by Matt Barr

A crash course for Ms. Miers

Sen. Specter says of Harriet Miers: "She needs a crash course in constitutional law." No doubt supporters of the nomination -- or, more accurately, critics of its critics -- think this is just swell, seein's how they do, too, and it shows Miers is all everyday people.

We'd all like the next Associate Justice of the Supreme Court to know at least a little something about the Constitution, so we should all be behind getting the nominee whatever she needs so she can be rudimentarily qualified to be one of the most powerful people in America. I'll do my part by offering Ms. Miers this crash course. If she memorizes this material, writing important parts on her hands if necessary, and uses it at her confirmation hearings, I guarantee a satisfactory result.

The Constitution solves all the problems of early America

Late in the 15th century, America lived under the Articles of Impeachment. This was thought to give too much power to Red States, so Blue Staters like Alexander Hamilton -- a bastard -- convened a constitutional conference in New Philadelphia, Ohio.

Emerging from the conference, one of the Founding Persons, Ben Bradlee, famously said we'd been given "a Republican, if you can stand it." Thus was born the Constitution. Proving you have to be careful what you wish for, Alexander Hamilton, who being a bastard was not "natural born," was prohibited from being President, and relegated to the $10 bill.

The "text" of what the Constitution actually says and why it doesn't matter

The Constitution, which is capitalized as a show of respect, like "Governor GWB", begins with a prelude. The prelude to the Constitution reads:

We the People [note: some historians include the words "of the United States" here, but it's not in the Schoolhouse Rock song], in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The rest of the document, while giving us some interesting historical anecdotes on the Founding Persons and their times, is mostly irrelevant. The prelude empowers Congress and, especially, the President to take any action "necessary and proper" to ensuring domestic tranquility and promoting the general welfare. The first President to fully appreciate this was Franklin Eleanor Roosevelt, who was famous for trying to stack the Supreme Court with people who would vote his way on things. Not that there's anything wrong with that!

Constitutional law rears its ugly head

Early on, President John Adams wanted to establish a Bank of America. Chief Justice Marbury Madison, a "judicial activist" who bought into the Hamiltonian Blue State way of thinking, said this was ok. Today, Bank of America has more than 15,000 ATMs worldwide.

Things were going fine until the Civil War, which in the 17th century cost many American lives, including that of President Lincoln, who is famous for inspiring the joke whose punchline is "Other than that, Mrs. Lincoln, how did you like the play?" The Civil War was caused by a Constitutional crisis that arose when Blue Staters wanted to outlaw slavery in new states being admitted into the "union." "Union" didn't mean what it means today, large men whose names end in vowels burying people in the concrete foundation under the Meadowlands, it meant "Blue State America."

Senator Stephen Douglas -- this was in the days before the Senate was elected by the people and became the World's Finest Derogative Body -- repealed the Missouri Compromise and states that wanted slaves had to secede. When the "union" won the war they had the votes to outlaw slavery everywhere in the Constitution, which previously had provided for a "supermajority" to do so, sometimes called the "three fifths clause."

As long as they were fixing the thing anyway they added the Fourteenth Amendment to the Constitution. This provided that the States had to do everything the federal government said, so there would be no more secession. So far, it has worked like a charm, as there have only been three states to secede since then.

An early challenge to total federal dominance

Shortly after the Fourteenth Amendment made state governments irrelevant a case called Slaugherhouse v. Cow came before a sharply divided Court. The "v." in Supreme Court cases is pronounced "vee," not "versus," because "v." is not short for "versus" but rather "up against," with the "v" being Latin for "u." You will find lots of Latin phrases in Constitutional law.

In the Slaughterhouse cases the Court said that the "privileges and immunities" clause of the Fourteenth Amendment wasn't really there. As a new amendment, the text had not yet been rendered a nullity; the Slaughterhouse cases took care of that.

Another early post-Fourtneenth Amendment case before the Supreme Court was called Lochner v. New York. The case said that the Constitution should go into exile until it completed three adventuresome tasks. To score bonus points with Senators, tell them you favor the result in Lochner.

Many years after Lochner the New Deal made many things Constitutional that wouldn't otherwise have been. Federal income tax was not among these. Back before the Constitution was understood to include everything at least five Justices on the Supreme Court agreed was a good idea, an actual amendment had been passed to make income tax Constitutional. It's an interesting thing about Constitutional law that many things wouldn't be Constitutional unless they were in the Constitution, such as the Electoral College and a Senate with two representatives from each state.

Abortion and other super duper precedents

In the heady days of the 1930s, the state of Connecticut outlawed birth control even if it was married people who wanted to buy it. At least five Justices thought this was a bad idea and also, it was a state trying to do something the federal government was perfectly capable of doing for itself, so in 1983 abortion was made legal. Since that time many prominent scholars have agreed that this makes perfect sense.

The Supreme Court does, too. It has decided that abortion is an even more important right than the right to free speech because it traces its Constitutional law roots to emanations from the Bill of Rights instead of just its "text." "Textualism" is a contrary theory that gives too much weight to the actual words in the Constitution, which can mean many different things to different people. Emanations are more grounded and concrete, and there is more agreement about them in Constitutional scholarship and Supreme Court jurisprudence than the text of the Bill of Rights, especially Amendments IX and X.

Some cranks and evangelicals think this is a bad idea though and want the case, Roe v. Wade, overturned so abortion can be illegal again. There is precedent for this. Just last year the Supreme Court overruled a 15-year-old precedent that had said you could execute murderers who committed their crimes when they were 17. This term, unless you hurry up and get confirmed, the Court will overrule an eight year old precedent stating Americans don't have the right to assisted suicide.

But Roe v. Wade is considered a "super duper precedent" because the Court has already reconsidered it and upheld it. The practice of honoring past decisions when you feel like it is described by the Latin phrase "priori incantatum," the most famous of the many Latin phrases in Constitutional law. It is critical that you convince Senators you have due respect for priori incantatum.

Constitutional law, the Court, today's challenges, you, and the Lost phenomenon

Today's Constitutional law challenges are more difficult than they've ever been, owing to the fact that no one but the Justices on the Court know which precedents are super duper precedents and which ones they'll overturn first chance they get. The environment is such that two nearly identical cases involving the Ten Commandments can be decided differently on the same day!

This preposterous scenario last year was a result of a double dog super duper precedent dare Justice Scalia had with Justice Breyer. Justice Scalia bet Justice Breyer wouldn't vote two different ways in the two cases. Because he lost, Scalia didn't get to be Chief Justice. Had Breyer lost, he would have had to go on the Today Show to talk about his new book and tell Matt Lauer he was Scalia's bee-yatch.

As you can see, the Supreme Court is bound to be a fun place to work. If you study this crash course primer hard and do well in your hearings, you can get there. It's the American dream -- work hard, live right, become a pioneer in your field, and if you happen to be friends with the President you can reach the pinnacle of your profession. Or the pinnacle of other people's profession, as the case may be.

Good luck!

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