January 22, 2013
Scalia and Thomas More
Justice Scalia's appearance at President Obama's Inauguration yesterday has been much remarked because of the Justice's hat.
As ConLawProf Kevin Walsh reports, the hat was a gift from the St. Thomas More Society of Richmond, commemorating Scalia's participation in a 2010 "Red Mass" and is a replica of More's hat as portrayed in his famous portrait by Hans Holbein the Younger, 1527 (pictured right).
While Thomas More was celebrated in the play "A Man for All Seasons," a much less flattering portrait of him emerges in Hilary Mantel's award winning historical novel Wolf Hall, in which More is seen as distinctly unlawyerly, ungenerous, and perhaps pathological, especially as contrasted with the novel's hero, Thomas Cromwell.
As the late Christopher Hitchens noted, the genius of Wolf Hall wasin going beyond the Holbein portraits that defined the era, and revisioning, for example, the More portrait: "Now scrutinize the face of More and notice the frigid, snobbish fanaticism that holds his dignity in place." More, then, becomes a man who will not only burn books, but burn people. Hitchens also quotes Mantel's scene of the interrogation of More, after More has fallen out of favor. The character More says:
“You say you have the majority. I say I have it. You say Parliament is behind you, and I say all the angels and saints are behind me, and all the company of the Christian dead, for as many generations as there have been since the church of Christ was founded, one body, undivided—”
January 21, 2013
Daily Read: Martin Luther King on Meet the Press 1965
In a 1965 "Meet the Press" interview, Martin Luther King speaks about civil disobedience, nonviolent protest, and racial equality, responding to the queries from the interviewers.
Worth a watch on this MLK Day, 2013.
January 07, 2013
Daily Read: Pam Karlan on the 2011 United States Supreme Court Term
Pamela Karlan's "Democracy and Disdain" is the Forward to Harvard Law Review's annual Supreme Court issue for the 2011 Term and is a compelling - - - indeed, necessary and delightful - - - read. Karlan's central thesis, as the title aptly communicates, is that the Roberts' Court has little but disdain for the democratic process. By "Roberts' Court," of course, she means the five Justices who usually form the majority, including Roberts, Scalia, Thomas, Alito, and Kennedy.
The Roberts Court’s narrow substantive reading of enumerated powers maps fairly closely onto the contemporary conservative political agenda. To the extent that the conservative agenda gains popular acceptance, the Court may garner acclaim as a guardian of constitutional values. But if the public rejects that agenda, or remains sharply divided, the Court risks being perceived as simply another partisan institution. The Court’s current status rests in substantial measure on its having been on the right side of history in Brown v. Board of Education. Only time will tell whether the Court will retain that status given the choices the Roberts Court is making.
Karlan is adept at comparing the present Court to previous ones, not only including the Warren Court. Spoiler alert: When she quotes Justice Roberts, she might not be quoting the 2012 John Roberts but the 1936 Owen Roberts, a device she uses to especially good effect. Also to good effect is her usage of other justices, colloquies in oral argument, the occasional poet, and theorist. The writing is broad and engaging without being precious. It makes her analysis of the cases even more trenchant, situated in larger themes and trends.
Of course, not all ConLawProfs will agree with Karlan's views of the Court, including one subsection entitled "Protecting Spenders and Suspecting Voters," and another "Suspecting Congress." And Karlan's argument is hardly unique, as anyone who recalls Rehnquist Court scholarship, including the excellent 2001 article "Dissing Congress," by Ruth Colker and James J. Brudney can attest. And it is especially noteworthy that the Court did uphold the constitutionality of the Affordable Care Act in National Federation of Independent Business v. Sebelius, a case that Karlan extensively discusses and more interestingly, situates within the Term's other less notable decisions.
But this is a must read article before beginning the new semester.
