Constitution Day essays are a mixed bag

In honor of Constitution Day, the News Journal published several essays on the subject. Here’s a recap:

#PREVIEW (9/15/18): IN DIVISIVE TIMES, THE CONSTITUTION BINDS US, Prof. Alan Garfield of the Delaware Law School. “Fearing terrorism and being anxious about rapid changes brought about by globalization and technology, many of us have sought shelter in smaller communities . . . where shared identity and familiarity is a source of comfort and security.” That’s fine if these communities “provide us with meaning and purpose,” but “for the nation as a whole to thrive, we also need to venture outside” of these communities “to form connections with citizens with whom we do not have any recognizable community.” Such an effort “can be challenging, even frightening for some,” but “fortunately, we come from hardy stock” and can “summon the courage to engage with citizens who are different from us.” And “there is a common glue that binds Americans,” which is “symbolized by the document we celebrate on Constitution Day.” What all Americans “intuitively know about the Constitution,” even if they have never read it, “is that the document represents a nation in which the people are sovereign and every individual is entitled to dignity and respect; where basic human rights, such as the right to express oneself and worship however one pleases, form our bedrock” or core values. And it is “our perennial struggle to fully realize [these core values] by making our Union ever more perfect” that “we celebrate on Constitution Day.” Stay tuned for essays by former Delaware Supreme Court Justice Randy Holland, Sixth Circuit Court of Appeals Judge Jeffrey Sutton, and Delaware Law School Dean Rodney Smolla.”
Several of the essays recapped below seem related to the Constitution Day coverage, even though not linked to it by this preview.

#WE FOCUS ON TOP COURT [AND IGNORE] STATE COURTS AT OUR PERIL, Judge Jeffrey Sutton, 9/16/18 – The US Supreme Court issues its most momentous decisions in June every year, and the stakes are high because “Americans prize our individual rights . . . and think of the US Constitution as the exclusive source of those liberty and property rights.” But it’s a mistake to forget that there are also 51 State Constitutions and Supreme Courts in this country, which collectively put out a whole more decisions than the US Supreme Court does. In fact, there are about 230 cases filed in state courts for every case filed in federal courts.

Any good lawyer should assert state as well as federal constitutional claims if they are challenging the constitutionality of a law, just as a basketball player should take both shots if a foul is committed against them. And if a party has lost in the US Supreme Court, bring another case asserting the state constitutional arguments. Indeed, “the Blue Hen Constitution often protects rights that the Bald Eagle Constitution does not.”

For now, at least, the US Supreme Court has declined to prohibit “political gerrymandering” under the 14th Amendment – but “that leaves plenty of room for the states to operate,” whether judicially or legislatively. And Carpenter v. United States re the government’s acquisition of cell-site records without a warrant isn’t necessarily the end of the line either.
Hmm, what about federal supremacy?

#WHY DELAWARE RIGHT TO A JURY TRIAL IS DIFFERENT THAN IN BILL OF RIGHTS, Randy Holland, 9/17/18 – Historically, Delaware chose to explicitly adopt the English traditions for trial by jury while more general language was used in the Bill of Rights. Consequently, federal right to trial by jury has been more flexibly construed to accept departures from the 12 jurors/ unanimous verdict pattern. That’s fine because “the federal Bill of Rights sets a minimum level of individual protection” and states may legitimately provide additional degrees of protection. Judge Holland relates the history involved in a solid, lawyerlike fashion.

#EQUAL RIGHTS AMENDMENT WILL BE A POWERFUL MARK, Rodney Smolla, 9/16/18 – The writer begins by recounting his impressions Aug. 23 event celebrating 95 years of women in the Delaware Bar. It honored female practicing attorneys and judges who were pioneers in the legal profession in Delaware. Many of these pioneers were present, and there were elegant speeches by several judges and retired judges. There was also a speech by Justice Ruth Bader Ginsberg, which was followed by a conversation with the justice that was facilitated by two Delaware judges.

Watching this event, Dean Smolla reflected, among other things, on the decision of the Delaware General Assembly to pass an Equal Rights Amendment (ERA) to the Delaware Constitution. This amendment must be passed again in 2019 before becoming effective, but presumably that’s going to happen.

An ERA to the US Constitution never received enough votes and Justice Ginsberg wasn’t able to convince members of the Supreme Court to take action on their own by treating discrimination based on gender as legally equivalent to discrimination based on race, but a Delaware ERA will elevate gender-based discrimination to a “suspect classification” and thereby create a right taking precedence over “ordinary legislation” in this state. This will be “one of the most important amendments to the state constitution in its history.”

Compare our comments in No hidden agenda in Equal Rights Amendment, Karen Peterson (former DE legislator), 5/30/18.

