DOCSLIB.ORG

Judicial Usurpation and the Constitution: Historical and Contemporary Issues Robert P

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Judicial Usurpation and the Constitution: Historical and Contemporary Issues Robert P No. 871 Delivered February 17, 2005 April 11, 2005 Judicial Usurpation and the Constitution: Historical and Contemporary Issues Robert P. George Judicial power can be used, and has been used, for both good and ill. However, in a basically just demo- Talking Points cratic republic, judicial power should never be exer- • Decisions in which the courts usurp the cised lawlessly—even for desirable ends. Judges are authority of the people are not merely incor- not legislators. The legitimacy of their decisions, par- rect; they are themselves unconstitutional. ticularly those decisions that displace legislative judg- ments, depends entirely on the truth of the judicial • Until now, a social consensus regarding the basic definition of marriage meant that claim that the court was authorized by law to settle we did not need to resolve the question at the matter. When this claim is false, a judicial edict is the federal level. not redeemed by its good consequences, for any such edict constitutes a usurpation of the just authority of • The judicial redefinition of marriage is a crime with two victims. The first and obvi- the people to govern themselves through the consti- ous victim is the institution of marriage tutional procedures of deliberative democracy. Deci- itself, and the second is the system of delib- sions in which the courts usurp the authority of the erative democracy. However, there will people are not merely incorrect; they are themselves likely be a third victim—namely, federalism. unconstitutional. And they are unjust. • If we do not have a federal marriage The First Test amendment, then marriage will erode quickly by judicial imposition or by the There were, and are, scholars and statesmen who gradual integration into the formal and believe that courts should not be granted the power informal institutions of society of same-sex to invalidate legislation in the name of the Constitu- couples. tion. In reaction to Chief Justice John Marshall’s opin- ion in the 1803 case of Marbury v. Madison,1 Thomas Jefferson warned that judicial review would lead to a form of despotism.2 It is worth remembering that the power of judicial review is nowhere mentioned in the Constitution. The courts themselves have claimed This paper, in its entirety, can be found at: this power based on inferences drawn from the Con- www.heritage.org/research/legalissues/hl871.cfm stitution’s identification of itself as supreme law, and The Russell Kirk Memorial Lectures 3 the nature of the judicial office. Yet even if we credit Produced by the B. Kenneth Simon Center for these inferences, as I am inclined to do, it must be American Studies Published by The Heritage Foundation said that early supporters of judicial review, including 214 Massachusetts Avenue, NE Washington, DC 20002–4999 (202) 546-4400 • heritage.org Nothing written here is to be construed as necessarily reflect- ing the views of The Heritage Foundation or as an attempt to aid or hinder the passage of any bill before Congress. No. 871 Delivered February 17, 2005 Chief Justice Marshall himself, did not imagine of Dred Scott v. Sandford.5 That opinion, which that the federal and state courts would exercise the among other things declared even free blacks to be sweeping powers they have come to exercise today. non-citizens, and Congress to be powerless to Jefferson and the critics were, it must be conceded, restrict slavery in the federal territories, intensified more prescient.123 the debate about slavery and dramatically As for Marshall’s ruling in Marbury, a good case increased the prospects for civil war. can be made that the power he actually claimed Dred Scott was a classic case of judicial usurpa- for the courts was quite limited. Remember: What tion. Without constitutional warrant, the justices the Supreme Court decided in that case was that manufactured a right to hold property in slaves the Court itself was forbidden by the Constitution that the Constitution nowhere mentioned or could to exercise original jurisdiction putatively con- reasonably be construed as implying. Of course, ferred upon it by the Judiciary Act of 1789. Mar- Taney and those who joined him in the majority shall reasoned that the Constitution, in Article III, depicted their decision as a blow for constitutional fixed the Court’s original jurisdiction, and Con- rights and individual freedoms. They were protect- gress was powerless under the Constitution to ing the minority (slaveholders) against the tyranny expand it. According to the contemporary consti- of a moralistic majority who would deprive them tutional scholar Robert Lowry Clinton, all this of their property rights. The reality was that the meant was that the Court was relying on its own judges were exercising what