to the state legislatures 12 amendments to the Constitution

that met arguments most frequently advanced against it.


The first two proposed amendments,

which concerned the number

of constituents for each Representative

and the compensation of Congressmen,

were not ratified.


Articles 3 to 12, however,

ratified by three-fourths of the state legislatures,

constitute the first 10 amendments of the Constitution,

known as the Bill of Rights.
































above the law










in the eyes of the law / before the law










comply with the law








State laws










take effect
























constitutional principle > dignity
















the law’s constitutionality






consider the constitutionality of N























































































unconstitutional > sentence juveniles to life without parole




















violate the United States Constitution












violate the principles

of the "full faith and credit clause" of the Constitution










violate the Constitution

with discriminatory policing practices

against African Americans

















USA > habeas corpus        UK / USA


Habeas corpus

is the legal concept

that a prisoner has a right

to challenge the basis of confinement

-- to demand that the government

produce a valid reason for detention.


The concept

was developed in England

during the late Middle Ages,

and takes its name

from the first two Latin words

of the writ filed for a prisoner's release

(a phrase translated variously as

"You have the body''

and "Produce the body.'')


Habeas corpus formed a part

of the American legal system

from colonial times,

and it was the only specific right

incorporated in the Constitution.


Article 1, Section 9 states,

"The privilege of the Writ of Habeas Corpus

shall not be suspended,

unless when in Cases of Rebellion or Invasion

the public Safety may require it."


The suspension of habeas corpus

allows an agency to hold a person

without a charge.


Habeas corpus

has been suspended a number of times,

most notably by Abraham Lincoln

during the early days of the Civil War.


Habeas corpus

became a subject of renewed controversy

after the Sept. 11th attacks.


When the Bush administration

created a system of military tribunals

for dealing with terrorism subjects in 2002,

it asserted that "illegal non-combatants''

fell outside of the Geneva Conventions

and were not entitled to habeas corpus.


That view was rejected

by the Supreme Court in 2006.



then controlled by Republicans,


by passing the Military Commissions Act of 2006,

which stripped the federal courts of jurisdiction

to hear habeas corpus petitions

filed by detainees challenging the bases

for their confinement.


Instead, such challenges were to be governed

by the 2005 Detainee Treatment Act,

which allowed detainees to appeal decisions

of the military tribunals

to the District of Columbia Circuit,

but only under circumscribed procedures,

including a presumption that the evidence

before the military tribunal

was accurate and complete.


In a 5 to 4 decision issued on June 12, 2008,

the Supreme Court ruled

that approach to be unconstitutional,

declaring that foreign terrorism suspects held

at the Guantánamo Bay naval base in Cuba

have the right to challenge their detention there

in federal courts.




























Constitution > President > recess appointments        2007
















Constitution > Article II, Section 4


The President,

Vice President

and all civil Officers of the United States,

shall be removed from Office

on Impeachment for, and Conviction of,

Treason, Bribery,

or other high Crimes and Misdemeanors.











USA > US constitution's prohibition

against putting mentally ill people to death        UK / USA


The Supreme Court banned

the execution of intellectually disabled people

in 2002
















United States Constitution > the 10th Amendment limits federal power























law / legislation








a piece of legislation










constitutional rights






Miranda rights











Corpus of news articles


USA > U.S. Constitution




Let’s Give Up

on the Constitution


December 30, 2012

The New York Times




AS the nation teeters at the edge of fiscal chaos, observers are reaching the conclusion that the American system of government is broken. But almost no one blames the culprit: our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions.

Consider, for example, the assertion by the Senate minority leader last week that the House could not take up a plan by Senate Democrats to extend tax cuts on households making $250,000 or less because the Constitution requires that revenue measures originate in the lower chamber. Why should anyone care? Why should a lame-duck House, 27 members of which were defeated for re-election, have a stranglehold on our economy? Why does a grotesquely malapportioned Senate get to decide the nation’s fate?

Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.

As someone who has taught constitutional law for almost 40 years, I am ashamed it took me so long to see how bizarre all this is. Imagine that after careful study a government official — say, the president or one of the party leaders in Congress — reaches a considered judgment that a particular course of action is best for the country. Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action. Is it even remotely rational that the official should change his or her mind because of this divination?

