The strange confusion of Justice O'Connor

Retiring Supreme Court Justice Sandra Day O'Connor participated in a panel discussion in Tempe on Monday. According to the Associated Press account, she warned that judicial independence was under attack.

Death threats have becoming increasingly common, while proposals from politicians and interest groups threaten to restrict courts' jurisdictions, O'Connor said during the discussion at Arizona State University's law college.

"The concept of retaliation against the courts for past federal court decisions is very troublesome," she said.

Without a transcript of Justice O'Connor's remarks it would not be fair to conclude that she equated death threats against judges with proposals from politicians to restrict courts' jurisdictions.

It would certainly be "troublesome" if that's what she said.

Why? Because a death threat against a judge is a crime, while an attempt by Congress to restrict federal courts' jurisdiction is a constitutional power.

No kidding, it really is.

Article III, Section 2 of the Constitution gives the U.S. Congress the power to make "exceptions" to the appellate jurisdiction of the Supreme Court, meaning Congress can deny the Court the power to review certain kinds of cases.

What Justice O'Connor calls a threat to judicial independence, the framers called a check on the power of the Supreme Court.

The Supreme Court spends a lot of time finding rights in the Constitution that cannot be seen with the naked eye. The exceptions clause, on the other hand, is right there in plain English.

"Shall the more doubtful and indefinite terms be retained in their full extent," James Madison once asked in frustration, "and the clear and precise expressions be denied any signification whatsoever?"

Apparently it's not a new problem.

Recently the Supreme Court held an event in honor of Constitution Day, the new holiday imposed by Congress in an effort to get American kids to learn more about their government. Justice O'Connor and Justice Stephen Breyer met with fifty students from the Philadelphia area. The Associated Press reported this scene:

During a candid conversation about rights, federalism and the separation of powers, many students were surprised to see the justices looking at personal copies of the Constitution.

"Shouldn't they know the Constitution by now?" [Masterman High School teacher Steve] Gilligan recalled his students asking. "But then they found it comforting that the justices were referring to the original documents. They liked that, because it showed the justices remember where their power comes from."

Hmmm. Judge for yourself.

Meanwhile, Senate Judiciary Chairman Arlen Specter reportedly asked President Bush to delay the nomination of a replacement for Justice O'Connor until the end of the Supreme Court's term in June. He said he spoke to Justice O'Connor about staying for another year and she's prepared to do that.

Senator Specter said he would like the country to have a full year to get adjusted to Chief Justice John Roberts before the next nomination is attempted.

This is another indication that the Supreme Court has usurped the policymaking powers of Congress and the states.

It is now more disruptive and traumatic to replace a Supreme Court justice than it is to elect a new president or throw a party out of power in Congress. That's because the court is deciding policy issues, and while another election is always around the corner, a Supreme Court justice is for life.

The solution is not term limits for justices, but rather, holding the Supreme Court to the constitutional limits of its power. The exceptions clause didn't get into the Constitution by accident. The framers knew what they were up against.

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Source notes:

The exceptions clause, from Article III, Section 2: "In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." Read the U.S. Constitution online at http://www.archives.gov/national-archives-experience/charters/constitution_transcript.html.

For more on the exceptions clause, see Raoul Berger, Congress v. The Supreme Court 1-4 (1969). See also Raoul Berger, "Insulation of Judicial Usurpation: A Comment on Lawrence Sager's 'Court-Stripping' Polemic," 44 Ohio State Law Journal 611-647 (1983), reprinted in Raoul Berger, Selected Writings on the Constitution 230-262 (1987).

The Madison quotation is from Federalist No. 41.

Read a legal thriller set in a future America where the Supreme Court is held to its constitutional limits: Pick up The 37th Amendment today.

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Government by peek-a-boo

Chief Justice-nominee John Roberts won't say what his views are on abortion, assisted suicide, torture of terror suspects, or the constitutionality of "under God" in the pledge of allegiance. He won't answer any question on any subject that might possibly come before the U.S. Supreme Court.

Judge Roberts is perfectly willing to tell you anything you want to know as long as it's totally irrelevant to anything he might do once he's in power for life as Chief Justice of the United States. His favorite movies are North by Northwest and Doctor Zhivago.

Enjoying the hearings so far?

Well, it's not Judge Roberts' fault. This fine mess is the result of the Supreme Court's eighty-year journey off the rails of the Constitution. The view that it's unethical for a judicial nominee to express his views on policy is a sweet remnant of an earlier time when it was considered unconstitutional for judges to make policy.