in a later case would interpretation of the Constitution in deciding what be called “raw judicial power”6 to settle a morally it could and could not do within its own sphere. charged debate over a divisive social issue in the This was entirely consistent with its recognizing a way they personally favored. like power of the other branches of government to It took a civil war and the constitutional amend- interpret the Constitution for themselves in decid- ments (especially the Fourteenth Amendment) ing what they could and could not do in carrying 4 made possible by the Union victory to reverse out their constitutional functions. Dred Scott v. Sandford. However that may be, the power of the judiciary The Dred Scott decision is a horrible blight on has expanded massively. This expansion began slowly. the judicial record. We should remember, though, Even if we read Marbury more broadly than Professor that while it stands as an example of judicial activ- Clinton reads it, treating it as a case in which the jus- ism in defiance of the Constitution, it is also possi- tices presumed to tell the Congress what it could and ble for judges to dishonor the Constitution by could not do, it would be another fifty-four years refusing to act on its requirements. Judges who are before the Supreme Court would do it again. And it more devoted to a cause than to the Constitution could not have chosen a worse occasion. can—and sometimes have—gone wrong by letting From Dred Scott to Brown stand what should have been struck down. 7 In 1857, Chief Justice Roger Brooke Taney In the 1896 case of Plessy v. Ferguson, for handed down an opinion for the Court in the case example, legally sanctioned racial segregation 1. 5 U.S. (1 Cranch) 137 (1803). 2. See Thomas Jefferson’s criticism of claims by the judiciary of authority to bind the other branches of government in matters of constitutional interpretation (“making the judiciary a despotic branch”) in his letter to Abigail Adams, September 11, 1804, in 11 Writings of Thomas Jefferson (Albert E. Bergh, ed., 1905), pp. 311–313. 3. See Marbury v. Madison. 4. See generally Robert Lowry Clinton, Marbury v. Madison and Judicial Review (University of Kansas Press, 1991). 5. 60 U.S. (19 How.) 393 (1856). 6. Roe v. Wade, 410 U.S. 113, 222 (1973) (Justice Byron White, dissenting). page 2 No. 871 Delivered February 17, 2005 was upheld by the Supreme Court despite the Citing an individual right to “freedom of con- Fourteenth Amendment’s promise of equality. tract” purportedly implied by the Due Process Plessy was the case in which the justices Clause of the Fourteenth Amendment, the justices announced their infamous “separate but equal” struck down the law as an unconstitutional interfer- doctrine, a doctrine that was a sham from the ence by the state in private contractual relations start. Separate facilities for blacks in the South between employers and employees. The Court jus- were then, and had always been, inferior in qual- tified its action with a story not dissimilar to the one ity. Indeed, the whole point of segregation was to it told in Dred Scott. Again, it claimed to be protect- embody and reinforce an ideology of white ing the minority (owners) against the tyranny of the supremacy that was utterly incompatible with the democratic majority. It was striking a blow for indi- principles of the Declaration of Independence vidual civil rights and liberties. It was restricting and the Fourteenth Amendment to the Constitu- government to the sphere of public business and tion. The maintenance of a regime of systematic getting it out of private relations between compe- inequality was the object, point, and goal of seg- tent adults—namely, owners and workers. regation. As Justice John Harlan wrote in dissent, The truth, of course, is that the Court was sub- segregation should have been declared unlawful stituting its own laissez-faire philosophy of the because the Constitution of the United States is 8 morality of economic relations for the contrary colorblind and recognizes no castes. judgment of the people of New York acting Lochner and Freedom of Contract through their elected representatives in the state legislature. On the controversial moral question of Although more than a half-century would have what constituted authentic freedom and what to pass before the Supreme Court got around to amounted to exploitation, unelected and demo- correcting its error in Plessy in the 1954 case of 9 cratically unaccountable judges, purporting to act Brown v. Board of Education, that did not prevent in the name of the Constitution, simply seized the Court in the meantime from repeating the decision-making power.11 Under the pretext of usurpations that had brought it to shame in the preventing the majority from imposing its morality Dred Scott case. The 1905 case Lochner v. New 10 on the minority, the Court imposed its own moral- York concerned a duly enacted New York statute ity on the people of New York and the nation.
