Constitutional Law Prof Blog

Justice Scalia, Originalism, and Life in the 21st Century

Earlier this week, Justice Scalia and Justice Breyer debated methods of constitutional interpretation before an audience in Tuscon, Arizona.  During the event, Justice Scalia accused some of his colleagues of "making up rights."  Justice Breyer, for his part, said that under Scalia's originalism, we will have a constitution, but "it won’t be a Constitution anyone will be able to live under.”

The event, while certainly noteworthy, drew additional attention because initial reports - later proven false- that Justice Scalia had remarked that due to his originalist beliefs, he would have dissented in Brown v. Board of Education.  Before the report was revised, the blogosphere began a discussion on the statement falsely attributed to Scalia.  In particular, Professor Jack Balkin took him to task.  After the report was corrected, Professor Balkin argued that even if Justice Scalia could find a way to stay faithful to originalism and still join the majority opinion in Brown, other cases - such as Loving and Bolling v. Sharpe - would also present problems. 

Professor Balkin has a point, but I'd actually take his argument and expand it further.  For while I think whether Justice Scalia would have decided Brown a certain way is an interesting question, I think the more fundamental inquiry is whether - and how - originalism can operate in the America of the twenty-first century. 

There are many modes of constitutional interpretation.  But originalism is unique in its certitude.  The mantra seems to be "If the framers didn't think it, it must be wrong."  But is this the case?  Are the framers always correct?  I think the answer to that must be "no."  The Framers drafted a document that preserved slavery, did not allow women to vote, and limited the participation of the populace in the election of the government. However, over the years, Americans have squarely rejected those beliefs.  In an article proposing a rejection of the electoral college, Professor Jamin B. Raskin states:

We have often replaced the handiwork of the Framers when their ambivalence towards democracy recurrently thwarted popular control over government. The Thirteenth, Fourteenth, and Fifteenth Amendments after the Civil War wiped out the original exclusionary assumptions of white supremacy in politics and government. We replaced the indirect method of electing United States Senators by state legislatures in 1913 with direct election “by the people” as provided for in the Seventeenth Amendment. The Nineteenth Amendment rejected the sexism of our Framers by writing women into the body politic. . . ¹

While the article is not about originalism, the point is well-taken.  The genius of the Founders was that they included a method for amending the Constitution.  However, if the American people decide to amend the Constitution, this decision should override the Founders' understanding of the document.  In other words, on those issues where the people have spoken, why shouldn't the understanding of the populace control, rather than that of the Founders?  One of the justifications for originalism - and one given by Justice Scalia in the recent debate - is that the Constitution will suffer if interpreted based on the whims of the populace.  But the Constitution cannot be amended on a mere whim.  A super-majority of Americans must agree to any amendment.  Therefore, particularly on the issues where the American people have given some indication of their thoughts on the matter, originalism seems to be a less appropriate interpretive method. 

Many, many law review articles have been written on originalism.  Indeed, the topic is broader than one can fully address and analyze in the limits of a blog posting.  But I am glad that Justice Scalia's comments were taken out of context.  Not for the embarrassment I am sure that came to those involved, but because it gives all of us an opportunity to revisit our ideas on constitutional interpretation.  In my opinion, that process can only be beneficial.

NLS

Translating Equality

Third Annual Distinguished Conversation at CUNY School of Law
TRANSLATING EQUALITY:  LANGUAGE, LAW & POETRY

A conversation between Professors
Jenny Rivera
&
Kimiko Hahn

Moderated by Professor Ruthann Robson

Friday, November 6, 2009
at 11 am

City University of New York School of Law

English only laws, accent discrimination, the relationship between language and national origin classifications, and the art of translation across languages, cultures, and academic disciplines are a few of the topics to be addressed in this interdisciplinary conversation.


Jenny Rivera is Professor of Law and Director of the Center on Latino and Latina Rights and Equality (CLORE) at CUNY School of Law. 
Her work has centered on a wide range of issues facing Latinos and Latinas, including language and gender discrimination and cultural barriers.   Former Law Clerk to Supreme Court Justice Sonia Sotomayor, Professor Rivera was a frequent public commentator during last summer’s confirmation process.