Constitutional disobedience may seem radical, but it is as old as the Republic. In fact, the Constitution itself was born of constitutional disobedience. When George Washington and the other framers went to Philadelphia in 1787, they were instructed to suggest amendments to the Articles of Confederation, which would have had to be ratified by the legislatures of all 13 states. Instead, in violation of their mandate, they abandoned the Articles, wrote a new Constitution and provided that it would take effect after ratification by only nine states, and by conventions in those states rather than the state legislatures.

No sooner was the Constitution in place than our leaders began ignoring it. John Adams supported the Alien and Sedition Acts, which violated the First Amendment’s guarantee of freedom of speech. Thomas Jefferson thought every constitution should expire after a single generation. He believed the most consequential act of his presidency — the purchase of the Louisiana Territory — exceeded his constitutional powers.

Before the Civil War, abolitionists like Wendell Phillips and William Lloyd Garrison conceded that the Constitution protected slavery, but denounced it as a pact with the devil that should be ignored. When Abraham Lincoln issued the Emancipation Proclamation — 150 years ago tomorrow — he justified it as a military necessity under his power as commander in chief. Eventually, though, he embraced the freeing of slaves as a central war aim, though nearly everyone conceded that the federal government lacked the constitutional power to disrupt slavery where it already existed. Moreover, when the law finally caught up with the facts on the ground through passage of the 13th Amendment, ratification was achieved in a manner at odds with constitutional requirements. (The Southern states were denied representation in Congress on the theory that they had left the Union, yet their reconstructed legislatures later provided the crucial votes to ratify the amendment.)

In his Constitution Day speech in 1937, Franklin D. Roosevelt professed devotion to the document, but as a statement of aspirations rather than obligations. This reading no doubt contributed to his willingness to extend federal power beyond anything the framers imagined, and to threaten the Supreme Court when it stood in the way of his New Deal legislation. In 1954, when the court decided Brown v. Board of Education, Justice Robert H. Jackson said he was voting for it as a moral and political necessity although he thought it had no basis in the Constitution. The list goes on and on.

The fact that dissenting justices regularly, publicly and vociferously assert that their colleagues have ignored the Constitution — in landmark cases from Miranda v. Arizona to Roe v. Wade to Romer v. Evans to Bush v. Gore — should give us pause. The two main rival interpretive methods, “originalism” (divining the framers’ intent) and “living constitutionalism” (reinterpreting the text in light of modern demands), cannot be reconciled. Some decisions have been grounded in one school of thought, and some in the other. Whichever your philosophy, many of the results — by definition — must be wrong.

IN the face of this long history of disobedience, it is hard to take seriously the claim by the Constitution’s defenders that we would be reduced to a Hobbesian state of nature if we asserted our freedom from this ancient text. Our sometimes flagrant disregard of the Constitution has not produced chaos or totalitarianism; on the contrary, it has helped us to grow and prosper.

This is not to say that we should disobey all constitutional commands. Freedom of speech and religion, equal protection of the laws and protections against governmental deprivation of life, liberty or property are important, whether or not they are in the Constitution. We should continue to follow those requirements out of respect, not obligation.

Nor should we have a debate about, for instance, how long the president’s term should last or whether Congress should consist of two houses. Some matters are better left settled, even if not in exactly the way we favor. Nor, finally, should we have an all-powerful president free to do whatever he wants. Even without constitutional fealty, the president would still be checked by Congress and by the states. There is even something to be said for an elite body like the Supreme Court with the power to impose its views of political morality on the country.

What would change is not the existence of these institutions, but the basis on which they claim legitimacy. The president would have to justify military action against Iran solely on the merits, without shutting down the debate with a claim of unchallengeable constitutional power as commander in chief. Congress might well retain the power of the purse, but this power would have to be defended on contemporary policy grounds, not abstruse constitutional doctrine. The Supreme Court could stop pretending that its decisions protecting same-sex intimacy or limiting affirmative action were rooted in constitutional text.

The deep-seated fear that such disobedience would unravel our social fabric is mere superstition. As we have seen, the country has successfully survived numerous examples of constitutional infidelity. And as we see now, the failure of the Congress and the White House to agree has already destabilized the country. Countries like Britain and New Zealand have systems of parliamentary supremacy and no written constitution, but are held together by longstanding traditions, accepted modes of procedure and engaged citizens. We, too, could draw on these resources.

