Friday, November 30, 2012
The Egyptian Constituent Assembly released its draft constitution early Friday. Here are a few resources:
- The Egypt Independent posted an English translation.
- The BBC has a useful side-by-side comparison of the proposed constitution and the earlier, suspended 1971 constitution.
- Human Rights Watch posted a human rights analysis of key provisions.
- The Wall Street Journal, the New York Times, the Lede blog at the NYT, the Washington Post, and AlJazeera all have reports on developments, including protests against the draft.
The Supreme Constitutional Court is scheduled to take up the legitimacy of the Constituent Assembly on Sunday, although the Court might punt on that question while other tribunals rule on the legality of President Morsi's decree shielding his own decisions and decisions of the Assembly from the judiciary. If Mosri's decree is unconstitutional, then the Court could take up the legitimacy of the Assembly. In the meantime, President Morsi vowed to put the draft to a vote.
The Sixth Circuit ruled in American Beverage Association v. Snyder that Michigan's requirement that returnable beverage containers bear a unique mark violated the Dormant Commerce Clause. The ruling strikes Michigan's requirement.
The ruling turns on the dormant Commerce Clause's "extraterritorial doctrine," which, according to one concurring judge on the panel, is "a relic of the old world with no useful role to play in the new[.]" If so, this case could offer the Supreme Court a good chance to clean up this corner of the dormant Commerce Clause.
The case involves Michigan's bottle-deposit law, which requires consumers to pay a ten-cent deposit on a beverage container (like a can or bottle). Containers sold in Michigan must bear a designation--"MI 10c"--in order to distinguish them from containers sold in other states. Consumers who return a container with the "MI 10c" designation get a ten-cent deposit back when they return the container. (Michigan is one of ten states with a bottle-deposit law.)
Some consumers discovered that they could return containers in Michigan that were purchased from states that have no deposit law (that is, non-"MI 10c" containers) and net ten cents on each return. This was especially easy with "reverse vending machines"--automated return machines that did not distinguish between Michigan containers and out-of-state containers.
The Michigan legislature responded by requiring beverage manufacturers to place a unique mark on Michigan returnable containers (in addition to the "MI 10c" mark) that would allow a reverse vending machine to determine whether the container was, in fact, a Michigan returnable container. Failure to comply could result in a penalty of up to six months' imprisonment or a $2,000 fine or both.
Manufacturers sued, arguing that the requirement amount to an unconstitutional restraint on interstate commerce in violation of the dormant Commerce Clause.
The Sixth Circuit agreed. It ruled that while the requirement did not discriminate against interstate commerce (on its face, in its purpose, or in its effect), it did "directly control commerce occurring wholly outside the boundaries of a State," and thus was extraterritorial under Healy v. Beer Inst. Inc. (1989). This doctrine renders extraterritorial regulation "virtually per se invalid under the dormant Commerce Clause." Op. at 13.
Judge Sutton concurred but wrote separately "to express skepticism about the extraterritoriality doctrine." Judge Sutton wrote that the doctrine may have outlived its usefulness.
In an 41 page opinion and order in Sevick v. Sandoval, United States District Judge Robert Jones has rejected an equal protection challenge to Nevada's statutory scheme disallowing same-sex marriage.
The judge relied upon Baker v. Nelson, 409 U.S. 810 (1972), in which the United States Supreme Court summarily dismissed an equal protection challenge to the Minnesota statutory marital scheme's exclusion of same-sex couples. While stating that the "present challenge is in the main a garden-variety equal protection challenge precluded by Baker," the judge was undoubtedly aware of Baker's problematic status (a case to be relegated to the dustbin of precedent, perhaps), and provided a full analysis, "so that the Court of Appeals need not remand for further proceedings should it rule that Baker does not control or does not control as broadly as the Court finds."
The judge's well-structured analysis begins with a discussion of the classification, considering the notion that the Nevada scheme makes no classification at all, as well as the notion that the scheme makes a gender classification, but settling for the widely accepted principle that the scheme makes a sexual orientation classification.
In determining the level of scrutiny to be applied, Judge Jones decides in favor of rational basis, noting his disagreement with the Second Circuit in Windsor involving DOMA. Supporting this conclusion, Judge Jones highlights the factor of political powerlessless and its relationship with the judicial role in a democracy. For example, Jones writes that "Any minority group can reasonably argue that its political power is less than it might be were the group either not a minority or more popular. That is simply an inherent aspect of democracy." Additionally, "Gross movements by the judiciary with respect to democratic processes can cause an awkward unbalancing of powers in a Madisonian constitutional democracy."
Moreover, Judge Jones rejects the heightened rational basis of Romer v. Evans and the Ninth Circuit precedent of Perry v. Brown, involving California's Proposition 8, because there is no animus in the Nevada scheme:
Because there has never been a right to same-sex marriage in Nevada, Romer and Perry are inapplicable here as to NRS section 122.020. That section of the NRS removed no preexisting right and effected no change whatsoever to the legal status of homosexuals when adopted by the Nevada Territorial Legislature in 1861. See Nev. Comp. Laws § 196 § 2, at 65 (1861–1873).
