The Odd Clauses (16 page)

JUSTICE THOMAS:
I don't know. Didn't we agree back in 1992 that we both enjoyed
A Few Good Men
? Anyway, look at the
Young's Market
case from 1936. We said it was fine for California to tax beer imports from outside the state because Section 2 trumps the dormant commerce clause.

JUSTICE SCALIA:
What? I totally disagree. Have you guys read our more recent cases? The 3.2 percent beer case? The
44 Liquormart
case? Your cases are yesterday's newspaper. The newer cases have basically held that the Twenty-first Amendment doesn't do jack.

JUSTICE SOUTER:
I can't believe I'm saying this, but I think Scalia's right. Remember the
Bacchus Imports v. Dias
case from 1984?

JUSTICE O'CONNOR:
Isn't that the one where Hawaii had imposed a 20 percent tax on all wholesale liquor sales but had exempted locally made pineapple wine and an indigenous-shrub-based brandy called okolehao from the tax? We said that the tax violated the dormant commerce clause even though sales of okolehao and pineapple wine made up no more than 0.7739 percent of total liquor sales in any given year.

JUSTICE REHNQUIST:
Mmmmm, pineapple wine. Yummy.

JUSTICE BREYER:
I bet a cup of okolehao would pair nicely with this turkey and muenster sandwich I'm eating.

JUSTICE SCALIA:
You've got turkey? Want to trade? I've got peanut butter and banana.

JUSTICE BREYER:
No way you're getting any of my turkey. I'll give you my cookie for your brownie, though.

JUSTICE GINSBURG:
Can we focus here, people? Jeez!

JUSTICE SOUTER:
Thank you, Justice Ginsburg. As Nino and I were saying, our most recent cases, including the Hawaii case, have very clearly held that Section 2 does not authorize states to violate the strict dictates of the dormant commerce clause. That's exactly what Michigan and New York have done here, so I say we strike down the challenged laws.

JUSTICE STEVENS:
I vociferously disagree. You whipper-snappers might be under eighty-three years old, but I'm not, and I remember well what Prohibition was about. The people who wrote the Twenty-first Amendment meant to give the states the power to regulate alcohol however they want. The justices who decided our early cases on this matter, like
Young's Market,
had lived through the 1920s and understood this. We should respect the original meaning of the amendment.

JUSTICE THOMAS
[giggling under his breath]:
Stevens is so old.

JUSTICE REHNQUIST:
What about this argument the states make that banning direct sales from out-of-state wineries is necessary to discourage underage drinking? They say it's just like the Maine baitfish case.

JUSTICE GINSBURG:
No, that's ridiculous. Kids can't wait eight seconds between checking their text messages. They're not going to order wine over the Internet and wait three days to get it.

JUSTICE O'CONNOR
[leaning toward Justice Rehnquist and whispering]:
What does Ginsburg know about text messaging?

JUSTICE BREYER:
Plus, the states exempt in-state wineries from the no-direct-sales rule anyway. This totally undermines their whole argument. If a kid from East Lansing or Ann Arbor wants to get hammered on wine, some northern Michigan swill will do just as well as Napa Valley Opus One.

JUSTICE SCALIA:
I never thought I'd say this, but I'm with Ginsburg, Breyer, and Souter on this one. Yikes. I better go have my head examined. Does anyone have a gavel I can bite in half?

JUSTICE THOMAS:
Well, it looks like Rehnquist, O'Connor, and Stevens are on my side. We've heard from everyone except Justice Kennedy. It's 4–4, Anthony. I guess it's up to you.

EVERYONE ON THE COURT OTHER THAN JUSTICE KENNEDY:
Again!

Justice Kennedy takes off his headphones and turns off the portable television he was watching, which was turned to
The Jeffersons.

JUSTICE KENNEDY:
Oh, is it time for me to make the law for the land now? I agree with Scalia. Our newer cases trump the older ones. I say the laws are unconstitutional.

