Saturday, February 21, 2009
Mark Kende, Con Law Prof at Drake University, has a forthcoming book, Constitutional Rights in Two Worlds: South Africa and the United States, due next month, from Cambridge University Press.
Kende has posted the Introduction to the book on ssrn, and explains the book thusly:
This book examines a crucial aspect of the South African transition: the Constitutional Court’s role in social change. The Court has enforced socioeconomic rights, supported gay marriage,and struck down the death penalty. How did the Court address these significant issues without much domestic human rights case law on which to draw?
He gives his reasons for comparing the US and South African constitutional frameworks as including the fact that both constitutions were the product of revolutions and both high courts are foundational institutions. He notes the history of racism the two nations share as well as their present diversity, their common roots in British legal systems, and their original debates over the inclusion of rights in the Constitution. Yet he also does not shy away from the differences. The British legal system in South Africa was accompanied by the Dutch-Roman code, the racial minorities in South Africa are white, and the Constitution was framed by very different people in very different times in the two nations.
His Introduction serves as a quick rehearsal of the differences in the South African and US Constitutions and their High Courts, handy for a those unfamiliar with the material, including students. But the Introduction also delves into what Kende names as one of the major themes of the book - - - the role of the judiciary in social change. In the South African context, he notes:
scholars like Dennis Davis, Alfred Cockrell, Cathy Albertyn, and others write that the Court should be bolder and avoid a hazy minimalist “rainbow jurisprudence.” This view is startling given the Court’s novel decisions on socioeconomic rights, gay marriage, and the death penalty. Of course, South African progressivism ranges from those with a more individualist sensibility to those with a more African communal approach. But most South African legal academics advocate greater judicial activism . . .
The Introduction promises an exploration of the South African Constitution Court's decisions on the death penalty, gender discrimination, "gay rights," racial discrimination, freedom of speech and religion, and perhaps most importantly socio-economic rights. With such an agenda, this book should be a stellar contribution to comparative constitutionalism.
Friday, February 20, 2009
The Center for Constitutional Rights in a press release today announced that Bill Quigley, Director of the Law Clinic and the Gillis Long Poverty Law Center at Loyola University New Orleans, is the new legal director of CCR:
The Center for Constitutional Rights (CCR) is thrilled to announce human rights lawyer Bill Quigley of New Orleans will begin as its next Legal Director in May. Bill has been an extraordinary public interest lawyer for over 30 years, and has served as counsel on issues including post-Katrina social justice, public housing, voting rights, the death penalty, living wage, civil liberties, educational reform, constitutional rights, human rights work in Haiti, and civil disobedience. Bill has been an essential mainstay to social justice work in New Orleans before and after Katrina.
William J. Jefferson, the former Louisiana Congressman indicted on 16 counts in his corruption case in the Eastern District of Virginia, asked the Supreme Court this week to reverse a Fourth Circuit decision refusing to dismiss his indictment because it was allegedly based on material that would violate the Speech and Debate Clause. I previously posted on the Fourth Circuit ruling (with a link to the ruling) here; Jefferson's cert. petition is here. Many thanks to Lyle Denniston at SCOTUSblog for posting this.
Jefferson argues that the Fourth Circuit was out of step with other circuits that have ruled on the question. He claims that the reasoning (even if not the holdings) in U.S. v. Rostenkowski (D.C. Cir. 1995) and U.S. v. Helstoski (3d Cir. 1980) supports his claim that his indictment based on material protected by the Speech and Debate Clause was invalid. (The Fourth Circuit ruled in footnote 8 that these cases held only that a pervasive violation of the Speech and Debate Clause might invalidate an indictment, but Jefferson made no such claim here.) Jefferson also claimed that Costello v. U.S. (1956) missed the mark, because it dealt with grand jury material that was hearsay, not material privileged under the Speech and Debate Clause. (The Fourth Circuit relied upon Costello to conclude that "a facially valid indictment is not subject to dismissal simply because the grand jury may have considered improper evidence, or because it was presented with information or evidence that may contravene a constitutional privilege.")
