The Constitution’s Week in Review – 12 March 2016

Article 2. Natural Born Citizen Clause (to be continued until it is definitively settled).

Another suit[1] challenging Ted Cruz’s eligibility and another suit dismissed on a technicality, this time for missing a New York filing deadline. Still no ruling on the merits of the case.

Article 3. Replacing Scalia

Judge Robert L. Wilkins’ name wasn’t on the first list I saw of possible replacements for Antonin Scalia. This article[2] reads like someone is suggesting the President consider Wilkins.

He was nominated by President Obama to a District Court position in 2010 and unanimously confirmed, but three years later, when Obama tried to elevate Wilkins and two others to the District of Columbia Appeals Court, Republicans in the Senate blocked all three nominees, arguing that the court didn’t have sufficient workload to justify filling its three open positions (there are anywhere from 6 [1st Circuit] to 29 [9th Circuit] seats on an appeals court but cases are normally only heard by three-judge panels instead of “en banc,” meaning by the entire court).

Republicans actions infuriated Democrats enough that Harry Reid exercised what’s became known as the “nuclear option,” changing the Senate rules so that only 51, rather than 60, votes were needed to advance a nomination. Wilkins was ultimately confirmed, 55 to 43, a reasonably close vote. This would indicate that, were he to be nominated to the high bench and actually given a confirmation hearing, he would come under close scrutiny.

Apparently not taking the hint over Wilkins, later in the week it was leaked[3] that the President had narrowed his list of potential nominees to five. Surprise, surprise, four of the five donated to his election campaign. Federal judges Sri Srinivasan ($4,250), Jane Kelly ($1,500), Paul Watford ($1,000) and Ketanji Brown Jackson ($450) were all donors. Judge Merrick Garland apparently had enough sense not to do so. I wonder whether these judges could be impartial when hearing a case challenging executive orders. Hmmm.

First Amendment. “It’s not over till its over”

 Those concerned with the Supreme Court’s ruling in Obergefell v. Hodges (homosexual marriage) can take heart in the Alabama Supreme Court’s opinion this week that Alabama judges are bound to follow existing Alabama law, which prohibits the issuance of marriage licenses to homosexual couples, rather than the U.S. Supreme Court’s Obergefell opinion. The decision, although lengthy, should be read in its entirety and may be downloaded here.[4] Justice Moore quotes extensively from Chief Justice John Roberts dissent in Obergefell[5] (which you should also have read by now)

Justice Moore’s ruling (and the Supreme Court’s Obergefell ruling) can be best summed by this statement from Moore’s opinion: “That a majority of the [U.S. Supreme] Court may identify an “injustice” that merits constitutional correction does not dispense with the means the Constitution has provided in Article V for its own amendment. Although the Court could suggest that the Constitution would benefit from a particular amendment, the Court does not possess the authority to insert the amendment into the Constitution by the vehicle of a Court opinion and then to demand compliance with it.”

Please help ensure that Justice Moore’s opinion is passed to all who you think are (or should be) interested. Perhaps other states will take similar action.

 The Gall! I had never encountered the word “hubris[6] before the word was used derogatorily of the last Bush administration.   Now that I know what the word means, I see examples of it all the time, principally in the way the Obama administration acts towards “mere citizens.”

But this takes the cake: apparently the Justice department has held discussions[7] (and may still be doing so, for all I know) over whether it would be appropriate to bring civil charges against those speaking out against “climate change.” Freedom of thought and speech be damned, there is only one “truth” for this administration, and it will be enforced!

Property Rights. Want to build a pond on your land? Have all the state permits required? Be careful before you start digging, the EPA demands you also get their OK. Good luck with that.

The EPA and Army Corps of Engineers make tens of thousands of determinations each year that private property contains wetlands protected under the Clean Water Act (CWA). On March 30th, the Supreme Court will hear oral arguments in U.S. Army Corps of Engineers v. Hawkes Co. The case will decide whether landowners have access to the courts to challenge EPA rulings that their property contains such wetlands and thus makes them subject to federal regulation.

This coming Monday, March 14, from 12:00pm – 1:30pm, the CATO Institute will host Shauneen Werlinger, Legal Fellow at the Pacific Legal Foundation; and Steven Eagle, Professor at George Mason University School of Law to discuss this issue, focusing on the question: What recourse do landowners have when federal agencies decide that private property contains wetlands?

