Constitutional Opinions

Constitutional Opinions

SCOTUS Declines to Weigh in on Gay Marriage Bans

By 10.6.14

On Monday, the Supreme Court, somewhat surprisingly, declined to grant cert to any of the cases in which appeals courts had overturned (or upheld a lower court’s overturning of) state bans on gay marriage. The specific cases the Court could have agreed to hear included gay marriage bans in Indiana, Oklahoma, Utah, Virginia, and Wisconsin that were struck down.

However, the impact of the Supreme Court’s declining to weigh in will be felt not just in those states, but in every state covered by the appeals court circuits whose precedents will now firmly stand. For example, the 10th Circuit, which overturned the Oklahoma and Utah bans on same-sex marriage, also has authority over (and is based in) Colorado, meaning that Colorado’s ban on same-sex marriage—about which a lawsuit has already been filed—is likely to be overturned in short order.

One analysis suggests that today’s refusal to grant cert will bring same-sex marriage to eleven more states in addition to the nineteen (plus Washington, D.C.) in which it is already legal.

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Put Not Your Trust in Judges

By 8.18.14

I’m old enough to remember the “Impeach Earl Warren” bumper stickers. They were produced by the hard-right John Birch Society, and most people thought them kooky. Still, they reflected the way many conservatives felt about the then-Chief Justice of the Supreme Court 50 years ago, and the federal bench generally. The courts had expanded the rights of alleged criminals, struck down voting barriers and mandated school busing, and all this went down hard with conservatives.

Times have certainly changed. Now it’s conservatives who look to the courts to fix our political problems. Last month the District of Columbia Circuit Court of Appeals struck down a crucial portion of the Affordable Care Act (“Obamacare”), and if that decision sticks it’s going to increase drastically the premiums people have to pay. That in turn would lead to tremendous pressure to repeal the law, and that’s just what conservatives want. The decision itself was a well-reasoned analysis of a poorly drafted law, but the case was brought by conservative activists who sought to torpedo a law they opposed.

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Obamacare Was Designed to Punish Uncooperative States

By 7.29.14

It all comes down to four crucial words. In 2009, as the Affordable Care Act was being rammed through the Senate, those words made their way into the statutory behemoth. The law says that the federal government has the power to dole out premium-lowering subsidies through those insurance exchanges “established by the State.” Now that thirty-six states have declined to set up exchanges, the implication is that those who purchase insurance from the federal HealthCare.gov website are, under the text of the law, ineligible for the tax credits. Their premiums would be much higher.

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Democrats Are Trying to Rewrite the First Amendment

By 6.25.14

Our First Amendment is under attack. Forty-four Senate Democrats support a constitutional amendment that would give Congress unbounded power to regulate or prohibit just about any speech concerning an election or a candidate for office. This would-be 28th Amendment is poorly drafted, extremely dangerous, and has the potential to uproot our most cherished freedoms. Its supporters should be embarrassed and the amendment should be stopped immediately.

Trumping the cherished ten words, “Congress shall make no law…abridging the freedom of speech,” the amendment would make the Constitution read, “Congress shall have power to regulate the raising and spending of money and in-kind equivalents with respect to Federal elections.” This unprecedented langauge is radically different from the amendments in the Bill or Rights: instead of limiting the power of the federal government, the proposed amendment would expand it. We’ve gone from “Congress shall make no law” in 1791 to “Congress can make any law” in 2014.

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Tub to the Whale?

By From the July/August 2014 issue

A new assault is underway on the palladium of our liberty, as the Second Amendment is sometimes known. It was underway even before a mentally ill Californian named Elliot Rodger committed a massacre in Santa Barbara. The Supreme Court, after ruling famously for Dick Heller’s right to keep a gun in his home, is caught like a deer in the headlights, as Josh Blackman makes clear elsewhere in this magazine, having turned down a string of cases testing the contours of the Second.

