The Odd Clauses (23 page)

So, what about the three scenarios from the beginning of the chapter? The Military Commissions Act is probably not a bill of attainder. The argument of many Guantanamo detainees was that the statute punished them by singling them out as a class for a trial without the full range of procedural rights given to most accused criminals. As Khalid Sheikh Mohammed argued in 2008 before a military judge, for instance, “Congress's creation of a trial system, long after the alleged conduct of these Accused, employing specially-tailored rules of evidence and procedure designed to ensure their conviction, is plainly ‘punishment,' imposed upon the Accused by legislative enactment without judicial trial.” The argument is mildly plausible, but no judge has ever accepted it, and it is unlikely ever to succeed. For one thing, the military has always had a justice system where defendants are given fewer
rights than defendants receive in civilian courts. If singling out Guantanamo detainees for trials with fewer rights is a bill of attainder, then wouldn't the same thing be true for singling out military personnel for such trials? The Supreme Court has never suggested that the current military system of justice is unconstitutional. And while I'm not a big supporter of giving criminal defendants fewer rights during trial, I don't think that taking away a right here or there is itself something that has historically or otherwise been considered “punishment.” Thus, I'm not at all surprised that the military judges who ruled on the constitutionality of the Military Commissions Act rejected the bill of attainder argument out of hand. President Obama has announced his intention to try the Guantanamo detainees before real courts rather than the military commissions. Thus, the detainees will likely no longer have any basis to raise the argument, unless Congress forces the president to try them at Gitmo.

The AIG tax-the-bonuses-at-a-gazillion-percent thing is a closer case, and again we will never know what the courts would have said (no such bill was ever enacted into law), but I doubt a statute like the one that passed the House would have been held to be a bill of attainder. Some members of Congress were certainly concerned about the constitutionality of the proposed tax, as were some commentators, but the Court has traditionally been lenient in allowing Congress to do all sorts of things with its tax laws. There's also a strong argument that the tax would have served the primary function of giving money back to the taxpayers, rather than of punishing anybody. The challengers' best argument, had the issue ever gone to court, would have been that Congress
intended
to punish AIG and its employees, as evidenced by statements made by specific members of the legislature (like Senator Grassley's dim observation that employees should “go commit suicide”). But as some commentators observed, once the whole bill of attainder issue started floating around,
members of Congress became a lot more careful in what they said about the purpose of taxing the bonuses, changing their tune from punishment to taxpayer protection. As such, very few (if any) constitutional experts actually thought that taxing the bonuses would be found illegal. Even big pro-private-property libertarians like Richard Epstein of the New York University Law School, who wrote that “any sensible system of limited government” would find the tax proposals unconstitutional, conceded that because of the breadth of the class targeted by the bills and the deference given by the courts to Congress in tax matters, the bill-of-attainder-clause challenge would have resulted in: “No luck.”

Unlike the AIG and Military Commission Act scenarios, the case involving ACORN did go to court. In 2009 a district court judge in New York struck down the law excluding ACORN from federal programs as an unconstitutional bill of attainder, but in 2010 the Second Circuit Court of Appeals reversed and upheld the law. Both courts went through the three-factor test for punishment, but they came to completely different conclusions. The district court found no “valid, non-punitive purpose” for the anti-ACORN law and was put off by some of the anti-ACORN sentiment voiced on the Senate floor, like the one senator who said: “Somebody has to go after ACORN. Madam President, I suggest this afternoon that ‘somebody' is each and every Member of the Senate.” The court of appeals, however, while conceding that a number of congressmen and -women had said mean things about ACORN during debate and discussion, was not willing to find a punitive intent on the basis of a “smattering” of comments from a “handful of legislators.” The circuit court found that cutting an organization off from discretionary funds was not something that had historically been considered punishment. Putting this finding together with
its belief that the law had been motivated by a concern for taxpayer dollars rather than by a thirst for punishment, the reviewing court found that this was not a bill of attainder.

In the
Brown
case, the Supreme Court observed that the bill of attainder clause, a “bulwark against tyranny,” “was intended not as a narrow, technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function, or more simply—trial by legislature.” I've used the clause as an illustration of how the Constitution protects liberty, but I could just as easily have used it to illustrate separation of powers, or even, for that matter, congressional powers. The Constitution is an interconnected document, both in its particular provisions and its broad themes. We've seen examples of this interconnectedness throughout the book. Is the original-jurisdiction clause about judicial power, or states' rights? Are the title of nobility clauses about executive power, or equality? Speaking of equality, are the clauses setting out qualifications for public office primarily about that value, or are they about promoting democracy? Of course, the answer to each of these questions is both. Constitutional clauses, odd or not, serve several purposes and hold the document (and thus the government) together as an organic whole. In this way, the Constitution is much like the world's web of ecosystems, which the ecologists will tell you are all intertwined and intermingled in complicated and important ways. Eradicate one species here and see what happens to all sorts of other species somewhere else. It's enough to make one wonder: dear sweet Mother of God, will these analogies to the animal kingdom never end?

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Amendment III

Imagine if this happened. Some years from now, an increasingly liberal population leans on its state legislatures to call a constitutional convention as outlined in Article V of our founding document. At the so-called Second Continental Congress of 2024, delegates to the convention repeal the Second Amendment and rewrite the First Amendment to protect only “commonly agreed upon views and assertions that are in the judgment of the community constructive.” Also, the delegates enact a new constitutional provision making it illegal to smoke cigarettes or cigars. To reassure some of the old constitutionalists present at the convention, however, and to ensure the smooth passage of their preferred reforms, the delegates decide to retain the Third Amendment, regarding the quartering of troops, even though that clause has not played an actively prominent role in nearly two hundred years.

