News Scrapbook 1986

--- ---~-~-~----- Q: So that, in your view, should be Q: What i£ push came to shove today, and Congress said, we with- draw jurisdiction from the Supreme Court in this area. Who would win? A: The Supreme Court wins every time. The Supreme Court is the final arbiter of the Constitution. And we are a country of laws that abides by what the Supreme Court says, even if left to the states? A: Yes. The big argument there was a concern by the radicals of the 1866 Congress to extend suffrage to protect black suffrage. And that could not achiev a ,najority vote in either house. The ~ubject ilf ,;uffrag1.; was simpl)' left aione cXCt:pt ai; set forib in the second section of tne 14th

Amenoment, wnich has never been utilized :md :vas not utilized in that decision. Q: bat do you say to people who arg c. that in instances such as the reapportionment decision that yo_u can make a case that the court 1s exceeding its authority or at least is reaching, but that it results in a greater good for the greater number, becaus if questions like reappor- tionment equity were left to the states there would be many more in- justices than there ar now? A: It's not a concern of the courts wher people come around and sa_y, · ell, tht judgt did it because 1t will benefit ,he peoplt 1t will do more goo fo, p1c:ople. We're not putting judges thert tc, tell os what's good for the count, y, what the public interest is. They ma} do so in the interpreta- tion process, but only ancillary to the interpretation process. That's why we have a Congress and we have a democratic society. When the court Q&A: comes around and tells the people what's good for them, that's com- pletely outside the purview of the judicial branch. The court then is acting like a legislature and not doing what it's supposed to do, which is to look at what the legislature has done and :;ee if that's consistent with the Constitution. \l: Would 1 ou apply the same standard to Brown vs. Board of Edu- cation'! A: es. thmk that was an in- stance where the court used a por- tion of the Constitution it should not have used. It could have gotten the same result, I think, through other provisions of the Constitution. But the way it did it, it was telling the public how the educational process should operate. And the educational proceS!i is within the pu1 view of the states. That's the spending or the peo- ple's ,noney That should be done by tht states. 'fht: samt esult of elimi- nating st!gi.,gation, I think, could ha ·~ been accomplished through iither sectioru, of the Constitution. It would have been a much more plau- sible way of doing so, and it would ha e been l!onsistent with the Consti- tution. )3 111a1:d S1egan U 'IJ profosso1 of law

J

26 1986

,.Jlfl,n '•

, "· , xa~

P. c e

/ Wat~ing as the Supreme Some p;}~Eon in the Gramm-Rudman balanced-budget act appear to disagree with constitutional procedures for approving the budget, Bernard Siegan, USD Jaw prgfessor and authority on the Constitution, told San /)iego Union editors. He belie-,;es the law faces serious constitutional problems. The interview fol-

If the Supreme Court goes outside the Consti- . tution, then it's no longer a system of laws. It be- comes a system of indi- viduals and that certain- ly has occurred thwugh- out the years. It's m on y illustrated by whar you point ou , but it's happened throughou th years.

lows.

Qu · u . What are t t goal · of the Bl entennial (',0mmi · ion that will D on 1' eb 3'! An ·wer: Well, tu celebrate th two events that a1c ver} uuportant in Am rican history One 1s th frau 1111; of the Conshtullon of the Umted States, and se<"ond 1s the ratification of the Constitution. Framing oc- curred on Sept. 17, 1787. fh • ratifica• tion occurred when thr t'-qu rten, of the states ratified th oni;titutton m 1788. It w nt into effect tn 1789 and we propo ·e to eel b ate thus events and enwurage the country to cele- brate those events as much a po ·1- ble. me t at

