Thursday, March 3, 2011
Judge Vinson (N.D. Fla.) on Thursday stayed his ruling that the Patient Protection and Affordable Health Care Act was unconstitutional. (Recall that Judge Vinson ruled in January that the individual health insurance mandate exceeded congressional authority and was unseverable from the rest of the Act; therefore, he ruled, the whole thing was unconstitutional. But he stopped short of issuing an injunction, instead assuming that the government would treat his declaratory ruling as an injunction.)
Yesterday's ruling in Florida v. Department of Health and Human Services was highly critical of the government for claiming it misunderstood the earlier "clear" ruling and for filing a "motion to clarify," not a motion to stay. Judge Vinson wrote:
So to "clarify" my order and judgment: The individual mandate was declared unconstitutional. Because that "essential" provision was unseverable from the rest of the Act, the entire legislation was void. This declaratory judgment was expected to be treated as the "practical" and "functional equivalent of an injunction" with respect to the parties to the litigation. This expectation was based on the "long-standing presumption" that the defendants themselves identified and agreed to be bound by, which provides that a declaratory judgment against federal officials is a de facto injunction. To the extent that the defendants were unable (or believed that they were unable) to comply, it was expected that they would immediately seek a stay of the ruling, which is the usual and standard procedure. It was not expected that they would effectively ignore the order and declaratory judgment for two and one-half weeks, continue to implement the Act, and only then file a belated motion to "clarify."
Op. at 14. Judge Vinson treated the government's motion as a motion to stay and granted it, on the condition that the government appeal within 7 calendar days and seeking an expedited appeal.
Judge Vinson recognized that his original position would have put some plaintiff-states in an unusual position. For example, the State of Michigan, as a plaintiff in the case, would have been subject to his original ruling, and the federal government would have been prevented from implementing the Act there. But another federal district court in Michigan ruled the Act constitutional. In other plaintiff-states, state attorneys general disagreed with state governors. Yet other plaintiff-states declined to stop implementation pending appeal.
Harvard Civil Rights - Civil Liberties Journal has held an online forum on Professor Libby Adler’s piece (available on the forum) entitled “Gay Rights and Lefts: Rights Critique and Distributive Analysis for Real Law Reform."
Adler, author of The Gay Agenda, here argues for a "critical approach to law reform agenda setting," with a methodology that
rests on a distinction between reconstruction and decisionism. Decisionism, according to my usage, consists of making difficult choices about which law reform initiatives to undertake based on broadly informed distributional hypotheses and cost-benefit calculations and then acting on the best information one can get with the best judgment one can muster, always prepared to bear the costs of one’s choices. Each law reform achievement, should it materialize, rather than being a step along a path in the direction of a lodestar such as formal equality, will—one hopes—effectuate a positive distributive impact for marginalized persons while imposing bearable costs. As a theoretic matter, the achievement is likely to be generalizable only to a limited extent, if at all. In other words, it will not necessarily further any overarching theoretic objective
Twelve invited commentators respond to Libby Adler's advocation of “decisionism" including Angela Harris, Art Leonard, Aziza Ahmad, Francisco Valdes, Katherine Franke, Nancy Polikoff, Darren Rosenblum, Sarah Valentine, and Anthony Varona.
Adler's piece and the comments demonstrate that the problem of "rights" in constitutional law remain a persistent issue, as well as the problems of "equality" and "identity."
This forum could be an excellent basis for discussion in a constitutional law seminar or a jurisprudence class.
A "live" Colloquium will be held on March 9, 2011 at 5-7p.m. at Harvard Law School in Austin North.
Wednesday, March 2, 2011
The Supreme Court ruled today in Snyder v. Phelps that the First Amendment protected Reverend Fred Phelps's hateful and harmful speech at the funeral of Marine Lance Corporal Matthew Snyder against state tort claims of intentional infliction of emotional distress and intrusion upon seclusion. Chief Justice Roberts wrote for the eight-member majority; Justice Breyer wrote a concurrence; Justice Alito wrote the lone dissent. We posted on the oral argument here, with a link to background on the case.
