Balkinization  

Monday, November 13, 2017

What is the Constitutional Core?

Gerard N. Magliocca

Yesterday The New York Times ran an editorial entitled "President Trump, Please Read the Constitution." The editorial listed various allegations of unconstitutional conduct by the President, and then stated: "But his most frequent target is the Bill of Rights, which protects Americans against the federal government and, through the 14th Amendment, against the states." With a book coming out soon on the Bill of Rights (Amazon has added the "Look Inside" feature, so you can see more), I heartily endorse the editorial's sentiments.

What I found interesting, though, is that next to the editorial the Times chose to reprint the entire Bill of Rights along with the Reconstruction Amendments. This gets at one of the central questions posed by my book, which is why do we call the first ten amendments and only the first ten amendments the Bill of Rights? As the book explains, there were jurists and elected officials who said in the past that the Fourteenth Amendment was part of the Bill of Rights, in part to emphasize the importance of that text. Likewise, many state bills of rights include the Thirteenth Amendment as part of what they see as fundamental. At the national level, though, we don't think of the Thirteenth Amendment so much. And the right to vote, which certainly outranks many of the guarantees in the first set of amendments, is definitely not considered part of the Bill of Rights. This matters. Consider how the Supreme Court might view the pending case on partisan gerrymandering differently if the right to vote was typically referred to as part of the Bill of rights.


Comments:

The Constitution offers three limits on government power: (1) a representative democracy choosing our government, (2) enumerated powers, and (3) a Bill of Rights protecting our liberties from those enumerated powers.

The 13A and 14A(1) would definitely fall under the definition of a Bill of Rights. The remainder of the 14A and the 15A further define our representative democracy.




 

As an aside, the NYT editorial is willful ignorance of our Constitution on parade.

Foreign aliens have no rights under our Constitution.

Barring immigration into this country based on religion during a religious war neither establishes a state religion nor prevents foreign aliens from exercising their religion in their home countries.

A politician telling his supporters he will pay for their legal bills if they use force to stop thugs paid for and sent by his opponent to engage in violence is not a government denial of due process.

Killing enemy combatants with whom we are at war is not a denial of the due process rights of those who happen to be American citizens and, again, foreign aliens have no constitutional rights.

Coercive interrogation is not torture under treaty or statute.

Arguing that aliens voted in violation of the Constitution is not itself a violation of the Constitution.

Finally, Trump's campaign comments which did call for a violation of the Constitution (or at least how it is currently interpreted) is protected by the First Amendment and not an act violating the Constitution.

However, the courts which enjoined Trump's perfectly constitutional travel suspensions did violate both Article II and III of the Constitution.


 

Once again SPAM defends the person he referred to over and over again as a fascist during the 2016 campaign while shilling for the Cruz Carnival Canadacy. But SPAM professes the opinions of a rural DUI criminal defense attorney, dealing in plea agreements in police courts. Of course SPAM, as he claims for Trump, has the benefit of the 1st A in certain regards. But SPAM took an oath to defend the Constitution but occasionally pushes the insurrectionist view of the 2nd A.

By the Bybee [expletives deleted], Trump as President is to take care that America's laws are executed. At some point, Trump should be issuing his National Security Strategy. Consider the trip to Asia Trump is finishing up. Back in Sep./Oct. of 2002, George W. Bush's National Security Strategy declared that America is No.1 economically, militarily and politically, and that America would do what it takes to maintain these No. 1 positions. Will Trump? Upon Trump's return we'll be getting assessments on the foreign policy aspects of this trip. Consider Trump's Putin pirouettes in recent days. Consider Trump's deference to China's growth. Consider Trump's fear of bringing up human rights issues with Duterte. It looks more like Trump is taking care of the Trump Empire rather than the Constitution.
 

We call the first ten amendments "the Bill of Rights", because that's what it was called at the time it was ratified. Why not subsequent amendments bearing on rights?

Might be something as silly as the fact that they're not consecutive with the first ten.
 

Shag: Once again SPAM defends the person he referred to over and over again as a fascist during the 2016 campaign...

