Constitution Day Trivia Tidbits

constitutionSeptember 17 marks Constitution Day, the day in 1787 on which delegates to the Constitutional Convention signed the United States Constitution. Yesterday, the ABA Journal posted an interesting article to celebrate. The article contains 10 lesser-known facts about our Constitution, including these:

  • Most voters today would not have had the right to vote under the original Constitution. Voting rights were limited to propertied white males.
  • The word “God” never appears in the Constitution or the Bill of Rights. The source of all government power is in “the People.”
  • The word “democracy” never appears in the Constitution or Bill of Rights. James Madison and Alexander Hamilton claimed in the Federalist Papers that democracies were a disaster.
  • The First Amendment was not originally first. It started out as the third. For that matter, the Second Amendment was not originally the second. The original first and second amendments dealt with the size of Congress and with issues relating to Congress’s pay.

See here for the rest of the facts, and test your knowledge of the Constitution with the short quiz How well do you know the U.S. Constitution at the bottom of the page. It’s not as easy as you’d think! Next week, I’ll post on Professor Chad Oldfather’s interesting Constitution Day presentation on constitutional interpretation.

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The Initial Appeal of Chief Justice John Roberts’ Dissent in Obergefell v. Hodges

b599a34c0d512e42e3f5277e172bbebcd745dd98Rainbows abounded on the morning of Friday, June 26, 2015, when the United States Supreme Court held 5-4 that same-sex couples have a constitutional right to marry and a right to have their legal marriages recognized in every state.

The Court’s decision in Obergefell v. Hodges was not unexpected. The divide in the Court, too, was not unexpected: Justice Anthony Kennedy wrote the majority opinion for himself, Justice Stephen Breyer, Justice Ruth Bader Ginsburg, Justice Elena Kagan, and Justice Sonia Sotomayor.

(An interesting side note: Justice Kennedy, a 1988 Reagan nominee, has authored all four of the major SCOTUS cases on lesbian, gay, bisexual, and transgender (LGBT) rights: Romer v. Evans, Lawrence v. Texas, United States v. Windsor, and now Obergefall v. Hodges. As well, three of those cases were handed down on June 26—Lawrence on 6/26/03; Windsor on 6/26/13; Obergefell on 6/26/15).

When I first read the Obergefell decision, I found myself skeptical. Make no mistake: I fully agree with and welcome the holding. However, I was concerned about the Court’s reasoning. My first thought, upon reading the opinion, was to wonder why the Court did not base its holding more on the Equal Protection Clause, like Judge Richard Posner did in his opinion in Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014). That seemed to me to be the easiest argument. There is simply no compelling justification for the State to distinguish between opposite-sex and same-sex couples when it comes to marriage.

So, when I got to Chief Justice John Roberts’ dissent, it initially made some sense to me, and I could envision its appeal to many others.

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The Chief’s Lawsuit

220px-Shirley_AbrahamsonA lawsuit filed in federal court by a sitting Chief Justice of a state Supreme Court against her colleagues is certainly unusual, if not unprecedented.  The reaction to the filing of the complaint in Abrahamson v. Neitzel  by the mainstream media has ranged from viewing the lawsuit as comedy (The Milwaukee Journal Sentinel: “Will the Real Chief Justice Please Stand”) to viewing this latest development as part of an ongoing tragedy (The New Yorker: “The Destruction of the Wisconsin Supreme Court”).  However, the legal question at the heart of the Chief’s lawsuit is actually quite interesting.

Does the new method for selecting a Chief Justice of the Wisconsin Supreme Court take effect in the middle of the sitting Chief Justice’s term, or does it take effect upon the conclusion of the term of the current Chief?

Complicating the issue is the fact that an $8,000 salary differential exists between the position of Chief Justice and the other six Justices on the Court.  Removing Justice Abrahamson from her current position as Chief would result in the immediate loss of this portion of her salary.  Moreover, a mid-term reduction in salary appears to be prohibited by Article IV of the Wisconsin Constitution.

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