Category Archives: Law: Constitutional Law

Stirling Newberry, whose ideas I often like, has penned an odd one. I think I sort of like the idea behind it, but the execution leaves the lawyer in me very unsatisfied. Here’s his proposal for a War Powers Amendment:

Article 1

It shall require a three fifths vote of the whole of both houses to declare war, or authorize the use of war powers. Congress may revoke a declaration of war, or of any specific war power, by three fifths vote of the whole of both houses, to take effect not less than 30 days from the date of the vote.

Article 2

The authorization for the use of war powers shall expire thirty days from the beginning of a new Congress, unless reauthorized by a majority of the whole of both houses.

Article 3

Should the President use force or fraud directed at the Congress for the purpose of attaining a declaration of war or war powers, he shall be removed following a vote of a three fifths of the Senate, if impeached by the House. The President may appeal this removal to the Supreme Court.

Well.

Art. 1 runs into the problem that we have lots of non-war wars. Also “war powers” – while there is an overly-vague war powers resolution, “war powers” is not a term with a constitutional definition. Are you going to trust courts to define it? Endless wrangles, and always while bullets and worse are flying. The executive will win.

Art. 2 is to me the most interesting, but would only work with a much more robust definition of what uses of force are war powers and what are not (is UN peacekeeping ‘war powers’? Responding to a security council request for troops? Emergency rescue of US citizens in a war zone? Shipping supplies to an ally engaged in a fight? Spying?)

But whatever one thinks of 1 & 2 the third article is a big mistake. Any time you have two procedures for something you have the possibility of people getting into procedural wrangles about which applies, how they differ, etc. If we want to impeach a President, better to have him out than have wrangles and pretenders to the throne. Second, you shouldn’t give the Supreme Court a standardless power of review. According to what standard is this review – de novo? abuse of discretion? What sorts of claims lie – denial of due process? ex parte communications? And having original jurisdiction in the Supreme Court creates some (surmountable but real) difficulties if there is a need to take testimony; the absence of a process for that might lead some to think the review was deferential, like the review of an administrative agency on its own record, or even more deferential than that.

Trying to stop things like the Tonkin Gulf Resolution or the even more open-ended and disasterous Iraq resolution is certainly a good idea, maybe even a great idea. But count this as just a first draft of a long drafting process.

The first appellate court decision concerning a federal law called the Partial-Birth Abortion Ban Act of 2003 came down on Friday. In it, the Court of Appeals for the Eighth Circuit struck down the law as unconstitutional.

Here's the story: Five years ago, in a case called Stenberg v. Carhart, the Supreme Court invalidated a Nebraska law banning all so-called “partial birth” abortions. In a situation where a woman has the constitutional right to seek an abortion, the Supreme Court majority reasoned, a state may not regulate the method of her abortion in a way that endangers her health. Specifically, “where a significant body of medical opinion believes [an abortion] procedure may bring with it greater safety for some patients,” the state may not ban that procedure unless the ban incorporates an exception to cover those cases in which, medically, the banned procedure is the best approach. The Court canvassed the views of medical groups. It didn't find a consensus among doctors that, as plaintiffs argued, the banned procedures would be the safest for some patients. It didn't find a consensus the other way either, though: There was no consensus that the banned procedures couldn't sometimes be the safest approach for a pregnant woman. Bottom line: doctors disagreed. That risk that the state might be banning a sometimes-medically-necessary procedure, said the Court, was enough to require the state to write a exception into the law — and it hadn't, so the law was unconstitutional. Chief Justice Rehnquist and Justices Kennedy, Scalia and Thomas dissented.

Congress responded by enacting a new, nationwide ban. It explained in the statute that there was a “moral, medical, and ethical consensus” that the covered procedures were not only “gruesome and inhumane,” but indeed “never medically necessary.” The Stenberg v. Carhart decision, Congressional leaders explained, was irrelevant: The Court had announced legal consequences following from its medical uncertainty, but in fact there was no uncertainty. The Court's understanding about the possible medical desirability of the procedure had been superseded by Congress' declaration that the procedure was never medically in the interests of any patient.

The Eighth Circuit, on Friday, disagreed. The Supreme Court's earlier decision, it said, had dispositively established that there was a dispute among doctors over whether the procedure was sometimes medically desirable. Congress couldn't change that simply by announcing a consensus.

There's a bunch going on here that's interesting. The Court in Stenberg v. Carhart had responded to uncertainty by insisting that Indiana could not take the risk of banning a treatment that might (it didn't know) in some cases prove to be the safest choice. Congress responded that it didn't see the matter as at all uncertain, and that its own sureness should govern. For now, though, the most important thing to say about the Eighth Circuit's decision is that it's probably really short-lived. Only four of the Justices who voted with the Stenberg v. Carhart majority are still there. Justice O'Connor, of course, was the fifth.

Federal Authorities May Prosecute Medical Use of Marijuana.

Forced to choose between its anti-federalism jurisprudence and the War On (Some) Drugs™, the Supreme Court has chosen to re-affirm Wickard v. Filburn's expansive view of federal regulatory power over the national economy. As a result, less of what I taught students in Con Law I ten years ago is obsolete than I might have guessed.

Full text of decisions in Ashcroft v. Raich.

Much as I'm not wild about the specific outcome as social policy, I think this decision is fully consistent with Chief Justice Marshall's view of the evolving Constitution. But it's flatly inconsistent with the modern Federalist Society view. Academic fireworks will now ensue.

At first blush, the proposal at davidshcess.com [seen via Ascription is an Anathema to any Enthusiasm] sounds so sensible: Tired of originalists like Justice Scalia going on about how the Eighth Amendment only prohibits punishments that were cruel and unusual in 1791, and hence the death penalty (and maybe chopping off ears, and certainly stockading) are constitutional today? Want to do something about them? Just introduce a new constitutional amendment re-enacting the Eighth. No one would dare vote against it (are you for cruel and unusual punishment?) and it would re-set the clock to modern times (are you for cutting off ears?).

But in fact, it's a rotten idea. It surrenders a key point of principle. I am, in the main, relatively sympathetic to at least a weak form of originalism. If words don't have meanings that we can collectively ascribe to them, with some consistency over time, then constitutional government is a bit of a farce. I'd like to avoid that, for all that Senators Frist and Santorum are determined to make it difficult.

But in the originalist constitution I read, there's not only play in the joints, but in some cases an invitation to evolve. It's not everywhere. The requirement that the President be 35 isn't a requirement that s/he have the relative wisdom and maturity of a 35 year old in 1783, or have lived an equivalent fraction of the average life expectancy. It's that the person be 35. On the other hand, some parts of the Constitution do read like invitations to change with the times. ('It is a Constitution we are expounding here' after all.) And the cruel and unusual clause is definitely one of them. So there's no need to re-set the clock on cruelty — it's always ticking. And it would be wrong to provide such luscious ammunition to those who suggest otherwise.