Monday, December 3, 2012
Second Circuit On First Amendment Right to Promote Drug for Off-Label Use Without Criminal Consequences
In a sharply divided and long overdue opinion in United States v. Caronia issued today, a panel of the Second Circuit reversed a conviction relying primarily on the Supreme Court's 2011 decision in Sorrell v. IMS Health, Inc.
The conviction, according to the jury verdict, was for "Conspiracy to introduce a misbranded drug into interstate commerce in violation of 21 U.S.C. §§ 331(a) and 333(a)(2)." However, Judge Denny Chin, writing for the majority, emphasized that Caronia's statements - - - promoting the off-label use of the drug while he was as a pharmaceutical marketer - - - were the basis of the conviction: "Caronia was, in fact, prosecuted and convicted for promoting Xyrem off-label." Thus, because the majority rejected the government's argument that the statements were (merely) evidence of intent, the conviction raised a First Amendment issue. The panel then extensively discussed Sorrell, beginning with an explication of its two-step analysis:
First, the Court considered whether the government regulation restricting speech was content- and speaker-based. The Court held that it was; the regulation was therefore subject to heightened scrutiny and was "presumptively invalid." Second, the Court considered whether the government had shown that the restriction on speech was consistent with the First Amendment under the applicable level of heightened scrutiny. The Court did not decide the level of heightened scrutiny to be applied, that is, strict, intermediate, or some other form of heightened scrutiny.
[citations omitted]. The panel concluded "that the government's construction of the FDCA's misbranding provisions imposes content- and speaker-based restrictions on speech subject to heightened scrutiny," and then that "the government cannot justify a criminal prohibition of off-label promotion even under Central Hudson's less rigorous intermediate test." The majority seems especially troubled that the crime, at least as the court has constructed it, is "speaker-based because it targets one kind of speaker -- pharmaceutical manufacturers -- while allowing others to speak without restriction."
In a vigorous dissent, Judge Debra Ann Livingston stressed that speech acts are often evidence of intent and that "the majority calls into question the very foundations of our century-old system of drug regulation." She provides a literary analogy to refute Caronia's argument that he "merely discussed “a perfectly lawful practice: the use of a lawful drug, Xyrem, for off-label purposes.”
But the fact that a physician or a patient could legally use Xyrem for an off-label purpose is not enough to make out Caronia’s First Amendment claim. There might be no law forbidding the consumption of arsenic. But this would not endow Abby and Martha with a First Amendment right to offer arsenic-laced wine to lonely old bachelors with the intent that they drink it. See Arsenic and Old Lace (Warner Bros. Pictures 1944). And any statements Abby or Martha made suggesting their intent—even if all of the statements were truthful and not misleading—would not be barred from evidence by the First Amendment simply because arsenic might legally be consumed.
While Judge Chin's opinion could - - - taken to its logical conclusion - - - have a dramatic effect, it seems limited to the pharmaceutical arena.
Should the Court take certiorari in at least one of the circuit cases challenging DOMA, the Defense of Marriage Act, as is widely anticipated, the government interest will be at issue. Courtney Joslin's article, Marriage, Biology, and Federal Benefits, forthcoming in Iowa Law Review and available in draft on ssrn, is a must-read on the "responsible procreation" interest that is often proffered. Joslin (pictured) argues that this interest is based on what she calls the "biological primacy:" an "underlying premise that the government’s historic interest in marriage is to single out and specially support families with biologically-related children."
Joslin's task is decidely not to assess the "fit" of DOMA's means chosen to this interest, under any equal protection standard, whether it be intermediate scrutiny as some, including the Second Circuit in Windsor have applied, or rational basis as the First Circuit applied.
Instead, Joslin interrogates whether this interest is factually true: "Has the federal government historically accorded special solicitude and protection to families comprised of parents and their own biological children?" She demonstrates that the interest is, at the very least, not a consistent one. She examines the "history of federal family-based benefits in two areas: children’s Social Security benefits and family-based benefits for veterans and active members of U.S. military," and demonstrates that in a "vast array of federal benefits programs, eligibility is not conditioned on a child’s biological connection with his or her parent."
From the early years of federal family-based benefits, Congress both implicitly and explicitly extended benefits to children who were biologically unrelated to one or both of their parents. This unearthed history exposes that responsible procreation is based on normative judgments about sexual orientation and gender, not history and tradition.
