If I Include "Second Amendment" in the Title of My Bill, Does that Make it a Proposed Amendment?

There are many reasons for Congress to consider legislation. One of the primary reasons for Congress to consider legislation is that it believes that the judiciary will not find the subject matter of the statute already protected by the Constitution.

Last Thursday, Lame Duck Virginia Senator George Allen proposed SB 4057, tentatively titled The National Park Second Amendment Restoration and Personal Protection Act of 2006. According to the current description of the bill, it would "protect the second amendment rights of individuals to carry firearms in units of the National Park System." If passed, it would permit a properly licensed individual to carry a concealed weapon in a National Park.

Of course, the bill's title and short description do nothing other than to obscure the bill's point and confuse debate. The Second Amendment doesn't grant you the right to carry a concealed weapon in the National Park System. That's why you're proposing this law.

Cyber Dorf

Our treasured advisor, Professor Michael Dorf, has recently launched his eponymous blog, michaeldorf.org. Check it out for Dorf & Co.'s latest musings on all things law.

Failed Amendments We Have Known & Loved

Barring an unexpected Lame Duck attempt to amend the U.S. Constitution, Democratic control of Congress will probably result in a temporary moratorium on proposed amendments to the Constitution that would ban gay marriage or ban burning Old Glory.

Of course, the G.O.P. does not have a monopoly on converting a Congressional majority into failed attempts to amend the Constitution. During the next 2 years of their pending majority, if the Democrats need to find examples of entertaining failed attempts to amend the U.S. Constitution, history provides some real doozies.

In this post, we'll explore three prominent categories of failed Constitution amendments.

• Zombie Amendments:
  These Amendments will not die.
• Let's Remake America Amendments:
  Amendments that would dramatically change our country.
• No Way, José Amendments:
  These are not going in the Constitution.
  

Zombie Amendments:
Approved, Not Ratified, No Expiration Deadline

Starting in the early 20^th century, Congress began placing deadlines on the amendments it sent to the states for ratification. Typically, the states were given seven years to ratify an amendment. After the passage of the deadline, the proposed amendment would expire and Congress would need to start the process all over again to raise the issue. (In the past 50 years, two amendments expired after Congressional approval: the 1972 Equal Rights Amendment & the 1978 D.C. Voting Rights Amendment)

However, absent explicit sunset provisions, approved yet unratified amendments do not expire.¹ Instead, they linger eternally, pending ratification. As shown with the 27^th Amendment, an amendment which floated around for 200 years before finally being ratified in the 1990's, each of these amendments has the potential of becoming law.

Congressional Apportionment Amendment: This proposed amendment was the first of the original twelve amendments proposed to Congress (The original 2^nd Amendment eventually became the 27^th Amendment mentioned above). If passed, the amendment would have restricted the original size of the House of Representatives to 100 representatives, with later enlargements to be determined by Congress. From 1789 to 1792, 11 states ratified this amendment, leaving it two states short of ratification.

Titles of Nobility Amendment: Proposed in 1810, this amendment would strip U.S. citizenship from any citizen accepting, claiming, retaining, or receiving a foreign title of nobility without the consent of Congress.

Believed by some [See here and here. For a rebuttal, see here. (Apply salt liberally to the arguments on these web pages.)] to have been ratified and then supressed by a conspiracy of lawyers (who – so the theory goes – would lose their citizenship via their esquire title), this amendment was approved by 12 states, just one shy of full ratification. Since, at the time, it came within one house of the South Carolina legislature of being ratified, some 19^th century printings of the Constitution erroneously include it as the 13^th Amendment.²

Pro-Slavery Amendment: A last-ditch effort to avoid a civil war, this amendment – approved by the House and Senate on Februrary 28 & March 2, 1861, respectively – stated simply:

No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.

Apart from its subject matter, the language of this amendment raises an important issue in U.S. Constitutional theory: Can a Constitutional amendment prohibit a later amendment through an entrenched clause?

Although this amendment was ultimately ratified by Ohio and Maryland, neither legislature ratified it before the start of Civil War hostilities with the Battle of Fort Sumter on April 12, 1861.

Child Labor Amendment: Proposed in 1924 and ratified by 28 states, this still-pending amendment requires the approval of 10 more states in order to restrict to the federal government all power to regulate the labor of persons under 18 years old.

