USA > U.S. Constitution
Bill of Rights (Articles 3 to
On June 21, 1788,
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,
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
including the one displayed
at the National Constitution Center
—one for the federal government
and one for each of the 13 states.
10 of the amendments
were ultimately ratified in 1791
and became the Bill of Rights.
June 29, 2022
character: former President Donald Trump
by Gilbert Stuart (1755 - 1828)
Oil on canvas
1796 ca. - 1805
Height: 28.75 inches (73 cm)
Width: 23.63 inches (60 cm)
Cat. no. 31.00004.000
by Thomas Sully (1783 - 1872)
Oil on canvas
Height: 28.5 inches (72.4 cm)
Width: 23.63 inches (60 cm)
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
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
19th Amendment to the U.S. Constitution:
Women's Right to Vote USA
"The right of citizens of the United States to
shall not be denied or abridged by the United States
or by any state on account
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,
of woman suffrage supporters
lectured, wrote, marched,
and practiced civil disobedience to achieve
what many Americans considered
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
“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
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.
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
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,
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
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
'Excessive bail shall
not be required,
nor excessive fines imposed,
nor cruel and unusual
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”
surfaces (among other places)
in cases of civil and
for example when
is seized during a drug raid.
U.S. Constitution >
Bill of Rights > Fifth amendment rights
'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
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,
and protects against
It also requires that
“due process of law”
be part of any
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
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
constitute the first 10 amendments of the Constitution,
known as the Bill of
above the law
in the eyes of the law / before the
comply with the law
constitutional principle > dignity
the law’s constitutionality
consider the constitutionality of
unconstitutional > sentence juveniles to life
violate the United States
violate the principles
of the "full faith and credit clause" of the Constitution
violate the Constitution
with discriminatory policing practices
against African Americans
habeas corpus UK / USA
is the legal concept
prisoner has a right
to challenge the basis of confinement
-- to demand that the government
produce a valid reason for detention.
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
(a phrase translated variously as
"You have the body''
and "Produce the body.'')
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
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
has been suspended a number of times,
most notably by Abraham Lincoln
during the early days of the Civil War.
became a subject of renewed controversy
after the Sept. 11th
When the Bush administration
created a system of military tribunals
with terrorism subjects in 2002,
it asserted that "illegal non-combatants''
fell outside of the Geneva
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
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
District of Columbia Circuit,
but only under circumscribed procedures,
including a presumption that the evidence
before the military tribunal
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
have the right to challenge their detention there
in federal courts.
> President > recess appointments
Constitution > Article II, Section 4
and all civil Officers of the United States,
shall be removed from Office
on Impeachment for, and Conviction of,
or other high Crimes and Misdemeanors.
US constitution's prohibition
mentally ill people to death UK / USA
The Supreme Court banned
the execution of
intellectually disabled people
United States Constitution > the 10th Amendment limits federal
law / legislation
a piece of legislation
Corpus of news articles
USA > U.S. Constitution
Let’s Give Up
on the Constitution
December 30, 2012
The New York Times
By LOUIS MICHAEL SEIDMAN
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
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
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
is the author of the forthcoming book
“On Constitutional Disobedience.”
Let’s Give Up on the Constitution,
Embarrassed by Bad Laws
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
Embarrassed by Bad Laws, NYT, 16.4.2012,
Religion Above the Law?
The New York Times
By STANLEY FISH
Stanley Fish on education, law and society.
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
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  to Employment Division v. Smith .)
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
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,
That Health Law
The New York Times
By KEVIN SACK
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
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
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
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
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
Sheryl Gay Stolberg contributed reporting.
Federal Judge Rules That Health Law Violates Constitution,
2 Patriot Act Provisions
September 27, 2007
Filed at 6:34 a.m. ET
The New York Times
By THE ASSOCIATED PRESS
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
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
''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,''
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
2 Patriot Act Provisions
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