Saturday, December 29, 2007

The Brattleboro Bill of Attainder

"(L)egislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution."
--United States v. Lovett, 328 U.S. 303, 315-316 (1946).

"(The bill of attainder was) invented in the early fifteenth century... In the attainder procedure, there was not even a show trial: A bill was simply passed through both houses of Parliament declaring someone an enemy of the king and the kingdom."
--Norman F. Cantor, Imagining the Law, New York: Harper Perennial, 1999, p. 291.

So greatly did the authors of the Constitution despise the idea of legislative bodies declaring somebody a criminal that they prohibited bills of attainder twice. Article I, § 9 prohibits Congress from passing bills of attainder, while Article I § 10 declares that no state shall pass a bill of attainder. The latter is particularly striking: in the original Constitution of 1787 there is no indication that states even have to observe rules of due process--that would not come for over eighty years until the Fourteenth Amendment was ratified-- yet right away when our Constitutional government was first created, James Madison and company made it quite clear that if someone is to be arrested, it must be through the judicial process. Legislators cannot vote to say somebody is a criminal.

Well somebody forgot to tell some of the people in Brattleboro, Vermont, as shown by this ridiculous item:

Here it is in a nutshell:

"A group in Brattleboro is petitioning to put an item on a town meeting agenda in March that would make Bush and Vice President Cheney subject to arrest and indictment if they visit the southeastern Vermont community...

"The measure asks: 'Shall the Selectboard instruct the Town Attorney to draft indictments against President Bush and Vice President Cheney for crimes against our Constitution, and publish said indictment for consideration by other municipalities?'"

One can only hope that the Town Attorney is familiar with the Constitution, knows what a bill of attainder is, and tells the Selectboard to shut up and worry about whether there should be a traffic light installed at the intersection of streets x and y. It would be beneficial to everybody in Brattleboro, after all, if their Selectboard did what small town councils are supposed to do, rather than what the U.S. Constitution prevents them from doing. Whatever complaints anybody has with the President and Vice-President, this is America, and legislators can't randomly declare that two men named Bush and Cheney are criminals subject to arrest.

Tuesday, December 25, 2007

Reindeer games, Christmas, and civil rights

According to, the much loved Christmas cartoon "Rudolph the Red-Nosed Reindeer" was first shown on December 6, 1964. You will recall that the other reindeer never let poor Rudolph join in any reindeer games because he had a red nose. Then, when it turns out that the scarlet snouted Cervid can guide Santa's sleigh through a blizzard, the other reindeer and the elves realize that they were wrong to have discriminated against Rudolph.

Interestingly enough, on December 14, 1964, just eight days after the Rudolph cartoon was first shown, the U.S. Supreme Court unanimously upheld the Civil Rights Act in the case of Heart of Atlanta Motel v. United States 379 U.S. 241. So the week after America's kids first got the message that a deer shouldn't be judged by the color of his nose and not allowed to play in reindeer games because of it, the High Court endorsed Congress's reminder to adults that a human shouldn't be judged by the color of his skin and not allowed to stay in a hotel because of it.

I know the decision in Heart of Atlanta must have already been written, or at least written to the point where only finishing touches needed to be added, when Rudolph first aired that day in early December. But isn't it nice to imagine that perhaps one of the Justices might have watched the premiere of this animated feature with his children or grandchildren, thought about the important message the youngsters were being taught, and mused at how similar this all was to the great statement the Court was about to make?

And so, in their own way, in the span of two weeks "Rudolph the Red-Nosed Reindeer" and Heart of Atlanta Motel v. United States helped spread the Christmas message that we should all be good to each other. I hope you have the merriest Christmas ever!

Friday, December 21, 2007

Evolution, hemlines, and the Constitution

In her column this week, Ann Coulter blasted Mike Huckabee. Coulter blasts people more often than Larry the Cable Guy tells a joke about flatulence, so that in itself isn't news. But here's the unusual part: one of the charges she hurls at the Arkansas governor is that even though he doesn't believe in evolution, he doesn't denounce Darwinism strongly enough:

Here's the relevant part of Coulter's complaint:

"The media are transfixed by the fact that Huckabee says he doesn't believe in evolution... Asked on CNN's "Larry King Live" Monday night about his beliefs on evolution, Huckabee rushed to assure King that he has no interest in altering textbooks that foist this fraud on innocent schoolchildren.

