The Odd Clauses (26 page)

The controversial appointee who was accused of being racially insensitive was Charles Pickering. For more on his nomination, see Neil A. Lewis, “Bush Seats Judge after Long Fight, Bypasses Senate Democrats,”
New York Times
, January 17, 2004. The judge who was proud of ruling against children with birth defects was Priscilla Owens. For more on her nomination, see David D. Kirkpatrick, “For Judge Owen, Self-Reliance in Life and Law,”
New York Times,
May 26, 2005. On Pryor, see Sheryl Gay Stolberg, “A Different Timpanist,”
New York Times,
June 10, 2005. The following are excellent academic articles on the recess-appointments clause; I relied on these sources for much of my discussion of the clause, its history, and the issues it has raised: Edward A. Hartnett, “Recess Appointments of Article III Judges: Three Constitutional Questions,”
Cardozo Law Review
26, no. 2 (2005): 377–442; Michael Herz, “Abandoning Recess Appointments? A Comment on Hartnett (and Others),”
Cardozo Law Review
26, no. 2 (2005): 443–62; and Michael B. Rappaport, “The Original Meaning of the Recess Appointments Clause,”
UCLA Law Review
52, no. 5 (2005): 1487–1578. Another excellent source of information is Henry B. Hogue,
CRS Report for Congress—Recess Appointments: Frequently Asked Questions
(Washington, DC: Congressional Research Service, 2008). The commentator who talks about vacations as “happening” is Hartnett, “Recess Appointments of Article III
Judges,” at pp. 382–83. The
New York Times
editorial was published on December 8, 1903. The Knox opinion is “President—Appointment of Officers—Holiday Recess,”
Official Opinions of the Attorney General of the United States
23 (December 24, 1901). The Daugherty opinion is “Executive Power—Recess Appointments,”
Official Opinions of the Attorney General of the United States
33 (August 27, 1921). The opinion about public committees starting off their sessions with sectarian prayers is Pelphrey v. Cobb County, 547 F.3d 1263 (11th Cir. 2008). On the issue of whether the Senate can terminate the president's recess appointments, see Seth Barrett Tillman, “Senate Termination of Presidential Recess Appointments,”
Northwestern University Law Review Colloquy
103 (January 2009): 286–91, and Brian Kalt, “Keeping Recess Appointments in Their Place,”
Northwestern University Law Colloquy
103 (January 2009): 292–97. These two have written other articles on the subject, but I'll spare you. Kalt's article about Idaho is “The Perfect Crime,”
Georgetown Law Journal
93, no. 2 (2005): 675–88. The court of appeals decision in the Pryor case is Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004).

The Ellis Island case is New Jersey v. New York, 523 U.S. 767 (1998). The case where a federal appellate court ruled that New York law applied on the island is Collins v. Promark Products, 956 F.2d 383 (2nd Cir. 1992). The “judicial review” case is Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). The statute that gives district courts concurrent jurisdiction over most of the types of cases that fall under the Supreme Court's original jurisdiction is 28 U.S.C. § 1251. The most comprehensive source for information about state-versus-state cases, and a book on which I draw heavily for my information and categorization of the various cases, is Joseph F. Zimmerman,
Interstate Disputes: The Supreme Court's Original Jurisdiction
(Albany: State University of New York, 2006). Cites for all of the state-versus-state cases discussed in the chapter can be found in Zimmerman's book, but here are citations for a few of the cases discussed here: Texas v. Florida, 306 U.S. 398 (1939); New Mexico v. Texas, 275 U.S. 279 (1927); Missouri v. Illinois, 200
U.S. 496 (1906). The
Time
magazine article about the Maine–New Hampshire dispute is “New England: Lobster War,” July 2, 1973. The best source of information about the special masters is Anne-Marie C. Carstens, “Lurking in the Shadows of Judicial Process: Special Masters in the Supreme Court's Original Jurisdiction Cases,”
Minnesota Law Review
86, no. 3 (2001): 625–716. Other articles on the original-jurisdiction clause include James Pfander, “Rethinking the Supreme Court's Original Jurisdiction in State-Party Cases,”
California Law Review
82, no. 3 (1994): 555–662; and “The Original Jurisdiction of the United States Supreme Court,”
Stanford Law Review
11 (July 1959): 665–700. A short and funny piece on Supreme Court jury trials is Robert A. James, “Instructions in Supreme Court Jury Trials,”
Green Bag
1, no. 4 (1998): 377–80.

