Amendments 11 and 12 - Clarifying A Few Things

After a few posts not having to do directly with the Constitution, let's get back to the amendments.  We left off at the end of the Bill of Rights and now we will take a look at the first two amendments after the Bill of Rights.

Amendment 11, ratified in 1795, says this:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Which means what, exactly?  It means that a state cannot be sued in federal court except under certain circumstances (defined later).  This amendment was a reaction to the Chisholm v Georgia case after the Revolutionary war, in which a South Carolina man sued the State of Georgia for payments due for supplies delivered to the state during the war.  Georgia refused to appear, claiming sovereign immunity, and the court ruled against Georgia.  The ruling was so controversial that the 11th Amendment was adopted in response and was ratified in less than two years after the decision.  Essentially, it removed most federal jurisdiction over cases in which a state is sued by someone outside the state.  There's a lot of legal detail involved, but basically, it gave power back to the state court systems that Congress thought the Supreme Court had inappropriately given itself in the Chisholm case.

This is one of those amendments, like the 3rd, that makes a great party trivia question...

Amendment 12, ratified in 1804 has a much longer text, one of the wordiest of all amendments.  It reads:

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate.

The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.

The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.

The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

This amendment fixed a flaw in the original method of electing the president, as set forth in Article II, in which each elector could cast two votes for president. For the first four elections, the process was this: the electors cast their votes and whoever got the most votes, assuming it was a majority of the total, was president. If no one got a majority, the top five vote-getters would be put to a vote in the House and the one who got a majority there would be president. Choosing the vice-president was easier - whoever came in second, even if he did not get a majority, was vice president.

By the third election for president (1796), the first major flaw was apparent.  Federalist John Adams got a majority of the electors' first votes and was elected president, but his rival, Democratic-Republican Thomas Jefferson, finished with the most second votes, and was therefore vice president.  It became clear that having rivals in the offices would not be conducive to good working relationships.

Four years later, the election of 1800, which we discussed previously here, exposed yet another flaw by showing that if electors split their votes evenly between members of the same party, two candidates from the same party would get the same number of votes, throwing the election into the House.  A plan for one Democratic-Republican elector to withhold his second vote for Aaron Burr was bungled, giving Burr and Jefferson the same number of votes.  The resulting House vote was a marathon affair, taking a total of 36 ballots to finally elect Jefferson president.

An interesting feature of the amendment is that if the election is sent to the House, each state has a vote, not each representative.  Since adoption of the amendment, a presidential election has gone to the House only once, in 1824, when John Quincy Adams defeated Andrew Jackson 13-7 (with William Crawford earning 4 votes), even though Jackson had earned the most (but not a majority) in the initial electoral vote 99-84 versus Adams (with two others totaling 78 votes).

The 12th Amendment, in effect, directed electors to make discrete votes for president and vice-president.

Next up - Amendments 13-15, the "Civil War Amendments" (and maybe a guest blogger - stay tuned!).

Magna Carta, You're Looking Good For 800!

Today, June 15, 2015, marks the 800th birthday of the Magna Carta, one of the most influential single documents - perhaps the most - in the history of the world.  It laid the foundation for later great charters, like the U.S. Constitution and Declaration of Independence, and the general concept that everyone is subject to the law, even the king.

The Magna Carta is also one of those things most of us read about in school and promptly forgot after the test, am I right?  I'd thought about writing a lengthy explanation of the history of the Magna Carta to show everyone reading how terribly important it is to our modern world.  Then, during my research, I came across a couple things that did the job better than I could.  Hey, it's a blog, after all, not a doctoral thesis.  Two of the most learned and entertaining people I know (or know of) offered up their takes on the Magna Carta.  First up is Terry Jones, most famously of the Monty Python troupe.  Mr. Jones, however, is also quite the history aficionado, and has appeared on TV shows such as "The Complete and Utter History of Britain" and is also an Emmy-nominated ("Outstanding Writing for Nonfiction Programming") writer of the series "Terry Jones' Medieval Lives".  Mr. Jones made this short, entertaining and informative video on the Magna Carta:

https://www.youtube.com/watch?v=7xo4tUMdAMw

The other gentleman I'd like to quote is my lifelong friend, Mike Pedrotty.  Mike is an award-winning teacher at Airline High School in Bossier City, Louisiana, and was named National History Bowl Coach of the Year.  The man knows what he's talking about...  Anyway, I posted a story about Magna Carta on Facebook a while back and Mike responded with this gem:

I do teach the Magna Carta to my AP Gov students, and I do think it's important, but the story is more complex than I think is commonly understood. 