Thirty states are now suing to overturn the newest CWA rule expanding power over “waters of the United States,” but invalidating that rule won’t change existing federal control over individual landowners if the agencies continue to assert similarly overbroad judicial review authority. If you are concerned about this issue I encourage you to tune in to the CATO live event. I’m concerned, I’ll see you there.

 Constituting America’s 90-Day Study

There’s talk of the Republicans having a “contested” nominating convention this summer. Ever wonder how political party nominating conventions got their start? This essay by Professor Joseph Postell answers that question, as well as who encouraged the strengthening of the two-party system.

Upcoming Events.

Redefining Humans. It’s not too late to register for Dr. Mark Jumper’s presentation Monday night, 14 March, as part of the Foundation for American Christian Education’s Lessons in Liberty series. $10 will get you into the FACE classroom in Chesapeake, VA or provide you with the online streaming link to watch the presentation from the comfort of home. From the flyer:

“Our times have seen revolutionary changes in the norms of sexual and social beliefs and practices that, far from just changing norms, alter the very definition of human beings and of social structure. Dr. Jumper will name and analyze these trends and propose redemptive Christian responses, both of thought and of practice.” www.face.net to register.

Constitution Seminar for adults – 26 March. Mark your calendars; I’ll be holding a Constitution Seminar for adults 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.

Constitution Seminar for Youth – 9 April. The Constitution seminar scheduled for March 5th has been postponed to permit more 10-15 year olds to attend. Same time (9-5), same location (Foundation for American Christian Education classroom in Chesapeake, VA), same focus (Juliette Turner’s “Our Constitution Rocks”). Register through email to gary@constitutionleadership.org

Constitution Seminar – 16 April. On Saturday, 16 April, I hope to be in the Valley Forge, PA, area presenting another Constitution Seminar in conjunction with WFYL Radio. Valley Forge was CLI’s inaugural 1-day seminar, the success of which led me to adopt the format as my standard. Save the date if you live in that area; details later.

The “Constitution’s Week in Review” is a project of the Constitution Leadership Initiative, Inc. To unsubscribe from future mailings by Constitution Leadership Initiative, click here.

[1] http://www.newsmax.com/Politics/judge-dismisses-ted-cruz/2016/03/08/id/718156/

[2] http://www.srnnews.com/possible-supreme-court-pick-championed-black-history-museum/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+SrnNewsUs+%28SRN+News+%C2%BB+U.S.%29

[3] http://eaglerising.com/31371/the-most-corrupt-administration-ever-just-announced-their-shortlist-for-the-supreme-court-and-the-list-will-infuriate-you/

[4] http://lc.org/PDFs/030416OrderDismissingPetitionsandMotionswConcurrence.pdf

[5] http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf

[6] http://www.merriam-webster.com/dictionary/hubris

[7] http://cnsnews.com/news/article/melanie-hunter/ag-lynch-doj-has-discussed-whether-pursue-legal-action-against-climate

The Constitution’s Week in Review – 5 March 2016

Article 2. Natural Born Citizen Clause (to be continued until it is definitively settled).

Ted Cruz survived another legal challenge over his NBC status. An Illinois suit was dismissed by the judge on a technicality: the petitioner, Lawrence Joyce, had failed to properly serve Cruz and members of the Illinois State Board of Elections, as required by law.  Suits in Alabama, Texas and New York continue.

Article 3. Replacing Scalia

It appears that Senate Judiciary Committee Chairman Charles Grassley is sticking to his guns on no confirmation hearings for any Scalia replacement until after the election. The President’s ploy, of floating the name of Eighth Circuit judge Jane L. Kelly, an Iowa resident like Grassley, will die on the vine. Senator Grassley gave a key address at the Conservative Political Action Conference in Washington this week in which he pointed out some of the freedoms that would be imperiled were a liberal allowed to replace Scalia, specifically 1st and 2nd Amendment rights would be on the chopping block. Meanwhile Organizing for America is marketing a lovely line of “Don’t Be A Robe Block” T-shirts. Get it?

In somewhat related news, the death of Justice Antonin Scalia appears to have been a catalyst; for the first time in 10 years, Associate Justice Clarence Thomas (may he live forever) asked, not just one, but several question from the bench, startling most court watchers.

