Your Preconceived Notion Is Wrong

I was recently summoned to jury duty and initially marveled that, at my age, I'd never been on said duty before.  Being a civic-minded person and avowed Constitutionalist, I actually looked forward to it. 

At the appointed time and place, I sat in a room with a couple hundred others as we watched a presentation on the importance of our jury system and the solemn duty we all were expected to execute in order that justice prevail.  Then, we were split off into smaller groups and assigned to various courtrooms for the actual selection process for the trials upcoming that week.  Mine was the last name called and approved in my particular group (honestly, I would have been a little disappointed had I not been chosen.  Go ahead, call me weird...).

The trial was a criminal case in which the defendant was charged with multiple counts of sexual assault of a child under the age of 13.  An ugly case, to put it as mildly as possible.  The little that was revealed about the case as the selection process went on was terribly disturbing, as any case involving the abuse of children, especially, would naturally be.  Many potential jurors said - to their credit - they could not be objective in the face of such allegations, and were excused.  The rest of us were directed to re-convene the next day for the beginning of the trial.  Ultimately, the trial was postponed due to what the judge simply described as a "legal issue", and we were excused just as it got underway.  But that's not the point of my post.  This is:

As the jury selection wrapped up, attorneys for the state and for the defendant addressed us with some preliminary remarks.  I was impressed with the professionalism and dedication to their work both sides demonstrated and the decorum they maintained throughout.  I may have to temper my lawyer jokes henceforth...  Anyway, when the defense attorney addressed us, he gave us a really important refresher on how our justice system works, and I was glad he did.

The defense attorney asked one juror, chosen, it seems, at random, "Do you have any preconceived notions about my client's guilt or innocence regarding the charges against him?"  Trying to demonstrate her objectivity, the juror naturally replied, "No, I don't."  Most of us, I think, would answer the same way.  But the attorney, instead of being satisfied with that answer, said, "That's the wrong answer.  You should have a preconceived notion, and that notion should be 'not guilty'."  He then went on to explain the fundamental premise of our justice system - that any defendant in a criminal trial is, and must be, presumed innocent until the state proves otherwise. 

The entire burden of proof is on the prosecution to prove the defendant guilty beyond a reasonable doubt (not any doubt, but a reasonable doubt).  There is no burden whatsoever on the defense to prove innocence.  Of course, the defense will provide such evidence as they believe will be exculpatory, but the burden of proof rests solely with the state.  And we can be thankful for that.  Imagine a "justice" system that makes you prove your innocence.  If you are innocent, there is nothing to prove and you can't prove a negative, according to the rules of logic.  This a kangaroo-court way of doing things - the system of dictators and tyrants.  Think of how many times in history people were brought up on bogus charges by a vindictive government or ruler and were subsequently disposed of in one way or another, being unable to "prove" their innocence.  That stands the entire concept of justice on its head.  You and I are innocent, in the eyes of the law, until proven otherwise. 

Does this ensure justice in every case?  Of course not.  Inept prosecutors or defense attorneys can blow a case that should have been a slam-dunk.  Jurors can be influenced in myriad ways, legal and otherwise.  The innocent may sometimes be unjustly punished, but not often, thankfully - and the appeals process helps reverse such wrongs.  The guilty may go free, perhaps more often, because - again - the burden of proof is on the prosecution.

This principle was most famously expressed by the famous British jurist Sir William Blackstone in his seminal work, Commentaries on the Laws of England, a reference work generally considered the greatest in the history of Law.  He wrote in the mid-Eighteenth Century: "...for the law holds that it is better that ten guilty persons escape than one innocent suffer."  Such a sentiment has been also been attributed to American Founders (who were no doubt familiar with Blackstone) Benjamin Franklin and John Adams, as well as Blackstone's legal precursors, Sir Matthew Hale and Sir John Fortescue; and as far back as Jewish legal theorist Maimonedes several centuries before Blackstone, and even the book of Genesis (18: 22-33)

I'll be interested to see how the case I was on, however briefly, eventually turns out.  I won't name the case, in case any of you readers are called to sit on that jury!  In the meantime, we can celebrate the fact that our justice system presumes innocence - the correct default position for true justice to triumph.

