Fantasy Drafts

Sunday, December 04, 2005

Amendments **GUEST** Commentary - Part II of II

4:57 PM
Sarah's dad, Professor of Law at Temple and ostentatious enough to link to Fantasy Drafts from Volokh, reviews the Constitutional Amendments draft below. Ivory tower comments have been withheld for decency.

The first thing to notice here are the Undrafteds: Two of the original ten in the Bill of Rights (## 3 and 7), but only one (# 27) of the remaining seventeen. How strange is that?! That # 3 would fail to make the grade was predictable – quartering soldiers in private houses having fallen rather precipitously out of favor during the last 200 years. But surely one would have expected number 7 (jury trials in civil cases) to end up as a solid mid-rounds pick. [It seems as though the all four of you hold the right to jury trial in rather low esteem – amendment 6 ending up being chosen at the end of the fourth round). And surely # 27 deserved a better fate – at least for its high curiosity value (the only Amendment that required more than 200 years to be ratified!).

On to the lineups.

Adam: 1st (Religion and Expression), 4th(Search and Seizure), 5th (Rights of Persons), 12th (Election of President), 24th (Abolition of the Poll Tax Qualification in Federal Elections), 20th (Commencement of the Terms of the President, Vice President and Members of Congress)

A solid and powerful Bill-of-Rights-heavy lineup. Taking the First Amendment with pick #1 was, while perhaps unoriginal, the right move; it certainly can lay claim to being primus inter pares, the one Amendment without whose protections (for freedom of expression, and the “press,” and thought, and assembly), the whole governmental scheme set forth in Articles I – VII could well have fallen apart (as Jefferson wrote: “Were it left to me to decide whether we should have a government without newspapers or newspapers without government, I should not hesitate a moment to prefer the latter.”) And how about nabbing the powerhouse tandem of 4 and 5? Who would have thought that they would still be available at the end of the 2d round?? [What was everyone thinking? Take away # 4 and the cops are crawling in your underwear drawers and pawing through your private correspondence, and # 5 . . . due process of law, double jeopardy, plus just compensation ...? That’s a third-round pick?]

With that top three, the composition of the rest of the team may not matter so much, which is probably lucky for Adam (though he does seem to have put together an interesting “voting rights and procedures” trio in ## 12, 24, and 20).

Grade: A--

Sydney: 13th (Slavery and Involuntary Servitude), 21st (Repeal of the Eighteenth Amendment), 10th (Reserved Powers), 6th (Rights of Accused in Criminal Prosecutions), 26th (Reduction of Voting Age Qualification), 23rd (Presidential Electors for the District of Columbia)

Sydney seems to have opted, with her rather unusual first-round pick, for historical & symbolic, rather than strictly legal, significance. Abolition of slavery was, of course, a monumental event in the country’s history; but of the three Civil War Amendments (## 13, 14, and 15), number 14 does most of the heavy-lifting (from the perspective of constitutional law). Even without # 13, the Fourteenth Amendment’s requirement of “equal protection” would undoubtedly have done away with slavery; and with # 14 you get all sorts of other powerful stuff, not least of which is the prohibition against any State deprivation of “life, liberty, or property without due process of law”; it was this Constitutional provision that the Supreme Court relied upon for holding that the protections of the Bill of Rights (which speak only to Congress’s power) were enforceable against the States). (Plus, there’s a reason place-kickers – even really good place-kickers – don’t get picked in the first round of the draft ... the drafters know very well that they’ll be around in later rounds ... Same for # 13, surely).

And her second round pick is truly bizarre – repeal of Prohibition, while ## 4 and 5 are still available?? What was she thinking? It wasn’t even clear we needed an Amendment to accomplish repeal – couldn’t we just (as we do with the repeal of statutes) just excise the offending Amendment (#18) from the Constitution?

Some nice mid-rounds choices here, though, picking up two of the remaining Bill of Rights Amendments in rounds 3 and 4. But overall Sydney’s fans (and they are legion) were surely muttering to themselves at the post-draft confabs.