"I don't understand that. Does Huckabee believe Darwinism is a hoax or not? If he knows it's a fraud, then why does he want it taught to schoolchildren? What other discredited mystery religions... does Huckabee want to teach children? Sorcery? Phrenology? Alchemy?"

Well, maybe we are teaching children sorcery by condoning the reading of Harry Potter books. But I digress: Not only does Mike Huckabee not believe in evolution, he also does not approve of miniskirts:

You know what the beauty of our Constitution is? Because of it, we have a government where regardless of who is elected President next year, I can go on believing in evolution; Ann Coulter can go on wearing miniskirts.

Boy, am I glad it's not the other way around...

Saturday, December 8, 2007

Well, the Confederacy had at least one thing right...

Pehaps the most significant aspect of nineteenth century U.S. history can be summed up in one sentence: When Abe Lincoln walked through the door, the South left the room. And in 1861, the Confederate States of America adopted its own constitution. If they'd had computers with a cut and paste feature back then, writing this "new" constitution would have taken about twenty-five minutes, because over 90% of it is the same as the United States Constitution as it then stood (Anastaplo, G., The Amendments to the Constitution: A Commentary, 1995 p. 125).

The Confederate Constitution did, however, have a few innovations, some good, some bad, some marginal. The Constitution endorsed and protected slavery (Article IV, section 3). Bad idea. The Constitution prohibited use of national funds for internal improvements such as roads (Article I, section 8). Weird idea. It made the President's term of office six years without letting him run for re-election (Article II, section 1). If you think the current President has held office too long you probably like that. It also gave the President a line-item veto (Article 1, section 7). If you think the current President has held office too long you probably don't like that.

But those rebels did put one thing into their brief effort at establishing a new country that I think was absolutely, positively, a wonderful idea. Just how sound was this thinking occurred to me when I read an item at recently. First let the CSA speak, then CNN:

"Every law, or resoulution having the force of law, shall relate to but one subject, and that shall be expressed in the title" (Article I, § 9, ¶ 20).

Now here's the CNN article:

"Congress has dropped legislation that would have expanded hate crime laws to include attacks on gays after it became clear the measure wouldn't pass the House, aides said Thursday. The bill, sponsored by Sen. Edward Kennedy, was widely supported by Democrats and even some moderate Senate Republicans. But because it was attached to a major defense policy bill that would have authorized more money for the Iraq war, many anti-war Democrats said they would oppose it."; emphasis mine.

What nonsense. Regardless of how everybody feels about the Iraq War or hate crime legislation to cover gays, can't we all agree that having both subjects embraced in one bill leads to nothing but inefficiency and gridlock? Isn't it a bit enlightening to learn that 140 years ago a lot of folks had already figured out that riders attached to riders in bills are deplorable, thus the provision in the Confederate Constitution to end the wretched practice? It's high time we copied Robert E. Lee's people and adopted their Article I, § 9, ¶ 20.

Having endorsed this idea, let me answer two objections that could be offered. First, some of you may be thinking that law has become so intricate, so complex, that we simply CAN'T have laws relating to only one subject, expressed in the title.

That's preposterous. The federal regulations for importing swine covers thirteen pages, but doggone it, every word, every sentence, every paragraph has to do with bringing this little piggie to the market in the U.S.A. (9 C.F.R. § 93.500-521, 2007). Nothing about hate crime legislation or Iraq war funding is in there. What's hate crime to a pig?

Furthermore, I think it's apparent that in all fields of human endeavor, not just law, we can provide the gist in a few words. Dickens summed up a couple of hundred pages with the five words "A Tale of Two Cities;" none of his characters made forays into Iraq or swine importation that had nothing to do with the plot.

A more substantial argument against "one law, one subject" could be made by pointing out that the U.S Constitution--the basis for this blog--doesn't even do that. Consider the Fifth Amendment. It encompasses grand jury indictment, double jeopardy, self-incrimination, due process--and no taking of private property for public use without just compensation! How did that last item get in there? The other aspects of the Fifth Amendment have to do with criminal prosecutions; just compensation is a civil matter. Why is the Takings Clause so out of place?