Of Bakers and Bans

In the last couple of weeks there have been several decisions handed down by the Supreme Court that have captured the attention of the American public more than most cases.  And with that attention has come a lot of angst, misunderstanding and misleading information about the decisions.  I'd like to take a little time and look at two of them and explain the Constitutional aspects of each one while taking the political spin out of them.  We'll explore what the cases were actually about, at their most basic level, and just as importantly, what they were not about.

The first case is the Masterpiece Cake case (Masterpice Cakeshop v Colorado Civil Rights Commission).  For those of you who need a refresher, Colorado baker Jack Phillips was sued by the Colorado Civil Rights Commission for refusing to bake a custom wedding cake for a same-sex wedding.  He said that by creating a custom work of art, he is an active participant in an action that conflicts with his religious beliefs.  He, in fact, offered the couple anything in the shop that was already made and non-specific to a same-sex wedding, but refused the custom work.  The Colorado Civil Rights Commission, in response to the couple's complaint, sued Phillips for violating the state's non-discrimination law.  Phillips lost and, to make a long story short (this is a blog, after all, not an academic paper), appealed all the way to the Supreme Court.

The justices found, in a frankly surprisingly strong 7-2 decision, that the CCRC did the actual violating of civil rights as pertains to Phillips and his religious beliefs.  The Court cited numerous instances of the Commission being openly hostile to religion and a history of inconsistent application of the Colorado law.

So, aside from the State of Colorado essentially singling out Phillips for prosecution, what other factors and Constitutional issues were at play here?  At the heart of the matter is the concept of compelled speech.  As explained to me, compelled speech is a form of censorship, but the inverse of how we usually think of it.  We usually associate censorship with a government action telling us that we must not say something.  Compelled speech, on the other hand, is the government saying we must do or say something, which is frankly much more pernicious.  The other base issue at hand is the separation of status from behavior.  Let's take these one at a time.

In the case of compelled speech, the government is telling you that you must do or say something, even if it conflicts with your most deeply-held beliefs.  In this case, Phillips has a deep conviction that marriage is between a man and a woman (one each), and anything else is a violation of God's plan for humankind.  Now, you may disagree with that position, but you can't say that his belief - and his faith - is not sincere.  Nor can the government.  Phillips had a record of refusing work based on his beliefs, including refusing to make Halloween confections or divorce party cakes, so he was able to demonstrate a consistent history of this kind of belief (even though it should not have been necessary to do so, in a perfect Constitutional world).  He was also able to demonstrate a history of serving anyone who came into his shop with anything on the shelves.  He never discriminated against anyone based on who they were - which brings us to the next point.

If Phillips had told the couple he doesn't serve gay people (or black people or Muslims or whoever), he would've - quite properly - lost in a landslide, because he would have discriminated on that basis of status.  In other words, he refuses someone based simply on who they are.  None of us likes that, do we?  But his refusal was based on a specific behavior - in this case, a same-sex wedding - that was in serious conflict with his religious beliefs.  Remember, he offered the couple anything else in the store, just not a piece of custom artistic work with his name in it, so to speak, that would imply an endorsement of the behavior he found wrong.  Now, people can argue that there should be nothing wrong with a same-sex wedding, and indeed, same-sex weddings are legally permitted in all states, but that isn't really the point.  The point, ultimately, is: do you want the government deciding which of your sincerely held beliefs is kosher (religious belief joke there...) and which is not?  You see the danger.

But what about same-sex marriage?  Hasn't the Court legitimized bigotry and homophobia and random discrimination, as so many headlines claimed?  No, not in the least.  Not a single statute or Supreme Court precedent was invalidated or even in any way modified by this decision, not even the Colorado law in question.  The point was that the Colorado commission mis-applied their own law, not that the law was somehow bad. 