This amendment is a direct reaction to the Child Labor Tax Case,³ which found Congress had overstepped the boundaries of the 10^th Amendment with the scope of the taxes it placed on factories employing child labor.

Let's Remake America Amendments:
Ambitious Attempts to Change this Country

Had they been ratified, these proposed amendments would dramatically change the way our country works.

• 21^st Amendment Redux: Occasionally, lawmakers propose repealing previous Amendments. In 2005, now House majority leader Steny Hoyer proposed repealing the 22^nd Amendment, which limits the President to two terms. In 2004, Senator Zell Miller proposed the repeal of the 17^th Amendment, which allows for democratic election of the Senate.
  


• International Impediments: The Ludlow Amendment, proposed in 1938, would require a national referendum to declare war except in cases of direct attack. Prior to SCOTUS's holding in Reid v. Covert,⁴ which held that the Constitution was supreme over any treaty, the Bricker Amendment proposed to limit the scope of the treaty power.
  


• First Amendment, Schmirst Amendment: Time and again, various people have decided that the Constitution lacks the appropriate shout-outs to the deity of their preference. From the 1860's through the 1950's, numerous proposals to exclaim our country's obedience to the Christian God were considered by Congress. In 2003, Frank Lucas (R-OK) introduced a house bill to preserve the Red-Scare-Era "under God" in the Pledge of Allegiance. In 2005, Representative Ernest Istook (also R-OK) proposed an amendment to explictly endorse school prayer.

No Way, José Amendments:
That's Just Crazy Talk

These proposed amendments were going exactly nowhere, but that's why we like 'em.

• Focus on the, er... Family: On March 31, 2003, former Representative and all-around class act Mark Foley proposed an amendment to remove U.S. citizenship from the children of illegal immigrants. (Insert Mark Foley joke here.)
  


• Cross of Gold, Revisited: Representative Ron Paul (who, awesomely, supports the Gold Standard) proposed the following amendment on January 26, 2005:

  H. J. RES. 14 — Proposing an amendment to the Constitution of the United States relative to abolishing personal income, estate, and gift taxes and prohibiting the United States Government from engaging in business in competition with its citizens.

  Yeah... Good luck with that one, Mr. Paul.
  


• A Big Day for Jesse Jackson, Jr.: Never one to bite off more than he could chew, Representative Jesse Jackson, Jr. introduced a large number of amendments on March 2, 2005. Combined, these amendments would grant:
  1. The right to U.S. citizens to health care of equal high quality.
  2. The right to U.S. citizens to a public education of equal high quality.
  3. The right to vote.
  4. The right to a clean, safe, and sustainable environment.
  5. The right to decent, safe, sanitary, and affordable housing.
  6. Equality of rights and reproductive rights (bolstering Roe v. Wade).
  7. The right to full employment and balanced growth.
  8. Taxing the people of the United States progressively.
  
  

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¹ Coleman v. Miller, 307 U.S. 433, 454 (1939) (Finding that all amendments are considered pending before the states indefinitely unless Congress establishes a deadline within which the states must act.)

² In Campion v. Towns, 2005 WL 2160115 at *1 (D. Ariz. 2005), a tax protester produced an 19^th century archival copy of the Constitution incorrectly listing the Titles of Nobility Amendment as the 13^th Amendment. Needless to say, the argument based on the existence of this document did not go very far with the Court.

³ Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922)

⁴ 354 U.S. 1 (1957)

Civil Rights After the Midterms, Or, the Mostly-Not-So-Good News from Tuesday Night

Watching the VA recount with baited breath? Here's some less-covered election-related info to hew on. Because besides the control of Congress, there were a variety of civil rights-related ballot initiatives throughout the country on Tuesday night, and, unfortunately, progressive notions of justice and civil rights did not do as well as the Democrats.

Because there are no vestiges of slavery or the oppression of women:

As I discussed last week, names matter. And the "Michigan Civil Rights Initiative" seems to have benefited from its misleading name. Also known as Proposition 2, this radically restrictive limit on essentially any government initiatives that take race or gender into account. The initiative was sponsored by California businessman Ward Connerly, and is patterned on California's Proposition 209, which has been broadly interpreted to prohibit all programs designed to increase achievement and opportunity for women and racial minorities. The proposition bans affirmative action in higher education, public employment and government contracts.