The case involved state tort judgments in favor of Snyder's father against Phelps after Phelps and members of his church appeared at Snyder's Catholic Church funeral with signs reading, "Thank God for Dead Soldiers," "Fags Doom Nations," "America is Doomed," "Priests Rape Boys," and "You're Going to Hell," among other similar messages. The District Court reduced the damage awards, but the Fourth Circuit ruled that they violated the First Amendment Speech Clause. The Supreme Court affirmed.
Chief Justice Roberts wrote for the eight-member majority that Phelps's speech was on matters of public import--"the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy," op. at 8--and was therefore entitled to special protection under the First Amendment. Op. at 6. The context--i.e., the funeral--didn't change this, because here Phelps's signs were on public land next to a public street (and not in a private or non-public forum). And the fact that Phelps's speech included both personal attacks (i.e., speech on matters of private concern, subject to lesser First Amendment protection) and speech on public matters did not transform Phelps's public-oriented speech into a contrived shield to protect his otherwise unprotected personal attacks: Phelps had long been picketing with similar signs long before Snyder's funeral, and there was no indication that Phelps was using his statements on public matters to shield his personal attacks.
The Court also held that Phelps's speech was protected against Snyder's intrusion upon seclusion damage award. The Court ruled that Snyder was not a captive audience, and Phelps and his fellow protesters stayed away from the service. "Snyder could see no more than the tops of the signs when driving to the funeral. And there is no indication that the picketing in any way interfered with the funeral service itself." Op. at 14.
Chief Justice Roberts emphasized the narrowness of the ruling based on the facts and suggested that states could enact and enforce reasonable content-neutral time, place, and manner restrictions on speech at funerals. (He noted that 43 states and the federal government do just that.) Justice Breyer underscored the narrowness point in concurrence, with this illustration:
Moreover, suppose that A were physically to assault B, knowing that the assault (being newsworthy) would provide A with an opportunity to transmit to the public his views on a matter of public concern. The constitutionally protected nature of the end would not shield A's use of unlawful, unprotected means. And in some circumstances the use of certain words as means would be similarly unprotected.
Breyer Concurrence, at 1.
Justice Alito in dissent emphasized the private nature of Phelps's attacks on Snyder and argued that Phelps's other, public-oriented statements couldn't shield those private attacks from state tort damage awards based upon the private attacks.
Tuesday, March 1, 2011
The DOJ's decision not to defend the constitutionality of DOMA, but to continue to enforce DOMA, is being illustrated in a few examples, such as that of Karen Golinski, the lawyer who works for the Ninth Circuit Court of Appeals as the ABA Journal noted. An excellent overview by Aziz Huq over at Slate compares Golinski's situation to that of a few others who the DOJ decision might assist.
While the administration's DOMA shift is unusual, it is not rare. It has happened more than a dozen times since 2004 and many more in the past 60 years, including in some very important cases.
- During the Eisenhower, Kennedy and Truman administrations, the presidents, in one form or another, refused to defend separate-but-equal facilities in schools and hospitals.
- The Ford Justice Department refused to defend the post-Watergate campaign finance law, much of which was subsequently upheld by the Supreme Court.
- The Reagan administration refused to defend the independent counsel law, a law subsequently upheld by the Supreme Court by a 7-to-1 vote.
- It also refused to defend the one-house legislative veto of many executive actions; in that case, the administration was more successful, winning 7-2 in the Supreme Court.
- The Clinton administration refused to defend a federal law mandating the dismissal of military personnel who were HIV-positive.
- The George W. Bush administration refused to defend a federal law that denied mass-transit funds to any transportation system that displayed ads advocating the legalization of marijuana.
- And in the George H.W. Bush administration, the Justice Department refused to defend a federal law providing affirmative action in the awarding of broadcasting licenses — a law subsequently upheld by the Supreme Court by a narrow 5-4 vote. Solicitor General Kenneth Starr was recused in the case, so the lead counsel for the government in the case was Starr's deputy, a fellow by the name of John Roberts, now the chief justice of the United States.