So, bottom line from this case: First of all, it was not about gay marriage (interestingly, soon-to-retire Justice Kennedy authored the opinion both in this case and in the Obergefell case, which essentially legalized same-sex marriage, so clearly Kennedy was not about to overrule himself!).  That was only a tangential issue.  Second: understand the difference between status and behavior.  And third, understand the legal concept of compelled speech and the problem it creates in a free society, which includes the freedom to have differing opinions without being prosecuted.

The second case is the recent decision regarding the Trump Administration's ban on travelers from certain countries (Trump v Hawaii).  Popularly known as the "Muslim Travel Ban", the case was decided not on the basis of religion or religious discrimination.  So, what was the fundamental issue?

The Court's majority ruled narrowly in favor of the Administration, but not on the basis of the policy being good or wise.  The issue was this: does the President have the Constitutional and statutory authority to ban, well, basically anyone from entering the country?  The Court says, yes, the President does.  And that was basically it.  The Court's majority made no comment on the wisdom or appropriateness of the ban, because that is a political question, not a judicial one, and the Court is hesitant to make political commentary, leaving that to the political branches of government.  So, despite the headlines saying that the "Muslim ban" was upheld, and despite Trump's own tweets about the Trump travel ban being upheld, it really wasn't about upholding the ban or not, but simply whether or not he president may do such a thing, regardless of whether or not it's a good idea. 

As a matter of fact, and the Court's majority acknowledges this, it really wasn't a "Muslim ban", anyway, even though most of the countries covered in it (though not all) are Muslim-majority countries.  The travel ban covered only just over ten percent of the world's Muslim population, despite President Trump's rhetoric from a year or two ago about Muslims.  This rhetoric was what the dissenters in the case used to vote against the Administration, but that's not really the Constitutional crux of the issue.  That's a political issue, which again, the Court tends to try not to involve itself in.  The reason for the ban (and I have an interest in this, being in the airline business), is that the countries in question don't practice an acceptable level of ID verification for passengers, thereby creating an unacceptable security issue for US aviation security standards.  Notably, since the first version of the ban, which was successfully challenged, a couple countries have improved their processes and have been removed from the list, but now we're getting further from the Constitutional issue, so I'll stop there.

So, the overall point of this entry is to encourage people to carefully read and evaluate exactly what the Supreme Court is saying when it rules on an issue, and just as importantly, what it is not ruling on.  In this age of instant analysis by all manner of social media-based, self-proclaimed experts and the 24-hour TV news cycle, it's too easy to be swayed by breathless headlines (no matter which side of the issue you may be on).  Take the time to understand the reasoning before you leap to conclusions.  Not to say the Supreme Court is infallible.  Not by a long shot.  We all remember notoriously bad decisions, like Plessey v Ferguson, Dred Scott, Korematsu, Kelo and others.  And certainly, there have been plenty of decisions in the past in which I really didn't like the outcome, but had to admit, upon sober reflection, that the decision, in terms of the Constitution, was correct.  And really, that's all I ask.

Thanks for reading.  Discuss...

The Most Powerful Man In America

Yesterday (June 27, 2018), the most powerful man in the country announced his retirement.  No, it wasn’t the President, nor was it the Speaker of the House, the Chairman of the Joint Chiefs or even the Commissioner of Baseball.  No, it was Associate Justice of the Supreme Court, Anthony Kennedy.

So, am I being a little facetious saying he’s the most powerful man in the country?  No, I don’t think so, and here’s why:

The Supreme Court of the United States (SCOTUS) is populated with nine justices.  Four are generally identified as liberals or progressives or activists or some other term indicating a left-leaning mindset.  These are Justices Kagan, Ginsburg, Sotomayor and Breyer.  Four others are generally thought of as conservatives, originalists, textualists or other right-leaning terms.  These would be Chief Justice Roberts, Thomas, Alito and Gorsuch.  This leaves Kennedy kind of in the middle.