Load more

Recommended publications
  • The Debate Over a Federal Bill of Rights, 1787-1792, 33 Santa Clara L
    Santa Clara Law Review Volume 33 | Number 4 Article 3 1-1-1993 Restoring the Grand Security: The eD bate over a Federal Bill of Rights, 1787-1792 John P. Kaminski Follow this and additional works at: http://digitalcommons.law.scu.edu/lawreview Part of the Law Commons Recommended Citation John P. Kaminski, Restoring the Grand Security: The Debate over a Federal Bill of Rights, 1787-1792, 33 Santa Clara L. Rev. 887 (1993). Available at: http://digitalcommons.law.scu.edu/lawreview/vol33/iss4/3 This Article is brought to you for free and open access by the Journals at Santa Clara Law Digital Commons. It has been accepted for inclusion in Santa Clara Law Review by an authorized administrator of Santa Clara Law Digital Commons. For more information, please contact [email protected]. RESTORING THE GRAND SECURITY: THE DEBATE OVER A FEDERAL BILL OF RIGHTS, 1787-1792 John P. Kaminski From 1763 until 1791, Americans debated the nature of govern- ment and how best to preserve liberty.' Halfway through this de- bate, most Americans decided that their liberties could best be pre- served outside of the British Empire.2 In rebelling against the British government, Americans did not turn their backs on government in general. On the contrary, they fervently believed that government was essential in protecting the rights of individuals. This captivation with government found its way into the fundamental documents of the new states.3 The propriety, and indeed, necessity, of a bill of rights protect- ing individual freedoms and liberties was a much less clear-cut issue during this time.
    [Show full text]
  • U.S. House of Representatives Hearing Regarding the Admission
    TABLE OF CONTENTS House of Representatives Uashington, D. C. Subcommittee on Territorial February 23, 1960 and Insular Affairs of the Committee on Interior and Insular Affairs. PAGE Statement of Honorable Daniel K. Inouye, a Representative in Congress from the State of Hawaii............. ... ............ ....... ...... 4 Statement of J. Monroe Sullivan, Vice President, Pacific American Steamship Association. ......... 10 Statement of Honorable Hiram L. Fong, a United States Senator from the State of Hawaii ....... 17 Statement of Honorable Oren L. Long, a United States Senator from the State of Hawaii.......... 19 Statement of Wilbur K. Watkins, Jr., a Deputy Attorney General of the State of Hawaii ........ 22 Statement of Harold Seidman, Assistant Chief, Office of Management and Organization, Bureau of the Budget (Accompanied by HoWard Schnoor, Management Analyst, Bureau of the Budget, and Mrs. Ruth Van Cleve, Act'ng Assistant Solicitor, Department of the Interior..................... 25 Statement of John F. Donelan, Kahulul Railroad Company, Maui, Hawaii. .............. ......... 67 ,....2~ C i. .E~*L'. ' C" 'i TI'Cyll.-(~ * - . * J~h~i ~rr?~ '---- ~7ur~w--' ley- 1 ttle H. R. 10434, H. R. 10443, E. R. 10456, H. R. 10463, and H. R. 10475 TUESDAY, FEBRUARY 23, 1960 House of Represontatives, Subcommittee on Terri.orial and Insular Affairs of the Committee on Xnterior and :'Pular Affairs, Washington, D. C. The subcommittee met, pursuant to call, at 9:48 a. m., in the committee room, New House Office Building, Honorable Leo W. O'Brien, chairman of the subcommittee, presiding. Mr. O'Brien, The Subcommittee on Territorial and In- sular Affairs will be in order for hearing on the several bills to amend certain laws of the United States providing for admission of the State of Hawaii into the Union and for other purposes.
