Tuesday, May 29, 2012

Constitution Bashing?

As ConLawProf Sandy Levinson rightly observes in an Op-Ed in today's NYT, "the Constitution is enveloped in near religious veneration."  Although perhaps this isn't so right, at least in some circles.

His own op-ed, for example, argues that the Constitution itself is responsible for current political pathologies. He singles out the Electoral College and the composition of the Senate for special note, both of which result in states such as New York, California, and Texas being diminished.

382px-17th_Amendment_Pg1of1_ACThis incorrect equality amongst states is also highlighted by Kevin Bleyer in his new book, Me The People.  To be sure, Bleyer is a comedy writer, but as he argues in the recent excerpt in Salon, "despite what the original Constitution of the United States says about the qualifications for statehood and the guarantee of representation," there are just some states that don't deserve their status.  One rationale for such disrespect: there are "more Americans in prison than in Nebraska."

For his part, Sandy Levinson focuses on Article V as "the worst single part of the Constitution" because it has made the US Constitution "among the most difficult to amend of any in the world."   He argues that the "near impossibility of amending the national Constitution not only prevents needed reforms; it also makes discussion seem futile and generates a complacent denial that there is anything to be concerned about."

Yet amending the Constitution - - - by repealing an Amendment - - - was a topic in a debate among Republican hopefuls for one of Missouri's two seats in the United States Senate.  The Amendment in question is the Seventeenth Amendment; "The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures."  Recall that prior to the Seventeenth Amendment, Article I §3 controlled: "The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof . .  ."   So, basically, the Seventeenth Amendment required direct election of Senators.

As the St. Louis Beacon reports, Senate hopeful (and current US Representative) Todd Akin thought a repeal of the Seventeenth Amendment might shift the balance back towards "states rights."  The other candidates were less interested in the issue.  Their respective statements are available on YouTube, linked at the St Louis Beacon article.  And there are certainly more scholarly discussions, including one between Todd J. Zywicki and Ilya Somin hosted by the Federalist Society last year. 

For those participating in summer institutes for undergraduates or comparative law programs, there is much fodder here.

[image: 17th Amendment as ratified via]

May 29, 2012 in Books, Comparative Constitutionalism, Current Affairs, Federalism, History, Interpretation, Scholarship, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Saturday, March 17, 2012

Larsen on Supreme Court Fact Finding in a Digital Age: Saturday Evening Review

Alli Orr Larsen's article, Confronting Supreme Court Fact Finding, forthcoming in Virginia Law Review and available on ssrn, takes as it starting point the generalized facts that many readers of Supreme Court constitutional opinions notice the Court claims to know - - - and that the majority and dissenting opinions may not agree upon.  Larsen gives a few examples - - -   "is a partial birth abortion ever medically necessary?  Can you effectively discharge a locked gun in self-defense?  Are African American children stigmatized by segregated schools?"

Larsen-1096These so-called "legislative facts" transcend the particular dispute and seek to describe the world.  But where does this information come from? 

The article "collects 100 examples of factual authorities relied on in recent decisions of the U.S. Supreme Court that were found “in house” – i.e. that cannot be found in any of the party briefs, amici briefs, or the joint record."   She shows that "of the 120 cases since 2000 that political scientists label the “most salient Supreme Court decisions” – largely measured by whether they appear on the front pages of newspapers– 58 percent of them contain at least one assertion of legislative fact supported by sources found 'in house.' " Some of these facts are historical, with obvious implications for original intent interpretative strategies.  The most common, according to Larsen, are facts, including statistics, "to demonstrate the emerging significance of a question to society."

Larsen contends that the information revolution has changed the way the Court sources its fact:

The digital revolution has two palpable relevant effects: it increases the amount of factual information available for review (statistics, social science research, polling data can all be posted to the world for free by anyone now) and it also makes this information faster to obtain -- literally just fingertips and a Google search away.

Larsen argues that while there are certainly benefits to letting judges research freely in a new digital age in which more information is available, there are also troubling effects: the systematic introduction of bias; the possibility of mistake; and concerns about notice and legitimacy.

Larsen highlights the bias of systems such as Google that can become self-fulfilling prophecies depending upon the personalization filters that Google uses (based upon a user's previous searches or bookmarks), as well as more commonly known issues regarding reliability and the ability to refute the research.

She also has some suggestions, including a more open process in which "when the Court contemplates a question of legislative fact, it would solicit opinions and evidence from all interested parties and encourage public participation much like the notice and comment process in administrative agencies."

One can only imagine the comments section of a newly enhanced Supreme Court website!  And for conlawprofs who allow open internet access during class, it could be a terrific exercise to take a moment and allow students to "check" a legislative fact in a Supreme Court opinion assigned for that class. 

Larsen's article is a great contribution to the problem of "legislative facts" and a forward-looking reality-check to constitutional adjudication in the information age. 


March 17, 2012 in Interpretation, Scholarship, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)

Thursday, December 15, 2011

Bill of Rights Day 2011

Today is Bill of Rights Day, marking the 220th anniversary of the adoption of the United States Constitution's Bill of Rights.

In his Presidential Proclamation last week, Obama stated:

On December 15, 1791, the United States adopted the Bill of Rights, enshrining in our Constitution the protection of our inalienable freedoms, from the right to speak our minds and worship as we please to the guarantee of equal justice under the law. For 220 years, these fundamental liberties have shaped our national character and stirred the souls of all who dream of a freer, more just world. As we mark this milestone, we renew our commitment to preserving our universal rights and perfecting our Union.

Introduced in the First Congress in 1789, the Bill of Rights was born out of compromise. The promise of enumerated rights enabled the ratification of the Constitution without fear that a more centralized government would encroach on American freedoms. In adopting the first ten Amendments, our Founders put forth an ideal that continues to define our Nation -- that we can have both liberty and security, that we need not sacrifice the rights of man for the rule of law.

Throughout our country's history, generations have risen to uphold the principles outlined in our Bill of Rights and advance equality for all Americans. The liberties we enjoy today are possible only because of these brave patriots, from the service members who have defended our freedom to the citizens who have braved billy clubs and fire hoses in the hope of extending America's promise across lines of color and creed. On Bill of Rights Day, we celebrate this proud legacy and resolve to pass to our children an America worthy of our Founders' vision.

Some would argue, however, that the Bill of Rights does not enshrine "the guarantee of equal justice under the law" in the Constitution, given that the concept of individual equality does not appear in the Constitution until the Fourteenth Amendment passed after the Civil War. The Fourteenth Amendment also introduced the word "male" into the Constitution, in section 2 regarding voting, although section 1 uses the word "persons."

The "Bill of Rights" as ratified does primarily focus on "rights," but the original Resolution of Congress consisting of twelve amendments did not concern rights.  Instead, they concerned Congress itself:

Article the first . . . After the first enumeration required by the first Article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which, the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

Article the second . . . No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

The latter became the 27th Amendment, ratified more than two centuries later in 1992.

Bill_of_Rights_Pg1of1_ACStill, it's a good day to reflect on the "Bll of Rights":

  • Amendment 1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
  • Amendment 2. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
  • Amendment 3. No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
  • Amendment 4.  The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
  • Amendment 5.  No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
  • Amendment 6. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
  • Amendment 7. In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
  • Amendment 8. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
  • Amendment 9. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
  • Amendment 10. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.


[image from National Archives via] 

December 15, 2011 in Due Process (Substantive), Equal Protection, Establishment Clause, Fifth Amendment, First Amendment, Fourth Amendment, Free Exercise Clause, Fundamental Rights, Gender, History, Interpretation, Privileges or Immunities: Fourteenth Amendment , Race, Reconstruction Era Amendments, Religion, Second Amendment, Seventh Amendment, Sixth Amendment, Speech, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Monday, October 10, 2011

Columbus Day: The "Doctrine of Discovery"

The celebration of Columbus Day is controversial in many quarters.  Professor Robert Williams' article, Columbus's Legacy: Law as an Instrument of Racial Discrimination Against Indigenous Peoples' Rights of Self-Determination, 8 Ariz. J. Int'l & Comp. L. 51, available on ssrn, is an exploration of that controversy important to ConLaw perspectives.

