State ex rel. Ohio General Assembly v. Brunner

Pfeifer, J.,

dissenting.

{¶ 111} The foot-dragging of the General Assembly at the end of its term and the Pilate-like inaction of Governor Bob Taft have left the majority with the dirty work of finding some way to resuscitate Am.Sub.S.B. No. 117. Seemingly *411forgetting that this court’s obligation is to interpret and uphold the Ohio Constitution — not to fix the mistakes of the other branches of government — the majority renders Section 16, Article II of the Ohio Constitution an absurdity, striking a harmful blow to the separation of powers. The majority today allows the General Assembly, through the manipulation of its adjournment, to effectively render a governor’s veto power a nullity. While the failures of the General Assembly and former governor to constitutionally enact Am.Sub.S.B. No. 117 could be attributed to mistake or oversight, this court’s action today is willful and made with full recognition of its lasting impact on our Constitution and this institution. The majority defies common sense, the Ohio Constitution, the jurisprudence of the United States Supreme Court and the supreme courts of other states, and this court’s own prior “unmistakably clear” interpretation of the very same constitutional provision that is at issue today. The majority has achieved a new level of judicial activism — a wholesale rewriting of the Ohio Constitution. And all the General Assembly had to do was ask.

{¶ 112} This court has neither the obligation nor the ability to save the General Assembly from itself or to rework the Ohio Constitution to do so. It is not our problem that the General Assembly presented Am.Sub.S.B. No. 117 to then Governor Taft less than ten days before the end of his term, 13 days after it was passed. It is not our problem that the bill was met with ambivalence by Governor Taft and was rejected by Governor Strickland. The General Assembly could have secured the passage of Am.Sub.S.B. No. 117 through three means pursuant to Section 16, Article II of the Ohio Constitution: (1) it could have presented Governor Taft -with a version of Am.Sub.S.B. No. 117 that he was willing to sign; (2) had Governor Taft vetoed the bill, it could have overridden that veto; (3) it could have presented the bill to Governor Taft more than ten days prior to the start of Governor Strickland’s term, and Governor Taft’s failure to act upon it would have resulted in its becoming law. The General Assembly did none of these things.

{¶ 113} Because the General Assembly failed to enact Am.Sub.S.B. No. 117 through the means set forth in the Ohio Constitution, relators now ask this court to distort the Ohio Constitution beyond recognition to achieve the result they desire. That relators make the request can be excused; that this court grants it cannot.

{¶ 114} “Generally speaking, in construing the Constitution, we apply the same rules of construction that we apply in construing statutes.” State v. Jackson, 102 Ohio St.3d 380, 2004-Ohio-3206, 811 N.E.2d 68, ¶ 14. It is a cardinal rule of statutory construction that a statute should not be interpreted to yield an absurd result. State ex rel. Dispatch Printing Co. v. Wells (1985), 18 Ohio St.3d 382, 384, 18 OBR 437, 481 N.E.2d 632. The same thus follows for this court’s *412interpretation of the Ohio Constitution. The majority has violated this court’s cardinal rule.

{¶ 115} The majority opinion holds that it is the date of adjournment of the General Assembly that starts the time period an Ohio governor has to review a bill and sign or veto it before it becomes law. The amount of time the governor actually has the bill becomes of no significance. The General Assembly can thus eliminate entirely a governor’s veto by waiting until ten days after adjournment to present a passed bill to the governor. Through its decision today, the majority reveals that it is the General Assembly’s schedule, not the Ohio Constitution, that controls the governor’s veto power.

{¶ 116} In this case, the General Assembly did not present the bill to Governor Taft until 13 days after it had passed. Pursuant to the majority’s holding, had the General Assembly adjourned on the day of passage, Am.Sub.S.B. No. 117 would have become law three days before presentment. Had the General Assembly only known then of the hidden constitutional treasure the majority conjures up today, it could have avoided this whole lawsuit. Certainly, today’s opinion will be useful to the General Assembly in the future, especially when the governor is from an opposing political party.

{¶ 117} And to think that before today, no one knew of this power. Nearly 100 years under this version of the Ohio Constitution passed before the wisdom of the majority revealed the hidden code within Section 16, Article II — the General Assembly rules!