What has preserved our political stability is not a poetic piece of parchment, but entrenched institutions and habits of thought and, most important, the sense that we are one nation and must work out our differences. No one can predict in detail what our system of government would look like if we freed ourselves from the shackles of constitutional obligation, and I harbor no illusions that any of this will happen soon. But even if we can’t kick our constitutional-law addiction, we can soften the habit.

If we acknowledged what should be obvious — that much constitutional language is broad enough to encompass an almost infinitely wide range of positions — we might have a very different attitude about the obligation to obey. It would become apparent that people who disagree with us about the Constitution are not violating a sacred text or our core commitments. Instead, we are all invoking a common vocabulary to express aspirations that, at the broadest level, everyone can embrace. Of course, that does not mean that people agree at the ground level. If we are not to abandon constitutionalism entirely, then we might at least understand it as a place for discussion, a demand that we make a good-faith effort to understand the views of others, rather than as a tool to force others to give up their moral and political judgments.

If even this change is impossible, perhaps the dream of a country ruled by “We the people” is impossibly utopian. If so, we have to give up on the claim that we are a self-governing people who can settle our disagreements through mature and tolerant debate. But before abandoning our heritage of self-government, we ought to try extricating ourselves from constitutional bondage so that we can give real freedom a chance.


Louis Michael Seidman,

a professor of constitutional law at Georgetown University,

is the author of the forthcoming book

“On Constitutional Disobedience.”

Let’s Give Up on the Constitution,






Embarrassed by Bad Laws


April 16, 2012

The New York Times


A year ago, few people outside the world of state legislatures had heard of the American Legislative Exchange Council, a four-decade-old organization run by right-wing activists and financed by business leaders. The group writes prototypes of state laws to promote corporate and conservative interests and spreads them from one state capital to another.

The council, known as ALEC, has since become better known, with news organizations alerting the public to the damage it has caused: voter ID laws that marginalize minorities and the elderly, antiunion bills that hurt the middle class and the dismantling of protective environmental regulations.

Now it’s clear that ALEC, along with the National Rifle Association, also played a big role in the passage of the “Stand Your Ground” self-defense laws around the country. The original statute, passed in Florida in 2005, was a factor in the local police’s failure to arrest the shooter of a Florida teenager named Trayvon Martin immediately after his killing in February.

That was apparently the last straw for several prominent corporations that had been financial supporters of ALEC. In recent weeks, McDonald’s, Wendy’s, Intuit, Mars, Kraft Foods, Coca-Cola and PepsiCo have stopped supporting the group, responding to pressure from activists and consumers who have formed a grass-roots counterweight to corporate treasuries. That pressure is likely to continue as long as state lawmakers are more responsive to the needs of big donors than the public interest.

The N.R.A. pushed Florida’s Stand Your Ground law through the State Legislature over the objections of law enforcement groups, and it was signed by Gov. Jeb Bush. It allows people to attack a perceived assailant if they believe they are in imminent danger, without having to retreat. John Timoney, formerly the Miami police chief, recently called the law a “recipe for disaster,” and he said that he and other police chiefs had correctly predicted it would lead to more violent road-rage incidents and drug killings. Indeed, “justifiable homicides” in Florida have tripled since 2005.

Nonetheless, ALEC — which counts the N.R.A. as a longtime and generous member — quickly picked up on the Florida law and made it one of its priorities, distributing it to legislators across the country. Seven years later, 24 other states now have similar laws, thanks to ALEC’s reach, and similar bills have been introduced in several other states, including New York.

The corporations abandoning ALEC aren’t explicitly citing the Stand Your Ground statutes as the reason for their decision. But many joined the group for narrower reasons, like fighting taxes on soda or snacks, and clearly have little interest in voter ID requirements or the N.R.A.’s vision of a society where anyone can fire a concealed weapon at the slightest hint of a threat.

In a statement issued on Wednesday, ALEC bemoaned the opposition it is facing and claimed it is only interested in job creation, government accountability and pro-business policies. It makes no mention of its role in pushing a law that police departments believe is increasing gun violence and deaths. That’s probably because big business is beginning to realize the Stand Your Ground laws are indefensible.

    Embarrassed by Bad Laws, NYT, 16.4.2012,






Is Religion Above the Law?


October 17, 2011
9:00 pm
The New York Times

Stanley Fish on education, law and society.


The religion clause case recently argued before the Supreme Court — Hosanna-Tabor v. EEOC — centers on the “ministerial exception,” the doctrine (elaborated over the last 40 years) that exempts religious associations from complying with neutral, generally applicable laws in some, but not all, circumstances.

In 2005 Cheryl Perich, a teacher in the Hosanna-Tabor Lutheran Evangelical School, returned from an extended sick leave (she had been diagnosed with narcolepsy) to find that her services were no longer wanted. She declined to resign as requested, and after a resolution satisfactory to her was not forthcoming she filed a disability discrimination suit. The church responded by terminating her as a teacher, alleging that its reason was theological, not retaliatory. The Missouri synod, the church explained, requires its adherents to resolve disputes rather than bring suit in civil court; in failing to follow this rule, Perich had transgressed a core Lutheran belief.

The church further argued that as a “commissioned minister” Perich fell under the ministerial exception even though the bulk of her time was spent teaching secular subjects. Perich (through her attorneys) replied that her duties were not primarily religious, and that the assertion of a doctrinal violation was an afterthought devised to serve as a pretext for an act of retaliation in response to her having gone to the courts in an effort to secure her rights.

So the issues are, first, was she a minister in the sense that would bring her under the exception (in which case the state could not intervene to protect her), and, second, was the doctrine the church invoked as the reason for its action truly central to its faith? (There are other issues in play but, as we shall see, two are more than enough.)

The most perspicuous example of a ministerial exception is the Catholic church’s limitation of membership in the priesthood to males. If a university were to have a rule that only men could serve as professors, it would be vulnerable to a suit brought under the anti-discrimination provisions of Title VII of the Civil Rights Act of 1964. The difference (or so it has been asserted) is that there is no relationship between professorial skills and gender — a woman can perform the duties of a teacher of history or chemistry as well as a man — while the tradition of an all-male priesthood is rooted in religious doctrine. So the university would be engaged in discrimination pure and simple, whereas the church’s discrimination is a function of its belief that the all-male priesthood was initiated by Christ in his choice of the apostles.

Were the state to intervene and declare the tradition of an all-male priesthood and the doctrine underlying it unconstitutional, it would be forcing the church to conform to secular norms in violation both of the free exercise clause (the right of a religion to be governed by its own tenets would be curtailed) and the establishment clause (the state would in effect have taken over the management of the church by dictating its hiring practices). (I am rehearsing, not endorsing, these arguments.)

This clear-cut example — to which both sides in Hosanna-Tabor v. EEOC refer frequently — may be the only one (and it is only clear-cut because it has behind it 2,000 years of history). For the question quickly becomes one of boundaries — how far does the ministerial exception extend? To whom does it apply? Not only are there no answers to such questions, it is not obvious who is empowered to ask them.

If the ministerial exemption is to have any bite, there must be a way of distinguishing employees central to a religious association’s core activities from employees who play only a supporting role (the example always given is janitors). But if the line marking the distinction is drawn by the state, the state is setting itself up as the arbiter of ecclesiastical organization and thus falling afoul of the establishment clause. And if the line is drawn by the religious association, the religious association is being granted the power to deprive as many of its employees as it likes of the constitutional protections supposedly afforded to every citizen. It is these equally unpalatable alternatives — this Scylla and Charybdis — that the justices find themselves between in oral argument. What a mess!

It is tempting to bypass the mess by getting rid of the ministerial exception altogether and demanding that churches, synagogues and mosques obey the law just as everyone else does. But that draconian solution would imply that we get rid of the religion clause as well; for it would amount to saying that religion isn’t special, and both sides of the clause insist that it is. The free-exercise clause tells us that that religion is especially favored and the establishment clause tells us that it is especially feared (the state should avoid entanglement with that stuff). How do you honor the claims of free exercise without bumping up against the establishment clause by allowing exceptions to laws that everyone else must follow?

The difficulty is sometimes finessed by cabining free exercise in the private sphere. Free exercise, it is said, is fine as long as its scope is limited to the expression and profession of belief; but once it crosses over into actions the state has a duty to regulate, free exercise must give way to the authority of fair and neutral laws. (This is the holding of a line of cases from Reynolds v. United States [1878] to Employment Division v. Smith [1990].)

This cutting of the joint works fine for a religion that places minimal burdens on its adherents and asks only that they attend to the personal relationship between them and their God. But what about religions that expand the area of faith to include rites the faithful must celebrate and worldly actions they are expected to perform? What about religions that refuse to recognize, and even consider impious, the distinction between the private and the public spheres? Can the state step in and say, “No, you’re wrong; that practice you’re worried about isn’t really essential to your faith; give it up so that a system of laws put in place for everyone isn’t destroyed by exceptions.” Doesn’t society, Justice Sonia Sotomayor asked at oral argument, “have a right at some point to say certain conduct is unacceptable, even if religious?”

