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 8, 2013
Greenhouse has this reminder about federalism and family law:
There is much that’s questionable about this assertion of implicitly boundless state authority over family affairs. A famous pair of Supreme Court decisions from the 1920s armed parents with rights under the Due Process Clause to educate their children as they see fit, in resistance to state laws. Pierce v. Society of Sisters gave parents the right to choose private or religious schools despite an Oregon law that required public school education for all. Meyer v. Nebraska struck down a state law that barred the teaching of modern foreign language (the law’s post-World War I target was German.)
Nor is this ancient history. In 2000, the court struck down a state law in Washington that gave grandparents the right to visit their grandchildren over the parents’ objection. Justice O’Connor wrote the court’s opinion, Troxel v. Granville, which was joined by Chief Justice Rehnquist.
Substitute “marriage” for “criminal procedure” and you time-travel into last week’s argument. But you will listen in vain for the voice of Justice William O. Douglas, who brushed away concerns about what he dismissively called “this federalism” to ask: “Has any member of this court come out and said in so many terms it’s the constitutional right of a state to provide a system whereby people get unfair trials?”
As usual, Linda Greenhouse is worth a read, for ConLaw Profs and ConLaw students.
April 8, 2013 in Criminal Procedure, Current Affairs, Due Process (Substantive), Equal Protection, Federalism, Fifth Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Interpretation, Oral Argument Analysis, Sexual Orientation, Sexuality, Sixth Amendment, Supreme Court (US), Theory | Permalink | Comments (2) | 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.
Thursday, March 28, 2013
In the oral argument for United States v. Windsor challenging the constitutionality of the Defense of Marriage Act, DOMA, Chief Justice Roberts expressed skepticism that gays and lesbians were politically powerless, announcing to Roberta Kaplan, representing Edith Windsor, "As far as I can tell, political figures are falling over themselves to endorse your side of the case."
ConLawProf Darren Hutchinson (pictured) provides an indepth examination, context, and prescient critique of Roberts' remark in his new article, Not Without Political Power': Gays and Lesbians, Equal Protection, and the Suspect Class Doctrine, available in draft on ssrn. Hutchinson argues that the political powerlessness factor used to evaluate claims for heightened scrutiny under equal protection doctrine is "especially undertheorized and contradictory."
Hutchinson's article is a tour de force of precedent deploying rhetoric of political powerlessness. Of course, Hutchinson highlights Justice Scalia's well-known dissent in Romer v. Evans, the Colorado Amendment 2 case, noting that not only is it based on stereotypes but it "sounds exactly like a political document against gay and lesbian rights." But Hutchinson does suggest that there is indeed a role for politics, however at a much more sophisticated level. Rather than jettison any inquiry into political powerlessness as some scholars have argued, Hutchinson contends that a much more robust understanding of politics is necessary.
Ultimately, Hutchinson concludes that the present scholarly and judicial discourse
fails adequately to discuss the multiple factors that cause political vulnerability among gays and lesbians. While some gays and lesbians possess power, most of them do not. Poverty, gender, race, geography, and disability influence the ability of gays and lesbians to exercise political power.
Instead, he suggests that political science scholarship inform legal scholarship and judicial opinions, and that antisubordination legal scholarship inform wider discussions of equal protection. Certainly, Hutchinson's article should inform anyone considering political powerlessness in the context of same-sex marriage and equal protection.
March 28, 2013 in Current Affairs, Equal Protection, Family, Fifth Amendment, Fourteenth Amendment, Gender, Interpretation, Profiles in Con Law Teaching, Reconstruction Era Amendments, Scholarship, Sexual Orientation, Sexuality, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)
Wednesday, March 27, 2013
This is from the essay Toward a more perfect analysis, published in the SCOTUSBlog same-sex marriage sympoisum in September 2012:
The suggestions of clearly articulated standards and rigorous analysis are not simply the fantasies of a law professor. While Supreme Court opinions need not be constitutional law examination answers, neither should they be confusing, or marred by sarcasm or sentimentality. Students studying law should be exposed to more Supreme Court opinions demonstrating trenchant analysis rather than rhetorical politics.
Clearly articulated standards might also allow the lower federal courts as well as the state courts to engage in their own rigorous analysis rather than attempt to discern the correct standard from Supreme Court precedents that are unclear, internally inconsistent, or point in several directions. This is not to say that the same-sex marriage issue should have been easily resolved by lower courts or that the applications of the standard are not difficult and value-laden. However, the grappling of the lower courts for several years now regarding the actual holding of Romer v. Evans, as well as Loving v. Virginia, could have been avoided.
