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The Constitution’s Week in Review – 9 Apr 2016

April 11, 2016


Article 1, Section 2: Apportionment Clause.

“Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.”  What does the phrase “whole Number of free Persons” mean? 

This week the Court told us: it includes illegal aliens.  “Representatives serve all residents, not just those eligible or registered to vote,” said Justice Ginsberg, writing for the majority.[1]  This will make a big difference during re-districting in states where illegals abound.

Article 2. Natural Born Citizen Clause (to be continued until it is definitively settled).

Results of Court of Law and Board of Election decisions concerning Ted Cruz and his Natural Born Citizen status continue to dribble in, but there was nothing significant this week, so I thought I’d summarize the results so far (thanks to a website that had already done so):

Board of Election or Secretary of State Administrative Challenges

Illinois:  Joyce v. Cruz and Graham v. Cruz:  “The hearing officer found that the Candidate is a ‘natural born citizen’ by virtue of having been born in Canada to a United States citizen, thereby not causing the Candidate to have to take any steps or undergo naturalization process to become a United States citizen.”

Indiana: Carter v. Cruz, and Kern v. Cruz: A decision was rendered to permit Cruz’ appearance on ballot but the reasoning has not been made available.

New Hampshire: Elliot v. Cruz, and Booth v. Cruz “…the commission is limited to a review of the sufficiency of the filing of a candidate. After such a review, and absent such a showing, there is absolutely no basis to reject...(a candidate's)...declaration of candidacy or to deny him a place on the...Presidential Primary Ballot.,, Applying that precedent and principle to the present challenge, no obvious defect in the filing of Senator Cruz has been presented to the Commission, and nothing to dispute the reasonableness of the Secretary of State in accepting the filing.  Clearly, there is no final decision on the meaning of "natural born citizen," and this Commission is not the appropriate forum for the determination of major Constitutional questions.”

New York: Fischer v. Cruz, Gallo v. Cruz, Laity v. Cruz. A decision was rendered to permit Cruz’ appearance on ballot but the reasoning has not been made available.
  • Court Challenges

Federal Courts

Green v. Cruz (AL): filed 3 February 2016: Still pending.

Librace v. Martin (AR): dismissed on 29 February 2016: Claimant lacked standing, no evidence of injury.

Booth v. Cruz (NH): dismissed on 2 February 2016: Claimant lacked standing, no evidence of injury.

Fischer v. Cruz (NY): filed 11 March 2016: Still pending.

Schwartz v. Cruz (TX):  filed 3 Feb 2016, Motion to Dismiss hearing scheduled for April 13.

Wagner v. Cruz (UT): dismissed on 18 March 2016: Claimant lacked standing, no evidence of injury.  Appealed to Supreme Court.  Will they grant Cert?

State Courts


Voeltz v. Cruz (Broward County, Fla. Circuit Ct.): dismissed on 4 March 2016 for lack of standing.  Judge noted a further error in not listing Florida Secretary of State as a defendant.

Joyce v. Cruz (Illinois): dismissed on 1 March 2016 because complainant failed to serve proper notice on Cruz and Election Board.

Korman v. New York State Board of Elections (New York County, Supreme Ct.): On 24 March, the New York State Supreme Court, Appellate Division, agreed with the lower court that the challenge to Ted Cruz’ spot on the New York Republican presidential primary ballot was filed too late.

Farrell v. Cruz (Pennsylvania): dismissed on 11 March, appealed to PA Supreme Court on 29 March, affirmed on 31 March: Cruz’ claim that this was a political question was denied.  But, “Having extensively reviewed all articles cited in this opinion, as well as many others, this Court holds, consistent with the common law precedent and statutory history, that a ‘natural born citizen’ include any person who is a United States citizen from birth.  Accordingly, because he was a citizen of the United States from birth, Ted Cruz is eligible to serve as President…”

Paige v. Vermont (Washington Civil Div., Vt. Supreme Court): Pending.


Summary: You will note that the majority of these decisions based their ruling on technicalities and avoided ruling on the merits of the complaints.  I’ll report on the remaining cases as results become available.


Article 2. Executive Authority.

The Court heard oral arguments this week in “UNITED STATES OF AMERICA, ET AL, v. STATES OF TEXAS, ALABAMA, ARIZONA, ARKANSAS, FLORIDA, GEORGIA, IDAHO, INDIANA, KANSAS, LOUISIANA, MONTANA, NEBRASKA, NEVADA, NORTH DAKOTA, OHIO, OKLAHOMA, SOUTH CAROLINA, SOUTH DAKOTA, TENNESSEE, UTAH, WEST VIRGINIA, and WISCONSIN, (plus their Governors, don’t you just love some of these citations?)” which contends that President Obama’s actions via Executive Order to not deport an entire class of illegal immigrants was a violation of his constitutional authority.  Forty-three Senators filed an amicus brief[2] in support of the states, which you can download at link below.  I predict yet another loss for the President. Even a tie in the Supreme Court would leave intact a lower court ruling against the President.

First Amendment. 

