Recently in Constitutional Law Category

April 22, 2009

Should Bush Lawyers Face Jail Time for Legal Advice

New Attorney General, Eric Holder, is in a predicament.  He has the choice of prosecuting fellow attorneys for an interpretation, albeit misled interpretation, of the Constitution, or to forego prosecution and let the past eight years slip away like a dark memory.  John Yoo and his compatriots advised former President Bush on interrogation techniques and greenlit investigative procedures that were likely illegal under international law and many people want to see those responsible tried as war criminals.

Is it possible that in only a matter of months, DC could experience such a change of thinking that what was permissible a mere four months ago is now widely considered torture?? 

The approved interrogation techniques did not suddenly become illegal overnight - they always were.  Congress, law Professors, and first year law students all realized that John Yoo's interpretation of Presidential power was excessive.   But was it criminal?  Legally speaking, I doubt it.  And I doubt that Eric Holder will take any action because of the questionable precedent that it would set.
April 8, 2009

Gay Marriage in Rhode Island

Rhode Island has its fair share of pressing issues and we will soon be faced with yet another.  A number of factors are forming below the surface that will make gay marriage in Rhode Island a major issue in the coming weeks.

Rhode Island is now the only New England State that does not recognize some form of gay marriage or civil union for homosexuals.  Vermont recently added their name to the growing list of States recognizing gay marriage and the Iowa Supreme Court this week unanimously overturned a ban on same sex marriage.  In addition, the Rhode Island House Judiciary Committee is planning to vote on legislation that would allow a homosexual couple married in a state that recognizes such marriages to divorce in Rhode Island.  This is in conflict with the 2007 Rhode Island Supreme Court decision, Chambers v. Ormiston, which held that the Family Court lacked the jurisdiction to address the legal concerns of homosexual couples.  Finally, we all need to be aware that this issue is going to influence Carcieri's appointment to replace Chief Justice Williams on the Supreme Court. 

And where does Carcieri stand on this issue...

Today our Govenor spoke at an anti-gay marriage conference at the State House.  Carcieri wishes to see the topic on a State ballot rather than allow the Court system to bind Rhode Island law.   It should be noted that all the justices writing for the Chambers decision, including the dissenters Justice Goldberg and Justice Suttell, agree that the status of gay marriage in Rhode Island is to be determined by the legislature after open public debate, and not by the judiciary.

However, all of this, brings us full circle to the question of whether gay marriage is a fundamental right.  This and only this is the question that needs to be answered... and it needs to be answered by the Supreme Court.  If gay marriage is a fundamental right, it can not be placed on the ballot for majority vote to decide.  It is equivalent to trying to decide the issue of slavery by majority opinion.  On the other hand, if gay marriage is not a fundamental right, then homosexuals are not guaranteed such Constitutional protection.

If our Governor and Supreme Court are unwilling to alter their stance on gay marriage, the issue may have to come to a ballot vote.  If that were the case, how would our democratic and liberal state vote?