Is President Obama Unconstitutional? I’m not a Birther. I’m a Titler.

Officers of the United States cannot receive titles from a foreign state without congressional approval. President Obama is set to receive the Nobel Peace Prize. If the Peace Prize is a Title from Foreign State, Obama would not be eligible to receive it without Congressional consent. Therefore, is President Obama unconstitutional? lol. I’m not a Birther. I’m a Titler.

H/T J.P. Freire, Pointer Volokh

Article II, Section 9 provides:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

Per Wikipedia, the Nobel Prize is awarded as follows:

“…the Norwegian Nobel Committee consists of five members elected by the Norwegian Storting (the Norwegian parliament).[9] In its first stage, several thousand people are asked to nominate candidates. These names are scrutinized and discussed by experts in their specific disciplines until only the winners remain. This slow and thorough process is arguably what gives the prize its importance. Despite this, there have been questionable awards and questionable omissions over the prize’s century-long history.”

Freire writes, “While the Norwegian Parliament has no say in who receives the prize, the role it plays in selecting the committee ties it to the state. Congress will have to vote on whether to allow Obama to accept the prize.”

So if President Obama recieves this award without Congressional Authorization, does that make him unconstitutional? I guess you can call me a Titler.


Interesting Article- Whatever Happened to the Contract Clause?

SSRN-Whatever Happened to the Contract Clause? by James Ely (h/t Legal Theory Blog)

I ask myself this question all the time. The abstract:

This paper examines the decline of the contract clause in constitutional jurisprudence. Although the contract clause occupied a key and much-litigated place in constitutional law during the nineteenth century, the Supreme Court never read the clause with literal exactness. Over time the Court began to limit the reach of the contract clause in a number of ways. It early distinguished between contractual rights and the remedy available to enforce such rights. States retained some room to modify enforcement procedures. Thereafter the Court insisted upon strictly construing legislative grants and recognized an inalienable police power to protect the health, safety, and morals of the public. Moreover, the Supreme Court upheld rent control laws and mortgage moratorium measures as valid legislative responses to emergency conditions which trumpted contracts between individuals. In short, the Supreme Court recognized so many exceptions to the contract clause as to virtually read it out of the Constitution. The advent of New Deal constitutionalism in the late 1930s, which downplayed economic rights and affirmed broad regulatory authority, completed the effective destruction of the contract clause. Despite some fleeting interest in revitalizing the clause, and a few decisions enforcing contract clauses in state constitutions, this once-powerful provision remains at the fringe of modern constitutional law. The paper contends that the decline of the contract clause likely reflects a diminished faith in contractual bargaining and competitive markets.

If there is a Constitution in Exile, along with the Commerce Clause, the Public Use Clause, the Privileges or Immunities Clause, the 10th Amendment, most of the 2nd Amendment, the Contracts Clause sure as hell as a vaunted spot in this lofty crowd.

I am thrilled to see a serious scholar writing on the contracts clause. What Berman did for the Public Use Clause, Home Building and Loan Association v. Blaisdell did for the Contracts Clause. It sapped it of any meaning. Although there have been some cases bringing the Contracts Clause to the forefront, for the most part it has been ignored and trampled on.

Video: Chief Justice John G. Roberts, Jr. at University of Michigan

In addition to CSPAN’s coverage of the Supreme Court, feed your Article III addiction, with this recent interview of the Chief at Michigan Law (H/T How Appealing). Here the Chief answer such questions as:

13:28 – Was there a “big surprise” when you began your job as Chief Justice?

17:04 – What experiences or habits of mind would make for a good Supreme Court Justice?

20:30 – Is there a role for empathy in appellate decision making, particularly on the Supreme Court?

25:10 – Have there been any “oh my gosh” moments when you realized you had a really big case on your hands? How did that affect your decision-making?

30:59 – How can a Chief Justice encourage more of a consensus on the Court?

33:58 – Would we be better off with a court that agrees about how to look at a case, or are we better off with a court whose justices use a diverse array of interpretive methods and techniques?

37:00 – Is this a good time to be Chief Justice? If you could pick any era in which to be Chief Justice, what era would you choose and why?

41:25 – How much has your documented lack of basketball skill damaged your credibility with your fellow Justices?