The symposium put together by William Eskridge and Sanford Levinson is called “Constitutional Stupidities: A Symposium,”
Constitutional Commentary
12, no. 2 (1995): 139–225. The symposium was later turned into a book: William N. Eskridge and Sanford Levinson, eds.,
Constitutional Stupidities, Constitutional Tragedies
(New York: New York University Press, 1998). The point about getting no points for condemning the fugitive slave law was made by Lief Carter, “ ‘Clause and Effect': An Imagined Conversation with Sanford Levinson,”
Constitutional Commentary
12, no. 2 (1995): 155–58. The professor who called the symposium “vapid” was Phillip Bobbitt, “Parlor Game,”
Constitutional Commentary
12, no. 2 (1995): 151–54. The critic of life tenure who likened the United States to China was L. A. Powe Jr., “Old People and Good Behavior,”
Constitutional Commentary
12, no. 2 (1995): 195–97. The two articles criticizing the natural-born citizen clause in the symposium were Randall Kennedy, “A Natural Aristocracy?”
Constitutional Commentary
12, no. 2 (1995): 175–77, and Robert Post, “What Is the Constitution's Worst Provision?”
Constitutional Commentary
12, no. 2 (1995): 191–93. Post is the one who called the clause a “vestigial excrescence.” The case holding term limits unconstitutional is U.S. Term Limits, Inc. v. Thornton, 514
U.S. 779 (1995). On the age requirement for president, the case in which Frankfurter noted that it “draws on arithmetic” is National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 646 (1949) (Frankfurter, J., dissenting). For the argument that “thirty-five” means sufficiently mature or experienced, see Giradeau Spann, “Deconstructing the Legislative Veto,”
Minnesota Law Review
68 (1984): 532. For the extension of that argument, see Gary Peller, “The Metaphysics of American Law,”
California Law Review
73 (1985): 1174. On the “unstoppable virus,” see Anthony D'Amato, “Aspects of Deconstruction: The ‘Easy Case' of the Under-Aged President,”
Northwestern University Law Review
84 (1990): 255. For the “teenage guru,” see Mark Tushnet, “A Note on the Revival of Textualism in Constitutional Theory,”
Southern California Law Review
58 (1985): 686–88. For criticism of the natural-born citizen clause, see Frederick Schauer, “Constitutional Invocations,”
Fordham Law Review
65 (1997): 1301 (“morally dubious”); William Safire, “The Constitution's Flaw,”
New York Times,
September 6, 1987 (“blatantly discriminatory”); John W. Dean, “The Pernicious ‘Natural Born' Clause of the Constitution,”
FindLaw,
Writ, October 8, 2004,
http://writ.news.findlaw.com/dean/20041008.html
(“lowdown dirty shame” and “inane”; “Permit me”); Post, “What Is the Constitution's Worst Provision?” (“highly objectionable”). For excellent general articles discussing the history and meaning of the natural-born citizen clause, see Jill A. Pryor, “The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty,”
Yale Law Journal
97, no. 5 (1988): 881–900; Christina S. Lohman, “Presidential Eligibility: The Meaning of the Natural-Born Citizen Clause,”
Gonzaga Law Review
36, no. 2 (2000–01): 349–74; and Sarah Helene Duggin and Mary Beth Collins, “ ‘Natural Born' in the USA: The Striking Unfairness and Dangerous Ambiguity of the Constitution's Presidential Qualifications Clause and Why We Need to Fix It,”
Boston University Law Review
85, no. 1 (2005): 53–154. For the Bob Hope example, see Schauer, “Constitutional Invocations,” at p. 1302, n. 28. Information about the birther movement is everywhere on the Web. For one good account, see Alex Koppelman, “Why the Stories about Obama's Birth Certificate Will Never Die,”
Salon,
December 5, 2008,
http://www.salon.com/news/feature/2008/12/05/birth_certificate
.