00347r Williams conects the three core principles of constitutional Indian Law - - - the Congressional Plenary Power doctrine, which holds that Congress exercises a plenary authority in Indian affairs; the Diminished Tribal Sovereignty doctrine, which holds that Indian tribes still retain those aspects of their inherent sovereignty not expressly divested by treaty or statute, or implicitly divested by virtue of their status; and the Trust doctrine, which holds that in exercising its broad discretionary authority in Indian affairs, Congress and the Executive are charged with the responsibilities of a guardian acting on behalf of its dependent Indian wards - - -to the medieval legal intellectual origins of these foundational doctrines that animated Columbus' ability to "claim" the "discovered" lands of the Americas for European sovereigns.

The article is an excellent exploration of these foundational doctrines. Williams discusses the first "Indian case," Johnson v. McIntosh, written by Justice Marshall in 1823, in which the Court considered a dispute of title between persons who had received their title from Indians and those who had received their title from the United States several decades later.  Williams explains the outcome:

The Court held in Johnson that Indian tribes had no power to give title to lands to private individuals recognizable in a United States court. Marshall's opinion for the Court in Johnson relied exclusively and directly upon the medievally-derived legal tradition of European Christian Crusading conquest and denial of non-Christian infidel peoples' rights brought to the New World by Columbus. . . .  Under this doctrine, recognized and enforced as part of the Law of Nations by the European colonizing nations, discovery of territory in the New World gave the discovering European nation, in Marshall's words, “an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest.” England's title to North America, as Marshall recognized, was asserted under this Doctrine of Discovery, and therefore had devolved to the United States as a result of its victory in the Revolutionary War. Thus, Marshall reasoned that the non-Indian plaintiffs' purchases of lands directly from the Indian tribes, without the approval or sanction of either the original discovering European nation, England, or its successor in interest, the United States, could not be sustained as valid in a United States court of law.

Writing in the quincentennial year of the Columbus "discovery," Williams noted that it was important to confront this continuing legacy of legal doctrines such as "discovery" and their theoretical underpinnings in Christian dominance and racism in order to realize our "contemporary concerns of creating a multicultural society of equal law and justice for all peoples, regardless of their race, cultural or religious beliefs and practices."

Good reading for Columbus Day!

[image: "The Landing of Columbus, 1492, from Library of Congress, via]

October 10, 2011 in Congressional Authority, Current Affairs, Fundamental Rights, History, Interpretation, Race, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, September 22, 2011

Loitering While Masked: The Wall Street Protest Arrests

The "occupation" of Wall Street by people seeking to bring attention to financial greed and misdeeds has provoked some arrests, including arrests for violating New York's longstanding loitering statute, Penal Law §240.5.  706px-Occupy_Wall_Street_Anonymous_2011_Shankbone

Several sections of the loitering statute have been declared unconstitutional, including loitering for the purpose of begging, loitering for the purpose of gambling, and loitering for the purpose of soliciting someone to engage in oral or anal sex.  However, subsection 4 - - - the loitering while masked provision - - - has been upheld as constitutional by the Second Circuit in Church of American Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197 (2nd Cir. 2004). 

Subsection 4 prohibits:

Being masked or in any manner disguised by unusual or unnatural attire or facial alteration, loiters, remains or congregates in a public place with other persons so masked or disguised, or knowingly permits or aids persons so masked or disguised to congregate in a public place; except that such conduct is not unlawful when it occurs in connection with a masquerade party or like entertainment if, when such entertainment is held in a city which has promulgated regulations in connection with such affairs, permission is first obtained from the police or other appropriate authorities;

A panel of the Second Circuit, including now-Justice Sotomayor, unanimously reversed the district judge who had held the statute unconstitutional under the First Amendment.  The Second Circuit traces the history of the mask provision to the "Anti-Rent era” in New York history, running from 1839 to 1865, involving conflicts between the landlords and tenants of vast manorial estates in New York, and including violence by tenants who disguised themselves.  [While the court does not mention it, the provision was originally part of the vagrancy statutory scheme repealed in 1967, and a host of other states have masking or other disguise statutes, which at times have prohibited gender inappropriate clothing].