{¶ 118} The majority seems a little uneasy with the power it has given the General Assembly and meekly offers Section 15(E), Article II as a sort of Band-Aid for the gaping hole it has created in the Constitution. The majority says that Section 15(E) requires the General Assembly to present the bill “forthwith” to the governor for his approval and declares that that clause should prevent legislative loitering. The majority declines to consider whether the General Assembly complied with Section 15(E) in this case because Governor Taft never complained about the time lag. Of course, Section 15(E) does not contain an “unless the governor doesn’t complain” exception. Section 15(E), Article II states:

{¶ 119} “Every bill which has passed both houses of the general assembly shall be signed by the presiding officer of each house to certify that the procedural requirements for passage have been met and shall be presented forthwith to the governor for his approval.”

{¶ 120} The “forthwith” requirement of Section 15(E) arises not after the bill is passed by the General Assembly, but after the presiding officer of each house certifies that the procedural requirements for passage have been met. Relators here claim that that certification occurred on December 26, 12 days after the *413passage of the bill. Nothing in the Constitution states that the certification must occur concomitantly with passage or that certification cannot be made after adjournment. Thus, Section 15(E) does nothing to save the Ohio Constitution from the mess the majority creates.

{¶ 121} Instead, Section 15(E), Article II is in direct conflict with the majority’s interpretation of Section 16, Article II. Section 15(E) states that the presiding officers of the General Assembly shall certify the bills and that the bills “shall be presented forthwith to the governor for Ms approval.” (Emphasis added.) Section 15(E) requires the presentment of passed bills so that the governor may have the opportunity to approve (or disapprove) the bills presented. Presentment cannot be made without the governor’s obtaining some power over the bill. Under the majority opinion, presentment can be made ten days after adjournment, at which time the governor would be powerless to exercise his veto. The majority’s interpretation of Section 16, Article II cannot coexist with Section 15(E).

{¶ 122} A reasonable reading of Section 16, Article II measures the governor’s veto period from the date of presentment, with an additional ten-day consideration period added when the General Assembly adjourns before the first ten days expire. That interpretation always leaves the governor with at least ten days to consider a bill. But the majority has foresworn reasonableness. Instead, the majority has reinterpreted the Ohio Constitution to allow the General Assembly to destroy the governor’s veto right. How can this have been avoided? By interpreting Section 16, Article II in a reasonable manner, in the manner it already has been interpreted by this court.

{¶ 123} In Maloney v. Rhodes (1976), 45 Ohio St.2d 319, 323-324, 74 O.O.2d 499, 345 N.E.2d 407, this court construed Section 16, Article II to give a governor no fewer than ten days to consider a bill after its presentment:

{¶ 124} “The language of the Constitution is unmistakably clear that the Governor, who is the head of the executive department of government, Section 1, Article III, Ohio Constitution, has but three options with regard to bills sent to him for signature. (1) He may sign if he approves the bill, in which case he is required to file the law with the Secretary of State; (2) he may veto if he disapproves the bill, in which case he is required to return it with his objections to the house of the General Assembly in which it originated; (3) he may refuse to sign or veto the bill, in which case at the end of ten days after the bill was presented to him it becomes law (unless the General Assembly adjourns within the ten day period) and he is required to file it with the Secretary of State. If the General Assembly adjourns within the ten day period, it becomes law unless the Governor, within ten days of the adjournment, files it with his objections in writing in the office of the Secretary of State. The Governor is required to file *414with the Secretary of State every bill which becomes law without his signature.” (Emphasis added.)

{¶ 125} The court stated in Maloney that the “ten days after such adjournment” period for a bill to become law without the governor’s signature would apply only if adjournment occurred within the ten-day period after the governor had been presented with the bill by the General Assembly. The majority dismisses what the court wrote in Maloney, claiming that its interpretation of Section 16, Article II was not essential to the holding of that case. It is true that that above-cited portion of Maloney was dicta, but the fact that the court’s interpretation in that case was eminently reasonable and allows the Ohio Constitution to function in a coherent manner cannot be dismissed.

