Category Archives: Law: Constitutional Law

They do it, so I don’t have to (besides, they do it better):

• Steve Vladeck, Legislative Supremacy, The Laws of War, and the Geneva Holding
• Jack Balkin, Hamdan as a Democracy-Forcing Decision

Enjoy!

The Carpetbagger reports that Constitutional convention talk refuses to go away:

some of the less-sane members of the GOP base are openly considering a constitutional convention because of the Senate’s failure to pass an amendment banning gay marriage. Unfortunately, talk of such a ridiculous idea seems to be increasing, not decreasing.

A second Constitutional Convention is actually far more likely than it should be: Over the decades, arguably as many as 32 states have passed resolutions calling for a Constitutional Convention, just two shy of the 34 needed. I say “arguably” because some of these were a long time ago, and Dillon v. Gloss (1921) (!) tells us that changes in the Constitution should be the result of a “contemporaneous consensus.” Nevertheless, there is a contrary body of opinion, exemplified by the ratification of the 27th Amendment that these calls do not have a ‘use-by’ date — they remain in force at least until rescinded by the legislatures which issued them. (Some people even argue that since the Constitution doesn’t mention taking back a call for a convention, even a rescinded call for a Convention remains in effect!)

On the other hand, many of the petitions states have voted in the past are plausibly dismissed as technically deficient, as they purport to request that a convention be called for a particular purpose (e.g. to consider a given amendment), while the Constitution quite clearly contemplates only an open-ended procedure. It’s not at all clear what weight to give those resolutions.

Working on a worst-case hypothesis, as best I can tell the 32 states that have called for a new Constitutional Convention in some form or other are:

Alaska, Arizona, Arkansas, Delaware, Colorado, Georgia, Idaho, Iowa, Kansas, Maryland, Mississippi, Missouri, Nebraska , New Hampshire, New Mexico , North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania , South Carolina, South Dakota, Tennessee, Texas, Utah , Wyoming

Many of these states passed resolutions that purported to limit the requests to a balanced budget amendment, and the large majority did so between 1975 and 1979 — almost a generation ago.

Alabama, Florida and Louisiana each subsequently rescinded their calls. As if in counterbalance, South Carolina and Tennessee passed their resolutions twice and Louisiana did it three times.

One house of the bicameral Nevada legislature also purported to “purge” its resolution, but as the call had been voted by both houses, it’s hard to see this as legally effective.

So the bottom line is…confusing. If the calls for a limited convention count as calls for an unlimited convention, and the rescissions don’t work, then we could be as little as two states away. If the three rescissions are legally effective — and I think they should be — we could be as little as five states away. On the other hand if only knowing and general calls for a convention work (which, on balance, I think should be the right answer) then we are very far away, although I don’t know what the exact number is; similarly, if the courts were to craft some sort of time limit for the validity of a call for a Convention, then we could be almost at square one, depending on what the line was.

Even if a Convention were to meet and to report out a new document, or changes to the old one, any revisions would have to be ratified by the states. I am sure that I don’t need to spell out how dramatic the potential changes could be — for ill, or even for good.

So, you heard it here first: If the call for a Second Constitutional convention happens, and if it survives its trip through the courts, then I’m going to be running to be a delegate. (Assuming we even get to elect our delegates, of course.)

Orrin Kerr speculates plausibly that if Rep. McKinney is charged with an offense relating to her much-disputed altercation with the Capitol Police, it will be a simple misdemeanor, but that it won’t happen

Will the U.S. Attorney’s Office charge McKinney with a federal crime? If she is charged, I gather the offense would be a misdemeanor simple assault under 18 U.S.C. 111(a) or 18 U.S.C. 113(a)(5). I don’t know who makes these sorts of calls within the U.S. Attorney’s Office, or what kinds of cases the U.S. Attorney’s Office in D.C. tends to pursue. As a result, I can only offer amateurish speculation. My amateurish speculation, for what it’s worth, is that the U.S. Attorney’s Office will decline prosecution. Three major reasons: First, McKinney was apparently on official business as a member of Congress at the time, and was well within her rights to enter the building without passing through the metal detectors. Second, the officer apparently wasn’t hurt. Third, the story is already a media circus, and will only become much more of a circus if McKinney is charged.

All that makes sense, but I see it differently: I think it’s a felony or nothing. Why? Art. I, sec. 6 of the Constitution privileges Representatives’ and Senators’ access to the chamber:

They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

For reasons sounding in British history, it was thought important that the executive branch lack the power to block members’ access to the floor. Thus, unless the US Attorney is willing to charge McKinney with felony assault — not an obvious charge under the circumstances — I predict she will win any trial on Constitutional grounds.

It’s true that grabbing hold of McKinney was not an “arrest” in the most common modern sense of “you are going to jail” but it was an “arrest” in the sense of “halting your progress”. (For what little it’s worth, the first OED entry for the noun form of arrest is “The act of standing still, halting, or stopping; stoppage, stop, halt, delay.”) And it’s clear to me that the goal of this Constitutional provision is unimpeded access for our lawmakers — allowing the police to block entry to the Capitol without actually dragging Congresspersons off to the hoosegow would gut this important guarantee that the the executive may not prevent the legislature from meeting.

PS. Might you call it “breach of the peace”? I don’t think so – it’s undisputed that she didn’t start it, and if the cops can stop a Representative who in protesting becomes a “breach of the peace”….

I haven’t the energy to go into any detail this evening, but I thought I would just mention that at least based on the news reports, the latest argument to emerge from Scooter Libby’s lawyers, Libby’s Lawyers Say Prosecutor Acted Unconstitutionally, smacks of desperation.

I’d have to read the actual brief to be sure, but the general legal area in which arguments of this sort fall is territory I teach and write in. The Supreme Court held in 1988, in Morrison v. Olson, that a special prosecutor with far more independence than Fitzgerald — one appointed under the old special prosecutor law which has since lapsed — was not an unconstitutional actor. That 7-1 decision has been criticized in hindsight, and only two Justices who participated remain on the Court, including Scalia who wrote a fiery dissent, which may be what prompted this challenge. The trouble is that — unless of course there’s a surprise in the brief — in order for this argument to work you’d not only have to get the Supreme Court to overturn the Morrison decision, which is conceivable if unlikely, but then also get that revised logic to apply to a set of facts that amount to a much, much weaker case for a separation of powers violation — which I think is just not gonna happen.

Update: Fuller Washington Post story.

Constitutional law and federal jurisdiction mavens (but not too many others?) will definitely want to read Steve Vladeck’s latest post on the Rooker-Feldman doctrine, inspired by a special concurrence in the 11th Circuit’s consideration of the Schiavo case.

Ordinarily, I’d worry about junior faculty pouring out so much smarts into ‘mere’ blog posts, but Steve has so much to spare….