The court relied on the specific New York history, "indisputably aimed at deterring violence and facilitating the apprehension of wrongdoers," coupled with the particular case of the KKK regalia, in which the mask added nothing to the expressive attire of the robe and hood, and quickly dispatched the claims of expressive conduct without the necessity for engaging in balancing under United States v. O'Brien, 391 U.S. 367 (1968).  The court also rejected the claims of entitlement to anonymous speech and that the enforcement against the KKK would be viewpoint discrimination.

However, those arrested this week on Wall Street might still argue that the statute is unconstitutionally applied to them.  The protesters are certainly different from the KKK and have less of a connection to violence.  The "masquerade party and like entertainment" of the statute as an exception is a rather broad one it seems.  Indeed, at the Herald Square subway stop last evening, I was entertained by a masked person playing a cello, and "masquerade" is a common occurrence on the subways and streets of NYC. 

More about the protests is available on AdBusters, with a good discussion of the purpose; daily updates are available on occupywallstreet; the NYT discusses the arrests for mask violations and more arrests;  and The Colbert Report snippet below provides a semi-serious perspective.



 This would be a great topic for in-class discussion in First Amendment.

[image of Occupy Wall Street protester 2011, via]

September 22, 2011 in First Amendment, History, Interpretation, News, Speech | Permalink | Comments (1) | TrackBack (0)

Monday, September 12, 2011

Stone and Marshall on Constitutional Interpretation

The American Constitution Society just released an issue brief by Geoffrey Stone (Chicago) and William Marshall (UNC) titled The Framers' Constitution: Toward a Theory of Principled Constitutionalism.  Stone and Marshall write that constitutional interpretation according to the Framers' Constitution has two essential elements: First, courts should generally defer to the will of the majority; but second, courts should depart from this deference to "protect our most fundamental freedoms and guard against those malfunctions of majority governance that most concerned the Framers."

Stone and Marshall argue that this approach "reflects the fundamental values and aspirations of those who framed the American Constitution over the course of more than two centuries and strikes the proper balance between judicial restraint and judicial activism by focusing on the circumstances in which judicial review is necessary to preserve our constitutional liberties and limitations." 

But values and aspirations aren't all they look to:

In the end, of course, constitutional interpretation is not a mechanical enterprise.  It requires judges to exercise judgment.  It calls upon them to consider text; history; precedent; values; changing social, economic, technological, and cultural conditions; and the practical realities of the times.  Above all, it must be grounded in an understanding of the judiciary's unique strengths and weaknesses and in a proper appreciation of the most fundamental reasons for judicial review.  Courts must have the authority to invalidate acts of the elected branches of government, not so they can pursue conservative or liberal agendas, but so they can serve as an essential check on the dangers of majoritarian dysfunction.  This understanding of constitutional interpretation was central to much of the work of the Warren Court and it has long been central to the progressive understanding of constitutional law.


September 12, 2011 in Interpretation, News | Permalink | Comments (0) | TrackBack (0)

Monday, August 29, 2011

Alabama Immigration Law HB56 Enjoined by Federal Judge


In a very brief Order issued late today, Judge Sharon Lovelace Blackburn, Chief Judge of the Norther District of Alabama, enjoined the enforcement of HB56:


Act 2011-535 [H.B. 56] is TEMPORARILY ENJOINED, and may not be executed or enforced. In entering this order the court specifically notes that it is in no way addressing the merits of the motions. The court will issue detailed Memorandum Opinions and Orders ruling on the merits of the pending Motions for Preliminary Injunction no later than September 28, 2011. This temporary injunction shall remain in effect until September 29, 2011, or until the court enters its rulings, whichever comes first.

