May 9, 2009
South African Constitutional Law, Polygamy, and Sexuality: Saturday Evening Review
One of the very best volume on South African Constitutional Law remains The Post-Apartheid Constitutions edited by Penelope Andrews and Stephen Ellman, published in 2001. This anthology provides a study of the "processes of negotiation" of the constitutions as well as an analysis of the final constitution of 1996. The University of Cape Town Faculty of Law uBuntu Project is hosting me later this month (if you are in the neighborhood, invitation here); to prepare I find myself reading and re-reading the rich literature on South African constitutionalism.
However, even for Americans with little interest in non-US constitutions, many of this volume's essays - - - on constitution-making, negotiation, "deadlock," the certification (ratification) process, the "key players," and the Bill of Rights - - - shed light on theories of originalist constitutional interpretation in the US. Stephen Ellman's exceedingly important chapter comparing United States doctrines of state action and "South Africa's Socio-economic Rights Guarantees to Private Actors," seeks to use "American efforts to grapple with state action" to "illuminate the issues facing South African courts" applying a more expansive notion. However, Ellman's essay constructs a two-way mirror: Americans can use the South African constitutional notions to "illuminate" the issues faced by courts confronting the sometimes limiting state action doctrine.
The contribution of the other co-editor, Penelope Andrews, is also vital. Entitled "The Stepchild of National Liberation: Women and Rights in the New South Africa," Andrews discusses how women pressed their concerns and win a place at the negotiating table. Again, this experience distinguishes the US constitutional-framing context. Yet as Andrews notes, even in the 1990s the claims of customary and traditional law could conflict with claims for gender equality, especially in the rules about property, ownership, and guardianship of children.
Andrews doesn't mention marriage or polygamy in this piece, although she has written about it elsewhere (on ssrn here and here); she is quoted in today's Washington Post in an article entitled "Which Mrs. Zuma Will Be South Africa's First Lady?" discussing the ramifications of the fact that the new President of South Africa, Jacob Zuma, is a practicing polygamist. The "First Lady" is not a position in the South African or US constitution, but for all the attention and anxiety it can generate (especially when potential heads of state are polygamous, or unmarried, or female, or perhaps divorcing) it might seem as if there should be some constitutional clarity. As the WaPo article comments, "South Africans are still in the dark about who will be Zuma's date to galas and have dibs on the spousal office in the east wing of the president's hilltop residence in Pretoria, the administrative capital."
Current controversies, however, do not detract from the relevance of The Post-Apartheid Constitutions. It is an excellent volume that remains timely, not only in its historical discussions but in its concerns. The major omission in the volume is a lack of attention to sexuality issues and insufficient attention beyond Andrews' essay to gender issues. South African constitutional law has been recognizing many sexuality rights, due in part to "sexual orientation" being a ground of discrimination in the Constitution. Good sources on the issue include American ConLawProf Mark Kende's new book previously blogged here which has a chapter on "gay rights" and the South African Journal of Human Rights, which has had several special issues on sexuality including volume 23 part 3 (2007) and volume 20 part 2 (2004).
Another great source on sexuality, constitutional law, and South African politics is the website website Constitutionally Speaking by South African ConLawProf Pierre de Vos (pictured above) It is a must read for anyone trying to keep up with the legal landscape in South Africa.
May 8, 2009
Obama's Constitutional Law Exam and Feedback
Interested in a Constitutional Law III examination and feedback from 1996? What about if the Professor was the now-President Barak Obama?
The first question on the exam involves a lesbian seeking to obtain IVF despite a law that the "state legislature passed a law last year, titled the “Preservation of Family Values Act” (PFVA), that, inter alia, prohibits any doctor or health care professional, whether in private practice or employed by the state, from providing infertility services to any unmarried person within the State of Wazoo." The question asks students to address both equal protection and substantive due process claims.
The second question involves an African-American mayor considering two affirmative action policies - one regarding city contracts and the other involving the hiring of firefighters and the civil service examination. This question specifically asks students to argue both sides, provide a considered conclusion, and to "feel free to present to the Mayor any broader policy issues or theories of racial justice that are raised by his plan and/or the referendum."
The full exam is here. The feedback, here, is twelve pages and in the form of a discussion rather than a checklist or model answer. It was an open book examination and students had six hours, although as the instructions assert: "The exam is designed, however, to be completed in approximately three hours. Feel free to use the extra three hours as you wish (anxiously flipping through the casebook for that one last citation, or heading over to the gym for a good workout - your choice)."
Thanks to Alana Chazan, class of 2009 CUNY School of Law, for these documents, which are from the NYT blog from July 2008 here, along with other exams and syllabi and comments from conlawprofs. And yes, it did make me look for the exam I gave and the feedback from 1996, although I am about to admit defeat unless I can find a floppy disk reader!