Regarding the suggested holdings in the Proposition 8 and DOMA cases, the Supreme Court’s clear conclusion that sexuality merits intermediate scrutiny review, like gender, would disentangle the equal protection doctrine from the animus inquiry. While certainly animus can be operative, the inquisition into intent invites protestations of moral belief or religious conviction. The false opposition between equality and morals needs to be abandoned. Additionally, the linking of sexual orientation and gender as quasi-suspect should lead courts to find classifications based upon gender identity, transgender identity, or gender nonconformity as similarly subject to intermediate scrutiny review. Additionally, the Supreme Court’s definitive holding that marriage is a fundamental right meriting strict scrutiny review would extricate the issues from the federalism quagmire.
March 27, 2013 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Gender, Interpretation | Permalink | Comments (0) | TrackBack (0)
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 5, 2013
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:
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)
Sunday, February 17, 2013
The schedule includes an all-star line-up. Here's the description:
Originalism--the thesis that legitimate constitutional interpretation is bound by original meaning or intent--has emerged as an influential and controversial approach to how we interpret our Constitution. While some claim that constitutional interpretation and legitimacy require unearthing the original meaning or intent, others assert that tethering current citizens and interpreters to the comprehension of long-dead people is the antithesis of good and proper democratic government.
The Fordham Law Review is proud to present a symposium gathering a remarkable group of legal scholars, historians, and philosophers to discuss if, how, and why Originalism should inform constitutional analysis.
Friday, February 15, 2013
Sean Wilson (pictured) provides a compelling view of constitutional interpretation in his new book, The Flexible Constitution. His work is often Dworkian in tone, although Wilson distinguishes himself from Dworkin's interest in moral reasoning. Instead, Wilson writes that constitutional law problems are what "Wittgenstein described as aesthetical judgments - i.e. judgments that a connosseur would make" and Wilson stresses culture much more than morality. (p. 83).
Worth a special read is the book's Appendix, "The Philosophical Investigation," which provides a Wittigensteinian interrogation of the meaning of "the original meaning of the Constitution." This would be a terrific exercise for a Constitutional Interpretation or Jurisprudence seminar.
Monday, February 11, 2013
President Obama is finally wrapping himself in the Constitution, engaging conservatives in a constitutional dialogue, and moving to retake the Constitution for progressives, writes Simon Lazarus, senior counsel at the Constitutional Accountability Center, in the New Republic.
Lazarus argues that President Obama's Constitution draws on the spirit of 1776 to promote a progressive agenda, and not one that mandates just small government. But President Obama's Constitution also "echoes that of the Reconstruction Congresses, which enacted the Thirteenth, Fourteenth, and Fifteenth Amendments." In particular, Lazarus says that President Obama sees the Constitution as authorizing Congress "to prevent private interference with the exercise of individual rights"--restricting certain private acts, and not, as some conservatives would have it, only restricting government.
Thus, in addition to yoking contemporary progressive goals to the vision of the Revolutionary War generation, Obama's emergent constitutional canon appears bent on revitalizing a cornerstone of the Civil War era's more unequivocally progressive vision. Indeed, he seems already to have sparked an incipient dialogue around that prospect.
By engaging the right on the meaning of the Constitution, Obama has broken new ground. For progressives, he has sketched a fresh template for countering their adversaries' long-unanswered constitutional narrative.
Sunday, January 27, 2013
ConLawProf Louis Michael Seidman (Georgetown) shared a thumb-nail version of his "constitutional disobedience" at CBS Sunday Morning. Drawing on dead-hand, anti-democratic, and pragmatic arguments, he contends that constitutional disobedience has both a history (as when past presidents have acted against the Constitution) and a virtue (as when we might ignore election results that would allow a presidential candidate rejected by the majority of Americans to assume office). He also says that the better way to approach the document is as an inspiration, not a set of commands.
Here's his example from the gun control debates:
But what happens when the issue gets Constitutional-ized? Then we turn the question over to lawyers, and lawyers do with it what lawyers do. So instead of talking about whether gun control makes sense in our country, we talk about what people thought of it two centuries ago.
Worse yet, talking about gun control in terms of constitutional obligation needlessly raises the temperature of political discussion. Instead of a question on policy, about which reasonable people can disagree, it becomes a test of one's commitment to our foundational document and, so, to America itself.
For the full version, check out Seidman's new book, On Constitutional Disobedience (OUP).
