Ideas, Opinions, Genealogy, and Book Reviews
It seems the Republican party will take a chance on former President Donald Trump. The insurrectionist and former President is way ahead in the primary and is considered the likely nominee. So far state judges have ruled against attempts to exclude him from the primary ballot but at least some of those decisions are being appealed
Continue reading “Republicans take a chance on Trump”
I have trouble with Originalists. I had trouble understanding Justice Neil Gorsuch and Justice Antonin Scalia . Now I have trouble understanding Judge Amy Coney Barrett. I am certainly less than thrilled by the Republican rush to confirm Judge Barrett to the Supreme Court.
For more on my views on Justice Neil Gorsuch see Are women people ? – legally speaking.
Continue reading “The trouble with originalists such as Judge Amy Coney Barrett”
Today the Supreme Court ruled by a 5-to-4 vote that the Constitution guarantees a right to same-sex marriage. In his dissent Justice Roberts suggested that there was nothing relevant in the Constitution. How about the 14th Amendment?
Amendment XIV
Section 1.All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. 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.
What part of “any person” does Justice Roberts not understand? I know Justice Scalia has trouble with concepts such as “all persons” or “any person” but I thought Justice Roberts was better.
It seems to be a repeat of recent events. Congress creates a crisis when there is no need.
Of course the manufactured crisis in the news now is the budget for next year, but that is soon to be followed by a more serious crisis when Congress needs to increase the debt ceiling so we can pay our national bills including interest on the debt and current expenses in excess of revenues.
I am of the opinion that an agreement between the President and Congress the best course but that the President can act by himself and ignore the debt ceiling but that is opinion.
We had a similar crisis just a few years ago. I think the President gave into Congress too easily then.
But are good arguments on both sides. And it could be that neither side really want to push their arguments too hard as they might lose the court case and be much worse off than having this ambiguous situation. So here are the Arguments:
Article 2 Section 3 of the Constitution says of the President:
… “he shall take Care that the Laws be faithfully executed” …
So if Congress passes a budget that requires borrowing by spending more than revenues, the President has a duty to borrow so he may execute the laws. It would seem unfair and perhaps unconstitutional to limit his abilities.
The President has an obligation to execute the laws. It is impossible to execute all laws since the debt ceiling law denies him the money to execute many laws, and so he has no choice but to ignore the debt ceiling law unless Congress increases the debt ceiling. By failing to increase the debt ceiling in a timely manner, Congress is blocking his constitutional obligation.
So it seems to me there are 2 good arguments in favor of this. First, the President is in a situation where he cannot execute all the laws so he must pick either this one debt ceiling law or all the others. The second is that the debt limit law is unconstitutional since it prevents the President from carrying out duties specified in the Constitution.
On the other hand, Article 1 Section 8 of the same Constitution gives Congress the power “to pay the Debts” and “To borrow Money on the credit of the United States” so maybe there is a Constitutional case for the debt ceiling. But then nowhere does it say that Congress can refuse to pay debts or limit the ability of the President to carry out the laws that they passed.
But then we have Amendment 14, Section 4:
The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. …
Here is a part of the Constitution that would seem to suggest that this should not be an issue.
More on the debt ceiling fiasco –
Bill Clinton has an easy answer for the current debt stalemate: If push comes to shove, President Obama should just raise the ceiling on his own and force Republicans to sue to stop him.
“I think the Constitution is clear and I think this idea that the Congress gets to vote twice on whether they pay for [expenditures] it has appropriated is crazy”
I’ve quoted Slate in the blockquote and the quote within the blockquote is President Clinton.
I agree it does seem crazy for Congress to appropriate money we don’t have and then have to vote again to approve the borrowing. If they didn’t want to spend it, why approve the budget in the first vote?
A compromise is probably the best and most certain solution. But will compromise come in time?
The President also has Article 2, Section 3 of the constitution on his side. Of course, the abilty of the President to ignore the debt ceiling law could be challenged and we can never be sure how the courts will decide but the suggestion that this is a likely outcome could increase the seriousness of Republican negotiating. (see Can the President ignore the debt ceiling?).
The Republican position now seems to be that your side is not giving enough and our side doesn’t have to give anything. But it would be good to remind Speaker Boehner and Majority Leader Cantor that they do not hold all the cards. If we are going to negotiate this, let both sides give a little.
