Monday, April 15, 2013
The oral arguments in Adoptive Couple v. Baby Girl, on certiorari to the South Carolina Supreme Court will be held on April 16. The case, also known as “Baby Veronica,” is an emotional struggle over custody of a small child.On one view, the Court’s task is a relatively simple one of statutory interpretation, including the definition of “parent” in the Indian Child Welfare Act, ICWA. The petitioners, the adoptive couple, articulate the questions presented as:
(1) Whether a non-custodial parent can invoke the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-63, to block an adoption voluntarily and lawfully initiated by a non-Indian parent under state law.
(2) Whether ICWA defines “parent” in 25 U.S.C. § 1903(9) to include an unwed biological father who has not complied with state law rules to attain legal status as a parent.
The questions presented by the respondent birth father, a registered member of the Cherokee Nation, and by the respondent Cherokee Nation, and by the United States as amicus curiae supporting the respondent, all likewise focus on ICWA, albeit with a different persuasive cadence. These articulations stress the positive acts of the biological father. For example, as the biological father phrases the parenting definition question:
Whether an Indian child’s biological father who has expressly acknowledged that he is the child’s father and has established that he is the father through DNA testing is the child’s “parent” within the meaning [of ICWA].
The Brief of the United States as amicus curiae, supporting the respondent father and tribe has a similar issue statement, asking whether the state courts properly applied ICWA
to award custody of an Indian child to her biological father over an adoptive couple, where the father acknowledged and established his paternity and no remedial measures had been taken to avoid termination of his parental rights.
However, the case is not merely one of statutory interpretation, but raises important, if not always obvious, constitutional issues.
First, Congressional intervention in child welfare must rely on a particularly enumerated power of Congress, the usual one being the Spending Clause. For Native Americans, however, Congressional power is often labeled “plenary,” although it is grounded most specifically in the Indian Commerce Clause, Art. I §3 cl. 8. ICWA was intended to prevent the removal of Native children from their parents - - - as well as their tribes - - - a history that many of the amicus briefs discuss in depth.
Second, and relatedly, this Congressional power over Native children raises federalism issues, especially given that child custody and adoption are generally within the state’s police powers. In the case of Baby Veronica, the South Carolina Supreme Court affirmed the trial judge’s application of ICWA to deny the adoption and award custody to the Native father. Yet the very existence of ICWA arguably intrudes upon state police powers.
Third, and most stealthily, the case may present issues of due process and equal protection. In the brief on behalf of Baby Veronica through her Guardian ad Litem authored by Paul Clement, the arguably “erroneous interpretation” of ICWA “raises serious constitutional issues.” In this argument, the best interests of the child standard - - - the usual touchstone in child adoption and custody - - - aspires to a constitutional right of the child. Moreover, the state court’s decision violated the baby’s equal protection and due process rights.
For example, the brief analogizes to the equal protection case of Palmore v. Sidoti:
In Palmore, this Court struck down the use of racial classifications to remove a child from an appropriate custody placement. This case is no different. Baby Girl’s Indian blood quantum was the sole reason the lower court ordered her removed from the loving, stable home she had lived in since birth and placed with a biological father whose failure to timely care for her extinguished any parental rights he might otherwise have had under state law or the Constitution.
Less successfully, the brief attempts to articulate a liberty interest of the child:
And “to the extent parents and families have fundamental liberty interests in preserving such intimate relationships, so, too, do children have these interests, and so, too, must their interests be balanced in the equation.” Troxel v. Granville, 530 U.S. 57, 88 (2000) (Stevens, J., dissenting).
Yet ultimately, the brief argues that there is an (unconstitutional) racial classification if ICWA is applied too broadly. Clement argues that ICWA should be interpreted to limit "its application to adoption and custody proceedings involving children who are either domiciled on a reservation or have some other tribal connection beyond biology."
These limitations are crucial to preserving the Act’s constitutionality, ensuring that the Act’s differential treatment of Indians operates only to promote tribal sovereignty and the unique interests of Indians as tribal citizens, and not as invidious racial discrimination that arbitrarily trumps Baby Girl’s liberty interests. [ICWA's] definition of parent, properly interpreted, avoids these difficulties by declining to give an unwed Indian father rights based on biology alone that no non-Indian unwed father enjoys.
Moreover, ICWA's constitutional interpretation rests upon limiting its "application to children in the pre-existing custody of an Indian parent or other circumstances in which there is a distinct connection to tribal interests."