Thursday, February 19, 2009
The NYT reports today that Republicans are furious over Senator Judd Gregg's withdrawal as President Obama's pick for Commerce Secretary, because they believe it signals that the White House intends to "politicize" the 2010 census.
The concern in part relates to sampling, the statistical technique that extrapolates numbers based on actual door-to-door counts and knowledge of uncounted individuals, mostly the poor and racial and ethnic minorities (and mostly Democratic voters). But the Supreme Court ruled that sampling--at least as the basis for Congressional districting--violated the Census Act (Sec. 195) in the 1999 case Department of Commerce v. United States House. So the concern about "politicizing" the Census must be based on some other concern. But what?
More important: Why?
The Census Bureau is an office within the Department of Commerce; neither the Census Bureau nor the Department is "independent" (as evidenced by the Republicans' furor over Gregg's withdrawal). Any adherent to the unitary executive theory (like so many Republicans in the Bush II administration) should support, not oppose, White House control, in whatever form that comes.
Moreover, even if the Obama administration intends to take more direct control over the Census Bureau and the 2010 census, this moves seems far more modest an assertion of executive authority than, say, Reagan's executive orders--EO 12291 and EO 12498--to centralize agency rule-making processes through OMB and to direct the substance of that review. Republicans lauded those moves and even the more recent moves of the Bush II administration sometimes stretching and even abusing the unitary executive theory.
So where have all the unitary executives gone? With all the attention the theory received in the Bush administration, academic and otherwise, adherents and detractors alike should hope that it's more than just a passing political gambit so that we can debate it on its merits.
Wednesday, February 18, 2009
The Obama administration may be following the Bush administration's lead in several key and controversial policies in the war on terror, Charlie Savage reported in yesterday's NYT. Savage:
Within days of his inauguration, Mr. Obama thrilled civil liberties groups when he issued executive orders promising less secrecy, restricting CIA interrogators to Army Field Manual techniques, shuttering the agency's secret prisons, ordering the prison at Guantanamo Bay, Cuba, closed within a year and halting military commission trials.
But in more recent weeks, things have become murkier.
Here are the areas where the Obama administration's policies may resemble the Bush administration's policies:
State Secrets Claims. The Obama administration just last week shocked civil liberties groups and the Ninth Circuit in maintaining the Bush administration position that the state secrets privilege should prevent the entire case from going forward. The case, Mohamed v. Jeppesen Dataplan, Inc., involves an Ethiopian's claim against a Boeing subsidiary for its role in the Bush administration's extraordinary rendition program. The Obama administration's position prompted a group in both the Senate and House to introduce legislation limiting the use of the privilege in litigation. I posted on this here and here.
Indefinite Detention. AG Eric Holder and Solicitor General nominee Elena Kagan both indicated that they support indefinite detention without trial of someone suspected of helping finance Al Qaeda, even if captured outside an actual combat zone. In related and recent cases in the D.C. District, two judges separately expressed frustration with administration foot-dragging in defining "enemy combatant." I posted here.
Interrogation Techniques. Leon Panetta, nominee for CIA Director, said that he would ask for additional interrogation authority if approved techniques were not sufficient to get a detainee to divulge information about an imminent attack. In notable breaks from the Bush administration, however, Panetta said that waterboarding is torture, and that the President is subject to U.S. law banning torture.
Extraordinary Rendition. Panetta also said that the CIA might maintain its program of "extraordinary rendition." And, as stated above, the Obama administration seems willing to maintain Bush administration claims of state secrets in cases involving renditions.
The big difference--at least so far--in the Obama administration's approach is the apparent absence of categorical claims of sweeping and inherent executive power. For example, Panetta was careful to say that the President was subject to U.S. law, even if he might seek additional interrogation authority. This is a dramatic change from the claims of executive authority in the Bush administration.
The Obama administration has yet to weigh in on other key areas. As mentioned above, it is stalling in defining "enemy combatant" for cases pending in the D.C. District. And it's yet to opine on Rove's assertions of executive privilege in the face of Congressional subpoenas. (More on that here.) We'll keep you posted.