The Order comes in the consolidated cases of Hispanic Interest Coalition of Alabama v. Bentley; Parsley v. Bentley, and United States v. Bentley.   We've previously discussed each of these three lawsuits have been brought against the controversial HB 56. 

The Hispanic Interest Coalition case began with a 118 page complaint filed early in July raises eight constitutional claims including claims under the Supremacy Clause (arguing that the state law is pre-empted); Fourth Amendment; Equal Protection Clause; Due Process Clause;  First Amendment claims including speech, assembly, and petition clauses, the Contracts Clause, and two Sixth Amendment claims. 

Parlsey v. Bentley is the clergy complaint centering on the First Amendment Free Exercise Clause. 

United States v. Bentley marks the DOJ's entry into the controversy, raising Supremacy Clause arguments as might be expected.

The law was scheduled to go into effect September 1. 

[image: Map of Alabama, circa 1832, via]

August 29, 2011 in Cases and Case Materials, Current Affairs, Due Process (Substantive), Equal Protection, Federalism, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Interpretation, Preemption, Race, Sixth Amendment, Speech, Supremacy Clause | Permalink | Comments (2) | TrackBack (0)

Monday, August 22, 2011

It's not the Autopen, It's the Proxy Presence Requirement

Reconsidering President Obama's use of the autopen a few months ago to sign an extension of FISA, the Foreign Intelligence Surveillance Act, Professor Terry Turnipseed argues that

it is not the President’s use of the autopen that is problematic. Rather, the President’s absence during the proxy signing is, and it demands an examination of the very nature of the Constitution’s signature requirement.

In his essay, Turnipseed discusses the origins of proxy signatures, including the presence requirement for proxy signatures in the English Statute of Frauds and Statute of Wills.  He uses these as a lens to view the presentment clause of Art. I §7, requiring 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, with his Objections to that House in which it shall have originated . . ."  The remainder of the provision allows for a bill to become law by Congressional override of a veto, or by the President's failure to sign or veto a bill within 10 days while Congress is in session. 



For Turnipseed, the signature option is linked to a strong executive and the constitutional separation of powers in Constitutional Convention discussions.  Turnipseed attacks the Nielson Memorandum, on which Obama relied for the autopen signature, claiming that the Memo's "Achilles’ heel"  is found in footnote 11: “[T]he principle of signatures generally required the principal’s presence for his signature validly to be affixed to a document by another person otherwise lacking authority to act on the principal’s behalf …” 

On his view, the footnote is a "shoddily crafted" attempt to circumvent 350 years of history that addressed "the dangers of fraud and undue influence," issues that continue to be of concern today.   He concludes that the "safest method for avoiding fraud is the same today as hundreds of years ago: have the principal sign a document in pen or require that a proxy (whether human or autopen) do so in the presence of the principal."   

[image via]

August 22, 2011 in Executive Authority, History, Interpretation | Permalink | Comments (0) | TrackBack (0)

Friday, August 12, 2011

Collective Action Federalism and Resolution VI (with the ACA in the background)

Prof. Kurt Lash (Illinois) and Prof. Neil Siegel (Duke) debated congressional authority this week over at Volokh.  Their points are drawn from Lash's "Resolution VI": The Virginia Plan and Authority to Resolve Collective Action Problems Under Article I, Section 8, and Robert Cooter and Siegel's Collective Action Federalism: A General Theory of Article I, Section 8.

The articles turned on somewhat different ideas.  Lash's "Resolution VI," as the name suggests, focuses on and criticizes the theory, popularized by Jack Balkin in his article Commerce, among others, that Resolution VI informs (and under a strong version even is) the meaning of the Commerce Clause and other Article I, Section 8 authorities.  (Resolution VI of the Virginia Plan, amended and adopted in the Philadelphia Convention, says that Congress should have power to "legislative in all Cases for the general interests of the Union, and also in those Cases in which the States are separately incompetent, or in which the harmony of the United States may be interrupted by the Exercise of Individual Legislation."  That language obviously isn't in the Constitution; instead, the Committee of Detail recommended, and the Convention adopted, enumerated powers.) 

