Constitutional Law Prof Blog

The Balanced Budget Amendment

In a largely symbolic effort amid continuing budget talks, Congress this week will debate a balanced budget amendment that would require a balanced budget every fiscal year, limit federal spending to 18 percent of GDP, and require a super-majority in Congress to increase taxes, raise the debt limit, or run a deficit.  While the measure's chances of success are slim, at best, proponents and opponents have debated whether such an amendment would be in tension with the text, structure, and history of the rest of the Constitution.

Republican Senator Mike Lee, a driving force behind balanced budget amendment efforts in the Senate, made his case earlier this spring in this op-ed in the Washington Post.  Lee writes,

First, a balanced-budget requirement will ensure we do not continue to drive our country further into debt by trying to do all things for all people. . . .  Second, balancing our budget today will avoid even tougher choices tomorrow. . . .  Finally, a structural budget restraint is necessary to overcome Congress's insatiable appetite to spend. . . .  A balanced-budget amendment is the only way to ensure that Congress acts in the best interest of the country regardless of who is in power.

Doug Kendall of the Constitutional Accountability Center and Dahlia Lithwick argued Friday at Slate that a balanced budget amendment is in direct conflict with the text, history, and structure of the Constitution and our own practices:

It's fairly certain that George Washington and the other Founders gathered in Philadelphia in 1787 would be appalled by the Lee amendment.  It is not an accident that the first two enumerated powers the Constitution vests in Congress are the power "to lay and collect Taxes . . . to pay the Debts and provide for the comon Defense and general Welfare of the United States" and "to borrow money on the credit of the United States."  The Constitution's broad textual grant of power was a direct response to the Articles of Confederation, which had imposed crippling restrictions on Congress's power to borrow and tax.  These restrictions plagued the Revolutionary War effort and made a deep and lasting impression on Washington and other war veterans.  Lee and the other proponents of shrinking the federal government to restore freedom misapprehend that the Constitution recognized there would be no freedom without a strong federal government to promote it.

Kendall and Lithwick's Slate piece draws on an earlier article by David Gans and David McNamee of the CAC in the "Strange Brew" series at the CAC web-site.

SDS

July 4: Declaration of Independence in the Supreme Court Term 2010-2011

The signing of the Declaration of Independence on July 4, 1776, is the genesis of the "Fourth of July" holiday.

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, which has extended hours this weekend. The text is also available on the National Archives website.

 

This past term, the Declaration of Independence figured in two United States Supreme Court opinions, both decided late in the term and both in the opinion for the Court.

In Stern v. Marshall, discussing the bankruptcy courts, Justice Roberts writing for the Court included a reference to the Declaration:

Article III protects liberty not only through its role in implementing the separation of powers, but also by specifying the defining characteristics of Article III judges. The colonists had been subjected to judicial abuses at the hand of the Crown, and the Framers knew the main reasons why: because the King of Great Britain “made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.” The Declaration of Independence ¶ 11. The Framers undertook in Article III to protect citizens subject to the judicial power of the new Federal Government from a repeat of those abuses.

The Court concluded that the bankruptcy court - - - a federal but non-Article III court - - - lacked constitutional power to adjudicate a final order on a state law claim.

In Borough of Duryea, Pa. v. Guanieri, regarding the First Amendment right to petition, Justice Kennedy, writing for the Court, also referred to the Declaration.  After discussing the Magna Carta, the Petition of Right (1628), and practices in England, the opinion noted:

The Declaration of Independence of 1776 arose in the same tradition. After listing other specific grievances and wrongs, it complained, “In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury.” The Declaration of Independence ¶ 30.

Nevertheless, the Court rejected the right to petition under the First Amendment as the basis of a claim for relief for the original plaintiff.

RR

 

No State Remedy for Plaintiffs Harmed by Generic Drugs

A sharply divided Supreme Court ruled (5-4) today in PLIVA, Inc. v. Mensing that federal prescription drug laws preempt plaintiffs' state failure-to-warn claims against a generic drug manufacturer.  The ruling comes just two years after the Court ruled in Wyeth v. Levine that similar federal law doesn't preempt a plaintiff's state failure-to-warn claims against a brand-name drug manufacturer.  As a result, the cases together mean that a plaintiff injured by a brand-name manufacturer can sue in state court, while a plaintiff injured by a generic manufacturer can't--a bizaare result, even by the Court's reckoning, and a significant one given generics' dominant place in the prescription drug market.

The difference, says the majority, is how federal law treats generic manufacturers versus brand-name manufacturers.  Justice Thomas wrote for Chief Justice Roberts and Justices Scalia, Kennedy, and Alito that federal law governing generic labels doesn't allow generic manufacturers to unilaterally change their label.  Instead, a generic manufacturer has to petition the FDA for a change in label.  In contrast, federal law governing brand-name labels allows a brand-name manufacturer to unilaterally enhance a label (to account, e.g., for newly discovered harms from the drug).

 

According to Justice Thomas, this means that generic manufacturers can't simultaneously comply with federal law (prohibiting unilateral changes to their labels) and state failure-to-warn standards (requiring them to change their labels).  In contrast, brand-name manufacturers can comply with federal law (allowing unilateral changes) and state failure-to-warn standards (requiring them to change their labels).  In the former case, as in Mensing, federal law preempts; in the latter case, as in Wyeth, it doesn't. 

Justice Thomas wrote that the mere possibility that the FDA would grant a generic manufacturer's petition for a label change isn't enough to show that the manufacturer could comply with both federal law and state standards. Thus he wrote that "[t]he question for [impossibility preemption] is whether the private party could independently do under federal law what state law requires of it."  Op. at 13.