{¶ 126} The basis of the ten-day consideration, and its importance to a government with equal branches, was set forth by the United States Supreme Court in Okanogan Indian Tribes v. United States (1929), 279 U.S. 655, 677-678, 49 S.Ct. 463, 73 L.Ed.2d 894 (“The Pocket Veto Case'’’). In that case, the court analyzed Section 7, Article I of the United States Constitution in light of the importance of the president’s veto power and rejected a construction that would allow Congress to shorten the prescribed period for the president to determine whether to approve or disapprove a bill:

{¶ 127} “The Constitution in giving the President a qualified negative over legislation — commonly called a veto — entrusts him with an authority and imposes upon him an obligation that are of the highest importance, in the execution of which it is made his duty not only to sign bills that he approves in order that they may become law, but to return bills that he disapproves, with his objections, in order that they may be reconsidered by Congress. The faithful and effective exercise of this momentous duty necessarily requires time in which the President may carefully examine and consider a bill and determine, after due deliberation, whether he should approve or disapprove it, and if he disapproves it, formulate his objections for the consideration of Congress. To that end a specified time is given, after the bill has been presented to him, in which he may examine its provisions and either approve it or return it, not approved, for reconsideration. * * * The power thus conferred upon the President cannot be narrowed or cut down by Congress, nor the time within which it is to be exercised lessened, directly or indirectly. And it is just as essential a part of the constitutional provisions, guarding against ill-considered and unwise legislation, that the President, on his part, should have the full time allowed him for determining whether he should approve or disapprove a bill, and if disapproved, for adequately formulating the objections that should be considered by Congress, as it is that Congress, on its part, should have an opportunity to re-pass the bill over his objections.” (Footnotes omitted.)

*415{¶ 128} The court noted the importance of the veto time period where, as here, a flurry of bills descends upon the executive at the end of a legislative session: “It will frequently happen — especially when many bills are presented to the President near the close of a session, some of which are complicated or deal with questions of great moment — that when Congress adjourns before the time allowed for his consideration and action has expired, he will not have been able to determine whether some of them should be approved or disapproved, or, if disapproved, to formulate adequately the objections which should receive the consideration of Congress. And it is plain that when the adjournment of Congress prevents the return of a bill within the allotted time, the failure of the bill to become a law cannot properly be ascribed to the disapproval of the President — who presumably would have returned it before the adjournment if there had been sufficient time in which to complete his consideration and take such action — but is attributable solely to the action of Congress in adjourning before the time allowed the President for returning the bill had expired. Thus, in La Abra Silver Mining Co. v. United States [(1899), 175 U.S. 423, 454, 20 S.Ct. 168, 44 L.Ed. 223], this Court said that ‘if by its action, after the presentation of a bill to the President during the time given him by the Constitution for an examination of its provisions and for approving it by his signature, Congress puts it out of his power to return it, not approved, within that time to the House in which it originated, then the bill fails, and does not become a law.’ ” Pocket Veto Case, 279 U.S. at 679, 49 S.Ct. 463, 73 L.Ed. 894.

{¶ 129} Similarly, in Edwards v. United States (1932), 286 U.S. 482, 52 S.Ct. 627, 76 L.Ed. 1239, the United States Supreme Court held that the president’s approval of a bill within the constitutionally prescribed term of “ten Days (Sundays excepted)” after it was presented to him was sufficient to make the bill become law even though at the time the president approved it, Congress had adjourned for the session. The court so held notwithstanding the additional language in Section 7, Article I of the United States Constitution specifying that inaction of the president shall not result in the bill’s becoming law when “the Congress by their Adjournment prevent [the bill’s] Return.” In so holding, the court emphasized that “[r]egard must be had to the fundamental purpose of the constitutional provision to provide appropriate opportunity for the President to consider the bills presented to him” and that “[n]o public interest would be conserved by the requirement of hurried and inconsiderate examination of bills in the closing hours of a session, with the result that bills may be approved which on further consideration would be disapproved or may fail although on such examination they might be found to deserve approval.” Id. at 493-494, 52 S.Ct. 627, 76 L.Ed. 1239.

{¶ 130} The ten-day rule creates a time frame determined to be necessary by the founders for the executive to properly consider a bill, or a pile of bills, before *416it becomes law. It is the lifeblood of the veto power, and thus of the separation of powers. It grounds the veto power in reality. With the ten-day rule, there can be no game-playing with the legislative calendar; the legislature cannot prevent the executive from ultimately having the opportunity to exercise his constitutional powers. No matter what the legislature does, the executive will get his chance to review the bill and potentially veto it.