The facts that Trump campaigned like a fascist and has not violated the Constitution are not mutually exclusive.

Back in Sep./Oct. of 2002, George W. Bush's National Security Strategy declared that America is No.1 economically, militarily and politically, and that America would do what it takes to maintain these No. 1 positions. Will Trump?

Unlike his predecessor, Trump has yet to damage our economic or military standing in the world. Indeed, the economy is improving somewhat and Trump increased military spending. Whether other leaders like Trump is irrelevant.
 

SPAM's "Unlike his predecessor, ... " skips over the 8 years of Bush/Cheney that SPAM was in obscenely in lockstep that created the mess in Mesopotamia, increased the deficit with two tax cuts and closed out with its Great Recession of 2007/8, gumption this on Trump's predecessor who was reelected for a second term. Recall Trump's bully approach with NoKo, which didn't seem to work. Now Trump looks for not only China's help with the NoKo problem but now seeks Putin's help as well. Now if Putin were to help, what quid pro quo might Trump try to provide? What our allies - and our enemies - think of Trump is indeed relevant. China will not be thwarted in its Asia influence because of Trump's decisions at the expense of America's economy. And SPAM, it is NOT a fact, but rather your opinion, that Trump has not violated the Constitution during his presidency. SPAM has swallowed the leader.
 

"The remainder of the 14A and the 15A further define our representative democracy."

This is only if you don't see the right to vote as an individual's right even though it's explicitly mentioned as such.

"Foreign aliens have no rights under our Constitution."

Atextual nonsense. The 14th Amendment specifically mentions 'citizens' but uses the term 'any person' as protected by the due process and equal protection clauses.

"Barring immigration into this country based on religion during a religious war neither establishes a state religion "

1. We are in no religious war. No declaration or AUMF mentions religion at all.

2. It establishes a state religion in that it favors and disfavors people based on their religion.

"Coercive interrogation is not torture under treaty or statute."

Yes it is torture, and when it has been done to our soldiers by enemies we've rightly denounced it as such with outrage. But for many movement conservatives today there are no principles other than tribalism-look at the party of values voters in Alabama recently quoted that they'd vote for Moore even if stories of his pedophilia were true.




 

"We call the first ten amendments "the Bill of Rights", because that's what it was called at the time it was ratified. Why not subsequent amendments bearing on rights?

Might be something as silly as the fact that they're not consecutive with the first ten."

That would make some sense if the 10th Amendment referred to rights at all, but it of course does not.
 

The “foreign aliens have no rights” stuff is odd. Weren’t resident aliens capable of voting at different periods of our history?

Seems weird to allow one and exclude the other.
 

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BD: "The remainder of the 14A and the 15A further define our representative democracy."

Mr. W: This is only if you don't see the right to vote as an individual's right even though it's explicitly mentioned as such.


I understand the 15A uses the term "right" to describe the positive power to vote. Rights as used Bill of Rights are negative guarantees of freedom.

BD: "Foreign aliens have no rights under our Constitution."

Mr. W: Atextual nonsense. The 14th Amendment specifically mentions 'citizens' but uses the term 'any person' as protected by the due process and equal protection clauses.


By foreign aliens, I mean foreign citizens who live overseas, as opposed to resident aliens.

BD: "Barring immigration into this country based on religion during a religious war neither establishes a state religion "

Mr. W: 1. We are in no religious war. No declaration or AUMF mentions religion at all.


Islamic fascism is waging a religious war against us. It does not matter whether we are waging one in return.

2. It establishes a state religion in that it favors and disfavors people based on their religion.

I am curious. Barring Islamic fascists from invading the country establishes what state religion in particular? Reform Druidism?

BD: "Coercive interrogation is not torture under treaty or statute."

Mr. W: Yes it is torture, and when it has been done to our soldiers by enemies we've rightly denounced it as such with outrage.


To start, the GC prohibits "coercive interrogation" against lawful combatants like our soldiers held as POWs. Thus, enemies which use such interrogation against our troops are breaking the GC.