On the number of people who think Obama was born abroad, see Dalia Sussman and Marina Stefan, “Obama and the ‘Birthers' in the Latest Poll,”
New York Times,
April 21, 2010. The Washington, DC, judicial opinion is Hollister v. Soetoro, 601 F.Supp. 2d 179 (D.D.C. 2009). The opinion from California is Barnett v. Obama (C.D. Cal. Oct. 29, 2009). The opinion from Georgia is Rhodes v. MacDonald (M.D. Ga. Sept. 18, 2009). For Medved's comments, see Ben Smith, “Culture of Conspiracy: The Birthers,”
Politico,
March 1, 2009. For the argument about Obama being a kitten and meowing all day long, see Teo Bear, “Birthers and Dualers are Constitutionalists,”
http://www.birthers.org/misc/birthersdualers.html
(last accessed May 26, 2010). For the Tribe-Olson memo on McCain, see appendix A: “Opinion of Laurence H. Tribe and Theodore B. Olson Dated March 19, 2008,” in Gabriel J. Chin, “Why Senator John McCain Cannot Be President: Eleven Months and a Hundred Yards Short of Citizenship,”
Michigan Law Review First Impressions
107 (2008): 19–21,
http://www.michiganlawreview.org/assets/fi/107/chin.pdf
. For the argument in favor of McCain responding to Chin, see Stephen E. Sachs, “Why John McCain Was a Citizen At Birth,”
Michigan Law Review First Impressions
107 (2008): 49–57,
http://www.michiganlawreview.org/assets/fi/107/sachs.pdf
. The current succession statute is located at 3 U.S.C. § 19. James Ho's piece is “Unnatural Born Citizens and Acting Presidents,”
Constitutional Commentary
17, no. 3 (2000): 575–86. Ho quotes
Demolition Man
in his footnote 10.

The bottomless-dancing case is California v. Larue, 409 U.S. 109 (1972). Okrent's terrific book about Prohibition is Daniel Okrent,
Last Call: The Rise and Fall of Prohibition
(New York: Scribner, 2010). Tribe's piece about the Twenty-first Amendment is Laurence H. Tribe, “How to Violate the Constitution without Really Trying: Lessons from the Repeal of Prohibition to the Balanced Budget Amendment,”
Constitutional Commentary
12 (1995): 217–21. For the discussion of “maximalist” and “minimalist” interpretations of Section 2, see Jonathan M. Rotter and Joshua S. Stambaugh,
“What's Left of the Twenty-first Amendment?”
Cardozo Public Law, Policy, & Ethics Journal
6, no. 3 (2008): 601–50. The California beer tax case is State Board of Equalization v. Young's Market Co., 299 U.S. 59 (1936). The topless-dancing case is New York State Liquor Authority v. Bellanca, 452 U.S. 714 (1981). The Y chromosome 3.2 percent beer case is Craig v. Boren, 429 U.S. 190 (1976). The Rhode Island liquor-advertising case is 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996). The Court has upheld nude dancing and other adult-entertainment regulations on the grounds that these regulations target the secondary effects of the dancing, rather than the entertainment itself—see City of Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986)—or because nude dancing is conduct rather than speech, or because regulation of nude dancing is justified by moral concerns, see Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991). The Puerto Rico no-serving-alcohol-in-the-wee-hours-of-the-morning case is Broadwell v. San Juan, 312 F.Supp.2d 132 (D. Puerto Rico 2004). The Missouri pool hall case is Spudich v. Smarr, 931 F.2d 1278 (8th Cir. 1991). The Yablon-Zug piece is Marcia Yablon, “The Prohibition Hangover: Why We Are Still Feeling the Effects of Prohibition,”
Virginia Journal of Social Policy & the Law
13 (Spring 2006): 552–95. For an excellent account of what Section 2 was supposed to mean, see Asheesh Agarwal and Todd Zywicki, “The Original Meaning of the 21st Amendment,”
Green Bag
8, no. 2 (2005): 137–43. The Hawaii pineapple-wine case is Bacchus Imports, Ltd. v. Dias, 468 U.S. 263 (1984). The case striking the discriminatory Michigan and New York laws is Granholm v. Heald, 544 U.S. 460 (2005).

