Saturday, November 14, 2009

Privileges or Immunities Clause Pedgagogy: Robson's Saturday Evening Review

Teaching the Fourteenth Amendment’s Privileges or Immunities Clause in a Constitutional Law course has long been a challenging endeavor.  For many years, the doctrine started and ended with The Slaughter-House Cases, 83 U.S. 36 (1872), in which a professor’s role was largely to address the cynicism of students who concluded that the Court’s majority had obliterated the plain language of the Constitution. Ten years ago, Saenz v. Roe, 526 U.S. 489 (1999), initially held the promise of revivifying the clause, but the doctrine did not develop beyond Saenz’s applicability to the right to travel across state lines, which was also encompassed by the Equal Protection Clause, Shapiro v. Thompson, 394 U.S. 618 (1969).

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Recently, however, the Privileges or Immunities Clause has been much discussed, including in the context of the applicability of the Second Amendment to the states in the recent grant of certiorari in McDonald v. City of Chicago, documents here, previously discussed here, in which the question is “Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.”

But how to teach the P or I Clause?   It is possible to discuss it in the context of the forthcoming McDonald after D.C. v Heller, 554 US ___ (2008), but it seemed to me that Privileges or Immunities deserved its own discussion.

This year, I assigned not only portions of  The Slaughter-Houses Cases and Saenz v. Roe, but a brief piece from The Wall Street Journal, which provides a nice rehearsal of the issues and a judgment that scholars and attorneys on “the left and right” seem to be uniting in their opinion that The Slaughter-House Cases were wrongly decided.   I also gave students a choice of one of two pieces:

The Gem of the Constitution: The Text and History of the Privileges or Immunities Clause of the Fourteenth Amendment, a 50 plus page report intended for a broad audience, published by the Constitutional Accountability Center in 2009, available here,


Ink Blot or Not: the Meaning of Privileges and/or Immunities, a 33 page law review article intended for a scholarly audience, by Richard Aynes,  11 Pa. J. Const. Law 1295 (2009), available on ssrn here.

I chose these pieces because they were recent, accessible, and relatively short.  Based on a class questionnaire students submitted anonymously, students split fairly evenly between the two pieces, responding to the query to explain their choice of article with various reasons including favoring or disfavoring the intended audience, the titles and subtitles, the mentioning of the Constitutional Accountability Center in the Wall Street Journal article, chance, download ease, and a great many “recommendation by classmate” (which nevertheless also split evenly).  Indeed, the students’ pre-class discussions were evident in the larger class discussion, and seemingly in their answers to some of the other questions I posed in the questionnaire.  The two final questions (out of a mere five questions) were most gratifying to read.  I asked students to quote a sentence or passage from the article they read which they found “most appealing” and then “most troubling.” 

Reading these responses after class, I was impressed by the students’ thoughtfulness and insight, as well as some of their humor.  (Students who read Ink Blot appreciated, and were inspired by, Aynes’ wit.)  While it can be difficult to discuss constitutional theory in a large classroom, contemporary background reading with some student choice, accompanied by in-class focus questions and adequate time for small-group discussion, allowed for wide-participation and much enthusiasm about the potential for change in the Fourteenth Amendment's Privileges or Immunities Clause doctrine. 


November 14, 2009 in Cases and Case Materials, Fourteenth Amendment, Fundamental Rights, History, Interpretation, Privileges and Immunities, Reconstruction Era Amendments, Scholarship, Teaching Tips, Theory | Permalink | Comments (1) | TrackBack (0)

Friday, November 13, 2009

Taking Private Property for Private Abandonment?: An Update on Kelo

The "takings clause" of the Fifth Amendment provides "nor shall private property be taken for public use without just compensation.”   Much of the constitutional controversy has revolved around "taking," especially when the "taking" is through regulation rather than physical appropriation.

Kelo's+Little+Pink+House However, with Kelo v. City of New London, 545 U.S. 469 (2005), the issue of "public use" assumed prominence.  In Kelo, the Court acknowledged the two poles of "public use": the clearly constitutional situation when the government takes private property and will itself use that property (e.g., for a road) as opposed to the clearly unconstitutional scenario if a government were to take private property and then transfer that private property to a private entity for private use.   Relying on precedent relating to railroads, a majority of the Court held that the City of New London's taking of property in this "blighted" area and transferring it to companies including Pfizer that would develop the property amounted to a public use.

One way to portray the Kelo controversy is as a pitting of "little" individual property owners against "big" government and corporate interests.  The Little Pink House, a book published this year, is true to this  narrative, providing a compelling account of Susette Kelo, the case, and its aftermath.  For a more nuanced view, there is an excellent and critical review of the book by Professor George Lefcoe who teaches property at USC, available on ssrn here, and forthcoming in Connecticut Law Review. 