The MCRI passed about 58% to 42%, and the win is very symbolic for those who are opposed to civil rights. Since the Supreme Court's decision in Gratz v. Bollinger, conservatives have been pointing to policies at the University of Michigan as all that is wrong with affirmative action. And sure enough, the most visible Michiganer in the campaign for the Michigan Civil Rights Initiative? Jennifer Gratz. A friend of mine from Michigan was exalting the election results in this case. He kept arguing, "Well there are poor whites too." I don't disagree. But this initiative does not require the State of Michigan to create programs that consider barriers to education and socioeconomic development for low-income whites. Nor does it eliminate preferences that are disadvantageous to the majority of low-income white people: preferences based on income, alumni status, your attendance at some hoity-toity prep school, your high property taxes which enrolled you at an elite public school, or the ability of your parents to contribute large amounts of money. To claim this law is a law that benefits and protects low-income whites is nothing but a sham.

Programs designed to increase the number of women in science and engineering? Gone. Programs promoting minority-owned businesses and investments in communities? Done.
How these programs created great evils in society (or in Michigan), I'm not quite sure.

The effects of Proposition 209 in CA have been mitigated by a creative legislature and administrative structure that has sought to ensure that the population served by affirmative action and other race-conscious and gender-conscious programs. But California is a much more progressive state than Michigan, and racial minorities have a fairly strong voice in the wide variety of political decisions. In Michigan, racial minorities do not have such "back-up" to protect their interest.

The truth is, disadvantaged white people won't particularly gain as a result of the MCRI. Racial minorities and women will lose, and those who resent social integration will win. That's nothing to be proud of.

DOMA is not enough

Gays aren't so gay:

A number of states proposed amendments to their state constitutions to ban same-sex marriage, though most of them already have statutes doing such. Unfortunately, the timing of the recent New Jersey decision didn't particularly help in this area- though there really wasn't any danger that the courts in these states were going to rule that their particular marriage regimes were unlawful.

My sources give me the following informal projected results:

Yes No
South Dakota - 52% 48%
Colorado- 56% 44%
Virginia- 57% 43%
Wisconsin- 59% 41%
Idaho- 63% 37%
South Carolina- 78% 22%
Tennessee- 80% 20%



Obviously, if there is ever a federal right to same-sex marriage, that will likely trump all of these discriminatory state marriages. And in Colorado, home of the Christian Right, domestic partnership was also up on the ballot, and was voted down.

Arizona: Goldwater-O'Connor Republicans?

Many have been saying that progressives should give up on the South, and focus on the West, and that the battle for control of the country will occur in the West. And Arizona provided some hope in that area last night. Though a state that has been fairly "red" of late, Arizona voters it seems have voted down an amendment to their Constitution to ban same-sex marriage, 49%-51%

New York

New York's Governor-Elect Eliot Spitzer has promised to push for same-sex marriage in New York. He faces a Republican-controlled Senate, but New York may very well be granting same-sex marriage rights in the next few years.

Roe v. Wade remains the law of the land:

South Dakota voters have clearly voted down what was essentially a ban on abortion, which attempted to challenge Roe v. Wade. Passed by the South Dakota legislature last year, opponents successfully made use of a provision in that state's constitution that forced a referendum on the issue. Voters decided they did not want to fly in the face of established Supreme Court precedent, 56% to 44%.

But there is some other good news, maybe:

• Massachusetts has its first African-American Governor.
• A woman is third in line to be President.
• The Senate Judiciary Committee may be controlled by Democrats
  
• Progressive interpretations of the constitution may find their way into Congressionally-passed laws.
• Minimum-wage increases passed across the country.

The effects of the 2006 elections on civil rights? Who knows?

The Poor Voter on Election Day

The Poor Voter on Election Day
by John Greenleaf Whittier
December 23, 1852

The proudest now is but my peer
The highest not more high.
Today, of all the weary year,
A king of men am I!

Today alike are great and small,
The nameless and the known.
My place is the people's hall,
The ballot box my throne.

Who serves today upon the list
Beside the served shall stand;
Alike the brown and wrinkled fist,
The gloved and dainty hand!