Listen to broadcast here: 20110301_me_17
Article 21, Protection of life and personal liberty, provides:
No person shall be deprived of his life or personal liberty except according to procedure established by law.
The Court described Article 21 as the "heart and soul" of fundamental rights and "the most important feature of our Constitution." But the Court also cited Article 22(1), Protection against arrest and detention in certain cases; U.S. Supreme Court cases Powell v. Alabama, Gideon v. Wainwright, and Brewer v. Williams; its own precedent; and a treatise.
The Court even drew on its own brand of originalism:
The Founding Fathers of our Constitution were themselves freedom fighters who had seen civil liberties of our people trampled under foreign rule, and who had themselves been incarcerated for long periods under the formula Na vakeel, na daleel, na appeal (No lawyer, no hearing, no appeal). Many of them were lawyers by professor, and knew the importance of counsel, particularly in criminal cases. It was for this reason that they provided for assistance by counsel under Article 22(1), and that provision must be given the widest construction to effectuate the intention of the Founding Fathers.
The Court extended the right to appeals, even though the case involved only the right to counsel at trial. In the U.S., it took a second case, Douglas v. California, to extend the right to counsel to appeals. Douglas and Gideon came down the same day, March 18, 1963, but Douglas was announced from the bench first. As Anthony Lewis wrote in Gideon's Trumpet:
A fourth state criminal case came from California, and Justice Douglas for a six-three majority said poor prisoners were entitled to free counsel for their appeals. To any informed listener it was obvious that the same rule must apply at trials . . . . Those who had before them the printed opinions in the California case--page boys bring them around to a few newspaper reporters and the Solicitor General as they read--knew from the text that they were about to hear the Gideon case decided, because there was a reference to "Gideon v. Wainwright, decided today."
But unlike Gideon and Ali, which both sounded in process, Douglas sounded in equal protection. Citing and quoting Griffin v. Illinois, the Court in Douglas wrote:
In either case, the evil is the same: discrimination against the indigent. For there can be no equal justice where the kind of an appeal a man enjoys "depends on the amount of money he has."
March 1, 2011 in Comparative Constitutionalism, Criminal Procedure, Equal Protection, International, News, Opinion Analysis, Procedural Due Process, Sixth Amendment | Permalink | Comments (0) | TrackBack (0)
Monday, February 28, 2011
Here are a few that you might not want to miss.
Food Fight, March 1, 6.30 pm, organized by the law review at City University of New York School of Law, raising First Amendment issues such as "veggie libel laws" and campaign finance.
Rehabiliating Lochner: Defending Individual Rights against Progressive Reform, March 1 [and subsequent dates] sponsored by The Federalist Society. David Bernsetin will be speaking about his forthcoming book at various venues throughout the month.
Marlee Kline Lecture in Social Justice, March 3, 5.30 pm, organized by the Faculty of Law at University of British Columbia, Vancouver, Canada, delivered by Ruthann Robson.
Citizens United and Corporate Speech, March 4, 8.30 am, hosted by The John Marshall Law Review and Steven Schwinn at the John Marshall Law School in Chicago, featuring a keynote by Thomas E. Mann of the Brookings Institute and panelists such as Geoffrey Stone, Atiba Ellis, and Monica Youn, director of the Brennan Center for Justice at New York University School of Law.
Writing a Brandeis Biography, March 7, 3pm, at the Oklahoma University College of Law, by Melvin Urofsky, author of notable biography of Justice Louis Brandeis. Urlovsky will also speak at a Faculty Colloquim at noon on "“Dissent As Form of Constitutional Dialogue."
Justice Clarence Thomas: 20 Years, March 11, 9.30am, at the Detroit Athletic Club, hosted by the University of Detroit Mercy Law Review. The morning panel is devoted to individual liberties and the afternoon panel focuses on governmental powers.
Moral Imagination in Judging, March 11, noon, at Washburn University School of Law, by Susan Bandes (pictured right) delivering the annual Foulstein Siefkin Lecture, organized by the Washburn Law Journal.
