Tuesday, September 18, 2018
Our Third Annual Constitution Day was a smashing success. The panel members spoke to a large and engaged crowd of VLS Students and members of the public, including small children, lawyers and judges. Attendees mingled well after the 6pm finish time to discuss the US Constitution and other legal topics.
VBA President Gary Franklin introduced the panel and this year’s Constitution Day theme: “Separation of Powers” as selected by the ABA for their law-day theme. VLS Professor Peter Teachout introduced the topic with an engaging explanation of the historical origins of Separation of Powers, noting that his presentation was more like ‘frozen concentrate’ since he only had 10 minutes for such a robust topic. In its simplest terms, he explained that the Separation of Powers doctrine was designed to prevent tyranny. One highlight was his offer that any VLS Students in attendance would be allowed to use the VBA copy of the Pocket Constitution in his final exam room!
Next Justice Harold Eaton discussed Marbury vs. Madison, the seminal case that all lawyers remember, but with a fascinating exploration into its back-story. Attendees learned that Madison didn’t file a brief or even appear and that the case languished for 2 years. Despite controversial issues about the failure of Justice Marshall to recuse himself, the heated battle with the secretary of state and a potential constitutional showdown, the case was simply decided on jurisdiction. No one even referenced the case or cited it as being about judicial review until approximately 70 years after the decision!
Despite the prevalence of the word “impeachment” in the news cycle, Judge William Cohen eloquently gave a balanced presentation about impeachment generally and about the impeachment of Jackson without approaching modern times. He spoke of the fascinating terms “High Crimes and Misdemeanors” noting that they have nothing to do with criminal law, and no one can really describe one. Impeachment was designed purely to limit the power of the president and steer our country clear of monarchy. Intended to be used sparingly, Judge Cohen noted that the power of impeachment has only been used 14 times in 200 years, and only 3 times with reference to a president (the others were judges mostly, but also a senator and a secretary).
Justice Beth Robinson took a caselaw approach, discussing one case regarding the Valor Act and also the seminal case of Youngstown Sheet & Tube vs. Sawyer, both beautifully displaying the tension between the branches of government. Justice Robinson noted that when the Supreme Court determined that President Truman did not have the power to seize the production of steel in war times to forestall a strike, Truman did revoke his executive order within a few days. She remarked that the Separation of Powers doctrine which is required to keep our systems in balance, only works when the individuals at the helm of each branch respect when the doctrine is invoked.
Last but certainly not least, Judge Nancy Waples walked us through the Trump vs. Hawaii cases regarding the string of Executive Orders known as the ‘travel ban.’ Judge Waples gave a detailed analysis of the majority decision, concurrences and dissent, after discussing the procedural history, and remarked on the broad powers granted by the Immigration Act. Separation of Powers is called into question when Congress yields so much authority, creating an opportunity for misuse, but also begging the question regarding how to get it back. As the presentation wrapped up with this thought-provoking observation, the attendees were then engaged in a brief Q&A session to top off the successful event.
We are so grateful for our skilled and engaging presenters as well as for the Vermont Law School for hosting the event. Thank you for making the event a success. The VBA provided over 200 complimentary Pocket Constitutions to attendees and will have a video recording of the event available on our website shortly. All three annual Constitution Day presentations will be found HERE.
Please enjoy the pictures from the event, below.