Friday, September 21, 2012

Third Circuit Rejects Broad Side Challenge to Congressional Reapportionment Process

Here's one we don't see everyday:

Citizen Eugene Martin Lavergne sued a who's-who of federal officers, arguing that the federal law saying how to reapportion congressional representatives in the wake of the census violated "Article the First," or the Congressional Apportionment Amendment, among other actual constitutional claims.

Not surprisingly, the Third Circuit rejected the claims.

Recall that Article the First was the first of twelve proposed amendments coming out of the First Congress and submitted to state legislatures for ratification.  Article the First never got enough states on board, though, even as Articles the Third through Twelfth became the Bill of Rights.  (Article the Second became the Twenty-Seventh Amendment, ratified 203 years after its introduction, on May 7, 1992.)  Article the First says,

After the first enumeration required by the first Article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which, the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

Was Article the First actually ratified?  Here's Lavergne's math, from paragraph 59 of his complaint:

Article V of the United States Constitution is silent on the issue of fractional numbers and how they affect--or do not affect--the "three-fourths" language regarding ratification of proposed amendments by the States.  [It] is also silent on the issue of whether the "three-fourths" of the States referred to in Article V refers to the 3/4 of the States admitted at the time that the amendment was originally proposed, or whether that number changes as additional States are admitted to the Union before a given ratification process is concluded.  Even if the Law is that the 3/4 requirement changes and increases whenever a State joins the Union, when Kentucky became the 15th State and ratified "Article the First", the "pure numerical ratio" of "three-fourths" was 11.25 States, and Kentucky was the 11th State to ratify.  If fractional numbers are disregarded, or fractional numbers less than .49 are "rounded down" to the last whole number, then "Article the First" actually was ratified in 1792.  If any fractional number requires advancing to the next whole number, then "Article the First" was not ratified.  . . .  This Court is now being asked to answer these questions.

Weighty stuff, but the Third Circuit didn't bite: "Putting aside the considerable factual and historical problems with [Lavergne's] argument, '[t]he issue of whether a constitutional amendment has been properly ratified is a political question.'"  Op. at 5-6 (quoting United States v. McDonald, 919 F.2d 146 (9th Cir. 1990).)  

The Third Circuit also rejected Lavergne's handful of other, actual constitutional arguments (separation-of-powers and nondelegation doctrine claims based on the process of reapportionment, and a one-person-one-vote claim), ruling as a threshold matter that he lacked standing, and then rejecting the claims on their merits.


September 21, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, News, Opinion Analysis | Permalink | Comments (3) | TrackBack (0)

What is Originalism Again? Scalia and Posner Debate the Meaning of "Legislative" History

The very public disagreements between Antonin Scalia and Richard Posner are of interest to ConLaw because of their relevance to originalism as a constitutional theoretical perspective.

Recall that the book Reading Law: The Interpretation of Legal Texts, co-authored by Antonin Scalia and Bryan Garner, is largely devoted to the question of statutory interpretation, although there are constitutional references peppered throughout, including a passage directed at "living constitutionalism." 

Richard-A-PosnerA review of the book in The New Republic by well-known Seventh Circuit Judge Richard Posner (pictured) was overwhelmingly negative and included this passage:

Scalia is a pertinacious critic of the use of legislative history to illuminate statutory meaning; and one reason for his criticism is that a legislature is a hydra-headed body whose members may not share a common view of the interpretive issues likely to be engendered by a statute that they are considering enacting. But when he looks for the original meaning of eighteenth-century constitutional provisions—as he did in his opinion in District of Columbia v. Heller, holding that an ordinance forbidding people to own handguns even for the defense of their homes violated the Second Amendment—Scalia is doing legislative history.

Posner later adapted the argument even more bluntly: 

Heller probably is the best-known and the most heavily criticized of Justice Scalia’s opinions. Reading Law is Scalia’s response to the criticism. It is unconvincing.

The discussion escalated, with Justice Scalia stating in an interview, ""To say that I used legislative history is simply, to put it bluntly, a lie."

