Category Archives: Constitution
The City of Los Angeles passed an ordinance that requires all contractors to “disclose” all of their contacts and sponsorships (whatever that means) with the National Rifle Association. In Delaware, a man wants to apply to be a Judge on the State Bench. But, Delaware has a law that says that he is not qualified to be a Judge. Why not? Because he chooses to not associate with certain “approved” groups.
At the end of the day, the real question is why do governments continue to pass laws that they KNOW are not Constitutional. These Governments pay (with tax dollars) for legal advice, so it’s not at all possible that they don’t know this.
But even were we to be charitable and assume (yes, I know what it means) that they don’t know, why do they keep proposing and passing laws that restrict liberty?
On February 13, 1689, Parliament in London allows two new monarchs to take the throne if they honor the rights of English citizens. What became known as the English Bill of Rights was an important influence on the later American Constitution.
The statement presented that day was called the Declaration of Right, and it was intended for William of Orange, the Dutch ruler, and his wife, Mary. Parliament asked William (whose mother was the daughter of the late English King Charles I) to assume the throne along with Mary, the Protestant daughter of the deposed English King James II, as long as they agreed to the terms in that document – which they did.
In its statutory form, what became known as the English Bill of Rights contains several passages that were later reflected in the United States Constitution written in Philadelphia in 1787.
The English Bill of Rights reaffirmed some rights guaranteed to subjects that dated back to the Magna Carta but had been abridged during later conflicts in Great Britain. The English Bill of Rights listed grievances against the former Catholic ruler, James II, including a prohibition on Protestants possessing arms; the Bill allowed them to “have arms for their defense suitable to their conditions and as allowed by law.”
The Bill also stated that Parliament as the representatives of British subjects shouldn’t be censored by a King or Queen, providing “that the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.”
The declaration also included an important statement that later became part of the American Constitution’s First Amendment, for citizens to petition a government: “That it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal.”
The English Bill of Rights insisted that “excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted” – two important concepts in our Constitution’s Eighth Amendment.
It objected to the quartering of troops contrary to law (matching the Constitution’s Third Amendment) and reaffirmed the right to a jury trial. The English Bill of Rights also stated that Parliament should meet regularly, be subject to free elections, and could block the suspension of laws by the crown.
And the English Bill of Rights reiterated a core concept that the crown couldn’t tax subjects without the consent of their representatives: “That levying money for or to the use of the Crown by pretense of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal.”
These rights guaranteed to British subjects would later become part of the disputes between a future monarch and American colonists that led to the Revolutionary War and American independence.
On February 5, 1937, President Franklin D. Roosevelt shocked America by introducing a plan to expand the Supreme Court, to gain favorable votes. FDR’s war on the court was short-lived, and it was defeated by a crafty chief justice and Roosevelt’s own party members.
President Roosevelt had enacted wide-ranging legislation along with congressional Democrats as part of his New Deal program, starting in 1933.
By 1937, Roosevelt had won a second term in office, but the makeup of a conservative-leaning Supreme Court hadn’t changed since he took office four years earlier. There were four Justices who were conservative enough that their votes against most New Deal plans were expected. A fifth justice with conservative leanings was the Chief Justice, Charles Evans Hughes, who also narrowly lost the 1916 presidential race to the Democratic incumbent, President Woodrow Wilson.
However, Hughes also had roots in the progressive wing of the Republican party. Another justice, Owen Roberts, was a Hoover appointee who also voted with the conservatives on some decisions.
Adding to the tension between the president and the Supreme Court were a series of decisions by the Justices that halted key components of the New Deal. After his re-election, Roosevelt developed his plan in secrecy, working with his attorney general, Homer Cummings, on a way to ensure the court would rule favorably about upcoming cases on Social Security and the National Labor Relations Act.
By passing a law that would allow the President to appoint an additional Justice for every sitting justice who was over 70 years of age, Roosevelt could add six of his own Justices to the court. With two liberals already on the bench, that would put the odds in FDR’s favor.
While the idea may seem outlandish today, President Roosevelt must have felt the Judicial Procedures Reform Bill of 1937 stood a good chance of success. The President used one of his fireside chats in March 1937 to make his case to the American people.
“This plan of mine is not attacking of the court; it seeks to restore the court to its rightful and historic place in our system of constitutional government and to have it resume its high task of building anew on the Constitution ‘a system of living law.’ The court itself can best undo what the court has done,” Roosevelt said.
However, many Americans believed the high court was sacrosanct, and opposition to the plan steadily built inside Washington. It wasn’t assured that the proposed law would even make it out of committee for a vote on the Senate floor.
On March 10, Cummings testified before the Senate Judiciary Committee. “We want an independent judiciary, but we want a judiciary that will permit the country to move,” Cumming said. A week later, more testimony before the committee stuck a fork in the bill.
Senator Burton Wheeler read a letter from Chief Justice Hughes to the committee, which explained the need for an independent Supreme Court and debunked much of the logic behind the bill and Cummings’ testimony. An additional signer on the Hughes letter was the liberal justice, Louis Brandeis.
In the diaries of Harold Ickes, a key FDR adviser, the letter’s effect was duly noted. “This letter, without expressing itself as to the policy of the president’s plan, sought to prove in great detail that the court did not need any extra help to handle its work since it kept right up with its docket. It then went on to Congress the opinion that more judges would make for inefficiency and delay. It was good tactics,” Ickes said.
So within five weeks of the President’s announcement, the court-packing plan, as it came to be known, was heading toward a dead end in the Senate. By June 1937, the Judiciary Committee had sent a report with a negative recommendation to the full Senate. “The bill is an invasion of judicial power such as has never before been attempted in this country. … It is essential to the continuance of our constitutional democracy that the judiciary be completely independent of both the executive and legislative branches of the government,” the report read.
Its conclusion was even more direct: “It is a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.”
In the meantime, changes were afoot that made sure the whole idea of a court-packing plan wasn’t coming back in the Roosevelt administration. The Roosevelt administration was on the winning side of three court decisions involving the minimum wage, Social Security, and the National Labor Relations Act, when Justice Owen Roberts began voting with the more liberal justices.
A key conservative justice, Willis Van Devanter, also decided to retire. And by July 1937, the Senate tabled the court-packing debate for good. Its chief lobbyist in the Senate, Majority Leader Joe Robinson, died of a heart attack. Robinson had fought hard to ensure passage of the court-packing bill, and without his support, the measure was effectively finished.
In the end, President Roosevelt outlasted seven of the nine Justices who sat on the bench in 1937.