On this lowest standard of rational basis, the challenger must negate every conceivable basis - - - an exceedingly, if not impossible task, and Judge Jones not surprisingly finds that the challengers fail to meet their heavy burden. The "protection of the traditional basis for marriage," is a legitimate one for Judge Jones, and the exclusion of same-sex couples is rationally related to that interest. This is true even though Nevada has provided for a domestic partnership scheme for same-sex couples.
As the United States Supreme Court considers whether or not to decide the issue of same-sex marriage, either in the Proposition 8 posture of Perry v. Brown or one of the DOMA postures such as the Second Circuit case or First Circuit case - - - all of which invalidated bans on same-sex marriage - - - Judge Jones' opinion demonstrates that the constitutional issue of same-sex marriage remains a contested one, even in a state with otherwise permissive marital regulations.
[image "Little white chapel" in Las Vegas, Nevada, via]
As the news is filled with the expected decision from the United States Supreme Court on whether - - - and if so, in what constellation - - - to grant certiorari on the issue of same-sex marriage, including both Proposition 8 and DOMA, Lyle Denniston's excellent discussions at SCOTUSBlog are a welcome resource.
But equally vital is Tobias Barrington Wolff's recent brief remarks, to be as an essay in Fordham Law Review entitled Collegiality and Individuality Dignity, and available on ssrn, that discusses the more personal aspects of the issues for some ConLawProfs.
Wolff (pictured) explores the "deep tension that exists for LGBT scholars and lawyers who work" on issues of same-sex marriage and other sexuality issues, "between principles of collegiality and basic principles of individual and human dignity." For example, "there is this seeming willingness on the part of antigay advocates to go around calling LGBT people unfit parents, and to expect to be treated with courtesy in response. I’ve been doing this for a dozen years, and I have to tell you, in very personal terms: I’m getting a little tired of being courteous in response to this kind of argument."
I’ll just say quickly: One can refuse to engage with these arguments and the people who make them, which is a choice that some LGBT scholars make and is a choice that has obvious costs associated with it. One can continue engaging in a collegial fashion, which is the choice that I have made for most of my career, but carries serious individual costs. Or one can engage with a somewhat sharper- edged critique of the nature of the arguments that are being made, which is part of what, of course, I am doing today, which has its own set of costs and disruptions of the normal collegial atmosphere about it. I acknowledge that.
But I think that the impact upon the individual dignity of LGBT scholars from having to confront these ugly, ugly arguments over and over again is something that needs to be acknowledged as one of the central, central dynamics that warrants attention in conversations about these issues.
Wolff's worth-reading essay is situated in the context of scholarly discourse, but many ConLawProfs experience similar dynamics in the classroom. How do we discuss these arguments and issues without assaulting each other's dignity?
Thursday, November 29, 2012
The First Circuit ruled in Newton v. LePage that the Maine governor did not violate free speech by removing and relocating a mural from the state Department of Labor offices that he said was pro-labor.
Governor LePage ordered the mural's removal from the waiting room at the Maine DOL offices because he said he wanted the state to convey neutrality as between labor and employers. He said the mural, commissioned by the state and paid for by state and federal funds, didn't cut it. Five Maine residents sued, arguing that the removal amounted to viewpoint discrimination in violation of the First Amendment.
The First Circuit disagreed. It said that government has wide latitude in determining what art to display, or not to display, especially in a non-public forum (like a government office waiting room), and that it has a sufficient justification in appearing neutral. Moreover, the court noted that the government didn't propose to remove the mural entirely; instead, it will relocate it to an alternative location.
The court said that this case was easier for the government than Pleasant Grove City v. Summum:
Here, unlike Summum, the issue does not involve a public park, nor does it involve the government's decision whether or not to accept a private donation. It is also clear that no Equal Protection or Establishment Clause concerns are raised by the case. This case does not involve the suppression of private speech.
The government reiterated its commitment to relocate the mural at oral argument. After all, it said, this is now the most famous piece of art in Maine.
Chief Judge Royce C. Lamberth (D.D.C.) ruled today in Act Now to Stop War and End Racism Coalition v. D.C. that the District of Columbia's regulation governing the posting of signs on city lampposts violated the First Amendment on its face. Judge Lamberth granted summary judgment to the plaintiffs and thus ended this latest chapter in this long-running dispute over D.C. signs. But the ruling also invites the city to come back with a new sign regulation, maybe leading to the next chapter in this case.
The regulation--after five years of litigation and four changes--now reads,
108.5 A sign, advertisement, or poster shall be affixed for no more than one hundred eighty (180) days.
108.6 A sign, advertisement, or poster related to a specific event shall be removed no later than thirty (30) days following the event to which it is related. This subsection is not intended to extend the durational restriction in subsection 108.5.
108.11 Within twenty-four hours of posting each sign, advertisement, or poster, two (2) copies of the material shall be filed with an agent of the District of Columbia so designated by the Mayor. The filing shall include the name, address, and telephone number of the originator of the sign, advertisement, or poster, and if the sign is for an event, the date of the event.
