The Constitution’s Week in Review

February 22, 2016

The Constitution’s Week in Review – 20 Feb 2016
Article 2. Natural Born Citizen Clause (continued, ad nauseum).

Folks continue to come out of the woodwork, many with stellar conservative credentials, who think the case of Ted Cruz’ citizenship is a “slam dunk.”  As I’ve said before in these pages, until the Supreme Court steps in, everyone is entitled to their opinion, but each will remain just that, an opinion.  The Framers flat-out didn’t tell us what they meant by the phrase and all the circumstantial evidence remains circumstantial.

As a GOPUSA article points out, we may soon have a judicial opinion from an Illinois judge, but if that opinion goes against Cruz he will surely appeal, and the appeals process will take some time.  Meanwhile, the other three lawsuits proceed apace.

Article 3.

The world of law, indeed much of America, was shaken this week with the untimely death (at the brisk age of 79) of Supreme Court Associate Justice Antonin Scalia.  With Scalia gone the court sits with three conservatives (Robert, Alito, and Thomas) one moderate swing vote (Kennedy) and four dyed-in-the-wool liberals (Ginsburg, Kagen, Sotomayer, and Breyer).  As The Weekly Standard points out in “The Mirth of Scalia,” the Court has also lost its Chief Mirth-Maker.  Note: listening to oral arguments can be taxing but you get a sense for the plight of the poor lawyers who come unprepared.

Until Scalia is replaced you can expect some 4-4 ties; but that’s not to say that all decisions would result in ties; there have been several 9-0 decisions during the last eight years and everything in between.  There are some incredibly important cases coming up this term and it is anyone’s guess how this will affect them.  That’s not keeping some pundits from guessing.

Three important cases have already been heard; an important voting rights case was heard December 8; Affirmative Action on December 9 and an important labor union case was heard January 11. The Court has the option to order them reheard by the eight remaining Justices or just ignore Scalia’s now moot vote.  Three more cases are still to have their hearings, and Scalia would have played a big role in each, perhaps being tasked with writing one of the opinions. Those critical cases are Abortion, to be heard March 2; Contraception, to be heard March 23 and an Immigration case is to be heard in April.

The immediate question is: when will Scalia be replaced and what kind of jurisprudence will his replacement bring to the court?  Will they be an originalist, as was Scalia, a moderate, or a progressive?  With only one other originalist jurist still on the Court (Thomas) it would certainly be nice to see the President nominate someone of like-mindedness.  But I’m not holding my breath on that.  The Daily Signal article “Fight to Replace Scalia Proves Supreme Court has become to Powerful,” thinks all the suspense over this issue proves that we have created a far-too-powerful Supreme Court.  I agree; way too powerful.

President Obama will face considerable pressure from the Left to nominate a progressive, and would be disposed himself to do so.  But he may surprise us all.  If he nominates a “flaming liberal” it is unlikely the Senate will move to confirm at all, at least not until after the November elections and we see which party will be in the White House come January.  If Obama actually wants to have his nominee confirmed he will nominate a moderate and thus throw the ball back into the Senate’s court (sorry for the pun). 

But must the Court have nine justices?  Article 3 of the Constitution provides Congress the exclusive authority to set the number of justices on the Court.  The Supreme Court began in 1789 with six justices, moved to seven, then nine, then ten, back to eight, then finally settled once again at nine in 1869.  It’s remained there ever since.  FDR tried to pack the Court with six additional liberal justices in 1937 when the Court consistently refused to sanction his New Deal legislation.  Fortunately, the Congress saw through the thin ruse and did not comply.  If Congress wished the Court to remain at its present eight Justices they could pass legislation tomorrow so stating – providing the President didn’t veto it, unfortunately a near certainty. 

The longest a Supreme Court seat has gone vacant was 391 days (in 1969-1970 when Abe Fortas resigned unexpectedly).  Jeffrey Anderson, writing at the Weekly Standard, believes the Congress should just leave the Court at eight for the foreseeable future, and that there may even be benefits to this.  Does the Senate have an obligation to confirm any particular nomination?  No, but they will be under considerable pressure to demonstrate why the President’s nomination is singularly unfit for the highest bench.  And that may be a tough case to make.  Republicans have been castigated for talking delay, even as evidence that both Barack Obama and Hillary Clinton filibustered the nomination of Justice Samuel Alito.

Replacing Scalia with a liberal or progressive will tip the Court’s balance for quite some time, at least until the death or retirement of Ginsburg (83), Kennedy (79) or Breyer (78) gives the next President another opportunity.  If a Democrat succeeds Obama in January all three of these jurists will probably quickly retire, confident their replacements will sustain the liberal presence.  Stay tuned for a big fight this summer.

Property Rights.

Some farmers here in Virginia have had long standing fights with conservation easement managers over the proper use of the land the farmer owns or leases.  The easement managers have imposed draconian requirements that threaten to put the farmers out of business, perhaps so that manager’s friends can come in and scoop up the land.  Farmer Martha Boneta has had some success in getting the Virginia Assembly to come to her aid, and now a Virginia vintner has experienced success in court.  The Land Trust will surely appeal, so we haven’t hear the last on this, but I’m certain that such trusts exist in other states and similar battles.  Perhaps the citizens of other states can take heart at the successes here.

 This article was originally published on Fairfax Free Citizen
Cruz citizenship lawsuit heads to court day before SC primary;” GOP USA
The Mirth of Scalia;” The Weekly Standard
Fight to Replace Scalia Proves Supreme Court Has Become Too Powerful;” The Dailey Signal
Antonin Scalia’s Open Supreme Court Seat Could Set Record For Vacancy;” Time
Eight is Enough (For Now);” The Weekly Standard
Hillary has no regrets about trying to filibuster Alito, Roberts;” Washington Times
Farmer Turned Property Rights Activist Presses Court Fight With Green Group, Realtors;” The Dailey Signal

Copyright ©2016

Gary Porter is Executive Director of the Constitution Leadership Initiative, Inc., a project to inform Americans about the Founder’s view of their Constitution. In addition to writing "The Constitution's Week in Review" at, he writes regularly for the Fairfax Free Citizen of Fairfax Virginia. Mr. Porter also teaches at various locations, as well as hosting a weekly radio broadcast ("The Constitution Matters"). The program can also be heard live on the Internet every Friday morning at 
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