Posner responded yesterday:

I had indicated what I meant by legislative history when I had said that in seeking the original eighteenth-century meaning of the text of the Second Amendment Justice Scalia had been doing legislative history. His quest for original meaning had taken him to a variety of English and American sources from which he distilled the existence of a common law right of armed self-defense that he argued had been codified in the Second Amendment. He may not consider such a historical inquiry to be an exercise of “legislative history,” because he defines legislative history very narrowly (and in the interview calls it “garbage”). His coauthor, Bryan Garner, does not define it so. Here is the definition of the term in Black’s Law Dictionary (9th ed. 2009), of which Garner is the editor: “The background and events leading to the enactment of a statute, including hearings, committee reports, and floor debates.” The “background and events leading to the enactment” of the Second Amendment are the focus of the Heller opinion.

Even if I accepted Scalia’s narrow definition of “legislative history” and applied it to his opinion in Heller, I would not be telling a “lie.” For Justice Scalia does discuss the “drafting history” (legislative history in its narrowest sense) of the Second Amendment. See 554 U.S. 598–599, 603–605. 

So I would not have been lying, or even mistaken, had I said in my book review that in Heller Scalia “actually resorts” to “legislative history” in its narrowest sense (“drafting history”). But I did not say that.

One might ask whether or not the Constitution has a legislative history? 

Yet that question may be less interesting than what is at stake in this dispute, if anything.  ConLawProf Eric Segall, arguing for the dispute's relevance, correctly points out:

In a few months, the Court will likely decide whether the University of Texas may use racial preferences to redress generations of discrimination, and whether Congress may continue to insure that states with a history of voter suppression don't make it harder for minorities to vote. The relevant text and history of these two disputes will be contested and Posner would likely defer to politically accountable officials on both questions. Scalia will almost certainly vote to strike down these efforts to confront our racist past and then claim that neutral canons of constitutional interpretation require him to do so.

For the cynical, this leaves interpretative strategies and theoretical perspectives simply strategies to achieve desired outcomes.  And perhaps that is the relevance of the dispute over legislative history.



September 21, 2012 in Courts and Judging, Current Affairs, History, Interpretation, Scholarship, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Daily Read: Reconsidering State Action and Reconstruction

PbrandweinPolitical Science Prof Alec Ewald reviews Pamela Brandwein's book, Rethinking the Judicial Settlement of Reconstruction in Law & Politics Book Review here. 

Brandwein (pictured), a political science professor, has written a "bold revisionist book, sure to challenge the assumptions of anyone who has written on or taught Reconstruction-era Constitutional history," according to Ewald.

It's Brandwein's focus on the state action doctrine that will most interest conlawprofs.   Here is Ewald's ultimate assessment:

The total disenfranchisement of southern blacks after 1891 had many causes, but “[a] ‘closed’ doctrine of state action, one that shut the door on federal efforts to protect black rights, was not among them” (p.183). When we talk about the state-action doctrine, we are talking about a messy thing rather than a bright line. But the cases themselves, and particularly those all-too-quotable lines from the Civil Rights Cases, can seduce us into thinking the Court of the early 1880s drew a sharp boundary around all non-governmental action and declared it completely off-limits for the federal government. Brandwein shows it wasn’t so.

A good review can tell us whether or not the book is worth our time.  Ewald demonstrates that Brandwein's book is a necessary one for anyone teaching or writing on state action.


September 21, 2012 in Books, Equal Protection, Fourteenth Amendment, History, Race, Reconstruction Era Amendments, Scholarship, State Action Doctrine | Permalink | Comments (0) | TrackBack (0)

Thursday, September 20, 2012

Supreme Court Rejects Effort to Block Texas's Interim Districting Maps

In perhaps the final chapter of the long-running saga involving Texas's congressional and state legislative districting maps, the Supreme Court yesterday denied a motion to stay the maps drawn by the Texas court after remand from the Supreme Court earlier this year in Perry v. Perez.