108.13 For purposes of this section, the term "event" refers to an occurrence, happening, activity or series of activities, specific to an identifiable time and place, if referenced on the poster itself or reasonably determined from all circumstances by the inspector.
The court ruled that city lampposts were a designated public forum and that the reg created a content-based distinction (between signs for events and all other signs). But the court said that the city failed to provide a content-neutral justification for the distinction. It wasn't enough, the court said, that the city's attorney represented that the reg was designed to reduce litter and enhance aesthetics. The city had to produce more (like some actual proof of the city's actual purpose).
The court also said that the reg was unconstitutionally vague. Judge Lamberth ruled that 108.13 allowed an inspector to determine which signs qualified as "event" signs without sufficient criteria or guidance.
This is only the latest ruling in this long-running dispute and may lead to more reg changes and more litigation, especially if the District insists on its distinction between signs for events and all other signs.
Daily Read: Thirteenth Amendment Scholars Supporting Matthew Shepard & James Byrd, Jr. Hate Crimes Act
Did Congress have power pursuant to the Thirteenth Amendment to pass the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009?
The question of the Act's constitutionality is before the Tenth Circuit in an appeal arising from the first prosecution under the Act. In Hatch v. United States, the defendant challenges 18 U.S.C. § 249(a)(1), which provides:
Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person—
There seems to be little dispute that the three defendants admitted actions against the Native American victim, including branding the victim with a swatstika, fit within the terms of the statute. But did the statute exceed Congress' power pursuant to the Thirteenth Amendment, or does the statute violate equal protection as guarenteed through the Fifth Amendment?
On the Thirteenth Amendment issue, ConLawProfs William M. Carter, Jr., Dawinder S. Sidhu, Alexander Tsesis, and Rebecca E. Zietlow, have filed an amicus brief, available on ssrn, argue that the Thirteenth Amendment's enforcement clause gives Congress broad powers. They contend that the hate crime section should be analyzed under a defential rational basis standard, both because of its provenance in the Thirteenth Amendment and, perhaps most interestingly, because the statute does not make a racial classification.
This is a terrific read of engaged scholarship as well as a providing a great grounding for a class exercise or student project.
Wednesday, November 28, 2012
The Seventh Circuit ruled this week in Embry v. City of Calumet that city aldermen did not violate free speech when they vowed not to ratify the mayor's nominee to be city department commissioner based on the nominee's support of the mayor in the prior election.
The case arose when Embry, the Commissioner for the Department of Streets and Alleys in Calumet City, a position appointed by the mayor, supported the mayor and a group of aldermen running as a team in the city's election. The aldermen defected from the team of candidates, however, and pressured Embry to support a rival candidate for another alderman slot. After Embry declined, the aldermen said they'd oppose ratification of Embry's appointment as Commissioner of a new, consolidated city department (that included Embry's old Department of Streets and Alleys). The mayor then nominated someone else, the council approved, and Embry lost the job.
Embry sued the aldermen, arguing that their opposition to his appointment violated free speech. He claimed that his case was governed by the public-employee speech rule in Connick v. Myers and Pickering v. Board of Education.
The Seventh Circuit disagreed. The court ruled that Embry's position was a policy-making position, subject to the Elrod-Branti rule that says that for policy-making jobs the "government employer's need for political allegiance . . . outweighs the employee's freedom of expression[.]" Op. at 4 (quoting Bonds v. Milwaukee Cnty., 207 F.3d 969 (7th Cir. 2000). In other words: political appointees can be removed for political reasons.
Moreover, the court said that Embry failed to allege any particular speech unconnected to political affiliation or policy views that led to his non-confirmation. Embry only alleged that he publicly supported the team, and that he was fired "based on [his] political allegiance to [the mayor]."
The ruling is consistent with rulings in other circuits and likely ends this case.
The central argument of ConLawProf Allen Rostron's article, Justice Breyer’s Triumph in the Third Battle over the Second Amendment, published at 80 George Washington Law Review 703 (2012), and available in draft on ssrn, received further validation with yesterday's Second Circuit opinion upholding a New York law restricting concealed carrying of firearms in public.
Rostron (pictured) considers the range of lower court decisions resulting from challenges to state and local firearm regulations made possible by the Court's recent Second Amendment decisions. Heller v. District of Columbia, the first "battle" in the gun wars, recognized a Second Amendment right beyond the militia, and in the second battle of 2010, the Court in McDonald v. City of Chicago, incorporated this right to the states through the Fourteenth Amendment. However, in neither "battle" did the Supreme Court specify what level of scrutiny or test should be used to assess the validity of gun laws under the Second Amendment, leaving the lower courts to struggle with this issue.
Rostron's contribution is his engagement with the third "battle": the interpretation and application of Heller and McDonald in the lower courts. He argues that the third phase of the fight over the right to keep and bear arms is moving toward an unusual result, with these decisions reflecting the "pragmatic sentiments of Justice Breyer’s dissenting opinions in Heller and McDonald," rather than the majority, plurality, or concurring opinions that are long on history and rhetoric and short on doctrine or guidance.