May 7, 2009
Wydra on the Citizenship Clause and Birthright Citizenship of Children of Undocumented Aliens
Elizabeth Wydra, Chief Counsel of the Constitutional Accountability Center, just published Birthright Citizenship: A Constitutional Guarantee, an American Constitution Society Issue Brief, arguing that the text, history, original understanding and intent, principles, and precedent of the Fourteenth Amendment's Citizenship Clause all point to "birthright citizenship [for] all those born on U.S. soil, regardless of the immigration status of their parents."
Wydra's Brief comes in the wake of a(nother) national election in which birthright citizenship was an issue as part of a larger immigration debate and following at least ten years of proposed, but unsuccessful, congressional legislation to end birthright citizenship.
The Fourteenth Amendment Citizenship Clause makes "[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof" U.S. citizens. The current bill in Congress, H.R. 994, Sec. 301 (page 33), would define a person born in and "subject to the jurisdiction" of the U.S. to include only children of U.S. citizens, "lawful" aliens, and aliens serving in the U.S. armed services, thus prohibiting a child of undocumented aliens from achieving U.S. citizenship merely by virtue of birth. (The same bill died in committee in the 110th Congress.)
Wydra's Brief argues that this interpretation is unsupported by the text and principles of the Fourteenth Amendment, contrary to the intent of the amendment's framers, and contrary to the case law. Wydra's brief also explores and debunks other common arguments against birthright citizenship: that "subject to the jurisdiction of" means "allegiance" to (thus limiting birthright citizenship only to children of parents who give complete allegiance to the U.S.); that Congressional debates over the Fourteenth Amendment suggest that both foreign diplomats and aliens were to be exempted from birthright citizenship; and that "subject to the jurisdiction of" implied mutual consent (thus limiting birthright citizenship only to parents who have been "consented to" by the U.S.).
This is an excellent read--a thorough analysis of birthright citizenship under the Citizenship Clause and a good example of constitutional fidelity as a method of constitutional interpretation. It's also a nice addition to the CAC's good work on other relatively neglected portions of Section 1 of the Fourteenth Amendment--Gans and Kendall's article and briefs on the P or I Clause.
Ninth Circuit Case on Eleventh Amendment & Section 5 (Fourteenth Amendment)
Perhaps this would set the stage for SCOTUS to clarify Eleventh Amendment doctrine, as we just discussed here, in the context of Souter's legacy.
May 6, 2009
Constitutional Interpretation, Literary Interpretation, and "torture memos"
The investigation, undertaken by the Justice Department's Office of Professional Responsibility, seeks to determine whether memoranda — written by Yoo, when he was at the Office of Legal Counsel at the Justice Department, and his colleagues there — were so flawed as legal interpretation that they did not meet legal standards.
The question that interests — and troubles — me here is this: Can one be guilty of misinterpretation to the degree that one is punished by loss of one's license to interpret?
Brooks eventually makes some distinctions between literary and legal interpretation, as well as between academia and legal practice. While it might be more strongly argued, it does illuminate some of the ways in which law is text and the ways in which law is not (merely?) text.
May 5, 2009
Lesbian (Gay) Supreme Court Nominee Possibility
Or so I once said, in an interview: “It was the summer of 1992, the last summer of the Reagan-Bush regime, although the demise of that era was far from certain. I was being interviewed by a gay and lesbian magazine for a feature article about the Supreme Court. I was staying in Provincetown, a place renowned for its lesbian/gay culture, surrounded by lesbians of every ilk. . . . when the interviewer asked me a general question about changing the United States Supreme Court, I replied that we should start with the appointment of a lesbian. My proposal, glib as a Provincetown summer, implicitly asserts lesbianism would be a relevant quality of a United States Supreme Court Justice.”
The specter of a lesbian Supreme Court Justice raises an issue that has troubled lesbian and political theory, the issue of identity politics. The rest of the article, The Specter of a Lesbian Supreme Court Justice: Problems of Identity in Lesbian Legal Theorizing, 5 St. Thomas Law Review 433 - 458 (1993), analyzes identity politics circa 1992.
Now, seventeen years later, identity politics remains an issue and at least two lesbians are thought to be contenders for the Court. The story has been buzzing around for a while, it makes its appearance on Politico here:
Sullivan is former dean at Stanford and teaches Constitutional Law.
Karlan is a former clerk to Justice Blackmun and Director of Stanford's Supreme Court Litigation Clinic.
POLTICO also reports that ”in response to questions from POLITICO in recent days, White House aides declined to say whether sexual orientation was among the diversity factors the president planned to consider either with respect to a Supreme Court nominee, or judicial nominees more generally."
Michael McConnell Resigns Tenth Circuit to Return to Academia
Appointed to the Circuit by George W Bush is 2002, McConnell was frequently mentioned as a possible nominee for the United States Supreme Court.
Justice Marshall - Practical Feminist?
