The Constitution’s Week in Review – 1 Apr 2016

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

Another week, another NBC suit.[1]  This time a New York appeals court upheld a lower court's dismissal of a suit seeking to remove Republican presidential candidate Ted Cruz from the state's primary ballot due to his birth status.  Once again, there was no ruling on the merits of the case; the lower court dismissal was on a technicality (plaintiffs missed the deadline for filing their objection by nearly three weeks!).  The appeals court said: “Yep, shore enough missed it, by jimminy!” (or the legal equivalent).  Other suits remain pending in other states.

Article 3. Replacing Scalia

As more and more analysts find time to sift through each of Merrick Garland’s previous opinions, more conclusions come to the fore.  This one[2] concludes that “In Criminal Rulings, Garland Has Usually Sided With Law Enforcement.”  That should all make us sleep better at night.

Shortly after the death of Justice Scalia, I discussed the potential impact of his vacancy, including the potential for 4-4 tie votes.  Well, it happened this week.[3]  We can be nearly certain that Scalia would have provided the fifth vote necessary to overturn the appeals court ruling that California teachers must still pay fees to their union even when those funds are then used to support candidates and political issues with which some teachers disagree.[4]
A 4-4 tie leaves intact the lower court decision and establishes no precedent for the rest of the country.  Chief Justice Roberts could have delayed the opinion until such time as Scalia’s seat is filled and had the case re-argued, but decided against that for some reason.

Meanwhile in the States:

Fifth Amendment.  “Progress” trundles on.  What city, including North Saint Louis,[5] wouldn’t like to improve its appearance and increase its tax revenue?  The opportunity for federal dollars makes the idea even more alluring.  Too bad some homeowners have the misfortune of living in the way of that “progress.” 

The National Geospatial-Intelligence Agency is apparently thinking of moving its headquarters, and North St. Louis wants to make them a deal it can’t refuse.  Since no decision has been made to actually move the headquarters, the city’s eminent domain action seems a bit pre-mature.  And then there’s the issue of low-balling the value of the homes.  Thanks to the Supreme Court’s Kelo v. City of New London, cities require very little justification for the taking of private property.

Eighth Amendment.  The Eighth Amendment to the US Constitution prohibits excessive bail (among other protections). What’s excessive?  There have been many, many court decisions [6] over what is excessive, but each case brings particular circumstances. 

 Two Texas mothers driving through Louisiana had the misfortune of being charged with a crime they say they didn’t commit: eating two hot dogs, milkshakes and an icee at a convenience store without paying.  They were certain surveillance video would clear them but the officer who arrested them didn’t want to take the time to investigate, so he took them into custody.  When they couldn’t initially make bail (relatives were 400 miles away) the women had to spent five days in jail instead.  Reading this account one wonders what happened to common sense in this country.

[1] http://www.newsmax.com/Headline/cruz-canadian-birth-suit/2016/03/24/id/720759/
[2] http://mobile.nytimes.com/2016/03/23/us/politics/merrick-garland-supreme-court-nominee.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=second-column-region®ion=top-news&WT.nav=top-news&_r=3&referer=
[3] http://us4.campaign-archive1.com/?u=f6eb78f457b7b82887b643445&id=8526f4c9bf&e=5fdac00100
[4] The teachers can opt out from paying these fees but must re-initiate the opt-out each year.
[5] http://dailysignal.com/2016/03/18/st-louis-residents-are-battling-the-city-to-keep-their-homes/?utm_source=heritagefoundation&utm_medium=email&utm_campaign=saturday&mkt_tok=3RkMMJWWfF9wsRonu6rPd%2B%2FhmjTEU5z16uwtWqS2gIkz2EFye%2BLIHETpodcMTcRhNL3YDBceEJhqyQJxPr3NLtQN191pRhLiDH3rhbLOWYxceLV9yOhlovn9jDc%3D
[6] https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases_involving_constitutional_criminal_procedure#Eighth_Amendment.27s_Excessive_Bail_Clause