Clement - - who so recently represented BLAG supporting the constitutionality of DOMA in United States v. Windsor - - - here has quite a different view of equality and federal power.
While it is unlikely that these constitutional arguments assume center stage, they may infuse the statutory interpretation of ICWA so squarely before the Court.
[image circa 1890 via]
April 15, 2013 in Congressional Authority, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fundamental Rights, History, Interpretation, Race, Sexuality, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Monday, April 1, 2013
Can a judge - - - a Supreme Court Justice - - - be a practitioner of "popular constitutionalism"? Was Justice Felix Frankfurter such a judge?
Snyder's view of popular constitutionalism may be a broader than some, but his linking of judicial restraint with popular constitutionalism, especially when situated in the New Deal era, is sound. Snyder concentrates on three of the most important and oft-criticized constitutional moments of Frankfurter's judicial career – the flag salute cases of Minersville School Dist. v. Gobitis (1940), reversed a mere three years later in West Virginia Bd. of Educ. v. Barnette (1943); Brown v. Board of Education and its progeny; and Baker v. Carr (1962).
Snyder concludes: "Frankfurter’s judicial reputation suffered at the hands of scholars intent on preserving the Warren Court’s legacy of protecting civil rights and civil liberties. Frankfurter’s Baker [v. Carr] dissent, however, has proven to be just as prophetic as some of Holmes’s and Brandeis’s dissents because it revealed the ugly underside of the Warren Court’s legacy – judicial supremacy."
While others have certainly noted the vacillations of progressive and conservative judicial activism, Snyder's article calls for a renewed evaluation of Frankfurter and perhaps of popular constitutionalism.
Friday, March 22, 2013
The Obama Administration has given us just a glimpse of its legal analysis authorizing its use of drone attacks on U.S. citizens in a foreign country outside the zone of active hostilities. And that mere glimpse contains a telling, and deeply troubling, reference to an earlier episode, Nixon's bombing of Cambodia, writes Professor Mary Dudziak (Emory), author of War Time: An Idea, Its History, Its Consequences, in the NYT.
Dudziak points to a citation to a 1970 speech by Department of State Legal Adviser John R. Stevenson in the recently released "white paper" setting out the administration's legal justification for drone attacks. In that speech, Stevenson argued that the U.S. had authority to take military action in Cambodia in self-defense against North Vietnamese attacks from that country. Dudziak explains:
Since 1965, "the territory of Cambodia has been used by North Vietnam as a base of military operations," [Stevenson] told the New York City Bar Association. "It long ago reached a level that would have justified us in taking appropriate measures of self-defense on the territory of Cambodia. However, except for scattered instances of returning fire across the border, we refrained until April from taking such action in Cambodia."
But there was a problem:
In fact, Nixon had begun his secret bombing of Cambodia more than a year earlier. (It is not clear whether Mr. Stevenson knew this.) So the Obama administration's lawyers have cited a statement that was patently false.
Here's the full paragraph from page 4 of the white paper:
The Department has not found any authority for the proposition that when one of the parties to an armed conflict plans and executes operations from a base in a new nation, an operation to engage the enemy in that location cannot be part of the original armed conflict, and thus subject to the laws of war governing that conflict, unless the hostilities become sufficiently intense and protracted in the new location. That does not appear to be the rule of the historical practice, for example, even in a traditional international conflict [i.e., a conflict between nations]. See John R. Stevenson, Legal Adviser, Department of State, United States Military Action in Cambodia: Questions of International Law, Address before the Hammarskjold Forum of the Association of the Bar of the City of New York (May 28, 1970), in 3 The Vietnam War and International Law: The Widening Context 23, 28-30 (Richard A. Falk, ed. 1972) (arguing that in an international armed conflict, if a neutral state has been unable for any reason to prevent violations of its neutrality by the troops of one belligerent using its territory as a base of operations, the other belligerent has historically been justified in attacking those enemy forces in that state). Particularly in a non-international armed conflict, where terrorist organizations may move their base of operations from one country to another, the determination of whether a particular operation would be part of an ongoing armed conflict would require consideration of the particular facts and circumstances in each case, including the fact that transnational non-state organizations such as al-Qa'ida have no single site serving as their base of operations. [Citation omitted.]
Dudziak argues that the citation to Nixon's bombing of Cambodia illustrates a problem, instead of providing a precedent:
The Cambodia bombing, far from providing a valuable precedent for today's counterterrorism campaign, illustrates the trouble with secrecy: It doesn't work. If Nixon had gone to Congress or announced the plan publicly, the historian Jeffrey P. Kimball has written, "there would have been an uproad." But disclosure was ultimately forced upon him when he decided to send ground troops into Cambodia. A new wave of giant antiwar protests erupted, and Nixon's ability to take further aggressive action became infeasible.
