The Constitution’s Week in Review – 20 Feb 16

Article 2. Natural Born Citizen Clause (continued, ad nauseam).

Folks continue to come out of the woodwork, many with stellar conservative credentials, who think the case of Ted Cruz’ citizenship is a “slam dunk.” As I’ve said before in these pages, until the Supreme Court steps in, everyone is entitled to their opinion, but each will remain just that, an opinion. The Framers flat-out didn’t tell us what they meant by the phrase and all the circumstantial evidence remains circumstantial.

As this article points out we may soon have a judicial opinion from an Illinois judge, but if that opinion goes against Cruz he will surely appeal, and the appeals process will take some time. Meanwhile, the other three lawsuits proceed apace.

Article 3.

The world of law, indeed much of America, was shaken this week with the untimely death (at the brisk age of 79) of Supreme Court Associate Justice Antonin Scalia. With Scalia gone the court sits with three conservatives (Robert, Alito, and Thomas) one moderate swing vote (Kennedy) and four dyed-in-the-wool liberals (Ginsburg, Kagan, Sotomayer, and Breyer). As this article points out, the Court has also lost its Chief Mirth-Maker. Note: listening to oral arguments can be taxing but you get a sense for the plight of the poor lawyers who come unprepared.

Until Scalia is replaced you can expect some 4-4 ties; but that’s not to say that all decisions would result in ties; there have been several 9-0 decisions during the last eight years and everything in between. There are some incredibly important cases coming up this term and it is anyone’s guess how this will affect them. That’s not keeping some pundits from guessing.

Three important cases[1] have already been heard, and the Court has the option to order them reheard by the eight remaining Justices or just ignore Scalia’s now moot vote. Three more cases[2] are still to have their hearings, and Scalia would have played a big role in each, perhaps being tasked with writing one of the opinions.

The immediate question is: when will Scalia be replaced and what kind of jurisprudence will his replacement bring to the court? Will they be an originalist, as was Scalia, a moderate, or a progressive? With only one other originalist jurist still on the Court (Thomas) it would certainly be nice to see the President nominate someone of like-mindedness. But I’m not holding my breath on that. This Daily Signal writer thinks all the suspense over this issue proves that we have created a far-too-powerful Supreme Court. I agree; way too powerful.

President Obama will face considerable pressure from the Left to nominate a progressive, and would be disposed himself to do so. But he may surprise us all. If he nominates a “flaming liberal” it is unlikely the Senate will move to confirm at all, at least not until after the November elections and we see which party will be in the White House come January. If Obama actually wants to have his nominee confirmed he will nominate a moderate and thus throw the ball back into the Senate’s court (sorry for the pun).

But must the Court have nine justices? Article 3 of the Constitution provides Congress the exclusive authority to set the number of justices on the Court. The Supreme Court began in 1789 with six justices, moved to seven, then nine, then ten, back to eight, then finally settled once again at nine in 1869. It’s remained there ever since. FDR tried to pack the Court with six additional liberal justices in 1937 when the Court consistently refused to sanction his New Deal legislation. Fortunately, the Congress saw through the thin ruse and did not comply. If Congress wished the Court to remain at its present eight Justices they could pass legislation tomorrow so stating – providing the President didn’t veto it, unfortunately a near certainty.

The longest a Supreme Court seat has gone vacant was 391 days (in 1969-1970 when Abe Fortas resigned unexpectedly). Jeffrey Anderson, writing at the Weekly Standard, believes the Congress should just leave the Court at eight for the foreseeable future, and that there may even be benefits to this. Does the Senate have an obligation to confirm any particular nomination? No, but they will be under considerable pressure to demonstrate why the President’s nomination is singularly unfit for the highest bench. And that may be a tough case to make. Republicans have been castigated for talking delay, even as evidence that both Barack Obama and Hillary Clinton filibustered the nomination of Justice Samuel Alito.

Replacing Scalia with a liberal or progressive will tip the Court’s balance for quite some time, at least until the death or retirement of Ginsburg (83), Kennedy (79) or Breyer (78) gives the next President another opportunity. If a Democrat succeeds Obama in January all three of these jurists will probably quickly retire, confident their replacements will sustain the liberal presence. Stay tuned for a big fight this summer.

Property Rights.

Some farmers here in Virginia have had long standing fights with conservation easement managers over the proper use of the land the farmer owns or leases. The easement managers have imposed draconian requirements that threaten to put the farmers out of business, perhaps so that manager’s friends can come in and scoop up the land. Farmer Martha Boneta has had some success in getting the Virginia Assembly to come to her aid, and now a Virginia vintner has experienced success in court. The Land Trust will surely appeal, so we haven’t hear the last on this, but I’m certain that such trusts exist in other states and similar battles. Perhaps the citizens of other states can take heart at the successes here.

Upcoming Events.

Constitution Seminar for kids – 5 March. Youngsters ages 10-14 in the Tidewater, Virginia, area are encouraged to attend a seminar on the U.S. Constitution from 9am to 5pm on Saturday, 5 March at the Foundation for American Christian Education on Portsmouth Blvd. Held in partnership with Constituting America, the seminar focuses on the book by Juliette Turner: “Our Constitution Rocks.” Juliette will address the class live via Google Hangouts. There is a nominal charge of $5 per student and a box lunch will be served. Every student will receive a copy of “Our Constitution Rocks,” a pocket Constitution, and other informational materials. Email gary@constitutionleadership.org to register.

Constitution Seminar for adults – 26 March. Mark your calendars; I’ll be holding a Constitution Seminar on Saturday, 26 March from 9am to 6pm here in York County, VA. Space will be limited. Cost is $30 per adult, which gets you a 150-page student workbook, pocket Constitution, 150-page workbook and a whole lot of Constitutional knowledge. Email gary@constitutionleadership.org to register.

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[1] Voting rights (heard Dec. 8), Affirmative action (heard Dec. 9), Labor unions (heard Jan. 11)

[2] Abortion (to be heard March 2), Contraception (to be heard March 23), Immigration (to be heard in April)