But this is a significant change from the way the Court analyzed preemption in Wyeth--in both result and method.  In Wyeth, the defendant brand-name manufacturer had a similar kind of possibility of complying with both federal law and state standards: federal law allowed the FDA to disapprove a brand-name manufacturer's label change, even as it allowed the manufacturer to unilaterally make the change.  In other words, federal law takes away from both generic manufacturers and brand-name manufacturers the ability to "independently do under federal law what state law requires of it."  They both lack independence; it's just a different degree of independence.  But by setting this new preemption standard at "independence," the Court puts a thumb on the scale in favor of federal preemption whenever there's any intervening third party (like the FDA in both Mensing and Wyeth).  This changes the traditional presumption against federal preemtion in impossibility preemption cases and tilts in favor of manufacturers (and against state tort plaintiffs).

Justice Thomas would have gone even farther.  His opinion included a section appealing to the original uses of clauses like the Supremacy Clause, in particular the phrase "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."  Justice Thomas wrote that this phrase was a non obstante provision under 18th century usage, and "suggests that federal law should be understood to impliedly repeal conflicting state law," op. at 15, underscoring his more narrow textual approach.  But Justice Thomas had just four votes for this section of his opinion; Justice Kennedy declined to join it.

Justice Sotomayor wrote a lengthy and critical dissent for herself and Justices Ginsburg, Breyer, and Kagan.  She appealed to congressional purpose--the traditional touchstone for preemption analysis--and looked to text, context, and legislative history to conclude that federal law did not preempt the plaintiffs' state failure-to-warn claims.

Coming just two years after Wyeth, Mensing marks a significant shift in the Court's approach to impossibility preemption, and maybe to preemption more generally.  Wyeth was a 6-3 ruling, with both Justices Kennedy and Thomas agreeing that federal law did not preempt.  (They're the only two Justice to switch.)  In Wyeth, Justice Thomas wrote a detailed concurrence, arguing for a more limited, textual approach to preemption doctrine.  His approach came to full fruition in his majority opinion in Mensing, although Justice Kennedy's refusal to join the strongest portion of his opinion denied him a majority for his non obstante theory.  Now it appears that the narrow, textual approach (in contrast to Justice Sotomayor's more traditional approach) has five votes on the Court, at least in cases where a defendant can't "independently do under federal law what state law requires of it."  But as discussed above, that standard would also sweep in Wyeth, unless there's some more subtle line-drawing that's not entirely obvious from today's ruling.  (Just to be clear: the Court today did not overturn Wyeth.)

But in the end, this case, like all preemption cases, gives Congress the last word.  And as mentioned above, even Justice Thomas (for the Court) recognizes the bizaare result here and in some places comes close to suggesting that Congress revisit this differential treatment.  In the meantime, prescription drug consumers are well advised to pay attention to the drugs they get from the pharmacy: A generic may come at a lower out-of-pocket cost, but it now also comes with a significantly higher opportunity cost of suing the manufacturer in state court when a consumer is harmed because of a bad label.

SDS

TIME's State of the Constitution

Time Magazine this week is running a cover story on the state of the Constitution.  Managing Editor Richard Stengel writes on constitutional debates around four hot issues: the President's authority to use U.S. forces in Libya; federal healthcare reform; the debt ceiling; and immigration. 

 
 

Coverage also includes a survey, with some interesting results:

• 64% agree that "[a] woman should have the right to terminate pregnancy in its first few months."
• 62% say that the Fourteenth Amendment shouldn't be amended to do away with birthright citizenship.
• 50% say that the President lacks authority "to involve the military in Libya without congressional approval, even if the troops are in a supporting role on a NATO mission."

SDS

The Right to Petition: Borough of Duryea v. Guarnieri Opinion Analysis

The last two clauses of the First Amendment  - - - the right to peaceably assemble and the right to petition the government for redress of grievances - - - have long been the flotsam of the First Amendment. 

The Court's opinion today in Borough of Duryea v. Guarnieri involving the right to petition does little to change that.  

The opinion, authored by Justice Kennedy, does express some grand sentiments about the Petition Clause:  it traces its origins to the Magna Carta, 1215, which not only confirmed the right of barons to petition the King, but was King John's response to a petition.  The right to petition is a right "essential to freedom."  Yet ultimately, the Court subjugates the Petition Clause to the Speech Clause:

It is not necessary to say that the two Clauses are identical in their mandate or their purpose and effect to acknowledge that the rights of speech and petition sharesubstantial common ground. This Court has said that the right to speak and the right to petition are “cognate rights.”

At issue is whether a public employee who was dismissed for filing a union grievance was protected by the Petition Clause.  The Court reversed the Third Circuit and held that because the employee speech would fail the "matter of public concern" requirement under the Speech Clause, it similarly failed to make a claim under the Petition Clause:

The framework used to govern Speech Clause claims by public employees, when applied to the Petition Clause,will protect both the interests of the government and the First Amendment right. If a public employee petitions as an employee on a matter of purely private concern, the employee’s First Amendment interest must give way, as it does in speech cases.

 Justice Scalia concurred and dissented, articulating two disagreements.  First, he found it "doubtful" that the Petition Clause includes a lawsuit.  Instead, he argues from an originalist stance that it includes only petitions directed at legislative and executive branches, even as he acknowledges that some scholars disagree.  Justice Thomas' separate concurrence also states that the original meaning of the Petitions Clause does not include lawsuits.