She writes that we expect more, and deserve more, of President Obama.
Wednesday, March 13, 2013
The controversies surrounding the Court's impending decision in Shelby County v. Holder regarding the constitutionality of the Voting Rights Act's "preclearance" provision (section 5) have been exacerbated by Justice Scalia's remarks about "racial entitlement." Seemingly, at issue for the Justices - - - originalist and otherwise - - - is the meaning of the enforcement clauses of the Fifteenth and Fourteenth Amendments: "The Congress shall have power to enforce this article by appropriate legislation."
In a provocative new article, A Structural Theory of Elections, available in draft on ssrn, ConLawProf Franita Tolson (pictured) seeks to redirect our attention to section 2 of the Fourteenth Amendment:
Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.
Tolson's attention is not to the language that first introduced gender into the Constitution ("male inhabitants") or to the change in counting those male inhabitants ("excluding Indians") or to the subsequent change in voting age, but to the broad ability of Congress to change the apportionment for voting rights violations. She argues that this previously under-emphasized language makes the Court's "congruence and proportionality" standard for evaluating Congressional power inapplicable in the voting and election contexts.
Tolson's article is a closely reasoned and excellently researched argument for the broad enforcement powers of Congress intended by the Framers of the Fourteenth and Fifteenth Amendments. She ultimately contends "that requiring preclearance of all electoral changes instituted by select jurisdictions under section 5 of the Voting Rights Act is actually a lesser penalty than reduced representation under section 2, and is thus consistent with Congress’s broad authority to regulate voting and elections under the Fourteenth and Fifteenth Amendments."
Tolson's article is certainly worth a read for anyone considering the issues at the heart of Shelby County v. Holder.
Tuesday, March 12, 2013
ssrn author page.
As his obituary in The Telegraph described him, Robin Cooke
strove to give reality to his country's commitment to biculturalism embedded in the Treaty of Waitangi, resolving Maori land claims cases and earning the highest respect from Maori elders. Following the New Zealand Bill of Rights Act (1990) he exercised a steadying hand on the legal tiller, which ensured relative social stability during reforms that culminated in the abolition of the appeals from New Zealand to the Privy Council and the establishment of a newly-created supreme court.
The Lord Cooke Project at Victoria University of Wellington (New Zealand/Aortearoa), spearheaded by law profs Joel Colón-Ríos and John Prebble has a goal to upload all of Lord Cooke’s published and unpublished papers and make them more widely accessible.
ConLawProfs doing comparative constitutional law will be interested in Cooke's work, particularly his writings about the constitutional arrangements in colonial (especially white settler) societies with both the indigenous populations and with the colonial power. Cooke also wrote widely on the development of the common law and the ssrn page now includes his four papers from the prestigious Hamlyn Lectures. This is a terrific contribution since published Hamyln lectures are usually burdened with a hefty pricetag.
The Telegraph obituary also mentions that Cooke authored an article "disagreeing with the creation of a Supreme Court for the United Kingdom on the ground that the present system worked perfectly well." It would be interesting to contemplate Lord Cooke's opinions about the current UK Supreme Court, including its struggle for gender diversity.
Thanks to the work by Colón-Ríos and Prebbles, consulting and citing Lord Robin Cooke's work is now much easier.
Monday, March 11, 2013
Professor Peter Irons (UCSD Emeritus, and founder and Director Emeritus, Earl Warren Bill of Rights Project, UCSD) calls for Supreme Court repudiation of Hirabayashi, Yasui, and Korematsu in his recent piece Unfinished Business: The Case for Supreme Court Repudiation of the Japanese American Internment Cases.
The Supreme Court in those cases upheld convictions of Japanese Americans for violations of the military curfew and exclusion orders issued by President Franklin D. Roosevelt on February 19, 1943.
Irons initiated and served as counsel to Fred Korematsu and Gordon Hirabayashi in their 1983 coram nobis actions, which led to the vacation of their wartime convictions. Irons also wrote Justice at War: The Story of the Japanese American Internment Cases and edited Justice Delayed: The Record of the Japanese American Internment Cases.
