Constitutional Law Prof Blog

Daily Read: BBC and Freedom of Speech

For those following the British BBC scandal, the issue of Lord McAlpine's possible legal actions for defamation or libel - - - and against whom - - - raise comparative free soeech doctrines and theories.

An excellent discussion of the BBC controversy is over at Inforrm, including this useful background:

On 2 November 2012 the BBC Newsnight programme broadcast an item about sexual abuse at children’s homes in North Wales.  One victim, Steve Messham told the programme that the inquiry uncovered just a fraction of the abuse.  He said that  his abusers included “a leading Tory politician of the Thatcher era”.

The fact that the programme was going to make these allegations was widely reported before transmission and the “leading Tory politician” was identified on Twitter before broadcast as Lord McAlpine.   His name was widely disseminated on the internet after transmission but was not mentioned in the mainstream media.

 On 8 November 2012, the “Guardian” reported that “Mistaken Identity” had led to the abuse claims against the “Top Tory”, and named Lord McAlpine as the Tory in question.  Lord McAlpine then issued a statement denying the allegations Mr Messham apologised to Lord McAlpine over mistaken identity.  The BBC apologised for the Newsnight report and, on 10 November 2012, the Director General, George Entwistle, resigned.

 

For ConLawProfs interested in the free speech aspects of the BBC/McAlpine "affaire," a good place to start is Marin Roger Scordato's 2007 article, The International Legal Environment for Serious Political Reporting Has Fundamentally Changed: Understanding the Revolutionary New Era of English Defamation Law, published in Connecticut Law Review and available on ssrn.  After analyzing a landmark 2006 case, Scordato argues that while the definition of protected speech in England “is more direct and very likely more accurate than its American counterpart, it fails to meaningfully distinguish among plaintiffs who arguably are in significantly different circumstances as possible victims of defamatory publications.”  Moreover, although the English standard “looks more broadly and thoroughly at the journalistic practice of the defendant, it does not ultimately provide to the valued speech the same level of protection from liability as the American actual malice standard.”

The status of the BBC as a governmental - - - or quasi-governmental - - - entity also complicates the "free speech" issues.

RR

Daily Read: Iron Curtain and Constitutional Rights

Anne Applebaum's new book, Iron Curtain: The Crushing of Eastern Europe 1945-1956, is a sequel of sorts to her book Gulag, which won the Pulitzer prize.  In a recent interview with Terry Gross on Fresh Air, Applebaum talked about the centrality of controlled media and art to Soviet Communist domination. 

For example, there was a government suppression of "abstract art":

The fear of abstract art is that it could be interpreted in many ways, and who knows what you could read into a painting that didn't have a clear message? One of the obsessions that the Soviet Union and the Eastern European communist parties had was always controlling the message — all information that everybody gets has to be carefully controlled and monitored. Art was no exception. Art was supposed to tell a story, it was supposed to have a happy ending, it was supposed to teach, it was supposed to support the ideals of the party. There was no such thing as art for art's sake, and there was no such thing as art reaching into some kind of spiritual, wordless realm. No, art was done in service of the state, and it was something that was going to help mold people and create citizens who do what the state tells them, and who follow the rules.

While her project is not a comparative one, her book demonstrates the centrality of the constellation of rights protected under the United States' Constitution's First Amendment, including expression, media, and religion.  Also important would be any rights of habeas corpus, due process, and those pertaining to criminal procedure as a means of resistance to government oppression. 

RR

Daily Read: Iceland and Popular Constitutionalism

Touted as a "crowd-sourced" constitutional revision by many, including the NYT (international edition), the national referendum on Iceland's draft constitution was completed last week, with less than 50% turnout and all queries answered affirmatively, according to the Iceland Review.

Two pieces of recent scholarship provide necessary perspective to these developments in Icelandic constitutionalism. 

In his brief essay, Grassroots Constitutional Politics in Iceland, available on ssrn, Paul Blokker reminds us that the "Icelandic Constitution has since its adoption in 1944 been understood as a transitory document by many, even if this status has never translated into wholesale revision or substitution of the document." 

In a more substantial article, From Collapse to Constitution: The Case of Iceland, available on ssrn, Professor Thorvaldur Gylfason also begins with the 2008 financial collapse as the catalyst for constitutional revision, but he also discusses individual provisions of the constitution in a manner that connects the financial regime with the human rights regimes, including freedom of speech, press access, and environmental protections. Gylfason also asks the broader question:

Does financial regulation belong in constitutions? Or is it enough to confine such regulation to laws? – which, to date, is near-universal practice. 

This is a fair question, especially in a country that has recently gone through one of the worst financial crashes on record, with grave consequences for many households and firms at home and elsewhere.

 

Protestors in Austurvöllur square in front of Alþingishús - the Icelandic parliament house in early 2009.

Gylfason also has some intriguing thoughts about the participation of legal education in the process of constitutionalism as well as the importance of Iceland's experience for other constitutional democracies.  Definitely worth a read for anyone engaged in constitutional theory, even if one has not been following the developments in Iceland.

RR
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Daily Read: Toni Williams on Brinks & Gauri on Rights

Over at Jotwell, UK Law Prof Toni Williams (pictured) has a review entitled "Getting Rights Right," considering Daniel M. Brinks & Varun Gauri, Law's Majestic Equality? The Distributive Impact of Litigating Social and Economic Rights, World Bank Development Research Group Working Paper 5999 (March 2012), available on ssrn. 

Williams captures the "rights" and "social change" and "judicial review" debates under consideration thusly:

To investigate the distributive impact of socio-economic rights litigation is, of course, to engage with well-established and often-repeated findings about litigation processes and courts as tending either to favour the rich and powerful, the “haves” of the societies in which they are situated, or, more likely, to be ineffectual. Brinks and Gauri believe that such claims about the regressive impact and impotence of rights litigation over-generalise from a limited number and narrow range of courts, cases, constitutions and countries. They claim that a more systematic analysis, taking into account variation between different types of cases and characteristics of courts, shows that litigating social and economic rights may sometimes yield robustly pro-poor effects, at least in the areas of health care provision and education.

 For those seeking a more global view of rights litigation than is so often present in US conversations, Williams' suggestion is an important one. 

RR

Daily Read: Felon Disenfranchisement in Comparative Perspective

The current controversy in the UK over voting by persons who are presently incarcerated and the imminent US election again raise questions regarding the general US policy of disenfranchisement by persons convicted of felonies (even if not incarcerated), a topic we've previously addressed here and here.

Ruvi Ziegler's 2011 article, Legal Outlier, Again? US Felon Suffrage: Comparative and International Human Rights Perspectives, 29 Boston University International Law Journal 197, available on ssrn, situates the US practices and doctrine within international human rights and comparative constitutional law perspectives. 

Ziegler concludes that defending the "rights of convicts is hardly a popular task. However,defending their right to vote means, inter alia, defending the substantivedemocratic legitimacy of criminal law, which labels certain community members as convicts by proscribing their acts and which sanctions the imposition of punishments. Convicts’ disenfranchisement is a hurdle on the path towards the democratic project’s successful completion. It can and should be removed."

This is worth a read for any scholar or student pondering the relationship between the fundamental right to vote and punishment.

RR
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Prisoner Voting?: UK Balks at European Court of Human Rights Opinion

"Prisoners are not getting the vote under this government," UK Prime Minister David Cameron said yesterday.  This is despite the attorney general's statements earlier that day that the UK should comply with opinions from the European Court of Human Rights (ECHR) regarding the UK's blanket ban on prisoner voting.  The ECHR in 2005 ruled in Hirst v. UK that the UK's bar on voting was too "blunt" of an instrument:

 It strips of their Convention right to vote a significant category of persons and it does so in a way which is indiscriminate. The provision imposes a blanket restriction on all convicted prisoners in prison. It applies automatically to such prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances. Such a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be.

 In 2009, the ECHR expressed "serious concern" that the Hirst judgment had not been implemented.

And it seems that PM Cameron is voicing his opinion that Hirst will never be implemented - at least under his government.

Excellent reporting from The Guardian here, with details of the debates here.

RR
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Daily Read: Ackerman and Maduro on the Prospects of a EU Constitution

Ackerman and Maduro discuss the importance - - - and possibility - - - of a EU Constitution in a short piece in The Guardian.  They begin:

A spectre is haunting Europe. The memory of the 2005 national referendums rejecting the EU constitution has led political leaders to respond to the current crisis with emergency measures that don't require popular approval. But longer-term solutions demand democratic legitimation.

Perhaps not surprisingly, they suggest the South African model for a new constitutional referendum.  But is the South African process transferable to Europe?  The comments to the article are definitely worth a read for anyone interested in popular constitutionalism.

RR
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Maryland High Court Allows State Dream Act To Go To Referendum

The Maryland Court of Appeals ruled in Doe v. Maryland State Board of Elections that a ballot referendum challenging the Maryland Dream Act, a law that offers in-state tuition to Maryland colleges and universities to certain qualifying unauthorized aliens, can stay on the ballot in the upcoming elections.

The decision gives reasons for the court's earlier per curiam order also allowing the referendum on the ballot. The rulings mean that the Maryland Dream Act, a validly enacted state law, will go before Maryland voters in the upcoming election. (Here's a sample ballot. The referendum is Question 4, on page 2.)

At issue was the state constitutional appropriations exception to the referendum clause. The referendum clause says,

The people reserve to themselves power known as The Referendum, by petition to have submitted to the registered voters of the State, to approve or reject at the polls, any Act, or part of any Act of the General Assembly, if approved by the Governor, or, if passed by the General Assembly over the veto of the Governor.

Md. Const. art. XVI, Sec. 1(a). But the appropriations exception prohibits a referendum on certain appropriations questions:

No law making any appropriation for maintaining the State Government, or for maintaining or aiding any public institution, not exceeding the next previous appropriation for the same purpose, shall be subject to rejection or repeal under this Section.

Md. Const. art. XVI, Sec. 2.  The appropriations exception is designed to insulate essential functions of the state, funded by "appropriations for maintaining the State Government," from the whims of voters.

The state Board of Elections approved a referendum challenging the Dream Act for the fall 2012 elections, and petitioners, unnamed and unauthorized aliens who sought in-state tuition under the Act, challenged it as violating the appropriations exception.

The court said that the Dream Act does, indeed, require additional appropriations, but that those appropriations were not the kinds of outlays that the appropriations exception had in mind. The Dream Act was neither a budget bill nor an appropriations bill; it's not a revenue-raising measure; and its primary purpose was to provide a benefit, not to spend money. (Spending money is only incidental.)

The court also rejected the claim that the Dream Act was in pari materia with the state Cade Funding Formula, a formula that ensures stable year-to-year funding of state colleges and universities and itself "mak[es] any appropriation . . . for maintaining or aiding any public institution," and thus shoehorned into the appropriations exception by way of Cade.  The court said that the Dream Act and Cade (and any future budget bills) operate independently, so that Cade doesn't leverage the Dream Act into the appropriations exception. 

The Dream Act now goes to Maryland voters.

SDS

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.

RR
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No Fees, Costs for Common Benefit Litigant

The Alabama Supreme Court ruled in Ex Parte Bentley that the state constitution prohibited a common benefit litigant--one who successfully challenged the constitutionality of a permanent legislative committee--from collecting attorneys' fees and costs.

The case is the latest chapter in the McInnish litigation, involving a permanent state legislative committee designed to dole out community service grants.  McInnish sued in the earlier case, arguing that the committee violated state constitutional separation of powers.  McInnish claimed that the legislative committee, which received funds from a regular legislative appropriation, encroached on executive powers by deciding on particular grants to award and then awarding them. 

The Alabama Supreme Court agreed.  In McInnish v. Riley the court ruled that the legislative committee engaged in a quintessentially executive power by paying out the grants.  It cited the state constitutional separation-of-powers provision, Section 43:

In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men.

In Ex Parte Bentley, the court ruled that McInnish couldn't collect attorneys' fees and costs under the common benefit doctrine, based on the state sovereign immunity provision, Section 14:

That the State of Alabama shall never be made a defendant in any court of law or equity.

According to the court, this section bars any action if it seeks to recover damages or funds from the state treasury--even when a litigant sues for the common benefit.