Yale Professor Akhil Reed Amar suggests that this was a case of "clever bundling" (The Bill of Rights: Creation and Reconstruction, 1998, p. 78). That is, since Constitutional amendments are subject to a straight up or down vote, without the states having power to add this or subtract that, James Madison's pet Takings Clause had a much better chance of making it into the constitution if it was tied with the other principles embodied in the Fifth Amendment than if it stood alone.

But there is a difference between a Constitutional amendment, which requires a supermajority of Congress AND the states to pass, and ordinary legislation, which passes on just a simple majority of Congress. The voting process is far less cumbersome for ordinary federal legislation--only two legislative bodies vote--while for a Constitutional Amendment as many as 101 legislative bodies might vote: the Senate, the House of Representatives, the single Nebraska House, and two houses from each of the other forty-nine states. Given the simplified nature of ordinary legislation and the opportunity to edit proposed law during debate, it need not be "cleverly bundled" as Madison's Fifth Amendment was.

It's a slight digression, but it seems likely from recent precedent that even if Congress passed a law declaring violence against gays a federal hate crime, the courts would not uphold it if it were challenged. I say that because only seven years ago, the Supreme Court ruled that Congress had exceeded its Constitutional authority when it enacted the Violence Against Women Act, an attempt to make such heinous acts a federal crime (U.S. v. Morrison 529 U.S. 598, 2000 ) . If the Court says Congress can't make beating a woman a federal crime, what would make you think the Court would say it's okay to make beating a woman a federal crime if she's a lesbian? Plus given the change in Court personnel the past decade, it's unlikely they would revisit Morrison and decide the other way.

But back to the main point of this article. Please understand that in suggesting the Confederate Constitution's provision for "one law, one subject" is an idea whose time has come, I'm not pitching for an amendment to the United States Constitution to make it a reality. It's pretty darn hard to get amendments ratified, which is why we've only had twenty-seven in 220 years.

There is an easier way, however to accomplish this. It wouldn't take the intricate amendment process spelled out in Article V. Instead, an appeal to a provision in Article I § 5, ¶ 3 is in order. That provision reads: "Each House may determine the Rules of its Proceedings." In other words, the House of Representatives and Senate could just decide on "one law, one subject" as an institutional policy for conducting their business.

Will we ever see that? Probably not. And so we'll continue to see unpassable and incomprehensible bill proposals linking gay bashing to Iraq War spending. What the heck, maybe they can also work something in there about importing pigs.

Monday, December 3, 2007

They'll need to go to college just to learn to spell "Huckabee"

It is an unintentional irony that having made Chuck Norris a key player in my last post, I'm now going to bring up Norris's favorite presidential candidate, Mike Huckabee:

As the article details, former Arkansas governor is embroiled in a controversy that has him being grilled by conservatives who heretofore have frequently been quite complimentary. Of course, the reason I'm addressing the matter here is that the Constitution is involved--but you might not know this from reading about the matter.

The furor is over Huckabee's support for giving scholarships to the children of illegal immigrants. As the Washington Post article reports:

"Huckabee has been criticized by Mitt Romney and others in the GOP presidential race for supporting legislation in Arkansas that would have made all youngsters who graduate from state high schools eligible to compete for college scholarships, no matter what the legal status of their parents. "

Then we are treated to Huckabee defending his position by comparing himself to Ronald Reagan, apparently because he wanted to compare himself to Ronald Reagan. (As someone born and raised in Chicago and now living in the South, I must say that just once I'd like to see a Southern politician compare himself to the other famous Illinois Republican. You know, the one who fought a war against the South.)

Huckabee tried again with George Stephanopoulos a couple of days later, and he didn't do particularly well there, either:

The commentary on the hotair site fusses:

"What Huckabee keeps touting as a merit scholarship program ended up being a simple in-state tuition break. Why let illegals who reside in Arkansas get a break that citizens who reside in Alabama don’t? Because, according to Huck, attending school in Arkansas — for as little as three years, potentially, let’s not forget — makes for a more valid claim on public resources than American citizenship plus 13 years in a neighboring state’s school system does."

Left out of this discussion is that arguably, Governor Huckabee not only can insure that Arkansas provides sound educational opportunity for children of illegal immigrants, but that he must do so according to the Constitution and the principle laid down by the Supreme Court in one of its most lauded decision of the twentieth century.

The relevant text is a portion of Section 1 of the Fourteenth Amendment, ratified just after it was determined that Huckabee today would be running for President of the whole United States rather than merely the Confederate States of America:

"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."

The emphasis, of course, is mine, and it is intended to point out that while according to the Fourteenth Amendment a state could in theory Constitutionally deny privileges or immunities to anyone not a U.S. citizen, it may not deny due process or equal protection to anybody, citizen or no, because even if you were born in Mexico and slipped across the Rio Grande in the dead of night, you are still a person, for Pete's sake.

So, if there is any strong reason to believe that public education is a matter of "equal protection" or "due process" then the obvious conclusion would be that children of illegal immigrants, being persons, are entitled to whatever benefits anybody in Arkansas gets, whether they were born in Little Rock or Tijuana. Is there such a reason?

Absolutely. Check out this line from the conclusory paragraph of Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), where the Warren Court rightly and famously ended school segregation:

"We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for who the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment." (Brown at 495, my emphasis).

Earlier in the decision Chief Justice Warren expounded on the importance of schools; his words there also deserve quoting:

"Today, education is perhaps the most important fuctinon of state and local governments... It is the very foundation of good citizenship... In these days, it is doubtful that any child may reasonably be expected to suceed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms." (Brown at 493, my emphasis).

At this point, someone might protest that there are two differences between Brown and the Huckabee flap. First, the kids in Brown were children of parents born in America. Second, Brown dealt with elementary and secondary school children, in the case of the Arkansas program we're talking about college students.

Both protests are irrelevant. As I believe I've shown, the equal protection requirement applies to states whether the individual affected is native born or not. And as for the difference in educational levels, the Supreme Court actually ruled against segregation in higher education years before Brown (see cases cited, Brown at 492). The message is clear: education at any level is a benefit states have to provide with equal access for everybody.

So to answer the question posed by hotair--"Why let illegals who reside in Arkansas get a break that citizens who reside in Alabama don’t?"--the answer is that according to the U.S. Constitution illegals residing in Arkansas are persons Arkansas has jurisdiction over, citizens residing in Alabama are not. Alabamans are free to become Arkansas persons if they decide to pull up stakes in Montgomery and head for the high life in Hot Springs.

I can’t leave the topic of immigrants and education without mentioning a speech given by Mies van der Rohe, the great twentieth century architect, teacher, and immigrant. He left his native Germany in 1937, at a time it was increasingly difficult for an independent minded person to function. Coming to America, he took the position of Director of Architecture at the Illinois Institute of Technology in Chicago. At the dinner where Mies was introduced to the IIT faculty and trustees, he spoke with clarity on the importance of education. Actually, his words may not have been clear, as they were spoken in German since he had not yet mastered English. But translated into our tongue, they vividly express why we should be concerned that everybody in America receives a decent education:

"True education is concerned not only with practical goals but also with values... Our aims assure us of our material life; our values make possible our spiritual life... If teaching has any purpose, it is to implant true insight and responsibility. Education must lead us from irresponsible opinion to true, responsible judgment. It must lead us from chance and arbitrariness to rational clarity and intellectual order." (Quoted in Master Builders by Peter Blake, New York: W.W Norton & Company, 1996, pp. 230-31).

As a responsible society, we need to insure that all children in the United States—including those whose families are her illegally--are implanted with insight and responsibility. Mies was right.

And so was Mike Huckabee. He just didn’t defend his position with rational clarity and intellectual order. Had he shown that the Constitution is in his corner, he could have done just that.