Here's our last post for background.  Here's a thumbnail version (with links to many of our earlier posts):

The League of United Latin American Citizens asked Justice Scalia for an emergency stay.  The Court yesterday rejected that request, without comment or dissent.

The ruling puts an end to the litigation and leaves the most recent Texas Court maps in place for the fall elections.


September 20, 2012 in Cases and Case Materials, Elections and Voting, Federalism, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Daily Read: Supreme Court Opinions Lack Rigor?

From the SCOTUSBlog same-sex marriage symposium, discussing how the Supreme Court should rule if the Court accepts Perry (the Proposition 8 case) or any of the DOMA cases, including Massachusetts v. United States Department of HHS and Gill v. Office of Personnel Management:


Zola_LeandreThe suggestions of clearly articulated standards and rigorous analysis are not simply the fantasies of a law professor.  While Supreme Court opinions need not be constitutional law examination answers, neither should they be confusing, or marred by sarcasm or sentimentality.  Students studying law should be exposed to more Supreme Court opinions demonstrating trenchant analysis rather than rhetorical politics.

Clearly articulated standards might also allow the lower federal courts as well as the state courts to engage in their own rigorous analysis rather than attempt to discern the correct standard from Supreme Court precedents that are unclear, internally inconsistent, or point in several directions.  This is not to say that the same-sex marriage issue should have been easily resolved by lower courts or that the applications of the standard are not difficult and value-laden.  However, the grappling of the lower courts for several years now regarding the actual holding of Romer v. Evans, as well as Loving v. Virginia, could have been avoided.


The full post is here.

[image via]

September 20, 2012 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Gender, Sexual Orientation, Sexuality, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 19, 2012

Portions of Arizona's SB 1070 Now in Effect

In a one page Order, Judge Susan Bolton has dissolved the preliminary injunction she issued regarding Section 2(B) of S.B. 1070, the so-called "show me your papers" provision.

This was inevitable given her opinion earlier this month ruling that it would be premature to declare the provision unconstitutional, resting her conclusion - - - perhaps erroneously as we discussed - - - on the United States Supreme Court's opinion in Arizona v. United States last June.



September 19, 2012 in Courts and Judging, Criminal Procedure, Current Affairs, Fourteenth Amendment, Fourth Amendment, Race, Supremacy Clause | Permalink | Comments (0) | TrackBack (0)

Justice Thomas and Professor Amar at the National Archives

Here's the video of the discussion between Justice Clarence Thomas and Professor Akhil Amar (Yale) last week at the National Archives.  It's well worth a look.  The Constitutional Accountability Center co-sponsored the event; here's Simon Lazarus's review at the CAC Text & History Blog.



September 19, 2012 in News | Permalink | Comments (0) | TrackBack (0)

Daily Read: Radice on Bell on ConLaw Pedagogy

Need some midweek teaching inspiration? 

Derrick BellProfessor Joy Radice shares her observations of the conlaw teaching of the late Derrick Bell (pictured): "Bell’s classroom community was a safe space to learn constitutional law, to discuss difficult but related issues of race, class, and gender, and to take risks when thinking about legal strategies."

Radice's terrific brief essay, "Derrick Bell’s Community-Based Classroom,” is part of the wonderful collection of essays from the conference last year, now available in Columbia Journal of Race and Law:

  • “The Post Racial Era: Race, Silence, the Denial of Race/Racism and Optimism,” –Leonard Baynes, St. John’s University School of Law
  •  “Notes Toward a Critical Contemplation of the Law,” –Sonia Katyal, Fordham University School of Law
  • “Derrick Bell’s ‘Afrolantica’ and Gentrification in Harlem,” –Twila Perry, Rutgers University School of Law
  • “How Derrick Bell Helped Me Decide to Become an Educator, Not Just a Faculty Member,” –Vanessa Merton, Pace University School of Law
  • “Derrick Bell’s Community-Based Classroom,” –Joy Radice, University of Tennessee College of Law
  • “ ‘A Living Working Faith’: Remembering Our Colleague Derrick A. Bell, Jr. as Teacher,” –Andrea McArdle, CUNY School of Law
  • “A Legacy of Teaching,” –Robin Lenhardt, Fordham University School of Law
  • “Derrick Bell’s Children,” –I. Bennett Capers, Brooklyn Law School
  • “From Interest Convergence to Solidarity,” –Julie Suk, Cardozo School of Law, Yeshiva University
  • “A Multiplicity of Interests,” –Rachel Godsil, Seton Hall University School of Law
  • “Racial Fortuity, Rights Sacrifice, and the Promise of Convergence in Prison and Policing Policy,” –Taja-Nia Henderson, Rutgers School of Law – Newark

