Constitutional law roundup

  • Even if troublesome for other reasons, discussion of nominees’ religious beliefs does not violate the Constitution’s Religious Test Clause [my post at Secular Right]
  • I’m quoted toward the end of this report: Congress rather than courts likely to get ultimate say on defining “emoluments” [NPR with Peter Overby, audio and related article, earlier]
  • Convention of the States? Federalist Society panel video with Thomas Brinkman, Jennifer Brunner, David Forte, Matt Huffman, Larry Obhof, Matthew Byrne [earlier on Article V conventions]
  • Supreme Court opened — and should now close — “dual sovereignty” exception to rule against double jeopardy [Ilya Shapiro, Cato]
  • Encyclopedia of Libertarianism, 2008, has articles on the U.S. Constitution by David Mayer and on the rule of law by Norman Barry;
  • Following big First Amendment win in Slants case Matal v. Tam, feds drop effort to void trademark of Washington Redskins [Ilya Shapiro, Eugene Volokh, earlier]


  • “Congress rather than courts likely to get ultimate say on defining “emoluments”” is objectively and demonstrably incorrect because courts always have the ultimate say on what they have the ultimate say on. See Trump’s immigration efforts, where the argument “the court has no power here” is met with the trump card, “oh yeah, watch us.” Even the political question doctrine is applied by….the courts. The courts’ power is only limited by the courts’ voluntary decision to abstain.

    • Realist is welcome to win by definition if he or she likes, but it is a matter of predictive probabilities, not “objective and demonstrable” facts, whether the courts will invoke political question and/or justiciability doctrines to avoid a head-on clash with the executive here. The Emoluments Clause, as we all know, confers on Congress the power through its consent to approve any emolument or present and in so doing take it out from under the purview of all but the most lawless court. All of which is aside from the impeachment power, than which courts have not yet found a way to get in a later word.

    • Realist, the problem with the “oh yeah, watch us” is that is a well that may run dry–thus, your statement that “[t]he courts’ power is only limited by the courts’ voluntary decision to abstain” doesn’t deal with the very real problem that ipse dixits by the courts may be met with resistance.

      Not that anyone is asking, but were I POTUS, the first thing I would do would be to round up all the criminal aliens freed by Zavydas v. Davis and deport the lot of them, whether or not their home countries took them. I would then dare the courts to intervene–and I’d have a list of all the victims of that terrible decision, and I would question the motives and integrity of Breyer and Ginsburg–two Court Members which foisted this utterly indefensible decision on America.

      At the end of the day, once we are in the realm of power alone, the courts are ultimately destined to lose.

  • Re: Dual Sovereignty–there are significant issues there–don’t the states and the feds both have the right to vindicate their interests?

    And isn’t a better example the Lemrick Nelson acquittal or the Rodney King acquittal?

  • To SPO and re: other branches ignoring courts or the courts ignoring other branches. “Trump defies courts” is a much worse story in the court of public opinion than “rogue court overrules Trump,” because the latter requires a degree of legal explanation that most won’t or can’t comprehend. Even my dog can understand “a court told Trump to do x and he didn’t.” The courts have morphed into always having the upper hand. I also have often advocated for the maxim, “the Court has made its ruling, now let them enforce it,” but no one in the political arena seems willing to call that bluff. If Trump does, it will be played in the media of just another sign of his impending dictatorship.

    • Realist, court overreach works, until it doesn’t. And it isn’t just Trump.

  • ” but no one in the political arena seems willing to call that bluff. If Trump does, it will be played in the media of just another sign of his impending dictatorship.”

    If Trump does call that bluff, there is nothing short of armed insurrection that could stop his impending dictatorship.

    The court needs to think about whether or not this is the hill they want to die on, because everyone else could end up dying on it too.

  • Could you please tell the folks at Secular Right there is some technical issue with their website. If I go to their home page I can see your article, but if I click on the post title, or the link you’ve provided in this post, it gives me a “Not found! Sorry, no posts matched your criteria.”

    So I’ll leave my comment here since I can’t comment there.

    If “religious test” is construed narrowly, that is, making an oath of allegiance to a particular organized theistic church as condition of government employment (as was once done in England), then it’s safe to assume the issue will simply never come up.

    The question is whether the principle of prohibition of exclusion for not taking such an oath to a particular favored religion should be extended to a prohibition of exclusion for being a member in good standing of a particular disfavored religion. It’s reasonable to argue such an extension is consistent with the original intention and understood meaning of the clause.

    Furthermore, if one defines “religion” more broadly, to include matters of moral and political philosophy and the possibility of “secular religion”, then one ends up in a much trickier situation, one which was expounded at length in Sullivan’s, The Impossibility of Religious Freedom focusing largely on the case of Warner vs. Boca Raton.

    Is it correct, for example, to say that a devout Catholic’s views on homosexual marriage are “religious”, while value-based views on the same matter by a progressive or libertarian are not? It’s possible to reasonably answer the question both ways.

    If one accepts the possibility, then the issue becomes more complex. Senators could be satisfied with an affirmative answer to the question of whether a nominee swears that he or she will execute the duties of the office in accordance with the law as a disinterested and neutral official and without bias or favoritism. Beyond that, what legitimate purpose is served – aside from disqualification on the basis of religion – from interrogating a nominee regarding the orthodox positions of their faith for test of consistency with another, preferable set of values?

    And if one is willing to come this far, the next fundamental issue is whether there is any reasonably effective way to police the prohibition on religious testing in the contemporary context. Since I think it’s fairly obvious there isn’t, then either the clause is moot for all intents and purposes, or the arguments of the Harvard note author and Byron York should win the day. Since there will never be resolution on the fundamental philosophical questions, it would be going to far to say that Senators must completely refrain from the line of questioning to be in accordance with the Constitution, however, it is equally reasonable to say that in these areas of legal and philosophical close calls, Senators ought to construe the provisions as broadly as possible to avoid any chance of trampling on a nominee’s rights, and thus should so refrain.