Cooter and Siegel's piece, in contrast, looks to Resolution VI as just one piece of evidence supporting their theory of collective action federalism.  Siegel explains (from Volokh):

Robert Cooter and I have observed that the eighteen clauses of Section 8 mostly concern collective action problems created by two kinds of spillovers: interstate externalities and national markets. . . .

The theory of collective action federalism draws from history, from this evidence in the constitutional text, and from subsequent historical understandings and mistakes, and from modern economics to provide a structural account of the American federal system established in part by Section 8.  Its various clauses form a coherent set, not a collection of unrelated powers.  Coherence comes from the connection that the specific powers have to collective action problems that the federal government can address more effectively than the states can address by acting alone.

The states often cannot achieve an end when doing so requires multiple states to cooperate.  According to collective action federalism, the clauses of Section 8 empower Congress to solve collective action problems that predictably frustrate the states.  In the language of the Commerce Clause in particular, such problems are "among the states."

The debate at Volokh was largely around Resolution VI and its effect (or not) on Article 1, Section 8 powers.  This is an important debate, to be sure, and it'll likely play some role in the challenges to the Affordable Care Act.  (The Constitutional Accountability Center makes the argument in its amicus briefs in the cases; Elizabeth Wydra, CAC's chief counsel, outlines the argument here, in the recent SCOTUSblog symposium on the ACA.)  But Cooter and Siegel's collection action federalism is much broader than just Resolution VI.

Here are links to the posts at Volokh:


August 12, 2011 in Conferences, Congressional Authority, History, Interpretation, Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, August 7, 2011

SCOTUSblog's On-Line Symposium on Constitutionality of Health Care Reform

SCOTUSblog is hosting an on-line symposium on the constitutionality of the Affordable Care Act.  From the symposium description:

Last week the Thomas More Law Center, a Christian legal group, filed a petition for certiorari in which it asked the Court to review a Sixth Circuit decision, which rejected the group's claim that a provision of the Patient Protection and Affordable Care Act requiring all Americans to purchase health insurance by 2014 is unconstitutional.  With similar challenges currently pending in the Fourth and Eleventh Circuits, it seems likely that the Court will take up the constitutionality of the Act at some point in the future--perhaps even during the upcoming Term.  During the next two weeks, SCOTUSblog will host an online symposium on the Act and the Court: when and whether the Court is likely to review the Act, and how it might rule if it does.

Posts so far are here; here's a list of contributors:

  • Jonathan Adler, Case Western Reserve University School of Law
  • Cory Andrews, Washington Legal Foundation
  • Erwin Chemerinsky, University of California – Irvine School of Law
  • Richard Epstein, University of Chicago Law School
  • Charles Fried, Harvard Law School
  • Abbe R. Gluck and Gillian Metzger, Columbia Law School
  • Mark Hall, Wake Forest University School of Law
  • Dawn Johnsen, Indiana University Maurer School of Law
  • Bradley Joondeph, Santa Clara University School of Law
  • Orin Kerr, The George Washington University Law School
  • David Kopel, Independence Institute
  • John Kroger, Attorney General of Oregon
  • Robert Levy, Cato Institute
  • Stephen Presser, Northwestern University
  • Elizabeth Price Foley, Florida International University College of Law
  • David B. Rivkin and Lee A. Casey, Baker Hostetler
  • Robert Schapiro, Emory University School of Law
  • Steven Schwinn, John Marshall Law School
  • Ilya Shapiro, Cato Institute
  • Ilya Somin, George Mason University School of Law
  • Laurence Tribe, Harvard Law School
  • Adam Winkler, University of California Los Angeles School of Law
  • Elizabeth Wydra, Constitutional Accountability Center


August 7, 2011 in Commerce Clause, Conferences, Congressional Authority, Federalism, Interpretation, News, Scholarship, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 2, 2011

Debating the Progressive Constitution

Douglas Kendall (Constitutional Accountability Center) and Geoffrey Stone (Chicago) debated progressive visions of constitutional jurisprudence last month at Brookings.  (The link contains video of the event.)  The debate continued their pieces in the current issue of the journal Democracy and includes perspectives on both theories of interpretation and the politics of those theories--that is, which theory can best challenge the political right's originalism and capture the confidence of the people.  This is a refreshing debate--one in a growing line now that does not center on either the faults or virtues (or both) of originalism, but rather seeks to move the entire frame of the debate over constitutional interpretation.

Stone (and William Marshall (UNC), his co-author on the Democracy pieces) argued where constitutional text is ambiguous, judges should apply the "values, concerns, and purposes" of the document to new problems:

[The Framers'] values, concerns, and purposes, as reflected in the text of the Constitution, must inform and guide the process of constitutional interpretation, but in a principled and realistic manner.  They must be considered as the Framers themselves understood them--as a set of general principles and aspirations, rather than as a collection of specific and shortsighted "rules."  To be true to the Framers' Constitution, we must strive to implement faithfully the Framers' often farsighted goals in an ever-changing society.  That is central to any theory of princpled constitutionalism.

Democracy, at 65.  How to do this?

Constitutional interpretation is not a mechanical enterprise.  It requires judges to exercise judgment.  It calls upon them to consider text, history, precedent, values, changing social, economic, technological, and cultural conditions, and the practical realities of the times.  It requires restraint, wisdom, empathy, intelligence, and courage.  Above all, it requires recognition of the judiciary's unique strengths and weaknesses, a proper appreciation of the reasons for judicial review, and a respectful understanding of our nation's most fundamental constitutional aspirations and how we hope to achieve them.

Democracy, at 66.

Kendall (and Jim Ryan (UVA), his co-author on the Democracy pieces) argued that Stone and Marshall "fall into the same traps that have gotten progressives into a hole in the first place," including seeing the text as too ambiguous.  Seeing the text as ambiguous, they argue, lends itself as much to a conservative reading as to a progressive reading.  A better approach is New Textualism:

Constitutional adjudication often requires two steps--determining the meaning of the constitutional provision in question as precisely as possible, and then applying that meaning to the issue at hand.  That second step may entail following precedent, or it may require reliance on broader theories of adjudication summarized by Stone and Marhsall, like judicial restraint or political process theory.

What we are saying is that progressives should linger far longer on the first step, even in cases involving the Constitution's most open-ended language, rather than sailing right past this step in the often mistaken belief that a close examination of the Constitution's text and history will offer little of value.

Democracy, at 71.

Whatever else their disagreements, they agree on at least these points:  All agree that originalism, any variety, is a bankrupt theory; and they all agree that progressives need their own strong, persuasive theory of constitutional interpretation.


August 2, 2011 in Interpretation, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 19, 2011

Not a "True Threat": The Ninth Circuit Holds Anonymous Threats to Obama Protected

The line between "true threats" and sort-of-threatening-or-offensive-statements is the line between criminality and First Amendment protection. 

In an opinion today in United States v. Bagdasarian, the Ninth Circuit reversed Bagdasarian's conviction, holding that his statements did not rise to the constitutionally required level of "true threats." At issue was U.S.C. § 879(a)(3), providing it is a felony to threaten to kill or do bodily harm to a major presidential candidate. 

Judge Stephen Reinhardt, writing for the panel and joined by Chief Judge Alex Kozinski, over a partial dissent by Judge Kim McLane Wardlaw, begins by discussing the context:

 "The election of our first black President produced a campaign with vitriolic personal attacks and, ultimately, sentiments of national pride and good will. The latter was shortlived on the part of some, politicians and non-politicians alike, and the vitriol continued as President Obama’s term of office commenced."

It soon becomes clear why the opinion begins this way, as the statements of Walter Bagdasarian, who the opinion characterizes as "an especially unpleasant fellow,"  are racist as well as violent.  Bagdasarian under the user name “californiaradial,” posted his statements on a Yahoo! Finance — American International Group message board, "an internet site on which members of the public could post messages concerning financial matters, AIG, and other hot topics of the day." 