Each one of these essays is worth a read.


September 19, 2012 in Affirmative Action, Current Affairs, Equal Protection, Profiles in Con Law Teaching, Race, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 18, 2012

Appeals Judge Stays District Court Injunction on NDAA Detention Authority

Charlie Savage at the NYT reports that Judge Raymond J. Lohier of the Second Circuit granted an interim stay of district Judge Katherine Forrest's permanent injunction against the use of the detention authority in the National Defense Authorization Act by the Obama administration.  Our post on Judge Forrest's injunction, along with background, is here.

The stay means that Judge Forrest's injunction does not prevent the government from acting under its detention authority in the NDAA, until a panel of the Second Circuit hears the case, scheduled for September 28.

This is a set-back for the plaintiffs in the case and other opponents of the NDAA's detention authority--but only a minor, maybe temporary one: everyone expected that the Second Circuit would have the next say on this case, whatever Judge Forrest ruled, and that the Supreme Court may have the final say.


September 18, 2012 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, War Powers | Permalink | Comments (0) | TrackBack (0)

D.C. Circuit Reverses Disclosure Ruling, Passes to FEC

A three-judge panel of the D.C. Circuit today vacated the district court ruling in favor of plaintiff-Representative Chris Van Hollen over the FEC's disclosure regulation in Van Hollen v. FEC.  The ruling sends the case back to the FEC either to reissue its regs or to reargue that its current reg is a permissible construction of the statute, the Bipartisan Campaign Finance Reform Act.  The district court retains jurisdiction.

Recall that Representative Van Hollen sued the FEC over its reg, which required disclosure of corporate and labor union contributors as follows:

If the disbursement were made by a corporation or labor organization pursuant to 11 CFR Sec. 114.15, the name and address of each person who made a donation aggregating $1,000 or more to the corporation or labor organization, aggregating since the first day of the preceding calendar year, which was made for the purpose of furthering electioneering communication.

11 CFR Sec. 104.20(c)(9).  The problem, according to Van Hollen, was that the italicized limit on the disclosure requirement violated the plain language of the BCRA, which requires disclosure as follows:

(E) If the disbursement were paid out of a segregated bank account which consists of funds contributed . . . directly to this account for electioneering communications, the names and addresses of all contributors who contributed an aggregate amount of $1,000 or more to that account . . .; or

(F) If the disbursements were paid out of funds not described in subparagraph (E), the names and addresses of all contributors who contributed an aggregate amount of $1,000 or more to the person making the disbursement during the period beginning on the first day of the preceding calendar year and ending on the disclosure date.

2 USC Sec. 434(f)(2).   

Van Hollen argued that BCRA's (E) and (F) required disclosure of "all contributors," but the FEC reg limited that to only contributions "made for the purpose of furthering electioneering communication."

The district court ruled that the FEC reg violated the plain language of the BCRA.  FEC's amici, but not the FEC itself, appealed.  The D.C. Circuit denied an emergency stay of the district court ruling pending appeal.  And finally today the D.C. Circuit vacated the district court ruling and remanded the case.

The court ordered the district court to retain jurisdiction while the FEC decides whether to re-write its regulation or to re-argue its case--this time focusing on whether its regulation was a permissible construction of the statute. 

(The district court originally ruled that the statute violated the plain language of BCRA--at Chevron's step 1.  It didn't even get to Chevron's step 2.  Because the D.C. Circuit ruled that the district court got it wrong on Chevron's step 2, the FEC may, if it chooses, reargue at the district court that the reg satisfies Chevron's step 2--that it's a permissible interpretation of the statutory language.)