Warning: Long post ahead. Proceed at your own risk.

I would disagree with this article in characterizing John as a tyrant who brutally taxed poor Englishmen to finance his foreign wars. He was an uncharismatic and very unpopular king who was an able bureaucrat, and a vigorous and imaginative tax collector. His barons hated him because he demanded the full measure of what they owed him (and then some) in terms of both manpower and treasure. 

But the "foreign wars" were anything but foreign. John needed those resources to fight Philip Augustus of France in defense of England's possessions in France (England owned more of France than France did, until Philip got done taking most of it from John). The lands he was trying to defend were often the French fiefs of the very barons who opposed him in England. They had just got used to Henry II and Richard I defending them with fewer taxes. They were able to do so because they didn't have to fight a Philip Augustus, who was himself a great bureaucrat and taxer.

More to the point, the Magna Carta is only a foundational document for our Constitution in that it is an early example of limited government, an early example of subjects telling a king that his power was not limitless. However, in this case, it only protected the rights of the great English barons, who were utterly unconcerned with the rights of commoners, burgers, serfs, and the like. It also bound the king's power not by written law, but by tradition. Finally, it was torn up by John as soon as he escaped the field at Runnymeed and was ignored by later monarchs in England and everywhere else. The real check on English royal power comes from Parliament, whose power grows very gradually from the time of Edward I onward, and then really comes to rival that of the king only in the 17th century through its struggle against the Stuarts (who tried and failed to rule as absolute monarchs along the lines of Louis XIV). In this fight, English jurists did harken back to the Magna Carta to support their conception of limited monarchy, and it's really here that the document becomes part of the corpus that would lead to the Constitution. But some random English serf or townsman in 1215 would not have known that the powers of the king had suddenly been limited.

That's my take, anyway.

Thanks, Mike and Terry, for a great lesson on a great piece of history!

Your Host Hits the Airwaves and Hamilton Hits Broadway

Rockin' the YWC t-shirt and
pocket Constitution from the
 National Constitution Center

Time for some fun.  We've been talking a lot lately about very serious topics that can cause tensions and emotions to run high, so let's kick back and enjoy a little good, clean entertainment.

I've mentioned before, in a blog on educational resources, a radio show called "Your Weekly Constitutional", which I listen to on podcast because it isn't aired in my area (and I can never be sure to be near a radio when it would be on, anyway).  A few months ago, I emailed the host, asking to be considered for a chance to be their Constitutional Quiz contestant and I was selected.  We recorded the quiz a while back and it was just aired this week.  You can hear how it went here:

http://www.montpelier.org/center/radio  (Episode  "Thomas Jefferson's Vision of Religious Freedom")

or here:

http://ywc.podomatic.com/entry/2015-05-29T07_38_29-07_00

or go to iTunes and search for "Your Weekly Constitutional" and select the episode entitled "Thomas Jefferson's Vision of Religious Freedom".  Of course, you should listen to the entire episode, but if you want to go straight to the quiz, skip forward to the 14 minute mark and see if you can solve the riddle along with me!

One of the earliest blogs I wrote was on Alexander Hamilton and at the end, I linked to a video you can see here.  It's a performance by playwright Lin-Manuel Miranda at the White House, doing a hip-hop song about Hamilton.

https://youtu.be/WNFf7nMIGnE

Since then, Miranda has developed it into a full-up musical and it's been the hottest off-Broadway ticket this spring and moves onto Broadway soon.  You can see some highlights here:

https://youtu.be/0wboCdgzLHg

The website for the show is:  http://www.hamiltonbroadway.com/

How appropriate the one of the most New York-y founders is on Broadway!

The Chicken or the Egg? Or, Whose Rights Come First?

After another unforgivably long absence, we're back with more discussion of the Constitution and its relevance to current events.

One of the most-talked about topics in recent weeks is the State of Indiana's Religious Freedom Restoration Act and the reaction to it from across the country.  Friends, this is a minefield and we need to proceed very carefully and precisely, lest we let the emotional issues (the mines) blow up in our faces, as we try to focus on the Constitutional issues at hand.  It's a tough path to navigate, as emotions inevitably bubble up in these kinds of topics.

Full disclosure:  I am Catholic and as we proceed through this blog, I'll be referencing Catholic theology where theology needs to be discussed or illustrated.  Not because I think Catholic theology is the "most correct" (though, of course, I do think so, otherwise, why would I be Catholic, right?) but merely because that's the theology I'm most familiar with, having taught Catholic religious education for over a decade.  Further disclosure: I have friends and family who are gay, some of whom are married, in accordance with the laws of their states, and I love them all and are quite happy for them.