The question is, at what point? And who gets to decide when that point has been reached? Indeed there is a question even more basic (and equally unanswerable except by fiat): who gets to say whether a “certain conduct” is religious and centrally so? A resolution of the Hosanna-Tabor case, Justice Samuel Alito observes, “depends on how central a teaching of Lutheranism” the injunction against “suing in a civil tribunal” really is. Before we can decide (he continues) whether the church’s asserted reason for terminating Perich is a pretext, we must determine whether this is in fact “a central tenet of Lutheranism.” And if we decide that it isn’t, wouldn’t we be “making a judgment about the relative importance of the Catholic doctrine that only males can be ordained as priests and the Lutheran doctrine that a Lutheran should not sue the church in civil courts?” And what authorizes the Court to do that in opposition to what the churches themselves say?

The same dilemma attends the other vexed question. How, wonders Chief Justice John Roberts, “do we decide who’s covered by the ministerial exception?” By getting to “the heart of the ministerial exception,” answers Douglas Laycock, speaking for the church. But that is simply to relocate the problem in a phrase that itself demands explication. Who’s to say where the heart is? In some churches, Justice Anthony Kennedy observes, there aren’t “full time ministers at all; they’re all ministers.” So does everyone fall under the exception and can a non-hierarchical church simply declare that none of its members can seek redress for acts of discrimination because they’re all ministers? Just before the oral argument concludes, Justice Sotomayor is still awaiting clarification: “So define minister for me again?”

She will be waiting forever. There is no way out of these puzzles, and that is exactly the conclusion Justice Stephen Breyer reaches: “I just can’t see a way … of getting out of the whole thing.” Justice Alito points to the absurdity of calling in expert witnesses to determine the truth of disputed matters of religion, but, he asks, “How are we going to avoid that? I just don’t see it.” Later he concludes that “you just cannot get away from evaluating religious issues,” which is of course exactly what the courts are not supposed to be doing.

So how will the case turn out? Clearly none of the justices wishes to pronounce as a theologian. And just as clearly none of them is happy with the prospect of a ministerial exception without defined limits. Breyer gestures in the direction of a solution that avoids the hard questions. Grant the Church the core doctrine it cites and inquire into whether Perich was given adequate notice of it. If she was, she loses; if she wasn’t, she wins. But no one will be satisfied with that maneuver, which will itself raise a host of new unanswerable questions in place of the questions supposedly avoided. All these questions were explored by John Locke at length in his “Letter Concerning Toleration” (1689), and at one point Locke gives voice to a weariness we might echo today: Would that “this business of religion were left alone.” But as long as there is a religion clause, that’s not an option.

Is Religion Above the Law?, NYT, 17.10.2011,






Federal Judge Rules

That Health Law

Violates Constitution


January 31, 2011

The New York Times



A second federal judge ruled on Monday that it was unconstitutional for Congress to enact a health care law that required Americans to obtain commercial insurance, evening the score at 2 to 2 in the lower courts as conflicting opinions begin their path to the Supreme Court.

But unlike a Virginia judge in December, Judge Roger Vinson of Federal District Court in Pensacola, Fla., concluded that the insurance requirement was so “inextricably bound” to other provisions of the Affordable Care Act that its unconstitutionality required the invalidation of the entire law.

“The act, like a defectively designed watch, needs to be redesigned and reconstructed by the watchmaker,” Judge Vinson wrote.

The judge declined to immediately enjoin, or suspend, the law pending appeals, a process that could last two years. But he wrote that the federal government should adhere to his declaratory judgment as the functional equivalent of an injunction. That left confusion about how the ruling might be interpreted in the 26 states that are parties to the legal challenge.

The insurance mandate does not take effect until 2014. But many new regulations are already operating, like requirements that insurers cover children with pre-existing health conditions and eliminate lifetime caps on benefits. States are also preparing for a major expansion of Medicaid eligibility and the introduction of health insurance exchanges in 2014.

David B. Rivkin Jr., a lawyer for the states, said the ruling relieved the plaintiff states of any obligation to comply with the health law. “With regard to all parties to this lawsuit, the statute is dead,” Mr. Rivkin said.