Boundaries and Enemies, 2011 Conference of The Association for the Study of Law, Culture and the Humanities, March 11 - 12, at University of Nevada, Las Vegas – William S. Boyd School of Law, organized by the association. Two packed days of panels and events.
Official Wrongdoing and the Civil Liability of the Federal Government and Officers, March 18, 9am, organized by the law journal at the University of St. Thomas School of Law, Minneapolis. The afternoon panel is entitled "Constitutional Claims: Bivens Suits."
Perspectives on Prerogative, March 24-26, The LeFrak Forum and the Symposium on Science, Reason, & Modern Democracy, Department of Political Science, Michigan State University, will "examine an especially troubling form of executive power: "prerogative" or "extra-legal" or "extra-constitutional" power."
Other events for which there is some information include two at Chapman University School of Law: Randy Barnett on March 8 discussing the constitutionality of the Patient Protection and Affordable Care Act, and Eugene Volokh on March 16 on "The Mechanisms of the Slippery Slope," and at Loyola Law School- New Orleans, on March 11 at noon, Calvin Johnson and Steven Willis on the constitutionality of the Patient Protection and Affordable Care Act, moderated by Cynthia Lepow.
and in April .......
Constitutional Law Symposium: Debating the Living Constitution, April 2, 8.30 am - 12.30 pm, organized by the Center for Constitutional Law at Drake University College of Law, Iowa, featuring speakers such as Rebecca Brown of USC School of Law.
Sunday, February 27, 2011
Professor Tim O'Neill (John Marshall, Chicago) recently posted on SSRN his eclectic and highly engaging article Constitutional Argument as Jeremiad--an argument about the structure of constitutional rhetoric. O'Neill treats us to more than familiar legal and philosophical fare; instead, he roots his thesis in American jeremiad--a form of rhetoric that he traces from Herman Melville's once maligned and now mostly ignored Pierre through Paul Harding's 2010 Pulitzer Prize-winning novel Tinkers. This compact piece--with its one part law-and-literature, one part intellectual history, and one part constitutional theory--is well worth a read, both for the argument on constitutional rhetoric, and for the sheer fun.
"Jeremiad," derived from the biblical prophet Jeremiah, means a list of one's own troubles or complaints--"a prolonged lamentation or complaint," according to Webster's. O'Neill traces its travels and evolution from Europe to America and describes the American jeremiad as a three-part process:
1) an invocation of a standard to be lived up to; 2) a demonstration of how the current behavior of the people has fallen short of that standard; and 3) a presentation of a vision of the future when the people . . . return to that standard.
O'Neill, drawing on a distinction from Tinkers and Pierre between a chronometer (a time-piece always fixed at Greenwich mean time, representing unchanging, divine truth) and a horologist (a clock-maker, who sets clocks locally, representing relative time), offers Jack Balkin as an example of the jeremiad:
Balkin's "original meaning" theory treats a constituitonal provision such as the Cruel and Unusual Punishment Clause as a chronometer. It treats the clause as a standard that exists outside of time. It functions as a challenge to our narrow, local, horological sense of justice. And the form of Balkin's argument folows the jeremiad: first, the invocation of the aspiratioinal "heavenly chronometer" in the form of a constitutional provision challenging us to live up to an ideal; second, a description of how we have currently strayed from that ideal; third, a demonstration that by correcting this wrong we will merely be returning to the chronometric standard we have always embraced.
O'Neill gives another example, Frederick Douglass:
Frederick Douglass saw the possibilities inherent in the Constitution. He viewed the constitutional guarantee of freedom not as a horological actually describing reality in antebellum America, but rather as a chronometric ideal. In a Fourth of July speech in Rochester, New York, in 1852, Douglass supported this view by making an audacious claim: he said the Constitution "interpreted as it ought to be interpreted . . . is a glorious liberty document." . . .
First, Douglass recognizes that the high-minded ideals in the Constitution and Declaration were not horologicals describing the nation that existed in the Eighteenth Century; rather they are chronometric values to which the country pledges to forever aspire. Second, his description of mid-Nineteenth Century America shows the woeful state the country was in because of slavery. Third, he urges that the solution to the current problems lies in a return to the Eighteenth Century: not in the horological sense . . . but in the chronometric sense to the aspirational values upon which the country was founded.