Kimiko Hahn is a poet and Distinguished Professor in the English department at Queens College/CUNY.  Her poetry collections include The Narrow Road to the Interior (W.W. Norton 2006) and The Artist’s Daughter (W.W. Norton 2002). As one biography phrases it, her work often explores "the intersections of conflicting identities. She frequently draws on, and even reinvents, classic forms and techniques used by women writers in Japan and China, including the zuihitsu, or pillow book, and nu shu, a nearly extinct script Chinese women used to correspond with one another."

Free and open to the public.  RSVP required: robson@mail.law.cuny.edu

RR

Full Ninth Circuit to Review Jeppesen, State Secrets ruling

A majority of participating judges on the Ninth Circuit voted yesterday to grant en banc review to Mohamed v. Jeppesen Dataplan, the three-judge panel ruling that rejected the Bush and Obama administrations' state secrets claim.  Six judges, including Judge Bybee, did not participate.

The plaintiff in the case filed his complaint against the private company Jeppesen Dataplan for its role in his extraordinary rendition by the CIA.  The Bush administration, and then the Obama administration, intervened and moved to dismiss the entire case on the complaint, claiming that the very subject matter of the case was a state secret.  A three-judge panel of the Ninth Circuit rejected the claim, and the Obama administration sought review by the full Ninth Circuit.  (I interviewed plaintiff's attorney Ben Wizner of the ACLU here.  I posted on the administration's changes to the state secrets privilege here.)

The panel decision put the Ninth Circuit at odds with an earlier Fourth Circuit ruling on state secrets in an extraordinary rendition case against the government.  In that case, El-Masri v. United States, the Fourth Circuit endorsed a sweeping state secrets privilege, and for the first time rooted the privilege in the Constitution (Article II and separation of powers principles).  (Earlier state secrets cases went so far as to dismiss on the pleadings, but the courts have treated state secrets merely as an evidentiary privilege, not a constitutional doctrine.)  The Ninth Circuit order raises the possibility that the full Ninth Circuit will also endorse this sweeping claim. 

SDS

Amicus Metzger Talks About Free Enterprise Fund

I spoke yesterday with Professor Gillian Metzger (Columbia) about her amicus brief in Free Enterprise Fund v. Public Co. Accounting Oversight Board, the case challenging Sarbanes-Oxley's new PCAOB, a body within the SEC, on Appointments Clause and separation of powers grounds.  I just posted yesterday on Metzger's article on internal and external separation of powers; we spoke about that, as well.  Finally, Metzger offered sound advice for academics contemplating filing amicus briefs.

I edited the interview into three parts; click the shaded blocks below:

The Case and Metzger's Brief

You can download this file and forward to the times below for discussions on particular topics:

:34 to 1:30 for a description and background on the case

1:30 to 4:10 for a discussion of the significant jurisdictional barriers in the case

4:23 to 8:00 for a discussion of the constitutional claims in the case

8:30 to 13:30 and 18:00 to 20:43 for a discussion of the significance of the case and the sweeping claims

13:30 to 15:40 for a discussion of Metzger's brief

15:40 to End for a discussion on how the Court might rule in the case

The Relevance of Internal and External Separation of Powers to Free Enterprise Fund

Advice for Academic Amici

SDS

 

Metzger on Internal and External Separation of Powers

Professor Gillian Metzger (Columbia) recently posted her thoughtful piece, The Interdependent Relationship Between Internal and External Separation of Powers, on SSRN.  The article explores the relationships between internal and external checks on the executive and starts an important conversation on how separation of powers doctrine might reinforce (not destabilize) internal checks.  The argument is a novel addition to the literature on executive constraints and separation of powers, and it couldn't come at a more propitious time--just over a month before the Court will hear arguments in Free Enterprise Fund v. Public Co. Accounting Oversight Board, challenging Sarbanes-Oxley's new PCAOB, a body within the SEC, on Appointments Clause and separation of powers grounds.  I highly recommend this.

Metzger sets her argument up against the Bush administration politicization of executive decisionmaking.  A possible lesson from the Bush administration, she writes, is that internal constraints--checks on the executive within the executive branch itself, such as independent agencies, inspectors general, and the civil service system itself--were ineffective checks on executive overreaching.  Gillian writes that that lesson, however, is "unduly pessimistic" and focuses too narrowly on internal constraints.