But White House officials declared that the opinion should not deter the continuing rollout of the law. “Implementation would continue apace,” a senior administration official said. “This is not the last word by any means.”

At the same time, Stephanie Cutter, an assistant to the president, noted in a post on the White House blog that the ruling had struck down the entire law. She called it “a plain case of judicial overreaching,” and added, “The judge’s decision puts all of the new benefits, cost savings and patient protections that were included in the law at risk.”

The Justice Department, which represents the Obama administration in the litigation, said it was exploring options to clarify the uncertainty, including requesting a stay of the decision, either from Judge Vinson or from the United States Court of Appeals for the Eleventh Circuit.

On Capitol Hill, Republicans sent out a stream of e-mails praising the ruling, while Senator Richard J. Durbin, Democrat of Illinois, said he would convene a Judiciary Committee hearing on Wednesday to examine the constitutionality of the law.

In his 78-page opinion, Judge Vinson held that the insurance requirement exceeded the regulatory powers granted to Congress under the Commerce Clause of the Constitution. He wrote that the provision could not be rescued by an associated clause in Article I that gives Congress broad authority to make laws “necessary and proper” to carrying out its designated responsibilities.

“If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain,” the judge asserted.

In a silver lining for the Obama administration, Judge Vinson rejected a second claim that the new law violated state sovereignty by requiring states to pay for a fractional share of the planned Medicaid expansion.

The judge’s ruling came in the most prominent of more than 20 legal challenges to the sweeping health law, which was signed last March by President Obama.

The plaintiffs include governors and attorneys general from 26 states, all but one of them Republicans, as well as the National Federation of Independent Business, which represents small companies. Officials from six states joined the lawsuit in January after shifts in party control brought by November’s elections.

The ruling by Judge Vinson, a senior judge who was appointed by President Ronald Reagan, solidified the divide in the health litigation among judges named by Republicans and those named by Democrats.

In December, Judge Henry E. Hudson of Federal District Court in Richmond, Va., who was appointed by President George W. Bush, became the first to invalidate the insurance mandate. Two other federal judges named by President Bill Clinton, a Democrat, have upheld the law.

Judge Vinson’s opinion hangs on a series of Supreme Court decisions that have defined the limits of the Commerce Clause by granting Congress authority to regulate “activities that substantially affect interstate commerce.”

The plaintiffs characterized the insurance requirement as an unprecedented effort to regulate inactivity because citizens would be assessed an income tax penalty for failing to buy a product.

Justice Department lawyers responded that a choice not to obtain health insurance was itself an active decision that, taken in the aggregate, shifted the cost of caring for the uninsured to hospitals, governments and privately insured individuals.

In his decision, Judge Vinson wrote, “It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause.” If Congress has such power, he continued, “it is not hyperbolizing to suggest that Congress could do almost anything it wanted.”

The Pensacola case is now likely to head to the Eleventh Circuit in Atlanta, considered one of the country’s most conservative appellate benches. The Richmond case is already with another conservative court, the United States Court of Appeals for the Fourth Circuit in Richmond, which has set oral arguments for May.

That court will consider diametrically opposed rulings from courthouses situated 116 miles apart, as it was a judge in Lynchburg, Va., Norman K. Moon, who issued one of the two decisions upholding the law. Meanwhile, the United States Court of Appeals for the Sixth Circuit in Cincinnati is already receiving briefs on the other decision backing the law, which was delivered by Judge George C. Steeh in Detroit.

Judge Vinson’s ruling further arms Republicans in Congress who are waging a fierce campaign against the health care act. The new Republican majority in the House voted this year to repeal the law, a largely symbolic measure that is given no chance in the Democratic-controlled Senate.

The Obama administration argues that without the insurance mandate consumers might simply wait until they are sick to enroll, undercutting the actuarial soundness of risk pooling and leading to an industry “death spiral.”

But the mandate’s legal and political problems have prompted a few Democratic senators to join Republicans in exploring alternatives that would encourage citizens to buy insurance without requiring it.

For instance, people could be given a narrow window to enroll, and those who miss the deadline would face lengthy waiting periods for coverage.

Alternately, those who apply late and are eligible for government tax credits under the law coverage could be penalized through a reduction of their subsidies.

Sheryl Gay Stolberg contributed reporting.