Tuesday, November 27, 2007

Chuck Norris can kick the Establishment Clause's scrawny little butt

Recently, a conservative blog, posted an item about actor and tough guy Chuck Norris, who—along with his pretty and much younger wife—supports the notion of teaching Bible classes in America’s public schools. (Here is the piece, including a youtube video:)

When such a suggestion is offered, it’s common for the objection to be raised that for government schools to offer Bible study would be a violation of the First Amendment’s Establishment clause, which mandates that "Congress shall make no law respecting an establishment of religion.” Modern interpretation of the later Fourteenth Amendment has held that this restriction on government action also applies to the states; e.g. Cantwell v. Connecticut 310 U.S. 296 (1940), Everson v. Board of Education 330 U.S. 1 (1947).

That’s fine; a discussion on whether or not Bible reading in a public school runs afoul of the Establishment clause is exactly the kind of meaty topic I hope in the future to address in this blog. If you conclude Chuck Norris is wrong, it’s perfectly acceptable to criticize him on the grounds that his interpretation of the Constitution is suspect.

But something else should be, I think, out of bounds in the discussion. That is the notion that nobody can endorse the idea of religious based values not because the Constitution won’t allow it, but because the person advocating such a position is (of course) a flawed person himself. Responding to the item posted at, one of the readers there sneered: “Let’s not start taking lessons in morality from a guy that dumped the mother of his kids so he could marry his blonde trophy wife. Chuck Norris is as bogus as a three-dollar bill.”

I checked various websites purporting to give a fair biography of Norris; all the ones I’ve seen state that he divorced his first wife in 1988 and married his current one in 1998. If that is true, it hardly needs to be said that a man who marries his second wife a full decade after jettisoning his first absolutely did not “dump the mother of his kids to marry a trophy wife.” Of course, even if Norris had said “I do” to wife number two twenty minutes after saying “get lost” to wife number one, and he’d done the whole thing in Las Vegas with an Elvis impersonator presiding, this is not good evidence that the Constitution prevents public school children from being taught in class that “A word fitly spoken/ Is like apples of gold in pictures of silver.” (Proverbs 25:11).

Whatever argument there may be that reading the Bible in public schools is an affront to the Establishment clause, I think that no one should rationally argue that Chuck Norris doesn’t get to use his other First Amendment rights—freedom of speech, freedom to use the media to advance his position, and freedom to associate with others to petition the government for change—because he’s in his second marriage. Yet that basically is what the hotair poster is suggesting.

One hears this sort of thing occasionally in the form of shouts such as “Who is Sam to argue that we should not be in the current conflict in Iraq when he suddenly decided at age 19 in 1969 that it was time to look for an apartment in Toronto?” or “I can’t believe that candidate has the nerve to talk about family matters when her son got nailed on a DUI!” or “How can you fairly express an opinion on abortion; you are a MAN!!!!” When you hear things like that, you are hearing total nonsense. Nobody loses his First Amendment freedom to speak, write, or petition because he was a rowdy youth, made mistakes as a parent, or was born with (or without) a penis.

The irony is that the very authorship of the First Amendment in a sense confirms what I’m saying. It may be one of the most sublime expressions ever of what liberty really means—and one of the most concise as well, coming in at forty-five words. One might suspect that whoever wrote it couldn’t possibly be as good as those words—and indeed, James Madison wasn’t.

To his credit, on June 8, 1789, Madison presented to the House of Representatives a rough draft of what would eventually become the First Amendment (Farber, D.A. & S. Sherry, A History of the American Constitution, 1990, pp. 227-231.) To his discredit, Madison owned slaves. In fact, as historian Joseph Ellis pointed out in his Pulitzer Prize winning book Founding Brothers (2000, pp. 113-118), Madison used a good deal of parliamentary wrangling to keep Congress from even debating slavery issues. Free speech for Congress, thus, was in a sense shut out by the same man who advocated free speech for everyone.

So if someone implies that by virtue of having been divorced Chuck Norris has lost his First Amendment right to tout Biblically based morality, gee, why not go all the way and just say that the whole first Amendment itself is irrelevant because its main draftsman embraced slavery? Nobody ever gets to that point, of course, because muddled thinking eventually is understood to be just that.

But any suggestion that someone doesn’t even deserve to be heard because of something in his personal life is a few steps down that muddy path. You still get your First Amendment rights even if you’ve divorced or made silly martial arts movies.