The framers of the Constitution deliberately excluded the judiciary from policymaking, something the Supreme Court has been more or less ignoring since 1925, when the justices cut themselves a loophole and then spent the rest of the century bickering over how wide it should be.

The loophole is called the Incorporation Doctrine. It's the view that some rights are so fundamental to the idea of due process of law that the states may not violate them without a very good reason.

It's not widely known that the Bill of Rights, the amendments to the Constitution that guarantee freedom of speech and the rest of the list, did not apply to the state governments, only to the federal government. The Constitution left the states completely free to restrict freedom of speech and the press, limit jury trials, search people's homes without warrants, and compel people to testify against themselves.

James Madison tried to get Congress to approve an amendment that would have prohibited states from violating "the equal rights of conscience, or the freedom of the press, or trial by jury in criminal cases." The proposed amendment was voted down in the Senate and never became part of the Constitution.

It was in the 1925 case of Gitlow v. New York that the Supreme Court first suggested that some rights were so important that they ought to apply to the states through the Fourteenth Amendment, which bars any state from denying due process of law to any person.

Where the thing gets sticky is in the selection process. Freedom of speech and the press made the cut in the late 1920s. The right to an attorney in capital cases made the list in 1936, but it wasn't extended to all criminal cases until 1963 and if you thought you had a constitutional right to a jury trial you were wrong until 1968.

This picking-and-choosing business didn't sit well with everybody. Read the appendix to The 37th Amendment to see the justices attacking each other like angry cats in memos and opinions.

It was plain from the beginning that the Supreme Court couldn't require the states to "make no law" restricting freedom of speech, as the First Amendment commands Congress. What about slander and libel? What about incitement to riot? What about disturbing the peace, panhandling, obscenity, burning the American flag?

This is where the thing gets stickier.

The Supreme Court invented a series of tests and standards to judge whether a state's law restricting a fundamental right was allowable or not. For instance, the "strict scrutiny" test, which is applied to some rights and not others, requires the state to show a "compelling" reason that the law is necessary. A rational reason will not do.

Nothing but a subjective personal value judgment separates a compelling reason from a rational reason. Take abortion. Is a state's interest in protecting unborn life compelling or only rational? Compelling to whom? If it's compelling to five sitting justices, then a woman's fundamental right to privacy (if the justices have agreed that it is a fundamental right) may be infringed by a state law. Is it compelling to Chief Justice-nominee John Roberts? He won't tell us.

The story is the same on less emotional matters like police searches. The Fourth Amendment prohibits "unreasonable" searches and seizures. Before the Supreme Court "incorporated" the Fourth Amendment, the people of each state decided what limits they wished to place on local police. After the Incorporation Doctrine, the U.S. Supreme Court became the only authority on what is reasonable. What does Chief Justice-nominee John Roberts think is reasonable? He won't tell us.

What are a state's compelling interests on the life-and-death issues of capital punishment, assisted suicide, detention of terror suspects? Five justices will decide for all fifty states. Where does Chief Justice-nominee John Roberts stand? He won't tell us.

We'll all find out together.

This embarrassment is brought to you by the Incorporation Doctrine, invented by the Supreme Court behind the closed doors of the justices' conference room. It has never been debated or approved by the people of the United States or their elected representatives. It is the reason the most important policy decisions in the nation's life are made by the tie-breaking vote of the justice appointed by the president who happens to be in office when someone on the Court can no longer show up for work.

It's not in the Constitution, and it ought to be replaced by a series of amendments that bring the document up to date in the way the framers intended.

Otherwise we deserve what we get: government by peek-a-boo.


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For complete source notes, please see the appendix to The 37th Amendment. To read more about the constitutional amendments we need, read A Retirement Plan for Sandra Day O'Connor and Why There is No Constitutional Right to Privacy, and How to Get One.

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Everything you need to know about the Commerce Clause

Senator Pat Leahy went right to it in his opening statement Monday at the confirmation hearings for Supreme Court nominee John Roberts. We will want to know the nominee's views, the senator said, on the commerce clause.

Why does it matter? Because the commerce clause has been used by the federal government to give itself the power to do all kinds of things that are not authorized by the text of the U.S. Constitution.

Or, as Senator Ted Kennedy put it on Monday, the issue is "whether the Supreme Court will preserve the gains of the past."

Here's the key to understanding the U.S. Constitution: the states came first. When the representatives of the states wrote and ratified the Constitution, they were adamant that it not give the national government one bit more power than was absolutely necessary. The idea was to avoid the chaotic disagreements they were experiencing under their first try at a union, the very unsatisfactory Articles of Confederation.