Instead, Metzger argues that we need more attention on connections between internal constraints and external constraints (those constraints on executive power imposed from the other branches) and separation of powers doctrine--how separation of powers considerations need not operate only to destabilize internal constraints, but how they might also operate to reinforce internal constraints.  Metzger: 

Notably, however, these [Appointments Clause] decisions generally treat internal constraints as given and focus their attention on determining if the specific constraints at issue represent constitutional violations because they intrude too far on presidential power.  Less common, particularly in recent decisions, is judicial recognition of the potential constitutional benefits from internal controls, either in terms of guarding against aggrandized power from within or in reinforcing the ability of the other branches to do so.

Example?  Metzger offers Boumediene v. Bush, an admittedly rare and special case:

[In Boumediene] the Court used its constitutional scrutiny to encourage the executive branch to adopt more robust internal constraints.  Although it seems fair to say this was an intentional move on the Court's part, at a minimum Boumediene demonstrates that the Court's lack of attention to the separation of powers benefits of internal constraints is not universal.  Yet Boumediene's express linkage of separation of powers doctrine and internal constraints remains a rarity, and reflects in part specific features of habeas jurisprudence, which has long required absence of adequate alternatives before a habeas claim will lie.

What might this look like outside of the special case of Boumediene?  Metzger shows there are several options:

Courts could, as in Boumediene, identify a fairly specific set of internal constraints as necessary to avoid a constitutional violation.  But they could also serve a reinforcing role simply by taking such constraints into account . . . as a factor that may support a finding of constitutionality or greater deference.  They could even continue to rely primarily on administrative law doctrine, both as a means of reinforcing internal checks and more directly policing against undue agency politicization, and simply acknowledge more openly the constitutional separation of powers function that administrative law is then performing.

The Court could take this bait in Free Enterprise Fund and hold that the new PCAOB is supported by separation of powers considerations, not destabilized by them.  Metzger and a colleague filed an amicus brief (pp. 24-28) in the case in which they gently push this argument. 

SDS

More listening and more diversity needed on SCOTUS, says Justice Thomas

Justice Clarence Thomas, in a talk at the University of Alabama School of Law, yesterday

reportedly said that the Justices already know where they stand before oral argument, and asked,

"So why do you beat up on people if you already know? I don't know, because I don't beat up on 'em. I refuse to participate. I don't like it, so I don't do it."

(The recent USA Today article we discussed here described Clarence Thomas' questioning style as "silent in his seat.")

The Tuscaloosa Times reported  that Thomas also stated that he "preferred to hire law clerks from modest backgrounds," and was quoted as stating, “There are too many up there who think they should be there because they’re from an elite background.”

And as the Montgomery Advertiser reported, Thomas advocated for more diversity:

A native of Georgia and the only current justice from the South, Thomas said the court is too dominated by Ivy League lawyers and lacks regional diversity. People constantly worry about racial, gender and ethnic diversity, he said, and home states matter, too.

"My goal is to have a court that is fair, and I think it's fair when we are fair in selecting people from all parts of the country, from all walks of life," Thomas said.

The newspaper continued, however, that "Thomas graduated from the Yale University law school," adding that  "eight of the nine current justices graduated from Ivy League schools."

RR

Interracial Marriages as Children's Rights: Robson's Saturday Evening Review

There was startling news last week of a Louisiana justice of the peace who said he refused to issue a marriage license to an interracial couple out of concern for any children the couple might have.  As one of my students phrased it, "Has Loving v. Virginia been overruled?"

The judge's "concern for the children" rationale is one that is often proffered by governments.  In Reflections on Loving and Children's Rights, 20 U. Fla. J.L. & Pub. Pol'y 11 (2009), scholar Barbara Bennett Woodhouse (pictured right) and co-author Kelly Reese interpret the 1967 case of Loving v. Virginia as a landmark case in the area of children's constitutional rights.  They write:

As it touches the lives of younger generations, Loving has played a central role in the development of children's rights to equality, privacy, agency, dignity and protection.

How can a case about marriage have such a broad legacy for children? Children define themselves and are defined by law in relation to those who bring them into the world, who claim them as their own and who guide their upbringing. Because of Loving and the cases that followed from it, the current generation of children, like no other before, enjoys the right to equal protection of the laws, regardless of the race or marital status of their parents. This generation also enjoys, as never before, the liberty to envision building families free from state-sanctioned discrimination. Nevertheless, pockets of discrimination remain, marginalizing many children who are growing up in nontraditional families and preventing many children from equal access to the benefits of a legally recognized family relationship. As long as these forms of discrimination continue, the legacy of Loving will remain unfulfilled.