September 18, 2012 in Cases and Case Materials, Elections and Voting, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Tenth Circuit Rejects Challenge to the Kansas Judicial Nominating Commission

A three-judge panel of the Tenth Circuit ruled in Dool v. Burke that the election procedure for attorney members of the Kansas Judicial Nominating Commission did not violate the Equal Protection Clause.  The ruling affirms a lower court decision and means that the procedure remains in place.   We posted on the complaint and motion for preliminary injunction here.

The Judicial Nominating Commission is comprised of nine-members--a chairperson (who is a lawyer licensed and residing in Kansas) and one attorney and one non-attorney from each of the state's four congressional districts.  The attorney members are elected by licensed attorneys residing in the respective congressional districts; the chairperson is elected by Kansas attorneys voting at large.  The non-attorney members are appointed by the governor.

Whenever a state appellate court vacancy arises (including a vacancy in the state supreme court), the Commission generates a short list of candidates based on a competitive application process.  The governor then selects the appointee to fill the vacancy from among those on the short list.  Still, all judges--including those appointed by way of the Commission--are subject to periodic retention elections in which Kansas voters may vote them out.

The plaintiffs, non-attorneys, argued that the election procedure for attorney members of the Commission closed the attorney seats to non-attorneys in violation of the one-person-one-vote principle set out in Reynolds v. Sims

The Tenth Circuit disagreed.  In a very brief, per curiam opinion, the court rejected the plaintiffs' claims and upheld the lower court's ruling denying preliminary relief and dismissing the case.

Judge O'Brien concurred, arguing that the Commission didn't possess the kind of general government functions and direct government power that would trigger strict scrutiny analysis of its election procedure under Avery v. Midland Cnty. Tex.--the post-Reynolds case that said that Reynolds applied with equal force to officials of a county government who exercised "general governmental powers over the entire geographic area served by the body."  Judge O'Brien also noted that the Commission serves a separation-of-powers function (insulating the judiciary from threats of control and threats to its integrity by the executive)--that it was created in direct response to an embarrassing episode in which the governor engineered his own appointment as Chief Justice--and that the federal Constitution does not prescribe any particular structure of government on the states.

Judge Matheson went a step further in a separate concurrence, arguing that the Commission satisfied the Salyer/Ball exception to Reynolds: that Reynolds doesn't apply to elections for limited-purpose bodies exercising narrow government functions and operating to the burden or benefit of one group of constituents more than others.  Salyer Land Co. v. Tulare Lake Basin Water Storage Dist.; Ball v. James.

Judge McKay dissented, arguing that the Commission's work is quintessential governmental--the appointment of judges--even if it's indirect and mediated by the governor's independent appointment (from the Commission's short list).


September 18, 2012 in Cases and Case Materials, Courts and Judging, Elections and Voting, Equal Protection, First Amendment, Fourteenth Amendment, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Pennsylvania Supreme Court Remands Voter ID Law

Applying the Pennsylvania Constitutional provision that “no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” PA. CONST. art. 1, § 5, in its opinion in Applewhite v. Commonwealth of Pennsylvania, the Pennsylvania Supreme Court today remanded the question of the constitutionality of Pennsylvania's new "Voter ID" law back to the trial judge. 


Standing L-R: Justice McCaffery, Justice Baer, Justice Todd, Justice Orie Melvin {on suspension}
Seated L-R: Justice Saylor, Chief Justice Castille, Justice Eakin


In its 7 page ruling, the per curium majority stressed that the affected population involves "members of some of the most vulnerable segments of our society (the elderly, disabled members of our community, and the financially disadvantaged)."   As the ruling makes clear, the statute's original plan - - - that persons needing voter ID could easily obtain it from the Pennsylvanian Department of Transportation, PennDOT - - - was unworkable given PennDOT's rigorous requirements.  A bit less clearly, the opinion states:

Upon review, we find that the disconnect between what the Law prescribes and how it is being implemented has created a number of conceptual difficulties in addressing the legal issues raised. Initially, the focus on short-term implementation, which has become necessary given that critical terms of the statute have themselves become irrelevant, is in tension with the framing of Appellants’ challenge to the Law as a facial one (or one contesting the Law’s application across the widest range of circumstances). In this regard, however, we agree with Appellants’ essential position that if a statute violates constitutional norms in the short term, a facial challenge may be sustainable even though the statute might validly be enforced at some time in the future. Indeed, the most judicious remedy, in such a circumstance, is the entry of a preliminary injunction, which may moot further controversy as the constitutional impediments dissipate.

Absolutely clear, however, is the Supreme Court's remand to the Commonwealth Court and its vacating of that court's "predictive judgment" that there would be no voter dienfranchisement.  Instead, the lower court must "consider whether the procedures being used for deployment of the cards comport with the requirement of liberal access which the General Assembly attached to the issuance of PennDOT identification cards," and if not, issue a preliminary injunction against the voter ID law.  The Supreme Court ordered the lower court to issue its opinion on or before October 2.

There were two vigorous dissents, both arguing that the Supreme Court should not remand the issue. 

In her dissenting opinion, Justice Todd stated that in her view, "the time for prediction is over":

Forty-nine days before a Presidential election, the question no longer is whether the Commonwealth can constitutionally implement this law, but whether it has constitutionally implemented it. Despite impending near-certain loss of voting rights, despite the Commonwealth's admitted inability thus far to fully implement Act 18 and its acceptance that, presently, “the Law is not being implemented according to its terms,” and despite the majority's concession that the “most judicious remedy” in such circumstances would be to grant an injunction, the majority nonetheless allows the Commonwealth to virtually ignore the election clock and try once again to defend its inexplicable need to rush this law into application by November 6, 2012.

And in a dissenting opinion as long as the per curium, and in which Todd joined, Justice McCaffery made clear that not only should the court decide the matter, but that there was "no doubt that the record, as it is, establishes the immediate and irreparable harm required for the injunction." McCaffery also had some especially pointed words about the political process:

While I have no argument with the requirement that all Pennsylvania voters, at some reasonable point in the future, will have to present photo identification before they may cast their ballots, it is clear to me that the reason for the urgency of implementing Act 18 prior to the November 2012 election is purely political. That has been made abundantly clear by the House Majority Leader. Exhibit 42 at R.R. 2073a. I cannot in good conscience participate in a decision that so clearly has the effect of allowing politics to trump the solemn oath that I swore to uphold our Constitution. That Constitution has made the right to vote a right verging on the sacred, and that right should never be trampled by partisan politics.

Thus, it seems that at least two of the six sitting Justices would immediately enjoin the voter ID law, and four are waiting for a lower court judge to make additional findings but lean towards an injunction. [UPDATED INFO: Recall that Justice Orie Melvin is not on the court at present; Order of Suspension here.

[image: Pennsylvania Supreme Court Justices via]


September 18, 2012 in Elections and Voting, State Constitutional Law | Permalink | Comments (1) | TrackBack (0)

Daily Read: Conscience Clauses and Same-Sex Marriage

In the United States, there can be First Amendment Free Exercise Clause arguments against participating in same-sex marriages (or other matters involving sexual minority equality), as in the town clerk controversies in New York.  Similar constitutional controversies between "conscience" and same-sex marriage occur in other jurisdictions.

With a focus on civil servants (or their equivalents) who act as marriage officers and who object to participating in the legal institutionalization of same-sex unions, co-authors Bruce MacDougall (University of British Columbia, Canada); Elsje Bonthuys (University of the Witwatersrand, South Africa); Kenneth Norrie (University of Strathclyde, Glasgow, Scotland), and Marjolein Van den Brink (University of Utrecht, the Netherlands) have produced an important comparative discussion centering on Canada, Scotland, South Africa, and the Netherlands, in their article  "Conscientious Objection to Creating Same-Sex Unions: An International Analysis."  It's published in the Canadian Journal of Human Rights, and available on ssrn.

