The Reach of our Constitution

The Constitution of the United States is our founding document. It sets principles for our laws and our conduct pertaining to them. But, regardless of our appreciation of its genius, it doesn’t apply universally beyond our borders. According to Supreme Court decisions, there are even limits to its application to our own citizens when they are residing abroad. And when foreigners are concerned, its applicability is very limited. In general they gain its protections only when they step on U.S. soil. The specific legal exception is when a foreigner has an established relationship with our country, such as holding a visa or a green card.

US President Donald Trump signs Executive Orders in the Hall of Heroes at the Department of Defense Friday, Jan. 27, 2017 in Arlington, Va.  (Olivier Douliery/Abaca Press/TNS)  1196704

So, what does this mean for the current dispute over President Trump’s executive order pertaining to immigrants from seven specific international hotspots? I have read arguments by informed scholars on this topic and as usual they don’t fully agree. However, I am always attracted to analyses that seem more objective because they contradict expectations. Harvard’s Alan Dershowitz is a renowned constitutional expert who espouses generally progressive viewpoints. But recently in a television interview, he forthrightly argued that due process rights don’t extend beyond our borders to non-citizens. This was my belief also, but I have no legal pedigree to back it up.

The recent decision by a federal judge staying this executive order cites, among other things, the violation of due process rights of potential immigrants from the specified seven countries. I believe that is a reversible error, but it is possible that other constitutional arguments may be relevant. For example, there is the issue of fair application of our laws and implementation procedures. Is this a proscribed ban on Muslims, as many proclaim? If it is, then it is so incompetently written that it fails almost totally to achieve its objective, so perhaps we should give it a pass. After all, it doesn’t apply to the vast majority of Muslims. If the Trump administration wished to ban Muslims, how could they have overlooked Indonesia, Pakistan, India, Egypt, Bangladesh, Turkey, and Nigeria, just to mention a few? Still, Trump’s statement that an exception should be carved out for Christians is revealing and perhaps damning.

It seems likely that this executive order will be argued before the Supreme Court because there have been conflicting decisions in lower courts. When this happens I suspect that the order will be blocked. However, that will almost certainly not be based on the merits of the case!

The reason for this is aptly encapsulated in a comment by SCOTUS nominee Judge Neil Gorsuch, “A judge who likes every outcome he reaches is very likely a bad judge.” I wholeheartedly agree. I think we have at most only two Supreme Court justices who successful pass this test, Chief Justice Roberts and Justice Kennedy. If you can always – always – predict a judge’s opinion simply by knowing the nature of the case then they are not judges at all, they are advocates. This indictment applies to a significant degree to the remaining six justices, as it certainly did to the recently deceased Antonin Scalia.

Reasonable people might disagree with Gorsuch’s observation because it will mean that occasionally a good judge must rule against his instincts and beliefs solely in support of the written law. Of course, one could always point to bad laws that should not receive such respect. However in general, laws are not bad or written with evil intent, and interposing one person’s beliefs is a slippery slope to oligarchy or worse. We are truly a nation of laws. They are what distinguish us. If you believe that sometimes they should be ignored when they violate your principles, consider what happens when someone who sincerely believes otherwise reaches a position of power. Is that really the precedent you wish to establish?

So, let’s return to Professor Dershowitz. I am sure that his instincts guide him toward believing that due process should apply universally. It is the very essence of fairness. But he is an honest man and he understands the law. So, perhaps reluctantly, he applied it to Trump’s executive order. I suspect he might be a good judge by Gorsuch’s standard. Evidently being a progressive doesn’t always mean that good intentions trump impartial analysis, which pleases me and gives me hope for our future.

The Third Presidential Debate

The big takeaway for the chattering classes seems to be Trump’s coy refusal to accept in advance the results of the coming election. Really this isn’t surprising but for some reason people never seem to take what he says at face value. He has said this before and it is entirely consistent with his general approach to life. Of course surrogates, like his campaign manager and his daughter, immediately came forward to disavow this unprecedented position. However as I write this, I am listening to Trump’s first post-debate rally. He just explained, “Of course I will accept the election results … if I am the winner!” The crowd roared its approval and broke into a familiar chant, “Lock her up! Lock her up!” I don’t know whether to laugh or cry.

500wiHowever, I found something else in the debate to be far more significant. An initial topic was the Supreme Court. Hillary said forthrightly that she viewed the Court’s primary responsibility to be “to stand on the side of the American people, not corporations.” I take this to mean that she wants Justices who see their job as looking out for the welfare of the average person. Truthfully, my jaw dropped. Does she really mean that?

I do understand where she is coming from. Many people believe that this Court, marginally dominated by conservatives, has rendered decisions that go against “the little people”. Citizens United v. Federal Election Commission is a prime example. But to say that the Court must take the opposite tack is equally wrong. That simply is not the purpose or mandate of our highest court. It is not designed to be Big Mommy for us all. Rather it has a quite specific role in adjudicating the consistency of laws with our Constitution and in rendering judgments in certain special areas of the law. Of course it should try to do this fairly and, since the Justices have human frailty, they will not always succeed. But the Court having agendas is a mistake even if we applaud them.