They argue that marriage operates as a "gatekeeper" to children's rights, even though many of the disabilities of children born "out of wedlock" have been whittled away using constitutional doctrine.  They extend their argument to the children of same-sex couples, including the wedge issue of adoption.  Most interesting in this short piece are some of the observations by Barbara Bennett Woodhouse regarding advocacy, teaching, and personal experiences. 

There have been many calls for sanctions against the Louisiana Justice of the Peace and the couple has reportedly sued him.  Perhaps the judge could be required to read Loving v. Virginia as well as the article by Woodhouse and Reese; perhaps he might be required to a responsive reflection.

RR

Hot Off the Presses

Hello.  This installment of Hot off the Presses will consider two articles that explore different facets of the same problem - racial intergration of our public schools. 

1. A New Strategy for Pursuing Racial and Ethnic Equality in Public Schools by Kristi L. Bowman, Michigan State University College of Law.

What it's about:

Professor Bowman provides an overview of recent school intergration cases.  She argues that school integration has proceeded in four "waves,"  and further posits that we are in the midst of the fourth wave.  The fourth wave focuses primarily on state constitutional and statutory remedies and is explicitly race conscious.  The first part of Bowman's paper examines some the benefits and detriments to fourth wave legal strategies.  (For instance, while federal law might forcelose a private right of action in certain cases, states can change this by statute.)  In the second portion, Bowman considers whether the suggestion of integrating schools on the basis of socio-economic status - rather than race - will produce racial intregration in public schools.   Bowen does not says that this is not a viable strategy, but notes that strategies focusing on socio-economic status standing alone are unlikely to be effective, so many other factors should be included as well.

Why you should read it:

I enjoyed this piece on a number of levels, but I thought its most striking feature was the rebuttal of the notion that socio-economic status is a cure-all on this issue.  To be certain, as economic status does not trigger strict scrutiny, it is less legally problematic than race-based iniatives.  Nevertheless, if socio-economic engineering does not produce the desired - and after Brown, arguably constitutionally required - racial integration of our public schools.  If not, the fundamental premises of the idea that programs based on socio-economic status produce racial equality should be revisited.

Where you can find it:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1464732

2.  The White Interest in School Integration, by Robert A. Garda, Jr., Loyola (New Orleans)

What it's about:

Professor Garda begins his article by revisiting Professor Derrick Bell's "interest convergence" theory.  As you will recall, that theory posits that gains for racial minorities rarely occur unless there is some benefit to the majority.  Professor Garda - who is white - devotes his article to explaining why other white parents of school-aged children should have a strong interest in racial equality in public schools.  He notes that contrary to what one might think, when school environments are integrated, it is white students - rather than students of color - that benefit most.  Moreover, building on the rationale from the University of Michigan cases, he notes that society at large has an interest in increasing the cross-cultural competencies of white students, who will eventually have to work in multi-cultural environments.  However, Garda goes further by noting that since racial attitudes are learned early in life, more emphasis should be placed on integrating early education.  Garda concludes the article with a list of things concerned parents might do to integrate schools.

Why you should read it:

In my opinion, this article is unique.  I do not recall seeing other articles on this topic taking this particular narrative approach.   I believe the unique approach is effective as it grabs the reader.  In addition, the author's list of reasons why integration is good for the majority is helpful, comprehensive, and well-supported.  Finally, the author is also - in effect - pursuing a non-legal solution to this problem by encouraging parents to be proactive on this score, rather than waiting for the courts to direct their actions. For instance, if parents seek diverse neighborhoods over racially homogenous ones, the problem of school integration is immediately lessened.   This piece is highly recommended. 

Where you can find it:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1463598

In addition to the reasons listed above, it should be noted that both of these articles are quite timely.  In Milliken v. Bradley, the Supreme Court rejected a plan to use the suburban population to integrate inner city public schools.   In the past weeks, several outlets have reported that the problem of "white flight" raised by Miliken not only still exists, but is getting progressively worse.  America's neighborhoods are becoming more racially and economically homogenous.  If this trends continues, discussing school integration may become little more than an academic exercise.  For the sake of our children and the health of our democracy, let us hope that we can find a solution that is politically and consitutionally viable.

NLS

Reproductive Rights Roundup

There are a number of reproductive rights issues in the news this week.  Here is a summary of the relevant stories.