Indeed, although Joslin does not discuss Loving v. Virginia, her article is deeply reminiscent of the Court's reasoning in Loving when it essentially rejected Virginia's proffered rationale of "racial integrity," with Chief Justice Warren writing that the "fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy." Joslin's article should be required reading for anyone analyzing DOMA.
Friday, November 30, 2012
In an 41 page opinion and order in Sevick v. Sandoval, United States District Judge Robert Jones has rejected an equal protection challenge to Nevada's statutory scheme disallowing same-sex marriage.
The judge relied upon Baker v. Nelson, 409 U.S. 810 (1972), in which the United States Supreme Court summarily dismissed an equal protection challenge to the Minnesota statutory marital scheme's exclusion of same-sex couples. While stating that the "present challenge is in the main a garden-variety equal protection challenge precluded by Baker," the judge was undoubtedly aware of Baker's problematic status (a case to be relegated to the dustbin of precedent, perhaps), and provided a full analysis, "so that the Court of Appeals need not remand for further proceedings should it rule that Baker does not control or does not control as broadly as the Court finds."
The judge's well-structured analysis begins with a discussion of the classification, considering the notion that the Nevada scheme makes no classification at all, as well as the notion that the scheme makes a gender classification, but settling for the widely accepted principle that the scheme makes a sexual orientation classification.
In determining the level of scrutiny to be applied, Judge Jones decides in favor of rational basis, noting his disagreement with the Second Circuit in Windsor involving DOMA. Supporting this conclusion, Judge Jones highlights the factor of political powerlessless and its relationship with the judicial role in a democracy. For example, Jones writes that "Any minority group can reasonably argue that its political power is less than it might be were the group either not a minority or more popular. That is simply an inherent aspect of democracy." Additionally, "Gross movements by the judiciary with respect to democratic processes can cause an awkward unbalancing of powers in a Madisonian constitutional democracy."
Moreover, Judge Jones rejects the heightened rational basis of Romer v. Evans and the Ninth Circuit precedent of Perry v. Brown, involving California's Proposition 8, because there is no animus in the Nevada scheme:
Because there has never been a right to same-sex marriage in Nevada, Romer and Perry are inapplicable here as to NRS section 122.020. That section of the NRS removed no preexisting right and effected no change whatsoever to the legal status of homosexuals when adopted by the Nevada Territorial Legislature in 1861. See Nev. Comp. Laws § 196 § 2, at 65 (1861–1873).
On this lowest standard of rational basis, the challenger must negate every conceivable basis - - - an exceedingly, if not impossible task, and Judge Jones not surprisingly finds that the challengers fail to meet their heavy burden. The "protection of the traditional basis for marriage," is a legitimate one for Judge Jones, and the exclusion of same-sex couples is rationally related to that interest. This is true even though Nevada has provided for a domestic partnership scheme for same-sex couples.
As the United States Supreme Court considers whether or not to decide the issue of same-sex marriage, either in the Proposition 8 posture of Perry v. Brown or one of the DOMA postures such as the Second Circuit case or First Circuit case - - - all of which invalidated bans on same-sex marriage - - - Judge Jones' opinion demonstrates that the constitutional issue of same-sex marriage remains a contested one, even in a state with otherwise permissive marital regulations.
[image "Little white chapel" in Las Vegas, Nevada, via]
Thursday, November 29, 2012
Daily Read: Thirteenth Amendment Scholars Supporting Matthew Shepard & James Byrd, Jr. Hate Crimes Act
Did Congress have power pursuant to the Thirteenth Amendment to pass the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009?
The question of the Act's constitutionality is before the Tenth Circuit in an appeal arising from the first prosecution under the Act. In Hatch v. United States, the defendant challenges 18 U.S.C. § 249(a)(1), which provides:
Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person—
There seems to be little dispute that the three defendants admitted actions against the Native American victim, including branding the victim with a swatstika, fit within the terms of the statute. But did the statute exceed Congress' power pursuant to the Thirteenth Amendment, or does the statute violate equal protection as guarenteed through the Fifth Amendment?