    [Show full text]
  • Admission of Nebraska Into the Union
    University of Nebraska - Lincoln DigitalCommons@University of Nebraska - Lincoln Transactions and Reports, Nebraska State Historical Society Nebraska State Historical Society 1885 Admission of Nebraska into the Union Charles Gere Follow this and additional works at: https://digitalcommons.unl.edu/nebhisttrans Part of the History Commons Gere, Charles, "Admission of Nebraska into the Union" (1885). Transactions and Reports, Nebraska State Historical Society. 26. https://digitalcommons.unl.edu/nebhisttrans/26 This Article is brought to you for free and open access by the Nebraska State Historical Society at DigitalCommons@University of Nebraska - Lincoln. It has been accepted for inclusion in Transactions and Reports, Nebraska State Historical Society by an authorized administrator of DigitalCommons@University of Nebraska - Lincoln. 162 NEBRASKA STATE HISTORICAL SOCIETY. ADMISSION OF NEBRASKA INTO THE UNION. ADDRESS OF HON. CHARLES H. GERE, January, 1880. To discuss the events of'1866 and 1867 at this time has seemed to me presumptuous. Barely a dozen years have elapsed since Nebraska turned the sharp corner from territorial dependency to state sov­ ereignty, apd, as in all sharp historical turns, there was a blaze of ex­ citement, a bitter political contest, accompanied by more than the usual amount of bumptiousness and belligerency, of heart-burnings and jealousy, over which fourteen years may have deposited a thin layer of forgetfulness, through which a foolhardy explorer might break, to the discomfiture of himself and the revival of volcanic mem­ ories. But, pressed by your esteemed President for a paper upon the admission of Nebraska to the Union, and unable, from present expe­ rience and observation, to go back farther than that period, I have .consented to take up this subject, and trust that I may handle it with sufficient discretion to obtain your pardon for.
    [Show full text]
  • U.S. House Report 32 for H.R. 4221
    2d Session No. 1564 AMENDING CERTAIN LAWS OF THE UNITED STATES IN LIGHT OF THE ADMISSION OF TIlE STATE OF HAWAII INTO THE UNION MAY 2, 1960.-Committed to the Committee of the Whole House on the State of the Union and ordered to be printed Mr. O'BRIEN of New York, from the Committee on Interior and Insular Affairs, submitted the following REPORT [To accompany H.R. 116021 The Committee on Interior and Insular Affairs, to whom was re- ferred the bill (H.R. 11602) to amend certain laws of the United States in light of the admission of the State of Hawaii into the Union, and for other purposes, having considered the same, report favorably thereon without amendment and recommend that the bill do pass. INTRODUCTION IT.R. 11602 was introduced by Representative Inouye after hearings on five predecessor bills (H.R. 10434 by Representative. Aspinall, H.R. 10443 by Congressman Inouye, H.R. 10456 by Representative O'Brien of New York, H.R. 10463 by Representative Saylor, and H.R. 10475 by Representative Westland). H.R. 11602 includes the amend- ments agreed upon in committee when H.R. 10443 was marked up. All of the predecessor bills except H.R. 10443 were identical and were introduced as a result of an executive communication from the Deputy Director of the Bureau of the Budget dated February 12, 1960, en- closing a draft of a bill which he recommended be enacted. This draft bill had been prepared after consultation with all agencies of t.th executive branch administering Federal statutes which were, or might be thought to have been, affected by the admission of Iawaii into the Union on August 24, 1959.