Second, "and of greater practical consequence" for Justice Scalia, he disagrees with "the Court’s decision to apply the “public concern” framework of Connick v. Myers, 461 U. S. 138 (1983), to retaliation claims brought under the Petition Clause."  He argues that the Court correctly holds that the Speech Clause and Petition Clause are not co-extensive, but then the Court goes on to treat them identically and to "shoehorn" the public concern doctrine into the Petition Clause.  For Scalia, this is especially misguided because "petitions to address private grievances were such a high proportion of petitions at the founding - - - a proportion that is infinitely higher if lawsuits are considered to be petitions—it is ahistorical to say that petitions on matters of public concern constitute 'core petitioning activity.' "

However, whether the opinion is ahistorical or not, the Petition Clause has certainly not been expanded in Borough of Duryea v. Guarnieri.

RR
[image: Petition from the citizens of NJ to Congress to criminalize lynching, 1900, via]

 

More on Justices' Interviews

NPR's Morning Edition aired a story this week on Bryan Garner's recently posted interviews with U.S. Supreme Court Justices on legal writing and oral advocacy.

 
 

If you haven't yet read the transcripts or heard the interviews, check out Nina Totenberg's piece first.

SDS

Lawmakers Sue President to Stop Military Operations in Libya

A bipartisan group of House lawmakers led by Rep. Dennis Kucinich (D., Ohio) today sued the President and Secretary of Defense to stop U.S. military operations in Libya.  The complaint in Kucinich v. Obama alleges that the President exceeded his authority under Article II, violated congressional power to declare war under Article I, violated the War Powers Resolution, and misused federal funds in violation of Articles I and II.  The Plaintiffs seek declaratory relief that the President's actions are unconstitutional and injunctive relief to stop the U.S. military operations in Libya.  Here's the press release.  We previously posted on constitutional issues involved in U.S. military efforts in Libya here, here, and here.



In related news, the White House today released a Letter from the President on the War Powers Resolution.  The Letter, which updates Congress on a variety of different engagements, sets out the administration's position on the Libyan campaign--that this isn't a "war."  Check it out:

As I reported on March 21, and at my direction, consistent with a request from the Arab League, and as authorized by the United Nations Security Council . . . U.S. military forces commenced operations on March 29, 2011, to prevent a humanitarian catastrophe and address the threat posed to international peace and security by the crisis in Libya and to protect the people of Libya from the Qadhafi regime. . . .  By April 4 . . . the United States had transferred responsibility for the military operations in Libya to NATO and the U.S. involvement has assumed a supporting role in the coalition's efforts. . . .  With the exception of operations to rescue the crew of a U.S. aircraft on March 21, 2011, the United States has deployed no ground forces to Libya.

 Here's what the complaint says about some of these points, including the U.N. Security Council resolutions, which were a large part of the OLC's analysis on why the President had authority to wage the Libyan campaign:

74.  A U.S. resolution does not abrogate or change the obligation of President Obama to obtain a declaration of war under Article I, Section 8, Clause 11 of the Constitution. 

75.  The Obama administration has denied that the Libyan operations aare at a war and, on March 24, 2011, White House Spokesman Jay Carney stated that the administration had defined these combat operations as "a time-limited, scope-limits military action."

76.  "Time-limited, scope-limited" military actions are not referenced in the U.S. Constitution or the constitutional convention debates.

SDS

Dictionaries as Legal Authority?

As Adam Liptak points out in his NYT column, the use of dictionaries in United States Supreme Court opinions is "booming."  Liptak refers to Justice Breyer's criticism of any reliance on dictionary definitions of the word "license" in his dissenting opinion in Chamber of Commerce v. Whiting last week, even as Breyer's opinion for the Court in Fowler v. United States, issued the same day, refered to the dictionary (albeit the OED) to determine the meaning of "prevent."

Liptak quotes Professor Jeffrey Kirchmeier of CUNY School of Law (pictured right) and Samuel Thumma for their recently published "study" in Marquette Law Review, Scaling the Lexicon Fortress: The United States Supreme Court’s Use of Dictionaries in the Twenty-First Century, 94 Marq. L. Rev. 77 (2010), available on ssrn and from the law review.   The article by Kirchmeier and Thumma builds on their previous work,  Samuel A. Thumma & Jeffrey L. Kirchmeier, The Lexicon Has Become a Fortress: The United States Supreme Court’s Use of Dictionaries, 47 BUFF. L. REV. 227 (1999) and  Samuel A. Thumma & Jeffrey L. Kirchmeier, The Lexicon Remains a Fortress: An Update, 5 GREEN BAG 51 (2001) (both available on ssrn).

For originalists, resort to earlier dictionaries may seem to make sense - - - word usage changes, after all - - - but as Kirchmeier and Thumma point out, dictionaries were once devoted to prescriptive meanings rather than actual usage.  Moreover, not all dictionaries are created equal, then or now.   Kirchmeier and Thumma demonstrate that there is a great deal of randomness in dictionary choices by the Justices.

The 2010 article and the previous ones employ a mix of theoretical analysis and quantative analysis.  However, the pieces also include amazing appendices.  The 2010 article analyzes the approximately 300 words/phrases the Court cited a dictionary to define from the 2000-1 Term to the 2009-10 Term.  It includes three appendices of cases from the United States Supreme Court: (1) words and phrases defined by the Court (Appendix A); (2) Justices citing to dictionaries, including their frequency of use and which dictionaries are used (Appendix B); and (3) dictionaries cited by the Court (Appendix C).

Ultimately, Kirchmeier and Thumma argue that the Court should clarify some standards for the use of dictionaries.  Until then, Kirchmeier and Thumma provide excellent analysis - - - and useful fodder for scholarship and teaching.

