Tuesday, November 6, 2012
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.
Monday, October 22, 2012
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.
Thursday, October 18, 2012
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]
Tuesday, October 16, 2012
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]
Monday, October 8, 2012
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
Tuesday, September 25, 2012
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]
Friday, September 21, 2012
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.
Political Science Prof Alec Ewald reviews Pamela Brandwein's book, Rethinking the Judicial Settlement of Reconstruction in Law & Politics Book Review here.
Brandwein (pictured), a political science professor, has written a "bold revisionist book, sure to challenge the assumptions of anyone who has written on or taught Reconstruction-era Constitutional history," according to Ewald.
It's Brandwein's focus on the state action doctrine that will most interest conlawprofs. Here is Ewald's ultimate assessment:
The total disenfranchisement of southern blacks after 1891 had many causes, but “[a] ‘closed’ doctrine of state action, one that shut the door on federal efforts to protect black rights, was not among them” (p.183). When we talk about the state-action doctrine, we are talking about a messy thing rather than a bright line. But the cases themselves, and particularly those all-too-quotable lines from the Civil Rights Cases, can seduce us into thinking the Court of the early 1880s drew a sharp boundary around all non-governmental action and declared it completely off-limits for the federal government. Brandwein shows it wasn’t so.
A good review can tell us whether or not the book is worth our time. Ewald demonstrates that Brandwein's book is a necessary one for anyone teaching or writing on state action.
Monday, September 17, 2012
From the 2012 Presidential Proclamation, declaring September 17, 2011, as Constitution Day and Citizenship Day, and September 17 through September 23, 2011, as Constitution Week.
In the summer of 1787, delegates from the States gathered in Philadelphia to build a new framework for our young republic. Our Constitution's Framers represented diverse backgrounds, and on key issues, they were divided. Yet despite their differences, they courageously joined together in common purpose to create "a more perfect Union." After 4 months of fierce debate and hard-fought compromise, the delegates signed the Constitution of the United States.
For more than two centuries, the Constitution has presided as the supreme law of the land, keeping our leaders true to America's highest ideals and guaranteeing the fundamental rights that make our country a beacon of hope to all peoples seeking freedom and justice. Together with the Bill of Rights, our Constitution is the backbone of our government and the basis of our liberties. Even while retaining its structure, our founding document has grown with our Nation's conscience, amended over the years to extend America's promise to citizens of every race, gender, and creed.
Americans are defined not by bloodlines or allegiance to any one leader or faith, but by our shared ideals of liberty, equality, and justice under the law. We are a Nation of immigrants, built and sustained by people who have brought their talents, drive, and entrepreneurial spirit to our shores. Generations of newcomers have journeyed to this land because they believed in what our country stands for.
[image: "Scene at the Signing of the Constitution of the United States" by Howard Chandler Christy, 1940 via]
Friday, September 14, 2012
Are the First Amendment's Religion Clauses good for women?
ConLawProf Marie Ashe suggests not, at least as the constitutional provisions have been interpreted by the Supreme Court since 1879.
The article, Women’s Wrongs, Religions’ Rights: Women, Free Exercise, and Establishment in American Law, 21 Temple Political & Civil Rights Law Review 163, is available on ssrn.
It's a must-read for anyone teaching First Amendment or doing scholarly work on the history or current construction of the Religion Clauses.
[image: The Baptism of Pocahontas, by John Gadsby Chapman, circa 1840, via]
Wednesday, July 4, 2012
Drafted by Thomas Jefferson, the document itself (or what we have come to consider the document but is actually a 1823 transcription) is on view at The National Archives.
The text is also available on the National Archives website.
The status of the Declaration of Independence as a foundational document is undisputed. However, its status as quasi-constitutional is subject to debate.
Unlike in the 2010-2011 Term, however, the United States Supreme Court did not seem to cite the Declaration of Independence even once in this past Term's opinions.
Tuesday, May 29, 2012
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.
[image: 17th Amendment as ratified via]
Sunday, May 20, 2012
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:
[Portrait of Thomas Cromwell by Hans Holbein, circa 1533, via]
Thursday, May 10, 2012
Law students know him as the "Katzenbach" of Katzenbach v. McClung, 379 U.S. 29 (1964), the "Ollies BBQ case" upholding Congressional power under the Commerce Clause for the accomodations portions of the 1964 Civil Rights Act, and of Katzenbach v. Morgan, 384 U.S. 641 (1966), the "Puerto Rican voting case" upholding Congressional power under §5 of the Fourteenth Amendment for the Voting Rights Act of 1965.
