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September 17, 2009

Seeking input on the most under-appreciated part of the US Constitution

220px-Constitution_Pg1of4_AC The BLT's Morning Wrapnotes that today is "Constitution Day."  Here's its celebratory note:

On this day in 1787, the Constitution was signed, and the anniversary is being marked by the National Archives, the Library of Congress, the Constitution Project, and the Cato Institute, all in D.C., in addition to the National Constitution Center in Philadelphia and, we are sure, many other venues as well.

In addition to encouraging everyone to take the time to read the full US Constitution today, I thought it might be fun to celebrate today by asking readers to note in the comments what part or provision of the Constitution seems under-appreciated.

For fans of personal liberty and limited government like me, it is perhaps a bit too easy point to the Ninth Amendment as the most jurisprudentially under-appreciated provision of the Constitution.  But, as I reflect on the modern document and also my affinity for modern American democracy, I am also a huge fan of the 15th, 19th and 26th Amendments, each of which extended and safeguarded voting rights.  One reason I am often troubled by broad felon disenfranchisement laws is because I view the ever broaden of voting rights to be one of the many hallmarks of the greatness of this country.

Moving to a slightly different front, I think the 18th and 21st Amendments also should get a lot more love and attention as we consider our founding charter.  Though a national prohibition on alcohol now seems quite foolish, at least the temperance movement used the constitutional amendment process to achieve its policy goals rather than simply declaring a "war on alcohol" and having the local police power used to this end. 

And, even more importantly, once we collectively realized how foolish the 18th Amendment proved to be, we had the gumption and good sense to repeal it via the 21st Amendments.  I like being able to point my kids to these amendments when I say that everyone makes mistakes, and that the truly wise are the ones who admit their mistakes and then seek to fix them. 

September 17, 2009 at 02:32 PM | Permalink


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I think the impact of the Seventeenth Amendment on federalism is really underappreciated. Imagine what the federal-state power balance would look like today if the makeup of the Senate was still determined by the individual state legislatures.

Posted by: JC | Sep 17, 2009 3:24:15 PM

An obvious choice, but still a good one: The Privileges & Immunities Clause of the Fourteenth Amendment. Strangled in its crib.

Posted by: Observer | Sep 17, 2009 4:58:09 PM

I would pay money to meet someone who actually has a viable Third Amendment claim here in the 21st Century.

Posted by: JC | Sep 17, 2009 6:38:32 PM

Prof. Berman: You may be interested to learn that a Ninth Amendment argument is made in this claim to end the mandatory reporting of any impaired patient to the Pennsylvania Department of Transportation. See Count V on p. 15.


The Ninth Amendment, and not the Fourth Amendment, may be the real basis of the right to privacy.

From a sentencing point of view, we submitted a request for the list of health care providers prosecuted for their failure to report an impaired driver, carrying a penalty of up to a year in prison.

No health care provider has ever been prosecuted nor imprisoned for failure to report an impaired patient. Only West Virginia recognizes the concept of desuetude. However, the failure to ever enforce a law for 35 years should be evidence that the state does not really mean the unenforced law, and that it should be automatically removed from the books by the federal courts.

The empty nature of this law required the minting of a new legal term, legal hoaxing. This is the opposite of failure to give notice. It is giving notice, but falsely. Because it induces detrimental behavior in health providers, it should be considered fraud. This should cancel the law in a per se manner.

The case awaits the judge's decision on a Commonwealth motion to dismiss it.

Posted by: David Behar, MD, EJD | Sep 17, 2009 9:15:26 PM

Miscellaneous Clauses that get about as much respect as Rodney Dangerfield:

The Guarantee Clause, Art. IV, sec.4.

One of the most fundamental requirements of the American system of government. If you haven't been to law school, you've probably never heard of it.

The Postal Clause and The Coinage Clause, Art. I, sec.8.

If these two were repealed today, the economy of the United States would collapse tomorrow. Nearly every single person in this country makes use of the governmental powers authorized by one or both of these Clauses every single day. If you haven't been to law school, you've probably never heard of either of them.

The Bill of Attainder Clauses, Art.I, sec.9 and sec. 10.

The bastards in the legislature can't single you out. Unless you've been to law school, you probably don't know why.