[image of Pamela Karlan via]
January 7, 2013 in Courts and Judging, Due Process (Substantive), Elections and Voting, Fifteenth Amendment, First Amendment, Fourteenth Amendment, History, Interpretation, Race, Recent Cases, Reconstruction Era Amendments, Scholarship, Separation of Powers, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0) | TrackBack
January 01, 2013
150th Anniversary of the Emancipation Proclamation
Here's the transcription from the National Archives:
The Emancipation ProclamationWhereas, on the twenty-second day of September, in the year of our Lord one thousand eight hundred and sixty-two, a proclamation was issued by the President of the United States, containing, among other things, the following, to wit:
"That on the first day of January, in the year of our Lord one thousand eight hundred and sixty-three, all persons held as slaves within any State or designated part of a State, the people whereof shall then be in rebellion against the United States, shall be then, thenceforward, and forever free; and the Executive Government of the United States, including the military and naval authority thereof, will recognize and maintain the freedom of such persons, and will do no act or acts to repress such persons, or any of them, in any efforts they may make for their actual freedom.
"That the Executive will, on the first day of January aforesaid, by proclamation, designate the States and parts of States, if any, in which the people thereof, respectively, shall then be in rebellion against the United States; and the fact that any State, or the people thereof, shall on that day be, in good faith, represented in the Congress of the United States by members chosen thereto at elections wherein a majority of the qualified voters of such State shall have participated, shall, in the absence of strong countervailing testimony, be deemed conclusive evidence that such State, and the people thereof, are not then in rebellion against the United States."
Now, therefore I, Abraham Lincoln, President of the United States, by virtue of the power in me vested as Commander-in-Chief, of the Army and Navy of the United States in time of actual armed rebellion against the authority and government of the United States, and as a fit and necessary war measure for suppressing said rebellion, do, on this first day of January, in the year of our Lord one thousand eight hundred and sixty-three, and in accordance with my purpose so to do publicly proclaimed for the full period of one hundred days, from the day first above mentioned, order and designate as the States and parts of States wherein the people thereof respectively, are this day in rebellion against the United States, the following, to wit:
Arkansas, Texas, Louisiana, (except the Parishes of St. Bernard, Plaquemines, Jefferson, St. John, St. Charles, St. James Ascension, Assumption, Terrebonne, Lafourche, St. Mary, St. Martin, and Orleans, including the City of New Orleans) Mississippi, Alabama, Florida, Georgia, South Carolina, North Carolina, and Virginia, (except the forty-eight counties designated as West Virginia, and also the counties of Berkley, Accomac, Northampton, Elizabeth City, York, Princess Ann, and Norfolk, including the cities of Norfolk and Portsmouth[)], and which excepted parts, are for the present, left precisely as if this proclamation were not issued.
And by virtue of the power, and for the purpose aforesaid, I do order and declare that all persons held as slaves within said designated States, and parts of States, are, and henceforward shall be free; and that the Executive government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom of said persons.
And I hereby enjoin upon the people so declared to be free to abstain from all violence, unless in necessary self-defence; and I recommend to them that, in all cases when allowed, they labor faithfully for reasonable wages.
And I further declare and make known, that such persons of suitable condition, will be received into the armed service of the United States to garrison forts, positions, stations, and other places, and to man vessels of all sorts in said service.
And upon this act, sincerely believed to be an act of justice, warranted by the Constitution, upon military necessity, I invoke the considerate judgment of mankind, and the gracious favor of Almighty God.
In witness whereof, I have hereunto set my hand and caused the seal of the United States to be affixed.
Done at the City of Washington, this first day of January, in the year of our Lord one thousand eight hundred and sixty three, and of the Independence of the United States of America the eighty-seventh.
By the President: ABRAHAM LINCOLN
WILLIAM H. SEWARD, Secretary of State.
[pages of proclamation via]
December 21, 2012
Daily Read: Winkler on the Black Panthers and the Second Amendment
ConLawProf Adam Winkler's book Gun Fight: The Battle Over the Right to Bear Arms in America published in 2011 has understandably receiving renewed attention.