Tuesday, January 22, 2013
President Obama's recent and frequent constitutional references--from those in his inaugural address to those related to his administration's gun control actions--is part of a larger strategy to promote administration policies, argues Sean Sullivan over at The Fix: "Put simply, he's fighting fire with fire." That's constitutional fire. And the fire he's fighting is the constant barrage of constitutional claims against his policies and actions. Sullivan:
When the Constitution has been brought up in the national political debate, it's typically been by the president's opponents, at least in recent years. . . .
What Obama is signaling [is] that he believes he can fight--and win--major battles on similar terms.
Sullivan says this much is clear: Obama isn't going to "let his opponents monopolize one of the nation's most revered documents in the highest-stakes political and policy debates."
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)
Friday, December 7, 2012
Revolution and Pragmatism? Aren't they oppositional concepts, and indeed, opposing realities?
Mark Kende (pictured) argues that we shouldn't be so sure. In his article, Constitutional Pragmatism, The Supreme Court, and Democratic Revolution, forthcoming in Denver University Law Review and available in draft on ssrn, Kende demonstrates that the usual conceptions of "pragmatism" are incomplete. He advances several types of pragmatic impulses that are consistent with the US constitutional revolution and subsequent jurisprudence such as "common sense,transitional, political, democratic, economic, empirical, common law,flexible, critical, and comprehensive pragmatism." He also discusses the types of constitutional pragmatism that are less consistent with revolution: prudential and efficiency-oriented pragmatism.
Kende aims to provide a typology of pragmatism, as a grounding for considering "constitutional pragmatism more intelligently, as well as see its complexity and ubiquity." For Kende, it is pragmatism - - - rather than originalism or living constitutionalism - - - that has the most descriptive, and perhaps prescriptive power.
Kende's article is an excellent intervention in the ongoing debates of constitutional interpretation.
Monday, December 3, 2012
Second Circuit On First Amendment Right to Promote Drug for Off-Label Use Without Criminal Consequences
In a sharply divided and long overdue opinion in United States v. Caronia issued today, a panel of the Second Circuit reversed a conviction relying primarily on the Supreme Court's 2011 decision in Sorrell v. IMS Health, Inc.
The conviction, according to the jury verdict, was for "Conspiracy to introduce a misbranded drug into interstate commerce in violation of 21 U.S.C. §§ 331(a) and 333(a)(2)." However, Judge Denny Chin, writing for the majority, emphasized that Caronia's statements - - - promoting the off-label use of the drug while he was as a pharmaceutical marketer - - - were the basis of the conviction: "Caronia was, in fact, prosecuted and convicted for promoting Xyrem off-label." Thus, because the majority rejected the government's argument that the statements were (merely) evidence of intent, the conviction raised a First Amendment issue. The panel then extensively discussed Sorrell, beginning with an explication of its two-step analysis:
First, the Court considered whether the government regulation restricting speech was content- and speaker-based. The Court held that it was; the regulation was therefore subject to heightened scrutiny and was "presumptively invalid." Second, the Court considered whether the government had shown that the restriction on speech was consistent with the First Amendment under the applicable level of heightened scrutiny. The Court did not decide the level of heightened scrutiny to be applied, that is, strict, intermediate, or some other form of heightened scrutiny.
[citations omitted]. The panel concluded "that the government's construction of the FDCA's misbranding provisions imposes content- and speaker-based restrictions on speech subject to heightened scrutiny," and then that "the government cannot justify a criminal prohibition of off-label promotion even under Central Hudson's less rigorous intermediate test." The majority seems especially troubled that the crime, at least as the court has constructed it, is "speaker-based because it targets one kind of speaker -- pharmaceutical manufacturers -- while allowing others to speak without restriction."
In a vigorous dissent, Judge Debra Ann Livingston stressed that speech acts are often evidence of intent and that "the majority calls into question the very foundations of our century-old system of drug regulation." She provides a literary analogy to refute Caronia's argument that he "merely discussed “a perfectly lawful practice: the use of a lawful drug, Xyrem, for off-label purposes.”
But the fact that a physician or a patient could legally use Xyrem for an off-label purpose is not enough to make out Caronia’s First Amendment claim. There might be no law forbidding the consumption of arsenic. But this would not endow Abby and Martha with a First Amendment right to offer arsenic-laced wine to lonely old bachelors with the intent that they drink it. See Arsenic and Old Lace (Warner Bros. Pictures 1944). And any statements Abby or Martha made suggesting their intent—even if all of the statements were truthful and not misleading—would not be barred from evidence by the First Amendment simply because arsenic might legally be consumed.