Rostron is candid about his own preferences and equally candid that the politics or doctrine could shift, including the Court's grant of certiorari in an additional case in order to promulgate a strict scrutiny standard. For now, however, Rostron's compelling article demonstrates that Breyer's dissent operates in many ways as a majority opinion.
Of course, if Breyer's view had prevailed in the controversial 5-4 decisions in Heller and McDonald, the federal courts would not be busily adjudicating these Second Amendment challenges.
Tuesday, November 27, 2012
Recent posts include Nuclear Protest and the Right of Assembly in Japan, The Secessionist Challenge in Spain, and Individual Rights and the Excesses of Individualism: Heading Back to a Hobbesian State of Nature?
[Image: CIA World Fact Book Political Map, via]
Second Circuit on Second Amendment: New York's Gun Licensing Limitation for Concealed Handguns Is Constitutional
In a unanimous opinion today, a Second Circuit panel in Kachalsky v. County of Westchester upheld New York's requirement that applicants prove “proper cause” to obtain licenses to carry handguns for self-defense under New York Penal Law section 400.00(2)(f).
Affirming the district judge, the panel interpreted the Supreme Court's controversial Heller v. District of Columbia 2008 decision, as well as the subsequent McDonald v. City of Chicago opinion holding that the Second Amendment right recognized in Heller was incorporated to the states through the Fourteenth Amendment. (Recall that four Justices in McDonald ruled incorporation was through the due process clause, with Justice Thomas concurring in the result, but contending incorporation occurred through the privileges or immunities clause).
One of the issues left open by Heller and McDonald was the level of scrutiny to be applied to gun regulations. The plaintiffs, represented by Alan Gura, familiar from both Heller and McDonald, argued that strict scrutiny should apply. In rejecting strict scrutiny, the Second Circuit panel emphasized that the New York regulation at issue was not within the core interest protected by the Heller Court's interpretation of the Second Amendment - - - self-defense within the home - - - but was a limitation of concealed weapons permits to those who could demonstrate a "special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession." The panel also rejected the plaintiffs' argument that the concealed carry permits were akin to prior restraint under the First Amendment. The court stated, "“We are hesitant to import substantive First Amendment principles wholesale into Second Amendment jurisprudence. Indeed, no court has done so.” (emphasis in original). Later in the opinion, the court provided an even more convincing argument:
State regulation under the Second Amendment has always been more robust than of other enumerated rights. For example, no law could prohibit felons or the mentally ill from speaking on a particular topic or exercising their religious freedom.
Recall that even the majority opinions in Heller and McDonald maintained that prohibiting felons or the mentally ill from possessing guns was consistent with the Second Amendment.
The Second Circuit decided that "intermediate scrutiny" was "appropriate in this case": "The proper cause requirement" of the New York law "passes constitutional muster if it is substantially related to the achievement of an important governmental interest."
The substantial (and indeed compelling) governmental interests were "public safety and crime prevention," as the parties seemed to agree. As to the substantial relationship, the court noted that the "legislative judgment" surrounding these issues was a century old and that the proper cause requirement was a "hallmark" of New York's handgun regulation since then. The court also noted that the law was not a ban, but a restriction to those persons who have a reason to possess a concealed handgun in public. New York did submit more current studies, and the court credited these even as it stated that the decision was clearly a policy one for the legislature. Heller did not, the court ruled, take such "policy choices off the table."
The Second Circuit's opinion is doctrinally well-reasoned, but also a deliberate engagement with the history of gun regulation. In the very beginning of its analysis, the opinion states
New York’s efforts in regulating the possession and use of firearms predate the Constitution. By 1785, New York had enacted laws regulating when and where firearms could be used, as well as restricting the storage of gun powder.
The court returns again and again to the history, in New York and elsewhere, even as it reiterates that history does not answer the question.
[image" The Knotted Gun," sculpture in NYC outside UN, via].
It's something that is, perhaps increasingly, difficult to ignore: the political affiliations of federal judges.
Adam Liptak's article in the NYT yesterday takes on the subject with a focus on the recent Michigan affirmative action decision from the en banc Sixth Circuit. Liptak provides the breakdown: "Every one of the eight judges in the majority was nominated by a Democratic president. Every one of the seven judges in dissent was nominated by a Republican president." This, he argues, is consistent with a forthcoming book, The Behavoir of Federal Judges, an empirical study authored by Lee Epstein, William Landes, and Richard Posner.
Liptak thus rejects - - - at least implicitly - - - the practice of SCOTUSBlog's preeminent reporter and commentator Lyle Dennison whose "note to readers" in his discussion of the Michigan affirmative action case explained; that he would not include "references to the political party affiliation of the Presidents who named the judges to the bench" because "the use of such references invites the reader to draw such a conclusion about partisan influence, without proof." Denniston, however, did include a caveat: he would provide that information" when "it is clearly demonstrated that the political source of a judge’s selection had a direct bearing upon how that judge voted — admittedly, a very difficult thing to prove."