OK, enough with the disclaimers.  What are we talking about here?  Earlier this year, the Indiana legislature passed, and the governor signed, a Religious Freedom Restoration Act which was modeled after the federal act of nearly two decades ago.  The federal act - largely written in response to the Supreme Court's Employment Division vs Smith case - passed both houses of Congress almost unanimously (no "nay" votes in the House and 97-3 in the Senate) and was signed by President Bill Clinton.  So why the big deal about Indiana's act, which on the surface seems merely redundant?

The text of the two acts are nearly identical, but "nearly" is the key word.  There are a couple very small, but very important distinctions.  But before we get into that, let's review the intent of RFRA-type acts.  In a nutshell, these types of laws (both federal and in roughly 20 states) codify the principle that the government may not "substantially burden" a person's religious beliefs or practices unless there is a "compelling government interest" in doing so, and in which case, the remedy must be by the least restrictive means possible in order to achieve that compelling interest.  To make an extreme example, if your religion includes human sacrifice, well, naturally, the government may feel compelled to step in and put a stop to the practice, but can only restrict your religious practices to the point of stopping the sacrifices, not shutting down your whole "church".

Now to the differences.  The first difference is that the Indiana statute explicitly defines that "persons" who are protected under the statute includes corporations that are closely held by individuals or small groups (i.e., families).  While the federal RFRA does not state this specifically, it was held by the Supreme Court to be interpreted that way in the Hobby Lobby case, which we discussed here.

The second small, but important difference is that the Indiana statute applies not only to disputes that arise between an individual and the government, which is a clear First Amendment issue, but also applies to disputes between individual citizens, which is not a First Amendment issue.

The first difference is not the most controversial one, as it has been fairly well settled (at least for now) by the Supreme Court, so let's focus on the second one, which seems to be drawing the most controversy.  In the most often-cited argument by opponents of the law, they say that this statute could allow a photographer or a florist, for example, to use their strongly-held religious beliefs to legally refuse to participate in a same-sex wedding, in other words, to discriminate against the couple being married.  Certainly, none of us here reading this are in any way in favor of discrimination, but here's where it gets tricky from a Constitutional standpoint.  Buckle your seat belts...

The relevant part of the First Amendment reads: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof".  The second half of that section is the one under debate.  While again, we should not, and must not, condone wanton discrimination, if the government can compel someone to participate in an activity that runs counter to a deeply-held religious belief, does that not violate the "free exercise thereof" part?  Each of us does not hold the same religious beliefs, if any at all, and the Supreme Court has repeatedly - and wisely, I think - held that they, the Court, do not possess the competence to decide which religious beliefs are "valid" and which are not.  There are those I've encountered who think that the Catholic Church is the tool of Satan (yes, really - I've run into those who have said that verbatim), but I do not deny them the right to think that and to publish that belief, even if I find it offensive and hurtful.  That's a private individual's opinion, so, like, whatever, right?

Let's take, as example, the teaching of the Catholic Church on marriage and on homosexuality as an illustration of the difficulty that even devout religious people may have with this issue.  Paragraph 1625 of the Catechism of the Catholic Church (that's the official teaching document of the Church) states: "The parties to a marriage covenant are a baptized man and woman, free to contract marriage, who freely express their consent."  To the devout Catholic, this is clear and unambiguous.  Any other arrangement would be considered disordered (that is, not in order with the teaching of the Church).  The Church also teaches (in Paragraph 2357) that homosexual acts are "intrinsically disordered", that is, not in order with nature, that is, not open to procreation, which the Church teaches should not be separated from the unitive aspect of sex, thus the teaching against sex outside of marriage.  The Church calls all homosexual people (as with all unmarried people) therefore, to a life of chastity.  Many people - perhaps most, even - in American society might disagree with some or all of the above, but it doesn't change the fact that the above is without question a strongly-held position of religious belief for some, and to act in a way that violates these precepts does indeed place a substantial burden on their religious beliefs.  

But let me muddy the water a little bit (more) for us long-suffering Catholics (yeah, I know, poor us, right?) to further illustrate how difficult this issue is.  The Catechism also says this (Paragraph 2358, in part):  "The number of men and women who have deep-seated homosexual tendencies is not negligible. This inclination...constitutes for most of them a trial. They must be accepted with respect, compassion, and sensitivity. Every sign of unjust discrimination in their regard should be avoided...."  My gosh - what's a poor Catholic to do?  So, you can see the problem that even a devout person of faith may encounter in trying to satisfy both one's religious faith and one's faith to the Constitution and the law and even sense of fair play.