For three decades, and even more so after the retirement of Justice O'Connor, Justice Kennedy has been seen by most as the “swing vote” – the one who chooses a side in those 5-4 decisions to make a majority one way or the other.  And that’s what makes him the most powerful man in the nation.  No one else has the influence he does on our nation’s laws and jurisprudence.  Pundits are already arguing about whether Kennedy has such an ego that he put himself in this position precisely because he wanted this kind of power, and I’ll leave the pundits to shout each other down over that.  Have at it.

But what is not debatable is the fact that Kennedy has been powerfully consequential.  Let’s look at just a few of the 5-4 decisions in which he was essentially the tiebreaker:

Decisions “The Left” would generally cheer:

Obergefell v Hodges, which essentially legalized same-sex marriage in the U.S.

Planned Parenthood v Casey, reaffirming Roe v Wade and the legality of abortion (with some restrictions)

Kennedy (not Justice Kennedy) v Louisiana and Hall v Florida, placing restrictions of capital punishment

Decisions “The Right” would generally cheer:

Citizens United v FEC, ruling that campaign spending is protected as free speech under the First Amendment

DC v Heller, affirming the right to keep and bear arms and an individual right

Bush v Gore, putting an end to the 2000 presidential election recounts

And much more.

So, what comes next?  Obviously, President Trump is going to nominate a replacement.  The interesting political situation is going to be this: if one of the “conservative” justices needed to be replaced, like the late Justice Scalia, nominating and confirming a justice like Gorsuch keeps the court’s “ideological” (I hate using that term, actually, as there should be no ideology involved, but that’s a separate blog for some other time) balance more or less at the status quo ante.  Likewise, when President Obama replaced Justices Souter and Stevens with Justices Sotomayor and Kagan, respectively, there was no discernible ideological shift on the bench.  But with a centrist, for lack of a better term, like Kennedy, how does the president proceed, and is there any way to please either of the parties in the Senate with any one candidate?  This is likely going to be the most contentious SCOTUS nomination and confirmation process of a generation, if not longer.

Now, should one person, especially an unelected person who serves essentially for life, have the kind of influence and power Justice Kennedy has wielded?  Again, sounds like a good topic for another blog entry, and will be an issue we'll hear raised over and over again in the upcoming months.

Justice Kennedy, by design or by chance, has made things really interesting for us.

Buckle up…

Madison Memorial - Or Not?

Excavation and restoration of slave quarters at
James Madison's estate, Montpelier

Recently, a student at James Madison Memorial High School in Madison, Wisconsin (how's that for a lot of Madison references?!) started a petition to remove Madison's name from the school because Madison was a slave owner, and slave owners should not be honored in such a way.  You can read and see the original story here.

As a big fan of James Madison, you can imagine I'm less than supportive of this effort, to say the least (I wish the students would learn more about Madison instead of trying to banish him), but in keeping with the intent of this blog, let's look carefully and fairly (as fairly as I can when someone is trying to get rid of James Madison!) at both sides of the issue.

First of all, let's stipulate something right up front.  Slavery is bad.  So bad that "bad" doesn't even begin to cover it.  I'd classify slavery along with rape and murder as the Unholy Trinity of bad things one human can do to another.  So, there will be no defending slavery as such in any arguments here.  There are those who argue that Madison was a "good master", and as far as that goes, he was - he was remembered by some of his former slaves as never striking a slave and reprimanding those who did.  Madison was remembered with great respect by his former slave and valet Paul Jennings in Jennings' book "A Colored Man's Reminiscences of James Madison" - the first White House "memoir" ever published.  But the "good master" and "happy slave" arguments are little more than excuse-making for the very institution of slavery, so we won't go down that road in Madison's defense.

Let's begin with the affirmative side, seeking to change the name of Madison Memorial to something else (whatever the something else is hasn't been discussed yet, so we'll not worry about what other name may be proposed for the school).  The student and supporters of the petition say that anyone who owned slaves should not be honored with a building in their name.  I'd say that, on the surface, makes some sense - why honor those who have owned another human being?  The student also relates that she's been called racial epithets and even been threatened with lynching at the school, and changing the name would help discourage that behavior.  To be honest, I can't see how the mere name of the school leads to those things, but let's give her the benefit of the doubt on that, as well.  The mere fact that their school is named after a slaveholder adds to the sense of racial injustice in her eyes and the eyes of others.

Clearly, most people have never been the target of racial bigotry or threats (I say "most of us" because America is still majority white), so we (white people) would have a more difficult time understanding the ramifications of such behavior than those who've been subject to it.  With all that in mind, let us acknowledge that racial issues are by no means a thing of the past, and something we have to deal with continuously (sadly).  And given that, let us also give the students in question the benefit of the doubt that the name of their school might in some small way be a factor in it.

Shifting to the negative side of the argument, let's point out a few flaws in the Affirmative's reasoning.  One flaw is the common mistake of "presentism" - that is, applying our modern (and presumably, more enlightened) thinking to an older issue.  We understand that slavery is wrong, and frankly, so did they, way back then, though they did little to stop it.  On the other hand, slavery has been a part of human history since Biblical times, at least, so it doesn't exactly make the Founders like Madison (and Jefferson and Washington, as well) especially unique.  For all their high-minded rhetoric (Jefferson's especially), they themselves didn't free any slaves, but they did do something in order to allow it to happen over time.  And that leads us to the next flaw in the Affirmative argument, which is a lack of context.

In 1787, there was a convention called in Philadelphia in order to amend the Articles of Confederation, the contract that loosely bound the colonies together.  The Articles were not working, and the country was not really a country, but a confederation of thirteen sovereign states with little central authority binding them together.  Madison arrived early, and to make a long story short, changed the direction of the convention from amending the Articles to drawing up an entirely new Constitution, effectively creating the United States of America, with a stronger central government, but with much power still reserved to the states.  The Constitution was a series of compromises (too many to list here and stay on topic), and one compromise was that they effectively punted on the question of slavery in order to get all the states to accept the new Constitution.  So why, with this in mind, am I still defending Madison as regards the slavery issue?

If the Articles of Confederation had stayed in effect, it's likely a nationwide ban on slavery would never have come about.  Each state may have, in turn, banned slavery, but it would not have been a national policy - a supreme law of the land.  By authoring the Constitution, and in particular, the amendment process of Article V, it cleared the way for the eventual passage of the Thirteenth Amendment and the nationwide banning of slavery, something unlikely to happen without a national document of fundamental and supreme law.

So, while Madison did not personally free any slaves, he set up a system by which it could be done on a national scale.  He was the original and ultimate political operator in the United States - he knew how to lobby people and convince them and compromise with them and get things done.  The Three-Fifths Compromise (speaking of slavery) was one such effort.  In the debate over representation in Congress, southern slave-holding states wanted to count slaves as part of the population in order to get more Congressional seats, while the northern free states opposed the idea.  Madison brokered a compromise, which allowed the southern states to count three-fifths of their slave population toward their representation total.  In contrast to what many people believe, it was not a compromise that had the southern states looking to further marginalize slaves as less than a full person - they wanted all the slaves counted (though of course the extra representation in Congress was not going to be filled by slaves - or free blacks, for that matter).  In the long run, the Three-Fifths Compromise was actually better for the slaves by keeping the southern states from being disproportionately powerful compared to the free states.  As I said earlier - context.

Madison and the other Founders also, while owning slaves themselves, did not argue strenuously that slavery was a "positive good", as did former US Representative, Senator and VP John Calhoun (whose name was recently removed from Yale University, the school named after him being renamed for Admiral Grace Hopper).

To sum up, I understand the idea of not wanting to honor slave owners, but on the other hand, we need to look at the entirety of someone's life's work, not just focus on one (admittedly large) flaw.  In consulting my own rather extensive library of books by and about Madison, there's a lot more there than simply "he owned slaves".  But is that enough to take his name off the building?  Or off the name of Wisconsin's capitol city?  Where does it end?  Do we rename Washington, DC?  Jefferson City, Missouri?  Universities named after George Washington, George Mason, James Madison and Robert Morris?

