Saturday, March 28, 2009
With Northwest Austin Municipal Utility District v. Holder (considering the application and reauthorization of Section 5 of the Voting Rights Act) scheduled for oral argument before the Court the last day in the term, and most recently blogged here, legal scholarship on voting and race could not be more timely. Luckily, there are two superb recently published articles that illuminate the subject of voting rights and African-Americans, especially pertinent for ConLawProfs.
The Tyranny of the Minority: Jim Crow and the Counter-Majoritarian Difficulty, 43 Harv. C.R.-C.L. L. Rev. 65 (2008) by Gabriel J. Chin and Randy Wagner opens with this provocative statement:
thinking of African Americans as a minority.
Gabriel (Jack) Chin and Randy Wagner argue that although African-Americans may have been a "minority nationally," they were
concentrated. In 1880, for example, African Americans were an absolute
majority in Louisiana, Mississippi, and South Carolina; and were over 40%
of the population in Alabama, Florida, Georgia, and Virginia, making Afri-
can Americans the largest single voting bloc in those states.
Further, "allied with Republican whites, African Americans outnumbered conservatives and
earned majority control of the electoral system in many states." This history of majority political power, they contend, "creates an imperative to rethink segregation and the present condition of African Americans," moving disenfranchisement from one of a "laundry list of indignities," to a central feature of analysis. The authors offer the tyranny model in which African-Americans
lost their majority power through unconstitutional means.
Thus, the disadvantages they experienced were the result not
of majoritarian indifference or discrimination, but of minority tyranny.
The authors' historical sections (complete with charts) of the Reconstruction and Jim Crow eras is compelling, demonstrating racial discrimination at the local, state, and federal levels as related to disenfranchisement. The theoretical implications of their argument for judicial review strike at understandings of the so-called "counter-majoritarian difficulty":
The idea at the core of the counter-majoritarian difficulty, that judicial
review should be restrained lest courts interfere with decisions of majorities,
counseled judicial vigor when those seeking help from the courts were in
fact majorities. If African Americans were a majority or controlling plurality
at the turn of the twentieth century, then judicial decisions failing to defend
their interests could not be the result of an effort, correct or not, to balance
majority rule and minority rights. Instead, anti-African American decisions
sacrificed both the principle of democracy and the letter of the Constitution
in favor of some other principle. The Court knew what it was doing when it
upheld discrimination and disenfranchisement; it consciously upheld laws
passed by minorities, against the will of majorities, who because of their
race had been denied the right to vote provided by the Constitution.
[in 1879] the Court recognized that there were "[s]tates where the colored
people constitute a majority of the entire population.''
Such a recognition, as Chin and Wagner argue, casts Plessy v. Ferguson, as well as other cases, in a very different light.
In her brilliant response, Trampling Whose Rights? Democratic Majority Rule and Racial Minorities: A Response to Chin and Wagner, 43 Harv. C.R.-C.L. L. Rev. 127 (2008), Professor Taunya Lovell Banks essentially agrees with Chin and Wagner, concluding that " litigators should seriously consider using Chin and Wagner's argument and evidence to challenge the invocation of counter-majoritarian concerns in voting rights cases."
Yet Banks extends (and in some ways updates) Chin and Wagner's argument:
While I agree with Chin and Wagner that the counter-majoritarian principle
has been misapplied by the Court in race discrimination cases involving
black Americans . . . Fear of black majority
rule was not the sole reason for black disenfranchisement efforts in the late
nineteenth and early twentieth century. If it had been, disenfranchisement
efforts would have decreased as the percentage of black voters in the states
decreased. Yet, as even Chin and Wagner concede, efforts to disenfranchise
black voters have continued into the twenty-first century in the absence of
black majorities or pluralities in the former states of the confederacy. Thus, I
contend that black disenfranchisement on both a local and national level is
linked to resistance by white racial conservatives to full political equality for
black Americans (and often other non-white racial/ethnic minorities).