Back to Indiana.  Again, the difference in the Indiana law versus the federal law is that it protects an individual from action by another individual, not just from government action.  If a suit is brought by, let's say, a lesbian couple who wanted to contract a particular baker to make a wedding cake for them, and the baker refused on religious grounds, the law protects the baker.  The state has no part in the lawsuit (other than, of course, providing the courtroom and judge, but is not a party to the suit).  Opponents of the law will say this codifies discrimination, while supporters say it protects religious freedom - yes, even religious beliefs that may not be popular in contemporary society.  Which brings me back to the title of this piece: The Chicken or the Egg?  Or, Whose Rights Come First?  Or the better question might be this:  Whose rights are more important?  Can we even decide that?

We, in this country, have a number of great traditions.  Freedom of religion is one.  We have people of all faiths (or no faith at all) living side-by-side, living and letting live (with the rare, extreme instances of deadly cults, which may trigger the whole "compelling government interest" thing).  Look at most cities and towns around the country - there are churches and temples and other houses of worship of all sorts of denominations existing within the same city limits.  We may find the beliefs of that "other" church silly or even offensive, but we, as the bumper sticker says, "Coexist".

Another great tradition we have, speaking of coexisting, is acceptance of others.  You know, "different people."  While we have indeed had shameful periods of less-than-charitable attitudes towards people of different backgrounds and behaviors ("Irish need not apply") and even state-sponsored discrimination (slavery, Jim Crow, Black Codes), we steadily evolve away from those behaviors over time.  We tolerate (though perhaps through gritted teeth) even those whose beliefs and behaviors seem abhorrent and backward to us and we afford them protections under the Constitution (KKK, American Nazi Party, Westboro Baptist Church).

This issue is by no means a black-and-white one (sorry for the bad Civil Rights pun), but one that really gets to the heart of the Constitution, the law, individual freedoms and rights and just plain polite behavior.  I have a feeling we're nowhere near the safe edge of the minefield yet, but I hope here, in this blog, at least, we've not stepped on any.

Discuss...

An Entertaining Diversion

Discussing the Constitution can be serious business, but once in a while, I run across something that just tickles me.  The Onion has some of the best comedy writers in the business, and I love their material.  As you all know, I'm a passionate defender of the Constitution.  Hopefully, a better one than this guy:

http://www.theonion.com/articles/area-man-passionate-defender-of-what-he-imagines-c,2849/

I hope you all had fun pointing out all the (hilarious) errors in this satire piece.  Next time, we'll be back to business.

By the way, I took yet another pilgrimage to the National Constitution Center today.  I encourage all of you to put it on your must-see list if you ever get to Philadelphia.  It's like taking a shower for me - feels like I've been cleansed of my sometimes-too-well-exercised political cynicism (which I try not to let out in this blog).  But really, check it out, or at least their web site:

http://constitutioncenter.org/

Wrapping Up The Bill Of Rights - Amendments 9 and 10

The last two amendments in the Bill of Rights are short, deceptively simple, and of course, controversial.  What else is new, right?

Amendment Nine:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people.

So, what does this actually mean?  It addresses a concern that many people, including our Mr. Madison, had.  The concern was that by enumerating or identifying certain rights in the Bill of Rights as being specifically protected from interference by the state, anything left unmentioned would be assumed to be fair game for an ambitious government.

We must remember that the Bill of Rights - and the Constitution in general - does not grant anyone any rights.  It protects rights already assumed to exist against infringement upon them by the government ("Congress shall make no law..."  "...shall not be infringed."  "No State
shall make or enforce any law which shall abridge..."  "...shall not be denied or abridged..." (that last phrase appears no less than four times in various amendments)).

In short, just because a natural right is not mentioned in the Bill of Rights, it is by no means assumed that the state has the power to abridge that right.

Amendment Ten:

The powers not delegated to the United States by the Constitution, nor prohibited by it to
the States, are reserved to the States respectively, or to the people.

This one gets tricky and is consistently one of the most controversial of all the amendments.  We often hear about "states' rights" when the federal government appears to be especially overbearing and interferes with the internal workings of a state.  A strict and literal reading of the amendment would seem to support the claim by the states that the feds are getting too involved in state matters.  The idea here is that the federal government is delegated a certain amount of power, and certain areas in which it may exercise that power.  We call that "enumerated powers".  The assumption is that any power not specifically named by the Constitution as a federal power is therefore not authorized for the federal government to exercise.