we don't like what the Supreme Court says. The Supreme Court ha~ been enormously important in ou, lives. It's changed the way of life m the outhern states. It's done a lo, i things that have been unpopular .so when it comes to push vs. shove, it's the upreme Court every time. Q: Then your ultimate ans'\\"' t that question is that he aly real check on the uprem Courl is the power of impeachment? A: Yes. But that s a o;ve, that's rarely exercised, and ha , onl)' been exercised once. overn ment of laws, and you referred earli er to what five memberbof th .!our may do. These five have, in effect, legislated changes uch as the abor- tion decision. So ,1ren't we in effect living under a government of men, rather than lawb, when fiv mem- bers of the Supr m urt call leg- islate in that way'? A: 1f the Supreme Court goes out- ·1de the Constitutio , then it's no longe, a systen, of laws. It becomes a ~ystem of individuals and that .:er- amly has OC\:U ed th ougnout the years. It's not 11Jy illustrated by what you point om, but it's happe, ed throughout the yea . Q: Let us put it lo you directly. In your opinion, is the Roe vs. Wade de- cision unconstitutional, and if so, in what way? A: I do not consider it consistent with the Constitution in many ways. One, the due process clause was the basis for the decision. The due pro cess clause is a very broad clause ot the Constitution. It's in th£ 14th Amendment nd the 5th Amendment. l d not .:onsiae 1t b1 oad 1::11ough to allow for the te11 maho1 ot life. And that's what the Roe vs. Wade deci- sion involve . The protection given women to have abortions also in- volves the termination of life. I can't see the due process clause - which was an effort to preserve and protect life - being used for a purpose of that nature. There are various other illustrations. Go write down Black- nur, s opinion - he s the one who , ut€ the opinio - and you II find Jots 01 things wron 6 ith it. The .na- jority 1 .1.Sed a ery high evel ot scn1- 1uy, which u; to say hat they .sub- jec.etl the abortion Jaws to a high standard of review. They looked at that law very carefully. The) gave it the maximum scrutiny. Well, it's a question whether the situation re- quired that kind of scrutiny. The court gives different kinds of scrutin- ies to different kinds of liberties. Some liberties are given minimum scrutiny. In economic liberties it vir- tually will let anything stand. But when it came to the abortion ques- tiou, the courl gave it maximum scrutiny auo there 's 4 ues t ion whether here is any basb •for the court having Ul,ed maximun, sc1uti- n:, iu that siluatiou. Q: You say that we re d Q: Do o think the Supreme Court transgre ed its authority when it ruled in the oue-man, one-vote case? Could you explain why? A: I think the 14th Amendment was not intended to cove1 suffrage at all. And that's the opmion that Justice Harlan took in his dissent. If you look at the 14th Amendment, Section 2 ~overs uffra e. It ·over ;1othing !1ke the one-person, one-vole kind of mterpretallon that the up ·eme Court made. conside1 that com- pletely outside the mtent of the framerl> of the 14th Amendment which was the 1866 Congress. '

Court interprets the Constitution

should not be able to tax the people, it should not be able to spend the people's money, it should not be able to operate schools, etc., etc. I would want to have that kind of control over the court. But I really can't tell you precisely how it's doile. I have a general obJective. And if given the opponunity, I'd be happy to try and work it out. d 's " difficult process. : Ho · do you thin the upreme ...:ourt has infringed iipo so-called p, operiy rights'! A: It has not supported and pre- .;erved property as I think the framers of eithe1 the original Consti- tution, the Bill of Rights or the 14th Amendment intended. It has just al- lowed great discretion on the part of the states to control property. I don't think that was the intention. The in- tention was to give ver;y substantial protection of property. The original reasoning was that if the government could control your property, why the government could control you. There really couldn't be our type of society if the government could come and say "you vote this way or you write this way or we'll take your bank ac- count away." So we had to have that kind of protection and that was an important protection. And I don't think that idea has been implement- ed by the contemporary Supreme Court. Q: Could we infer from that then that you disagree with the slogan, "human rights before property rights?" A: I don't see any difference. What's more important than being able to say what you want to say without the government controlling what you want to say? The freedom of speech can not be implemented if the government says to you, "if you say the wrong thing, we'll take your property away, or we'll zone you a certain way, or we'll remove your cash balance, or we'll cut your cash balance." That's a human right. Or how about when it comes to religion? What if the government came around and said, "unless you pray this way, or unless you adhere to this religion, we'll zone you a certain way, or we'll take your bank account away, or we'll take your properly away"? What could be more human than re- ligion and speech? And those are human rights. That distinction sim- ply does not exist. Q: In the remaining minutes left, tell us what you're going to do in San Diego whe Justice Burger, Sen. Kennedy and the rest come here for a • eeting of the commissio . A: We're going to decide among other things how to spend $12 mil- lion. that's the amount that's been appropriated by Congress for the commission and we're going to see what amount administration of the commission requires and what other projects can be supported. That's one major purpose of our deliberations. In the public session we will ask peo- ple to come forth and give us their ideas of what we should be Joing and what kind of projects we should have, what is going on at the present time. We will then be considering our duties as commissioners and we'll be hoping to get input from the public lo tell us what we should be doinl!.