Torture is the intentional infliction of severe physical pain or prolonged mental pain. This is more the style of our enemies who almost always do not give a damn about our GC. The NVA beating the hell out of and dislocating John McCain's shoulders fits in this category. The coercive interrogation we use in SERE training does not come close.
 

"I understand the 15A uses the term "right" to describe the positive power to vote. Rights as used Bill of Rights are negative guarantees of freedom."

This hang up you have differentiating between positive and negative rights is yours, not the Constitutions (not to mention parts of the Bill of Rights have positive aspects-the right to counsel, the right to speech when using a public forum, etc).

"By foreign aliens, I mean foreign citizens who live overseas, as opposed to resident aliens."

I see, but doesn't really matter since Presidents including Trump advocate policies such as detainment which affect all three, and the first under US jurisdiction.

"Islamic fascism is waging a religious war against us. It does not matter whether we are waging one in return."

Of course it does, we're governed by our values and rules, not theirs.

"Barring Islamic fascists from invading the country establishes what state religion in particular?"

The First Amendment bars the favoring or disfavoring of religions.

"The coercive interrogation we use in SERE training does not come close."

Again, ridiculous. When the NVA and the North Koreans waterboarded our troops people like you rightly cried foul. Simulated drowning surely qualifies as 'severe physical pain or prolonged mental pain,' in fact the entire point of SERE training is to simulate torture to train to resist it.

 

Mr. W: This hang up you have differentiating between positive and negative rights is yours, not the Constitutions

The concept of negative rights hardly originates with me.

Due process is meant as a check on the government taking your life, liberty or property. Once again, a negative right.

BD: "By foreign aliens, I mean foreign citizens who live overseas, as opposed to resident aliens."

Mr. W: I see, but doesn't really matter since Presidents including Trump advocate policies such as detainment which affect all three


All three?

As to detainment, the ahistoric and baseless Boumediene decision extending habeas corpus overseas has not been applied outside of Gitmo. I suspect the Courts quickly decided making POW determinations was beyond their competence.

"BD: Islamic fascism is waging a religious war against us. It does not matter whether we are waging one in return."

Of course it does, we're governed by our values and rules, not theirs.


The enemy is obviously not governed by our rules. Their combatants are Muslim and they wage war against anyone who does not share their faith, the first being key for the purposes of controlling our borders.

"BD: Barring Islamic fascists from invading the country establishes what state religion in particular?"

Mr. W: The First Amendment bars the favoring or disfavoring of religions."


The Establishment Clause we were discussing bars Congress from forming a state religion, which, as I noted, does not occur under a hypothetical prohibition of Muslim terrorist immigration.
 

I realize the term "Bill of Rights" in general usage for somewhat interesting reasons was not used much after the ratification of the first ten amendments until the 20th Century. This interests the professor though some of this arguments expressed online in blog posts to me weren't convincing as to original usage.

But, it makes sense to name the "list" (bill) of rights ratified as a bloc by one name like that. Still, the term is repeatedly used in a loose fashion. The 14A is repeatedly treated as part of it. Of course, application of the "1A" to state governments is actually a 14A enterprise most of the time. The famous phrase:

"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."

The "other fundamental rights" repeatedly are applied to non-enumerated rights. The general "right to liberty" [see due process] at times included to the right to vote, said to be necessary for the very protection of rights.
 

A general statement.

The issue of rights of foreigners not on U.S. soil/jurisdiction involve a range of things -- constitutional, statutory, treaty-related and probably other things.

There is also the issue of government power. Governments 'may of right do' [as the Declaration of Independence says] things. There are limits there under international and natural law [which our heritage respects; if there was no positive law, certain things still are wrong]. Plus, there are limits under the Constitution.

Congress shall make not law respecting the establishment of religion. They don't have the power to do so to start a church in China. This will burden rights of citizens at home, but it generally is also something Congress has no power to do. The principle applies to the executive and judiciary in various ways.
 

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"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."

If the purpose of a Bill of rights is to prohibit our representative democracy from abridging our liberty, how are rules governing the operation of that representative democracy part of the Bill of Rights?

A representative democracy and a Bill of Rights are two different means of accomplishing the same end of limiting government power.
 