RR

Shakespeare for Lawyers: Yoshino on Justice and Elizabethan Drama

ConLawProf Kenji Yoshino's recent book, A Thousand Times More Fair: What Shakespeare's Plays Teach Us About Justice, is a delectable addition for ConLaw summer reading lists.

As the subtitle indicates, Yoshino not only discusses a select group of Shakespeare's plays, but then connects them to our contemporary notions of justice and to current events.

Here's a brief snippet, courtesy NYU Law, of Yoshino discussing one of Shakespeare's less popular dramas, Titus Andronicus: (click to start)

In a review, Eric Posner criticizes the book for trying - - - and failing - - - to illuminate current events through Shakespeare, but I suspect that many readers will disagree.  Yoshino's opens Shakespearean texts to contemporary meanings, making important connections for current constitutional law debates.

 

It seems summer would be much more rewarding if one eshewed the "con law" bestsellers in favor of Shakespeare in the park (or on the beach) with Yoshino's book.

RR

Electronic Presentment and Return OK'd by OLC

The Office of Legal Counsel last month issued a memorandum opining that presentment and return of bills in electronic form, and not on paper, satisfies Article I, Section 7.  The memo is hardly a surprise in light of the Office's 2005 memo concluding that the President may sign legislation using an autopen--an opinion upon which President Obama recently relied in signing the Patriot Act extension.  But still it's a good case study in constitutional interpretation.

Article I, Section 7 reads, in relevant part:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it.

The question was whether the terms "presented" and "return" require presentment and return in paper form, or whether they allow electronic form.

The OLC concluded that the terms are not terms of art, drawn from the common law.  It therefore looked at their meanings in ordinary usage, consulting two dictionaries that define terms at the time of, and before, the Constitution's adoption, and contemporary dictionaries.  (No matter how pliable the terms were, nobody in the founding generation could have intended or understood them to include electronic transmissions.  But the definitions do not rule this out.)  The OLC also looked at the purposes of the presentment and return requirements, historical practice, and legal precedent (though sparse)--all common sources for the OLC.

In this memo and in the 2005 memo, the OLC emphasized a practical approach to Section 7 in light of changing technology.  In particular, the OLC recognized that the political branches adapted to changing technology in signing, presenting, and returning.  Use of an electronic medium is only an extension, for practical reasons, of that practice.

SDS

Originalism and the Autopen: Obama's "Signing" of Patriot Act Extension Constitutional

Article I, Section 7 of the Constitution provides that:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it. . . .

 What does "sign" mean?  Or, more precisely, does "sign" include signature by an autopen?

That is the question raised by President Obama's "signing" the Patriot Act extension, S. 990, the “PATRIOT Sunsets Extension Act of 2011, by autopen.  The Presidential autopen signature of legislation is an apparent first.  According to the NYT, with President Obama in Europe and the Patriot Act provisions "set to expire at midnight Thursday, the White House concluded that a mechanical signature would have to do." 

Often the President signs a bill into law in a public ceremony (at right, Obama signing the Lily Lebetter Fair Pay Act).  The usual practice when the President is not available, again according to the NYT, is that "White House staff members fly, unsigned legislation in hand, to wherever the president happens to be,"  but the Obama Administration decided to resort to the autopen, "a machine that reproduces signatures and is ubiquitous in government and business for routine transactions — letters, photos, promotional materials — into the ultimate stand-in."  Recall that autopen signatures are also at issue in foreclosure actions across the US.

Representative Tom Graves (R-Ga.) has sent a public letter to President Obama questioning both the presentment criteria and the signature requirement. 

The autopen issue was the subject of an extensive Memoradum Opinion by the Office of Legal Counsel in 2005.  The Memorandum made clear that the issue was not whether the President could delegate the decision, but that once having made the decision, he could "direct a subordinate" to affix the signature.   The Memorandum's "roadmap" paragraph outlines the analysis and conclusion:

Our analysis proceeds as follows: In Part I, we examine the legal understanding of the word “sign” at the time the Constitution was drafted and ratified and during the early years of the Republic. We find that, pursuant to this understanding, a person may sign a document by directing that his signature be affixed to it by another. We then review opinions of the Attorney General and the Department of Justice and find the same understanding reflected in opinions addressing statutory signing requirements in a variety of contexts. Reading the constitutional text in light of this established legal understanding, we conclude that the President need not personally perform the physical act of affixing his signature to a bill to sign it within the meaning of Article I, Section 7. In Part II, we consider the settled interpretation of the related provisions of the same section of the Constitution that require that bills be presented to the President and that the President return to Congress bills he disapproves, and find that this interpretation confirms our view of Article I, Section 7’s signing requirement. In Part III, we consider practice and precedent relating to the constitutional signing requirement and show that they do not foreclose our conclusion.

Supporting its conclusion that Presidential autopen signatures are constitutional signatures under an originalist interpretation, the Memorandum states

At the time the Constitution was drafted and ratified, and continuing thereafter, courts in England and the United States applied the rule that “when a document is required by the common law or by statute to be ‘signed’ by a person, a signature of his name in his own proper or personal handwriting is not required.” Finnegan v. Lucy, 157 Mass. 439, 440 (1892) (noting that this rule “was and still is very generally held”; collecting early English and American authorities) . . . .  Although the precise origins of the principle of signatures are not clear, they appear to trace back at least as far as Lord Lovelace’s Case, 82 Eng. Rep. 140, Sir Wm. Jones Rep. 268 (J. Seate 1632) . . . .