Yes, in my last post I did indicate that the President has authority to exceed the Congressionally authorized debt ceiling by virute of his (or her) duty to “take Care that the Laws be faithfully executed.” (Article 2, Section 3). I think it would be a reasonable intepretation that although Congress has the power to appropriate money they cannot limit the executive’s ability to pay bills or debt resulting from previous Congressional actions. This seems to be reinforced by the 14th amendment. And if laws conflict, the President has discretion in deciding which laws to carry out.
But that is just my opinion and who knows how the Supreme Court would come down on this. Sort of like the War Powers Act in that both sides have a good argument but both also have much to lose if the courts decide that the other side has a better argument.
So we not only have a separation of powers but ambiguity and somehow it all works. That seems to be the genius of the Constitution. There is quite a bit of ambiguity in the Constituion but lawmakers add more as we go.
The debt ceiling is a law that that limits the amount the US government can borrow. Yes, it is a law. We have a budget , it is a law (or a series of laws). Medicare and Social Security are also laws. We have a Constitution that says the says that the President “shall take Care that the Laws be faithfully executed.” (Article 2, Section 3).
So the President is there to carry out the laws but there are many laws. And there is one law (the debt ceiling) that would block his ability to carry out the other laws. So what is a President to do? Ignore the debt ceiling law (which itself may be unconstitional) so that the other laws passed by congress are executed and fulfill his Constitutional duty or obey the debt ceiling law and fail in that duty.
It is a difficult situation but would be made much easier if there was an agreement to raise the debt ceiling. It is certainly a dilemma if there is no debt ceiling increase since it is not possible to obey all laws but if it were my choice I’d go with most laws and the Constitition.
Here are 2 articles that discuss these issues in more depth
http://www.newyorker.com/online/blogs/hendrikhertzberg/2011/07/the-debt-limit-faithful-execution-1.html#entry-more
http://www.thefiscaltimes.com/Columns/2011/07/08/Obama-May-Have-to-Break-the-Law-if-Debt-Talks-Collapse.aspx
There was a TV show that asked “Are you smarter than a 5th Grader?” I thought of posing a similar question “Are you smarter than at least one U.S. Supreme Court justice? ” and that is what I did in my original post. And it seems in retrospect to be an attempt at cleverness rather than being helpful. It seems disrespectful to Justice Scalia, but I mean no disrespect. I just disagree strongly and a shrill tone does nothing to further the debate.
Justice Scalia is known for his intellect so rather than question it, I will just say I don’t understand his position.
Justice Scalia apparently doesn’t think the 14th Amendment applies to women. In an interview with California Lawyer he says:
In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we’ve gone off in error by applying the 14th Amendment to both?
Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.
Well, looking at the text of the 14th Amendment, I think it is obvious that this does apply to women. Here is the text of the amendment :
14th Amendment
Amendment XIV
Section 1.All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. 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.
Section 2.
Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.
Section 3.
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Section 4.
The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5.
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Go back and look at Section 1. Never mind, it it so important that I’ll repeat if here.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. 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.
It clearly says all persons (born or naturalized and subject to jurisdiction) are citizens. No other qualifiers. I suppose one could argue that the legislators of 1868 did not consider women to be people. Seems a bit of a stretch to me but someone could argue that, except that in section 2 they specify that apportionment should be proportional to male citizens. Thus they clearly believed there were non-male citizens and it is not hard to guess who they might be. If section 1 was meant to apply to only males it seems they would have said that rather than “all persons”.
It is also seems to me that the last phrase of this section (“nor deny to any person within its jurisdiction the equal protection of the laws”) clearly indicates the citizenship is not even the critical test. And while the rest of the section looks to me like it applies only to actions of the state or federal government, the last phase has to do with equal protection of the laws without any government qualifier. Since this phrase refers to “any person” with specifying which groups are to be protected it seems that all individuals are protected if any are.
Further indication that legislators believed women to be citizens is the 19th Amendment.
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex.
Congress shall have power to enforce this article by appropriate legislation.
Look at the first sentence. If a right of citizens cannot be taken away on account of sex, it suggests to me that Congress believed that citizens were not all of the same sex.
So the text of the 14th Amendment clearly indicated that equal protection applies to all persons. The text further indicated all persons are citizens (not just males). Congress in 1920 (19th Amendment) did not think the Congress of 1868 meant to exclude women from citizenship (just from voting). If they believed the 14th amendment did not apply to women, it seems logical that they would have granted citizenship before the right to vote.
So to those who agree with Justice Scalia, let us have an exchange of ideas here. I know your reasoning on this is different from mine so please expand on your view in my comments section.