Now comes the president of the Brennan Center for Justice at New York University, Michael Waldman, with a book called The Second Amendment: A Biography. I first read about Waldman’s tome in a column by Joseph Nocera, the New York Timesman who has made gun control one of his signature causes. His purpose is to limit the right to carry firearms to those Americans serving in a militia. He’s convinced this would reduce the number of those who perish in massacres. 

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Dis-United Kingdom?

By From the June 2014 issue

What an opportunity for America is shaping up in the constitutional crisis in Britain, starting with the referendum that is going to be held in September over independence for Scotland. It may not put entirely paid the Acts of Union that, in 1707, placed two kingdoms, England and Scotland, under a single sovereign. But Queen Elizabeth has signed off on Scotland going to its people on the independence question, and recent estimates reckon the nationalists are between three and seven points away from victory. “Week by week,” the Financial Times has reported, “Scotland seems to slip away.”

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None to Make Them Afraid?

By From the May 2014 issue

The justices of the Supreme Court have returned to chambers to make their decision in the latest Obamacare case, and I wonder whether they are going to consult George Washington’s letter to the Jews. He sent it in 1790, at the beginning of his presidency, in reply to the welcome addressed to him by the members of the Touro Synagogue when he had visited Rhode Island.

It’s too bad no one mentioned the letter when the justices sat in March to hear the cases brought against Kathleen Sebelius for imposing the birth control mandate under Obamacare. The cases were brought by two families of religious Christians, the Greens (who own Hobby Lobby) and the Hahns (who own Conestoga Wood Specialties).

It strikes me that the Greens and the Hahns are just the sort of pious persons Washington was welcoming to the new republic when he sent his letter to the congregation of the Touro Synagogue. They are not Jews, of course, but they are determined, as were the congregants of Touro, to live their lives in accordance with religious laws.

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Holy Harpocrates!

By From the April 2014 issue

A story is told about Robert L. Bartley, late editor of the Wall Street Journal, and his penchant for long silences. He is supposed to have once taken a job applicant to lunch at which, though the two shared a meal, neither spoke a syllable. That is no doubt apocryphal; the job applicant probably said something. George Washington had a taciturn streak, as did President Coolidge, known as “Silent Cal.” Bartley made them seem like magpies. Not everyone likes being left alone with his thoughts. But rarely does anyone get as upset about it as Jeffrey Toobin of the New Yorker appears to be in respect of Clarence Thomas.

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John Roberts Continues His Comeback

By 4.2.14

By a 5-4 vote along the usual “conservative versus liberal” fault line, the Supreme Court has struck down aggregate limits on political contributions. Currently, the federal government restricts the amount of money a person may contribute to a political candidate, party, or PAC — these are called “base limits.” Base limits were not the subject of this case, McCutcheon et al vs FEC; instead the issue was the total amount a person may contribute, complying with base limits, across multiple candidates, parties, and committees. The effect of aggregate limits was to limit the number of candidates, parties, or PACs a donor could contribute to (without having to reduce contribution amounts to comply with the aggregate limit).

As the Court’s opinion, written by Chief Justice John (“Obamacare is really a tax”) Roberts,  lays out,

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Ghost of the Nauvoo

By From the March 2014 issue

What might be the chances that the fracas over gay marriage in Utah could result in war? Utah enacted its ban on same-sex marriage in 2004 by amending its constitution. In December, a federal district court in Salt Lake ruled that the ban violates the equal protection and due process clauses of the United States Constitution. As fast as one can say “Do you take this person to be your lawfully wedded spouse?” more than 2,000 Utahans plighted their troth to a person of the same sex.

Then, on January 6, the Supreme Court stayed that ruling while the matter goes to the judges who ride the 10th United States Circuit. Utah Governor Gary Herbert promptly trans-supposed that the state would refrain from recognizing the same-sex marriages already entered into. The ink wasn’t dry on the Deseret News when the U.S. attorney general, Eric Holder, announced that the Obama administration would recognize the very same-sex marriages that Utah won’t.

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