The Memorandum then discusses other pre-Revolutionary War English cases, the original Statute of Frauds (1677), and the applicability of such private law principles to public law, to ultimately conclude, "Thus, it was well settled at common law that one could sign a legally binding document without personally affixing his signature to it. Rather, under the principle of signatures, one could sign a document by authorizing or directing another to place one’s signature on it."

Although President Bush never relied upon the Memorandum issued in 2005, and the use of the autopen has provoked satire ("Despite possible constitutional challenges, the Supreme Court is expected to uphold the practice given that opposing it would likely offend Justice Scalia's autopen, Clarence Thomas"), it seems that while Obama's resort to the autopen may be a first, it is not unconstitutional, even under an originalist interpretation.

RR
[image: Obama signing the Lily Lebetter Fair Pay Act, via]

The Promise of New Textualism

There's an emerging consensus in constitutional interpretation, and it overshadows the lingering disputes between conservatives and progressives over the merits and demerits of originalism and living constitutionalism.  That consensus is over the primacy of constitutional text.

So argues James E. Ryan (UVa) in a new discussion paper released last week by the Constitutional Accountability Center, Laying Claim to the Constitution: The Promise of New Textualism.  Ryan carefully traces the history of originalism(s) and progressive constitutionalism and claims that the formerly diametrically opposed methods of constitutional interpretation now share a key feature: a principal focus on text and its meaning. 

According to Ryan, this consensus doesn't represent the triumph of originalism, or textualism, or strict constructionism--the isms that conventionally veil a conservative interpretation.  Instead, both conservatives and progressives gave a little in arriving at this consensus.  Ryan explains:

The "new" part of new textualism signifies how it differs from earlier approaches to the text, both by those on the Left and those on the Right.  New textualists reject the facile assumption of liberal academics that the text is hopelessly indeterminate and therefore essentially useless when it comes to deciding modern constitutional issues.  Instead, there is a recognition that some readings of the text are more plausible than others, and that the most plausible reading of the text can at least narrow the range of possible outcomes, even if it cannot settle every single question.

At the same time, new textualists reject the equally facile assertion of some conservatives that the text, properly interpreted, yields precise answers to just about every question imaginable. . . .  In rejecting this simplistic view, new textualists remain faithful to the general language used in some constitutional provisions and insist that the language and the principles it embodies must prevail.  Expectations among the founding generations of how that language might apply to a given situation can help elucidate the meaning of the text, but they cannot be substitutes for the text itself.

In short, new textualists recognize that the text is both more determinate than some have claimed and less determinate than others have claimed.  Their commitment is to take the text on its own terms.  And their aim is to elucidate the meaning of the text, which often requires understanding its purpose.

Laying Claim, at 22.

And moreover, new textualism favors progressives as much (if not more) than conservatives in reading and applying the Constitution:

[The new textualism] has opened a rich vein of scholarship that sheds light on the best meaning of important and contested constitutional provisions, which singly and in combination challenges scholarship suggesting that the Constitution is a conservative document.  Spurred by the path-breaking work of Akhil Amar, progressive academics are engaging conservatives on their own turf and showing how numerous constitutional provisions are more in line with contemporary progressive values than conservative ones.

Laying Claim, at 3. 

New textualism is simply a focus on the meaning of the text.  It does not end the debates on constitutional interpretation and application--in some ways it only starts new ones--and new textualists allow for other modes of constitutional construction.

To be clear, those who embrace new textualism do not insist that looking to the text and history is the only legitimate way of deciding cases.  Most new textualists make room for, among other things, stare decisis.  In addition, most new textualists admit that text and history do not provide precise answers to every constitutional question.  Thus, as I have said, they recognize that constitutional adjudication often requires two steps--determining the meaning of the constitutional provision at issue, as precisely as possible, and then applying that meaning to the issue at hand.  That second step may entail following precedent, or it may entail reliance on broader theories of adjudication like judicial restraint or political process theory.

All that new textualists are suggesting, essentially, is that courts and scholars take the first step more seriously.  Scholars from across the political spectrum agree that text and history have an important role to play in constitutional interpretation and adjudication.  New textualists are essentially arguing that scholars and courts should give more than lip service to this universally supported principle.  This does not entail caving to the Right, as some progressive critics suggest.  It instead entails taking these sources seriously and mining them for the meaning they contain, rather than sailing right past them in the often mistaken belief that they offer little of value.

Laying Claim, at 27-28.

Here, Ryan's paper becomes a call to arms.  He argues for more scholarly attention to text and history, especially among progressive academics.  And he surveys the excellent literature on text and history already out there, on everything from "Article I to the Nineteenth Amendment."  (The survey, starting on page 28, is a good starting point for anyone considering answering Ryan's call.)  He also calls for scholarly attention to the role of precedent and other "second question" sources.

Ryan's chronicling of the evolution of originalism and its detractors, and his typology of the predominant current theories of constitutional interpretion, all in the first part of the paper, are also worth a note.  Ryan offers a clear, balanced history and excellent summary of the most current approaches.

Ryan's paper was released last week by the CAC as a "discussion draft" and will appear in the November 2011 volume of the Virginia Law Review.  It's also available on SSRN.

SDS

Liu's Filibuster and Constitutional Fidelity

The successful filibuster last week of President Obama's nomination of Goodwin Liu (Boalt Hall) to the Ninth Circuit was hardly based on a principled dispute about constitutional interpretation.  Stated reasons for opposition (and thus for the filibuster) ranged from Liu's alleged position on affirmative action to his opposition to President Bush's nominations of then-Judges Roberts and Alito to the Supreme Court.  (The reasons for opposition are well known; here's the floor debate in the Congressional Record, more or less hitting the highlights.)  Most of the reasons were based on selective reading and misinterpretations of Liu's work (although Liu did oppose the nominations of Chief Justice Roberts and Justice Alito).  Con Law Prof Geof Stone (U. Chicago) summed it up in yesterday's Chicago Tribune, writing that the filibuster was merely "partisanship run amok."