"The powers delegated by the proposed Constitution to the federal government are few and defined," James Madison explained, "Those which are to remain in the State governments are numerous and indefinite."

Bet you didn't know that. Today we live under a federal government that uses phrases like "give the states more power," as if it was theirs to give.

After the Civil War, the Constitution was amended to prohibit the states from denying any person due process of law or the equal protection of the laws. But the men who wrote and ratified that amendment, the Fourteenth, did not intend by those words to ban racial discrimination.

During the debates over the Fourteenth Amendment and the concurrent Civil Rights Bill of 1866, the Congress cut this language from the bill: "There shall be no discrimination in civil rights or immunities among the inhabitants of any State or Territory of the United States on account of race, color, or previous condition of slavery...."

Once again, don't miss this: They cut that language from the bill. The lawmakers were worried that the courts might use those words to strike down racial discrimination. And these men were from the Northern states (the Southern states were not invited to participate). They made sure the states retained the authority to ban interracial marriage, exclude blacks from jury service, and operate segregated schools.

That's what Constitution still says. It has never been amended to ban racial discrimination.

So when the Congress passed civil rights legislation in the 1960s that banned the states from discriminating on the basis of race, they had no constitutional authority to do so.

This is where the commerce clause enters the picture: Congress cited the commerce clause as the basis for its power to ban racial discrimination at hotels and lunch counters and in all other businesses.

If the Constitution were amended to ban racial (and gender) discrimination, as it should have been and still ought to be, discriminatory state laws would be unconstitutional without a stretched-out interpretation of the commerce clause.

Once the interpretation of the commerce clause was expanded, Congress began to use it as a license to legislate on all kinds of things that the Constitution does not permit the national government to govern.

The late Chief Justice William Rehnquist incurred the wrath of Congress when he led the court to strike down the Violence Against Women Act and another law banning guns near schools. Congress had claimed the authority to legislate in these areas under the commerce clause. No, said Chief Justice Rehnquist, those laws are unrelated to interstate commerce and they tread on the constitutional powers that are reserved to the states.

Senator Arlen Specter is still steaming over that. He thinks the commerce clause is the source of Congress' power to legislate.

Sure, now. But that's not the deal we signed.


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Read more about it, with complete source notes, in the appendix to The 37th Amendment, "How the First Amendment Came to Protect Topless Dancing."

Medals, not 'counseling'

The New York Times and the Associated Press report that two Navy helicopter pilots were "counseled" for answering an emergency rescue call from the Coast Guard in New Orleans instead of returning to their base immediately after completing their assigned mission of delivering supplies to three destinations in Mississippi.

Lt. Matt Udkow and Lt. David Shand were minutes away from New Orleans on August 30 -- a day after Hurricane Katrina made landfall -- when they picked up a Coast Guard radio call asking for helicopters to assist in emergency rescues. Read this account from the Associated Press:

It took only minutes for the H-3 helicopters to fly to New Orleans, where Udkow's crew plucked people off rooftops. Shand landed his helicopter on the roof of an apartment building where more than a dozen people had been stranded. When he returned to get more, two crew members entered the building and found two blind residents and led them to the helicopter.

The pilots saved the lives of 110 people and returned to their base by nightfall, as required by regulations. The next morning, they were called in to meet with Cmdr. Michael Holdener, who "counseled" them that their actions were unacceptable, and that they should have ignored the emergency rescue call and returned directly to their base.

Lt. Shand was given some involuntary time off and Lt. Udkow was assigned to work in a kennel in Pensacola that is housing the pets of military personnel who have been evacuated.

Cmdr. Holdener later explained to the New York Times, "We all want to be the guys who rescue people. But they were told we have other missions we have to do right now and that is not the priority."

President Bush doesn't come to me for advice, but here's some anyway: Lt. Matt Udkow and Lt. David Shand deserve medals. Save the counseling for Cmdr. Holdener and anyone else on the government payroll who thinks rescuing Americans from rising water in New Orleans is "not the priority."


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Hurricane Katrina and the perils of bullshit

The catastrophe in New Orleans was predicted in such precise and exquisite detail by so many people in so many places that it must be classified not as a natural disaster but as a national disgrace.

It was a known fact that flooding in New Orleans was unlike flooding in any other U.S. city, because once the pumps that keep the city dry are submerged in water, they fail. The back-up plan is this: Everybody drowns.