About twenty-five years after the convention, a few states in the southern and southwestern part of the country decide they've had enough with this new republic and declare that they will secede. Violence breaks out in connection with this “Second Secession,” and to put down the rebellion, the defense secretary and the Joint Chiefs convince the president to send troops to some of these states, including Florida and Texas. Chaos and skirmishing ensue, and in the midst of all this skirmishing and chaos, the troops decide that the spacious mansions found in the suburbs of southern cities would make perfect military headquarters. The troop commanders order the families who live in these mansions out of their homes (the lucky ones get to live in a basement corner) and move their troops in for the duration of the skirmishing. Would the ousted families have a cause of action against the military under the Third Amendment? Would it matter if Congress passed a law allowing the troops to move in?

Now, you should know that this is not a scenario that I just made up. Actually, Peggy Noonan made it up. Noonan is a former Reagan aide and high-profile conservative who writes for the
Wall Street Journal
and happens to think that the Third Amendment might prove significant some day. If I had made up the scenario, it would have been a little different. The population would have leaned right; the scrapped amendments at the convention would have been the Fourth and Eighth; and the seceding states would have been crowded up toward the Northeast. Instead of cigars and cigarettes, my convention would have banned National Public Radio and compassion. But the issue would have been the same—might there be some future set of circumstances when the Third Amendment becomes once again a critical bulwark of our right to privacy, even if the claimants turn out to be Manhattan loft-dwellers and Boston brownstone owners instead of southern suburbanites?

Some of the most high-profile and controversial cases ever decided by the Supreme Court have involved the constitutional right to privacy. When the Court decided in the 1965 landmark case of
Griswold v. Connecticut
that a state could not make it illegal to use contraception, it said that the challenged law was “repulsive to the notions of privacy surrounding the marriage relationship.” When the Court extended
Griswold
to strike down a Massachusetts law prohibiting the distribution of contraceptives to unmarried people in
Eisenstadt v. Baird
seven years later, it said that “if the right to privacy means anything, it is the right of the
individual,
married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” The following year, when the Court decided
Roe v. Wade,
it observed that “the right of privacy . . . is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.” And when the Court held in the 2003 case of
Lawrence v. Texas
that a state may not make it illegal for two adult men to engage in anal sex, it concluded that “the petitioners are entitled to respect for their private lives” and that Texas could not “demean their existence or control their destiny by making their private sexual conduct a crime.”

So here's a quiz: Where does the Constitution mention the right to privacy? Is it in the original document? The Bill of Rights? Somewhere else? Feel free at this point to fire up the Internet, take a look at the Constitution, and see if you can find it.

What? You say that you can't find it anywhere? Surely you must be mistaken. Is it possible that the Supreme Court has based some of its most important and controversial decisions on a right that isn't even mentioned in the Constitution?

You're not mistaken. It's true. Sort of.

In fact, the Court has struggled to figure out exactly where this right to privacy is actually located. To understand this struggle, it's necessary to go back to the early twentieth century, when the Supreme Court began employing an oxymoronic doctrine called “substantive due process” (linger on that phrase for a minute, soak up its absurdity) to strike down a series of laws enacted by progressive legislatures to protect the health, safety, and economic rights of workers. It all started with a 1905 case called
Lochner v. New York,
where the Court invalidated a state law setting maximum working hours for bakers to protect them from, among other things, inhaling flour dust for fifteen hours a day and contracting all sorts of awful lung diseases. The majority of the Court thought that New York's law was an unreasonable and unnecessary interference with the right of individuals to enter into contracts. Since there is no clause in the Constitution explicitly protecting the right to enter freely into contracts, however, the Court decided to make up the right and stick it into the “due process” clauses of the Fifth and Fourteenth amendments, even though those clauses quite clearly concern the
process
by which the government may deprive one of his or her liberty, and not the
substance
of what that liberty actually entails.

For the next thirty or so years, the Court, led by a group of old-guy conservatives like Willis Van Devanter and the bigot James McReynolds (two guys who, believe me, you would not want on your Supreme Court fantasy team), struck down a series of pro-employee and pro-worker laws using the substantive-due-process doctrine. It was only when FDR got sick of these guys and threatened to pack the Court full of justices who supported his New Deal policies that the Court backed down and abandoned the doctrine. In 1937 swing justice Owen Roberts decided to join the Court's liberals to uphold a minimum-wage law from the State of Washington in a case called
West Coast Hotel Company v.
Parrish,
thus bringing an end to the so-called
Lochner
era. These days, the
Lochner
era is widely reviled by constitutional scholars and historians and is generally understood as an age when the Supreme Court lost its collective mind.

Now speed up to the 1960s, when the Court was deciding
Griswold,
the Connecticut contraception case. Most of the Court thought that the law was an unconstitutional violation of individual privacy, but since privacy is not mentioned in the Constitution, the justices had to figure out just what constitutional provision the law violated. Most judges at this point wanted to avoid returning to the discredited substantive-due-process doctrine of the
Lochner
era, so they looked to places other than the due process clauses. Justice Goldberg, writing for three justices, concluded that the law violated the Ninth Amendment, a super-odd clause (though not in the sense of “odd” that I've been using) that says: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” No justice, before or since, has seriously relied on the Ninth Amendment for anything at all. Justice Douglas, writing for the Court, came up with a different idea. According to Douglas, the right to privacy is sort of like a ghost shimmering off of the auras of a bunch of different constitutional clauses. One of those clauses is the Third Amendment:
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
Here is his famous paragraph: