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BEN WILLIAMS — A cocktail party guide to Constitutional Law

Ben Williams

Let’s face it. The last time you studied constitutional law, marriage probably involved opposite genders. With the Donald in office and Anderson Cooper fulminating, we could all use a refresher on Con Law if for no other reason than to impugn the media’s talking heads and occasionally float a zinger at a cocktail party.

The Backdrop.   The perfervid Declaration of Independence dates back to July 4, 1776, but the erudite U.S. Constitution – creating our constitutional republic – was signed in 1789.  The Constitution limits the feds to enumerated powers (declare war, coin money, regulate interstate commerce, etc.) and necessary implied powers.

Sagaciously, the Founding Fathers spread the limited federal powers over three branches – executive (President), legislative (bicameral Congress) and judicial (Supreme Court). Checks and balances (such as staggered terms, consent, veto, and impeachment) help guard against any of the three branches running amok (for too long).

The Biggie Amendments.  The first ten amendments to the Constitution, dotingly known as the Bill of Rights, were almost the first twelve amendments. But a funny thing happened on the way to the ratification. The intended “first” amendment has yet to be ratified by the States and the “second” amendment, also presented to the States in 1789, belatedly landed the 27th slot in 1992.

This midbrow soirée primer focuses on just six of the first Ten Amendments:

The First Amendment.  The 1789 House-Senate Conference Committee should have split this one up:  freedom of religion, speech, and press, and the rights to peaceably assemble and petition the government. Religion and speech fuel incessant litigation.

The Second Amendment.  You should be shot if you don’t know this one.  The 2nd Amendment fosters both amusement and acrimony as the Living-Breathing-Non-Originalists (who concocted a constitutional right to abortion by summing other rights and perusing the penumbra) seem incapable of accepting the plain-English right of the people to keep and bear arms.

The Fourth Amendment.  Prosecutors fret over our protections from unreasonable searches, and the need for probable cause.  When the ardent police cross this line, the ill-gotten evidence may be tossed as the “fruit of the poisonous tree.”

The Fifth Amendment.  No forced self-incrimination, a federal prosecutor beholden to a grand jury for felony charges, and the government gets only one bite at the apple. Plus, the government owes us just compensation for a “taking.”

The Eighth Amendment.   An inebriated criminal defense attorney can recite this one backwards: no excessive bails, excessive fines or cruel and unusual punishment.  Amusingly, numerous Senators who demand judicial nominees’ allegiance to Supreme Court precedent also want a liberal Court to reverse dozens of Supreme Court rulings from 1879 to 2015 holding the death penalty constitutional.

The Tenth Amendment.  This federalism provision is abundantly clear. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The expansion of the federal government’s role – while perhaps convenient, expedient and even popular – is prohibited absent a constitutional amendment.

Trendy Topics.   Listening to CNN legal analyst Jeffrey Toobin will leave you in the hole.  Here are some mildly right-leaning talking points to provide balance:

Advice & Consent.  The Garland-Gorsuch-Stolen-Seat whopper fomented considerable hullabaloo.  No credible constitutional scholar believes the Senate has a constitutional duty to act on a Presidential appointment (judicial or executive), the submission of a treaty, or even a bill passed by the House. The power to act includes, inherently, the power to refrain from acting. The only default provision in the Constitution about non-action deals with the President’s failure to timely veto a law.

Separation of Church & State.  The oft-quoted separation line isn’t found in the Constitution, but emanates from a mollifying letter Thomas Jefferson wrote to the Danbury Baptists 15 years after the drafting of the Constitution.  Simply, Congress may not establish a religion, nor may it prohibit the free exercise of religion, but there is no constitutional wall.  Expect some schooling this month when the Supremes finally rule on Trinity Lutheran Church of Columbia, Inc. v. Comer.

Freedom of Speech.  The First Amendment doesn’t just protect speech we don’t like, but especially speech we don’t like. The concept of punishing “hate speech” on a public university campus ignores the clear language of the amendment and disrespects the entire concept.

Fired NSA Advisor Flynn.  Those incredulous reporters, unhinged that Michael Flynn might take the Fifth before Congress, don’t understand the Fifth – or history.  It is a cherished American right that levels the playing field between the persona non grata and an elephantine U.S. government that prints money and employs over 125,000 federal prosecutors and law enforcement officers.

Executive Orders.  When President Obama was issuing executive orders, the Democrats trumpeted Executive Power while the Republicans sought injunctions. Now, with the executive pen in Trump’s maladroit hand, the parties swapped legal briefs in an astonishing two-facedness switcheroo.  The Democrats have now even resorted to arguing States’ Rights.  Whoa!

Obstruction of Justice.  If Alan Dershowitz wants to retain his CNN position, he’d better take three steps left. The esteemed former Harvard law professor finds the calls for obstruction of justice charges unenlightened. Dershowitz has strong opinions about a president’s constitutional prerogative to direct (and fire) the Attorney General and FBI Director. The legal remedy against a sitting U.S. president – perhaps the sole legal remedy – lies in a charge of impeachment by a House majority and conviction by 2/3rds of the Senate.

Fallback.  If, during the party, you find yourself in a pinch, fall back on this perspicacious Scalia quote: “A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”

» Ben Williams is a Mississippi attorney.  Email Ben at MBWJ@aol.com.  Ford Williams attends the Savannah College of Art & Design.  


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