SDS

Ninth Circuit "Interprets" Constitution of Commonwealth of the Northern Mariana Islands

In a brief opinion, a panel of the Ninth Circuit interpreted the Constitution of the Commonwealth of the Northern Mariana Islands to provide no property interest in continued employment necessary for a due process claim by a Special Assistant to the Governor.  More precisely, the Ninth Circuit deferred to the opinion of the Supreme Court of the Commonwealth of the Northern Mariana Islands, having certified the questions to the Supreme Court and attaching the court's opinion as an appendix to its own.

The Commonwealth Constitution, Article III, section 22, establishes an "Office of Special Assistant to the Governor for Women's Affairs," and provides that the "governor shall appoint a person, who is qualified by virtue of education and experience, to be the special assistant" and the "special assistant may be removed only for cause."

In Peter-Palican v. Government of Commonwealth of Northern Mariana Islands, Ms. Peter-Palican argued that the new governor's termination of her as Special Assistant to the Governor for Women's Affairs violated her due process rights. 

The Ninth Circuit held that the "removal for cause" did not extend beyond the term of the governor who appointed her, adopting the Commonwealth's Supreme Court decision.  Thus, Ms. Peter-Palican did not have the requisite property interest as a threshold for a due process inquiry. 

The Ninth Circuit's determination that the Commonwealth Supreme Court is the final arbiter of its constitution comports with general federalism principles, although the Commonwealth of Northern Mariana Islands is not a state. Indeed, its status is rather unique, governed by the "Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America," approved by Congress, and signed by President Ford in 1976.  The Covenant exempts specific portions of the Constitution as well as specific federal laws (importantly, immigration and minimum wage laws) unless adopted by the Commonwealth. 

The "removal for cause" provision in a constitution would seem to provide some protection from changing elected officials such as governors.  Perhaps if the position were not a "special assistant to the governor" the Commonwealth Supreme Court - - - and the Ninth Circuit - - - would have viewed the matter differently.

RR
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Mass High Court Recognizes Judicial Deliberative Privilege

The Supreme Judicial Court of Massachusetts in In the Matter of the Enforcement of a Subpoena formally recognized a judicial deliberative privilege rooted, in part, in state constitutional judicial independence and separation of powers.

The move simply puts a formal judicial stamp of approval on a privilege already recognized in other states and the federal system, and supported by Massachusetts common law.  As the court said, "Such a privilege is deeply rooted in our common-law and constitutional jurisprudence and in the precedents of the United States Supreme Court and the courts of our sister States."

The court said the privilege applied to quash a subpoena issued by the Massachusets Commission on Judicial Conduct in relation to an investigation of allegations of bias against a Massachusetts judge.  But the court also said that the Commission might issue a better tailored subpoena that would survive a motion to quash based on the privilege.

The court rooted the privilege in part on two state constitutional provisions, both requiring, in different ways, an independent and impartial judiciary.  The first, Article 29 of the Massachusetts Declaration of Rights, reads:

It is essential to the preservation of the rights of every individual, his life, liberty, property, and character, that there be an impartial interpretation of the laws, and administration of justice.  It is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit.  It is, therefore, not only the best policy, but for the security of the right of the people, and of every citizen, that the judges of the supreme judicial court should hold their offices as long as they behave themselves well; and that they should have honorable salaries ascertained and established by standing laws.

The second, Article 30 of the Declaration of Rights, referenced in a footnote in the opinion, reads:

In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws and not of men.

(Article 30 is part of Madison's survey of state separation-of-powers provisions in Federalist 47.  Madison writes that Article 30 "corresponds precisely with the [strict separation of powers] doctrine of Montesquieu," but also that "[i]n the very Constitution to which it is prefixed, a partial mixture of powers has been admitted.")

The court said in the footnote that "[t]he circumstances of this case raise these very [separation-of-powers] concerns," because the complaint against the judge was initiated by an executive branch official (even though the Commission itself is formally a judicial body).

SDS

Missouri Supreme Court Upholds Ballot Initiative Repealing Local Earnings Tax

A unanimous Supreme Court of Missouri last week ruled in Dujakovich v. Carnahan that a ballot proposition designed to repeal state law authorizing Kansas City to levy an earnings tax did not violate the state constitution.  

The ruling means that the repeal stays on the books, thus making it more difficult and costly--though not impossible--for cities to continue to levy an earnings tax.  Under the repeal, any city that enacted an earnings tax (under its previous statutory authority) could continue to levy the tax, but they'd have to put it to the city voters every five years.  (Any city that did not levy an earnings tax is now entirely prohibited from doing so.)  The practical effect may be to eliminate certain city earnings taxes.

The case started way back in 1963, when the Missouri General Assembly enacted enabling legislation that authorized Kansas City to levy an earnings tax for general revenue purposes.  More recently, in 2009, Secretary of State Carnahan certified a voter ballot initiative to repeal that authority, but to allow cities that levied earnings taxes under it to continue to do so, so long as city voters approved the levy by ballot every five years.  Here's the text of the initiative:

Shall Missouri law be amended to:

• repeal the authority of certain cities to use earnings taxes to fund their budgets;
• require voters in cities that currently have an earnings tax to approve continuation of such tax at the next general municipal election and at an election held every 5 years thereafter;
• require any current earnings tax that is not approved by the voters to be phased out over a period of 10 years; and
• prohibit any city from adding a new earnings tax to fund their budget?

After Missouri voters approved the question, appellants sued, arguing that it violated three provisions of the Missouri constitution.  First, they argued that the initiative was a de facto appropriation in violation of Article III, Section 51, because it required cities to run an election to continue an earnings tax without providing a new source of revenue for the cost of those elections.  (Section 51 says that an "initiative shall not be used for the appropriation of money other than of new revenues created and provided for thereby.")  The court rejected this claim, stating that nothing in the initiative required cities to run an election: cities could simply decline to put the earnings tax to their voters (and thus necessarily forego the tax).

Next, appellants claimed that the initiative violated the Hancock Amendment to the Missouri constitution.  That Amendment prohibits the state from imposing any new activity or service on any political subdivision of the state, or from reducing the state financed proportion of the costs of any existing activity.  The court ruled that nothing in the Hancock Amendment restricts the power of the people to govern themselves by intiative--itself a state constitutional right under Article III, Section 49.

Finally, appellants argued that the initiative impermissibly amended the city's charter in violation of Article VI, Section 20.  But the court said that any conflict between a city charter--authorized by the general assembly, after all--and state law must be resolved in favor of the state law.

Next step for the appellants: Get the cities to put the earnings tax to city voters, and get out the vote.

SDS

Arkansas High Court Rules State Method of Execution Act Unconstitutional

The Arkansas Supreme Court ruled on Friday in Hobbs v. Jones that the state's statutory method of execution violated state constitutional separation of powers.  In particular, the court ruled that the general guidelines that the legislature provided to the Arkansas Department of Corrections, or ADC, to conduct intravenous lethal injections were too broad and constituted an unlawful delegation of legislative authority to the state executive agency.

The ruling leaves the state without a method of execution--at least for now.  (The court also held that the offending sections of the act were nonseverable, ruling out a judicial excision or rewrite of the language and thus preserving the larger act.)  The legislature could act relatively easily to amend the state's Method of Execution Act, or MEA, and to provide more detailed guidelines to the ADC within the bounds of the state's separation of powers principles and its nondelegation doctrine.

Arkansas is one of those states that has a specific separation-of-powers provision in its constitution.  (The federal government does not have a specific separation-of-powers provision.)  Article 4 reads:

Section 1.  The powers of the government of the State of Arkansas shall be divided into three distinct departments, each of them to be confided to a separate body of magistracy, to-wit: Those which are legislative, to one, those which are executive, to another, and those which are judicial, to another.

Section 2.  No person or collection of persons, being of one of these departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted.

Under Article 4 and the state constitutional nondelegation doctrine, the Arkansas Supreme Court has held that the legislature may delegate to the executive, so long as it provides reasonable guidelines and appropriate standards.  "A statute that, in effect, reposes an absolute, unregulated, and undefined discretion in an administrative agency bestows arbitrary power and is an unlawful delegation of legislative powers."  Op. at 10.

The relevant portions of the MEA read as follows:

(a)(1)  The sentence of death is to be carried out by intravenous lethal injection of one (1) or more chemicals, as determined in kind and amount in the discretion of the Director of the Department of Correction.

(2)  The chemical or chemicals injected may include one (1) or more of the following substances:

(A) One (1) or more ultra-short-acting barbiturates

(B) One (1) or more chemical paralytic agents;

(C) Potassium chloride; or

(D) Any other chemical or chemicals, including but not limited to saline solution.