JUSTICES SCALIA, SOUTER, GINSBURG, AND BREYER:
Yippee.

JUSTICE STEVENS:
Why do I even bother showing up here anymore?

The question of how much power the states should have in the federal system was a primary concern of the Constitution's framers, and it remains a big deal today. In the past twenty or so years, the Supreme Court's so-called New Federalism approach to issues involving state power, like whether the commerce clause places significant constraints on congressional power and how broad state immunity from suit should be under the Eleventh Amendment, has resulted in states having a bit more power and freedom than in some earlier periods. But the federal government remains extremely powerful, and the idea that the Supreme Court will ever put truly significant restrictions on federal power seems unlikely.

The puzzle of Section 2 of the Twenty-first Amendment is one part of this state-power question, and it is interesting that, by cutting down in recent years on the amount of power Section 2 offers states to regulate liquor, the Court has gone against its general trend of finding in favor of state power. What's more interesting, though, is what the Court's approach to Section 2 tells us about constitutional interpretation generally. One of the hard questions when it comes to interpreting the Constitution is whether judges should interpret provisions differently as social and cultural attitudes toward various things—sex, drugs, religion, technology, race, gender, etc., etc.—change over time. Some say yes, the Constitution should be read as a “living document” so that it continues to remain relevant to our current situation, while others say that unelected judges have no authority to change the Constitution's meaning and that the document's original meaning must endure, at least until it's formally amended.

In most cases, it can be difficult to get a handle on this disjunction between original meaning and current conditions, because most of the Constitution is well over two hundred years old, and even some of the more important amendments, like the Fourteenth, have been around for
nearly a century and a half. It's not easy to imagine how the framers, writing in the late eighteenth century, for instance, would have thought about funding public Jewish schools or regulating Internet porn or legalizing gay marriage. The disconnect is just too overwhelming. But with the drosophila-fruit-fly-like Section 2, now only about seventy-five years old, the issue is more accessible. We generally feel differently about liquor now than we did in the mid-1930s, but it's not so difficult to put ourselves into the shoes of those who struggled with Prohibition, and this makes it easier to think about whether we should interpret the Constitution dynamically. If you think the liberal Justice Stevens is right about the meaning of Section 2, doesn't that mean you believe that the Constitution's original meaning should prevail? If you think that the more conservative justices Kennedy and Scalia are right, doesn't that mean you believe the Constitution should be a living document?

Maybe, maybe not. But the next time you find yourself in a seedy pool hall watching a bottomless-dance routine while enjoying a tall frosty mug of pineapple wine, it might be worth thinking about.

The Congress shall have Power to . . . grant Letters of Marque and Reprisal.

Article I, Section 8

Americans adore pirates! We dress up like pirates on Halloween and bellow “Arrrr, matey!” at our friends and feed imaginary treats to the invisible parrots perched on our shoulders. We spend every September 19 celebrating International Talk Like a Pirate Day and occasionally change our Facebook language settings to pirate mode (yes, this is a real thing). But despite their curiously romantic appeal, pirates actually suck. They sucked back in the seventeenth and eighteenth centuries when they lawlessly plundered innocent ships with cannons and swords, and they continue to suck today, as they use their high-tech GPS equipment and automatic weapons to wreak havoc along the Horn of Africa and elsewhere.