Whether it is a question of causation, correlation, or coincidence is an issue often raised by law students in ConLaw classes, and one that ConLawProfs struggle to answer from various perspectives.
For Liptak, however, there is predictive certainty. Referencing the affirmative action case of Fisher v. University of Texas argued in October, he writes:
The justices’ votes in the Texas case are as yet unknown. But here is a good bet: every vote to strike down the program will come from a justice appointed by a Republican president, and every vote to uphold it will come from a justice appointed by a Democratic one.
Monday, November 26, 2012
The Supreme Court today reopened one of the cases challenging the federal Affordable Care Act and sent it back for further proceedings at the Fourth Circuit. The move means that the lower court, and possibly the Supreme Court, will have another crack at certain issues that the Supreme Court dodged this summer in its ruling in NFIB v. Sebelius.
Recall that the Fourth Circuit rejected a challenge to the ACA by several individuals and Liberty University in September 2011, holding that the Anti-Injunction Act barred the claim. The Supreme Court declined to review that case, Liberty University v. Geithner. But today the Court reopened the case, vacated the Fourth Circuit ruling, and sent the case back for further proceedings in light of the Court's ruling in NFIB.
The plaintiffs in the case originally challenged the universal coverage provision (the so-called "individual mandate," requiring individuals to acquire health insurance or to pay a tax penalty) and the employer mandate (requiring employers with more than 50 employees to provide health insurance coverage for their employees), arguing that they exceeded Congress's taxing and commerce powers and violated the Tenth Amendment, Article I, Section 9's prohibition against unapportioned capitation or direct taxes (the Direct Tax Clause), and the Religion Clauses and the Religious Freedom Restoration Act (among others). (As to the Religion Clauses, the plaintiffs argued that the requirements would cause them to support insurance companies that paid for abortions, a practice that they claimed ran against their religions.)
The district court ruled against the plaintiffs on all counts and dismissed the case. The Fourth Circuit dismissed the case under the AIA and didn't reach the merits.
The Supreme Court ruled in NFIB that the AIA did not bar the Court from ruling on the tax question, that Congress validly enacted the universal coverage provision under its Article I, Section 8 power "to lay and collect Taxes," and that it didn't violate the Direct Tax Clause. Thus after NFIB these issues appear to remain open on remand:
- Whether the mandates violate the Religion Clauses or the RFRA;
- Whether the employer mandate violates the taxing authority or the Direct Tax Clause;
- Whether the mandates violate equal protection;
- Whether the mandate violates free speech and associational rights.
As to the Religion Clauses, the district court ruled that the ACA's religious exemptions to universal coverage were permissible accommodations (and thus didn't violate the Establishment Clause) and that the ACA didn't require the plaintiffs to pay for abortions (and thus didn't violate the Free Exercise Clause or the RFRA).
As to the employer mandate: It's hard to see how the Supreme Court's tax analysis of the individual mandate in NFIB wouldn't apply with equal force to the employer mandate.
If the district court was right on the First Amendment and equal protection claims (as it seems), and if the Supreme Court's tax analysis applies with equal force to the employer mandate, this case doesn't seem to have much of a future.
But then again, that's what many of us said about NFIB.
November 26, 2012 in Abortion, Association, Cases and Case Materials, Commerce Clause, Congressional Authority, Equal Protection, Establishment Clause, First Amendment, Free Exercise Clause, Fundamental Rights, Jurisdiction of Federal Courts, News, Religion, Taxing Clause, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)
The energy surrounding the Court's anticipated grant of certiorari in at least one of the same-sex marriage cases - - - either one or more of the DOMA cases or the Prop 8 case (Perry v. Brown) - - - raises yet again the question of public access to Supreme Court oral arguments. While these cases are only the latest, they perhaps have special resonance given the Court's quelling of the planned broadcast of the Proposition 8 trial in federal court on dubious procedural grounds.
Prof Lisa McElroy's article, Cameras at the Supreme Court: A Rhetorical Analysis, forthcoming in BYU Law Review and available in draft on ssrn, argues persuasively for the broadcast of Supreme Court proceedings, based on the public's interest in accessing its government, including the judicial branch. The contribution of McElroy's excellent piece, however, is that it is not simply an argument, but an engagement with the "stories" the Court - - - and its Justices - - - tell about the Court and its lack of cameras. McElroy writes that there
can be no doubt that the Court has sincere concerns when it comes to granting public access to the Supreme Court, especially through broadcasting of official Court work. Among them are a desire for day-to- day privacy, a concern that allowing cameras or internet streaming will somehow damage the public’s perception of the Court, fears that broadcasting could somehow subject the Court or the Justices personally to mockery, and concerns that funny or less-than-devout comments made during oral argument might end up on the Internet or on programs like Jon Stewart. It is concerned that televising Supreme Court proceedings would change the very nature of those proceedings.