One of the more interesting arguments Winkler makes is that the Black Panthers were the true pioneers of modern pro-gun advocacy, at a time when the National Rifle Association championed gun regulation.
Winkler's article for The Atlantic, The Secret History of Guns, also published last year and adapted from the book, is definitely worth a (re)read.
December 03, 2012
Daily Read: Joslin on the Responsible Procreation Government Interest of DOMA
Should the Court take certiorari in at least one of the circuit cases challenging DOMA, the Defense of Marriage Act, as is widely anticipated, the government interest will be at issue. Courtney Joslin's article, Marriage, Biology, and Federal Benefits, forthcoming in Iowa Law Review and available in draft on ssrn, is a must-read on the "responsible procreation" interest that is often proffered. Joslin (pictured) argues that this interest is based on what she calls the "biological primacy:" an "underlying premise that the government’s historic interest in marriage is to single out and specially support families with biologically-related children."
Joslin's task is decidely not to assess the "fit" of DOMA's means chosen to this interest, under any equal protection standard, whether it be intermediate scrutiny as some, including the Second Circuit in Windsor have applied, or rational basis as the First Circuit applied.
Instead, Joslin interrogates whether this interest is factually true: "Has the federal government historically accorded special solicitude and protection to families comprised of parents and their own biological children?" She demonstrates that the interest is, at the very least, not a consistent one. She examines the "history of federal family-based benefits in two areas: children’s Social Security benefits and family-based benefits for veterans and active members of U.S. military," and demonstrates that in a "vast array of federal benefits programs, eligibility is not conditioned on a child’s biological connection with his or her parent."
From the early years of federal family-based benefits, Congress both implicitly and explicitly extended benefits to children who were biologically unrelated to one or both of their parents. This unearthed history exposes that responsible procreation is based on normative judgments about sexual orientation and gender, not history and tradition.
Indeed, although Joslin does not discuss Loving v. Virginia, her article is deeply reminiscent of the Court's reasoning in Loving when it essentially rejected Virginia's proffered rationale of "racial integrity," with Chief Justice Warren writing that the "fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy." Joslin's article should be required reading for anyone analyzing DOMA.
November 27, 2012
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].
November 23, 2012
Perea on Recognizing, Teaching the Pro-Slavery Constitution
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.
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).
November 20, 2012
Freedman's Naked Constitution
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.
November 19, 2012
Daily Read: Emma Larkin on Burma/Mynamar
As President Obama travels to Burma/Myanmar, becoming the first United States President to do so, most ConLawProfs will be recalling Crosby v. National Trade Council, decided by the Court in 2000. In an unanimous decision, the Court declared unconstitutional Massachusetts' 1996 procurement statute barring the state from doing business with almost any entity "doing business" with Burma. The Court held the state law was invalid under the Supremacy Clause because of a Congressional grant of authority to the President over any economic sanctions for Burma. The Massachusetts law thus undermined the diplomatic powers of the President.
The repressive history of Burma/Myanmar is essential to understanding the President's current diplomacy as well as Massachusetts' legislation in Crosby.
And essential to Americans seeking to understand Burma is the work of Emma Larkin. Widely regarded as one of the best books on Burma is Emma Larkin's Finding George Orwell in Burma. In the fascinating and well-written book published in 2006, Larkin - - - not her real name - - - writes of contemporary Burma and George Orwell's history in Burma, arguing convincingly that Orwell's novel 1984 was actually modeled on Burma and continued to be relevant. Earlier this year, Larkin wrote compellingly of the "Burma Spring" the popularity of former dissident Aung San Suu Kyi, both in an essay and in a lengthy review of Peter Popham's The Lady and the Peacock: The Life of Aung San Suu Kyi.
Obama argues that his visit is an "acknowledgment that the country is making progress toward reform." Read Emma Larkin's book, if you haven't already done so, to discover what this might mean.
November 16, 2012
Daily Read: Stanley Aronowitz on C. Wrights Mills on Political Intellectuals
What is the work of political intellectuals, public intellectuals, or even, constitutional law professors?