Those looking for a summary which shows the unprecedented hostility to the faith community by this administration, need look no further.  Alliance Defending freedom has put one together for you.[3]  Read and weep.

On a brighter note, the Court (not the administration) seems to be looking for a way to accommodate the religious convictions of the Society of Little Sisters[4] in their fight over being forced to provide contraceptive and abortifacient coverage in their Obamacare-compliant health policies.  After hearing oral arguments on March 23rd,  the Court this week issued an unusual order directing the parties to submit supplemental briefs by April 12th that show how the contentious coverage might still be obtained by the employees of religious objectors’ in a way that would leave the objectors out of the process.  The 4-4 tie that observers predicted in the case (which would mean a loss for the Sisters) apparently does not sit well with the Court and they seem to be looking for a win-win solution.  Hopefully, someday we’ll find out who on the Court was persuasive in seeking this alternative.

Sixth Amendment. 

 “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”  

But what if the government has seized all your assets and made it impossible for you to hire a lawyer to defend yourself?  Must you then accept a public defender?  

This week, the Supreme Court said seizing “untainted” assets[5] violates the meaning of the 6th Amendment.  Even though the only originalist left on the bench, Justice Clarence Thomas joined the 5-3 majority (who says the court can’t get business done with eight justices?), I don’t see this as a very “originalist” ruling.  Fair perhaps, but not originalist.  Nothing in the sparse words of the Assistance of Counsel Clause[6]implies you must be free to hire your own lawyer, only that you must be allowed the assistance of one.  Lots of defendants who are unableto hire their own lawyers, for whatever reason,  are provided one free of charge, and we think that’s just fine.  

It is a great temptation to view a court decision as solely requiring fairness; isn’t it about “justice?”  No, not in the case of the Constitution.  Constitutional decisions should be based on what the document meant to those who ratified it and nothing else.  If that produces an “unfair” circumstance, then the people should amend Constitution to produce the outcome they desire.

Meanwhile in the States:

Standing.  “Standing,” as a legal term, is “the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case”[7] (see the Ted Cruz “birther” cases). 

The California Supreme Court has  ruled[8] that companies in that state can’t make you stand at work even if that is the major way you perform your duties.  California state labor regulations apparently require employers in that state to provide workers with “suitable seats” when the nature of their work “reasonably” permits the use of seats.  This now means that cashiers and tellers must be accommodated. 

I suspect that other states have similar regulations.  If you don’t own stock in a company that makes stools, now would be a good time to buy that stock (I have no idea what companies those would be and this is obviously not investment-grade information).  Take note: this was not a Court looking for an opportunity to meddle in the operation of businesses, someone, tired of standing while doing a job that was probably advertised as requiring standing, filed suit.  Our litigious society strikes again.

Privacy.  (Since there is no “Privacy Amendment” in the Constitution, privacy being a “right” kludged together by the Court from “emanations from penumbras” of the Constitution, I didn’t know how else to label this).  I used to think a stingray was either a deadly sea creature capable of killing a man (“September 4, 2006: 'Crocodile Hunter' Steve Irwin killed by stingray while filming TV show”) or a wickedly fast car made by Chevy, now we add a third meaning: cell phone tower simulators that enable the police to track your whereabouts (as long as you are carrying a cellphone, that is).  

A Maryland court has ruled[9]that police may not just set up such devices and start collecting information on the whereabouts of anyone and everyone, they must “disclose their intent to use a cell-site simulator to a judge and obtain a probable cause warrant,” presumably listing a certain individual they wish to find.  Good to know.

Sources:

[1] http://www.washingtontimes.com/news/2016/apr/4/supreme-court-illegals-count-apportionment/
[2] http://www.cnsnews.com/blog/terence-p-jeffrey/43-senators-tell-court-obama-trying-change-law-extra-constitutional-assertion
[3] http://www.adfmedia.org/files/obamareligiousfreedomattacks.pdf?ct=t(NEC_Roger_Gannam_20160405_20160402)&mc_cid=aa79f5d448&mc_eid=a25ec4da59
[4] http://www.breakingchristiannews.com/articles/display_art.html?ID=17927
[5] http://dailysignal.com/2016/03/31/supreme-court-hands-down-big-sixth-amendment-win/?utm_source=TDS_Email&utm_medium=email&utm_campaign=CapitolBell&mkt_tok=3RkMMJWWfF9wsRonu6TJc%2B%2FhmjTEU5z16uwtWqS2gIkz2EFye%2BLIHETpodcMTcRm
[6] https://en.wikipedia.org/wiki/Assistance_of_Counsel_Clause
[7] https://en.wikipedia.org/wiki/Standing_%28law%29.
[8] http://losangeles.cbslocal.com/2016/04/04/court-employers-must-allow-workers-to-sit-if-they-prefer-while-on-the-job/
[9] https://theintercept.com/2016/03/31/maryland-appellate-court-rebukes-police-for-concealing-use-of-stingrays/

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 being a regular contributor to CT, he writes regularly for the Fairfax Free Citizen of Fairfax Virginia. Mr. Porter also teaches at various locations around Virginia.
Visit Gary Porter's website at http://constitutionleadership.org/

 


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