Constitutional interpretation played a bit part in opposition to the Liu nomination--but only a bit part.  And for good reason: Liu's interpretive method, constitutional fidelity, is hardly controversial.  It's reflected in different ways in opinions authored by Justices ranging from Ginsburg to Scalia.  It looks an awful lot like Justice Breyer's pragmatic approach, as described most recently in Making our Democracy Work.  And it has strong theoretical roots, going back to work like Philip Bobbitt's classic, Constitutional Fate.

Here's what Liu wrote (or co-wrote, with two other prominent con law scholars) in Keeping Faith with the Constitution:

To be faithful to the Constitution is to interpret its words and to apply its principles in ways that preserve the Constitution's meaning and democratic legitimacy over time.  Original understandings are an important source of constitutional meaning, but so too are the other sources that judges, elected officials, and everyday citizens regularly invoke: the purpose and structure of the Constitution, the lessons of precedent and historical experience, the practical consequences of legal rules, and the evolving norms and traditions of our society.

Keeping Faith, at 2.

Compare that with Justice Breyer's pragmatism:

Modern American judges working in this tradition, like most judges, use textual language, history, context, relevant traditions, precedent, purposes, and consequences in their efforts to properly interpret an ambiguous text.  But when faced with open-ended language and a difficult interpretive question, they rely heavily on purposes and related consequences.  In doing so, judges must avoid interpretations that are either too rigid or too freewheeling.  They must remain truthful to the text and "reconstruct" past solutions "imaginatively" as applied to present circumstances, at the same time projecting the purposes (or values) that inspired those past solutions to help resolve the present problem.  The judges must seek an interpretation that helps the textual provision work well now to achieve its basic statutory or constitutional objectives.

Making our Democracy Work, at 80-81.  These are just short excerpts, to be sure, and Justice Breyer may have his detractors, but Liu's similarities throughout Keeping the Faith with this sitting Supreme Court Justice suggest that his approach is hardly outside the mainstream. 

SDS

American Constitution Society National Convention

Registration is open for the American Constitution Society 10th Anniversary National Convention, Constitution at the Crossroads: Progress Imperiled? 

 
 

The convention runs from June 16 to 18, 2011, at the Capital Hilton in Washington, D.C.  AG Eric Holder will give an address at the opening gala.  The full schedule is here; registration is here.

SDS

Is The Roberts Court Really a Court? Eric Segall's Answer

In an article with the provocative title Is The Roberts Court Really a Court?, 40 Stetson Law Review 1 (2011), available on ssrn, Professor Eric Segall defines the judicial function as the resolution of "legal disputes by examining prior positive law, such as text and precedent, and then providing transparent explanations" for the decisions.  On this definotion, Segall concludes that the Roberts Court is not "really" a judicial body based upon an examination of three controversial cases:  Gonzales v. Carhart (Carhart II), 550 U.S. 124 (2007); District of Columbia v. Heller, 554 U.S. 570 (2008); and Citizens United v. Federal Election Commission, __ U.S. ___, 130 S. Ct. 876 (2010). 

Here's Segall's conclusion:

In Carhart II, the Roberts Court implicitly overturned an important decision without any discussion of stare decisis. In Heller, the Court created a brand new constitutional right, displacing centuries of caselaw, based on a controversial (at best) historical account that raised serious questions about how the Court actually reached its decision. And, in Citizens United, the Court reached out to decide an important and settled issue of constitutional law not raised by the parties, and it did so without any meaningful discussion of history or stare decisis concerns. In all three cases, the only persuasive descriptive account of why the Court veered from prior positive law is that the people on the Court changed (Justice Alito for Justice O’Connor). This is not judging according to the Rule of Law but judging according to the Rule of Five Justices, and it seriously calls into question whether the Roberts “Court” is, in fact, a court at all.

Segall's brief article provides execellent support for this conclusion, which is widely - - - although certainly not universally - - - shared. 

However, Segall also contends that the question of whether the Roberts Court is really a court "could just as easily be asked of the Rehnquist, Burger, and Warren Courts, as well as all of the other previous Supreme Courts."  Indeed, the conclusion that the Supreme Court is merely the "Rule of Five" is one that might even be more widely - - - although again not universally - - - shared than conclusions about any particular Court.  It is what can make Constitutional Law courses so challenging. 

Segall quickly retreats from the more comprehensive argument: "A comparative analysis of the various Supreme Courts’ reliance on prior law is well beyond the scope of this Article."   Yet he contends that regardless "of whether prior Courts can be accused of similar attitudes, the general indifference of the Roberts Court to these rule-of-law values is troubling."   With three controversial cases, Segall mounts an argument that many will find persuasive.