In April of 2009, the
Maersk Alabama,
a huge unarmed American cargo ship carrying food for various international relief organizations, was on its way from Djibouti to Kenya
when four Somali pirates attacked it, seized Richard Phillips, the
Alabama
's captain, and demanded millions of dollars in ransom. Naval officers on the USS
Bainbridge,
a destroyer that had been patrolling the Indian Ocean at the time of the attack, negotiated for days with the terrorists, but to no avail. When the lifeboat the pirates were in ran out of fuel, they accepted the
Bainbridge
's offer to tow them a short way behind the American warship. In the meantime, a crack team of Navy SEAL snipers had been flown to the area, where they parachuted into the sea and were brought aboard the
Bainbridge.
Tensions had been high for days, with the pirates repeatedly threatening to kill the captain, but when a bullet was fired aboard the lifeboat sometime near dusk on April 12, President Obama gave the go-ahead for the snipers to start sniping. The Navy marksmen donned night-vision glasses and waited for exactly the right moment. When two of the pirates stuck their heads out of the lifeboat's rear hatch, and the third remaining pirate became visible through a window at the bow of the boat, the three SEALs fired. Rescuers from the
Bainbridge
boarded the lifeboat and found all the pirates dead. Captain Phillips was rescued, basically unharmed. Amazingly, the SEALs had fired only three bullets to end the crisis.

In the wake of the affair, there was of course much celebrating the heroism of both Captain Phillips and the Navy SEALs, but this cheering was accompanied by debates over what to do about the increasing problem of Somali pirates. The naval operation that ended the
Alabama
crisis had allegedly cost tens of millions of dollars. Might there be some better and cheaper way to fight these pesky pirates? Among the recommendations came a curious one from the always controversial, libertarian-leaning Republican congressman from Texas, Ron Paul. Representative Paul suggested that perhaps the government could authorize private vessels to fight pirates in return for bounty money. That way, the US
government could use the market, rather than its own firepower, to solve the piracy problem. As one supporter of the proposal observed, “If we have 100 American wannabe Rambos patrolling the seas, it's probably a good way of getting the job done.”

But wait, would this solution be constitutional? Can the US government actually contract out its key naval functions? Representative Paul certainly thought so. Following Paul's proposal, the government would use its power under Article I of the Constitution to grant “letters of marque and reprisal” to private vessels; these letters would authorize the private ships to fight pirates on the government's behalf. If this seems like kind of an antiquated solution to you, well, it is. The United States hasn't issued a letter of marque or reprisal in almost two hundred years.

The big constitutional question when it comes to foreign affairs is who, as between the Congress and the president, has the power to do what. The place to start is the text of the Constitution, which allocates various foreign affairs powers between the two branches. The president has the power to enter into treaties with foreign nations, subject to Senate confirmation. The president also has the power to “receive Ambassadors and other public Ministers.” Most importantly, Article II, Section 2, of the Constitution makes the president the “Commander in Chief of the Army and Navy of the United States.” On the other hand, Article I of the Constitution gives Congress the power to “declare War,” “raise and support Armies,” “provide and maintain a Navy,” and “make Rules for the Government and Regulation of the land and Naval Forces.” Congress is also given a bunch of pirate-y powers, including not only the marque and reprisal power, but also the authority to “make Rules concerning Captures
on Land and Water” and “to define and punish Piracies and Felonies committed on the high Seas.”

All told, there aren't that many words in the Constitution about foreign affairs, but the commentary that these few words have engendered could fill the main branch of a midsize US city's public library. Two issues have captured most of the attention. The first issue is whether (and to what extent) the president can instigate hostilities short of a declared war without congressional approval, apart from acting in an emergency to repel a sudden attack (which everyone agrees the president can do). The second issue is whether (and to what extent) Congress can limit or control the scope of the president's power once war or other hostilities have begun. The first question was the big one during the whole Vietnam War fiasco; the second question has risen to the forefront as a result of more recent fiascos.

Another way of putting the first issue is like this: Can the president start what looks like a war even though Congress has not declared war? As it turns out, although the United States has engaged in hostilities with foreign nations over a hundred discrete times in our history, Congress has only issued a formal declaration of war five times: during the War of 1812, the Mexican-American War, the Spanish-American War, and the two world wars. Operation Iraqi Freedom? The Gulf War? Vietnam? Korea? All undeclared, to say nothing of our many smaller, presidentially initiated hostile operations, like our relatively recent interventions in Haiti, Somalia, and Bosnia. Were these undeclared warlike things constitutionally illegitimate?