The rich is level with the poor,
The weak is strong today.
And sleekest broadcloth counts no more
Than homespun frock of gray.

Today let pomp and vain pretence
My stubborn right abide.
I set a plain man's common sense
Against the pedant's pride.

Today shall simple manhood try
The strength of gold and land;
The wide world has not wealth to buy
The power in my right hand.

While there's a grief to seek redress
Or balance to adjust,
Where weighs our living manhood less
Than Mammon's vilest dust -

While there's a right to need my vote
A wrong to sweep away,
Up! Clouted knee and ragged coat -
A man's a man today!

Today, when voters across America cast their vote for their representative in the House of Representatives, they exercise the only voting right granted to them by the Constitution, the Senate being chosen by state legislatures until 1913, and the President chosen by The Electors.

The Longest Case in U.S. History: The Myra Clark Gaines Case

At the present moment (August, 1853) there is a suit before the court which was commenced nearly twenty years ago, in which from thirty to forty counsel have been known to appear at one time, in which costs have been incurred to the amount of seventy thousand pounds, which is A FRIENDLY SUIT, and which is (I am assured) no nearer to its termination now than when it was begun.
Charles Dickens, Preface to Bleak House (1853)

The case had been frequently before this court in various aspects; first, in 13 Peters, 404, then in 15 Peters, 9, 2 Howard, 619, 6 Howard, 552, 15 Howard, 473. In some of these reports large extracts are made from the record, illustrating the points of law and fact then under consideration, and also the evidence in support of them. All of this past history was brought again to the notice of the court in the argument of the present case, which cannot be again recited in the present report. The reader who wishes to understand all the points which are discussed in the opinion of the court must turn back to the preceding volumes above cited, and follow the case through its successive developments. He will then be able to appreciate the concluding remark in the opinion of the court, which is as follows:

"When hereafter some distinguished American lawyer shall retire from his practice to write the history of his country's jurisprudence, this case will be registered by him as the most remarkable in the records of its courts."
Gaines v. Hennen, 65 U.S. 553 (U.S. 1861) (reporter's note) (emphasis added).¹

As he was writing Bleak House over the course of 1852 & 1853, Charles Dickens was aware of numerous cases mired for decades in the Courts of Chancery. Although his case of Jarndyce & Jarndyce was fiction, he knew the plodding reputation of the English courts at the time would make his case appear real to his 19^th Century British audience.²

What Dickens probably did not know at the time, was that on this side of the Atlantic a woman named Myra Clark Gaines had already been pursuing a claim to an estate for almost twenty years.

What Dickens could not have known at the time was that the Gaines Case would continue for almost forty more years, becoming the longest case in the history of the U.S. judiciary. Her case, originally filed in 1834 would not be fully resolved until 1892, almost sixty years later.

Beginning with her first lawsuit in 1834 and culminating with New Orleans v. Whitney in 1891,³ the Supreme Court of the United States heard issues concerning the Gaines case an astounding sixteen times,⁴ and the Louisiana Supreme Court heard the case eight times.⁵

What was at issue in the Myra Clark Gaines Case?

For the answer, we turn to Elizabeth Urban Alexander's Notorious Woman: The Celebrated Case Of Myra Clark Gaines, a 300-page biography of Ms. Gaines published in 2001:

The events that formed the basis for the Gaines case began in 1787 when Daniel Clark arrived in New Orleans to join his uncle, Colonel Daniel Clark, in business. Ten years later, Colonel Clark conveyed all of his extensive property in Louisiana to his nephew, and at the age of thirty, Daniel Clark found himself one of the richest men in North America.

Clark's many business ventures brought him large revenues that he invested primarily in New Orleans real estate. During the early years of the nineteenth century, as he established himself in New Orleans as "a man of much personal pride and social ambition," Clark became romantically involved with a young Frenchwoman. All accounts of Zuileme Carrière emphasized her extraordinary beauty, vivacity, and charm, and both sides of the lawsuit admitted Clark's fascination with her.

Myra, daughter of Clark and Carrière, later came to believe that her parents had contracted a legal, though secret, marriage, making her the true heir to Clark's fortune. As she grew up, however, she was raised by friends of Clark and kept in ignorance of her real parentage as well as of her father's death in 1813, when she was nine.