Monday, November 19, 2007

The Big Man was in Paris

"Thomas Jefferson, one of the authors of the 1787 Constitution, declared: 'America is new in its forms and principles.'"
--Fernand Braudel, A History of Civilizations. New York: Penguin Books, 1987, p.458.

"Literate America heaved a collective groan last week: huge ads in several national newspapers promoted the upcoming film Jefferson in Paris by displaying part of the American Constitution. But Thomas Jefferson had as much to do with drafting the Constitution as he did with writing the recipe for American cheese. Says a spokeswoman for Walt Disney Co., which releases the film March 31: 'We all walked in Monday morning and said, 'Oh (expletive)! It should have been the Declaration of Independence.' This from the company that wanted to build a theme park celebrating American history."
--A 1995 Newsweek article quoted in "Forty Years of Overstatement: Criticism and the Disney Theme Park" by Greil Marcus, a chapter in the book Designing Disney's Theme Parks: The Architecture of Reassurance edited by Karal Ann Marling, Paris: Flammarion, 1997, p. 202.

"Mandark says Thomas Jefferson wrote the Bill of Rights, but James Madison did that."
--Comment posted at;title;9, site visited 19 Nov 2007; the poster was remarking on an episode of the cartoon "Dexter's Laboratory."

Last week at the petting zoo I work at, I watched an elementary school teacher walk up to one of our sheep with her students. She carefully explained to them how these fuzzy animals are sheared periodically for their wool. And then, she asserted, the wool is used to make cotton.

This happens a lot, and I admit I was very surprised to discover how many adults have no clue that cotton comes from a plant and not from the backs of livestock. And after a parent or teacher has told a child that cotton comes from sheep, I suppose the next step in misinforming them is to declare that Thomas Jefferson wrote the U.S. Constitution.

The assortment of quotes above, taken from sources serious and frivolous, is a reminder how prevalent is the misconception that Thomas Jefferson was involved in the writing of the original Constitution or it's first ten amendments. It would be easy to dismiss the writers of a cartoon on Nickelodeon for getting it wrong, but Braudel's book is a respected treatise that has gone through several editions. (For the record: Braudel wrote in French, in which I am not fluent; I read the English translation by Richard Mayne. I sent an e-mail to Penguin Books noting the error and inquiring whether Braudel goofed or it was a mistranslation. I've not yet received a reply.)

During the 1787 Constitutional Convention, Jefferson was serving as minister to France; thus he was in Paris and not available for Constitution drafting. After the Convention, Jefferson corresponded with his friend James Madison on his likes and dislikes of the great document, and these letters enable us to understand what TJ thought about the whole deal. (A nice sampling of their letters is reprinted in Founding America: Documents from the Revolution to the Bill of Rights, Jack N. Rakove, ed., New York: Barnes & Noble Classics, 2006, pp. 545-587.) But Jefferson manifestly did not write the Constitution! Got that? And we don't get cotton from sheep!

So why do some people think Jefferson DID write the Constitution? I think it's obvious: such people are getting the Declaration of Independence, which Jefferson wrote, with the Constitution, which he didn't write. Either that or people just figure that since the Constitution was a big deal and it happened while Jefferson walked the earth, then by gosh, he must have had something to do with it.

As Jefferson spent a good deal of time in Paris, it is somewhat ironic that a Frenchman, Alexis de Tocqueville, may have put his finger on why it's easy to suppose Jefferson had a hand in the Constitution. Writing in 1835, de Tocqueville asserted: "I am glad to cite the opinion of Jefferson... rather than that of any other, because I consider him the most powerful advocate democracy has ever had." (Democracy in America, Volume 1, Chapter XV.) That's it in a nutshell: the Constitution was an influential document promoting democracy; Jefferson was its contemporary and an influential voice touting democracy. People think they just have to be connected somehow.

Wednesday, November 7, 2007

Easy Access to the Constitution

I must have about twenty books around my place that contain copies of the United States Constitution. It just dawned on me, however, that a lot of folks probably don't have a Constitution at their fingertips. Well, through the magic of the Internet and the wonderful Avalon Project of the Yale University Law School, let me provide a link where the document can be viewed:

What a great website to peruse when you have time; they have everything posted there from the Magna Carta to the 9/11 Commission Report.