{¶ 131} The ten-day time limit also works in favor of the legislature. The executive cannot slide the bill in a desk drawer until the end of his term, keeping it from becoming law. The executive must act, and the legislature still has the opportunity to override the executive’s veto if it is still in session.

{¶ 132} But now, in Ohio, the governor’s time for considering a bill gets reduced from ten days at the whim of the General Assembly — not in all instances, just in the most nonsensical instances. By the majority’s reading of Section 16, Article II, if adjournment occurs after presentment, the governor gets an additional ten days from adjournment to consider the bill. However, if adjournment occurs before presentment, the date of adjournment starts the running of the ten-day period. Thus, adjournment has the effect of expanding or contracting the ten-day period, depending on when it occurs. The result is incongruous: If adjournment occurs after the governor has had at least some time to consider the bill, he gets even more time; if adjournment occurs before the governor has even seen the bill, he gets even less time to consider the bill.

{¶ 133} What could be the conceivable purpose of cutting short the time for a governor’s consideration while the legislature is not in session? As read coherently, Section 16, Article II gives the governor more time to consider such bills. It expands the time normally given when time is no longer of the essence. The majority reading says that when time is absolutely not of the essence — after the legislature has adjourned — the Constitution works to cut short the governor’s deliberation time. Why is the governor given less time for consideration of a bill when the General Assembly is not in place to override the veto? As the court said in Edwards, there is no conceivable reason:

{¶ 134} “No possible reason, either suggested by constitutional theory or based upon supposed policy, appears for a construction of the Constitution which would cut down the opportunity of the President to examine and approve bills merely because the Congress has adjourned.” Edwards, 286 U.S. at 493, 52 S.Ct. 627, 76 L.Ed. 1239.

{¶ 135} The majority cites no authority from anywhere that supports its position. On the other hand, in cases directly on point, two other jurisdictions have held that when adjournment precedes presentment, the running of the ten-day rule begins at presentment rather than adjournment.

*417{¶ 136} In People ex rel Petersen v. Hughes (1940), 372 Ill. 602, 25 N.E.2d 75, the relators similarly requested that the Illinois Supreme Court grant writs of mandamus to compel the Secretary of State of Illinois to certify and publish two bills as duly enacted laws on the basis that the Illinois governor’s vetoes of these bills were not presented to the secretary within the constitutionally prescribed time following adjournment of the Illinois General Assembly. The state legislature had adjourned before presenting the bills to the governor, and the governor submitted the bills with his vetoes to the secretary of state within the applicable constitutional period after presentment, but not within ten days after the state legislature had adjourned.

{¶ 137} In resolving the mandamus claims, the Illinois Supreme Court interpreted the then applicable version of the Illinois Constitution, which provided in language nearly identical to Section 16, Article II of the Ohio Constitution:

{¶ 138} “Any bill which shall not be returned by the Governor within ten days (Sundays excepted) after it shall have been presented to him, shall become a law in like manner as if he had signed it; unless the General Assembly shall, by their adjournment, prevent its return, in which case it shall be filed with his objections in the office of the Secretary of State, within ten days after such adjournment, or become a law.” Section 16, Article 5 of the Illinois Constitution of 1870.

{¶ 139} The Illinois Supreme Court denied the requested writs of mandamus and held that where the General Assembly had adjourned before presenting the bill to the governor, the governor was afforded the complete ten days, with Sundays excepted, from the date the bill was presented to him, to approve or disapprove the bill, instead of the shorter period of ten days from the date the legislature adjourned:

{¶ 140} “The purpose of granting the Chief Executive authority to approve or disapprove legislative matters was to enable him to prevent, as far as possible, the evils that flow from hasty and ill-considered legislation.

{¶ 141} “ * * *

{¶ 142} “ * * * The power of the General Assembly to authorize the presentment of a bill to the Governor after it has adjourned sine die, is inferior to the constitutional provision which places upon the Governor the duty to examine all bills, and which grants him ten days for consideration thereof in which to approve or disapprove.

{¶ 143} “It is common knowledge that, for many years, the General Assembly has followed the practice of passing many bills in the closing hours of the session.