The panel rejected the government's argument that Bagdasarian's anonymity contributed to the "true" quality of the threat.  "We grant that in some circumstances a speaker’s anonymity could influence a listener’s perception of danger," but here, "the financial message board to which he posted them is a non-violent discussion forum that would tend to blunt any perception that statements made there were serious expressions of intended violence."  

The panel also rejected the relevance of two other facts deemed important by the government.  First, one of Bagdasarian's statements referred to a "50 cal" and Bagdasarian did indeed possess .50 caliber weapons and ammunition in his home.  Second, he later sent an email that, while it did not mention Obama, did refer to a "50 cal" used on a car and included a video of junked cars being blown up.  The panel noted:

Nobody who read the message board postings, however, knew that he had a .50 caliber gun or that he would send the later emails. Neither of these facts could therefore, under an objective test, “have  bearing on whether [Bagdasarian’s] statements might reasonably be interpreted as a threat” by a reasonable person in the position of those who saw his postings on the AIG discussion board.

The panel very carefully discusses both the objective and subjective tests, making this opinion a terrific one for classroom use.  It would also be a great class exercise given Wardlaw's extensive dissent.

Intriguingly, while still in the first paragraph, Reinhardt's opinion invokes Scalia and American history, criticizing a 1995 dissenting opinion by Scalia, McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 382 (1995) (Scalia, J., dissenting), because it "uncharacteristically overlooked the experience of our Founding Fathers."  Reinhardt remedies this with several examples, including:

In the country’s first contested presidential election of 1800, supporters of Thomas Jefferson claimed that incumbent John Adams wanted to marry off his son to the daughter of King George III to create an American dynasty under British rule; Adams supporters called Jefferson “a mean-spirited, low-lived fellow, the son of a half-breed Indian squaw, sired by a Virginia mulatto father.

Yet Reinhardt soon brings the discussion up to date: "Still, the 2008 presidential
election was unique in the combination of racial, religious, and ethnic bias that contributed to the extreme enmity expressed at various points during the campaign.  Much of this bias was misinformed because although the presidential candidate was indeed black, he was neither, as some insisted,
Muslim nor foreign born."  He also supports these statements with extensive footnotes.

Ninth Circuit

Reinhardt was quoted by the LA Times in a story yesterday about the high rate of reversal of the "liberal" Ninth Circuit (pictured above via) by the more conservative Supreme Court.  

Reinhardt said he didn't feel personally reprimanded [by Supreme Court reversals]  because the justices often employ strong language to express their disagreement, usually with one another.

"If anything, it's a compliment. I get treated like the others on the [Supreme] Court," he said in an interview with The [LA] Times.


July 19, 2011 in Cases and Case Materials, Current Affairs, Elections and Voting, First Amendment, History, Interpretation, News, Opinion Analysis, Race, Speech, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Monday, July 18, 2011

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.


July 18, 2011 in History, Interpretation, News | Permalink | Comments (1) | TrackBack (0)

Sunday, July 3, 2011

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.



July 3, 2011 in Cases and Case Materials, Courts and Judging, Current Affairs, History, Interpretation, Jurisdiction of Federal Courts, Recent Cases, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Thursday, June 23, 2011

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.


June 23, 2011 in Cases and Case Materials, Federalism, Interpretation, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

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."


June 23, 2011 in Interpretation, News | Permalink | Comments (0) | TrackBack (0)

Monday, June 20, 2011

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.  

Petition lynching 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.

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


June 20, 2011 in First Amendment, Interpretation, Opinion Analysis, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, June 17, 2011

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.


June 17, 2011 in Interpretation, News | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 15, 2011

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.


June 15, 2011 in Congressional Authority, Foreign Affairs, International, Interpretation, Jurisdiction of Federal Courts, Opinion Analysis, Recent Cases, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Monday, June 13, 2011

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."

JKirchmeier 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.


June 13, 2011 in Courts and Judging, Interpretation, Scholarship, Supreme Court (US), Teaching Tips, Theory | Permalink | Comments (1) | TrackBack (0)