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.