RR

Footnote of the Day: Colonial Criminal Sodomy Statutes

Footnote 5 provides:

Criminal sodomy laws in effect in 1791:

Connecticut: 1 Public Statute Laws of the State of Connecticut, 1808, Title LXVI, ch. 1, § 2 (rev. 1672).
Delaware: 1 Laws of the State of Delaware, 1797, ch. 22, § 5 (passed 1719).
Georgia had no criminal sodomy statute until 1816, but sodomy was a crime at common law, and the General Assembly adopted the common law of England as the law of Georgia in 1784. The First Laws of the State of Georgia, pt. 1, p. 290 (1981).
  Maryland had no criminal sodomy statute in 1791. Maryland's Declaration of Rights, passed in 1776, however, stated that "the inhabitants of Maryland are entitled to the common law of England," and sodomy was a crime at common law. 4 W. Swindler, Sources and Documents of United States Constitutions 372 (1975).
Massachusetts: Acts and Laws passed by the General Court of Massachusetts, ch. 14, Act of Mar. 3, 1785.
New Hampshire passed its first sodomy statute in 1718. Acts and Laws of New Hampshire 1680-1726, p. 141 (1978).
Sodomy was a crime at common law in New Jersey at the time of the ratification of the Bill of Rights. The State enacted its first criminal sodomy law five years later. Acts of the Twentieth General Assembly, Mar. 18, 1796, ch. DC, § 7.
New York: Laws of New York, ch. 21 (passed 1787).
At the time of ratification of the Bill of Rights, North Carolina had adopted the English statute of Henry VIII outlawing sodomy. See Collection of the Statutes of the Parliament of England in Force in the State of North Carolina, ch. 17, p. 314 (Martin ed. 1792).
Pennsylvania: Laws of the Fourteenth General Assembly of the Commonwealth of Pennsylvania, ch. CLIV, § 2 (passed 1790).
Rhode Island passed its first sodomy law in 1662. The Earliest Acts and Laws of the Colony of Rhode Island and Providence Plantations 1647-1719, p. 142 (1977).
South Carolina: Public Laws of the State of South Carolina, p. 49 (1790).
At the time of the ratification of the Bill of Rights, Virginia had no specific statute outlawing sodomy, but had adopted the English common law. 9 Hening's Laws of Virginia, ch. 5, § 6, p. 127 (1821) (passed 1776).

Footnote 6 of the opinion then lists the "Criminal sodomy statutes in effect in 1868." 

These footnotes are from the opinion of Justice White (pictured above via) for the Court in Bowers v. Hardwick, 478 U.S. 186 (1986), in which the Court reversed the Eleventh Circuit, and held Georgia's sodomy statute constitutional, based in large part on its reasoning that these criminal statutes formed a background against which a "claim that a right to engage in such conduct is "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty" is, at best, facetious." 

Bowers v. Hardwick was reversed by Lawrence v. Texas,539 U.S. 558 (2003). 

RR

Footnote of the Day: Who Funded Those Studies?

In footnote 17, the Court wrote

The Court is aware of a body of literature running parallel to anecdotal reports, examining the predictability of punitive awards by conducting numerous “mock juries,” where different “jurors” are confronted with the same hypothetical case. See, e.g., C. Sunstein, R. Hastie, J. Payne, D. Schkade, W. Viscusi, Punitive Damages: How Juries Decide (2002); Schkade, Sunstein, & Kahneman, Deliberating About Dollars: The Severity Shift, 100 Colum. L. Rev. 1139 (2000); Hastie, Schkade, & Payne, Juror Judgments in Civil Cases: Effects of Plaintiff's Requests and Plaintiff's Identity on Punitive Damage Awards, 23 Law & Hum. Behav. 445 (1999); Sunstein, Kahneman, & Schkade, Assessing Punitive Damages (with Notes on Cognition and Valuation in Law), 107 Yale L.J. 2071 (1998). Because this research was funded in part by Exxon, we decline to rely on it.

Exxon Shipping Co. v. Baker, 554 U.S. 471, 501n.17 (2008). 

The case resulted from the spilling of oil from the supertanker Exxon Valdez and the issue was one of the parameters of punitive damages under "maritime common law,"  but the resonance of footnote 17 is potentially far-reaching.  Indeed, today's oral argument in IMS v. Sorrell involving studies funded by "big pharma" may raise similar concerns.

The Stanford Law and Policy Review put on a symposium on the issue of academic integrity in 2010, including  Lee Epstein, Academic Integrity and Legal Scholarship in the Wake of Exxon Shipping Footnote 17, 21 Stan. L. & Pol’y Rev. 33 (2010), and Thomas O. McGarity, A Movement, a Lawsuit, and the Integrity of Sponsored Law and Economics Research, 21 Stan. L. & Pol’y Rev. 51 (2010) (both available on westlaw and lexis).

RR
with J. Zak Ritchie
[image: Oil Cleaning After Exxon Valdez Spill, Prince William Sound, via]

Footnote of the Day: The Most Common Footnote in the Eleventh Circuit

Although its use has waned and its footnote number has vacillated, arguably the most common footnote in decisions of the Eleventh Circuit Court of Appeals is this one:

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.

As Chief Judge Godbold wrote in Bonner,

This is the first case to be heard by the United States Court of Appeals for the Eleventh Circuit, established October 1, 1981 pursuant to the Fifth Circuit Court of Appeals Reorganization Act of 1980, P.L. 96-452, 94 Stat. 1995, and this opinion is the first to be published by the Eleventh Circuit. Under P.L. 96-452 the United States Court of Appeals for the Fifth Circuit was divided into two circuits, the Eleventh and the “new Fifth.” This court, by informal agreement of its judges prior to October 1, 1981, confirmed by formal vote on October 2, 1981, has taken this case en banc to consider what case law will serve as the established precedent of the Eleventh Circuit at the time it comes into existence. We hold that the decisions of the United States Court of Appeals for the Fifth Circuit (the “former Fifth” or the “old Fifth”), as that court existed on September 30, 1981, handed down by that court prior to the close of business on that date, shall be binding as precedent in the Eleventh Circuit, for this court, the district courts, and the bankruptcy courts in the circuit.

A quick database search shows over 25,000 citations of Bonner v. City of Prichard. 