ARIZONA

The ACLU is once again battling Joe Arpaio, the Sheriff of Maricopa County, Arizona, in court.  Previous litigation between the parties resulting in the termination of Arpaio's policy of requiring female inmates to secure a court order before accessing abortion care.  However, Arpaio has now begun charging the inmates for transportation to the abortion providers.  The ACLU maintains that abortion is the only transportion for which a fee is assessed.  Representatives of the Sheriff's Deparment responds that inmates are charged for transportation for all off-site medical services.

OKLAHOMA

As we have previously discussed on the blog, Oklahoma recently passed a law requiring women seeking abortions to disclose information including age, race, and the reason for the abortion.  The law was slated to go into effect on November 1.  However, litigation has resulted in a TRO which will suspend the law until a hearing can be held.  The hearing is currently scheduled for December 4, 2009.  Opponents of the law fear that upon meeting this additional hurdle of disclosing private information, women will be reluctant to seek abortion services.  More information on the litigation can be found here, here, and here.

NEVADA

A conservative group in Nevada is attempting to add a "personhood" amendment to ballots in that state in the 2010 and 2012 election cycles.  We have previously written about such amendment here and here.  Many of the same arguments apply.

We will be certain to update you on these stories as events develop.

NLS

Of Marriage, Monopolies, and Federalism

Do the states have a marriage monopoly?

That's the intriguing question posed by Adam Candeub and Mae Kuykendall, of Michigan State University College of Law, in their new article,  E-Marriage: Breaking the Marriage Monopoly.

They argue:

States inadvertently have created geographic monopolies, requiring each marriage receiving the benefits of their licensing laws to be performed within their borders. This Article's model builds upon established precedents, such as proxy marriage and choice of law for multi-jurisdictional and internet contracts. Using the power of internet communications, our proposal allows states to compete over marriage's procedures and substance. Depending on a couple's preferences for "e-ritual" and a state's desired level of regulatory control, couples could consume the trappings of a traditional ceremony before their friends and family, without travelling to another jurisdiction, perhaps with an officiant presiding on-line from a remote location. More simply, couples could have a complete marriage ceremony in the location of their choice, but would receive a license and file necessary papers with a distant state jurisdiction.

They are publicizing their proposal with a press release here and article soon to be posted on ssrn here (abstract available now).

RR

Habeas, Indefinite Detention, and the Uighurs Head to the Court

The Supreme Court this week granted cert. in Kiyemba v. Obama, the habeas case of the Uighurs, the Chinese Muslims held now for over eight years at Guantanamo Bay.

Some background:  Judge Urbina (D.D.C.) ruled last October on the Uighur's habeas petition that the government must release them into the United States.  (The government then no longer considered the Uighurs detainable as terrorists, although it did fear that they might pose a threat in the United States.  Why?  Because they were sufficiently angry about being wrongly detained for so long (!).)

The government immediately appealed to the D.C. Circuit, arguing that Urbina lacked authority to order the Uighurs' release into the United States.  The government argued that the order interfered with the political branches' authority over immigration--a separation-of-powers principle.  The D.C. Circuit agreed and reversed Urbina's order, leaving the Uighurs in limbo.

Meanwhile, the Uighurs petitioned the Obama administration for release.  The then-new administration rejected the request as it worked out its new detention policies.  (The administration subsequently relocatedfour Uighurs to third countries.  It apparently couldn't find homes for the others.)

The remaining Uighurs petitioned the Supreme Court for review, and the Court just this week granted cert.

The case now raises critical questions of the executive's authority to indefinitely detain, the courts' authority to order detainees' release on habeas in the wake of Boumediene v. Bush (holding that the privilege of habeas extends to detainees at Guantanamo Bay), and the courts' authority to order release into the United States--substantial issues, and ones that the administration might like to avoid.

The certified question presented opens the door for each of these:

Whether a federal court exercising its habeas jurisdiction, as confirmed by Boumediene v. Bush . . . has no power to order the release of prisoners held by the Executive for seven years, where the Executive detention is indefinite and without authorization in law, and release into the continental United States is the only possible effective remedy.

The government has taken the position on cert. that the Uighurs are free to leave Guantanamo to go anywhere but the United States.  (Reading the government's brief opposing cert., you'd be excused for believing that the Uighurs are at Guantanamo on vacation.)  The problem: nobody will take them.  According to the government, this is a problem for the political branches, not the courts on habeas.  But as the Uighurs ask: if the courts can't order release into the United States, of what value is habeas?  And more: this amounts to illegal and unconstitutional indefinite detention.  (Thanks to SCOTUSwiki for links to the cert. filings.)