Irons now calls for Supreme Court repudiation of Hirabayashi, Yasui, and Korematsu, an unprecedented act, but one that Irons says is appropriate here:
This essay presents the case for the Supreme Court to . . . formally repudiat[e] its decisions in the Japanese American internment cases, issuing a public statement acknowledging that these decisions were based upon numerous and knowing acts of governmental misconduct before the Court, and were thus wrongly decided. These acts of misconduct, documented and discussed herein, were committed by several high-ranking military and civilian officials (including the Solicitor General of the United States) before and during the pendancy of the internment cases before the Supreme Court. Consequently, the Court was forced to rely in making its decisions on records and arguments that were fabricated and fraudulent. Sadly, the Court's unquestioning acceptance of these tainted records, and its upholding of the criminal convictions of Gordon Hirabayashi, Minoru Yasui, and Fred Korematsu, has left a stain on the Court's integrity that requires the long overdue correction of public repudiation and apology, as both the legislative and executive branches of the federal government--to their credit--have now done.
Irons explains why Hirabayashi, Yasui, and Korematsu couldn't get the Supreme Court's rulings overturned, and thus why his efforts are now necessary:
Admittedly, a public repudiation of the Japanese American internment cases would be unprecedented, considering that the cases are technically moot, since the Solicitor General of the United States at the time, Charles Fried, did not ask the Court to review the decisions of the federal judges who vacated the convictions, pursuant to writs of error coram nobis that were filed in all three cases in 1983 and decided in opinions issued in 1984, 1986, and 1987. The government's decision to forego appeals to the Supreme Court left the victorious coram nobis petitioners in a classic Catch-22 situation: hoping to persuade the Supreme Court to finally and unequivocally reverse and repudiate the decisions in their cases, they were unable--as prevailing parties in the lower courts--to bring appeals to the Court.
Irons argues that the Court "has both the inherent power and duty to correct its tainted records through a public repudiation of the wartime decisions."
This is a piece in the finest tradition of making academic work relevant to the real world--what Irons does so well. It's a persuasive piece of history, scholarship, and activism by somebody who helped make--and continues to make--that story. Highly recommended.
[Image: Gordon Hirabayashi, Minoru Yasui, Fred Korematsu]
Thursday, March 7, 2013
Linda Greenhouse's NYT "Opinionator" column is almost always worth a read.
But yesterday's column entitled "A Big New Power" is a must-read for anyone considering the Court's pending opinion in Shelby County v. Holder and the controversy surrounding Scalia's remarks during the oral argument.
Years from now, when the Supreme Court has come to its senses, justices then sitting will look back on the spring of 2013 in bewilderment. On what basis, they will wonder, did five conservative justices, professed believers in judicial restraint, reach out to grab the authority that the framers of the post-Civil War 14th and 15th Amendments had vested in Congress nearly a century and a half earlier “to enforce, by appropriate legislation” the right to equal protection and the right to vote.
Greenhouse admits she is forecasting the outcome, but her column makes that outcome seem less palatable.
Tuesday, March 5, 2013
O'Connor is promoting her new book, Out of Order: Stories from the History of the Supreme Court, reviewed in the NYT yesterday.
Update: more O'Connor here.
Today's "read" is the video of former Justice O'Connor on "The Interview" segment of the Rachel Maddow Show. It raises ethics issues in an interesting way as well as gender in the Court and Bush v. Gore as not very "special" although also "important."
It starts at 5.35 below:
Monday, March 4, 2013
Jeffrey Toobin's profile of Justice Ginsburg, entitled The Heavyweight, is behind a paywall at The New Yorker, but news outlets are already reporting some material, including Justice Ginsburg's plan not to retire this year (or next).
Toobin characterizes Ginsburg as "reserved, noting that there "is some irony in Ginsburg’s reputation for reserve, because she is, by far, the current Court’s most accomplished litigator. Before Chief Justice John G. Roberts, Jr., became a judge, he argued more cases than Ginsburg did before the Justices, but most of them were disputes of modest significance."
Worth a read - - - especially for those who like celebrity legal profiles.
Friday, March 1, 2013
While there is apparently no official copy of Bradley Manning's statement, The Guardian has published a copy of Manning's lengthy statement as transcribed by independent journalist Alexa O'Brien.
At this point I decided that it made sense to try to expose the SigAct tables to an American newspaper. I first called my local news paper, The Washington Post, and spoke with a woman saying that she was a reporter. I asked her if the Washington Post would be interested in receiving information that would have enormous value to the American public.
Although we spoke for about five minutes concerning the general nature of what I possessed, I do not believe she took me seriously. She informed me that the Washington Post would possibly be interested, but that such decisions were made only after seeing the information I was referring to and after consideration by senior editors.