For the full story of the
Maersk Alabama,
see Robert D. McFadden and Scott Shane, “In Rescue of Captain, Navy Kills 3 Pirates,”
New York Times,
April 13, 2009, and Mark Mazzetti and Sharon Otterman, “U.S. Captain Is Hostage of Pirates; Navy Ship Arrives,”
New York Times,
April 9, 2009. On Paul's suggestion to use letters of marque to fight pirates, see Erika Lovley, “Ron Paul's Plan to Fend Off Pirates,”
Politico,
April 15, 2009.
For Ely's point about Congress's authority to instigate all hostilities, see John Hart Ely,
War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath
(Princeton, NJ: Princeton University Press, 1995). The other pro-Congress scholar quoted is Louis Fisher, from his
Presidential War Power
(Lawrence: University Press of Kansas, 1995). The quote from John Yoo on presidential authority to instigate hostilities is from “The Continuation of Politics by Other Means: The Original Understanding of War Powers,”
California Law Review
84 (March 1996): 167–305. To read the “torture memo” and other related documents from the Bush administration, take a look (if you can bear to) at Karen J. Greenberg and Joshua L. Dratel, eds.,
The Torture Papers: The Road to Abu Ghraib
(New York: Cambridge University Press, 2005). The “dynamic duo” is David J. Barron and Martin S. Lederman; the quote is from their article “The Commander in Chief at the Lowest Ebb—A Constitutional History,”
Harvard Law Review
121, no. 4 (2008): 941–1111. The Prakash quote is from Saikrishna Bangalore Prakash, “Separation and Overlap of War and Military Powers,”
Texas Law Review
87, no. 2 (2008): 299–386. On the history of letters of marque and reprisal, see J. Gregory Sidak, “The Quasi War Cases—and Their Relevance to Whether ‘Letters of Marque and Reprisal' Constrain Presidential War Powers,”
Harvard Journal of Law and Public Policy
28 (Spring 2005): 465–500; C. Kevin Marshall, “Putting Privateers in Their Place: The Applicability of the Marque and Reprisal Clause to Undeclared Wars,”
University of Chicago Law Review
64, no. 3 (1997): 953–82; and Nicholas Parrillo, “The De-Privatization of American Warfare: How the U.S. Government Used, Regulated, and Ultimately Abandoned Privateering in the Nineteenth Century,”
Yale Journal of Law and Humanities
19, no. 1 (2007): 1–95. On the relationship between the letters of marque and reprisal clause and the president's authority (or nonauthority) to instigate hostilities, the other “prominent writer” is Jules Lobel, “ ‘Little Wars' and the Constitution,”
University of Miami Law Review
50, no. 1 (1995): 61–80. The defenders of presidential powers on this score are John Yoo and C. Kevin Marshall, in the articles cited above. The quote from Jules Lobel on the issue of Congress's power to make tactical decisions during wartime comes from his
article “Conflicts between the Commander in Chief and Congress: Concurrent Power over the Conduct of War,”
Ohio State Law Journal
69, no. 3 (2008): 391–467. The other article cited is Ingrid Brunk Wuerth's “International Law and Constitutional Interpretation: The Commander in Chief Clause Reconsidered,”
Michigan Law Review
106, no. 1 (2007): 61–100. The quote about Johnny Depp is from Andrew Grotto of the Center for American Progress, quoted in the
Politico
article cited above; the quote about Swiss bank accounts also comes from this article and was uttered by Eli Lehrer of the Competitive Enterprise Institute (who also is the source of the Rambo quote earlier in the chapter). The military expert whose law journal article weighs in on the letters of marque issue is Major Theodore Richard, who makes the point in “Reconsidering the Letter of Marque: Utilizing Private Security Providers against Piracy,”
Public Contract Law Journal
39, no. 3 (2010): 411–64.