Stanley Aronowitz, who participated in a public conversation about such topics this morning, is the author most recently of Taking It Big: C. Wright Mills and the Making of Political Intellectuals. Mills, who died in 1962 and was once widely known, is undergoing a bit of a resurgence; Aronowitz' "intellectual biography" of Mills contributes to this trend.
Aronowitz describes Mills' critiques of academics as knowledge workers; observations that are especially relevant in our post-election assessments and the role of constitutional commentators:
[Their] Knowledge is dedicated to assisting the state to regulate, in the first place, the poor. Having forsaken theoretical explorations aimed at explaining social events, the disciplines of economics and political science have, with the exception of a small minority of practitioners, become policy sciences. Economists advise and assist governments and corporations to anticipate and regulate the “market,” raise and spend tax revenues, and help direct investments abroad as well as at home. Political science has virtually become an adjunct to the political parties and to the foreign policy establishment; its polling apparatuses are guides to candidates on how to shape their message and to whom to target their appeals.
But Aronowitz suggests that the work of C. Wright Mills is important because Mills’s questions of "what a new society based on principles of economic and social equality would look like" continues to endure "as an unfinished and neglected series of tasks."
November 14, 2012
The Constitutional Status of Adultery in the Military
Adultery has been dominating the news, including questions about whether or not it can "still be a crime." As a constitutional matter, any answer must invoke the Court's 2003 decision in Lawrence v. Texas. Recall that Justice Scalia, dissenting, in Lawrence wrote that:
State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' [v. Hardwick] validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding.
As Scalia recognized, Lawrence "calls into question" the criminalization of adultery. It would be very unlikely a law criminalizing adultery would survive a constitutional challenge after Lawrence.
But is the military different? Military courts held that consensual adult sodomy - - - the same crime at issue in Lawrence - - - could be criminalized as a military matter, despite Lawrence, although the application of the consensual sodomy provision could be unconstitutional as applied in certain circumstances. The central inquiry was whether there were "factors unique to the military environment" that allowed the acts to be constitutionally criminalized.
Writing in 2010, law student Katherine Annuschat, in her comment, An Affair to Remember: The State of the Crime of Adultery in the Military, 47 San Diego L. Rev. 1161, demonstrates "the military's willingness to pursue adultery prosecutions for questionable motives," and argues that "the obsolescence of these statutes in the public mind" and their questionable constitutional pedigree support removal of adultery from the enumerated offenses under the general Uniform of Military Justice article 134. Similarly, writing a year earlier, attorney Christopher Scott Maravilla, in The Other Don't Ask, Don't Tell: Adultery Under the Uniform Code of Military Justice After Lawrence v. Texas, 37 Capital U. L. Rev. 659 (2009) concluded that the criminal sanctions for adultery, as well as sodomy, should be "constructively" removed from military laws, although sexual acts could be relevant to other violations of the military code of conduct.
It is doubtful that adultery - - - without more - - - can be constitutionally criminalized, even in the military context. But perhaps there is always "more."
[image: 1926 movie poster via]
November 06, 2012
Daily Read: Counting Votes . . . in 1792
In The Founders’ Bush v. Gore: The 1792 Election Dispute and its Continuing Relevance, published in Indiana Law Review and available in draft on ssrn, Professor Edward B. Foley provides a historical perspective on election disputes.
Foley argues that the contentious election for Governor of New York between the incumbent, George Clinton, and the challenger, John Jay (pictured) provides an important window into the constitutional shortcomings of elections. Foley demonstrates that when the Founders were confronted with a vote counting dispute, they were ill-equipped to resolve it.
Professor Foley discusses the role of lawyers and legal principles, but also tells us that after "the canvassing committee announced its decision against John Jay, there was great public agitation," including what Alexander Hamilton called talk of the “bayonet.” Foley argues the Founders were a "generation of revolutionaries who were not afraid of extralegal means to secure their fundamental right to a representative democracy." He reminds us that the "it was not just the revolt against England that was revolutionary," but also the "Constitution itself was an unauthorized break from the legal regime of the Articles of Confederation." The question for John Jay and his supporters "was whether to take to the streets and demand a new constitutional convention for the state of New York that would undo what they viewed as the partisan atrocity committed by the canvassing committee."
A good read for Election Day.
October 22, 2012
Daily Read: George McGovern on the Founders
George McGovern, former United States Senator and 1972 Presidential nominee, died yesterday at the age of 90.
McGovern was a paradigmatic voice for liberalism and his 2004 book, The Essential America: Our Founders and the Liberal Tradition makes the argument that the founding generation was steeped in liberal tradition. In a C-SPAN interview in 2004, McGovern stated that both the liberal and conservative traditions are important:
I think that liberalism has been so battered by its critics that people have almost become self-conscious about using the word. I don`t feel self-conscious about it because I think Thomas Jefferson was a liberal. Thomas Paine was a liberal. James Madison was a liberal. These early Founders, the ones who were really the deep thinkers, I think had a liberal streak through them. Now, they also had some conservative streaks. And I`m not against the conservative traditions. In fact, in my book, I say that the genius of American politics is the creative tension that exists between conservatism, on the one hand, and liberal on the other. My dad and mother lived and died as conservative Republicans. I had some pretty good arguments with them in later life, but I respect both of those traditions. And I don`t think people ought to be ashamed to say, I am a conservative, I am a liberal. I respect both traditions.
Asked to define liberal, McGovern stated:
A liberal in today`s world, and the definition has changed with the passage of time, but I would say a 20th century liberal or 21st century, now, liberal, is one who believes in a positive federal government that takes concrete measures that are in the interest of the ordinary citizen. A liberal doesn`t -- doesn`t sell out to the special interests. He or she seeks to serve the great American public.
October 18, 2012
Daily Read: Amicus Brief of the Family of Heman Sweatt in Fisher v. UT
Of the many amicus briefs filed in Fisher v. University of Texas-Austin, argued last week, the brief on behalf of the family of Heman Sweatt stands out. Heman Sweatt, of course, was the plaintiff in Sweatt v. Painter, decided by the Supreme Court in 1950. As the "interest of amicus curiae" section of the brief explains:
Amici curiae are the daughter and nephews of Heman Marion Sweatt, who in 1946 was denied admission to The University of Texas Law School for one reason: “the fact that he is a negro.” Texas law forbade UT from considering any of his other qualities: not his intelligence, not his determination, not the grit he gained living under and fighting Jim Crow.
In 1950 – four years before Brown v. Board of Education – this Court held that Sweatt must be admitted to UT, because the separate law school created to accommodate him was not equal in – among other things – intangibles such as reputation and because Sweatt would be “removed from the interplay of ideas and the exchange of views” with “members of the racial groups which number 85% of the population of the State.”
Today, UT honors the legacy of Heman Sweatt in many ways, none more important than its commitment to creating a genuinely diverse student body. It does so through an admissions policy that considers (to the extent allowed by the Texas Top Ten Percent Law, which depends on secondary-school segregation to increase minority enrollment) all aspects of an applicant’s character – including, in part, how that character has been shaped by race.
The brief not only highlights the "importance of race" but also the "importance of patience," arguing that the "25-year horizon Justice O’Connor envisioned for race-conscious admissions decisions [in Grutter] may have been optimistic."
More about Sweatt's case in the United States Supreme Court is available at the UT Tarlton Law Library's holding of the papers of Justice Thomas C. Clark.
[image: Prints & Photographs Collection, Heman Sweatt file, The Center for American History, University of Texas at Austin, via]
October 16, 2012
Daily Read: Laura Appleman on Oscar Wilde (and Proposition 8)
As the United States Supreme Court continues to hold in abeyance its decision on whether to grant certiorari in the cases challenging the constitutionality of prohibitions on same-sex marriage in Proposition 8 or DOMA, and many mark the 158th birthday of Oscar Wilde (pictured), Professor Laura Appleman's 2011 article Oscar Wilde's Long Tail: Framing Sexual Identity in the Law, available here, is worth a read.