The D.C. Circuit ruled today that the lower court lacked authority to order 17 Chinese Muslims, the Uighurs, held at Guantanamo Bay into the United States. I most recently posted on the Uighurs here; the Center for Constitutional Rights collects all the documents here. (I link to the documents through the CCR web-site below. Many thanks to CCR.)
A bit of history: Judge Urbina (D.D.C.) last fall granted the Uighurs' habeas petition, ruled that the administration could no longer hold them as enemy combatants, and ordered their release into the U.S. (Why the U.S.? Because no other country would take them, and it seemed certain that China, their homeland, would torture or kill them.)
The Bush administration sought and won a stay of Judge Urbina's order and appealed late last year. The administration argued on separation-of-powers grounds that Judge Urbina lacked authority to order the Uighurs into the U.S., even though the administration no longer classified the Uighurs as enemy combatants. (The administration considered them dangerous--and thus didn't want them in the U.S.--only because it feared that they may be angry that the U.S. wrongly held them for so long. Ugh.) The administration also made some quite vague claims in its brief (pp. 27-29) and at oral argument (pp. 11-12) that the Uighurs had previously engaged in "terrorist activities" and therefore would not qualify for admission under immigration laws. (And anyway they never applied.)
The Bush administration's positions left the Uighurs in limbo--they were not enemy combatants, but they had no place to go--and handed the Obama administration a significant headache.
The D.C. Circuit just made it worse.
The three-judge panel--Judges Henderson and Randolph in the majority, and Judge Rogers in concurrence--ruled that Judge Urbina lacked authority to order the Uighurs released into the U.S. The court ruled that decisions about who to admit belong to the political branches, and the courts lack authority to override. The court analogized the case to Shaughnessy v. Mezei (1953), in which the Court ruled that an alien held at Ellis Island and denied entry under U.S. immigration laws (and with no other place to go) had not been deprived of any constitutional rights.
Judge Rogers in concurrence wrote that the Uighurs must be held under U.S. immigration law--because the administration gave up the claim that they were enemy combatants, and there was no other reason to hold them--and that Judge Urbina's ruling was premature in that he failed to determine whether immigration laws provided a valid basis for detention.
The ruling leaves the Uighurs in a no-man's land: They are no longer held as enemy combatants, and they have not applied--and therefore are not considered--for immigration. (Even if they had applied, the Bush administration asserted--and the court seemed to accept--that they would not qualify, because they had previously engaged in "terrorist activities.") But yet they have no place to go.
While the circuit court panel seemed only to add to the problem, it also set out a roadmap for solving it. The Obama administration should drop the appeal and review these cases now to determine on an individual basis whether each Uighur had, in fact, engaged in "terrorist activities." For those that have not--perhaps the majority or even all of them, given the apparent lack of evidence--it should process them through the immigration system and admit them to the U.S.; for others, it should find a home for them. Quickly.
Tuesday, February 17, 2009
Senators Durbin (D-Ill.) and Whitehouse (D-R.I.) called for an update and quick end to the Justice Department's Office of Professional Responsibility investigation into whether lawyers who authored certain OLC legal memos for the Bush administration followed ethical standards. WaPo reports here.
The authors are John Yoo (Boalt Hall) and Judge Jay Bybee (9th Cir.); the memos include the infamous 2002 torture memo. Recall that that memo, authored by Yoo and signed by Bybee, defined torture in remarkably narrow terms and articulated unprecedented unilateral and complete Commander-in-Chief authority. It concluded that enforcement of the statutory torture ban would constitute an unconstitutional infringement upon the Commander-in-Chief powers. Harold Koh's testimony before the Senate Judiciary Committee on the nomination of Alberto Gonzales to be AG gives a sense why the OPR is looking into it. The OLC later withdrew the torture memo in this December 2004 memo, but it never specifically disavowed the vast claims of executive authority in it.
Also at issue: the March 2003 memo concluding that interrogators acting pursuant to Presidential order but also violating statutory bans on torture would be immune from prosecution.
According to reports, the investigation may likely lead at most to referral to state disciplinary authorities.