I then decided to contact [missed word] the most popular newspaper, The New York Times. I called the public editor number on The New York Times website. The phone rang and was answered by a machine. I went through the menu to the section for news tips. I was routed to an answering machine. I left a message stating I had access to information about Iraq and Afghanistan that I believed was very important. However, despite leaving my Skype phone number and personal email address, I never received a reply from The New York Times.
Such revelations invite an obvious comparison between Bradley Manning's plight and that of Daniel Ellsburg, who revealed The Pentagon Papers and prompted the renowned First Amendment decision in New York Times v. United States (1971). Another comparison is to a Civil War prosecution, even as courts consider First Amendment claims resisting the government subpoenas of Twitter accounts.
But Bradley Manning's case is proving unique.
Wednesday, February 27, 2013
As the Court - - - and the country - - - consider the Voting Rights Act (VRA) and the constitutionality of the preclearance provision at issue in Shelby County v. Holder ConLawProfs might find useful the insights of Andrew Cohen, Atiba Ellis, Adam Sewer (on CJ Roberts), Adam Winkler or numerous others. But the observations of William Faulkner (pictured), Nobel Prize in Literature recipient who placed Yoknapatawpha County, Mississippi on our (fictional) maps are also pertinent according to Joel Heller's excellent article, Faulkner’s Voting Rights Act: The Sound and Fury of Section Five, 40 Hofstra Law Review 929 (2012), and available on ssrn.
Joel Heller argues that pronouncements that 'The South has changed' fail to take into account the "ongoing burden of memory that Faulkner portrays so powerfully." Heller contends that the VRA's section 5 preclearance provision "does not punish the sons for the sins of the father, but keeps in check the uncertain consequences of a current ongoing consciousness of those sins." Heller uses Faulkner to effectively discuss various attitudes short of intentional discrimination that might nevertheless have racially discriminatory results. These include lawmakers shame and denial of the past accompanied by a devotion to the "things have changed" mantra that would prevent perceptions of racially problematic actions. Additionally, "local control" possesses a nostalgic power, even as the era being evoked was one of white supremacy.
While Faulkner did not live to see the VRA Act become law, Joel Heller's engaging article is definitely worth a read as the Court considers Congressional power to remedy discrimination in the Old/New South.
[image of William Faulkner via]
February 27, 2013 in Books, Congressional Authority, Elections and Voting, Fifteenth Amendment, History, Race, Reconstruction Era Amendments, Scholarship, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Saturday, February 23, 2013
Entitled "After 50 Years, the Voting Rights Act's Biggest Threat: The Supreme Court," Andrew Cohen's extensive article just published in The Atlantic is a must-read for anyone following the Court's pending oral argument (on Wednesday, February 27) in Shelby County v. Holder.
Recall that the Court's grant of certiorari last November 9 put the Voting Rights Act (VRA) "in the crosshairs" of the Court - - - as we said at the time - - - noting that the VRA's constitutionality had been seriously questioned but ultimately evaded by the Court's 2009 decision in Northwest Utilities District of Austin v. Holder . The DC Circuit had upheld the constitutionality of the preclearance provisions of the VRA.
Andrew Cohen's article provides a terrific contextualize of the politics, including the Court's politics, that surround the constitutional controversy. Cohen writes that "racial polarization has intensified during the Obama Administration," with "'explicit anti-black attitudes'" around the country, "especially among Republicans," many of whom "sponsored and enacted some of the voter suppression laws of the 2012 cycle." Cohen also argues that the Court essentially "invited many of the state voter suppression efforts of the past three years" by its decisions, including not only Northwest Utilities District of Austin v. Holder, but also the 2008 decision in Crawford v. Marion County, upholding a voter identification statute. Cohen contends: "Having created the factual and legal conditions to undermine the federal law, the Court now is poised to say that it is weakened beyond repair."
Cohen concludes that the stakes in Shelby are very high:
If the Court strikes down Section 5 of the Voting Rights Act, this year especially, given the record of the past three years, the justices who do so will reveal a disconcerting level of disconnect from the realities of modern American politics as they were expressed in the near-unanimous renewal of the Act in 2006. And the partisan ruling they would issue in this circumstance would be even more brazenly ideological and untethered from precedent than the Citizens United ruling issued in January 2010.
Cohen's timely, provocative, and well-argued article is definitely worth a read and would be a great suggested reading for law students considering the issue.
