Law & Disorder

The Courting of the Constitution

Who’s in Charge Here?

By A.J. Wagner

It is troubling to me, as a former judge and an attorney, when I hear politicians say they will ignore the Constitution or not abide by its terms. During the Republican primary campaign, Newt Gingrich said he would ignore the Supreme Court if he felt their decisions were flawed. “If the court makes a fundamentally wrong decision, the president can, in fact, ignore it,” Gingrich told a room full of conservatives. Thus, on his first day as president, he would order the military to ignore some legal rights granted by the Court to foreign terrorism suspects and captured enemy combatants in U.S. custody. He also said he would ignore Roe v. Wade, the 1973 decision allowing abortion under some circumstances.

This is disturbing on two fronts: First, because Article Three Section Two of the Constitution of the United States empowers the Supreme Court to decide the law; and second, because the Court has no army.

Article Three Section Two of the Constitution states, “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; – to all Cases affecting Ambassadors, other public Ministers and Consuls; – to all Cases of admiralty and maritime Jurisdiction; – to Controversies to which the United States shall be a Party – to Controversies between two or more States; – between a State and Citizens of another State; – between Citizens of different States; – between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.”

Although the Constitution does not state specifically that its interpretation belongs to the Court, Alexander Hamilton clarified by writing in the “Federalist Papers,” “The interpretation of the laws is the proper and peculiar province of the courts. A constitution, is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”

Therefore, Gingrich, who also insists that the Constitution be given the meaning the Founding Fathers intended, would be defying the very Constitution he seeks to enforce. But the president is Commander in Chief of the military and has oversight for federal law enforcement. What could a Supreme Court do to actually enforce its edicts? Generally, it relies on that same army and law enforcement agencies under the president’s control. Gingrich’s approach would lead to dictatorship.

This topic comes up because, this week, the Supreme Court of Ohio pulled a Gingrich. In a 4-3 decision, the majority interpreted a state statute while completely ignoring the United States Constitution and United States Supreme Court rulings on the topic they addressed.

The case was titled, In re M.W, and it involved a 15-year-old juvenile who was arrested for robbery. The young man was given his Miranda warnings, which included advice that he had a right to an attorney. M.W. waived his rights and underwent interrogation without an attorney, parent or guardian present. He confessed that he was a lookout for a friend who committed the actual robbery, but being a lookout makes him equally guilty so he was arrested and convicted on the strength of his confession.

R.C. 2151.352 provides: “A child, the child’s parents or custodian, or any other person in loco parentis of the child is entitled to representation by legal counsel at all stages of the proceedings under this chapter or Chapter 2152 of the Revised Code.” The majority included Justices O’Donnell, who wrote the decision, and Justices Lundberg-Stratton, Lanzinger, and Cupp. They determined that the word “proceedings” as used in this law meant “court proceedings” and did not include police proceedings prior to a juvenile being charged.

As an impassioned dissent written by Chief Justice O’Connor, and agreed to by Justices Pfeifer and McGee-Brown said, and this is not an exact quote, “Are you kidding? Have you read the Constitution? Have you read any of the Supreme Court decisions on this topic?”

More precisely, Chief Justice O’Conner concluded, while referring to important United States Supreme Court cases, “The majority’s holding implicitly endorses a system in which the rights our federal and state constitutions were designed to protect, as expressed in Miranda, Gault, and C.S., are offended. I cannot countenance such a holding, and thus I strongly dissent.”

For the complete holding see In re M.W., 2012-Ohio-4538.

Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no liability stemming from your use of the information contained herein.

A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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