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Interesting Article: Using Lochner and Liberty of Contract as Basis for Gay Rights

SSRN-Taking Lochner Out of the Closet or Liberty of Contract as a Basis for Gay Rights by Joseph Morrissey (H/T Legal Theory Blog):

This article, “Taking Lochner Out of the Closet,” is at the intersection of contract law, constitutional law, and sexual orientation law. The article offers a fresh and neutral analytical framework based on liberty of contract to advance gay rights. The framework might also be applied to other areas of concern where government regulation must be justified.

With respect to gay rights specifically, many of the states of the United States have statutes, constitutional provisions, and court decisions that deny individuals the right to have a family, specifically a spouse and children, based on sexual orientation. Advocates frequently argue that such acts violate constitutional guarantees of equal protection or invade a constitutional right to privacy. However such arguments are often defeated by counter arguments presented with religious, moral and even emotional fervor.

This article discusses and develops an alternative analytical framework that is perhaps more neutral and less emotional than pleas for equal protection or privacy, and that might be used to critically assess such restrictions. The argument is one based on the historic principles of liberty of contract. Those principles were prevalent during what has become known as the Lochner era, an era named for the infamous case of Lochner v. New York, which was decided in 1905. (Lochner held that a statute regulating working hours of bakers was unconstitutional). The Lochner case and the era named for it was dominated by a simple presumption that people should be allowed the liberty to order their own affairs through contract and that regulatory encroachments on that liberty interest would be evaluated critically. This article argues that it is with just such a presumption that restrictions denying individuals the liberty to pursue and have a family should be evaluated and, most likely, found to be unconstitutional.

I never thought of this issue in this way before, but it is certainly interesting. The premise of liberty of contract is that individuals should be able to freely contract with other consenting people to arrange matters as they see fit. I could definitely see this concept preventing the state from banning certain types of couples from adopting, cohabitating (this would be more of a Pierce v. Society argument than a Lochner argument), and engaging in various types of intercourse- commercial, and otherwise.

Definitely worth a read.

Update: I thought a good alternate title would be, “Liberty of Contract. The Right to Intercourse; Commercial and Otherwise”

How did I persuade Justice Thomas AND Justice Scalia to sign my Constitution? Strategery. Pics to Document.

This Constitution is the Crown Jewel of my collection, and proudly stands on my desk at my office in Chambers.

Justice Thomas wrote,  “This is your Constitution.” Justice Scalia scrawled his classic Nino signature. But how did this Constitution come to be? Months and months of strategery.

Check out the story, after the jump. Trust me, it’s good. And I have pictures to document the entire story.

Update: Welcome Above The Law Readers. If you like these posts, follow me on Twitter and check out my RSS Feed.

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New Tradition: Every Friday, Stories of My Healthy Obsession with Article III

I have a peculiar hobby. I take pictures with Judges and collect Constitutions autographed by Judges. I have quite a collection.

As you may imagine, getting and autographs from and phootgraphs with so many Judges is not the easiest task. So I figured every Friday, I would share a photo, and the story behind it.

Later today I will explore the story of how I persuaded Justice Thomas and Justice Scalia to sign the same constitution. Stay tuned for that post later today.

In the meantime, check out the rest of my album on facebook.

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Obama joins Arafat, Carter as recipient of Nobel Peace Prize, waiting for the SNL “Really?” Sketch

Let’s see if Saturday Night Live, a show I haven’t watched in years, continues to keep it real.

One of the funnier sketches is on weekend update. Seth Meyers, with a dollop of sarcasm asks about something unbeliveable, and asks “Really!?” See this hulu link for a classic “Really?” sketch about bong hits for Jesus, err Michael Phelps. Also see a funny Randy Barnett “Really?” parody over the Constitutionality of ObamaCare.

I am not a writer on SNL, but here is how I would write the sketch.

So Obama won the peace prize for 2 weeks on the job? REALLY?

Two imperialistic wars raging. And they’re both getting worse under his watch? Really? Really?

And he promised to end these wars. Are they ended? No. REALLY OSLO? REALLY?

And he promised to Shut Down Guantanamo Bay. Still open for business. Really? Really?

And he thinks he can hold the Detainees at Gitmo indefinitely, just like Bush. Really? Really?

And he promised to stop unconstitutional government surveillance, but the PATRIOT Act is soon to be renewed? Really Nobel Peace Prize Committee? What part of Peace do you not get. Really?

And he gunned down a bunch of poor teenagers playing pirates in Somalia. Is this peaceful? Really? Really?

I’ll add more rants through the day. Feel free to comment