The newest development in the factual landscape might be called a "non-development."  As reported by the New York Times, Pfizer is leaving the development in New London, Connecticut and taking 1400 jobs.  The report (with audio) on Democracy Now notes that Souter (who was in the majority in Kelo) has been replaced by Sotomayor, but that change would probably have less impact on any future "public use" case than the "feedback" to the Court's opinion.  As Dana Berliner, who represented the homeowners in Kelo expressed it on Democracy Now:

I don’t think there was anything in the [Sotomayor confirmation] hearings that would tell us that [she would rule differently]. I’m hoping, though, that what has happened since will have an effect on the court. The court’s decision basically said, “If the city’s got a plan, then we’ll just trust that they know what they’re doing. We won’t look at it.” And it was evident, even at the time, that this project was going to fail. And we showed that, and the court said they didn’t want to hear about it. I’m hoping that now, the next time they look at it, they’ll realize cities don’t know what they’re doing. They don’t know how to engage in risky real estate deals. And this is not the kind of thing that we should be using, eminent domain, in order to allow private companies to make a greater profit.


(with thanks to a number of CUNY School of Law students from previous Constitutional Law classes who forwarded various articles this week).

November 13, 2009 in Books, News, Takings Clause | Permalink | Comments (0) | TrackBack (0)

Government to Try Five Guantanamo Detainees in Federal Court

Attorney General Eric Holder announced today that the government will transfer ten Guantanamo detainees to the U.S. for trial.  The government will try five Guantanamo detainees in the regular federal courts for their roles in the 9/11 attacks, and five other detainees in military commissions (recently revamped in Chapter 47A, p. 385, of the National Defense Authorization Act for Fiscal Year 2010).  The NYT profiles the ten detainees here.

Holder said that the Justice Department wouldn't transfer the ten until 45 days after notifying Congress, as required by section 1041 of the NDAA. 

Holder also said that the Department used criteria set out in the Detention Policy Task Force's preliminary report (July 2009) to determine which detainees should be tried in regular Article III courts and which detainees should be tried by military commission.  That report recognized the different appropriate uses of Article III courts and military commissions for different detainees, called for "significant reforms" to the military commission system "to ensure that they are lawful, fair and effective," and identified criteria for determining whether to try a detainee in an Article III court or a military commission.  As to the criteria:

These . . . include the nature of the offenses to be charged; the identity of the victims of the offense; the location in which the offense occurred and the context in which the defendant was apprehended; evidentiary issues; and the extent to which the forum would permit a full presentation of the accused's wrongful conduct, among others.  Decisions about the appropriate forum for prosecution of Guantanamo detainees will be made on a case-by-case basis in the months ahead.

This isn't a model of determinacy, and some of these criteria, as some critics have argued, suggest that the administration is using the case-by-case approach to go forum shopping to ensure convictions.  But other criteria suggest that the administration has adopted a more balanced approach--one that recognizes the different legitimate uses of Article III courts and military commissions for different detainees--and that it is thoughtfully trying to sort the detainees out. 


November 13, 2009 in Congressional Authority, Executive Authority, Recent Cases, Separation of Powers, War Powers | Permalink | Comments (1) | TrackBack (0)

Thursday, November 12, 2009

Cato, Barnett Weigh in on Extended Civil Commitment of "Sexually Dangerous" Persons

The Cato Institute and Professor Randy Barnett (Georgetown) filed an amicus brief in U.S. v. Comstock, the case involving Title III of the Adam Walsh Child Protection Act, 18 U.S.C. Sec. 4248, which authorizes the Attorney General to place in indefinite civil commitment any individual in federal Bureau of Prison custody that the AG designates as "sexually dangerous."

Respondent in the case, Graydon Earl Comstock, challenges the Act as exceeding congressional authority.  The Fourth Circuit overturned the Act; the Eighth Circuit upheld it in U.S. v. Tom.  I previously posted on the case here and here.

The government argues that Congress had authority to enact the provision under the Necessary and Proper Clause alone, and as an incident of its authority to run the federal penal system (itself, claims the government, authorized by a hodgepodge of Article I powers, including the Commerce Clause). 

Cato and Barnett take on this claim, and add a little Tenth Amendment:

The Constitution itself is clear: the Necessary and Proper Clause allows Congress to make laws only "for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States . . . ."

Thus, legislation adopted under the Clause may be justified only by an enumerated power, not by an implied power.  Congress may carry into execution the powers specifically delegated to it, and the Necessary and Proper Clause permits adoption of reasonable means to carry into execution the enumerated power.  But there the power ends.  Indeed, the Tenth Amendment was adopted to ensure that Congress did not rely upon the Clause to expand its powers beyond those enumerated.  As it must, this Court has guarded against the danger perceived at the founding of the Republic: in the 190 years since M'Culloch, this Court has never upheld a statute based on the Necessary and Proper Clause that was not tethered to a specific enumerated power. . . .