    [Show full text]
  • Determining the Constitutionality of Public Aid to Parochial Schools After Espinoza
    Sigma: Journal of Political and International Studies Volume 38 Article 9 5-2021 Determining the Constitutionality of Public Aid to Parochial Schools after Espinoza Anna Bryner Brigham Young University Follow this and additional works at: https://scholarsarchive.byu.edu/sigma Part of the Constitutional Law Commons, Education Law Commons, International and Area Studies Commons, Jurisdiction Commons, and the Political Science Commons Recommended Citation Bryner, Anna (2021) "Determining the Constitutionality of Public Aid to Parochial Schools after Espinoza," Sigma: Journal of Political and International Studies: Vol. 38 , Article 9. Available at: https://scholarsarchive.byu.edu/sigma/vol38/iss1/9 This Article is brought to you for free and open access by the Journals at BYU ScholarsArchive. It has been accepted for inclusion in Sigma: Journal of Political and International Studies by an authorized editor of BYU ScholarsArchive. For more information, please contact [email protected], [email protected]. Determining the Constitutionality of Public Aid to Parochial Schools after Espinoza Anna Bryner March 5, 2021 Sigma The Supreme Court provided a new consideration to the longstanding debate about public aid to parochial schools in its June 2020 decision of Espinoza v. Montana Department of Revenue. In Espinoza, the Supreme Court injected demands of the Free Exercise Clause into a debate historically governed by Establishment Clause concerns. The Court did this by relying on precedent in Trinity Lutheran v. Comer (2017), which says that the Free Exercise Clause protects against laws that impose religious status discrimination unless those laws pass strict scrutiny. Applying this precedent to Espinoza, the Court held that the application of Montana’s constitutional provision preventing public aid from arriving at parochial schools was a form of religious status discrimination that did not pass strict scrutiny; therefore, it was unconstitutional.
    [Show full text]
  • Us States Admission Order
    Us States Admission Order Is Kellen muciferous or undefeated after notochordal Olaf te-heed so anyplace? Hollow-eyed and preachier Jeth never rack-rent his brills! Coccal and pointless Garwood still con his summariness covertly. West virginia bar admission order set forth in both new community founded for our classroom resources for admission listed in the office of puerto rico DC statehood The US almost tore itself through to crank to 50 Vox. United states use this period for us about whether congress. Nationals visiting the US They brought your admission to the United States even if eligible your travel documents including your visa are custom order. Often omit the Enabling Act Congress specified a fit of conditions that the proposed state had ever meet in bed for admission to occur. Gold in order will remain a virtual or used. Most feared as you can count on. Some error or used ceremonial pipes that each applicant has been procedurally legal employment references by which maine were admitted state after him or illegal use. Bar admissions instructions before its composition was admitted. Women and children were also employed in the mines. Share its admissions administrator under us make written motion, but there were used on a call for hospital. The treatment and football in secessionist counties did you are competent legal. List of US states by woman of statehood. Equal Footing cases postdate Reconstruction. There were no large abolitionist groups in West Virginia, as there were in Delaware and Maryland. Choose a date and chemistry to set myself a create or telephone appointment.
    [Show full text]
  • Testimony of Jeffery J
    Testimony of Jeffery J. Ventrella, Esq. Senior Vice-President, Alliance Defense Fund [1] Before the United States Senate Judiciary Committee, Subcommittee on the Constitution, Civil Rights, and Property Rights “An Evaluation of Professor Michael Seidman’s October 20, 2005 Testimony regarding the Proposed Federal Marriage Amendment” Members of the Subcommittee: Thank you for this opportunity to testify concerning this crucial matter, a matter that literally touches upon the very fabric of American society: marriage. My expertise centers on the legal and philosophical implications stemming from those who advocate redefining marriage by altering its long recognized structure. My testimony will particularly evaluate Professor Seidman’s assertions. At the outset, it should be emphasized what is, and what is not, at issue when considering the proposed Federal Marriage Amendment (“FMA”). What is at issue is preserving the external structure of marriage. What is not at issue is “civil rights” for those practicing homosexual behavior. Professor Seidman ignores this first point and then bases much of his testimony on this irrelevant second point. Permit me to explain. What is marriage’s structure and why does it matter? Marriage, as the basic societal unit, is not like a wax nose or Play-doh. Marriage has a definite structure. That structure is comprised of two components. Marriage has a quantitative component (two persons) and it has as qualitative component (who are male and female). 1 Institutional affiliation is noted for identification purposes only. Mr. Ventrella has been published as well as formally debated the legal and philosophical implications of same-sex marriage nearly 50 times at various national law schools.