Adam Liptak reported in the NYT Tuesday that Chief Justice Roberts attributed the "more solid grounds of legal arguments" to a Court full of former federal appeals court judges in a speech at the University of Arizona College of Law. The move toward a Court of such judges, according to Roberts, has resulted in "a more legal perspective and less of a policy perspective." The speech is available at the school's web-site here.
UC Davis Law Review will host what looks like an excellent Symposium on Justice Stevens on March 6. Here's the description:
As part of the 40th anniversary of the dedication of Martin Luther King, Jr., Hall, home to the University of California, Davis, School of Law, the 2009 UC Davis Law Review Symposium will examine the career of U.S. Supreme Court Justice John Paul Stevens. Since his appointment by President Gerald Ford in 1975, Justice Stevens has crafted a rich jurisprudence on matters involving core values of liberty, equality, and security. Legal experts from academia, journalism, and the practice, many of whom served as law clerks to the Justice, will analyze his work on topics including terrorism, criminal justice, abortion, affirmative action, and environmental protection.
The symposium opens with remarks from Dean Kevin Johnson and a videotaped message from Justice Stevens. The panels--titled "Liberty," "Equality," and "Security"--are impressive. Link to the full schedule, see the Symposium brochure, or see below.
Thanks to Professor Diane Marie Amann (UC Davis Law) for the tip.
8:30 - 9:00 a.m.
Continental Breakfast (Mabie Law Library foyer)
9:00 - 9:30 a.m.
Kevin R. Johnson
Dean, University of California, Davis, School of Law
John Paul Stevens
U.S. Supreme Court Justice (videotaped message)
9:30 - 11:00 a.m.
David F. Levi (moderator)
Dean, Duke University School of Law
Former U.S. District Judge, Eastern District of California
Former U.S. Attorney, Eastern District of California
Former Adjunct Professor of Law, University of California, Davis, School of Law
Jeffrey L. Fisher
Associate Professor of Law, Stanford Law School
Co-director, Supreme Court Litigation Clinic, Stanford Law School
Associate Professor of Law, Columbia Law School
Knight Distinguished Journalist in Residence and Joseph M. Goldstein Senior Fellow in Law, Yale Law School
Former Supreme Court correspondent, New York Times
Clinical Professor of Law, Director, Death Penalty Clinic, University of California, Berkeley, School of Law
11:00 - 11:15 a.m.
11:15 a.m. - 12:45 p.m.
Cruz Reynoso (moderator)
Boochever and Bird Professor of Law Emeritus, University of California, Davis, School of Law
Former Justice, California Supreme Court
Former Vice Chair, U.S. Commission on Civil Rights
Diane Marie Amann
Professor of Law and Director, California International Law Center at King Hall, University of California, Davis, School of Law
Teresa Wynn Roseborough
Chief Litigation Counsel, MetLife, New York
Former U.S. Deputy Assistant Attorney General
Associate Professor of Law, Seattle University School of Law
12:45 - 2:00 p.m.
Lunch (food provided)
2:00 - 3:30 p.m.
Kenneth Manaster (moderator)
Professor of Law, Santa Clara University School of Law
Author, Illinois Justice: The Scandal of 1969 and the Rise of John Paul Stevens (2001)
Daniel A. Farber
Sho Sato Professor of Law and Director, Environmental Law Program, University of California, Berkeley, School of Law
Eugene R. Fidell
President, National Institute of Military Justice
Florence Rogatz Visiting Lecturer in Law, Yale Law School
Deborah N. Pearlstein
Associate Research Scholar, Woodrow Wilson School for Public & International Affairs, Princeton University
Former Director, Law & Security Program, Human Rights First
Assistant Professor of Law, University of Washington School of Law
Here are two stories you may wish to follow:
1. Findlaw has a great piece on the Religious Freedom Restoration Act; and
2. In an update to a previous posting, Harry Reid is "cautiously optimistic" that a bill will pass granting the District of Columbia full voting rights in the House. We'll keep you posted!