The NYT obituary highlights Katzenbach's actions during the civil rights era: "Perhaps his tensest moment came on June 11, 1963, when he confronted George C. Wallace in stifling heat on the steps of the University of Alabama in Tuscaloosa."
The WaPo obituary places him at the center of government during a turbulent era: "Katzenbach’s time in government was like a history of government in the 1960s: The Bay of Pigs. The Cuban Missile Crisis. Integration of schools. The Warren Report. The Civil Rights Act. Vietnam." It also links him as a source for Robert Caro's biography of LBJ.
The ACS Blog has a moving personal remembrance by Estelle Rogers.
[image: Katzenbach, 1968, via]
Sunday, May 6, 2012
The book of the week is definitely Robert Caro's fourth (and next to last) volume of the biography of Lyndon Baines Johnson, the 36th United States president. In over 700 pages, Caro discusses and documents five tumultuous years in the life of LBJ - - - and in the nation's life - - - roughly from 1960 until 1964.
It's a period that includes the assination of JFK with LBJ assuming the presidency. LBJ's oath of office, observed by Jackie Kennedy, is captured in an iconic photograph (right via). Caro's details of the event are based in part on interviews with the photographer.
The NYT Sunday book review has a front page review by the United State's 42nd president, Bill Clinton. In a passage that might give some pause given Clinton's own problems, Clinton writes:
As Caro shows in this and his preceding volumes, power ultimately reveals character. For L.B.J., becoming president freed him to embrace parts of his past that, for political or other reasons, had remained under wraps. Suddenly there was no longer a reason to dissociate himself from the poverty and failure of his childhood. Power released the source of Johnson’s humanity.
NPR also has a terrific review as well as an excellent interview by Steve Inskeep with Caro, stressing his writing process. Inskeep provides more insight and his own observations, including critiques of Caro's work, in an essay in The Washington Post. C-Span will air a two-part interview with Caro.
Caro vows to finish the final volume of the biography, which will cover the period until LBJ's death in 1973. It will undoubtedly include LBJ's nomination and the Senate's confirmation of Thurgood Marshall to the United States Supreme Court.
Thursday, May 3, 2012
This year, as President Obama issues the proclamation of a National Day of Prayer for May 3, it includes an invitation to "all citizens of our Nation, as their own faith directs them, to join me in giving thanks for the many blessings we enjoy, and I call upon individuals of all faiths to pray for guidance, grace, and protection for our great Nation as we address the challenges of our time."
Obama's proclamation is pursuant to 36 U.S.C. § 119 passed by Congress in 1988 and signed by Ronald Regan, declaring the First Thursday in May as the "National Day of Prayer."
While a district judge had enjoined the National Day of Prayer in 2010 as violating the Establishment Clause, the Seventh Circuit later ruled that the Freedom from Religion Foundation lacked standing to bring a claim for relief. Importantly, the Seventh Circuit stated that even if "this means that no one has standing, that does not change the outcome."
However, May 3 is now also the "National Day of Reason," supported by the American Humanist Association. Congressperson Pete Stark of California has made a statement on the floor of the House of Representatives recognizing the National Day of Reason as celebrating "the application of reason and the positive impact it has had on humanity. It is also an opportunity to reaffirm the Constitutional separation of religion and government." There is also a petition seeking President Obama's recognition of the National Day of Reason:
"We therefore respectfully ask that you issue a proclamation recognizing the National Day of Reason on May 3rd, 2012 in order to promote the importance of reason and to give secular Americans the same sort of governmental recognition that religious Americans receive on the National Day of Prayer. Regardless of our religious beliefs or lack thereof, we are all Americans."
[image: Erasmus, renowned humanist and theologian, Portrait by Hans Holbein, circa 1523, via]
Friday, April 27, 2012
On April 27 and 28, 2012, Yale Law School will host a conference on constitutional interpretation and change in conjunction with the publication of Professor Jack Balkin’s book, Living Originalism (Harvard University Press 2011), with many exciting panelists.
