If I were in charge...

I teach a course on Constitutional Law as an adjunct professor at a nearby law school and during class recently, we had a lengthy discussion about to what extent the United States Constitution was operating the way the framers intended. I did not want things to degenerate into a partisan debate (I was only partially successful) nor did I want them to scrap the existing document and start over or otherwise do a wholesale re-write of Madison's work, so I asked them to try to set aside their partisan views and just consider what systemic or structural problems have been revealed in the 220 years it has operated that could be "fixed" relatively simply, yet would preserve or possibly restore the careful system of checks and balances envisioned by the framers.

After much discussion (and some dissension), I asked the students to come up up with constitutional amendments that would "tweak" the basic document in a way that they thought would implement the vision of the founders and do so in a way that would attract broad bipartisan support from the public. I found the exercise stimulating and I thought I would share here the three proposals that I liked the best along with the problem that is sought to be addressed. Some of this is not new but maybe more nationwide debate about some of these things wouldn't hurt:

28th Amendment
The President and the Congress, except in time of war declared pursuant to Article 1, Section 8 or when authorized by two-thirds of the members of both houses of Congress, shall ensure that no expenses of the United States be incurred nor funds expended during the fiscal year established by Congress which exceed the total revenues on hand and anticipated during such fiscal year

This proposed "balanced budget" amendment addresses the lack of any constitutional requirement for fiscal responsibility by the President or Congress. Almost all of the students recognized that even a government that prints its own money simply cannot indefinitely and continuously spend money that it doesn't have and won't collect for another generation or two.

29th Amendment
No law shall embrace more than one object, which shall be expressed in its title. Nor shall any law be amended solely by reference to its title, but the act or the section amended shall be re-enacted and published at length.

The legislative process as currently conducted allows a single bill include, or be amended to include, any number of unrelated matters (read "pork"). This really muddies the waters when a Representative or Senator has to explain or defend a vote to their constituents. Thus, an up or down vote on a bill really matters little in terms of accountability for a Senator or Congressman.

30th Amendment
The provisions of this Constitution shall be construed according to the traditional canons used by the courts to construe statutes and other legislative enactments provided however, that the intent of any such provision shall be principally determined by reference to the plain and ordinary meaning of the words used unless otherwise defined herein and provided further that no subsequent amendment shall be construed to repeal or modify any other provision of this Constitution unless such repeal or modification is expressly provided for in the amendment as ratified.

The root of the controversy over the proper role of a federal judge is that the federal courts have increasingly different criteria to interpret constitutional provisions from those they apply to other types of law and thus have become a place where unelected officials, who hold their appointments for life, set national policy according to their own views instead of merely resolving constitutional issue according to the document as written and amended. As a result, the three way compact between the federal government, the states and the people has become malleable and unpredictable and policy views rather than judicial expertise have become the primary criteria by which federal judges are selected. This proposed amendment would require that the the same rules of construction used to interpret statutes, would be used to interpret the provisions of the Constitution. The theory here is that doing so would make it more difficult for judges (whether liberal or conservative - they all do it) to become the de facto "framers" of the Constitution and by the terms of the document itself, would have to defer to the plain language used as is done in construing statutes.

I know that some, if not all three of these proposals, would be controversial in some quarters. I also know that, given whose ox would be gored, none of these amendments are likely to find their way out of Congress to the states. Oh well, one can dream! Besides, the whole exercise was kind of fun.

Lawyer should get an "F" in History for his Closing Argument

This case has some age on it but I think it is still worth a blog post.

In a convoluted libel case, the appellant argued on appeal that the appellee's trial counsel delivered a prejudicial and inflammatory closing argument. But the bigger problem was that the argument—which invoked Jesus Christ, Julius Caesar, and the Mennonites— was about as wrong on the facts as you can get. Here’s an excerpt:

"You may remember when Christ was preaching the gospel, in the Holy Roman Empire that Julius Caesar was Emperor of Rome. As Christ was making his way toward Rome, the Mennonites and the Philistines stopped him in the road and they sought to entrap him. They asked Christ: ‘Shall we continue to pay tribute unto Caesar?’ And you will remember, in the Book of St. Matthew it is written that Christ said: ‘Render ye unto Caesar the things that are Caesar's and unto God the things that are God's."

Inspiring perhaps, but the lawyer made a few historical errors, including his timeline, which was a bit off. Not that much, just eight centuries or so. The appellate court pointed out folowing the faux pas:

The Holy Roman Empire did not come into existence until about 800 years after Christ. Julius Caesar, who was never Emperor of Rome, was dead before Christ was born. Christ was never on His way to Rome and the Philistines had disappeared from Palestine before the birth of Christ. The Mennonites are a devout Protestant sect that arose in the Sixteenth Century A.D. This phrase is noteworthy only because of the ease with which the speaker crowded into one short paragraph such an abundance of misinformation.

From Hall v. Brookshire, 285 S.W.2d 60 (Mo. Ct. App. 1955).

Obviously, the problem here is that this case was tried in the Dark Ages BW (Before Wikipedia).

Thanks to Judge James Barlow.

Will the new Solicitor General break with tradition? I'd say the odds are pretty good.

The Mad Law Professor asks the question. Will the new administration's Solicitor General, current Harvard Law School Dean Elena Kagan, break with the tradition of wearing a morning coat when appearing to argue cases in the Supreme Court of the United States?

Since she is the first woman to hold the post, I doubt that the formal ware worn by men since before the turn of the previous century, which includes stripped pants and a coat with tails, will find a place among the business suits in her closet.

Thus will a 138 year tradition come to an end. Of course, I think I would rather see that tradition end than see Dean Kagan wearing this outfit.