Posted by: JC | Sep 17, 2009 10:42:35 PM

Partial to the corruption of blood clause, which, when read literally, appears to authorize penalizing the children of criminals as long as there children are alive.
And of course there's the glorious part of the Fifth Amendment which, when read literally, authorizes dismemberment.

Posted by: RW | Sep 18, 2009 12:19:40 AM

Should read:
Partial to the corruption of blood clause, which, when read literally, appears to authorize penalizing the children of criminals as long as their parents are alive.

Posted by: RW | Sep 18, 2009 12:21:11 AM

One last:
The Thirteenth Amendment is surely unique in that it is the only provision that clearly regulates private conduct

Posted by: RW | Sep 18, 2009 12:27:01 AM

The Eleventh Amendment. To use JC's line, if you're never been to law school, you've never heard of it. Completely ignoring its actual language, the Supreme Court has held that it constitutionalized sovereign immunity. That single lie has snowballed into a giant doctrine of lies that confuse the hell out of anyone who has ever taken federal courts, or alternatively wish to file a 1983 action against a state entity.

Posted by: Res ipsa | Sep 18, 2009 8:27:29 AM

Given the general constitutional illiteracy in this country (some justifiable--see amendments and clauses cited above), I really think that the great minds on this blog should unite to develop a question index for the Constitution, sort of like in the Gideon's Bible.

"Soldiers trying to stay with you? See Third Amendment."

"Louisiana representative with $90,000 in a refrigerator? See Fourth Amendment."

"Out of ideas for your lawsuit? See Due Process Clauses."

Posted by: Res ipsa | Sep 18, 2009 8:33:15 AM

Dr. Behar's excellent and lucid comment begs the real question: Why does the criminal loving lawyer hate America?

Posted by: Supremacy Clause | Sep 18, 2009 10:20:40 AM

SC's tiresome and repetitive comment begs the real question: why does Doug continue to tolerate this troll on his site?

Seriously, enough is enough. I've all but given up reading the comments. There used to be thoughtful discussion here. Over time, it's turned into an echo chamber for a small group of people whose views are well known, predictable, and not advancing critical thought about sentencing.

Posted by: Def. Atty. | Sep 18, 2009 11:38:02 AM

Supremacy Clause, one of you is more than enough. Please don't start posting under your real name and then praise yourself with your pseudonym. You are David Behar; that information is in the public domain.

Posted by: anon | Sep 18, 2009 12:51:39 PM

The criminal cultist lawyer is the real troll.

Posted by: Supremacy Clause | Sep 18, 2009 2:07:18 PM

My name is Supremacy Claus, as in Santa Claus. There is no more repetitive, tiresome, bigger troll to the nation than the lawyer. Perhaps, we should exclude the profession.

One of the frustrations I have with defense attorneys is their refusal to assert the full legal rights of their clients if these will in any way deter, discourage, or scare the adverse lawyers. These clients include an appalling fraction of innocent people on death row, an embarrassing, extreme failure of the defense bar. This failure is after they have spent up to $10 million on the defense and appeals. For example, why not do total e-discovery on the plaintiff side to search for improper motives, on the judge to search for bias?

The reason is that the defense attorney can replace the client in a minute, there are so many complaints. If he deters, inconveniences, or scares the plaintiff side, including criminal prosecutors, he may end his own job. The defense bar needs an unmolested plaintiff and prosecution bar far more than it needs a client.

This conflict of interest is really an unprofessional betrayal of the client and unspoken collusion with the other side. I suggest that every client get a legal malpractice expert to terrorize the defense lawyer into asserting all the legal rights of the client, even those that will end a line of prosecutions and perhaps the job of the defense lawyer.

These self-evident assertions, demanding the lawyer do his job, make people uncomfortable. They would like to just have discussions of minutiae of case law that will generate more pointless disputes but also lawyer hours. So they attack the person, and ignore the argument, hoping they will go away. The lawyer chit chat here has no validity, beyond generating ideas for rent seeking make work.

Say the Supremacy is silenced. How will that make the lawyer profession suck less? The rule of law is an essential utility product. It cannot be left in the hands of people operating as they did in 1250 AD, with supernatural doctrines, unlawfully taken from a church, with every goal of every law subject in failure.

Posted by: Supremacy Claus | Sep 19, 2009 12:20:34 AM

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