As this article points out, replacing Antonin Scalia could signal the start of “a ferocious battle for ideological control of the U.S. Supreme Court that could drag on for years.” It will be so because the American people have sat back and allowed the Court to become the preferred instrument for social change in this country, definitely not what the Founders intended. As the article makes clear, the next President will likely have the opportunity to replace several Justices and thus set the political tone of the Court for 20-30 years. Fight’s on.

Seventeenth Amendment

As I’ve said in numerous essays, if we want to restore the balance of power that existed in Congress when the Constitution was put into operation in 1789, we must repeal the 17th Amendment. Senator Zell Miller tried to get a repeal amendment passed in the Senate each year he served, to no avail. Antonin Scalia was in favor of repeal. Now Utah has come out in favor, passing a resolution urging the state’s congressional delegation to push for an amendment. They face an uphill battle. Marshaling widespread support for repeal will be difficult; the Left, enamored by democracy and direct elections, will fight tooth and nail; and most Americans in the center don’t care enough to learn what all the fuss is all about. The 18th Amendment was recognized as a bad idea and repealed; we should repeal another bad one.

 Constituting America 90-Day Study

I hope everyone continues to enjoy Constituting America’s 90-Day Study. As the writers traipse though the history of presidential elections, they are about to leave the era of the Founders with the reelection of Founding Father James Monroe in 1820. Did you notice that instead of reading the essays you can also listen to them being read? Here’s the current one.

Upcoming Events.

Constitution Seminar for adults – 26 March. Mark your calendars; I’ll be holding a Constitution Seminar for adults 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.

Constitution Seminar for Youth – 9 April. The Constitution seminar scheduled for March 5th has been postponed to permit more 10-15 year olds to attend. Same time (9-5), same location (Foundation for American Christian Education classroom in Chesapeake, VA), same focus (Juliette Turner’s “Our Constitution Rocks”). Register through email to gary@constitutionleadership.org

Constitution Seminar – 16 April. On Saturday, 16 April, I hope to be in the Valley Forge, PA, area presenting another Constitution Seminar in conjunction with WFYL Radio. Valley Forge was CLI’s inaugural 1-day seminar, the success of which lead me to adopt the format as my standard. Save the date if you live in that area; details later.

The “Constitution’s Week in Review” is a project of the Constitution Leadership Initiative, Inc. To unsubscribe from future mailings by Constitution Leadership Initiative, click here.

Constitutional Corner – Replacing Scalia

Open as PDF

March 11th would have been Antonin Scalia’s 80th birthday.

When I read the news, I gasped. What a great loss for the world of conservatism in general and originalist jurisprudence in particular. No longer will we be able to chuckle at the cocky but witty barbs in Scalia’s dissents, or marvel at the lucidity of his majority opinions. But we must mourn quickly, for the forces of progressivism are chomping at the bit. The “Living Constitution” devotees are gathering their forces to assault the White House incessantly until the President relents and chooses one of their own as a replacement. Will he?

——

Antonin Scalia was confirmed to a seat on the Supreme Court on September 17, 1986 by a vote of 98–0! His confirmation followed close on the heels of a much more contentious confirmation of Chief Justice William Rehnquist, and the Senate Judiciary Committee was plumb worn out. President Reagan had appointed Scalia to the DC Circuit Court of Appeals only four years before and his short stint as an appeals court judge had quickly demonstrated his clear thinking and textualist approach to interpreting the law.

An early over-achiever (valedictorian of his high school and his class at Georgetown University), Scalia graduated magna cum laude from Harvard Law in 1960. He first worked for an international law firm, taught law at the University of Virginia, and then went into government service, first as General Counsel for the Office of Telecommunications Policy, then Chairman of the Administrative Conference of the United States and finally as Assistant Attorney General in the Office of Legal Counsel during the presidency of Gerald Ford. Following Ford’s defeat by Jimmy Carter, Scalia worked for a few months at the American Enterprise Institute before returning to the classroom, this time at the University of Chicago Law School. Ronald Reagan found him there and offered him a seat on the 7th Circuit court of Appeals, which Scalia turned down in hopes of obtaining an offer to the DC Circuit Court instead. As hoped, the offer soon came.

A review of Scalia’s dissenting and majority opinions is beyond the scope of this essay. I encourage you to refer to his Wikipedia page for a brief summary.

