The constitution

In recent days, babies have taken center stage at the US Capitol, carried by their congresswoman mothers advocating for a rule change to allow proxy voting for new parents. Representatives Anna Paulina Luna, Republican from Florida, and Brittany Pettersen, Democrat from Colorado, crossed the aisle to propose that House members be allowed twelve weeks to delegate their votes after childbirth. This effort, while well-intentioned, ignores the historical and practical significance of in-person voting in Congress. Article I, Section 4, Clause 2 of the Constitution states: “The Congress shall assemble at least once in every Year.

Donald Trump this weekend floated the idea of running for a third term. Unless he’s doing it in 1940 when Franklin D. Roosevelt did, it’s unconstitutional. I don’t mean unconstitutional for Judge Boasberg or Judge Chutkin or some zealot in robes in San Francisco or Seattle. I mean unconstitutional in capital letters for any judge, including a 9-0 vote on the Supreme Court. The legal background here is straightforward. When FDR ran for a third term in 1940 and for a fourth in 1944, there was no legal or constitutional prohibition against doing so. There was simply a well-established norm, begun when George Washington returned to Mount Vernon after two terms. That norm was respected by every subsequent president. Until FDR.

In the matter of Donald Trump v. Leviathan, let me begin by stipulating that Sir Thomas More was right in A Man for All Seasons when he remonstrated with his future son-in-law William Roper.  Roper was urging More to arrest the scheming Richard Rich, whose machinations would eventually lead to More’s execution. But, More points out, Rich had broken no law.   William Roper: So, now you give the Devil the benefit of law! Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil? William Roper: Yes, I’d cut down every law in England to do that! Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat?

There used to be a saying: ‘never discuss religion or politics’. That was just a societal rule, a prudent tip for an enjoyable evening. But that principle is also in our constitution. This is a fact recognised by the Supreme Court — and particularly by Lord Sumption — earlier this year. Sharing your political opinions is, for some people, a breach of constitutional obligations. The UK is odd, some think, in having the constitution that we do. Far younger states with bright and shiny constitutions, written in single documents, seem to look down on our frumpy older version.