{¶ 144} “ * *

*418{¶ 145} “The constitutional provision granting the Governor ten days within which to approve or disapprove a bill and file the same if vetoed, must, as to all bills [presented to the Governor after the General Assembly has adjourned], be the ten days following presentment. * * * [T]he provision for filing in the office of the Secretary of State within ten days after adjournment * * * can not be given an interpretation which will impair, or abridge, the time within which the Governor may exercise his veto power. If the provision in reference to filing in the office of the Secretary of State within ten days after adjournment was to control, then we are forced to the adoption of one of two impossible constructions. One would impair the legislative power to fix the time of presentment, the other would lessen [or remove entirely] the period of time for the Governor’s consideration of the matter * * *.

{¶ 146} “ * * * Any construction which reduces the ten-day period belonging to the Governor or imposes a duty upon the General Assembly to present all bills before the date of adjournment, would lead to the defeat of the benefits which the constitutional provision was intended to guarantee.

{¶ 147} “ * * *

{¶ 148} “The Governor’s veto of [the two bills, which were submitted within the required time period following presentment] must be given effect, and the Secretary of State was right in not certifying either of them as duly enacted laws.” (Emphasis added.) Id. at 607-613, 25 N.E.2d 75.

{¶ 149} Similarly, in Cenarrusa v. Andrus (1978), 99 Idaho 404, 582 P.2d 1082, the Idaho Supreme Court held that under its state Constitution, the governor had ten full days from the date of presentment in which to consider bills presented to him after adjournment of the legislature. The Idaho Supreme Court relied on the Illinois Supreme Court’s decision in Petersen in so concluding. Id. at 408-409, 582 P.2d 1082. The Idaho Supreme Court also cited Edwards, 286 U.S. 482, 52 S.Ct. 627, 76 L.Ed. 1239, in support of its holding:

{¶ 150} “We full well realize that the Idaho constitutional provision, which requires an active veto to prevent a bill from becoming law after the legislature has adjourned, is quite different in operation from the federal ‘pocket veto’ provision. We nevertheless declare that the same fundamental purpose underlies the requirement of presentment found in both constitutions. In this case the choice is between a construction of our constitutional language which would provide a definite amount of time for gubernatorial consideration of bills and one which would have the effect of allowing the legislature to determine the amount of time allowed to a governor, severely limiting it if the legislature so chose. The reasoning of the Supreme Court in Edwards is readily applicable here.” (Emphasis added.) Cenarrusa, 99 Idaho at 407-408, 582 P.2d 1082. *419{¶ 151} The Idaho Supreme Court wrote that construing the Idaho Constitution to allow the legislature to control the amount of time a governor has to consider a bill offends the separation of powers:

{¶ 152} “If we were to hold that the governor was without power to veto a bill more than ten days after adjournment, the legislature would be in a position to defeat at will one of the constitutionally granted powers of a separate and coequal branch of government merely by delaying presentment beyond the time in which the governor could act. A construction of the Constitution which defeats the very purpose of allowing the governor an opportunity to consider the wisdom of a bill is to be avoided.

{¶ 158} “Furthermore, a construction placing the legislature in control of the time frame available to a governor for consideration of a bill can only lead to an undermining of the dignity of the position to which each of these two equal and coordinate branches of government are entitled in their transactions with each other.” Id. at 409, 582 P.2d 1082.

{¶ 154} A leading treatise in considering the issue states that “[wjhere presentment is allowed after adjournment it would seem that the [rule that the governor be permitted the full time after presentment to approve or disapprove a bill instead of the more limited time after adjournment] is more desirable as it allows the governor time to consider the bill. Where the period is measured from adjournment, delay in presentment may defeat the bill before there is opportunity for executive action.” 1 Singer, Statutes and Statutory Construction (6th Ed.2002) 866, Section 16:5.

{¶ 155} Finally, as of January 8, 2007, the Legislative Service Commission, the nonpartisan research arm of the legislature, had listed on its Web site January 8 as the deadline for the governor to act on Am.Sub.S.B. No. 117 before it automatically became law. Of course, by Tuesday, January 9, that information had been erased from its Web site. Harris, Shift in Columbus Leaves Fast-Track Bill Derailed; Consumers Have Major Stake in Whether Veto Holds, Cleveland Plain Dealer (January 14, 2007) Al; Harris, Officials Counting to 10 Because of Veto Dispute, Cleveland Plain Dealer (January 10, 2007) Cl.