People will make the case that many, many federal departments and agencies are, under a literal understanding of the Tenth Amendment, unconstitutional.  These may include the Departments of Education, or Housing and Urban Development, or a host of others whose purposes are never mentioned in the Constitution.  It may also be fair to criticize the federal government for trying to overrule state laws on marriage, drugs, alcohol, speed limits, and a thousand other things, again, based on the Tenth Amendment.

The view of the individual states as "laboratories of democracy" - a term coined by Supreme Court Justice Louis Brandeis - was intended to allow the states to experiment without overbearing federal interference.  This, presumably, would lead to the best and most efficient systems of doing things being adopted voluntarily by states after seeing what works and what doesn't in other states, as opposed to a one-size-fits-all federal mandate.

If there is any amendment that will likely be the one to cause controversy for as long as our Constitution stands, I nominate the Tenth.  The continuous tension between the state governments and the federal is one that, I think, absolutely must continue, or else we are no longer the United States of America, just the country of America.

Horton, Hillary, Hobby, Hamburgers and Humanity

"A person's a person, no matter how small," wrote Dr. Seuss in "Horton Hears a Who!"  We all remember the story of the kindly elephant who protects the microscopic community Whoville from harm.  We see that indeed, a person, no matter the size, still has value and relevance.  This, and recent judicial, economic and political goings-on got me wondering about the very nature of personhood.  What, exactly, constitutes a "person"?  Is a person a person no matter how big?  Can something artificially constructed become a "person" or at least be considered to have the basic characteristics - and attendant rights and protections - of a person?

Don't worry - we aren't going to get into a discussion of abortion today.  Nor are we going to ponder the nature of personhood through some excellent science fiction movies, like "Blade Runner" or "Her" (both of which I highly recommend - but only for mature audiences).  No, today's topic is "corporate personhood".  Can a corporation be considered, at least in some ways, a person?  The recent Supreme Court decisions on Citizens United and Hobby Lobby, combined with the latest business news concerning Burger King all lead us to ponder this question.

A brief review to set the stage:  In 2009, the Supreme Court decided in Citizens United that a part of the 2002 Bipartisan Campaign Reform Act (known most often as "McCain-Feingold") was unconstitutional.  There was a group called Citizens United that sought to screen a movie that was critical of Hillary Clinton during the 2008 Democratic primaries.  The BCRA forbade "electioneering communication" within 30 days of a primary and 60 days of a general election, and specifically forbade them being paid for by corporations or unions.  In short, this restriction was found to be unconstitutional, though it left intact the vast majority of the BCRA.  For more details, see here

Critics of the decision said that this conferred "personhood" on corporations, in terms of exercising First Amendment protections.  They maintained that corporations are not people and should therefore not be afforded the constitutional rights and protections of a person.  This theme was continued in the Hobby Lobby decision that we discussed here in a previous post.  Again, the argument was that businesses are not people, and should not be treated as such, no matter the size of the company or how "closely held" (to use the Supreme Court's terms).  Corporations are not people, went the argument once again.

Which leads us to today.  In business news, Burger King is the latest corporation to announce a plan for an "inversion" merger, in which a company from the United States purchases or merges with a company from outside the U.S., then moves its corporate headquarters to that foreign country, presumably to take advantage of that country's more favorable tax climate.  Critics of this maneuver accuse Burger King and others of lacking "economic patriotism" for trying to lower their tax liabilities by performing this type of merger.

Here's where the discussion gets interesting.  Patriotism is an individual virtue, practiced by those who profess loyalty or fealty to their native land.  Someone exercising patriotism may serve in the military, run for public office, perform service to his or her country in myriad ways.  But it remains an individual behavior.  Yet, the critics of Burger King (and others) maintain that the company exercise the individual virtue of patriotism, while in fact they are acting like a business - trying to improve their bottom line and shareholder value.  (As an aside - Burger King strongly maintains that tax reasons are not the motivation for the nature of their merger with the Canadian company Tom Hortons, but it is certainly reasonable to think that taxes are at the very least a big side benefit to the merger.) So, here's the problem:

If companies are simply companies and cannot be assigned any attributes of individuals, then the critics of Burger King have no basis for their characterization of the company as somehow unpatriotic.  And in that case, they critics of Citizens United and Hobby Lobby may have a good case for saying corporations are not people.

On the other hand, if the critics of Burger King are right and companies can - or even should - exercise individual virtues, then they can be considered, at least under certain conditions, people, and therefore have some measure of protections of an individual under the Constitution.  In that case, Hobby Lobby and Citizens United were decided correctly.

So, are corporations simply businesses, or are they people acting corporately?  Both?  Neither?  I'd love to hear your thoughts, my friends.

The famous ad line from Burger King comes to mind now - "Have It Your Way!"  The question is: can you have it both ways?