But, she continues,
the question we must ask is whether these concerns add up to a story with a factual basis, or whether they are a fairy tale that the Justices tell Americans–perhaps even themselves. Are the Court’s concerns borne out objectively, or are they instead a part of the story the institution has created (consciously or unconsciously) to justify its refusal to allow the American people virtual and physical access? Are inaccessibility, grandeur, and intimidation the only paths to legitimacy and respect?
Additionally, McElroy discusses whether the members of the Court are simply uncomfortable with technology, or jealous of their privacy (an increasingly untenable rationale), or worried about security, or not interested in change.
For any scholar or student considering issues of public access to Court proceedings, McElroy's article is a treasure as well as a treasure trove.
Saturday, November 24, 2012
Judge J. Harvie Wilkinson III (4th Cir.) argues in Cosmic Constitutional Theory: Why Americans Are Losing Their Inaliable Right to Self-Governance that the proliferation of constitutional theories in recent decades is undermining judicial restraint, handing judges the keys to our democracy, and ultimately leading to the loss of self-governance. Judge Wilkinson's point is this: comprehensive constitutional theories (of constitutional interpretation, of judging) empower judges, even when they're designed not to, and thus undermine a necessary feature of our government, judicial restraint. Judicial empowerment comes at a cost to the democratic branches, and thus to self-governance itself.
Cosmic Constitutional Theory, part of Oxford's Inaliable Rights Series, surveys the "grand and unifying" constitutional theories--living constitutionalism, originalism, political process theory, textualism, minimalism, cost-benefit pragmatism, active liberty, and moralism--and argues that they have empowered judges at the expense of the democratic branches. Judge Wilkinson explains:
No one has stepped back and asked exactly where these theoretical proliferations of all persuasions are taking us. The answer to that question will become clear: the theories are taking us down the road to judicial hegemony where the self-governance at the heart of our political order cannot thrive.
Indeed, the theories have given rise to nothing less than competing schools of liberal and conservative judicial activism, schools that have little in common other than a desire to seek theoretical cover for prescribed and often partisan results. In short, cosmic constitutional theory has done real damage to the rule of law, the role of courts in our society, and the ideals of restraint that the greatest judges in our country once embraced. But the worse damage of all has been to democracy itself, which theory has emboldened judges to displace.
And at another point:
Indeed, I fear that democratic liberty will more and more become the victim of cosmic theory's triumphal rise. The grand quest of the theorists has left restraint by the wayside and placed the inalienable right of Americans to self-governance at unprecedented risk. The increasing willingness of leading thinkers in the law to claim that their theory of the Constitution provides the answers has made citizens all the more willing to look to the courts to resolve the great social controversies of our time. In turn, the courts' eagerness to resolve such debates has cast them in a decidedly political light, making judicial selections and confirmation battles all the more disputatious.
But Judge Wilkinson only weakly argues for judicial restraint, almost taking the point for granted. And it's hard to see where he draws the line between a properly restrained court and an inappropriately activist one. Consider this passage, distinguishing between "major activist decisions" and certain contemporary cases:
Major activist decisions of the Warren Court . . . have rightly stood the test of time, and that success doubtless strengthens the belief of today's interventionists that tomorrow may smile on their bolder efforts too.
They are wrong. Decisions like Brown, Gideon, and Miranda represent success stories because they vindicated foundational principles essential to the functioning of our nation. But I doubt there are now Browns and Gideons waiting to be born. One can debate the precise reach of eminent domain or regulatory takings or the value of same-sex marriage or the utility of firearms regulation without believing that our Constitution is bereft of meaning if one's own beliefs are not embodied there.
Judge Wilkinson's solution is not a new theory. He declines to advance one. Instead, he argues for a kind of judicial restraint and deference to the political branches that he says is best represented by the work of Justices Holmes, Brandeis, Frankfurter, Harlan, and Powell. According to Judge Wilkinson, "Their examples show that one can be a great justice without expounding a grand theory."
Friday, November 23, 2012
Prof. Juan Perea (Loyola Chicago and visiting Lee Chair at John Marshall) argues in his excellent piece Race and Constitutional Law Casebooks: Recognizing the Proslavery Constitution that con law profs, unlike historians, do a bad job with slavery. In particular, he says that law profs do a bad job even recognizing the pro-slavery origins of our Constitution, much less teaching them. He says that this neglect and dishonesty about so central a part of our Constitution prevents us all from critically examining how the pro-slavery nature of our Constitution influences contemporary doctrine and debates. And, importantly, he tells us what we can do about it.
Perea's piece, published in the Michigan Law Review, starts as a book review of George William Van Cleve's A Slaveholders' Union: Slavery, Politics, and the Constitution in the Early American Republic. But Perea moves quickly into an examination of how--or even whether--contemporary constitutional law instruction addresses anything at all about slavery--the issue that Van Cleve shows played a defining role in our constitutional beginnings. Perea surveys some of the top casebooks and concludes that they barely touch the issue. Even when they do, they pay only scant attention to it, apparently assuming either that it wasn't really that important to the framing and ratification, or that that the Reconstruction Amendments solved the problem. This lack of attention to so critical an issue is particularly vexing in a field that otherwise takes history and tradition so seriously.