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"The concept of negative rights hardly originates with me."

It appears nowhere in the text of the Constitution, which refers to what you distinguish as 'negative' and 'positive' rights by the same term, simply 'rights.'

"All three?"

Yes.

" the ahistoric and baseless Boumediene decision"

I love when movement conservatives say we are in a brand, neverbeforehand, new 'post-9-11' world facing a unique enemy in a unique conflict and then think calling a judicial ruling aiming to address that situation 'ahistorical' is dispositive of something.

"The enemy is obviously not governed by our rules."

So what? To repeat, we are governed by our rules and values. And we are in no religious war, no declaration or aumf says otherwise.

"The Establishment Clause we were discussing bars Congress from forming a state religion"

Yes, and favoring or disfavoring a religion is a violation of that. Congress can no more print and hang banners on all federal buildings saying 'Islam sucks' than it can ones that say 'Christianity rules' without running afoul of the Establishment cause (though one could simplistically ask 'well, what state religion does the first banner establish?').

 

"If the purpose of a Bill of rights is to prohibit our representative democracy from abridging our liberty, how are rules governing the operation of that representative democracy part of the Bill of Rights?"

Considering that in the very first Amendment of the classic Bill of Rights there is protection of the Freedom of Speech and Press, which were certainly, whatever else may be included under their protection today, considered to be critical parts of the 'rules governing the operation of that representative democracy' that we inhabit, this is particularly silly.
 

Even if one were to accept the distinction of 'positive' and 'negative' rights as a distinction with a difference, one must wonder how the right to petition the representatives of your government is the latter but the right to vote for the representatives of your government is the former.
 

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BD: "The concept of negative rights hardly originates with me."

Mr. W: It appears nowhere in the text of the Constitution, which refers to what you distinguish as 'negative' and 'positive' rights by the same term, simply 'rights.'


Negative rights is simply a description of the function of the first ten amendments commonly referred to as the Bill of Rights. This is hornbook constitutional theory. The text does not need to include a description in order for the description to be correct. For example, you can use the term colors to describe a list including the words "red, white and blue" even though that list does not include the word "colors."

BD: " the ahistoric and baseless Boumediene decision"

Mr. W: I love when movement conservatives say we are in a brand, neverbeforehand, new 'post-9-11' world facing a unique enemy in a unique conflict...


Over the several hundred years of the existence of habeas corpus, there was zero precedence extending that right to wartime foreign enemies and multiple English cases expressly denying the right to them. Over those several hundred years, the armies of England and the US warred against pirates, brigands and all manner of terrorists and imprisoned them overseas. The Boumediene Court did not address any new situation, rather it rewrote a near millennia of law to unconstitutionally assume a power expressly granted to Congress and the President.

Ahistoric and baseless are correct descriptions for the awful Boumediene decision.

BD: "The Establishment Clause we were discussing bars Congress from forming a state religion"

Mr. W: Yes, and favoring or disfavoring a religion is a violation of that


The Establishment Clause was adopted to prevent Congress from forming a US version of the Church of England. The Lemon Court's transformation of that provision to create a more comprehensive "wall between church and state" has no basis in the text or the history of the 1A and instead takes a snippet out of context from a private Jefferson letter to justify a legal fiction.

BD: "If the purpose of a Bill of rights is to prohibit our representative democracy from abridging our liberty, how are rules governing the operation of that representative democracy part of the Bill of Rights?"

Mr. W: Considering that in the very first Amendment of the classic Bill of Rights there is protection of the Freedom of Speech and Press, which were certainly, whatever else may be included under their protection today, considered to be critical parts of the 'rules governing the operation of that representative democracy' that we inhabit, this is particularly silly.


The operation of our representative democracy concerns qualifications of voters and candidates, the conduct of elections, terms of office, etc. While freedom of speech is beneficial to casting an informed vote, it is a stretch to claim this negative right concerns the operation of our representative democracy. This is basically the distinction between the procedural and the substantive.

