Official Newspaper of Eddy County since 1883
Official Newspaper of Eddy County since 1883
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The first landmark ruling delivered by the U.S. Supreme Court was Marbury v. Madison (1803), in which Chief Justice John Marshall asserted the power of judicial review, the authority of the federal judiciary to review the constitutionality of governmental acts, including laws passed by Congress. Consider the fundamental impact of the power of judicial review for American Constitutionalism. In 1627, in The Five Knights Case, an important case in English legal history, the Attorney General, representing the King, asked: “Shall any say, the K...
The year-long commitment of this column to the exploration of the Constitution has focused, primarily, on historical explanations of the aims and purposes of delegates to the Constitutional Convention. On occasion, we have illuminated constitutional controversies surrounding current governmental acts through this historical lens, a method which largely avoids charges of partisanship, and leaves disappointed readers to quarrel, not so much with this author, as with James Madison, Alexander Hamilton, George Washington and others who wrote the...
The Supreme Court's historic rejection in U.S. v. Nixon (1974) - "The Watergate Tapes Case" - of President Richard Nixon's assertion of an "absolute" and "unreviewable" authority to invoke executive privilege, saved the republic from an unaccountable, autocratic executive, and won richly-deserved praise from a grateful citizenry across America. But the court cut the ground from beneath its landmark ruling with a wounding declaration that the president enjoys a "limited" executive privilege:...
Delegates to the Constitutional Convention, as we have seen, did not fail to address the issue of presidential authority to invoke executive privilege. Rather, they chose not to clothe the president with power to withhold information from Congress. The framers of the Constitution, part of a generation that fought executive tyranny in the form of King George III, studiously avoided any pretense of granting to the newly-minted presidency a power that was denied to the English monarchy. The absence of any mention of executive privilege in the...
Former President Donald Trump’s assertion of executive privilege to deny the January 6 Select Committee access to his aides, advisers, documents and memo, brings center stage, once again, the issue of the nature, scope and authority for presidential claims to secrecy. Rarely have the stakes for the republic been this high. The committee’s investigation into the insurrection at the Capitol rightly probes the question of whether Trump incited the insurrectionists to storm the citadel of American democracy, and the extent to which he may have org...
The Preamble to the U.S. Constitution, regrettably often overlooked by the citizenry, provides an elegant summation of our nation’s constitutional creation story. It speaks of the work of the sovereign people. It represents a direct act of legislation, and introduces and forms part of the supreme law of the land, distinct from any and all future laws that will be passed under its authority. The Preamble is a historical and legal colossus. In the Pennsylvania State Ratifying Convention, James Wilson, a leading delegate to the Constitutional C...
Article V of the Constitution—the Amendatory Clause—provides the constitutionally prescribed means for changing the Constitution to keep it adequate to the needs of the American people. This innovative provision empowers the citizenry and their representatives to breathe life into the aspirational language of the Preamble: “ to form a more perfect Union.” The essential values embodied in the Amendatory Clause tell the story of American Constitutionalism. Above all, its inclusion in the Constitution demonstrates the framers’ humility. Delegates...
The Supreme Court’s authority, grounded since the dawn of the republic in its prestige and reputation, now faces the storms that have overwhelmed Congress and the Presidency, and diminished the institutional popularity of our political branches. A recent Gallup poll revealed that just 40% of the American people approve of the performance of the nation’s highest tribunal. The political polarization that has torn apart our grand republic represents a grave threat to the perception of the court as an apolitical body rendering detached, authoritati...
The Supreme Court’s watershed decision in Griswold v. Connecticut (1965) which, as we have seen, introduced a general constitutional right to privacy, sufficient to protect a married couples’ right to use contraceptive devices, has exerted tremendous influence over the past half-century. Roe v. Wade (1973), very likely the most controversial ruling ever rendered by the High Tribunal, rests on Griswold and the right to privacy. In Roe, the court’s opinion, authored by Justice Harry Blackmun, held that the right to privacy, whether groun...
The U.S. Supreme Court’s landmark decision in the 1965 case of Griswold v. Connecticut established the right to privacy as a fixed star in our constitutional constellation and, in the process, guaranteed married couples access to contraceptive devices. Griswold falls into the category of a “great” case because of its enormous influence in expanding the rights and liberties of Americans. Griswold involved an old Connecticut law that prohibited married couples from using contraception. The law reflected a legislative preference for procr...
Although not mentioned in the Constitution, the right to privacy has been invoked by its enormous following as thoroughly American and indispensable to our conception of liberty and freedom. Its partisans have expressed numerous reasons for its exalted status in the hearts and minds of the citizenry. It prevents the government from spying on the people. It protects personal data. It protects freedom of speech and freedom of religion. It protects one’s reputation, voting rights and participation in politics. While not everyone agrees with the a...
Whatever you think about the U.S. Supreme Court’s controversial, 5-4 midnight ruling on the Texas statute forbidding most abortions in the state, one thing is clear: the Court bears, in the name of accountability, the great responsibility of explaining its reasoning to the American people. The Court’s reliance on the “shadow docket,” a historic practice of ruling on emergency petitions, to uphold a novel law that greatly diminishes Roe v. Wade, and converts every Texan into a law enforcement official, constituted a sharp departure from the usua...