Notably, the Government does not and cannot affirmatively argue that the Act is a legitimate exercise of Congress' Commerce Clause power.  Civil commitment involves neither commerce nor interstate activity.

Pp. 4-6 (emphasis in original).


November 12, 2009 in Commerce Clause, Congressional Authority, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 11, 2009

Civil Rights in the Obama Era: Conference


The relationships between civil rights and constitutionalism will be explored this Friday, November 13, in a day long conference at Valparaiso University School of Law organized by Professor Penelope Andrews.  

Professor Frank I. Michelman, Harvard Law School, will kick-off the day with the Seegers Lecture, entitled "Legitimation by Constitution: Thoughts from South Africa." 

The subsequent panels include "Beyond the Black-White Paradigm of Civil Rights Law,"  "The Rights of Students in Public High Schools," and "The Possibilities and Limitations of Civil Rights Litigation: A Greater Role for Social Movements?"

Registration and more information here.


November 11, 2009 in Comparative Constitutionalism, Conferences, Equal Protection, Race | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 10, 2009

Is an Individual Health Insurance Mandate Constitutional?

Dean Erwin Chemerinsky (Irvine) and David B. Rivkin (Baker & Hostetler) are debating the constitutionality of an individual health insurance mandate as part of the federal healthcare overhaul in the Federalist Society Online Debate Series.  The issue--whether Congress has authority to require individuals to purchase health insurance--has gotten some attention since Rivkin and Lee Casey penned a Washington Post op-ed arguing that Congress lacked authority under the Commerce Clause.  (I critiqued their argument here.)

Here's a flavor:

Chemerinsky:  There is no constitutional problem with Congress requiring that individuals purchase health care or pay a penalty. . . . 

Over many cases, the Supreme Court has held that Congress can regulate economic activities that taken cumulatively across the country have a substantial effect on interstate commerce.  Purchasing health insurance is an economic transaction.  Taken cumulatively those who do this, or who don't do it, have a substantial effect on interstate commerce.

RivkinWickard v. Filburn and Gonzales v. Raich do not support [Chemerinsky's] position.  In both of these cases, Congress sought to regulate individuals engaged in traditional agricultural/economic activities, growing wheat and marijuana.  The fact that they did so for personal consumption did not detract from the underlying economic nature of these activities. . . .

Professor Chemerinsky also overlooks the existence of two major cases--United States v. Lopez and United States v. Morrison--in which the Supreme Court, in 5 to 4 decisions, has specifically rejected the notion that Congress can regulate non-commercial behavior merely because, arguably, such behavior can have an impact on Commerce.  The Court's overarching reason for doing so was its compellingly articulated belief that the Commerce Clause is a limited grant of power and one that cannot be infinitely capacious.  This reasoning is unassailable.

Indeed, the vertical separation of powers, under which the federal government possesses limited and enumerated powers, while the States wield general police powers, is the key part of our constitutional architecture. . . .

Professor Chemerinsky's vision of a Commerce Clause on steroids would fundamentally warp our constitutional architecture.  Because every single decision by individual Americans, be it buying health insurance, cars, health club memberships or any other good or service, has some impact on the economy, it could be subject to regulation by Congress.

There's much more; check it out.


November 10, 2009 in Commerce Clause, Congressional Authority, Federalism, News | Permalink | Comments (0) | TrackBack (0)

Monday, November 9, 2009

A Constitutional Play at the AALS Annual Meeting

Actor, playwright, and Con Law Prof Paul Baier (LSU) has organized a preview production of his new play, "Father Chief Justice": Edward Douglass White and the Constitution during the AALS Annual Meeting in January.  Con Law Profs attending the Annual Meeting are invited to attend this exciting event.  Here's the announcement:

The Supreme Court of Louisiana Historical Society, the Louisiana Bar Foundation, and Aspen Publishers invite constitutional law professors who will attend the 2010 AALS Annual Meeting in New Orleans to a special preview production of “Father Chief Justice”: Edward Douglass White and the Constitution, a play by Paul R. Baier, of LSU Law Center, on Wednesday, January 6, from 4:00 to 6:00 p.m., in the chamber of the historic and newly restored Louisiana Supreme Court, 400 Royal Street, French Quarter, reception hosted by Aspen Publishers to follow.  Seating is limited and on a first requested, first invited basis.  RSVP to Steve Errick.  Read a sample of the play, Act III, “At Home,” set in Justice Holmes’s living room, here.


November 9, 2009 in Conferences, News | Permalink | Comments (0) | TrackBack (0)