Sadly, while the Thirteenth Amendment ended slavery, it did not end racial tensions in America.  Now discuss - is this (renaming a school) a way to lessen the tension or does it endanger our understanding of history?

The People Have Spoken?

“The people have spoken…the bastards.” – Dick Tuck, failed political candidate.

The presidential election of 2016 has, as is normally the case, it seems, resurrected the quadrennial debate over the American Electoral system (I have decided not use the term “Electoral College” because it is not historically accurate – nothing in the Constitution refers to such a body.  It’s merely a term of convenience – probably first used to draw an analogy to the Roman Catholic College of Cardinals,  which elects popes.).  For the second time in sixteen years, the winner of the popular vote for president did not earn the requisite number of electoral votes in order to be victorious.

People often wonder why our system of choosing a president is so cumbersome and seemingly undemocratic.  For a brief history on this unique institution, see my previous entry here.  People wonder if there is a better way of electing the president, and suggestions ranging from a direct election consisting of the nationwide popular vote to various modifications of the current electoral system (perhaps most notably encouraging states to split their electoral votes in a proportional manner similar to Nebraska or Maine, eliminating the winner-take-all sweepstakes as in all the other states) are regularly floated around election time.

I recently listened to one of my favorite podcasts, Your Weekly Constitutional, and the topic was this very thing - specifically, the National Popular Vote Initiative.  You can listen to this episode here.

In a nutshell, this movement is trying to establish a voluntary compact between states in which the states involved agree to cast their electoral votes for the candidate who wins the national popular vote, not necessarily who wins the most votes in their own state.  This compact would go into effect only when a sufficient number of states join so that their electoral vote totals would add up to at least 270, thereby ensuring that the national popular vote winner would also win the electoral vote.

As you can imagine, there are several pros and cons to a proposal like this.  Let me list a few on each side and encourage you, the reader, to weigh them and draw your own conclusions.

Pro:

It would be more “democratic”.  The person who wins the most votes nationwide wins the election in all cases.

It eliminates the idea of “swing states”.  In the last election, both candidates concentrated their efforts in about a dozen states that were considered “in play”, while basically ignoring states they either knew they had locked up or had no chance of winning.  For example, Trump could basically skip campaigning in New York or California, knowing he had no chance there, and Clinton could all but ignore Texas or Tennessee for the same reason (and conversely, there was no practical reason for Trump to go to TX or TN or for Clinton to campaign in NY or CA).  So, most of the efforts of both candidates were focused on a relatively small number of states they knew they had to win in order to get to the magic number of 270 electoral votes.

It would not require a Constitutional amendment.  Each state is free to establish its own criteria for casting its electoral votes.  There is no Constitutionally-mandated method.  As mentioned above, Maine and Nebraska use a proportional system, not winner-take-all, and it’s perfectly legitimate of them to do so.

It would be voluntary.  Each state in the compact would have to agree to it.  No other entity, state or federal, can coerce a state to join (and presumably, each state would turn to its own citizens in some type of referendum in order to approve the plan).

Con:

It seems to be a solution in search of a problem.  We’ve had 58 presidential elections in our history and only five times has the popular winner not won the electoral vote.  That’s less than ten percent of the time – an outlying rarity in the big picture of things.

It would diminish the influence of less-populated states.  The Founders were very concerned about states and their place in the nation as a whole.  That’s why we have a bicameral Congress in which one chamber represents the people and one represents the states (remember, Senators were originally elected by state legislatures, not by popular vote).  States like Alaska and Wyoming, which wield a somewhat outsized electoral influence relative to their populations would see their “importance” in presidential elections diminish if all that mattered was the national popular vote.

Voters in certain states might feel disenfranchised if their electoral votes went opposite their state vote.  For example, in my home state of Wisconsin, the statewide vote went for Trump, but if Wisconsin were part of this compact, our electoral votes would have gone for Clinton, opposite the apparent will of the Wisconsin voters at large.