Perea argues that the pro-slavery Constitution is reflected in structural racism, Court-crafted doctrine (perhaps most especially the Court's demand for proof of intent to show an equal protection violation, although there are dozens of doctrinal examples), the intentional use of race-neutral language in the law to produce a racially targeted harm, and the consistent sacrifice of black equality rights for the sake of political union. We may teach these things, and we may even teach them critically. But we mostly don't teach them as what they are: outgrowths of a pro-slavery foundational document.
Perea has some ideas about what to do about this. In short: say more. Casebooks should devote more attention to the pro-slavery Constitution, and to tie it to contemporary doctrine. Teachers should say more--much more--about it and teach it as part of our history, tradition, and doctrine. Until the casebooks catch up, Perea offers some suggestions and resources for integrating slavery into their classes.
The easiest way may just be this: Assign our students Perea's article.
Thursday, November 22, 2012
The relationship between Thanksgiving and the First Amendment's religion clauses, as well as to the economy, is a recurrent topic of constitutional conversation at this time of year.
President Obama's Thanksgiving Proclamation for 2012 includes several references to "God," such as:
"On Thanksgiving Day, individuals from all walks of life come together to celebrate this most American tradition, grateful for the blessings of family, community, and country. Let us spend this day by lifting up those we love, mindful of the grace bestowed upon us by God and by all who have made our lives richer with their presence."
The President has been criticized in the past for not including sufficient mentions of "God" in conjunction with Thanksgiving.
When President George Washington marked our democracy's first Thanksgiving, he prayed to our Creator for peace, union, and plenty through the trials that would surely come. And when our Nation was torn by bitterness and civil war, President Abraham Lincoln reminded us that we were, at heart, one Nation, sharing a bond as Americans that could bend but would not break.
The current President does not mention FDR, the president responsible for Thanksgiving being the second to last Thursday - - - rather than the last - - - for economic reasons. According to the National Archives:
In 1939, however, the last Thursday in November fell on the last day of the month. Concerned that the shortened Christmas shopping season might dampen the economic recovery, President Franklin D. Roosevelt issued a Presidential Proclamation moving Thanksgiving to the second to last Thursday of November. As a result of the proclamation, 32 states issued similar proclamations while 16 states refused to accept the change and proclaimed Thanksgiving to be the last Thursday in November. For two years two days were celebrated as Thanksgiving - the President and part of the nation celebrated it on the second to last Thursday in November, while the rest of the country celebrated it the following week.
Meanwhile, there is controversy about so-called "blue laws" banning the opening of stores on Thanksgiving day itself. Recall that the United States Supreme Court, in an opinion by Chief Justice Earl Warren, rejected the First Amendment challenges and upheld a criminal conviction under a Sunday blue law in McGowan v. Maryland, 366 U.S. 420 (1961).
Wednesday, November 21, 2012
Just when it seems as if the "takings clause revolution" is over, it re-emerges. This time, the property is not a "little pink house," but raisins.
The United States Supreme Court has granted certiorari in Horne v. USDA. As we discussed last year, the Ninth Circuit upheld the constitutionality of a USDA regulatory scheme regarding raisins against a takings clause challenge. The central requirement at issue mandates that a certain percentage of a raisins be put in "reserve" each year - - - this fluctuates yearly and by controlling raisins on the market is a means of indirectly controlling prices. The Hornes argued that "the requirement that they contribute a specified percentage of their annual raisin crop to the government-controlled reserve pool constitutes an uncompensated per se taking in violation of the Fifth Amendment."
With at least one person arguing that any recent surfeit in law graduates is due to law schools' "exploitation of the career aspirations of women in particular," Professor Karen Tani's article, Portia's Deal, published in Chicago-Kent Law Review and available in draft on ssrn, reminds us that women's aspirations for legal careers is not a recent phenomenon.
Tani (pictured) argues that the New Deal "offered important opportunities to women lawyers at a time when they were just beginning to graduate from law school in significant numbers." Tani focuses on three women: Sue Shelton White, Marie Remington Wing, and Bernice Lotwin Bernstein. In her compelling article, she discusses their careers as well as the constitutional trenches of the New Deal.
According to conventional narratives, these women are not significant. They did not stand up before the Supreme Court and defend New Deal legislation. They did not become legislators, judges, or famous academics. Yet, their stories have much to offer us. White, the fiery suffragist who died too young, encourages us to consider the difference that gender made to the high‐stakes interpretive and administrative work of New Deal lawyers. White’s biological sex did not dictate the style or quality of her lawyering, but there are hints that her path to the New Deal—a path that had everything to do with gender—affected the way that she interacted with colleagues and analyzed legal questions. Wing, the “hell‐raiser” from Cleveland, inspires us to think more deeply about power and place. Regional outposts of the federal government were not as desirable to young, male graduates of Harvard Law School, and yet, as Wing discovered, they were the sites of political influence and vital legal work. Bernstein is perhaps the most intriguing case study, since in pedigree and placement she was the female equivalent of one of Felix Frankfurter’s “Happy Hotdogs.” Unlike most of her male counterparts, who used the New Deal as a launching pad for celebrated careers in academia, private practice, and politics, Bernstein remained an administrative lawyer for decades. We need more information about the costs and benefits of this career trajectory, both for the individual and for society.