Grade: C+

Sarah: 9th (Unenumerated Rights), 19th (Women's Suffrage Rights), 15th (Rights of Citizens to Vote), 22nd (Presidential Tenure), 2nd (Bearing Arms), 18th (Prohibition of Intoxicating Liquors)

Another interesting first-rounder, the deeply misunderstood and often disparaged Ninth. Such a simple idea – just because we haven’t enumerated a right, doesn’t mean we (the People) don’t retain it – though it has been awfully hard, over the years, to know exactly what to make of it and/or how to enforce it. Too bad Sarah didn’t get to pair it with its equally misunderstood close cousin #10 (any powers not expressly delegated to the federal government are retained by the States and/or the People), although nabbing #2 in round 5 does give her a nicely libertarian-tinged lineup. Sarah also manages to put together a nice “extension-of-the-voting-franchise” duo with ## 19 (no denial of the right to vote “on account of race or color”) and 15 (no denial of the right to vote “on account of sex”) – I wonder if she would have reversed the order had she been a black woman?

And it’s true that there wasn’t much left on the table by round 6, but still – # 18? The only Amendment that was ever repealed? While ## 7 and 27 are still available? Hmm ...

Grade: B

Chris: 14th (Rights Guaranteed, Privileges and Immunities of Citizenship, Due Process and Equal Protection), 16th (Income Tax), 8th (Further Guarantees in Criminal Cases), 17th (Popular Election of Senators), 25th (Presidential Vacancy, Disability, and Inability), 11th (Suits Against States)

A great start, with the heart of the Civil War Amendments, # 14 (projected by most pre-draft commentators to be a No. 1 or No. 2 pick, for sure). Overall, though, it’s a little hard to see the theme in Chris’ lineup. He’s got a solid “federal power at the expense of the States” group -- ## 14, 16, and even 17 – but then he goes for #11, the prohibition against lawsuits “against one of the United States by Citizens of another State,” an amendment that the Supreme Court has held incorporates the notion of State “sovereign immunity,” and one on which the Rehnquist Court has relied heavily in its recent “new federalism” rulings, attempting to rein in Congressional power and carve out domains for State, rather than federal regulation.

Grade: B


Blogger Durward Kirby said...

Wow. Who’da thought that a LAW PROFESSOR would fall for that ridiculous Jefferson press quote. TJ was cool with the press so long as he could put his own editors on the payroll over at the State Department (true story). And he was muchly in favor of wild accusations against the opposition. But when the very same editors started rooting around in HIS woodpile, whoa Nelly! (Yet another true story.)

7:51 PM  
Anonymous Anonymous said...

This commentary has a lot of nested parentheses. My head hurts

8:49 PM  
Anonymous Anonymous said...

Alternating use of brackets and parentheses would have made it easier to understand.

9:07 PM  
Anonymous Sarah said...

Um, a B? Whatever happened to good old-fashioned nepotism?

9:35 PM  
Anonymous Anonymous said...

rant rant rant rant rant rant rant. There's not too much to criticize here. At least toss in some gay jokes or something.

9:15 AM  
Blogger Selfish Country Music Loving Lady said...

Yeah, this commentary is moderately less crackpot-sounding, crazy parentheses aside.

I would like to point out that black women couldn't vote until after the 19th amendment, so really, that was the limiting factor for them too, right?

9:57 AM  
Anonymous Anonymous said...

eh women with the vote: or Onthe woman question, i am on teh side of the extreme advocattes of complete liberty for women, and especially their right to labor. but in my home life, i live with my wife on such terms that our affectionate, albeit childless, home-life is the admiration of everyone and i arrange my wife's life so that she does nothing and can do nothing but share in my efforts that her time does pass as happily and as agreeably as possible.

1:15 PM  
Blogger Selfish Country Music Loving Lady said...

O.... kay...

1:23 PM  
Anonymous Anonymous said...

One problem with the commentary...the Fourteenth Amendment does not necessarily incorporate the 13th. Let us suppose I seize a homeless man off the street and force him to work for me. Let us also say state law authorizes seizure of any private person if he is needed for labor. Would that law violate the Equal Protection Clause? Not on its face; anyone is subject to seizure. Would it violate Due Process? No, because it involves private action, not state action.

9:02 PM  

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