February 23, 2013 in Courts and Judging, Current Affairs, Elections and Voting, Fifteenth Amendment, History, Interpretation, Race, Supreme Court (US), Teaching Tips | Permalink | Comments (0) | TrackBack (0)
Tuesday, February 19, 2013
The First Amendment's relationship to what we call "academic freedom" can be fraught (here's one recent example), but in her compelling new book, Priests of Our Democracy Marjorie Heins provides doctrinal, historical, and political links between our understandings. Subtitled The Supreme Court, Academic Freedom, and the Anti-Communist Purges, the book takes as it centerpiece Keyishian v. Board of Regents (1967), a case that is oft-cited and just as often omitted from casebooks.
For ConLawProfs not teaching Keyishian - - - and this book will make you wonder why you are not - - - Heins' book illuminates important First Amendment doctrine and politics. Her history develops the parties, the lawyers, and the institutions involved in Keyishian with fascinating detail and readable prose. Her discussion of the larger anti-Communist "purges" is sharp and solid; it leads to considerations of the post 9/11 landscape.
And for ConLawProfs writing in the area, Heins' volume is an absolutely essential read.
Monday, February 18, 2013
In a particularly effective scene in a movie with many more of them, President Abraham Lincoln holds aloft a pen for emphasis and forcefully declares his intent to soon sign the 13th Amendment, abolishing slavery. The problem is that presidents do not sign constitutional amendments. Abraham Lincoln, the best lawyer to ever serve as the nation's chief executive, undoubtedly knew this. He would not have declared his intention to sign an amendment that was not his to sign.
But Zelinsky's willing to cut screenplay author Tony Kushner some slack:
Mr. Kushner's liberties with the details of the Constitution served a legitimate artistic mission by graphically portraying Lincoln's personal commitment to the abolition of slavery. As the movie makes clear, the abolition of slavery via the 13th Amednment was not inevitable. Lincoln's commitment was decisive.
As Zelinsky points out, the alternative--in which Lincoln might have said "something along the lines of wanting Congress to promptly send the 13th Amednment to the states"--is "not the stuff on which Oscar nominations are made." Good point.
(Zelinsky also references another error: the movie's portrayal of Connecticut congressman as voting against the Thirteenth Amendment. In fact, Connecticut's representatives voted for it.)
But if the film committed errors, it also helped correct them--or at least one of them. According to The Atlantic Wire, a recent immigrant from India, Dr. Ranjan Batra, after seeing the movie, researched and determined that Mississippi never ratified the Thirteenth Amendment. Last week it did.
Today we celebrate "Presidents' Day" and ConLawProfs contemplating executive power might do well to consider the Haitian Revolution (1791-1804) as a formative experience.
In his new article, Slavery, Executive Power and International Law: The Haitian Revolution and American Constitutionalism, available in draft on ssrn, ConLawProf Robert Reinstein argues that the "six administrations from George Washington through John Quincy Adams responded to the slave revolt and establishment of Haitian independence in ways that greatly expanded executive power."
Indeed, as Reinstein reminds us, the first sole executive agreements were made by Adams with regard to Haiti (predating the seizure of the schooner The Wilmington Packet by six months). Reinstein contends that the Haitian history is important because
Many of the most controversial questions presidents face in the modern era—whether to support regime change, use military force to protect American interests abroad, intervene in civil wars, arm foreign rebellions, form secret agreements with governments or belligerents, comply with obligations of international law—were first faced in the American reactions to the Haitian slave revolt.
Yet as Reinstein observes, the history also reveals conflicting executive interests, at times favoring domestic fear of a similar slave-revolt and at other times favoring geopolitical (and capitalist) interests. At the center - - - not surprisingly - - - is Thomas Jefferson, who vowed to reduce Haiti's charismatic leader Toussaint L'ouverture to "starvation."
But Reinsten also centers the Supreme Court's hostility to the establishment of the second independent nation in the Western Hemisphere. Reinstein writes that as "Congress debated the first Haitian embargo bill, a Representative asked: “Have these Haytians no rights?”" Reinstein concludes that the "answer ultimately given by the United States government was unequivocal: “No.”"
An important - - - and oft-neglected - - - history of executive power as well as judicial power worth a read on Presidents' Day.
[image of Toussaint L'ouverture from a French engraving circa 1802 via]
Tuesday, January 22, 2013
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—”
Monday, January 21, 2013
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.
Monday, January 7, 2013
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 (0)
Tuesday, January 1, 2013
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]