Although I support wholeheartedly Scalia’s textualist approach, which he describes quite well in his book: “A Matter of Interpretation,” where Scalia and I depart paths is over Natural Law. Scalia, being a textualist, was suspicious of any law he could not see, touch or read. Natural law, i.e., the “laws of nature” in the Declaration of Independence, is just that – it is law created by God which, not having been revealed (as in the Ten Commandments) must be discovered by inquiry and reason. In this speech from 2009, Scalia stated: “I believe in natural law, but I believe that in democratic political institutions it is up to the people to decide what they think natural law demands…. We all disagree on natural law, why say what a bunch of judges think is the answer?” Thus Scalia would not refer to natural law in a decision unless that natural law precept was already imbedded in a statute; this however removes it from the realm of natural law and brings it kicking and screaming into the realm of positive law. Once it becomes positive law, Scalia is willing to tell us what the words of the statute meant to those who ratified them.

One message comes through loud and clear in A Matter of Interpretation: the common exhortation that we must consider the “intent of the Framers” when seeking to understand a clause of the Constitution, is improper. The Framers (those who drafted the Constitution in Philadelphia) did not “make” the document, i.e., they did not bring it to life, the ratifiers in the thirteen ratifying conventions did that. To a textualist, what the Framers intended by their words is immaterial, what they achieved by those words is all that matters. And what they achieved is to be found in the understanding of the ratifiers. This was Scalia’s view.

And he nearly single-handedly brought such a view back to the Supreme Court after 40-50 years of absence. Scalia is dead, long live Scalia.

Now he must be replaced, or must he?

Let’s review: Article 3 of the Constitution creates “one supreme Court, and … such inferior Courts as the Congress may from time to time ordain and establish.” Article 3 goes on to describe the jurisdiction of the Court and a few specifics about judges, but that’s about it. The composition of the Supreme Court and all inferior courts is left completely to the discretion of Congress. If Congress wants the Court to remain at its present eight justices they could pass a law tomorrow so stating. Of course the President would veto it, but were there a veto-proof majority in Congress who liked the idea of eight justices, that’s the way it would be.

The very first Supreme Court, with John Jay as its Chief, had six justices, and got along until the justices complained of all the circuit riding they were required to do. Over the years, Congress has created a total of eleven Supreme Court seats, two of which were subsequently disestablished, leaving us with the present nine. And who can forget FDR’s attempt to pack the court with six additional justices (who would see FDR’s New Deal legislation in a more favorable light than the justices then on the Court).

Article 2 states that the President “shall have power” to make appointments, not that he shall make the appointments. The President could leave the seat unfilled until he leaves office next January. He won’t, of course. Scalia’s death provides the opportunity to cement the left-lean of the court. A nomination is imminent.

Finally, the President’s appointment power must utilize the “advice and consent” of the Senate. Ideally, the Senate would advise the President who they feel is best qualified for the job, the President would nominate someone from that list, and the Senate would confirm them. The ideal will not happen.

It is likely the Republican-dominated Senate will forward, or perhaps already has forwarded a list of conservative judges to replace the ideological “hole” left by Scalia, the list might even contain the name of someone who approaches Constitutional interpretation from the same textualist viewpoint as the departed Justice.

The President, however, will be under considerable pressure from the Left to nominate someone as liberal as can possibly be confirmed by a Republican-dominated Senate; practically speaking, that means a left-leaning moderate perhaps with other compelling “qualifications” such as being a woman, an immigrant, or both.

The Senate is under no compulsion to confirm any nominee. It may surprise you (it did me) to learn that rejection of Supreme Court nominations is not a recent phenomenon, though it may seem as such. The first Supreme Court nomination turned down by the Senate occurred in 1795, when George Washington nominated John Rutledge as Chief Justice. The Senate, considerably smaller then, rejected Rutledge by a vote of 10–14. Since then nine other Presidents have seen their nominees rejected by votes, and others “delayed indefinitely.” As this short essay outlines, there have been many contentious nominations in recent times.

The other question on everyone’s mind is whether the Senate will even hold confirmation hearings should the President forward the name of a moderate who is clearly qualified for the job. But consider “The Thurmond Rule.” In 1980, Sen. Thurmond proposed the following rule: “The party not occupying the White House shall block any and all judicial nominees brought before the Senate during a presidential campaign season.” Although unwritten, the “rule” is clearly understood, and has indeed been invoked by both Democrats and Republicans, sometimes as early as April or May before a presidential election, when the Presidency was held by the opposite party. In July of 2004, Senate Democrats filibustered four Circuit Court nominees. During the debate on these nominations, Senator Leahy (D) cited the ‘Thurmond Rule’ as part of the justification for their action. In 2008, now Judiciary Chairman Leahy refused to even consider several outstanding Circuit Court nominees.