Their explorations of the specifics of jurisdictions are excellent, but it is the final sections of the article that make the most vital contribution.  By discussing the conflict of constitutional values in more generalized terms - - - not burdened by specific doctrinal developments and histories - - - the authors ask whether it is possible to satisfy both the equality and conscience concerns.

It's a question without an easy answer, but this article frames the issues and provides several perspectives. This would be a terrific article for a First Amendment class considering these issues.

[image: "The Interrupted Wedding" by Edmund Bristow circa 1860 via]

September 18, 2012 in Comparative Constitutionalism, First Amendment, Fundamental Rights, Religion, Scholarship, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Monday, September 17, 2012

Toobin's "The Oath"

Jeffrey Toobin's much-anticipated The Oath: The Obama White House and the Supreme Court comes out on Tuesday.  Early reviews are excellent; here are links to a handful.


  • Jeffrey Rosen has a thorough and balanced review in the Washington Post.  Rosen calls Toobin "Woodward's successor as the chronicler of behind-the-scenes details from the Supreme Court," and says The Oath "is a page-turner."  Toobin writes that the big scoop in the book is that Chief Justice Roberts's first draft of Citizens United was limited, saying only that the Bipartisan Campaign Reform Act didn't apply to Citizens United's movie critical of Hillary Rodham Clinton (and not that the BCRA was unconstitutional, as the Court eventually ruled).  (Toobin also writes of that other big event involving Chief Justice Roberts: his switch in the ACA case.)
  • Terry Gross has a wonderful interview with Toobin on Fresh Air.  The NPR link also has a link to excerpts from the book.
  • Kirkus Review calls the book "a skillful probing of the often-discordant relationship between the president and the Supreme Court" and "[s]hrewd and elucidating."
  • The Huffington Post review focuses on Chief Justice Roberts's ACA switch.
  • Politico's Playbook has a couple excerpts.


September 17, 2012 in Books, Courts and Judging, News | Permalink | Comments (0) | TrackBack (0)

Constitution Day (and Week) 2012

From the 2012 Presidential Proclamation, declaring September 17, 2011, as Constitution Day and Citizenship Day, and September 17 through September 23, 2011, as Constitution Week.

800px-Scene_at_the_Signing_of_the_Constitution_of_the_United_States.pngIn the summer of 1787, delegates from the States gathered in Philadelphia to build a new framework for our young republic.  Our Constitution's Framers represented diverse backgrounds, and on key issues, they were divided.  Yet despite their differences, they courageously joined together in common purpose to create "a more perfect Union."  After 4 months of fierce debate and hard-fought compromise, the delegates signed the Constitution of the United States.

For more than two centuries, the Constitution has presided as the supreme law of the land, keeping our leaders true to America's highest ideals and guaranteeing the fundamental rights that make our country a beacon of hope to all peoples seeking freedom and justice.  Together with the Bill of Rights, our Constitution is the backbone of our government and the basis of our liberties.  Even while retaining its structure, our founding document has grown with our Nation's conscience, amended over the years to extend America's promise to citizens of every race, gender, and creed.

Americans are defined not by bloodlines or allegiance to any one leader or faith, but by our shared ideals of liberty, equality, and justice under the law.  We are a Nation of immigrants, built and sustained by people who have brought their talents, drive, and entrepreneurial spirit to our shores.  Generations of newcomers have journeyed to this land because they believed in what our country stands for.

[image: "Scene at the Signing of the Constitution of the United States" by Howard Chandler Christy, 1940 via]


September 17, 2012 in History, Interpretation, News | Permalink | Comments (0) | TrackBack (0)

Daily Read: Sanders on Fisher v. UT

Why should courts deciding constitutional questions give deference to a bunch of professors? 

Steve SandersConLawProf Steve Sanders (pictured) poses this query with reference to the Court's decisionmaking in Fisher v. University of Texas in his brief essay over at SCOTUSBlog (part of SCOTUSBlog's terrific Fisher Symposium).