Further, Chin and Wagner seem overly optimistic in believing that the
problem with the minority model analysis is simply the Court's unwilling-
ness to recognize the lingering effects of disenfranchised black majorities or
pluralities. Continued resistance among white racial conservatives (whose
interests are currently favored by the federal courts) to full political equal-
ity for black Americans makes it unlikely that "law" will grapple with the
consequences of nineteenth- and early-twentieth-century black disen-
franchisement anytime in the near future . . . . the Court continues
to further the rights of white racial conservative minorities nationally and locally.
Banks turns to several recent cases to prove her point. Her analysis of Justice O'Connor's use of counter-majoritarian discourse in Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) is the best I've seen; I expect it to be turning up in the notes of every Constitutional Law Casebook in the near future. She also addresses Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738 (2007) as a springboard to discuss her theories linking resource equality with racial diversity, and linking educational equality and rights with the larger social good. Additionally, Banks argues that Bush v. Gore, 531 U.S. 98 (2000), should be read as a case about African-American disenfranchisement - - - again, I expect to be seeing the arguments excerpted in the notes of every ConLaw Casebook.
These two articles should be required reading for anyone interested in Northwest Austin Municipal Utility District v. Holder, the United States' deeply problematic history of voting, and judicial theorizing invoking counter-majoritarian difficulties.
March 28, 2009 in Affirmative Action, Cases and Case Materials, Elections and Voting, Equal Protection, Fifteenth Amendment, History, Interpretation, Race, Reconstruction Era Amendments, Scholarship | Permalink | Comments (0) | TrackBack (0)
The Spanish Audencia Nacional, the Spanish national security court, has taken the first steps toward investigating Bush administration officials for authorizing torture at Guantanamo Bay in violation of the Geneva Conventions and the Convention Against Torture.
The complaint, forwarded by the prosecutor's office to Baltasar Garzon, triggers an investigation of six former officials, including Alberto Gonzales, John Yoo, William Haynes, Doug Feith, Jay Bybee, and David Addington, for providing the legal framework for violation of the conventions. According to Harper's, Garzon is "Europe's best known counterterrorism magistrate." He is perhaps best known as the investigative judge who ordered the arrest of Augusto Pinochet.
While some details of these officials' legal advice remain secret, the general argumentis well known: The techniques did not constitute torture, but in any event the President had inherent executive authority and (alternatively) authority under the AUMF to order treatment of detainees at Guantanamo without regard to limits in U.S. law and international treaties. (The OLC appears to have backed off some of this--but without specifically retracting it--in later memos. But we still don't have keyOLC memos to tell the full story.)
But these arguments (or any others) are extremely unlikely to get full articulation in the Spanish courts: Even if arrest warrants are issued for these officials, the U.S. would mostcertainly ignore extradition requests.
Chicago attorney Steve Sanders argued yesterday on the American Constitution Society Blog that columnist George Will exhibited his own "situational constitutionalism" in his op-ed earlier this week in the Washington Post.
In that piece, Will romped through recent actions of the political branches--from the tax on AIG bonuses, to TARP, to full representation for D.C. in Congress, to treatment of NAFTA--and concluded that the government is "increasingly anti-constitutional" and reliant upon situational constitutionalism (or politically opportunistic constitutionalism) in justifying its actions.
Sanders responded that Will exhibited his own brand of situational constitutionalism:
What's more curious about Will's attack, though, is that it seems itself to be a bit "situational." When the issues he cares about are at stake--protecting NAFTA, denying representation to the residents of D.C.--Will calls down wrath against opportunistic politicians whom he says regard the Constitution as merely a "cobweb constraint." Yet when it comes to attempts by Congress or the states to legislate in other ways that threaten individual rights and constitutional values, Will, like so many of his brethren, seems willing to entrust basic human liberties to the wisdom of these same politicians [and not the judiciary].
Sanders put his finger on why so many of my second-semester Con Law I (structure) students struggle around this time each semester: In an area with so few definitive "rules"--where everything seems to come down to opportunistic political argument--what are we supposed to learn? But as Sanders suggests, con law is not mere politics; and we (and our students) might better see this by sorting out situational constitutionalism on both sides of the aisle.
Friday, March 27, 2009
The D.C. Circuit in a split decision today affirmed the lower court's dismissal of a Sudanese pharmaceutical manufacturer's Federal Tort Claims Act case against the United States for negligence in bombing its facility in 1998 and for defamation in subsequently claiming that the owner was associatedwith terrorists. The court ruled that the claims raised nonjusticiable political questions.
The plaintiffs, El-Shifa Pharmaceutical Industries and its owner Idris, claimed that the U.S. bombed their facility in 1998, arguing that the El Shifa plant was a "terrorists' base of operation" and "associated with the bin Laden network." Clinton administration officials, once they learned that theseinitial justifications were wrong, then portrayed Idris as a friend and supporter of terrorists--a new justification for the bombing.
The defamation claim, growing out of these subsequent statements by Clinton administration officials, raises the more interesting political question issue. Two judges--Griffith and Henderson--wrote that "[t]he making of such justifications is itself a policy decision that cannot be separated from the conduct of foreign relations and the exercise of the war power that it explains," thus raising political questions.
But Judge Ginsburg in dissent wrote that subsequent justifications had nothing to do with the underlying decision to bomb the facility:
In any event, the Court errs in believing Idres's claim necessarily raises a political question simply because it implicates a strategic decision. Apparently the Court believes the Constitution grants the Executive the unreviewable discretion to make defamatory statements even if they have nothing to do with the actual justification for a military decision because (or so the Court assumes) every public explanation of a military decision is "offered, in part at least, with strategic . . . objectives in mind." That proposition is not only novel and frightening, it ignores Supreme Court precedent.
Thursday, March 26, 2009
A bipartisan group of leaders of the House Judiciary Committee filed an amicus brief today in Northwest Austin Municipal Utility District v. Holder, the case dealing with the application and reauthorization of Section 5 of the Voting Rights Act--the preclearance procedure--now before the Court. The brief covers the history of the VRA and Congressional findings supporting its extension--good fodder for classes on Congress's authority under the Fourteenth and Fifteenth Amendments.
From the brief:
In 2006, after meticulous and extended consideration, Congress determined that the provisions of Section 5 have not yet "outlived their usefulness." City of Rome v. United States, 446 U.S. 156, 180 (1980). In making this determination, Congress acted at the height of its powers in regulating the three intersecting areas of voting, race, and political rights. Congress's judgment is therefore entitled to substantial deference from this Court. Accordingly, as the District Court properly held, Congress's decision to extend the VRA passes muster under any constitutional test, whether rationality review under Katzenbach or the "congruence and proportionality" test in City of Boerne.
Tuesday, March 24, 2009
More on O'Connor's feminism can be found referenced in Julie Graves Krishnaswami, Justice Sandra Day O'Connor: A Selected Annotated Bibliography, 57 Cath. U. L. Rev. 1099 (2008).
In her section, “Equality and Feminism,” Krishnaswami lists and describes the following articles:
Sandra Day O'Connor, The Legal Status of Women: The Journey Toward Equality, 15 L.J. & Religion 29 (2000-2001). In these remarks on the legal and social status of women, Justice O'Connor begins by sketching the development of women's rights in the United States. She remarks that “the path taken by American women can offer useful insight to the international observer,” although neither the Constitution nor the Bill of Rights expressly provided women with any rights. Id. at 29-30. Juxtaposing the emergence of women's rights in the United States, Justice O'Connor highlights how international agreements and treaties such as the Charter of the United Nations, the Universal Declaration of Human Rights, and the Convention on the Elimination of All Forms of Discrimination Against Women, have served to make women's rights synonymous with human rights. Id. at 33-35. She offers three lessons to women throughout the world from the American experience of the development of women's rights: (1) judicial or legislative change is more likely to be successful if preceded by public opinion; (2) in addition to democratic institutions and documents ensuring equality, all women must participate in political life; and (3) substantial change requires that people transcend their differences. Id. at 35. Finally, Justice O'Connor recognizes Tunisia as a leader among Arab, North African, and Middle Eastern nations in securing women's rights. Id. at 36.
Sandra Day O'Connor, The Supreme Court and the Family, 3 U. Pa. J. Const. L. 573 (2001). This is a transcript of a short talk given by Justice O'Connor as part of the University of Pennsylvania's Law School sesquicentennial celebration and Family Law Symposium. After observing that the family is “at the heart of ... American law,” Justice O'Connor discusses the challenges posed by the development of family law jurisprudence. Id. at 573-74. She observes that the Supreme Court is merely “one voice” in the development of the same. Id. at 574. Further, she argues that because family cases involve the “intertwined” rights of individuals, the application of due process jurisprudence may not be the most appropriate avenue for resolving these disputes. Id. at 575-76. Justice O'Connor discusses three Supreme Court cases to illustrate her point: Troxel v. Granville, Moore v. City of East Cleveland, and Santosky v. Kramer.
Sandra Day O'Connor, The History of the Women's Suffrage Movement, 49 Vand. L. Rev. 657 (1996). At the beginning of this article, which was originally delivered as a speech commemorating the 75th anniversary of the Nineteenth Amendment, Justice O'Connor offers “a flavor” of the battle waged by women for the right to vote. She continues to posit, “what was it all for?” Id. at 668. To answer this query, Justice O'Connor discusses the effect of women on elections and politics and observes that women's votes reflect individualism rather than the vote of their husbands or other women. Id. at 669-70. In discussing the advances that American women have made, Justice O'Connor's tone is positive, even as she observes that this progress has been “fitful.” Id. at 670.
Sandra Day O'Connor, Testing Government Action: The Promise of Federalism, in Public Values in Constitutional Law 35 (Stephen E. Gottlieb ed., 1993). This text is a compilation of papers presented at a conference hosted by Albany Law School on September 26-28, 1991, focusing on the concept of compelling government interest.
Sandra Day O'Connor, Foreword, First Women: The Contribution of American Women to the Law, 28 Val. U. L. Rev. xiii (1994). This short piece highlights some of the first women to make significant contributions to the legal profession. Justice O'Connor discusses the contributions of Myra Bradwell, Antoinette Dakin Leach, Clara Shortridge Foltz, and Crystal Eastman.
[w]omen do have the gift of bearing children, a gift that needs to be accommodated in the working world. However, in allowing for this difference, we must always remember that we risk a return to the myth of the “True Woman” that blocked the career paths of many generations of women.
Id. at 1557.
Of course, O’Connor’s scholarly writings on feminism and gender are substantially fewer than those of Justice Ginsburg as Sarah Valentine, in Ruth Bader Ginsburg: An Annotated Bibliography, 7 N.Y. City L. Rev. 391 (2004), documents. In the section “Works on Sex Discrimination and Ginsburg's Litigation to Achieve Recognition of Gender Equality,” Valentine discusses Ginsburg’s co-authored Casebook:
Kenneth M. Davidson, Ruth B. Ginsburg & Herman H. Kay, Text, Cases and Materials on Sex-Based Discrimination (1974). In this casebook intended for use in law school classrooms, Ginsburg authored three chapters, entitled “Constitutional Aspects,” “Educational Opportunity,” and “Comparative Side-Glances,” which include materials from the United Nations and foreign nations.
The Bibliography goes on to list numerous articles written during this period. One favorite is All about the E.R.A. in Cosmopolitan, Nov. 1979, in which Ginsburg writes, “We do not regard men as the ‘enemy,’ of course. Most of us are very fond of them . . .” which Valentine suggests is “a somewhat amusing reminder of the sorts of stereotypes supporters of the E.R.A. faced in 1979.” Most of the pieces are more substantial, including Some Thoughts on Benign Classification in the Context of Sex, 10 Conn. L. Rev. 813 (1978) and Constitutional Adjudication in the United States as a Means of Advancing the Equal Stature of Men and Women Under the Law, 26 Hofstra L. Rev. 263 (1997). Additionally, the Bibliography lists works about Ginsburg, many of which focus on her gender equality work, on and off the Court.
Comparisons of O’Connor and Ginsburg, including their ideas of gender equality and feminism, are inevitable given their status as the only two women to serve on the United States Supreme Court in its history. These two Bibliographies provide some evidence on which to make such comparisons - - - I think bibliographies can be a great way to start (to jump-start!) one's scholarly research and to provide to students for their own class papers or law review pieces. But additional Bibliographies on the several additional women Supreme Court Justices to be appointed for the next vacancies would be a welcome addition.
Happy Women’s History Month!
Monday, March 23, 2009
Justice O'Connor participated in an interview with the New York Times to promote her new website for children. Though she declines to call herself a feminist, take note of what she does say:
Do you call yourself a feminist?
I never did. I care very much about women and their progress. I didn’t go march in the streets, but when I was in the Arizona Legislature, one of the things that I did was to examine every single statute in the state of Arizona to pick out the ones that discriminated against women and get them changed.
So do you call yourself a feminist today?
I don’t call myself that.
Is there a label you prefer?
A fair judge and a hard worker.
(She also had some very nice things to say about Justice Ginsberg.) While Justice O'Connor may not be thought of as a "feminist" and rejects that label, a parsing of her opinions in Ngyuen v. INS and the main portion of Planned Parenthood v. Casey - which essentially saved Roe - say enough about her judicial philosophy in this regard.
The White House is moving to declassify and release three internal memos that set out the Bush administration's legal justification for its enhanced interrogation techniques (including waterboarding) used against high value detainees, report Michael Isikoff and Mark Hosenball in Newsweek. (Thanks to reader and student Jerzy Banasiak for the tip.)
The move comes in the wake of last week's account in the New York Review of Books of a secret report by the International Committee of the Red Cross quoting detainees on their treatment. That account sparked renewed debate over torture and criminal charges against Bush administration officials.
According to Isikoff and Hosenball, there's some dispute about how much and when Congress knew about the techniques.
I'll post when the memos are released.
Sunday, March 22, 2009
Adam Winkler (UCLA) recently posted his smart and delightfully entertaining piece Heller's Catch-22on ssrn. The article is also forthcoming in the UCLA Law Review. This is clever, insightful, and important beyond the Second Amendment--a very satisfying read. I highly recommend it.
Winkler's thesis (as his title suggests) is that last term's Second Amendment case, D.C. v. Heller, contains the same types of contradictions, inconsistencies, and in some cases just plain silliness as Joseph Heller's classic, Catch-22.
(Let me stop here for just a minute--a footnote to the last sentence, if our software would permit it--to address what some might see as an all-too-clever (or even too cute) play on Heller (and Heller). If you're like me, this kind of thing has a ton of potential to distract from an otherwise interesting article. But not here. Winkler plays off Catch-22 without overusing it; the article is most definitely about Heller, not Heller. But more important: catch-22 (the idea, not the book; or, rather, the idea from the book) isWinkler's thesis. And anyway Heller makes the article fun.)
Winkler starts with the contradictions in public policy and in the public debates. Here's a sample:
In almost every state, one can obtain a permit to carry a concealed weapon--except where one cannot. In many states, local sheriffs or chiefs of police have broad discretion over who may receive a permit and, depending on the city or county, no permits may be issued. For example, in Torrance, California, one of the largest cities in Los Angeles County, one can apply for a permit and, as required by state law, receive a permit application from the city. But the police chiefs include in the mailing a statement of their longstanding policy to refuse all application request. Please apply, but no applications accepted.
These examples are more than a mere warm-up for the reader (though they surely are that, what with Winkler's talent for laying plain the contradictions in the gun debates). Winkler uses these to show how our often conflicting positions on gun-rights/gun-control manifest themselves in inconsistent policies: Our gun-rights interests allow for concealed weapons permits, but our gun-control interests lead to the routine rejection of applications. We're fundamentally torn about gun-rights/gun-control, and our policy shows it.