#COURTS SHOULD PROTECT POWERLESS, KAVANAUGH WOULD DO THE OPPOSITE, Alan Garfield, 9/16/18 – “I don’t think that the Senate should confirm Brett Kavanaugh for a seat on the Supreme Court” even though “he seems like a great guy” and “there’s no denying his stellar credentials.” Why? Because “the real question is whether Kavanaugh would use his power as a justice” – meaning judicial review of laws and government actions – in a way “that overrides the political process.”

While “most policy choices should reflect the majority’s will, some should not.” What ideas may be expressed and what religion may be professed – preferences for one race over another – whom one may marry – termination of an “early pregnancy.” And the Supreme Court justices use the power of judicial review wisely when “they protect weak, vulnerable and unpopular members of our society who would be trampled by a purely democratic process." Protect the poor – protect unpopular speakers (from either end of the ideological spectrum) – ensure criminal defendants are fairly prosecuted.

“My fear is that Kavanaugh would use his power to do the opposite [by protecting] “the most powerful members of our society, the ones who are most capable of protecting themselves and least in need of special judicial protection.” Thus, he would “almost certainly . . . join with the other conservative justices in striking down legislative efforts to rein in the influence of big money in politics. He “would also likely join the conservative justices in” (a) invalidating the rights of poor and minority voters” by efforts like “the Ohio voter-purge law,” (b) “refusing to rein in incumbent politicians who manipulate the electoral process to entrench themselves in office” by, for example, upholding voter ID laws that “disenfranchise poor, elderly, and disabled voters who are less likely to have a driver’s license or passport” or refusing “to rein in extreme partisan gerrymandering.” In sum, Judge Kavanaugh might be complicit in the Supreme Court’s continued comforting of “the comfortable” and affliction of “the afflicted.” As a result, “we’ll have the best democracy money can buy,” but it won’t be “a democracy of the people, by the people, and for the people.”

This essay is not part of the official series; but it would appear to be more representative of Professor Garfield’s true views than his preview was. Forget “everyone is equal before the law,” the goal should be to lean over backwards for some segments of the population – with no attempt to consider the consequences for anyone else.

#ACCESS TO BALLOT IS THE PROBLEM WITH VOTING, DE State Senator Bryan Townsend, 9/16/18 – Beginning with a slap at the primary victory of Scott Walker, who won the right to be the GOP candidate for Delaware’s seat in the US House of Representatives, the writer suggests that attacks on election results should not be dismissed “simply because the results are embarrassing.” Questions about the validity of our electoral system should be “grounded in facts.” And guess what, “voter fraud is, and always has been, a red herring.”

Various court decisions consistent with this premise are cited, “Republicans across the country” are said to “have publicly admitted that their states’ voter ID laws are intended to undermine voters who tend to favor Democrats,” and it’s asserted that “Congressional Republicans and President Trump are currently blocking funding for election security.” What’s more, “early voting and Sunday voting hours were slashed by North Carolina Republicans in the 2016 elections.” Accordingly, “the solution is to join the chorus of Delaware moderates and progressives who oppose barriers to voting and support real reforms.” Option to register to vote on Election Day – expanded early voting – mobile voting – no-excuse absentee voting – overturn Citizens United – “clean, tough and transparent campaign finance laws in Delaware” – maybe even allow vote-by-mail. And “there is no legitimate reason for any of this to be a partisan debate,” as “voting and elections are at the heart of what it means to be American.”

There is ample evidence that voter fraud occurs, and it can definitely serve to dilute the rights of citizens who are entitled to vote. Encouraging voter turnout is fine, but it’s also desirable to encourage informed voting (which can be jeopardized by early voting). Compare: Much ado about voter ID requirements, 8/6/16.

#THE FOUNDERS MAY HAVE WANTED A DO-OVER OR TWO, Samuel Hoff (professor at Delaware State University), 9/17/18 – This essay reprises the history of the US Constitution, beginning with the point that it replaced the failed Articles of Confederation. There were three basic changes: (a) add two more branches of government, the executive and judicial branch, versus simply relying on a legislature; (b) explicitly provide for federal supremacy (Article VI, clause 2), “which changed the dynamics between the levels of government;” and (c) provide that amendments to the Constitution would only require approval by most of the states vs. all of them.

One problem that arose pretty quickly was straightening out the confusion between presidential and vice-presidential election by requiring that it be clearly stated who was running for which office. Thus, in the 1796 election the runner-up in the presidential race wound up serving as VP. And in the 1800 election, Thomas Jefferson tied with his VP running mate Aaron Burr in the electoral college vote creating a controversy as to who had been elected president. The solution was adoption of the 12th Amendment.

A longer-lasting flaw was the failure to remove “the stain of slavery.” It took the Civil War to cure that problem.

“The ambiguity of the US Constitution is largely seen as a benefit, permitting flexibility and adaptability of changing circumstances.” There was an epic drinking bout over the weekend before the formal signing of the Constitution to celebrate four months spent in an effort to create “a more perfect Union.” 231 years later “the Constitution is still standing tall.”
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