The states with the largest populations would have too much influence.  Again, going back to the recent election, Clinton’s popular vote margin was somewhere in the neighborhood of 2.5 million nationwide.  That also happens nearly identical to the margin of victory she enjoyed in California alone.  Do the rest of the states want one state to be the deciding factor?

Certainly, you readers can come up with other arguments for and against this idea, which, I should note, enjoys a fairly remarkable level of bipartisan support in certain areas, so it’s not just a “Democrats lost and so they want to change things” kind of scenario unique to this year.

Will this change happen?  Time will tell, of course.  Perhaps it will.  Perhaps another type of “reform” movement will gain momentum.  And perhaps the system we have will stay intact.  What say you? 

Discuss…

Watch Your Language!

Congress shall make no law...

Sound familiar?  Of course, it does - it's the first few words of the First Amendment.  

How about these:

The USA PATRIOT Act
The SAFE Act
"I Like Ike"
"Tippecanoe and Tyler, Too"

What do all these have in common?  The use of language.  In politics, language can be used as much as a means of salesmanship as statesmanship.  Let's be honest - politicians are careful in their choice of words (okay, most of the time) in order to get you to come to a conclusion that favors the politician ("Vote for me!"  "Support this bill!").  And it can be very clever.  Let's take, for instance, the above USA PATRIOT Act.  Do you know what it stands for?  I mean, we all want to be patriotic, right?

USA PATRIOT Act:  Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act.  Quite a mouthful, isn't it?  I mean, who's going to bother reading about something with that long and cumbersome a title, right?  So, let's make it something catchy and at the same time make it sound like anyone who opposes it isn't a patriot.  Clever, huh?  Without debating the merits of the law, it's clever marketing, isn't it? 

Likewise, the SAFE Act.  We all like safety, right?  How about the Security and Freedom Enhancement Act?  I mean, still sounds good, right?  It's actually another law that provides for the amending of the USA PATRIOT Act.  Again, clever marketing.

Campaign slogans are also noted for clever, pithy phrases.  Has any campaign had a better, simpler slogan than "I Like Ike"?  (Okay, "Jeb!" from this year's GOP primary was simpler, but not especially effective, we must admit.)  "Tippecanoe and Tyler, Too" from 1840 had a catchy blend of rhyme and alliteration.  Clever, no?.  Both of the above slogans proved effective, too - William Henry Harrison ("Tippecanoe") won handily in 1840 and Dwight D. Eisenhower ("Ike") won a landslide in 1952.

But what does this have to do with the way I started this entry - "Congress shall make no law"?  I want to point out the power of language and the necessity in being precise when we use language about the Constitution, not clever political marketing ploys.

I referred to this concept way back when we started talking about the Amendments to the Constitution.  I asked this question: "Does the Constitution (and therefore, the federal governments) grant rights, or is its function to protect them?  There is a critical difference between the two ideas."

I think (I hope) we all can agree that the Bill of Rights, grants absolutely nothing.  Nope, not a thing. No rights were created by the Bill of Rights (sounds counter-intuitive, I know).   But look carefully at the language:  

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Note that the amendment restricts the government from making laws that infringe upon the rights listed.  The amendment does not purport to grant or create those rights - they are assumed to already exist and the amendment merely erects a legal barrier against government interference in the exercise of those already-existing rights.  Look at some of the following amendments and you will see a similar construction:

"...the right of the people to keep and bear Arms, shall not be infringed."

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..."

"...the right of trial by jury shall be preserved."

You get the point.  The rights listed above, among others, are assumed to be inherent, not artificially created by a mere political document.  

So, what? you ask.  So, I encourage you to use language properly when talking about the Constitution.  Personally, I have decided to avoid using the term "Constitutional Rights", since there are in fact no rights created by the Constitution.  Instead, I use "Constitutionally-protected rights".  Yes, I know it's cumbersome, and people will know what I mean if I use the first, common construction.  Still, I make the case that it's critical to the deeper understanding of the Constitution - and how it actually is written and intended to be understood - to use precise language whenever possible.  It can, at the very least, spark some interesting discussions.  So, go and discuss.