Ark. Code Ann. Sec. 5-4-617 (Supp. 2011).

The court ruled that these sections violated the state constitutional nondelegation doctrine, because they gave the ADC "absolute and exclusive discretion . . . to determine what chemicals are to be used."  It said that (a)(2) did nothing to rein in that discretion, because by its plain terms--"may"--it is only permissive.  In other words, the ADC could use chemicals that fall into these categories, or it could use any other chemicals it likes.  Moreover, a later subsection, (a)(4), "gives complete discretion to the ADC to determine all policies and procedures to administer the sentence of death, including injection preparations and implementation."  Op. at 14.

Justice Karen Baker, joined by Special Justice Bryon Freeland, dissented.  Justice Baker argued that several other states have tolerated similar guidelines in the face of equally strict separation-of-powers clauses.  In any event, she wrote that the guidelines in the MEA were detailed enough to withstand the challenge under the Arkansas Constitution, and that state and federal constitutional bans on cruel and unusual punishment provided an outside limit to what the ADC could do.

SDS

British Columbia Supreme Court Holds Assisted Suicide Ban Unconstitutional

The Supreme Court of British Columbia today issued its lengthy opinion in Carter v. Canada (Attorney General), authored by Justice Lynn Smith, a former dean at the Faculty of Law of the University of British Columbia.  Smith's opinion concluded that the assisted suicide prohibition in the Canadian Criminal Code infringes sections 7 and 15 of the Canadian Charter of Rights and Freedoms.

Section 7 - - -  " Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice," and Section 15(1) - - - "Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability" are often be analogized to due process and equal protection by those trained in the US constitutional system. 

However, Judge Smith made little use of US constitutional precedent and did not give much credence to the Canadian government's reliance on Washington v. Glucksberg, in which the US Supreme Court rejected a constitutional challenge to an assisted suicide ban. [¶ 1118 of Opinion].  Instead, Judge Smith extensively canvassed the state of assisted suicide laws in US states and other nations, producing a scholarly survey and discussion of the issues.  Insisting that "context is vital," Judge Smith's decision is nuanced and careful.

This care and nuance is evident in the declarations that the Criminal Code provisions unjustifiably infringe sections 15 and 7 of the Charter

to the extent that they prohibit physician-assisted suicide by a medical practitioner in the context of a physician-patient relationship, where the assistance is provided to a fully-informed, non-ambivalent competent adult patient who: 

(a) is free from coercion and undue influence, is not clinically depressed and who personally (not through a substituted decision-maker) requests physician-assisted death; and

(b) is materially physically disabled or is soon to become so, has been diagnosed by a medical practitioner as having a serious illness, disease or disability (including disability arising from traumatic injury), is in a state of advanced weakening capacities with no chance of improvement, has an illness that is without remedy as determined by reference to treatment options acceptable to the person, and has an illness causing enduring physical or psychological suffering that is intolerable to that person and cannot be alleviated by any medical treatment acceptable to that person.

[¶ 1393].  For some, this type of decision is reminiscient of legislation, but the declarations are suspended for one year allowing Parliament time to correct the constitutional problems.  Yet defering the opinion's effective date for a year has obvious costs given the court's own discussion.  For plaintiff Gloria Taylor the plaintiffs had sought an "immediate constitutional exemption that would allow her to avail herself of a physician-assisted death at such time and subject to such terms and conditions that the Court allows or requires."  Judge Smith's opinion grants such an exemption and sets out its terms. 

The opinion garnered attention from news outlets including the Vancouver Sun and The Globe and Mail.

RR

ACLU Sues to Stop Minnesota Voter ID Ballot Proposal

The Minnesota ACLU, along with the League of Women Voters Minnesota, Common Cause, Jewish Community Action, and five Minnesota voters, filed a petition with the Minnesota Supreme Court seeking to strike a ballot question that, if passed, would amend the Minnesota Constitution to require voter ID.

The petitioners claim in their Brief and Addendum that the ballot question is false, misleading, and an incomplete description of what the amendment would actually do--in violation of Article IX, Section 1, of the Minnesota Constitution.  That Section provides that proposed amendments shall be "submitted to the people for their approval or rejection."  The Minnesota Supreme Court interprets it considering whether the language of the ballot question would mislead a voter of common intelligence to the proposed amendment's actual meaning and effect.