Americans typically consider questions about the meaning of the Constitution through the prism of their own political views and values. As a consequence, they tend to defend as constitutional the acts of officials whom they support, and criticize as unconstitutional the acts of those representatives whom they oppose. This approach implies that the meaning of the Constitution turns on whose ox is being gored. Politics, partisanship and party affiliation are the controlling levers of constitutional understandings. This method of constitutional...
How many more Americans would have to die before the United States made the inevitable decision to withdraw from war in Afghanistan, after 20 years of war, at the cost of more than $2 trillion, and the loss of 2,500 lives? That was the illuminating question that guided President Joe Biden’s decision to pull U.S. troops out of “the graveyard of empires.” Indeed, how many more? The decision to withdraw was inevitable, as every president ensnared by the war — Bush, Obama, Trump and Biden — knew painfully well. The putative Afghan governmen...
The founders believed, as James Madison wrote, that Americans possessed sufficient virtue to summon the courage and conviction to do the right thing in the face of the most trying circumstances. This might mean that citizens would find it necessary to set aside their personal interests and ambitions in pursuit of the common good. At this critical juncture in American history, when COVID-19, especially the virulent Delta variant, is menacing our nation’s public health and threatening our economic recovery, the return of children to school, a...
The U.S. Senate’s constitutional role in the appointment process for federal judges empowers it to thwart presidential nominations to the bench, including those nominated to the Supreme Court. More than one president in our history has felt the stinging rejection of a prospective member of the High Court. Article II, section of the Constitution provides that the president “shall nominate, and by and with the Advice and Consent of Senate,” shall appoint “Judges of the supreme court.” The “appointment power” is a shared power, jointly exerc...
The framers of the Constitution inserted the Advice and Consent Clause to insure joint decision making between the president and the Senate in the exercise of the treaty making and appointment powers. What happens when the aims, purposes and spirit of that clause are abused or circumvented by either one of the joint decision makers? We focus this week on the ability of presidents to thwart the constitutional blueprint for advice and consent of the Senate. Presidents possess considerable means to abuse and circumvent the Advice and Consent...
Some readers may remember that their introduction to this ancient phrase came when they picked up a copy of Allen Drury’s 1959 Pulitzer-Prize winning novel, “Advise and Consent,” which described a passionate and energetic U.S. Senate engulfed in a controversial confirmation hearing for a nominee to be Secretary of State. Others will recall its invocation in the setting of a government class, newspaper article or the nightly news broadcast. Familiarity aside, “advice and consent” was drawn by the framers of the Constitution from the deep well...
The debate surrounding proposals for term limits on members of Congress would benefit from a reminder of the reasoning behind the 22nd Amendment, which imposed a two-term limit on the presidency. That amendment, ratified in 1951, is now 70 years old. Although small pockets of voices advocating its repeal can be heard from time to time, polls show that Americans, with good reason, believe strongly in the merits of that fundamental change in the Constitution. Constitutional history can be a useful guide in a nation’s decision-making process. T...
Students of the Constitution often ask for an explanation of the Constitutional Convention’s rationale for distinguishing the length of terms for members of the U.S. House of Representatives, and the U.S. Senate. Why, they wonder, do Representatives serve two-year terms, while Senators serve six-year terms? The starting point for analysis of Article I, Section 2 and 3, of the Constitution, as James Madison wrote in Federalist No. 52, is to understand that the entire debate in the Philadelphia Convention and, for that matter, throughout the coun...
On June 21, 1788, New Hampshire became the ninth state to ratify the proposed Constitution. This was an act for the ages, because it not only marked the technical implementation of the new law of the land but, in the words of James Madison, written on April 6, 1796, the "instrument"-the Constitution-"was nothing more than a draught of a plan, nothing but a dead letter, until life and validity were breathed into it, by the voice of the people, speaking through the several state conventions."...
Does Congress, under the Time, Place and Manner Clause of the Constitution, possess authority to “alter” or otherwise override state laws governing the conduct of congressional elections? That is the central constitutional question at the heart of the heated political debate surrounding H.R. 1 — the “For the People Act” — which will determine whether Congress can protect Americans’ voting rights that have been, or will be, restricted by the passage of some 60 state laws across our nation. What were the framers of the Constitution thinking when...
Former President Donald Trump has been telling people that he expects to be “reinstated” as president, in August. The premise behind this theory, embraced by his MAGA supporters, is that President Joe Biden’s election victory will be overturned following Republican “audits” of election results in Arizona and Georgia. This is no joke. Charles W. Cooke, senior writer for the conservative magazine, The National Review, has gone on record to attest to the accuracy of these reports. “Maggie Haberman,” the New York Times reporter who broke the sto...
Likely the most mysterious provision of the Bill of Rights, the question of the meaning of the Ninth Amendment, has generated numerous interpretations and theories. Though not invoked by the Supreme Court for the first time in our nation’s history until 1965, it has come to play an important role in advancing the rights and liberties of Americans everywhere. The right to privacy, intimate relations, same-sex marriage and raising children in a manner consistent with parental values, are but a few of the many rights asserted in the name of t...
Throughout our nation’s history, the 10th Amendment to the Constitution has been misconstrued for the purpose of advancing state sovereignty, at the expense of the Supremacy Clause. Some have invoked it as a second Supremacy Clause. The language of the amendment is tantalizing for advocates of state powers broader than those actually vested in state government, but the text requires a close reading. The 10th Amendment provides: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are res...