While Judge Chin's opinion could - - - taken to its logical conclusion - - - have a dramatic effect, it seems limited to the pharmaceutical arena.
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.
Friday, November 30, 2012
In an 41 page opinion and order in Sevick v. Sandoval, United States District Judge Robert Jones has rejected an equal protection challenge to Nevada's statutory scheme disallowing same-sex marriage.
The judge relied upon Baker v. Nelson, 409 U.S. 810 (1972), in which the United States Supreme Court summarily dismissed an equal protection challenge to the Minnesota statutory marital scheme's exclusion of same-sex couples. While stating that the "present challenge is in the main a garden-variety equal protection challenge precluded by Baker," the judge was undoubtedly aware of Baker's problematic status (a case to be relegated to the dustbin of precedent, perhaps), and provided a full analysis, "so that the Court of Appeals need not remand for further proceedings should it rule that Baker does not control or does not control as broadly as the Court finds."
The judge's well-structured analysis begins with a discussion of the classification, considering the notion that the Nevada scheme makes no classification at all, as well as the notion that the scheme makes a gender classification, but settling for the widely accepted principle that the scheme makes a sexual orientation classification.
In determining the level of scrutiny to be applied, Judge Jones decides in favor of rational basis, noting his disagreement with the Second Circuit in Windsor involving DOMA. Supporting this conclusion, Judge Jones highlights the factor of political powerlessless and its relationship with the judicial role in a democracy. For example, Jones writes that "Any minority group can reasonably argue that its political power is less than it might be were the group either not a minority or more popular. That is simply an inherent aspect of democracy." Additionally, "Gross movements by the judiciary with respect to democratic processes can cause an awkward unbalancing of powers in a Madisonian constitutional democracy."
Moreover, Judge Jones rejects the heightened rational basis of Romer v. Evans and the Ninth Circuit precedent of Perry v. Brown, involving California's Proposition 8, because there is no animus in the Nevada scheme:
Because there has never been a right to same-sex marriage in Nevada, Romer and Perry are inapplicable here as to NRS section 122.020. That section of the NRS removed no preexisting right and effected no change whatsoever to the legal status of homosexuals when adopted by the Nevada Territorial Legislature in 1861. See Nev. Comp. Laws § 196 § 2, at 65 (1861–1873).
On this lowest standard of rational basis, the challenger must negate every conceivable basis - - - an exceedingly, if not impossible task, and Judge Jones not surprisingly finds that the challengers fail to meet their heavy burden. The "protection of the traditional basis for marriage," is a legitimate one for Judge Jones, and the exclusion of same-sex couples is rationally related to that interest. This is true even though Nevada has provided for a domestic partnership scheme for same-sex couples.
As the United States Supreme Court considers whether or not to decide the issue of same-sex marriage, either in the Proposition 8 posture of Perry v. Brown or one of the DOMA postures such as the Second Circuit case or First Circuit case - - - all of which invalidated bans on same-sex marriage - - - Judge Jones' opinion demonstrates that the constitutional issue of same-sex marriage remains a contested one, even in a state with otherwise permissive marital regulations.
[image "Little white chapel" in Las Vegas, Nevada, via]
Thursday, November 29, 2012
Daily Read: Thirteenth Amendment Scholars Supporting Matthew Shepard & James Byrd, Jr. Hate Crimes Act
Did Congress have power pursuant to the Thirteenth Amendment to pass the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009?
The question of the Act's constitutionality is before the Tenth Circuit in an appeal arising from the first prosecution under the Act. In Hatch v. United States, the defendant challenges 18 U.S.C. § 249(a)(1), which provides:
Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person—
There seems to be little dispute that the three defendants admitted actions against the Native American victim, including branding the victim with a swatstika, fit within the terms of the statute. But did the statute exceed Congress' power pursuant to the Thirteenth Amendment, or does the statute violate equal protection as guarenteed through the Fifth Amendment?
On the Thirteenth Amendment issue, ConLawProfs William M. Carter, Jr., Dawinder S. Sidhu, Alexander Tsesis, and Rebecca E. Zietlow, have filed an amicus brief, available on ssrn, argue that the Thirteenth Amendment's enforcement clause gives Congress broad powers. They contend that the hate crime section should be analyzed under a defential rational basis standard, both because of its provenance in the Thirteenth Amendment and, perhaps most interestingly, because the statute does not make a racial classification.
This is a terrific read of engaged scholarship as well as a providing a great grounding for a class exercise or student project.
Tuesday, November 20, 2012
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.