On the Thirteenth Amendment issue, ConLawProfs William M. Carter, Jr., Dawinder S. Sidhu, Alexander Tsesis, and Rebecca E. Zietlow, have filed an amicus brief, available on ssrn, argue that the Thirteenth Amendment's enforcement clause gives Congress broad powers. They contend that the hate crime section should be analyzed under a defential rational basis standard, both because of its provenance in the Thirteenth Amendment and, perhaps most interestingly, because the statute does not make a racial classification.
This is a terrific read of engaged scholarship as well as a providing a great grounding for a class exercise or student project.
Tuesday, November 20, 2012
It's refreshing to pick up a book that explores a topic like constitutional originalism with vim and vigor and a plain-spoken, jargon-less approach that appeals to--indeed invites--readers who are outside the technical academic debates. We ought to have more like this. If we did, we might have more meaningful public discussions about the virtues and vices of originalism, living constitutionalism, constitutional fidelity, or any other method of constitutional interpretation or construction--and why they matter.
The downside, of course, is that plain-spoken-ness can sometimes come at a cost to nuance, balance, completeness, and even honesty. This may be especially true when discussing constitutional interpretation and construction, an area so rife with nuance and indeterminacies. The danger (and perhaps an opportunity, for advocates of any particular approach) is in over-simplifying.
Adam Freedman's The Naked Constitution sets a standard for plain-spokenness and accessibility in the area of constitutional originalism. It's an extraordinarily well written--indeed, fun-to-read--page-turner that romps through the Constitution and the courts' treatment of it and delivers a plain-spoken argument for Freedman's brand of original-meaning originalism. (Just to be clear: Freedman argues that original meaning supports a narrow, strict reading of the text.)
But while Freedman's gift for clear, entertaining writing has all the potential to bring a serious constitutional debate to a broader public, it also trades on nuance, balance, and completeness in the text, history, and precedent. And because of the book's (unnecessary) partisanship, it's likely only to reinforce the ideas of Freedman's supporters, to alienate his detractors, and to divide readers. I don't think it'll do much persuading or advancing-of-the-originalism-debate on either side.
And that's OK. This book seems designed first as a political argument, only next as a constitutional one. It's red meat for conservatives, and it'll surely rile progressives. If you're looking for a lively, readable volume that will fuel your constitutional politics (whatever they are) this is for you. And the book's sheer breadth ensures that you're likely to learn something about constitutional originalism (or anti-living-constitutionalism), even if the book doesn't always tell the whole story.
Freedman takes aim at the usual suspects--a Congress bent on legislating ultra vires, a unitary executive constrained by independent agencies, unenumerated fundamental rights, a wall of separation between church and state, lack of priority to the rights of gun owners and property owners, an Eighth Amendment run amok, and a vacant Tenth Amendment. According to Freedman, these all share this common denominator: an activist judiciary that is unfaithful to the original meaning of the text.
But these usual suspects all share another common denominator: they're the bread-and-butter bogeymen of the new-style political conservatives. Freedman would say as much. Indeed, a good part of his book is devoted to showing that "liberals"--everyone from the ACLU, to the Ninth Circuit, to President Obama--support these constitutional over-reaches. That's too bad. It's distracting and divisive. And it's unnecessary.
The book's partisanship is unnecessary because there's an apolitical case to be made for original-meaning originalism (and against an unfettered living constitutionalism)--one that can use the same lively and accessible approach that Freedman uses here. But that case also has to be fair and balanced; it has to look at the complete original meaning, to acknowledge originalism's shortcomings, and to lodge originalist critiques of living constitutionalists honestly.
Freedman's book sometimes moves in this direction. It's especially strong when it identifies apparent absurdities in the doctrine, for example when it takes on the Court's gloss on the religion clauses: "In the contradictory world of the First Amendment, it is ridiculously easy to 'establish' a religion, but it's almost impossible to burden 'free exercise.'" That's overstated, but it raises a point.
But the book also too often sets up straws, picks at low-hanging fruit, and neglects the full original-meaning picture. As an example of the last, consider the book's treatment of federalism and the Tenth Amendment: the book neglects the bulk of the textual and original-meaning evidence supporting a robust federal government (over the states); and it turns the scant evidence of original meaning that it considers on its head. (See, for example, the discussion of the omission of the word "expressly" from the Tenth Amendment, on pages 290 to 291, arguing that the omission reinforces a limited federal government, and that CJ Marshall recognized this in McCulloch.) It also devalues the original meaning of the federalism amendments--thirteen through seventeen, and others.