{¶ 156} The gubernatorial veto power presently in place in Ohio emanates from the Constitutional Convention of 1912. The transcript from that convention reveals that the delegates knew that the General Assembly, if it adjourned sine die before the governor had had ten days to review any passed bills, was forfeiting its ability to overturn the governor’s veto. One delegate, Mr. Doty of Cuyahoga County, who served as Clerk of the Ohio House of Representatives, referred to the veto power as absolute for half of the bills passed in Ohio, because that many were passed at the end of a legislative session, leaving the General Assembly powerless to override the veto:

*420{¶ 157} “MR. DOTY: [The governor has] an absolute veto on everything passed in the last few days of the general assembly, and that is nearly fifty per cent of the business done by the general assembly. I have stood at that desk and called sixty-six roll calls on sixty-six laws in one day. These laws go to the governor all at once and we adjourn and go home, and he can veto every one of them and we can’t do a thing.

{¶ 158} “ * * *

{¶ 159} “ * * * I undertake to say to you that you cannot frame a veto that will not subject fifty per cent of the work of our legislature to an absolute veto and you can’t help it.

{¶ 160} “MR. WORTHINGTON: Is there any reason why the legislature can’t take a recess for ten days and then come back?

{¶ 161} “MR. DOTY: They can, but they don’t.

{¶ 162} “MR. WORTHINGTON: Why don’t they? What is the reason?

{¶ 163} “MR. DOTY: Simply because every preacher and reformer all over the state is writing the legislature within three days after they meet to adjourn. There must be a last day and they will pass everything on the last day, and then it has to go to the governor and there is an absolute veto on that.

{¶ 164} “MR. WORTHINGTON: But fifty per cent wouldn’t come then on the last day if you pass the laws and then adjourn for ten days.

{¶ 165} “MR. DOTY: I am talking about the present practice.

{¶ 166} “ * * *

{¶ 167} “MR. KNIGHT: If it be true that the general assembly had the power to recess for whatever number of days, three or ten, as the case may be, within which the governor has the right to exercise the veto power and they fail to take that recess and come back and pass on the bills that he did veto as they are permitted to do under the law, is it anybody’s fault but the representatives of the people — the legislature — if a qualified veto is converted into an absolute veto?

{¶ 168} “MR. DOTY: No, sir; but if you have a practical way of doing it which will result in what I have said, what then?

{¶ 169} “MR. KNIGHT: Reform your legislature.”

{¶ 170} 1 Proceedings and Debates of the Constitutional Convention of the State of Ohio (1913) 570-571.

{¶ 171} Since the genesis of the gubernatorial veto power in its present form in Ohio, it has been understood that presentment, not the General Assembly’s adjournment, starts the clock on the governor’s ten-day period to consider bills passed by the General Assembly, and that the General Assembly can preserve its ability to override the veto only by presenting bills to the governor ten days prior *421to adjournment. Until today, the General Assembly has had to live with the consequences of its procrastination. Until today, its only solution was in Mr. Knight’s admonition, “Reform your legislature.” But now, there is a new solution: “Ask the Supreme Court to rewrite the Constitution.”

{¶ 172} Nothing in the law supports the majority opinion’s conclusion. Nothing in the majority opinion would convince an objective reader that the conclusion is just or in any way supported by case law, statutory law, learned treatises, or the plain language of Section 16, Article II of the Ohio Constitution.

{¶ 173} Why is the majority deciding this way today? I do not know. In the ultimate display of result-oriented justice, its reasoning shifts. From the day of oral argument, the unfolding of the majority opinion has been the story of a result in search of a justification and an author.

{¶ 174} Is the majority troubled by Governor Strickland identifying a loophole and bursting through it? Whether one considers Governor Strickland’s veto gambit as clever or devious, whether one believes that vetoing legislation when the preceding governor has made it known that he wishes the legislation to become law without his signature is impertinent or tactical, the fact remains that his decision was hardball politics. Brilliant or backhanded, it was politics. And most importantly, it was constitutional.

{¶ 175} To judicially overturn the governor’s veto in this case is undemocratic. Ohioans elected a new governor, one who opposed Am.Sub.S.B. No. 117 and could count to ten. On the day he became governor, he had the power to veto.

{¶ 176} Controversies like this are to be expected with shifts in the balance of power. The battles that ensue from those shifts are best fought by politicians. Today this court wades into politics and overreacts. At the end of the day, real damage has been done to the Ohio Constitution. That the damage is inflicted by this court is ironic and dispiriting.