    [Show full text]
  • Labor Vision of the Thirteenth Amendment
    THE LABOR VISION OF THE THIRTEENTH AMENDMENT LEA S. VANDERVELDEt INTRODUCTION The thirteenth amendment' is often viewed as a commemora- tion of the North's Civil War victory over slavery. The conventional understanding of the amendment is that it abolished the particular antebellum southern institution that subjugated black persons as slaves.2 The texts of the congressional debates on the amendment, however, contain a far richer vision of constitutional reform. They address what constitutes fair and just labor relations. Highlighting this labor vision is important both for historical reasons and for prac- tical legal reasons. t Professor of Law, University of Iowa College of Law. I wish to thank Professors James Atleson, Bob Clinton, Mary Lou Fellows, Matt Finkin, William Forbath, Herb Hovenkamp, Jeff Powell, Eric Schnapper, Kathy Stone, Sheldon Stromquist, Clyde Summers, Mark Tushnet, Adrien Wing, and members of the Project on the Rhetoric of Inquiry of the University of Iowa for very useful conversations and comments on earlier drafts of this Article. I would also like to thank the trustees and contributors of the Fund for Labor Relations Studies for allowing this research to continue. Charles Biebesheimer and Michael Caywood provided excellent research assistance on this work. I U.S. CONST. amend. XIII, § 1 ("Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."). 2 See H. HYMAN, A MORE PERFECT UNION: THE IMPACT OF THE CIVIL WAR AND RECONSTRUCTION ON THE CONSTIrrTTION 290 (1973). See also Belz, The Civil War Amendments to the Constitution: The Relevance of Orinal Intent, 5 CONST.
    [Show full text]
  • Beyond the Balance Rule Congress, Statehood, and Slavery, 1850–1859
    Matthew Glassman Beyond the Balance Rule Congress, Statehood, and Slavery, 1850–1859 n February 1859 the U.S. House of Representatives voted on S. 239, Ian Act to Admit Oregon to the Union, which had passed the Senate the previous March by a vote of 35 to 17.1 At the time of the vote, members of the House knew one crucial piece of information: Oregon was going to be a free state.2 As part of the referendum on their new constitution in November 1857 and in accordance with the general principles of the Kansas-Nebraska Act, voters in the Oregon Territory had been given a choice on slavery in the future state, and had chosen to be a free state by a vote of 7,727 (75 per- cent) to 2,645 (25 percent).3 The admission vote in the House was close, 114 in favor and 103 against. Two days later, President Buchanan signed the bill and Oregon became the thirty-third state.4 If you knew nothing about the admission vote, but you knew something about slavery, the balance rule, and politics of the antebellum era, you might assume that the Oregon admission vote was on sectional lines, with north- 1Senate Journal, 35th Cong., 1st sess., May 18, 1858, p. 477. 2The Senate knew the same at the time of their vote, the previous March. 3Voters were given separate choices on the ballot in which one question asked them to ap- prove or disapprove of the proposed constitution and a second question asked them to vote for or against slavery.