In short, The Naked Constitution is more a political argument than a constitutional one--and consciously so. It's a terrifically fun read, but one that is likely only to solidfy positions, not to propel the public debate about originalism.
Freedman also created a companion podcast that's worth checking out.
Wednesday, October 24, 2012
A "daily read" worth watching: Richard Posner (pictured) presented his lecture "How I Interpret Statutes and the Constitution" via video for Columbia Law Federalist Society's Madison Lecture Series on Judicial Engagement.
Posner speaks about originalism and living constitutionalism, proposing his own "middle-ground theory of interpretation that emphasizes common sense and analytic simplicity."
Thursday, September 27, 2012
The marvelous and brilliant South African writer Antjie Krog (pictured right) asks some important questions
This makes me wonder: which books are on the bedside tables of our ministers? How many book shelves had been built into the newly renovated presidential and ministerial houses? How many reading circles are in the parliamentary complexes? What novels are the captains of industry reading there in business class? What poetry volumes are in the judges' smart cases? What literary texts are to be found in doctors' waiting rooms, or on teachers' or parents' tables?
Why should a country read its writers?
Antjie Krog provides some answers in her speech at the Edinburgh International Book Festival, as published in The Guardian.
Wednesday, September 26, 2012
Here's one of the 12 questions in a "quiz" on textualism. It appears in the ABA Journal, by Bryan Garner as an "outtake" omitted from the controversial book co-authored with Justice Antonin Scalia, Reading Law.
A state constitution declares that superior court judges are to be elected by both branches of the legislature. The legislature enacts a statute allowing the governor to appoint a superior court judge to fill a vacancy. Is the statute constitutional?
As you try answering each question, identify not just the outcome but also the canons of construction that must be considered. Our answers are normative rather than descriptive. They are the answers of a textualist. Purposivists, consequentialists and hence some courts would reach different (and variable) results.
Apparently other types of constitutional interpretation, including evolutive, critical, or "living constitution" theories are beyond the ken. But in role as textualists, this question is one of the easier ones:
Answer: No, the statute is unconstitutional. The constitution specifies how superior court judges are to take office—not including gubernatorial appointment. The governing rule is the negative-implication canon. See § 10 [of Reading Law].
Most of the questions stress statutory construction, but as in the book, there is a conflation of constitutional and statutory interpretation. Garner promises an additional set of questions and answers will be forthcoming in the ABA Journal.
[image circa 1901 via]
Tuesday, September 25, 2012
Writing in the New York Review of Books, for which he has become a not infrequent reviewer, former Justice John Paul Stevens has this to say about ConLawProf Sanford Levinson's new book, Framed: America's 51 Constitutions and the Crisis of Governance:
Framed, is a word that has more than one meaning. We often describe the men who drafted and ratified our Constitution as its “Framers” because they took action to design and create a new governmental structure. We seldom, however, acknowledge that their legal authority for engaging in that important enterprise extended only to the right to propose amendments to the Articles of Confederation, not to replace it. Even though Levinson disavows the idea that the title of his book was intended to suggest that the American people were somehow “framed,” in the more accusatory sense, by the unlawful work of the usually venerated “Framers,” that thought will occur to some readers.
Stevens has his share of disagreements with the book, but his conclusion is a "must read" endorsement:
Instead of reading like a brief in support of Levinson’s conclusions, Framed is a series of thoughtful and interesting essays discussing strengths and weaknesses of various structures established by our Constitution. The book offers an enlightening comparison of those structures with those adopted by states and foreign governments in dealing with similar issues. Many may disagree with Levinson’s arguments, but they will have to think hard about why they disagree. His book is well worth reading.
[image: Junius Brutus Stearns, "Washington at Constitutional Convention, 1787" circa 1856 via]
Friday, September 21, 2012
The very public disagreements between Antonin Scalia and Richard Posner are of interest to ConLaw because of their relevance to originalism as a constitutional theoretical perspective.
Recall that the book Reading Law: The Interpretation of Legal Texts, co-authored by Antonin Scalia and Bryan Garner, is largely devoted to the question of statutory interpretation, although there are constitutional references peppered throughout, including a passage directed at "living constitutionalism."