But according to O'Neill these values--this "concept" of justice, borrowing from Dworkin, can only be approached and never achieved: "[T]he American jeremiad provides a never-ending process: it is 'the official ritual form of continuing revolution.'" (Quoting Bercovitch's The American Jeremiad).
With the new "austerity" budgets as well as efforts to ban collective bargaining by government employees, local governments are considering their options. In Ohio, The Local Government Fund Coalition launched this week. The state legislatures of Wyoming, Nevada, South Dakota, and Minnesota are among those that are reportedly considering the issue.
In West Virginia, a resolution calling for a constitutional amendment to address the ability of a local governments to raise funds was introduced during the Regular Session of the West Virginia State Legislature this term. Born of an idea researched and advanced by Matthew Delligatti, the former mayor of Fairmont, West Virginia, and current third-year law student at WVU College of Law, House Joint Resolution 9 attempts to present the voters with a constitutional amendment designated “The Silenced Majority Local Levy and Bond Amendment.”
The resolution aims to amend the provisions of Article X of the West Virginia Constitution, which requires a 60% supermajority voter approval for the passage of municipal and county levies and bonds. In 1982, voters amended this restriction by ratifying an amendment requiring only a simple majority for school levies and bonds. However, the 60% threshold remains for all other local levies and bonds and continues to plague municipal and county leaders’ plans to raise revenue, including for recreational levies. While the Resolution has not yet been approved by both houses of the state legislature, many observers expect the measure to pass and be sent on to the voters for ratification. In fact, the State Senate unanimously passed the Resolution on Friday.
As the "Silenced Majority Amendment" makes clear, local government reform must conform to restrictions in state constitutions. Professor Robert Bastress at the WVU College of Law, is not only knowledgeable on the constitutionality of West Virginia statehood and the constitutionality of West Virginia's "Acting Governor" controversies, but also the challenge of local government reform under West Virginia's state constitution. In “Constitutional Considerations for Local Government Reform in West Virginia,” 108 W. Va. L. Rev. 125 (2005), Bastress surveys the history of local government reform and constitutional revision in West Virginia and offers considerations for legislators concerned with the constitutionality of statutory reforms of local government. In a follow-up article, Bastress addressed the principles underlying the need for vibrant, autonomous local government in “Localism and the West Virginia Constitution,” 109 W. Va. L. Rev. 983 (2007). In both pieces, Bastress lays out a strong case for local government reform.
He writes in Constitutional Considerations: “Moving toward consolidated governments and cooperative arrangements provides great opportunities to share resources, achieve efficiencies, and promote equity. Any such effort, however, should include mechanisms to preserve the advantages of small government: local self-determination, diversity, governmental responsiveness to constituent concerns, citizen participation, and sense of community.” Id. at 169. Bastress then argues in Localism that the West Virginia Constitution “provides considerably more local government discretion” than has been previously understood. Id. at 684. Ultimately, Bastress links localism to democracy:
By leaving important decisions to local governments, a state promotes self-determination, the rationale and foundation of democracy. The smaller the governmental unit, the more input and influence an individual citizen can have on her government. Then, too, the more discretion that local leaders have, the better they can address problems in a manner that is most suitable to the community’s particular needs. Local people know local conditions the best and can most effectively address them, if they have sufficient regulatory tools and the resources to do so. . . .
With enhanced local power also comes enhanced citizen participation in local government. Citizens participate in government when that participation can be meaningful. The smaller the governmental unit, the more likely a citizen’s participation will be meaningful. And the more autonomy that unit has, the more likely the participation will prove to be useful. Active citizen participation in government improves the public debate, promotes better decision-making, advances the lives of the participants, and makes for a better polity and a better democracy.
Id. at 687 - 688. Bastress' arguments extend well beyond West Virginia.
with J. Zak Ritchie
(image: Monongahela River at Fairmont, WV, by Tim Kiser via)