    [Show full text]
  • Amendments to the Constitution of the United States: a Commentary George Anastaplo Prof
    Loyola University Chicago Law Journal Volume 23 Article 3 Issue 4 Summer 1992 1992 Amendments to the Constitution of the United States: A Commentary George Anastaplo Prof. of Law, Loyola University Chicago, School of Law Follow this and additional works at: http://lawecommons.luc.edu/luclj Part of the Constitutional Law Commons Recommended Citation George Anastaplo, Amendments to the Constitution of the United States: A Commentary, 23 Loy. U. Chi. L. J. 631 (1992). Available at: http://lawecommons.luc.edu/luclj/vol23/iss4/3 This Article is brought to you for free and open access by LAW eCommons. It has been accepted for inclusion in Loyola University Chicago Law Journal by an authorized administrator of LAW eCommons. For more information, please contact [email protected]. Amendments to the Constitution of the United States: A Commentary* George Anastaplo** Thus says the Lord of hosts, the God of Israel, "Amend your ways and your doings, and I will let you dwell in this place. Do not trust in these deceptive words: 'This is the temple of the Lord, the temple of the Lord, the temple of the Lord.' For if you truly amend your ways and your doings, if you truly execute jus- tice one with another, if you do not oppress the alien, the father- less or the widow, or shed innocent blood in this place, and if you do not go after other gods to your own hurt, then I will let you dwell in this place, in the land that I gave of old to your fathers for ever." Jeremiah 7:3-7 TABLE OF CONTENTS 1.
    [Show full text]
  • When Did the Articles of Confederation Cease to Be Law Vasan Kesavan
    Notre Dame Law Review Volume 78 | Issue 1 Article 3 12-1-2002 When Did the Articles of Confederation Cease to Be Law Vasan Kesavan Follow this and additional works at: http://scholarship.law.nd.edu/ndlr Recommended Citation Vasan Kesavan, When Did the Articles of Confederation Cease to Be Law, 78 Notre Dame L. Rev. 35 (2002). Available at: http://scholarship.law.nd.edu/ndlr/vol78/iss1/3 This Essay is brought to you for free and open access by NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. WHEN DID THE ARTICLES OF CONFEDERATION CEASE TO BE LAW? Vasan Kesavan* I. INTRODUCTION Professors Lawson and Seidman have done it again with a provoc- ative article entitled When Did the ConstitutionBecome Law ?1 I must con- fess that upon first reading their article as it was going to press in late 2001 I was seething with envy. The question of when did the Constitu- tion become law is one that has received virtually no attention. 2 It is the kind of arcane question of constitutional law that only dedicated * Vice President, Francisco Partners. J.D., Yale Law School, 2001. For their helpful comments and suggestions, thanks to Bruce Ackerman, Akhil Amar, Jonathan F. Cohn, Daniel Farber, Martin Flaherty, David Fontana, Kumar Kesavan, Jennifer Koester, Gary Lawson, Nick Levin, and Michael Paulsen. Special thanks to Gary Lawson for initially suggesting that I write this Essay, and for his ongoing encouragement, and to Gary Lawson and Guy Seidman for their gracious Essay in reply.
    [Show full text]
  • In the United States Court of Appeals for The
    Case: 16-16760 Date Filed: 07/28/2017 Page: 1 of 3 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 16-16760 Non-Argument Calendar ________________________ D.C. Docket No. 1:16-cr-00090-KD-B-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus TERANCE MARTEZ GAMBLE, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Alabama ________________________ (July 28, 2017) Before HULL, WILSON, and ANDERSON, Circuit Judges. PER CURIAM: Terance Martez Gamble appeals his conviction for possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Gamble argues that the Case: 16-16760 Date Filed: 07/28/2017 Page: 2 of 3 district court erred by determining that double jeopardy did not prohibit the federal government from prosecuting Gamble for the same conduct for which he had been prosecuted and sentenced for by the State of Alabama. We review de novo, as a pure question of law, any possible violation of the Double Jeopardy Clause. United States v. McIntosh, 580 F.3d 1222, 1226 (11th Cir. 2009). The Supreme Court has determined that prosecution in federal and state court for the same conduct does not violate the Double Jeopardy Clause because the state and federal governments are separate sovereigns. Abbate v. United States, 359 U.S. 187, 195, 79 S. Ct. 666 (1959). We have followed the precedent set by Abbate in Hayes, stating that unless and until the Supreme Court overturns Abbate, the double jeopardy claim must fail based on the dual sovereignty doctrine.
    [Show full text]