and educating the American people? A: Well, you know this session of the commission, part of it, will be an executive session, which, I guess you would say, is a closed sessfon, but part of it will be open. Let me give you the pomt of view that's ex- pressed without saying that I agree with tha i)Omt of vie , because I personally ha· e problems with clos- ing anything w ~he p ess. But let me gi ·e you the point of view that's been expi'essed, if not by Justice Burger, by other , embers of the commis- sion. And that is that the commission will be involved with making a lot of decisions about people who will get authority, who will get money from the commission to celebrate the Con- stitution, who will get the endorse- ment of the commission. We'll be talking about corporations and about private individuals. The thought is that there will be a certain amount of inhibition to say things that are not pleasant about people in the course of deciding who will get this contract, who will get ~.,, • r.ontract. Specifically, someone - ''h the press sitting there - might 1,~ reluc- tant to say, now I know that guy, and I know what he did to me, and I wouldn't give him any contract. There might be a certain reluctance to go into such matters. That's the thinking behind this thing. I don't want to say that is sufficient to over- come the benefits that would come from airing everything in public, But don't think it's a wild idea, and I think there's some merit to that thinking. Q: Pornographers have exploited a First Amendment right to open the country up to sewers of obscenity, and the question now is where are the limits in First Amendment free- doms. Do you see any limitations upon pornography? A: There are no rights that are ab- solute. Every right we have is al- ways subject to limitation if the cir- cumstances arise. If we have insur- rection, well we just can't allow people to do whatever they want in insurrection conditions that they could in pleasant conditions. There's always limitation, and I think a strong case can be made that when there is real pornography, when that actually exists - child pornography - that the First Amendment should be limited in that regard. I'd want to be very careful about it because I just don't want to limit people's rights unless I'm sure that there's a reason for it. But I see nothing wrong with the principle of saying that the First Amendment gees just so far. How far it goes is a matter of inter- pretation and a mattel' for the Su- preme Court to decide. The principle I think applies though to as I say, speech, religion, press - all across the board. Q: Is there any remedy in some future constitutional convention that you might choose to advocate for some future court that would at- tempt to legislate rather than do what it as supposed to do? A: Yes. If I started from scratch with che Constitution, 1'd do " lot of thinkmg about the Supre e Court. I can't give you e act terminology, but I would , ant to limit the Supreme Court to saying "no." It certainly

What's the problem with going back to the original intention? I think that the Constitu- tion is so set forth that original mtcmtiu can be u &;u n ,oa" ed 1 he uth !J td1:, iJJ that is to uy hut he p,emt 01111 ,.h fi vt members of tt, 'upreme Court can tell us what the existing values are, wha the x- istillg concerns are. point of conjecture here. Do you think the equal-rights amend- me t's demise was due in part to the fea, that the Supreme Coul', would 6 0 ·bog wild' in mte1 p eting differ- euc.;.:s bet :veeL sexes·r A. Certainly. We have one sentence ano vt KllOw what tht court has done ir, ,me sentence. I think that the framen, of th£ due process clause - which 1s just one line - that says "no state ... shall deprive any person of life, liberty, or property without due process of law" - I think if the framers saw what the Supreme Court has done with that particular line, they'd be appalled - the abor- tion ..:ast being one instance of that. 'l 'foe e's a , ea\ deal of ..-:rupba ~i · J ·ight~ It se~w tlla~ , e, Y · dung tna LUerkjus want these days n1101. out m be .. constitutionai right. Do you think the} have a w.-oug co cevt? Is, fo e amp e, ERA women's rights - even men- tioned in the Constitution? A: I think it's up to the court to protect rights and we don't have any overall definition in the Constitution of what rights are. In each instance, someone comes to the court and says ··1 ant to do this particula activity and the l2gislature won't let ffi(-! do it. M)' ·ignt,; <11., being violated." It's rhei up .c the _ourt w look ano ~ec m!::lhc:, thfa e IS " v10laliou of thoSt: 1ghlb. Aud I don' set that wt. car. .say "cen.am ptoplE: ean't apply to the court fo · that kind of consideration, other people can." Each instance de- pends upon an interpretation of the Constitution. And as I sa:i-, the Consti- Q:

Q: How will you do this? What are your media? A: Educational, in term of the ed- ucational facilities of the country - the college , the schools, the media, whatever way is po· ible to try and have people lea 1 about the Constitu- tion, what it mea · and ·o forth. Q· By implication, our efforts suggest that th Ameri •an people don't kno'\\ enough bout the Consti- tution. Do you think that' · the case? A· I think that's a fair statement. 1 think we take the Constitution for granted. I think most people, if a ked, know there is a Constitulion, that it's very important, but when it ~omes down to talking about specif- ics of the Constitution, my experi- ence is that many people are not aware of those specifics. Q: o less an authority than Thom- as Jeffe sou aid it has to be a livinK doeument, to accommodate change, and the coUDter-aJgument is that this ls an l8th-ct!u1u 1 document for liv- ing in the latter half of the 20th cen• tury and thal change is necessary. How do you accommodate change with the original Intentions? We've departed from that many, many times and many ways. A: I might dispute what Thomas Jefferson's view is. Thomas Jeffer- son can be viewed as the original strict constructionist. He was ver critical of the Supreme Court fo1 not being strict constructionists. He had a going battle fo1 yearl, with Chief Justice Marshall. Marshall was more liberal rn interpretat10n than Jeffer- on. Jefferson wanted to interpret the Constitution exactly as it was set forth. What's the problem with going back to the original intention' I think that the Constitution is so set forth that origmal intention can be accom- modated. The other side of that is to say that the Supreme Court or five members of the Supreme Court can l I us what the existing values are, what he emt' , . lt's 1 no mlW,'l di ction, that uuld be giv II fiv m mber · of the Su- preme Court They would be saying we know what the correct values are· we know what the right thmgs re i~ thi day and age and we're going to upersedc our values over those of the origmal framers.

•

tution has not set forth all the rights. The 9th Amendment specifically says those rights which we have not men- boned are still protected. It doesn't say it quite in that language but it say something to that effect, in ef- fect saying that there are rights which are not mentioned in the Con- stitution which are still protected. Q: It was mentioned that ERA came very close to a constitutional convention. Perhaps the balanced- budget amendment is very close to the required number of state ratifi- cations for a constitutional conven- tion. Are you afraid of a runaway .::onstitutional convention? A: No, I think that the convention could be kept to the precise objective of that convention and I do not fear a runaway convention. I don't think we have to fear the public making new rules. The public is always there to amend the Constitution and if the public in its wisdom wants to amend the Constitution, I see nothing wrong with that. Q: Another big current issue in which the Constitution is constantly raised is the Gramm-Rudman bal- anced-budget act. Three federal agencies, the congressional budget office, the offices of Manager of the Budget and Comptroller General theoretically can tell the President and Congress to cut the budget. Do you think that's constitutional? A: It's got a lot of problems. The case came up about three years ago. The court said, in one of the cases that I have applauded very vigorous- ly because of its concern for the precise language of the Constitution, that before the law can be passed and can become law 11 has to go through the process set forth in the Constitution, which is that both hous- es have to approve it and it has to be submitted to the president, and the president has an opportunity to veto or not veto it. The bill you talk about allows other agencies to fit into that process. And that process is set forth quite clearly in the Constitution, and was approved by the Supreme Court in that case, several years ago. So I see serious problems for that mea- sure. Q: I'm troubled a little bit that Chief Justice Burger has closed your commission's bearings to the media. Doeb this et a very good example when we're talking about the free- dom of the press, freedom of infor- mation, the exchange of information,