The Obama administration could potentially moot the case and avoid a high Court ruling by relocating the Uighurs (within the United States, or elsewhere) and closing Guantanamo--a task apparently much easier said than done.

SDS

English Only Consumer Protection Defeated

The proposed Consumer Financial Protection Agency Act of 2009, HR 3126, would establish the Consumer Financial Protection Agency as an independent executive agency to regulate the provision of consumer financial products or services.   The bill was approved by the House Financial Services Committee today, but only after a robust markup.

One amendment was offered by Representative Chris Lee, R-NY, seeking to strike a provision regarding consumer protection  "language accessible materials for non-English speakers" and to prohibit the Agency from requiring any disclosures in any language other than English.  The amendment was defeated 40 - 29 (see item 38, HR 3126 here).

For an excellent discussion of the status and constitutionality of a wide array of English-only laws and policies in the United States, see Watch Your Language! The Kansas Law Review Survey of Official-English and English-Only Laws and Policies, 57 U. Kan. L. Rev. 669 (2009).

RR

ABA President Calls for Civil Gideon

ABA President Carolyn Lamm called for a constitutional right to counsel in civil cases involving basic human needs, a "Civil Gideon," in the President's Message in the October 2009 ABA Journal.

Lamm argues that Civil Gideon is a part of a broader strategy, including increased pro bono efforts and increased legal aid funding, in meeting dire legal needs in the current economic crisis:

But we must do much more. Lawyers and advocates nationwide have been working hard, with ABA support, for the right to counsel in civil matters where basic human needs are at stake—a “civil Gideon” policy. They are making progress case by case, state by state, jurisdiction by jurisdiction. Most recently, in the Alaska Supreme Court case of Office of Public Advocacy v. Alaska Court System, the ABA filed an amicus brief supporting civil Gideon. This fundamental right must be recognized by courts and legislatures—and fully funded.

The ABA's amicus brief in Office of Public Advocacy is here.  See more here on the effect of the economic crisis on access to justice issues.

The issue may come to the Supreme Court this term.  Earlier this month, in a highly unusual move, the Court asked the Texas Solicitor General for views at the cert. stage on Rhine v. Deaton, a civil right to counsel case involving a Texas mother's private custody dispute with temporary foster parents.  See more here and here.  The Court has not previously recognized a categorical right to counsel under the federal Constitution; instead, it created a barrier to such a right under Fourteenth Amendment procedural due process in Lassiter v. Department of Social Services. 

Lamm's article comes the same month that the state of California enacted legislation to provide for a pilot program providing a civil right to counsel in cases involving basic human needs.  In the bill, the California legislature made its own finding that a civil right to counsel in these cases is supported by constitutional demands for equality and equal access to justice.

California now joins several states that, through their judiciaries or state legislatures, have arrived at similar conclusions.  Perhaps the time is right for Civil Gideon to bubble up to the Fourteenth Amendment in Rhine.

SDS

Torture and Academic Freedom

The controversy over John Yoo's professorship at UC-Berkeley School of Law (Boalt Hall) continues. 

The PBS News Hour aired a segment yesterday, available as mp3 audio, streaming video and transcript here.

RR

American Constitution Society Symposium on National Security and Human Rights

The American Constitution Society last week hosted an outstanding half-day symposium titled National Security & Human Rights: Progress, Problems and Possibilities.  The link contains video and audio of the event.  Here's the description:

As the 5th anniversary of the Military Commissions Act approaches, and a few months after the 60th anniversary of the Geneva Conventions, the American Constitution Society for Law and Policy (ACS) hosted a half-day symposium on national security and human rights issues. The symposium included two panel discussions with a diverse array of experts and a keynote address by Assistant Attorney General David Kris.

The morning panel, "Justice for Detainees: A Work in Progress?" featured Deborah Pearlstein, moderator, Visiting Faculty Fellow, University of Pennsylvania Law School; Jameel Jaffer, Director, ACLU National Security Program; Richard D. Klingler, Partner, Sidley Austin LLP; Joanne Mariner, Director, Terrorism and Counterterrorism Program, Human Rights Watch; and Hope Metcalf, Lecturer and Project Director, National Litigation project of the Lowenstein International Human Rights Clinic, Yale Law School.