Wrapping it up with a drink and some cash - Amendments 18, 21 and 27

Amendment 18

It's commonly assumed that a general feeling of alcohol being the root of many societal ills was the driving force behind the 18th Amendment, known better as Prohibition.  The rest of the story is much more interesting and intricate.

But first, the text:

1. After one year from the ratification of this article the manufacture, sale, or
transportation of intoxicating liquors within, the importation thereof into, or the
exportation thereof from the United States and all territory subject to the jurisdiction
thereof for beverage purposes is hereby prohibited.
2. The Congress and the several States shall have concurrent power to enforce this article
by appropriate legislation.
3. This article shall be inoperative unless it shall have been ratified as an amendment to
the Constitution by the legislatures of the several States, as provided in the Constitution,
within seven years from the date of the submission hereof to the States by the Congress.

That's is - no more Happy Hour, no more champagne toasts at weddings, no more cold beer after mowing the lawn.  What a nightmare!  But how did it happen?

Rather than trying to summarize, let me offer a link to an absolutely fascinating article about the genesis of Prohibition and the man who was the main motivator for it - a man you almost certainly never heard of - Wayne Wheeler.

http://www.smithsonianmag.com/history/wayne-b-wheeler-the-man-who-turned-off-the-taps-14783512/

Naturally, there was widespread controversy, widespread protest and let's face it, widespread ignoring of the law.  But from January 16, 1919 until December 5, 1933, it was the law of the land, which left us with a legacy of lawbreakers like the bootleggers and crime bosses like Al Capone.  The law was a failure, so it was finally repealed by...

Amendment 21

Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

Section 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

Section 1 of the amendment repealed the 18th, getting rid of the federal ban on alcoholic beverages.  Pretty simple.  But...

Section 2 essential made liquor laws state issues.  States were free to allow or disallow alcohol according to its own laws, and several states indeed remained "dry", the last one to re-allow alcohol was Mississippi, in 1966.  Other laws stayed on the books longer, for example, Kansas prohibited public bars until 1987.

However, federal influence over alcohol sales did not end entirely.  As recently as 1987, the State of South Dakota sued the federal government (and lost) over the loss of federal highway funds due to the state's allowing of the sale of certain low-alcohol-content drinks ("near beer") to people under 21.

And now, the final entry in our exploration of the Amendments to the Constitution:

Amendment 27

This is one of the shortest amendments, word count-wise, but has the distinction of taking the longest of all the amendments to finally be ratified.  

No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

In effect, it means that Congress cannot just vote itself a raise just any old time it wants to.  If a raise is approved by Congress, the increase does not take effect until after the next election, ensuring that the voters have a chance to vote out anyone they feel was a little too greedy in their increase.  This has the effect of tempering the amount of a raise Congress is willing to give itself.  Too big a raise, and they risk being voted out of office.

But the really interesting part of this amendment is that it took a mere 202 years to be ratified.  You read that right: over two centuries passed from the time it was brought before Congress until the last requisite state ratified it.  The amendment was actually number two in an original twelve proposed by the first Congress.  The first on that list, dealing with numbers of representatives, was never ratified, and original amendments 3-12 became what we know as The Bill of Rights (so the amendment we know as the First Amendment started out as the third, and so on).

The first state to ratify the eventual 27th Amendment (and remember, it was the original second amendment!) was Maryland in 1789.  Six more states added their approval by 1792, but after that, no other state voted to ratify for another 80 years, when Ohio voted in favor in 1873.  And then, it was another century before Wyoming approved in 1978.  Twenty-two more states ratified in the 1980s and finally, in 1992, Michigan put it over the top.  And to think, all that time, COngress could just raise its salary whenever it wanted....  Good work if you can get it, right?

Well, that's it for the amendments.  What shall we talk about next?