RR

 

Footnote of the Day: The Satisfaction of Michigan v. Long?

The footnote from the Tennessee Supreme Court seems rather innocuous:

The decision in Middlebrooks was required by Art. I, § 16 of the Tennessee Constitution. We reviewed federal constitutional law in our analysis to determine whether the duplication also violated the Eighth Amendment to the United States Constitution, but Middlebrooks was decided on separate and independent state constitutional grounds. See Middlebrooks, 840 S.W.2d at 346; Zant v. Stephens, 462 U.S. at 877.

State v. Howell, 868 S.W.2d 238, 259 n.7 (1993).  But the footnote is a dramatic one, as Neil Colman McNabe demonstrated in his article, A Rescue From The Jaws Of The Crocodile: The Post-Certiorari Plain Statement Footnote, 59 Albany Law Review 1737 (1996).  

The Middlebrooks case in the footnote was Middlebrooks v. State, in which the Tennessee Supreme Court vacated Donald Ray Middlebook's death sentence.  The state sought certiorari to the United States Supreme Court, which was granted, oral argument was heard, and then certiorari was dismissed as improvidently granted.  The reason for the dismissal of certiorari was that footnote 7 in Howell, rendered 9 days after the oral argument in Middlebrooks.  The footnote  was deemed to satisfy the rule of Michigan v. Long.  

The Court in Michigan v. Long, 463 U.S. 1032 (1983), enunciated its rule of judicial review for state decisions involving federal constitutional matters: the state court must include a "plain statement" that the decision rests on adequate and independent state grounds.  Otherwise, the Court will assume that the state court decided the way it did because it felt compelled to do so by federal constitutional law.  Interestingly, Michigan v. Long involved the state executive branch attempting to overrule its own state high court by seeking review from the United States Supreme Court.  Many other cases followed a similar pattern, as was the situation in State v. Middlebrooks.

However, as the Sixth Circuit opinion affirming a denial of habeas to Middlebrooks decided in September 2010 makes clear, the dismissal of certiorari did not end the matter.  After the Tennessee Supreme Court vacated the death sentence, "In 1995, a jury again sentenced Middlebrooks to death after finding that the murder was especially heinous, atrocious, or cruel and after weighing the aggravating and mitigating circumstances."   Middlebrooks then raised a number of constitutional claims in state postconviction proceedings, including ineffective assistance of counsel, and in the subsequent habeas petition in federal district court which was denied, and which the Sixth Circuit affirmed.

Meanwhile, Tennessee is one of several states that have turned over their supplies of sodium thiopental, a sedative widely used in lethal injections, to the federal drug enforcement officials because of controversies regarding the drug.

RR
(H/T J. Zak Ritchie)

Footnote of the Day: Bill of Rights Provisions Incorporated Against the States

In need of a handy list (with citations) of the provisions of the Bill of Rights incorporated against the states through the Fourteenth Amendment's Due Process Clause? 

The Court's opinion in McDonald v. City of Chicago, decided June 2010, is an obvious place to look and its footnotes do not disappoint.  

As support for the proposition "The Court eventually incorporated almost all of the provisions of the Bill of Rights," the opinion includes footnote 12: 

With respect to the First Amendment, see Everson v. Board of Ed. of Ewing, 330 U. S. 1 (1947) (Establishment Clause); Cantwell v. Connecticut, 310 U. S. 296 (1940) (Free Exercise Clause); De Jonge v. Oregon, 299 U. S. 353 (1937) (freedom of assembly); Gitlow v. New York, 268 U. S. 652 (1925) (free speech); Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931) (freedom of the press).

With respect to the Fourth Amendment, see Aguilar v. Texas, 378 U. S. 108 (1964) (warrant requirement); Mapp v. Ohio, 367 U. S. 643 (1961) (exclusionary rule); Wolf v. Colorado, 338 U. S. 25 (1949) (freedom from unreasonable searches and seizures).

With respect to the Fifth Amendment, see Benton v. Maryland, 395U. S. 784 (1969) (Double Jeopardy Clause); Malloy v. Hogan, 378 U. S. 1 (1964) (privilege against self-incrimination); Chicago, B. & Q. R. Co.v.Chicago, 166 U. S. 226 (1897) (Just Compensation Clause).

With respect to the Sixth Amendment, see Duncan v. Louisiana, 391U.S. 145 (1968) (trial by jury in criminal cases); Washington v. Texas, 388 U. S. 14 (1967) (compulsory process); Klopfer v. North Carolina, 386 U. S. 213 (1967) (speedy trial); Pointer v. Texas, 380 U. S. 400 (1965) (right to confront adverse witness); Gideon v. Wainwright, 372U.S. 335 (1963) (assistance of counsel); In re Oliver, 333 U. S. 257 (1948) (right to a public trial).

With respect to the Eighth Amendment, see Robinson v. California, 370 U. S. 660 (1962) (cruel and unusual punishment); Schilb v. Kuebel, 404 U. S. 357 (1971) (prohibition against excessive bail).

 In the next footnote, footnote 13, the Court discusses the provisions that have not been incorporated:

                the Sixth Amendment right to a unanimous jury verdict;
                the Third Amendment’s protection against quartering of soldiers;
                the Fifth Amendment’s grand jury indictment requirement;
                the Seventh Amendment right to a jury trial in civil cases;
                the Eighth Amendment’s prohibition on excessive fines

 At issue in McDonald, of course, was the Second Amendment's right to "keep and bear arms."  

In a 5-4 decision, the Court in McDonald held that this right belongs with the category of incorporated rights in footnote 12 and not with the unincorporated rights discussed in footnote 13.

RR