Here's what the legislature required the ballot to say:

Shall the Minnesota Constitution be amended to require all voters to present valid photo identification to vote and to require the state to provide free identification to eligible voters, effective July 1, 2013?

Yes

No

And here's what the amendment to the Constitution would say:

(b) All voters voting in person must present valid government-issued photographic identification before receiving a ballot.  The state must issue photographic identification at no charge to an eligible voter who does not have a form of identification meeting the requirements of this section.  A voter unable to present government-issued photographic identification must be permitted to submit a provisional ballot.  A provisional ballot must only be counted if the voter certifies the provisional ballot in the manner provided by law.  

(c) All voters, including those not voting in person, must be subject to substantially equivalent identity and eligibility verification prior to a ballot being cast or counted.

The petitioners argue that the ballot question misleads in five ways:

1. It says that the amendment would require photo ID from "all voters," but the amendment actually only requires it from those who vote "in person."

2. It omits any mention of the "substantially equivalent" verification provision.

3. It fails to disclose that the proposed amendment would requirement government-issued ID (and not just any ID).

4. It fails to disclose that the proposed amendment would require provisional voting.

5. It has a misleading title for the proposed amendment--"Photo Identification Required for Voting."

The proposed amendment came about after the legislature first passed voter ID and the governor vetoed it.  Rather than overriding the veto, the legislature voted to put the measure on the ballot as a constitutional amendment.

SDS

Constitution Bashing?

As ConLawProf Sandy Levinson rightly observes in an Op-Ed in today's NYT, "the Constitution is enveloped in near religious veneration."  Although perhaps this isn't so right, at least in some circles.

His own op-ed, for example, argues that the Constitution itself is responsible for current political pathologies. He singles out the Electoral College and the composition of the Senate for special note, both of which result in states such as New York, California, and Texas being diminished.

This incorrect equality amongst states is also highlighted by Kevin Bleyer in his new book, Me The People.  To be sure, Bleyer is a comedy writer, but as he argues in the recent excerpt in Salon, "despite what the original Constitution of the United States says about the qualifications for statehood and the guarantee of representation," there are just some states that don't deserve their status.  One rationale for such disrespect: there are "more Americans in prison than in Nebraska."

For his part, Sandy Levinson focuses on Article V as "the worst single part of the Constitution" because it has made the US Constitution "among the most difficult to amend of any in the world."   He argues that the "near impossibility of amending the national Constitution not only prevents needed reforms; it also makes discussion seem futile and generates a complacent denial that there is anything to be concerned about."

Yet amending the Constitution - - - by repealing an Amendment - - - was a topic in a debate among Republican hopefuls for one of Missouri's two seats in the United States Senate.  The Amendment in question is the Seventeenth Amendment; "The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures."  Recall that prior to the Seventeenth Amendment, Article I §3 controlled: "The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof . .  ."   So, basically, the Seventeenth Amendment required direct election of Senators.

As the St. Louis Beacon reports, Senate hopeful (and current US Representative) Todd Akin thought a repeal of the Seventeenth Amendment might shift the balance back towards "states rights."  The other candidates were less interested in the issue.  Their respective statements are available on YouTube, linked at the St Louis Beacon article.  And there are certainly more scholarly discussions, including one between Todd J. Zywicki and Ilya Somin hosted by the Federalist Society last year. 

For those participating in summer institutes for undergraduates or comparative law programs, there is much fodder here.

RR
[image: 17th Amendment as ratified via]

Sunday Book Review: Mantel's New Novel

If you missed the first installment, Hilary Mantel's bestselling and Man Booker Prize winner, Wolf Hall, the second in the trilogy can nevertheless be started post-haste.  It's the just-released Bringing Up The Bodies. Stellar reviews appear in the NYT, and LA Times.  Novelist and intellectual Margaret Atwood, in The Guardian, noted that although this volume centers on the fall of Anne Boleyn, like its predecessor, it's really about "the deep, dark, labyrinthine, but strangely objective mind of Thomas Cromwell."