Monday, February 16, 2009
Wordle, http://www.wordle.net/, is a fun site which will "translate" a block of text into a graphic representation. The most frequently appearing words appear the largest. One can choose from different designs and color schemes, but the word frequency is the real point of interest.
It's somewhat similar to the "word train" the NYT website recently premiered. As described by New York magazine:
On the day Barack Obama was elected, a strange new feature appeared on the website of the New York Times. Called the Word Train, it asked a simple question: What one word describes your current state of mind? Readers could enter an adjective or select from a menu of options. They could specify whether they supported McCain or Obama. Below, the results appeared in six rows of adjectives, scrolling left to right, coded red or blue, descending in size of font. The larger the word, the more people felt that way.
All day long, the answers flowed by, a river of emotion—anonymous, uncheckable, hypnotic. You could click from Obama to McCain and watch the letters shift gradually from blue to red, the mood changing from giddy, energized, proud, and overwhelmed to horrified, ambivalent, disgusted, and numb.
It was a kind of poll. It was a kind of art piece. It was a kind of journalism, but what kind?
Wordle brings this "journalism" or "art" to the masses.
It's easy to access and can be fun diversion for your class syllabus, not to mention your most recent draft of an article.
This is a "wordle" of the United States Constitution, available here.
Happy Presidents' Day!
CALL FOR ROUNDTABLE PARTICIPANTS
CRN No. 9 (Gender and Legal Education)
LAW AND SOCIETY ASSOCIATION ANNUAL MEETING
May 28-31, 2009 Denver, Colorado
DEADLINE FOR PROPOSAL: FEBRUARY 25, 2009
Roundtable: Teaching Gender Inequality in Law Schools
Conversations about gender and sexuality in core law school courses are often focused on equality—constitutional doctrines of formal equality meted out by high courts – rather than underlying causes, effects and forms of inequality. Law students are rarely asked to consider if inequality itself is undesirable, and whether law has a role in perpetuating, creating, resisting or eliminating it. While these concepts are foundational in most sociology or anthropology programs, they are not central to the law school curriculum, especially in the first year.
While there is no doubt that court cases eliminating legal barriers to gender and sexual equality are important for all law students to learn, the conversation is impoverished if they are the only vehicle used to examine gender, sexuality and other intersecting forms of inequality in a typical course of law school study. Teachers of today’s generation of students also must grapple with the fact that gender inequality looks different to students than it did even fifteen years ago. The generation of women entering law school—the beneficiaries of equal opportunity to education under Title IX and employment under Title VII – are members of a community in which young women have excelled. Many of them do not perceive gendered inequality operating in their lives. This creates a displacement where students who are interested in women’s rights are more comfortable examining the inequality of women in exotic foreign locales (such as inequalities suffered by Muslim women, victims of sex trafficking or of mass sexual violence). At the same time, however, they are slow to recognize the structural nature of gendered inequalities that persist closer to home. They may be quick to dismiss their own anxieties as problems that can be overcome by making perfect individual choices. Students interested in eliminating the inequality of the LGBTQ community might perceive that inequality more starkly, but still often lack the vocabulary to discuss questions of law, power and sexuality outside of the bounds of formal equality.
In the climate of change created by recent critiques of legal education, roundtable participants will take up the question of how social scientists and law teachers can become allies in the creation of materials, techniques and strategies to teach law students about the gender, sexual, and intersectional inequalities in the U.S. legal system and culture. Possible topics might include: innovations in legal pedagogy; strategies for exploring gender and sexual inequality in core law school courses (e.g., contracts, torts, criminal law); whether the training of lawyers should include an apprenticeship of identity and purpose that has at its core a commitment to reducing inequality; teaching techniques for reinvigorating courses on discrimination with more nuanced and sophisticated understandings of how structural inequalities play out in the lives of lawyers and their clients; exploring the role of experiential and clinical education in both fighting inequality and teaching students about its nature; incorporating questions of how law enables corporations and consumer culture to create and perpetuate gender inequality into law school teaching; and addressing inequality created or sustained by culture and religion in U.S. domestic as well as international settings.