Tuesday, November 6, 2007

Shakespeare, Scriptures, Smith, and a cast of thousands

Have you ever heard that old bit of wisdom, something to the effect that the beating of a butterfly's wings in Madagascar can affect the weather in Kansas? When I first heard that, I couldn't help thinking that if an insect brandishing its wings in Madagascar influences weather in Kansas, just imagine what an elephant breaking wind in Uganda does for the climate in Missouri.

Anyway, the matter of this influencing that surrounds the discussion of a lot of things. I've come to the conclusion that when an author writes a long dissertation that a influences b, and he cites numerous sources and events to buttress his point, he probably is right: a does influence b.

The problem is, while a may influence b, there is a really good chance that b is also influenced by c, d, e, f, and g. Plus assorted butterfly wingbeats and random elephant farts. It's largely a matter of the individual investigator's focus--he's not saying c doesn't influence b, mind you, it's just that this isn't his personal interest, which is demonstrating to the world that a influences b.

You should always remember that when you read what someone has to say about what inspired the Framers as they crafted our United States Constitution.

Take the Bard of Avon. How much of a factor were the works of Shakespeare in the writing of the Constitution?

If you pick up a copy of Forrest McDonald's Novus Ordo Seclorum: The Intellectual Origins of the Constitution (Lawrence, KS: The University of Kansas Press, 1985)--hailed as "The best single volume on the origins of the Constitution" by a review quoted on the back cover--you might conclude that we have a very non-Shakespearean Constitution. Professor McDonald's 359 page book contains just two fleeting references to the great Elizabethan playwright. (By contrast, there is a 46 page chapter entitled "Systems of Political Economy" that dwells in depth on the role the work of economists such as Adam Smith and James Steuart had in shaping the world of the Framers.)

Ah, but now check out George Anastaplo's volume The Constitution of 1787: A Commentary (Baltimore: The Johns Hopkins University Press, 1989). He devotes an entire chapter to the Constitutional significance of Shakespeare, particularly The History Plays. On page 75, Anastaplo states, ""Shakespeare was (the author) who probably provided early Americans with a comprehensive moral and political account of things. They encountered in his plays an entertaining instructor in constitutional principles..."

Later Anastaplo gets down to specifics: "The History Plays, insofar as they address both the problem of what happens when rulers are not properly selected and the problem of what happens when rulers, however selected, do not conduct themselves properly, very much touch upon issues that should be evident to us as we examine the provisions in the Constitution for the Exectuive and for the Judiciary" (pp. 87-88). Anastaplo also wrote a book entitled The Artist as Thinker: From Shakespeare to Joyce, and with a resume like that, it's no wonder he'd be enthralled with tying Shakespeare and the Constitution together.

But including one thing sometimes entails leaving another out. Near the beginning of his chapter on Shakespeare, Anastaplo advises, "When we wonder what it was that the Framers brought to their Constitution-making, we must remember the influence of the greatest English authors as well as the Bible" (p. 75). It seems a bit odd that he would bring up Scriptures at all, since the chapter doesn't take up the topic of Biblical influence at all and there are only a few references to the Bible in the whole 339 page book.

Of course, if you really want to read about how we have a Constitution heavily influenced by the Old and New Testaments, well, you can find that out there too. Christianity and the Constitution: The Faith of Our Founding Fathers by John Eidsmoe (Grand Rapids, MI: Baker Books, 1987) is an argument that religious leanings shaped the thoughts of the delegates at the 1787 Constitutional Convention, and the results are evident in the great document itself. For example, Eidsmoe notes that Article I, Section 7 of the Constitution, concerning the presentment of legislation to the executive, reads "If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it..." This reference to Sunday, Eidsmoe insists, is a part of the Ten Commandments written into our basic law--Exodus 20:8-10 admonishing: "But the seventh day is the sabbath of the Lord thy God; in it thou shalt not do any work."

Cynic that I am, I might note that there are times I think Congress and the President don't do any work on days other than the sabbath, either.

