I get all Constitutional on Scott Brown
by Brian Keaney
I happened to be at a stoplight on West Broadway in Southie yesterday morning when I saw a stand out for Scott Brown. I didn’t think too much of it until I saw the TV cameras there. At that point I rolled down my window and called out to one of the volunteers, asking if the candidate was there himself.
“He sure is!” was the response I got. “Pull over and come meet him.” I turned to my dad, who was driving, and he just rolled his eyes. He thinks all politicians are crooks, but knows me too well to try to stop me.
Despite the sub-freezing temperatures, I opened the door and jumped out wearing nothing but jeans and a t-shirt. I had a question I wanted to ask him, and this time I was going to get an answer.
I had already asked this question before. Twice before, in fact, but I hadn’t gotten an answer either time. I tweeted him on January 5th, and then, following a related profile piece in the Globe, I asked the same question on January 7th.
In fairness, my question was related to a somewhat obscure piece of Constitutional law and probably is not answered well in a 140-character reply. The relevant clause comes from Article 1, Section 6:
No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States…
The candidate is an officer in the National Guard, which I would argue is “a civil office under the Authority of the United States.” Brown made a distinction between the Guard and the regulars. I’m not a lawyer or a military law scholar by any stretch – he is in the JAG corps – and I suppose I can see the distinction he draws there. However, I still think as an Army officer he holds a position in the executive branch, which Senators are Constitutionally prohibited from doing.
He also said that the Guard was comprised of “citizen soldiers,” which is what the Founding Fathers intended. That I can not argue with, however I would also add that they also believed pretty strongly in the separation of powers. Actually, I would have added that had I not been on the verge of hypothermia by this point. You can see just how cold it was on Kennedyseat.org.
(Incidentally, there is no Constitutional restriction on serving in both the executive and judicial branches at the same time. John Marshall served as both Chief Justice of the Supreme Court and as Secretary of State at the same time. )
Brown also pointed out that there are several members of the Congress who are reserve officers. This I know to be true, including Senator Lindsey Graham of South Carolina who is a Colonel in the U.S. Air Force Reserves. However, there is much that takes place in Washington that shouldn’t, and I think Brown would be the first to tell you that. “He did it first” isn’t an argument that carries much water with me.
As I mentioned to Brown, from the one ConLaw class I’ve taken I remembered that someone once brought a court case arguing exactly what I did, that a member of the Congress is prohibited from simultaneously being a military officer. The case was thrown out, if I remember correctly, because the petitioner did not have standing to argue the point. Until someone can show they are personally harmed by a reservist serving in the Congress, it is likely to remain an unresolved issue, at best.
All of that said, I wish Brown the very best in the upcoming special election. Though I am a registered Democrat myself, I always vote for the candidate, not the party. Brown has clearly run a much better campaign than Coakley, who seems content to not make any waves, or even ripples, and coast into office.
Brown’s numbers have been rising, and one poll even has him in the lead. Though I am skeptical of the possibility of an upset, I think this campaign bodes well for the future of the Massachusetts GOP. I’m not a fan of one party rule, and I want a strong opposition to keep the bums honest, even when they are my bums.
There seems to be at least one person confident of a Coakley victory, however. My district attorney, Bill Keating, has already launched a website for his campaign for Attorney General, the office Coakley currently holds.