Even if one were to accept the distinction of 'positive' and 'negative' rights as a distinction with a difference, one must wonder how the right to petition the representatives of your government is the latter but the right to vote for the representatives of your government is the former...

The distinction is not difficult.

Negative rights deny the government power to take away our liberty. In this case, Congress is forbidden from abridging our right to speak freely.

Positive rights grant us (or the government on our behalf) some power. In this case, the right to vote is the power to choose the government.
 

"The distinction is not difficult."

In this case it's nonsense. Like I said, the right to petition (which is separably listed from free speech) your representative is something distinct from the right to choose them? It's apt you talk of red, blue and white, since the distinctions between them are essentially meaningless and they are all the same thing (colors).

"While freedom of speech is beneficial to casting an informed vote, it is a stretch to claim this negative right concerns the operation of our representative democracy."

A stretch the Founders and ratifiers of the Free Speech clause made explicitly in proposing and ratifying it.

"The Establishment Clause was adopted to prevent Congress from forming a US version of the Church of England."

Again, under your truncated view the US government could tax citizens and use the proceeds to print Bibles without violating the Establishment Clause, since, after all, that wouldn't create a US version of the Church of England. But that's exactly what the Founders were worried about re: separation of church and state.

"The Boumediene Court did not address any new situation"

Again, cake and eating it too. Are we in a new post-9/11 world, or not? And if you want to talk about fictions, the idea that Gitmo is not a US jurisdiction is the highest of them.

 

Madison speech proposing the Bill of Rights is interesting. I'm not an originalist (though maybe I can be one under one of the definitions out there) but it's informative. For instance:

It may be said, in some instances they do no more than state the perfect equality of mankind; this to be sure is an absolute truth, yet it is not absolutely necessary to be inserted at the head of a constitution.

As Mark Field has noted in the past, various parts of the original Constitution protect equality. Also, different kinds of rights:

In some instances they assert those rights which are exercised by the people in forming and establishing a plan of government. In other instances, they specify those rights which are retained when particular powers are given up to be exercised by the legislature. In other instances, they specify positive rights, which may seem to result from the nature of the compact.

They also include declaratory statements (see, e.g., 10th Amendment):

In other instances they lay down dogmatic maxims with respect to the construction of the government.
 

Joe:

Madison's Speech to the House on the Bill of Rights is well worth reviewing.

Madison's review of previous state bills of rights is a good summary of the three means the national Constitution limits government to preserve liberty which I noted at the outset:

In some instances they assert those rights which are exercised by the people in forming and establishing a plan of government. In other instances, they specify those rights which are retained when particular powers are given up to be exercised by the legislature. In other instances, they specify positive rights, which may seem to result from the nature of the compact...But whatever may be [the] form which the several states have adopted in making declarations in favor of particular rights, the great object in view is to limit and qualify the powers of government, by excepting out of the grant of power those cases in which the government ought not to act, or to act only in a particular mode.
 

اصبح الكثير يرد الانتقال الى مكان مناسب لتوفير مسكن اكثر امان للاسرة وراحة وتاقلم لهم لهم وعند البداء فى عملية النقل هنا ياتى العجز والازعاج الذى يواجه كثير من الاعائلات وهنا ياتى دور شركة ركن الرياض لخدمات نقل العفش بالرياض افضل شركة متخصصة فى خدمات نقل العفش بالرياض بافضل سيارات النقل المجهزة والمامنة على اعلى مستوى ضد الاخطار الجوية كما لدا الشركة اكبر وافضل فريق يمتكل الخبرة حول فك وتركيب العفش والتغليف اثناء النقل لمزيد من المعلومات او طلب الخدمة يرجى الدخول الى الرابط التالى شركة نقل عفش بالرياض
يوجد ايضا شركات اخرى تابعه لنا فى الرياض تقدم خدمة نقل العفش باعلى مستوى مماثل لنا تماما وبافضل الاسعار المناسب ويتم التعاقد معاهم ايضا من خلال شركتنا لاننا نعمل فى نفس المجال معا بكل راحة ويسر واليكم رابط الشركة الاخرة فى الرياض شركة نقل عفش بالرياض

 

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