Appleman argues that Wilde's 1895 trials for sodomy and the 2010 Proposition 8 trial both functioned as a legal stage for "enacting social-cultural anxiety over sexuality." But beyond comparisons, Appleman argues that the Wilde trials constructed certain narratives about sexuality that the Court has been unwilling to confront in its sexuality decisions, including in Romer v. Evans and Lawrence v. Texas. The same-sex marriage decisions by state courts likewise participate in these narrative constructs. Although, as her article states in its last sentence, how the courts continue down these paths is "a story yet untold."
[image of Oscar Wilde, circa 1882 via]
October 08, 2012
Daily Read: Skibine on Native American Religious Land Protections
In Towards A Balanced Approach for the Protection of Native American Sacred Sites, 17 Mich. J. Race & L. 269 (2012), available on ssrn, ConLawProf Alex Tallchief Skibine navigates the difficult territory of the First Amendment and RFRA, including the applicability of Lyng v. Northwest Indian Cemetery, in the context of Native American claims.
Skibine posits that "Native American religions are land based." He notes that sacred places "used to be located within the tribes' ancestral territories, but as a result of conquest, land cessions, and other historical events, many sacred sites are now located on federal land." Skibine criticizes the tendency, so evident in Lyng, to “equate Indians' religious exercises at sacred sites with Western yoga-like practices.”
In other words, this view portrays Native religious activities at sacred sites as only about spiritual peace of mind. While such benefits are certainly part of the practice, they do not go to the heart of why these sacred places are important to Indian people or why management practices like cutting down trees and spilling recycled sewage water on sacred land are extremely disturbing to many Indian tribes. The importance of sacred sites to Indian tribes and Native practitioners is less about individual spiritual development and more about the continuing existence of Indians as a tribal people. The preservation of these sites as well as tribal people's ability to practice their religion there is intrinsically related to the survival of tribes as both cultural and self-governing entities
Professor Skibine proposes legislative compromise and clarity, including an intermediate scrutiny standard, arguing:
In adopting intermediate scrutiny to review governmental actions jeopardizing sacred sites, I hope to appease some critics who will argue that Native Americans should not be allowed to use religion to reclaim control over an unlimited amount of land that was taken from them throughout history. This is another version of the argument made by some that to the Indians, the whole earth is sacred and if we allow one claim, the floodgates will be open and there will be no end to claims of sacredness.RR
September 25, 2012
Daily Read: We've Been Framed? JP Stevens on Levinson
Writing in the New York Review of Books, for which he has become a not infrequent reviewer, former Justice John Paul Stevens has this to say about ConLawProf Sanford Levinson's new book, Framed: America's 51 Constitutions and the Crisis of Governance:
Framed, is a word that has more than one meaning. We often describe the men who drafted and ratified our Constitution as its “Framers” because they took action to design and create a new governmental structure. We seldom, however, acknowledge that their legal authority for engaging in that important enterprise extended only to the right to propose amendments to the Articles of Confederation, not to replace it. Even though Levinson disavows the idea that the title of his book was intended to suggest that the American people were somehow “framed,” in the more accusatory sense, by the unlawful work of the usually venerated “Framers,” that thought will occur to some readers.
Stevens has his share of disagreements with the book, but his conclusion is a "must read" endorsement:
Instead of reading like a brief in support of Levinson’s conclusions, Framed is a series of thoughtful and interesting essays discussing strengths and weaknesses of various structures established by our Constitution. The book offers an enlightening comparison of those structures with those adopted by states and foreign governments in dealing with similar issues. Many may disagree with Levinson’s arguments, but they will have to think hard about why they disagree. His book is well worth reading.
[image: Junius Brutus Stearns, "Washington at Constitutional Convention, 1787" circa 1856 via]
September 21, 2012
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."
A 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?
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.