The keynote address was given by Assistant Attorney General for National Security David Kris. The afternoon panel, "The State Secrets Privilege: A Case for Reform?" featured David Cole, moderator, Professor of Law, Georgetown University Law Center; Amanda Frost, Associate Professor of Law, American University Washington College of Law; David Rivkin, Partner, Baker and Hostetler LLP; Co-Chair, Foundation for Defense of Democracies Center for Law and Counterterrorism; Vincent Warren, Executive Director, Center for Constitutional Rights; and Ben Wizner, Staff Attorney, ACLU National Security Program.

SDS

Joan Biskupic on Stevens and Questioning Styles

USA Today's article on Justice Stevens reports he is keeping his retirement cards "close to his robes," although at age 89 it is "no secret" he might leave the Court. 

The piece by Joan Biskupic is based on a 75 minute interview with Justice Steven and shares a number of interesting quotes:

"We're getting to a point that our cases are revisiting issues that I wrote on 10, 20, 30 years ago," he says. "I really have felt pretty good about re-reading the opinions I wrote many years ago. I have to confess that."

There is also an interactive feature by Joan Biskupic on all of the Justice's questioning styles during oral arguments:

Hydra-headed hypos from Justice Breyer?  

This makes a nice link to post on your course website for students to enjoy.

RR

Medical Marijuana

The Department of Justice has announced a new policy regarding federal prosecutions of the use of marijuana permitted under state law for medical reasons. 

In a memo released today to federal prosecutors, David W. Ogden, Deputy Attorney General, states:

The prosecution of significant traffickers of illegal drugs, including marijuana, and the disruption of illegal drug manufacturing and trafficking networks continues to be a core priority in the Department’s efforts against narcotics and dangerous drugs, and the Department’s investigative and prosecutorial resources should be directed towards these objectives. As a general matter, pursuit of these priorities should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana. For example, prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources.

This memo solidifies Attorney General Holder's statements we discussed last February that prosecutions of the use of medical marijuana would not be a priority in the new Administration.  

There is also a continuing discussion - - - although apparently not in the current DOJ - - - regarding the decriminalization of marijuana, including substantive due process arguments.

RR

The Federalist Society Annual Convention

The Federalist Society's National Lawyers Convention is scheduled for Thursday, November 12 through Saturday, November 14, 2009 at the Mayflower Hotel, with its theme of

 "The Federal Government's Economic Role in our Constitutional System."

Speakers include Justice Samuel Alito (dinner speaker), Judge Douglas H. Ginsburg of the U.S. Court of Appeals, D.C. Circuit (Barbara K. Olson Memorial Lecture), Senator Jeff Sessions (opening remarks), and John Yoo (on a panel entitled "Professional Responsibility: The Role of Government Attorneys and the Global War on Terror").

A full program and registration details are available here.

RR

U. Akron Law Celebrates Fourteenth Amendment's 140th

The University of Akron and The Akron Law Review put together an impressive and diverse group of scholars last year to celebrate the 140th anniversary of the Fourteenth Amendment.  A good number of the papers touch on incorporation and the Privileges or Immunities and the Due Process Clauses--issues before the Court this term in McDonald v. City of Chicago, the Second Amendment case out of the Seventh Circuit.  See also here, here, here, here, and here.

The Akron Law Review web-site doesn't yet link to the articles in the volume, so I tracked down those I could on SSRN.  All of the authors have written other works on the Fourteenth Amendment--in some cases extensively--so I've linked their SSRN pages (on their names), as well.

Elizabeth A. Reilly, Infinite Hope Introduction to the Symposium: The 140th Anniversary of the Fourteenth Amendment

Richard L. Aynes, The 39th Congress (1865-1867) and the 14th Amendment: Some Preliminary Perspectives

Elizabeth A. Reilly, The Union as it Wasn't and the Constitution as it Isn't: Section Five and Altering the Balance of Powers

David Skillen Bogen, Rebuilding the Slaughter-House: The Cases' Support for Civil Rights

James W. Fox, Fourteenth Amendment Citizenship and the Reconstruction-Era Black Public Sphere

SDS

Plessy, Brown, Barbara Ehrenreich & "Positive Thinking": Robson's Saturday Evening Review

Be positive!  How many times have you heard that recently?  How many times have you said that?  Or if you haven't heard it or said it explicitly, how many times has that been the implicit message? 