Together, the lives of all three women provoke one final question. In the area of social welfare and elsewhere, much law‐making happens neither at the top, with Congress and the appellate courts, nor at the bottom, with the people. It happens somewhere in between, with ground‐level decision‐makers and mid‐level bureaucrats. Who occupied that level of decision‐making in 1935? Who occupies it now? Much of the content of today’s law is their doing.
Tani's analysis is certainly worth considering when we talk, even implicitly, about who is entitled to become an attorney.
Tuesday, November 20, 2012
It's refreshing to pick up a book that explores a topic like constitutional originalism with vim and vigor and a plain-spoken, jargon-less approach that appeals to--indeed invites--readers who are outside the technical academic debates. We ought to have more like this. If we did, we might have more meaningful public discussions about the virtues and vices of originalism, living constitutionalism, constitutional fidelity, or any other method of constitutional interpretation or construction--and why they matter.
The downside, of course, is that plain-spoken-ness can sometimes come at a cost to nuance, balance, completeness, and even honesty. This may be especially true when discussing constitutional interpretation and construction, an area so rife with nuance and indeterminacies. The danger (and perhaps an opportunity, for advocates of any particular approach) is in over-simplifying.
Adam Freedman's The Naked Constitution sets a standard for plain-spokenness and accessibility in the area of constitutional originalism. It's an extraordinarily well written--indeed, fun-to-read--page-turner that romps through the Constitution and the courts' treatment of it and delivers a plain-spoken argument for Freedman's brand of original-meaning originalism. (Just to be clear: Freedman argues that original meaning supports a narrow, strict reading of the text.)
But while Freedman's gift for clear, entertaining writing has all the potential to bring a serious constitutional debate to a broader public, it also trades on nuance, balance, and completeness in the text, history, and precedent. And because of the book's (unnecessary) partisanship, it's likely only to reinforce the ideas of Freedman's supporters, to alienate his detractors, and to divide readers. I don't think it'll do much persuading or advancing-of-the-originalism-debate on either side.
And that's OK. This book seems designed first as a political argument, only next as a constitutional one. It's red meat for conservatives, and it'll surely rile progressives. If you're looking for a lively, readable volume that will fuel your constitutional politics (whatever they are) this is for you. And the book's sheer breadth ensures that you're likely to learn something about constitutional originalism (or anti-living-constitutionalism), even if the book doesn't always tell the whole story.
Freedman takes aim at the usual suspects--a Congress bent on legislating ultra vires, a unitary executive constrained by independent agencies, unenumerated fundamental rights, a wall of separation between church and state, lack of priority to the rights of gun owners and property owners, an Eighth Amendment run amok, and a vacant Tenth Amendment. According to Freedman, these all share this common denominator: an activist judiciary that is unfaithful to the original meaning of the text.
But these usual suspects all share another common denominator: they're the bread-and-butter bogeymen of the new-style political conservatives. Freedman would say as much. Indeed, a good part of his book is devoted to showing that "liberals"--everyone from the ACLU, to the Ninth Circuit, to President Obama--support these constitutional over-reaches. That's too bad. It's distracting and divisive. And it's unnecessary.
The book's partisanship is unnecessary because there's an apolitical case to be made for original-meaning originalism (and against an unfettered living constitutionalism)--one that can use the same lively and accessible approach that Freedman uses here. But that case also has to be fair and balanced; it has to look at the complete original meaning, to acknowledge originalism's shortcomings, and to lodge originalist critiques of living constitutionalists honestly.
Freedman's book sometimes moves in this direction. It's especially strong when it identifies apparent absurdities in the doctrine, for example when it takes on the Court's gloss on the religion clauses: "In the contradictory world of the First Amendment, it is ridiculously easy to 'establish' a religion, but it's almost impossible to burden 'free exercise.'" That's overstated, but it raises a point.
But the book also too often sets up straws, picks at low-hanging fruit, and neglects the full original-meaning picture. As an example of the last, consider the book's treatment of federalism and the Tenth Amendment: the book neglects the bulk of the textual and original-meaning evidence supporting a robust federal government (over the states); and it turns the scant evidence of original meaning that it considers on its head. (See, for example, the discussion of the omission of the word "expressly" from the Tenth Amendment, on pages 290 to 291, arguing that the omission reinforces a limited federal government, and that CJ Marshall recognized this in McCulloch.) It also devalues the original meaning of the federalism amendments--thirteen through seventeen, and others.
In short, The Naked Constitution is more a political argument than a constitutional one--and consciously so. It's a terrifically fun read, but one that is likely only to solidfy positions, not to propel the public debate about originalism.
Freedman also created a companion podcast that's worth checking out.