Winkler argues that we therefore shouldn't besurprised when the Supreme Court is equally torn. And it showed it too, in Heller. A "particularly striking inconsistency" of that opinion is the majority's claim to use originalism. "Hailed as 'a triumph of originalism,' Justice Scalia's majority opinion actually embodies a living, evolving understanding of the right to bear arms." Here's an example:
Consider how Justice Scalia's opinion addresses D.C.'s ban on handguns. An originalist would look to historical sources to determine whether those who ratified the Constitution thought a ban on a particular type of weapon was contrary to the right to keep and bear arms. But Scalia's opinion doesn't do this. Handguns are protected, according to the opinion, because they are "'the most preferred firearm in the nation'" to keep for self-defense. . . . In place of the rock-hard original meaning of the Second Amendment, Scalia looks to the fickle dynamics of the contemporary consumer choices.
Heller also strays from originalism in what is, for practical purposes, the most important part of the opinion. In a paragraph near the end of the opinion, the Court lists a number of "longstanding prohibitions" on guns that remain good law . . . . The vast majority of gun control laws fit within these categories. So while forcefully declaring an individual right to keep and bear arms, the Court suggests that nearly all gun control laws currently on the books are constitutionally permissible.
This latter example--the "Laundry List" of constitutional restrictions--led lower courts to uphold 75 restrictions and overturn none in the cases that have come down since Heller. So here's another contradiction: Lower courts, which might otherwise have used originalism to overturn some of these restrictions, use the "living constitutional" Laundry List to uphold them. For all of Heller's hype, its primary contradiction has resulted in no change to the Second Amendment.
And here's the final twist: "Because of its failings, Heller is more likely to have a salutary effect on the gun debate in America by improving gun policies in the future." Why? The living constitutional approach--and particularly the Laundry List--has provided guidance to lower courts, and disarmament--the "obsession of both gun lovers and gun haters"--is off the table. Federal courts will be a new voice--and a reasonable one--in the gun debates, and Heller's Catch-22 is to thank.
Huzaifa Parhat and the Chinese Muslims (the Uighurs) detained at Guantanamo Bay filed a motionFriday in the D.C. Circuit to hold Secretary of Defense Gates in contempt for failing to comply with that court's June 20, 2008, order to "release Parhat, to transfer him, or to expeditiously convene a new Combatant Status Review Tribunal to consider evidence submitted in a manner consistent with the court's opinion." Many thanks to Lyle Denniston at SCOTUSblog for breaking the story and posting the motion.
Lawyers for Parhat argued in their motion that the administration failed to release him, failed to transfer him, and failed to convene a new CSRT. The problem, as I've noted in previous posts on a related case, is that the administration no longer considers Parhat and similarly situated Uighurs "enemy combatants" (or otherwise detainable under President Obama's new definition of detainble individuals), and therefore the administration won't convene a new CSRT. But it won't release them, either: No other country will take them, and they've been considered too dangerous to be released into the U.S. (The Bush administration argued that they were too dangerous to release into the U.S. The Obama administration hasn't to my knowledge made this same argument, but (quite obviously) hasn't yet worked out what to do with them, either.) It seems highly unlikely that they mightbe transfered to the regular federal criminal system--nobody's accused them of any crime, and both Bush's and Obama's Justice Departments have had plenty of time to consider charges.
In short, they're stuck in legal limbo at Guantanamo.
This new motion puts new pressure on the administration to do something with them. And it seems the only thing that the administration could reasonably do is to release them into the U.S. This may be politically unpalatable, and it may be dangerous. (The Bush administration argued that the Uighurs posed a threat to the U.S. because they were angry that we illegally detained them so long. This seems plausible, even if the argument is perverse.)
(Note that this contempt motion is based upon the D.C. Circuit's June 2008 order, which gave the administration three options, one of which was "release." Compare D.C. District Judge Urbina's order from last fall, which required the administration to release the Uighurs into the United States. The D.C. Circuit overturned Judge Urbina's order on separation-of-powers grounds just last month. More on that here.)