The point is, I'm not criticizing McDonald for not closely examining Shakespeare's role in Constitutional thought, nor am I demeaning Anastaplo for not probing the Bible question more thoroughly, nor am I arguing that Eidsmoe spent too much time on religion in neglect of all else. Everyone who writes a book or article on the Constitution has the right to focus on whatever aspect of it interests him the most. I feel better for having read McDonald, Anastaplo, AND Eidsmoe.

But just remember this, especially if you are undertaking an examination of the Constitution for the first time: the men who wrote it were learned gentlemen who were influenced by a LOT of things. If you peruse only one or two sources of Constitutional thought, you'll miss a lot of theory because no one scholar covers everything.

Monday, November 5, 2007

It's not JUST Brett's Constitution!

Hello. I'm Brett and this is a blog about the United States Constitution. I had to choose a name for this endeavor, so "Brett's Constitution" it was, but of course, the Constitution belongs to EVERYBODY. That's what I hope to emphasize here. Our constitution does not belong to left wing professors from Ivy League universities OR to conservative farmers in Kansas. It belongs to BOTH liberal professors AND right leaning farmers, and to everyone in between. I think the great U.S. Supreme Court Justice Oliver Wendell Holmes, Jr. put it quite well when he wrote:

"A constitution... is made for people of fundamentally differing views..." Lochner v. New York, 198 U.S. 45, 75 (1905).

If you are wondering what those odd words and numbers mean right after the quote, "Lochner v. New York" is the name of the case in which Holmes wrote those words (in dissent, by the way, of the majority opinion) and "198 U.S. 45, 75" tells you that this can be found in volume 198 of the U.S. Reports--that is, the official register of United States Supreme Court opinions--and the Lochner opinion begins on page 45 of volume 198, with the quote found specifically on page 75. Of course, 1905 is the year the case was ruled on.

Why am I dwelling on this, when I know you might not care about the source of the Holmes quote? It's simple: I know that one must be sceptical about what one reads online. Scores of professors admonish their students not to cite wikipedia because their standard for scholarly review to insure the accuracy of the information presented is slim compared to the careful scrutiny a published book or article receives. Well, I'm going to cite my sources on this blog, and even tell you how to easily access them online, if that can be done. This policy will keep both the author and the readers of this blog honest! Also this will help students--if they wish to use information they read here in a report for a class, they can go to the original source and cite it instead of my blog. (For example, to read Lochner, you can get up and head for the nearest law library. Or you can remain seated and just go here:

And yes, I will give my own opinions on the Constitution. When I do this, however, it should be clear that you are reading my thoughts.

"Okay, Brett," you might be thinking, "Who are you? Are you an attorney or a legal scholar?"

The answer is no. I'm not a lawyer; I do have a paralegal certificate but that does not make me an expert on legal matters.

That admission may cause you to think, "Then why should I pay attention to what you write here, seeing as you have not gone to law school?"

I have two answers. First, I'm not giving legal advice; I don't need to be an attorney. And second, the United States Constitution is our basic law, and as such, it is not strictly the province of the legal profession. Consider what two influential Americans said:

"I hold that every American citizen has a right to form an opinion of the constitution, and to propogate that opinion, and to use all honorable means to make his opinion the prevailing one."

--Frederick Douglass, speech of July 5, 1852, in Philip S. Foner, ed., The Life and Writings of Frederick Douglass (New York: International Publishers, 1950-1955), vol. 2 at 202; cited in Wayne D. Moore, Constitutional Rights and Powers of the People (Princeton, NJ: Princeton University Press, 1996) at 54-55.

"The Constitution of the United States (is) a layman's document, not a lawyer's contract."

--Franlin Delano Roosevelt, Address on Constitution Day, Sep. 17, 1937, in Samuel I Rosenman, ed., The Public Papers and Addresses of Franklin D. Roosevelt (New York: Random House, 1941) vol. 6 at 359, 362-363, 365; cited in Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford Press, 2004) at 217.

I shall take the advice of Douglass and FDR and think of the Constitution as mine, even though I'm no lawyer or legal scholar. I hope you will do the same and I invite you to join me for regular installments of this blog.