In formal meetings and informal ones, in classrooms and offices, in conversations with colleagues, students, and clients, inside academia and outside it,  the significance of being - - - or at least acting - - - happy, positive,  and "upbeat"  has become de rigueur.   And what could be wrong with that?

  A few answers are provided by Barbara Ehrenreich's new book, Bright-Sided: How the Relentless Promotion of Positive Thinking Has Undermined America.  It is a journalist's book aimed at a popular audience,  yet this seems right because it is criticizing a movement so ubiquitous that it is rarely named a "movement." But a movement it is, she argues, tracing its genesis to the "New Thought" movement in post-Calvinist America, around the time of the Civil War.   In the 1860s, Mary Baker Eddy, the founder of Christian Science, met Phineas Parker Quimby, a metaphysician, watchmaker, journal-keeper, and inventor in Portland, Maine, and so "the cultural phenomenon we now recognize as positive thinking" was launched. (79).   From here, it is only a short distance to William James' pragmatism, Napolean Hill's 1930's classic Think and Grow Rich, and of course Norman Vincent Peale's 1952 mainstay, The Power of Positive Thinking.   Ehrenreich partially explains the contemporary popularity of "positive thinking" in part by changes in work and life:  much more depended on being "likeable to employers, clients, coworkers, and potential customers,"  (96) and not only that, one's very life and health might depend upon it.   

Ehrenreich looks at several specific contemporary manifestations: cancer care and advice, the partnership between corporate and motivational industries,  the mega-churches ("God wants you to be rich!"), and psychologists purveying "scientific" studies of happiness.  Most predictably perhaps, she considers the present economic turmoil.  Ehrenreich doesn't think the culprit was simply greed, but an all pervasive sentiment that confused positive thinking with reality.  Thus, not only were people, whether they be borrowers or lenders, encouraged to think that things could only get better and that they individually deserved the new purse/house/car that they had visualized, but that anyone who dared proffer another idea should be dismissed as "negative" or even "toxic."  Being "negative" could mean not only that one was not in demand as a conversationalist or dinner companion, but that one was terminated from her or his job.

Academia earns only a brief mention (141); she concludes that universities have been "corporatized" with their MBA Administrators, bland architecture, aggressive marketing techniques, and hiring of "motivational speakers.  Not to mention, although she does, the "jargon" that one hears in universities and "everywhere": "incentivizing," "value added," and "going forward."  (She omits my favorite, "reaching out," often referring to speaking to a colleague next door or a student one would see in class, as if that person is very far away).  

Law does not figure in Ehrenreich's book (with the exception of the "law of attraction": visualize what you want and it will be attracted to you).   Reading it, however, did bring to mind both Plessy v. Ferguson, 163 US 537 (1896), and Brown v. Board of Education, 347 US 483 (1954).  In Plessy, Justice Henry Billings Brown famously wrote:

We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.

I've always considered this a premature postmodernist stance, but it also fits into the "New Thought" currents Ehrenreich discusses.   If Homer Plessy had only been more of a positive thinker about that Louisiana statute mandating separation of the races! 

Fifty-eight years later, Justice Earl Warren in Brown v. Board of Education concludes that racial segregation has a "detrimental effect" :

Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. Any language in Plessy v. Ferguson contrary to this finding is rejected.

The modern authority Brown cites in the footnote includes the famous Clark "doll studies."  But in the power of positive thinking world that Ehrenreich describes, low self-esteem - - - what would be named "negativity" now - - - is in the control of the individual and is not attributable to legal or social conditions.    Instead of suing to end segregated schools, should the plaintiffs (and attorneys) in Brown have looked "within" and tried to be more "positive" about the "situation"?

Ehrenreich's all-important point - - - which I think might be too easily lost in the book - - - is that what's wrong with the insistence on a positive world view is that it reinforces the status quo.    If, as the positive psychologist studies contend, "circumstances" only play a small role in individual happiness, then, as she writes "policy is a marginal exercise."  (171).

Why advocate for better jobs and schools, safer neighborhoods, universal health insurance, or any other liberal desideratum if these measures will do little to make people happy?  Social reformers, political activists, and change-oriented individuals can all take a much-needed rest. . . . the baton has been passed to the practitioners of "optimism training"  . . . .

(172). 

So, the next time you hear - - - or say - - - something about someone's positive or negative attitude, think of Plessy v. Ferguson and Brown v. Board of Education.  And take a look at Ehrenreich's new book. 

 

RR