Not at the conference? Watch the live stream.
Wednesday, April 25, 2012
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?
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.
Friday, April 13, 2012
For the anniversary of the birth of Thomas Jefferson, born in Virginia April 13, 1743, one might celebrate by reading any number of books and articles about Thomas Jefferson's life, theorizing, and work, including The Hemingses of Monticello by Annette Gordon-Reed.
There is also this small gem from Chief Justice William Rehnquist, writing in 1993: Thomas Jefferson and his Contemporaries, 9 Journal of Law & Politics 595 (available on hein, lexis, and westlaw). Situating Jefferson in the controversies of the time, Rehnquist discusses the election of 1800, the impeachment trial of Justice Salmon Chase, and the oft-forgotten trial of Aaron Burr for treason over which Justice John Marshall presided. Rehnquist wrote:
Jefferson reacted to Marshall's rulings by intimating that by quashing certain evidence, Marshall had intended from the very beginning of the trial to acquit Burr. His private letters refer to the “will of the judge”, “chicanery”, and, perhaps his lifelong favorite characterization of any Marshall ruling—“sophistry.” Jefferson proposed a remedy for what he saw as improper judicial partisanship, first by suggesting privately the necessity for a constitutional amendment to make it easier to remove federal judges, and second, by making a thinly veiled threat against Marshall in his annual message to Congress. Despite these suggestions and despite the introduction of a number of proposed amendments to change the judiciary's life tenure or make removal easier, Jefferson did not press the issue and Congress let the matter lie. . . . the struggle between the judiciary and the other two branches during Jefferson's presidency resulted in “a sort of drawn battle,” with no real change to the status quo ante bellum.
This "sort of drawn battle" is still ongoing. There are many recent suggestions (e.g., here here) that federal judges should no longer have life tenure. Controversial cases such as Bush v. Gore, Citizens United, and the pending ACA decision - - - like the treason charge against Aaron Burr - - - provoke reconsideration of the meaning of Article III.
[image: Justice William Rehnquist's robe via]
Saturday, March 24, 2012
Feminist icon Elizabeth Cady Stanton (pictured right) is frequently portrayed as an anti-abortion. For example, bills such as The Susan B. Anthony and Frederick Douglass Act of 2011, H.R. 3541, and The Elizabeth Cady Stanton Pregnant and Parenting Students Services Act of 2005, S.1966, H.R. 4265, co-sponsored by 2012 Republican Presidential candidate Rick Santorum, sought to limit abortion and other reproductive rights in the name of Stanton (as well as anti-slavery hero Frederick Douglas). Stanton's supposed anti-abortion views are also frequently cited in Supreme Court briefs to defeat an argument that abortion is central to women's rights by noting that early feminists were against the practice.
But was Stanton actually anti-abortion?
Professor Tracy Thomas argues that Stanton is an unlikely - - - and inappropriate - - - poster woman for the contemporary anti-abortion movement in a new paper entitled Misappropriating Women’s History in the Law and Politics of Abortion. According to Professor Thomas, Stanton "did not talk about abortion per se" and "did not respond to the public campaign for the criminalization of abortion led by the medical profession with attacks on the growing autonomy of women." Instead,
Stanton turned this debate to her priority of women’s rights, framing the question as one of the “elevation of woman” through equal legal and social rights. Stanton’s theory of “enlightened motherhood” placed women as the “sovereign of her own person” with sole responsibility for deciding when and under what circumstances to bear children. She defended women accused of infanticide, exposing the gendered legal system of all-male juries, legislatures, and judges that condemned them. Stanton’s life work labored for radical change to the patriarchy of society seeking liberal legal reforms of equal rights for women. Her ideology was about the “self-sovereignty” of women and against the regulation of women by men or the law.
Of course, Stanton was not one of the framers of the Fourteenth Amendment and indeed, she refused to support the Amendment given its exclusion of women. Nevertheless, Stanton's "originalist" views on the rights of women are often invoked and Tracy Thomas has provided vital historical sources, analysis, and arguments regarding Stanton's position.
Thomas' article is sure to provoke its own analysis and arguments, and equally sure to be an important contribution in contemporary debates regarding the legal regulation of abortion. It's a must-read for any scholar working on this controversial constitutional area.
[image of Elizabeth Cady Stanton circa 1880 via]