The best answer, Sanders tells us, "is that faculty members’ educational judgments are formed by the specialized training, engagement with scholarly disciplines, and daily classroom experience they bring to their work, and judges lack these things."

An interesting take on academic freedom in the context of affirmative action.


September 17, 2012 in Affirmative Action, Association, Equal Protection, First Amendment, Fourteenth Amendment | Permalink | Comments (1) | TrackBack (0)

Sunday, September 16, 2012

Seventh Circuit Upholds State Campaign Finance Disclosure Requirements

A three-judge panel of the Seventh Circuit ruled last week in Center for Individual Freedom v. Madigan that Illinois's campaign finance disclosure requirements, which require registration and disclosure even of groups whose "major purpose" is not influencing electoral campaigns, were not unconstitutionally vague and overbroad in violation of the First Amendment.

The ruling means that Illinois state law stands, even as to those groups whose "major purpose" is not influencing electoral campaigns--the 504(c)(4) groups who famously escape disclosure requirements under federal campaign finance disclosure laws.  It means that even those groups--which are often designed with the purpose of shielding their donors from disclosure--have to report under state law.  The ruling also deepens a circuit split on this point, with a Tenth Circuit case, New Mexico Youth Organized v. Herrera, 611 F.3d 669 (2010), invalidating a state disclosure law as applied to an organization because it did not "satisfy the 'major purpose' test," which "sets the lower bounds for when regulation as a political committee is constitutionally permissible," and a Fourth Circuit case, North Carolina Right to Life, Inc. v. Leake, 525 F.3d 274 (2008), concluding that before Citizens United state disclosure law violated the First Amendment because "an entity must have 'the major purpose' of supporting or opposing a candidate to be designated a political committee."

Illinois law requires groups and individuals that accept "contributions," make "expenditures," or sponsor "electioneering communication" in excess of $3,000 to make regular financial disclosures to the State Board of Elections.  The plaintiff, a 501(c)(4) organization, challenged Illinois's disclosure law, arguing that five of its definitions--"electioneering communications," "political committee," "contribution," "expenditure," and "independent expenditure"--were facially vague and overbroad. 

Illinois disclosure law tracked federal law, with three key differences: (1) Illinois disclosure requirements cover election activity relating to ballot initiatives (which have no federal analog); (2) Illinois law does not exempt from regulation those groups that lack the "major purpose" of influencing electoral campaigns; and (3) Illinois disclosure requirements cover campaign-related advertisements that appear on the Internet.  Recall that the Supreme Court upheld federal disclosure requirements in Citizens United, so the court here only analyzed whether these three distinctions were unconstitutional.

The court rejected the plaintiff's claim that these three provisions make the law unconstitutionally vague and overbroad.  As to the second difference--the one that sweeps in 501(c)(4) organizations that so famously hide their contributors under federal disclosure requirements--the court rejected CIF's argument that the "major purpose" test is a constitutional test, so that those organizations that do not have as a "major purpose" the election of a candidate must be exempt from disclosure.  The court gave four reasons.  First, it said that when Buckley v. Valeo came down--and first ruled on the "major purpose" question, interpreting language in the FECA (and not the Constitution)--political committees faced much greater disclosure burdens under FECA than they do today under Illinois's disclosure requirements.  Next, Illinois law defines political committee more narrowly than FECA by covering only groups that accept contributions or make expenditures "on behalf of or in opposition to" a candidate or ballot initiative.  Third, application of a "major purpose" test could yield the perverse result that a small group dedicated to electing a state representing and that spends $3,000 could be required to register and disclose, while a major organization that spends millions could dodge registration requirements because its "major purpose" isn't electing a candidate.  Finally, groups covered under a "major purpose" test could easily dodge disclosure requirements by dilluting its own message by broadening it beyond electioneering activities.

Judge Posner dissented, arguing that a handful of provisions in the Illinois law are vague.


September 16, 2012 in Campaign Finance, Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (1) | TrackBack (0)