If you would like to join the roundtable, please email Daniela Kraiem, CRN No. 9 Organizer and Associate Director, Women and the Law Program, American University Washington College of Law at firstname.lastname@example.org with a brief paragraph describing your interest in participating in the roundtable by February 25, 2009.
Sunday, February 15, 2009
Professor Stephen Griffin (Tulane) in his latest and characteristically thoughtful piece The Bush Presidency and Theories of Constitutional Change, just posted on ssrn, takes on this provocative question:
Can existing theories of constitutional change account for the Bush presidency?
Griffin argues that one can: his own. And he makes a very persuasive case. Agree or disagree with his ultimate conclusion, though, this piece is well worth your time. I highly recommend it.
As Griffin points out, the Bush presidency presents a hard case for constitutional change theories: The immediate precipitating events--the 9/11 attacks--were extraordinary; the administration's claims of inherent executive authority were unprecedented; and the constitutional decisionmaking went on largely outside of the public's view.
In the wake of the attacks and as part of the war on terror, the administration authorized indefinite detention without due process, torture, and NSA surveillance outside of the FISA framework, to name only "the most salient departures."
So how to explain this?
Griffin argues that the leading theories of constitutional change--Llewellyn's unwritten "working constitution"; Ackerman's "key constitutional transformations"; Balkin and Levinson's "high politics"; and Whittington's "constitutional construction"--are ill-suited for the task:
Lllewellyn's theory does not allow a role for the rules contained in the text of the Constitution and the special status of the institutions founded on those rules. Theories based on the tidal force of social movements cannot help in understanding the latent potential institutional structures unleashed by seemingly world-historical events. And theories that build from actions in the public arena are not useful in probing a relentless struggle for political advantage that occurs behind closed doors.
What the Bush constitutional changes need is an institutional theory of constitutional change--Griffin's theory--based upon "the historical development and interplay of state institutions."
The Bush presidency well illustrates that in a constitutional order where formal change is difficult, changes in institutional structure can be an effective substitute. The Bush administration adroitly used institutional change as a pathway to changing the constitutional order.
Griffin offers three examples. First, Bush's claim in the immediate wake of the 9/11 attacks that "we're at war" came with significant constitutional implications: It meant that the President acted with all his substantial powers as Commander in Chief in responding to a surprise attack. Griffin:
By describing 9/11 as a war, the president short-circuited any meaningful debate over the nature of the attacks and the appropriate response. But his constitutional claim was arguably more significant. While the president participated in the process that led to the September 2001 [AUMF], he reserved the argument that he did not need it to prosecute the war. In two subsequent letters to Congress, the president ignored the AUMF and apparently invoked his traditionally recognized power to respond to sudden attacks . . . .
Next, the administration based its initiatives on "secret constitutional rationales." Thus it bypassed the ordinary system of interagency review, it dodged Congress, and it avoided public scrutiny and debate, at least until its initiatives were uncovered. The opacity allowed the administration to "blow through [laws it didn't like] in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operation."
Finally, the administration "operationalized" the Office of the Vice President, treating it as a cabinet-level agency with statutory authority, but one run right out of the White House. This meant that the Office of the Vice President "could intervene with respect to any policy without being subject to normal statutory or interagency checks." It also resulted in the "subordination of the OLC to the White House."
Griffin's institutional theory is a useful way--and quite possibly the most useful way--of explaining constitutional changes in the Bush administration. The piece is well worth reading for this argument alone.
But Griffin's article is perhaps more important for what it might spawn. This piece is, by its timing, restricted in its ability to tell the full story of constitutional change in the Bush administration. Indeed significant portions of the next chapter are playing out in the courts right now. And the Obama administration signaled early that it will roll-back or reevaluate many of the Bush administration constitutional claims and its anti-terrorism policies (though its latest decisions--see here and here--leave some doubt). Between the courts and the new administration's positions (and a Democratic Congress), it's not at all clear so soon after the Bush administration that its extraordinary constitutional claims will result in any enduring constitutional changes. As this develops, there's much more work to do. Griffin's piece gives us an important starting point.
I highly recommend this excellent article.