The Legal History Blog has a reference to a new article by Maryland Professor Taunya Lovell Banks which examines the role of Justice Thurgood Marshall in advancing women's rights while on the Court. Professor Banks compares his voting record on women's issues with the positions he took in opinions he authored that affected women. Her verdict - "
May 4, 2009
The Souter Vacancy and Justice Kennedy as the Key
Last Thursday, I was prepared to blog a bit about this article - a piece from the WSJ law blog about Justice Kennedy. The article briefly mentioned Justice Kennedy's possible role in resolving the Northwest Austin voting rights case and how he - as he so often does - finds himself as the swing-vote on a divisive issue. Then, Thursday night, Justice Souter made his announcement, and it seemed like Justice Kennedy was old news.
Or maybe not.
The conventional wisdom in the mainstream media since last week's announcement is that because Souter consistenly voted with the more liberal wing of the Court, the Court's current ideological bent will not change even if Souter is replaced with left-leaning jurist. Thus, the story goes, any real "shift" on the Court will not occur until either Justice Kennedy or a member of the more conservative wing of the Court should retire. But I think the media are overlooking an important X-factor here - Justice Kennedy.
Supreme Court justices peruade each other in a number of ways. Some persuade through the force of their personality, others through their personal stories. What persuades Justice Kennedy the most? Law? Life Expericences? A combination of the two? If President Obama wants to create a swift change on the Court, he would do well to have his staff investigate this question and try to find a nominee who can fit that description. This person - the "perfect persuader" - would be someone that not only shares Obama's legal views and philosophy, but can also convice Justice Kennedy of the correctness of these positions.
If President Obama chooses wisely, this "perfect persuader" could give him the Court he seeks immediately. Overnight, the Court could move from a slightly right-leaning to one leaning slightly to the left. Thus, being able to get Justice Kennedy to the left on a more regular basis would have a real and immediate impact on the Court.
Thepotential fly-in-the-ointment here is that Justice Kennedy may relish being the "man in the middle." Perhaps he votes the way he does to prevent the Court from going too far in any particular direction. Moreover, the ploy may work better in some cases than in others. At any rate, it is certainly worth a try to pick a nominee for that express purpose. Depending on the person chosen, the plan could have more than even odds of succeeding.
We won't know how the Kennedy angle will play out until the first arguments in October at the earliest. But until then - and even after - it will be intriguing to speculate if adding a new person to the mix will change the Court in any significant manner.
May 3, 2009
Liu, Karlan, and Schroeder on Constitutional Interpretation
Professors Goodwin Liu (Boalt Hall), Pamela Karlan (Stanford), and Christopher Schroeder (Duke) just published Keeping Faith with the Constitution, a bold challenge to originalism (in all its stripes), on the one hand, and to "living constitutionalism," on the other, and a clear argument for a richer approach they call "constitutional fidelity." The book is one of a pair just released by the American Constitution Society. (The other is a collection of works on constitutional interpretation titled It is a Constitution We are Expounding.) You can download a full copy on the ACS site, here. (Disclosure: I am an ACS member and sit on the Board of Advisors of the Chicago Lawyer Chapter.)
"Constitutional fidelity" is an approach to constitutional interpretation that starts with the text's principles and draws on a variety of sources to apply those principles to contemporary problems:
Interpreting the Constitution, we argue, requires adaptation of its broad principles to the conditions and challenges faced by successive generations. The question that properly guides interpretation is not how the Constitution would have been applied at the Founding, but rather how it should be applied today in order to sustain its vitality in light of the changing needs, conditions, and understandings of our society. . . .
To be faithful to the Constitution is to interpret its words and to apply its principles in ways that preserve the Constitution's meaning and democratic legitimacy over time. Original understandings are an important source of constitutional meaning, but so too are the other sources that judges, elected officials, and everyday citizens regularly invoke: the purpose and structure of the Constitution, the lessons of precedent and historical experience, the practical consequences of legal rules, and the evolving norms and traditions of our society.
The authors argue that this approach is not only most consistent with the history of our constitutional practice, but it's also the best way to preserve the document--as it was and is intended to be preserved--over the long haul.
The authors situate constitutional fidelity in some ways between the most familiar brands of originalism and living constitutionalism and in other ways off the spectrum entirely. (They refreshingly and honestly do not situate constitutional fidelity onlyin relation to originalism.) They thus roundly and unapologetically reject any style of originalism with arguments that are by now quite familiar; and in the next breath they take issue with living constitutionalism's failure to respect "the fixed and enduring character" of the document's text and principles. In balancing the Constitution's unchanging attributes with our evolving society, the authors navigate between originalism and living constitutionalism and end up with a richer and deeper theory that accounts for the ways that the Constitution is and ought to be understood.
This book promises to make a serious, even defining, contribution to the literature and debates over constitutional interpretation at a potentially watershed moment, at least with regard to constitutional interpretation in the political branches. And the web-based release and easy, accessible style will make possible a wide distribution and readership. I highly recommend this excellent work.