Those with more time to spare might want to watch then Senator Joe Biden explain why it is ill-advised to replace a justice during a presidential campaign. He concludes that “Senate consideration of a nominee [during such times] is not fair to the President, the nominee, or to the Senate itself.” What goes around comes around.

The longest a seat on the Supreme Court has remained unfilled is 391 days;[1] thus there is ample precedent for leaving this one unfilled until a new President is selected. But the potential effect of leaving it unfilled will be 4-4 tie votes. These have the effect of leaving the lower court ruling intact, which may be good or bad. The lower court ruling then becomes “law” for all the states which comprise that circuit.

Perhaps more important than this immediate appointment will be the 3 or 4 appointments the next President is likely to make, as the ever-aging Justices take retirement, or follow Scalia. The next President’s appointments could set the tone of the Court for the next 20-30 years, and thus determine whether the U.S. adheres to the Founders’ plan (what’s left of it) or drives off further into social experimentation.

That there is this much drama over the selection of a Supreme Court Justice reveals much.  This Daily Signal writer thinks the suspense over this issue proves that we have created a far-too-powerful Supreme Court. There is no doubt that we have. The American people have lost track of many of our foundational principles, among them the nature of law and the purpose of government. We must re-learn these principles before it is too late. Yet, we also must face the fact that the average American is oblivious to the true effect of the Court or even who sits on it. According to a poll taken in 2012, only 20% of Americans could name Chief Justice John Roberts, 2/3 could not name a single justice on the court. It is sad to confront this reality: While the average American could care less about the Court, other Americans are intent on using the Court to their advantage. And they have, to great effect. Once the Court staked itself out as “supreme in the exposition of the law of the Constitution,”[2] various advocacy groups quickly figured out that what they could not achieve legislatively could nevertheless be achieved judicially.

In his 1833 work: Commentaries on the Constitution, Associate Justice Joseph Story wrote: “The truth is, that, even with the most secure tenure of office, during good behavior, the danger is not, that the judges will be too firm in resisting public opinion, and in defence of private rights or public liberties; but, that they will be ready to yield themselves to the passions, and politics, and prejudices of the day.” (emphasis added) That is what the Court has become: an expression of the passions and politics and prejudices of the day. This must stop.

Let me close by describing a nightmare scenario. I can’t take original credit for this, on 29 February I attended a Federalist Society presentation in Norfolk, VA, by Professor Josh Blackman, who teaches at South Texas College of Law. Professor Blackmon warned of this: What if the American people, fed up with the intransigence of Republican Senators over stonewalling the President’s nominee to replace Scalia, decide to elect enough Democrat Senators (1/3 of the Senate will be up for re-election) to place Democrats once again in control of that House of Congress. The new Senate takes their seats on January 3, 2017. From then until January 20th, Barack Obama will once again enjoy a same-party Senate and could nominate nearly anyone he wanted, the more liberal the better, and Republicans could only watch in despair. I told you it was a nightmare scenario. Republicans could lose the Presidency in the next election; that will not be as damaging as losing the Presidency and Senate.

We will be discussing this topic on “We the People, The Constitution Matters” on WFYL radio Friday morning, 4 March, 7-8am. You can “Listen Live” at www.1180wfyl.com, or, if you are fortunate enough to live in the station’s broadcast area, on the radio as you drive to work that morning.

You can later download the podcast of the show and listen at your leisure, or you can listen to one of the rebroadcasts during the weekend. I would love to hear your ideas on this topic. Hope you’ll join us.

“Constitutional Corner” is a project of the Constitution Leadership Initiative, Inc. To unsubscribe from future mailings by Constitution Leadership Initiative, click here.

[1] In 1969-1970, when Associate Justice Abe Fortas was forced to resign, replaced by Harry Blackmun of Roe v. Wade fame.

[2] So stated in Cooper v. Aaron (1958).

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.

The “Constitution’s Week in Review” is a project of the Constitution Leadership Initiative, Inc. To unsubscribe from future mailings by Constitution Leadership Initiative, click here.

[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)