Federal Judge Rules That Health Law Violates Constitution,






2 Patriot Act Provisions

Ruled Unlawful


September 27, 2007

Filed at 6:34 a.m. ET

The New York Times



PORTLAND, Ore. (AP) -- Two provisions of the USA Patriot Act are unconstitutional because they allow secret wiretapping and searches without a showing of probable cause, a federal judge ruled Wednesday.

U.S. District Judge Ann Aiken ruled that the Foreign Intelligence Surveillance Act, as amended by the Patriot Act, ''now permits the executive branch of government to conduct surveillance and searches of American citizens without satisfying the probable cause requirements of the Fourth Amendment.''

Portland attorney Brandon Mayfield sought the ruling in a lawsuit against the federal government after he was mistakenly linked by the FBI to the Madrid train bombings that killed 191 people in 2004.

The federal government apologized and settled part of the lawsuit for $2 million after admitting a fingerprint was misread. But as part of the settlement, Mayfield retained the right to challenge parts of the Patriot Act, which greatly expanded the authority of law enforcers to investigate suspected acts of terrorism.

Mayfield claimed that secret searches of his house and office under the Foreign Intelligence Surveillance Act violated the Fourth Amendment's guarantee against unreasonable search and seizure. Aiken agreed with Mayfield, repeatedly criticizing the government.

''For over 200 years, this Nation has adhered to the rule of law -- with unparalleled success. A shift to a Nation based on extra-constitutional authority is prohibited, as well as ill-advised,'' she wrote.

By asking her to dismiss Mayfield's lawsuit, the judge said, the U.S. attorney general's office was ''asking this court to, in essence, amend the Bill of Rights, by giving it an interpretation that would deprive it of any real meaning. This court declines to do so.''

Elden Rosenthal, an attorney for Mayfield, issued a statement on his behalf praising the judge, saying she ''has upheld both the tradition of judicial independence, and our nation's most cherished principle of the right to be secure in one's own home.''

Justice Department spokesman Peter Carr said the agency was reviewing the decision, and he declined to comment further.

The ruling probably won't have any immediate affect on enforcement under the Patriot Act, according to legal experts who predicted the government would quickly appeal.

''But it's an important first step,'' said Jameel Jaffer, director of the American Civil Liberties Union's national security project.

Jaffer noted that the Patriot Act carries dozens of provisions and that several have been challenged -- but that this is one of the first major rulings on Fourth Amendment rights.

''This is as clear a violation of the Fourth Amendment as you'll ever find,'' Jaffer said.

Garrett Epps, a constitutional law expert at the University of Oregon, said the ruling adds to the poor record that the Bush administration has piled up in defending the Patriot Act.

''It's embarrassing,'' Epps said. ''It represents another judicial repudiation of this administration's terrorist surveillance policies.''

A federal judge in New York this month handed the ACLU a victory in a challenge to the Patriot Act on behalf of an Internet service provider that was issued a ''national security letter'' demanding customer phone and computer records. The judge in that case ruled the FBI must justify to a court the need for secrecy for more than a brief and reasonable period of time.

Mayfield, a Muslim convert, was taken into custody on May 6, 2004, because of a fingerprint found on a detonator at the scene of the Madrid bombing. The FBI said the print matched Mayfield's. He was released about two weeks later, and the FBI admitted it had erred in saying the fingerprints were his and later apologized to him.

Before his arrest, the FBI put Mayfield under 24-hour surveillance, listened to his phone calls and surreptitiously searched his home and law office.

The Mayfield case has been an embarrassment for the federal government. Last year, the Justice Department's internal watchdog faulted the FBI for sloppy work in mistakenly linking Mayfield to the Madrid bombings. That report said federal prosecutors and FBI agents had made inaccurate and ambiguous statements to a federal judge to get arrest and criminal search warrants against Mayfield.

Congress passed the Patriot Act with little debate shortly after the Sept. 11, 2001, attacks to help counter terrorist activities. It gave federal law enforcers the authority to search telephone and e-mail communications and expanded the Treasury Department's regulation of financial transactions involving foreign nationals. The law was renewed in 2005.

In early August, the Bush administration persuaded lawmakers to expand the government's power to listen in on any foreign communication it deemed of interest without a court order, even if an American was a party. The expanded surveillance authority expires early next year. As Congress takes a closer look at the law, many Democrats want to rein in language that many consider overly broad.

2 Patriot Act Provisions Ruled Unlawful,
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