It doesn't matter if the flooding is caused by the direct hit of a hurricane, by a levee break, by a storm surge, or by a downpour. If the pumps are submerged they fail, the water level rises, and everybody drowns.

Criticism has been leveled at local officials who did not drive into poor neighborhoods with buses and bullhorns and force everyone to evacuate as Hurricane Katrina approached. But it is easy to imagine how well that would have gone over if local officials had done it three or four times a year, as prudence would dictate, whenever a heavy storm threatened to flood the city. Total evacuation of New Orleans was never a realistic possibility although it was the city's only plan in the event of a major hurricane.

The real survival plan for New Orleans was killed in Washington. The Army Corps of Engineers and everyone who approved their budget knew the levees that protected New Orleans were not capable of withstanding anything above a category 3 hurricane. They saw simulations of the catastrophic destruction and high death toll that would result if a powerful hurricane hit the city. Yet the government never made it a priority to upgrade and strengthen the levee system before the worst happened.

When Katrina hit, the brand new Homeland Security Department issued the first-ever declaration of an "incident of national significance," triggering our new "national response plan."

"Essentially," the Associated Press reported on August 31, "the plan funnels help from all federal agencies through a single point of contact, a reform demanded after the September 11, 2001, terror attacks."

It will be months or, if the Bush administration can help it, years before we know how many truckloads of aid and teams of emergency workers were stopped in that bureaucratic bottleneck. A hint of what is to come surfaced in a Meet the Press interview on September 4, when Jefferson Parish President Aaron Broussard angrily reported that Wal-Mart had sent three truckloads of water to New Orleans, only to have them turned away by FEMA officials who said they were not needed.

What has happened to FEMA, once a model of compassion and efficiency? Today the Los Angeles Times described how the Federal Emergency Management Agency's budget, authority and cabinet-level status were reduced as part of the massive government reorganization that created the Department of Homeland Security. FEMA "has suffered budget cuts, the elimination or reduction of key programs and an exodus of experienced staffers," the Times reported.

It appears that no one in the Homeland Security Department -- the single point of contact for disaster response -- was prepared for flooding in New Orleans once the hurricane veered to the east and dealt the city only a glancing blow. "Tuesday morning, I opened newspapers and saw headlines that said 'New Orleans Dodged The Bullet,'" Homeland Security Secretary Mike Chertoff told Meet the Press yesterday, repeating the administration's story that no one could have foreseen a storm surge and a levee break after the hurricane had passed.

Actually, quite a large number of people foresaw it, but none of them worked for the Department of Homeland Security.

The road to hell is paved with good intentions, and sometimes with bullshit.

President Bush decided after the terror attacks of 9/11 to stage a showy reorganization of the government, even though absolutely nothing that happened on September 11th would have been prevented by the newly-constructed Department of Homeland Security, or, for that matter, by the government's takeover of airport security.

The attacks could have been prevented with the agencies that existed at the time if only people had read the memos and the intelligence, translated the intercepts, and not been afraid of being called racist or undiplomatic for investigating Saudi and Egyptian nationals in U.S. flight schools.

Furthermore, the worst damage on September 11th was caused by the faulty premise that hijackers always set the plane down safely and negotiate for their demands. It may still be possible today for terrorists to get on a flight and hijack it with a smuggled weapon, but it will be a cold day in hell when the passengers sit quietly while they fly the plane into a New York City landmark.

Rather than fire the intelligence professionals who failed or admit that anyone made a wrong call, President Bush declared that the Coast Guard, the Border Patrol, FEMA and all the agencies involved in security were inconveniently located in different departments of the government.

At great expense and with immense bureaucratic upheaval, President Bush relocated massive chunks of the government into the new Homeland Security Department. This would allow him, he said at the time, to make one call to one person and demand to know how we were doing.

When Hurricane Katrina slammed into the Gulf Coast, it immediately became clear that we were not doing very well.

After the Northridge earthquake in California in 1994, FEMA did spectacularly well. We had a government agency that was working. Today we have a government agency that takes a week to get bottled water to New Orleans -- and tells Wal-Mart to back off because they think they've got it covered.

Speaking of the private sector, the L.A. Times reported one more interesting scene from the streets of New Orleans. A reporter met up with members of an Israeli security company that had been hired to protect Audubon Place, a gated community off St. Charles Avenue.

This is where the president's reorganization has led us. The Homeland Security Department has successfully consolidated control of all the disaster-relief resources in America. So if you need help, you have to call another country.

A national disgrace.


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