 

As Atwood wrote:

The historical Cromwell is an opaque figure, which is most likely why Mantel is interested in him: the less is truly known, the more room for a novelist. Cromwell rose from obscure and violent origins through a life abroad – sometime soldier, sometime merchant – to become England's top go-to man, the prime maker-and-breaker of fortunes and spines, secretly hated and despised, especially by aristocrats. He played Beria to Henry VIII's tyrannical Stalin: he did the dirty work and attended the beheadings, while Henry went hunting.

But what Atwood doesn't mention is that Thomas Cromwell (pictured above in the famous Hans Hoblein portrait which is discussed in Mantel's novels) is a lawyer.  A consumate lawyer.  In many ways, Cromwell is witness, and perhaps midwife, to the rise of English law, although law will not be sufficient to save him (presumably in volume III of the trilogy).

While some ConLawProfs find novels a guilty pleasure (or even not pleasurable!), the legal machinations and historical resonances of Bringing Up The Bodies make this novel a great summer read that could inform teaching and scholarship.

And for those who prefer to listen to books, the audiobook is available, with a sample (and a great description of Cromwell starting after about a minute, and including the description of the painting) here:

 

BringUpThe Bodies

 

RR
[Portrait of Thomas Cromwell by Hans Holbein, circa 1533, via]

South Africa Constitution's Sexual Orientation Equality Provision at Risk?

South Africa's Bill of Rights, Section 9, subsection 3 provides:

The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

This Constitution, effective in 1997, is the post-Apartheid Constitution.  As the government itself boasts, "South Africa’s Constitution is one of the most progressive in the world and enjoys high acclaim internationally."  The progressive reputation of the South Africa Constitution is well-deserved, and it is based in part as being the first Constitution to explicitly recognize equality on the basis of sexual orientation.

Interpreting this provision, the highly respected South Africa Constitutional Court has declared sodomy laws unconstitutional, has declared the limitation of marriage to opposite-sex couples as unconstitutional, and recognized family rights for same-sex couple parents. 

But the inclusion of sexual orientation has re-emerged as a controversial issue.  As ConLawProf Pierre deVos at the University of Cape Town reports on Constitutionally Speaking, the House of Traditional Leaders submitted a proposal to the Constitutional Review Committee of the National Assembly to amend section 9 of the Constitution to remove sexual orientation provisions and the Review Committee has referred the matter to the political parties.  As deVos explains it:

This means that the various Parliamentary caucuses of political parties represented in Parliament will soon have to decide whether they support unfair discrimination against people they might believe are not like them, or whether they will affirm their commitment to non-discrimination and the respect for the human dignity of all South Africans, the very bedrock on which the Bill of Rights in the South African Constitution is founded. . . .

DeVos' analysis is worth reading in full. 

Coupled with recent controversies surrounding the composition of the South Africa Constitutional Court, this is alarming news indeed, and threatens South Africa's status as a constitutional democracy that is "one of the most progressive in the world."

RR
[image: Rainbow Map South Africa via]

Canadian Perspectives on Revisiting Roe v. Wade

Canadian Law Prof Sonia Lawrence (pictured right) starts her Jotwell post "Womb as Wedge" this way:

Sitting in Toronto or maybe Bristol, we have a tendency to watch American politics with both fear and amusement, rather like (or so I hear) some people watch Jersey Shore or Keeping up with the Kardashians: Who are these people? Why do they behave this way?

Questions worth asking, certainly. 

    But Lawrence quickly dismisses this view as smug and self-satisfied. In her review of Linda Greenhouse and Reva Siegel, Before (and After) Roe v. Wade: New Questions about Backlash, 120 Yale L.J. 2028 (2011), available on ssrn, Lawrence confirms the Greenhouse and Siegel view that "the focus on Roe is not just a faulty conclusion – it is a rhetorical strategy in and of itself."  And increasingly, it is not a strategy confined to the United States.

    Indeed, Lawrence argues that abortion law and politics in both Canada and the UK have become "Americanized," discussing Carol Sanger's recent lecture, as well as a motion to reconsider Canada's criminal code defining human being to be debated April 26.

    Thus, in a relatively short piece, Lawrence offers more "new questions" about "backlash" and Roe v. Wade," providing essential comparative constitutional law perspectives.

RR