Constitution

Today is Constitution Day. Today we celebrate a group of racist, white, male landowners finalizing a brilliant document that could be changed to overcome their parochial limitations.

I’m not the kind of guy to chestily proclaim that America is the greatest country on Earth, but I’ll put our organizing legal document up there with anyone’s. I’ve read a lot of constitutions (3L Comparative Constitutional Law finally paying off), and I’m always impressed by our document’s ability to allow for so many different and fractious opinions on how the country should operate. Whether or not you believe in a “living” constitution in the Brandies sense of the word, that our constitution is still alive is damn impressive. As written, our president and our presidential front-runner couldn’t even vote. Half the country went to WAR to get out of the constitution, and when they lost, we didn’t even say, “Okay, let’s start over so this never happens again.” We fixed the constitution after the Civil War, but we didn’t bother to fix the South. Amazingballs.

One of the main strengths of our constitution lies in its amendment process. The thing can be changed, quite easily actually, so long as everybody agrees. And it turns out that we don’t agree very much.

To honor this document, some of us at Above the Law wanted to look at the surprising instances since 1787 when we all agreed. The Bill of Rights doesn’t count. And the Civil War amendments don’t count because, well, we didn’t really all “agree” so much as half of us got their asses kicked and had to eat it. So let’s go with any amendment after the first 15. You could make a compelling case that American political thought can be explained by which of those first 15 Amendments are the most important to you or to your life (and if you read that and thought “the 8th,” I feel so goddamn sorry for you).

But while the latter amendments aren’t likely to show up on a 1L’s list of “amendments I know by number,” they define our modern polity almost as much as the first ten. Let’s talk about them. Let’s talk about our moddable constitution…

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A previous version of this story incorrectly stated that Scalia views the Constitution as a living document.

– A notable correction issued by the Huffington Post, after the publication incorrectly characterized the views of Justice Antonin Scalia, an originalist. Six months earlier, HuffPo quoted Justice Scalia as stating that the Constitution is “dead, dead, dead.”

Justice Antonin Scalia

In the light of the evolving standards of decency, somehow we at the Supreme Court, we Harvard and Yale lawyers, we somehow can perceive these evolving standards of decency because we learned all this stuff at Harvard Law School.

– Justice Antonin Scalia, joking about the justices of the Supreme Court bench and their ability to interpret constitutional law based solely on the prestigious law schools they attended.


* What if — gasp — we rewrote the U.S. Constitution today? Take a look at this discussion once you’ve picked up your shattered originalist jaw from the floor. [Room for Debate / New York Times]

* Kim Dotcom’s extradition hearing has been postponed until next spring. Maybe this will allow him more time to throw bodacious pool parties. [Threat Level / Wired]

* A photo of $211,223.04 that Matthew Inman of the Oatmeal raised for charity. Hopefully this means that the Oatmeal/Charles Carreon lawsuit circus is finally leaving town. [The Oatmeal]

* “Bada da da daaah… I’m loving it! Now give me my Big Mac or I’ll shoot you in the face.” [Legal Juice]

* A San Francisco restaurant finds an creative way around California’s new foie gras ban. Force-fed duck liver 4Lyfe! [Inside Scoop SF]

* The Supreme Court Term feels like a distant memory, but now’s a good time to look back on it with added perspective. Courtesy of MoloLamken, here’s a great guide to the big business cases of the Supreme Court Term just ended. Download or print it, then read it at your leisure. [MoloLamken (PDF)]

* A nice review of Inside Straight columnist Mark Herrmann’s new book. (The ATL commenters even get a shout out. Boo yah!) [Legal Writing Prof Blog]

* Man, the economy is so bad, monks are having to go to court to fight for a new revenue stream. [WSJ Law Blog]

* We have peace between a Texas auction house and the President of Mongolia over the ownership of a Tyrannosaur skeleton. While we’re here, should anybody wish to invite me to a pre-screening of their inventive dinosaur park, I’d like to note that I’m not the type of bloodsucking lawyer who leaves children behind. [Heritage Foundation]

* Did you know Sullivan & Cromwell got involved in the birther controversy? The first one, the legitimate one with Mitt Romney’s father. Not the ridiculous one that Romney’s been embracing. [Reuters]

* Speaking of Mittens, did you know he supports for-profit colleges? That’s like supporting people jumping off the Empire State Building, so long as they pay to get in. [Salon]

* Could an accounting firm pull a Dewey? [Going Concern]

* Have an idea for how to improve the Constitution? Share it with the good folks over at Slate. [The Hive / Slate]

Let's just say that my Google Image search for 'black prophet' was underwhelming.

* When the student debt bubble bursts and causes general economic ruin, I don’t want to be called a “prophet.” You may call me “messenger,” as in the sentence, “We’d like welcome the messenger, Elie Mystal, to the program. Tell us, seer, what it was like being so far ahead of the curve.” [Democrat and Chronicle]

* No one expects the Spanish Inquisition American Government. [The Atlantic]

* Here are some good apps for legal types, but I don’t see the one for models and bottles. [OnlineCollege]

* If you are writing a new Constitution would you really want to start by copying ours? Really? Really? Nothing of import has happened in the past 200 years that you wouldn’t at least want to reflect in your brand new governance document? [Recess Appointments]

* Upstate New York courthouse officers get the job done. [New York Law Journal]

* The Widener defamation suit was settled. [Philadelphia Inquirer]

* Who will be fined for MIA flipping the bird during halftime of the Super Bowl? I think the FCC should fine itself. It’s only by acting like shocked prudes every time a bare breast shows up that some no-name thinks she can make a big name for herself by giving the finger to nobody in particular. For the love of Christ, Adriana Lima offered me a goddamn blow job during the Super Bowl, but the FCC wants to react to the finger? [The Legal Blitz]

* Sonia Sotomayor couldn’t make time to attend the State of the Union, but you can find her on Sesame Street after the jump…

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Clarence Thomas set the table for the tea party by making originalism fashionable again.

Berkeley Law professor John Yoo, in an interesting Wall Street Journal piece discussing how his former boss, Justice Clarence Thomas, has defended the Constitution and embraced originalism during his twenty years on the high court.

Arkansas town attempts to bring back totalitarianism.

Most people would expect that a post discussing unconstitutional behavior from a town in Arkansas would have something to do with religion. And in fairness, new ordinances from the city council of Gould, Arkansas do raise First Amendment concerns.

But the Gould city council isn’t trying to impose its view of God upon the public sphere. Instead, Gould just decided to ignore the protections for freedom of association. Apparently things have gotten so contentious between the city council and the mayor that the council has prohibited the mayor from meeting with people without the council’s approval.

And then the council decided to make it illegal to form any kind of group, whatsoever, without city council approval.

So yeah, Gould, Arkansas: Now technically home to one of the most totalitarian regimes in the Western Hemisphere…

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