Nearly twenty years afterward, Myra and her young husband arrived in New Orleans with a tale of a lost will and a claim that she was the true heir. Few believed her story. For the rest of her life, as a young wife and mother, as the third wife of a prominent general, and as a widow, Myra Clark Gaines pursued the vindication of her "rights."⁶

Besides its longevity, the Gaines case is legally interesting for a number of reasons. First and foremost, the Gaines case is a case about antebellum federal power — particularly about the scope of federal power in a state jurisdiction governed by civil law. Moreover, the case concerns the use of federal equity jurisdiction to govern a matter of domestic relations, an area where today's federal courts are loathe to exert their influence.⁷

Many of the appeals in the case reflect the reticence of courts sitting in Louisiana — even federal courts — to apply federal equity jurisprudence.⁸ The parties opposing Ms. Gaines (protecting the estate of her father) frequently argued before the court that equity had no place in Louisiana. In Gaines v. Chew, one of their many SCOTUS appeals, the estate administrators maintained that federal equity jurisprudence constituted "foreign law" inapplicable in the equity-free zone of Louisiana.⁹

In 1885, Ms. Gaines died, 6 years before the case came to its ultimate conclusion in her favor. After winning the final case before the U.S. Supreme Court the year before, on July 26, 1892, the administrator of her estate received a check for $923,788 from the city of New Orleans (which had received the Clark estate), ending the litigation.¹⁰ As you'd expect, creditors had significant claims against this sum, and little remained for the Gaines heirs to divide up.

If you want to know more about the Gaines case, I encourage you to check out Elizabeth Urban Alexander's Notorious Woman: The Celebrated Case Of Myra Clark Gaines or (if you don't want to leave the friendly confines of Westlaw or Lexis) check out Federalism's Fallacy: The Early Tradition of Federal Family Law and the Invention of State's Rights by Kristin L. Collins. 26 Cardozo L. Rev. 1761 (April 2005).

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¹ Justice James Moore Wayne – writer of the opinion cited by the above reporter's note – would die 6 years later in 1867, 24 years before the Myra Clark Gaines case would finally culminate in 1891.

² Dickens not only succeeded in capturing the attention of a 19^th Century British audience — he succeeded in capturing the attention of the modern U.S. judiciary. An unrestricted Westlaw search for "Jarndyce" among U.S. state and federal cases returns 254 results, including 3 SCOTUS references (most recently, Hartman v. Moore, -- U.S. ---, 126 S.Ct. 1695, 1701 (2006)

³ 138 U.S. 595 (U.S. 1891)

⁴ U.S. Supreme Court Cases — Myra Clark Gaines
Ex Parte Whitney, 38 U.S. (13 Pet.) 404 (1837)
Gaines v. Relf, 40 U.S. (15 Pet.) 9 (1841)
Gaines v. Chew, 43 U.S. (2 How.) 619 (1844)
Patterson v. Gaines, 47 U.S. (6 How.) 550 (1848)
Gaines v. Relf, 53 U.S. (12 How.) 472 (1852)
Gaines v. Hennan, 65 U.S. (24 How.) 553 (1861)
Gaines v. New Orleans, 73 U.S. (6 Wall.) 642 (1868)
Gaines v. De La Croix, 73 U.S. (6 Wall.) 719 (1868)
Gaines v. Fuentes, 92 U.S. 10 (1876)
Smith, et al. v. Gaines, 93 U.S. 341 (1876)
Davis v. Gaines, 104 U.S. 386 (1881)
New Orleans v. Christmas, et al., 131 U.S. 191 (1889)
New Orleans v. U.S. ex rel. Christmas et. al., 131 U.S. 220 (1889)
New Orleans v. Whitney, 138 U.S. 595 (1891)

The district & circuit court cases involving Myra Clark Gaines are far too numerous to detail here, but information regarding them is available in the Bibliography of Elizabeth Urban Alexander's Notorious Woman: The Celebrated Case Of Myra Clark Gaines, the text of which is searchable at Amazon.com.