Of course Presidents will nominate candidates for Court vacancies who are philosophically compatible with their own viewpoint. And no one can doubt that Justices bring biasing perspectives to their decisions. However this is a far cry from setting a specific agenda to be followed independent of the cases involved. This is one instance where literal interpretation of our Constitution is most compelling, even if you disagree with this as the proper approach in general. If the writers of this marvelous and enduring document had intended the primary role of the Court to be a bulwark against threats to the public welfare they would indubitably have said so. No one who has examined their other writings and statements could possibly believe that this was their unwritten intent.

It is the duty of Congress to serve this role. If it fails on occasion, having another of the coequal branches of government take up the slack is perhaps attractive if what it does meets with our approval. But we will inevitably regret it if that ever becomes the norm as it will destroy the true essence of our form of government.

Fixing the Electoral College

IMG_0551Our method for electing Presidents is a mess. The Electoral College and the rules pertaining to it arose from a somewhat sordid compromise by a handful of bewigged gentlemen centuries ago. One outcome is that the actual rules for selecting electors are essentially up to the individual states. In fact they can invent whatever rules they like subject only to meeting a few Constitutional standards for fairness. Presidents can and have been elected who don’t command the support of a majority of the voters. Voters in states with small populations have a vastly disproportionate influence on the result. This is just wrong!

So, here’s my idea. A group of states could get together and agree that all of their electors would be allocated to whomever wins the total popular vote within their states. Specifically, these could be CA, NY, FL, TX, PA, IL, NC, OH, MI, GA and NJ. Why them? Well, their total electoral allocation is 270, which happens to be precisely what is required to win the Presidency. In other words, these eleven states can just freeze out the remainder! All campaign spending would move to these states and they would gain power, prestige and money from their combination. In all likelihood, no candidate from another state would have any chance of gaining the nomination, and thus they can be confident of having a native son or daughter as President … forever! And where do you suppose each President would target most favorable attention? Other combinations of states would work too, but this is the minimal set.

Could Congress thwart this plan? No it couldn’t, provided the ruling combine stuck together in the House of Representatives. They have a comfortable majority there, so they could block any adverse actions.

It is essential that the Congressional delegations from these states be on-board and committed to the plan. This is because of the obscure rule that any state’s electors can be challenged when Congress meets to certify the election. Members can object to any state’s vote count. A written objection supported by just one senator and one representative will be followed by the suspension of the joint session. After both Houses separately deliberate on the objection, the joint session resumes. A state’s certificate of vote can be rejected only if both Houses of Congress vote to accept the objection. In that case, the votes from the state in question are simply ignored. The votes of Arkansas and Louisiana were rejected in the Presidential election of 1872. Assuming no more than a couple of dozen recalcitrant representatives, these eleven states have more than enough members of the House of Representatives to block any such challenge.

I think the likely consequence of even the threat of this subterfuge would incite a revolt among the other states leading to a Constitutional amendment abolishing the electoral college and moving to a true popular vote for President. And a good riddance too!

You might wonder how this could come about, given the power that this eleven-state monopoly would wield in Congress. Well, there is a special method for amending the Constitution that has never in fact been tried. All that is required is for two-thirds of the states to call for a National Convention, where any amendments can be offered, debated and passed. That means 34 states are needed, and recall that there would be 39 states that would be chomping at the bit to join the call.

Constitutional Revisionism


Article 6, Section 3 of our Constitution reads as follows:

Section 3. The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

The meaning of this section is clear and has never been legally disputed. In summary …

All government officials, elected or appointed, must swear an oath to support the Constitution of the United States. However, that oath need not be religious in nature, and the government cannot require its officials to pass any test of religious affiliation to take office. The ban on religious tests was included to ensure that the U.S. government would remain secular.

Note that this has nothing whatsoever to do with what qualifications any individual or party feels are appropriate for any office. I can quite properly believe, for example, that no person who isn’t fluent in English should be President. I can say that I wouldn’t support anyone who isn’t a Christian, or anyone who is over 70 years of age, or any other rule that seems sensible to me. None of that violates the Constitution in any way. You may think that I am making a mistake, but you have absolutely no right to deny me my choice or my beliefs.

What Dr. Ben Carson said about not being willing to support a Muslim for President, or his clarification that he meant one who doesn’t renounce Sharia Law, may have been politically inept but it violates no law nor any principle of our Constitution. Calls for him to end his candidacy on this basis are entirely inappropriate. If you disagree with him, vote for someone else. In fact, even bringing up this clause of our Constitution in the context of his remarks, as have many commentators, demonstrates an abysmal understanding of its meaning and intent.

Actually, eight states have clauses in their Constitutions that either require state officeholders to profess particular religious beliefs or protect those who do. They are not enforced because they certainly couldn’t withstand a federal constitutional challenge.