⁵ Louisiana Supreme Court Cases — Myra Clark Gaines
Barnes v. Gaines, 5 Rob. 314 (1843)
Succession of Clark, 11 La. Ann. 124 (1856)
Clark's Heirs v. Gaines, 13 La. Ann. 138 (1858)
De la Croix v. Gaines, 13 La. Ann. 177 (1858)
Van Wych v. Gaines, 13 La. Ann. 235 (1858)
Fuentes v. Gaines, 25 La. Ann. 85 (1873)
Foulhouze v. Gaines, 26 La. Ann. 84 (1874)

⁶ Elizabeth Urban Alexander, Notorious Woman: The Celebrated Case of Myra Clark Gaines 3 (2001)

If you're at Columbia Law School, the Arthur Diamond Law Libary has a copy of Notorious Woman available for checkout. Its call number is KF759.C57 A43 2001.

⁷ For a detailed analysis of the use of federal equity power in the Myra Clarke Gaines case, check out Federalism's Fallacy: The Early Tradition of Federal Family Law and the Invention of State's Rights by Kristin L. Collins. 26 Cardozo L. Rev. 1761 (April 2005)

⁸ Two of the Supreme Court appeals — Ex Parte Whitney, 38 U.S. (13 Pet.) 404 (1839) & Gaines v. Relf, 40 U.S. (15 Pet.) 9 (1841) — reversed lower federal courts sitting in Louisiana when those courts refused to apply equity to cases that they believed should have arisen under civil law, where equity was unavailable.

⁹ 43 U.S. at 650 ("Complaint is made that the federal government has imposed a foreign law upon Louisiana. There is no ground for this complaint.").

¹⁰ The Gaines Case Settled; Some of the Claims to be at Once Paid by the Administrator, New York Times, July 27, 1892, at 1.

What's in a Name? Marriage and "Not Quite Marriage" in New Jersey

Last week, the New Jersey Supreme Court ruled- fairly expectedly- that the state’s current marriage scheme (marriage for opposite-sex partners, and a limited domestic partnership program for same-sex partners) is a violation of the equal protection clause of the State Constitution. For those following the case, the interesting part came in the remedy ordered by the court. While the court was unanimous in its holding that the current scheme was unconstitutional, the court split- the majority deciding that the state didn’t have to offer same-sex couples “marriage”, just something that gave all the rights and benefits of “marriage."

Unfortunately, “marriage” and “something-like-marriage-but-not-called-marriage” are not the same things. The “compromise” reached by the majority, which seems to be a weak-willed “sell out” in response to the demonization of “judicial activism” (also known as Judge’s doing their jobs and protecting minority rights despite majority opposition). While the term “the rights and benefits of marriage” sounds good, it is logically inconsistent with the idea that marriage itself doesn’t have to be granted. The term we use to describe someone’s relationship itself conveys rights and benefits. The court implicitly recognizes this, by acknowledging that people have problems with the use of the term “marriage” to apply to same-sex relationships. If a marriage and a civil union were seen by greater society as the same thing, there wouldn’t be a debate in the New Jersey Legislature about which of the two to adopt. A civil union is simply inferior to a marriage, if only because it is an institution that has derived from a goal of creating something that isn’t quite marriage. Even if it conveys the legal entitlements on paper that a marriage does, the societal recognition of the nature of the relationship is not equal.

Names matter, as they bring with them a sense of credibility and prestige. For example, while a Columbia Law School education and that obtained from a local law school convey all the same legal entitlements- namely, the ability to sit for the bar and a Juris Doctor degree- they, in reality, do not open the same doors. Employers, and even members of the non-legal public, see them differently. And if we didn’t believe that a Columbia education was “better”, we likely wouldn’t be incurring so much debt to be here.

Since we are a nation that expresses its laws through words and text, logistically, what we call a relationship matters. “Marriages” travel across state lines (at least in states without Defense of Marriage Acts or amendments), and often to other countries. “Civil Unions” do not.

In reality, this compromise pleases no one. LGBT New Jerseyans still lack equal rights and the right to marriage. Conservative groups continue to decry “activist judges”, who flout the public will. Republicans are using the court’s decision to galvanize the Religious Right, not seeming to care that subpar “rights” were actually granted. Perhaps the greatest victim in the New Jersey decision is judicial integrity, due to the utter inconsistency of the decision with its remedy: LGBT New Jerseyans are entitled to the same rights and privileges as straight New Jerseyans, except they’re not.