A review of the book in The New Republic by well-known Seventh Circuit Judge Richard Posner (pictured) was overwhelmingly negative and included this passage:
Scalia is a pertinacious critic of the use of legislative history to illuminate statutory meaning; and one reason for his criticism is that a legislature is a hydra-headed body whose members may not share a common view of the interpretive issues likely to be engendered by a statute that they are considering enacting. But when he looks for the original meaning of eighteenth-century constitutional provisions—as he did in his opinion in District of Columbia v. Heller, holding that an ordinance forbidding people to own handguns even for the defense of their homes violated the Second Amendment—Scalia is doing legislative history.
Posner later adapted the argument even more bluntly:
Heller probably is the best-known and the most heavily criticized of Justice Scalia’s opinions. Reading Law is Scalia’s response to the criticism. It is unconvincing.
The discussion escalated, with Justice Scalia stating in an interview, ""To say that I used legislative history is simply, to put it bluntly, a lie."
Posner responded yesterday:
I had indicated what I meant by legislative history when I had said that in seeking the original eighteenth-century meaning of the text of the Second Amendment Justice Scalia had been doing legislative history. His quest for original meaning had taken him to a variety of English and American sources from which he distilled the existence of a common law right of armed self-defense that he argued had been codified in the Second Amendment. He may not consider such a historical inquiry to be an exercise of “legislative history,” because he defines legislative history very narrowly (and in the interview calls it “garbage”). His coauthor, Bryan Garner, does not define it so. Here is the definition of the term in Black’s Law Dictionary (9th ed. 2009), of which Garner is the editor: “The background and events leading to the enactment of a statute, including hearings, committee reports, and floor debates.” The “background and events leading to the enactment” of the Second Amendment are the focus of the Heller opinion.
Even if I accepted Scalia’s narrow definition of “legislative history” and applied it to his opinion in Heller, I would not be telling a “lie.” For Justice Scalia does discuss the “drafting history” (legislative history in its narrowest sense) of the Second Amendment. See 554 U.S. 598–599, 603–605.
So I would not have been lying, or even mistaken, had I said in my book review that in Heller Scalia “actually resorts” to “legislative history” in its narrowest sense (“drafting history”). But I did not say that.
One might ask whether or not the Constitution has a legislative history?
In a few months, the Court will likely decide whether the University of Texas may use racial preferences to redress generations of discrimination, and whether Congress may continue to insure that states with a history of voter suppression don't make it harder for minorities to vote. The relevant text and history of these two disputes will be contested and Posner would likely defer to politically accountable officials on both questions. Scalia will almost certainly vote to strike down these efforts to confront our racist past and then claim that neutral canons of constitutional interpretation require him to do so.
For the cynical, this leaves interpretative strategies and theoretical perspectives simply strategies to achieve desired outcomes. And perhaps that is the relevance of the dispute over legislative history.
Monday, September 17, 2012
From the 2012 Presidential Proclamation, declaring September 17, 2011, as Constitution Day and Citizenship Day, and September 17 through September 23, 2011, as Constitution Week.
In the summer of 1787, delegates from the States gathered in Philadelphia to build a new framework for our young republic. Our Constitution's Framers represented diverse backgrounds, and on key issues, they were divided. Yet despite their differences, they courageously joined together in common purpose to create "a more perfect Union." After 4 months of fierce debate and hard-fought compromise, the delegates signed the Constitution of the United States.
For more than two centuries, the Constitution has presided as the supreme law of the land, keeping our leaders true to America's highest ideals and guaranteeing the fundamental rights that make our country a beacon of hope to all peoples seeking freedom and justice. Together with the Bill of Rights, our Constitution is the backbone of our government and the basis of our liberties. Even while retaining its structure, our founding document has grown with our Nation's conscience, amended over the years to extend America's promise to citizens of every race, gender, and creed.
Americans are defined not by bloodlines or allegiance to any one leader or faith, but by our shared ideals of liberty, equality, and justice under the law. We are a Nation of immigrants, built and sustained by people who have brought their talents, drive, and entrepreneurial spirit to our shores. Generations of newcomers have journeyed to this land because they believed in what our country stands for.
[image: "Scene at the Signing of the Constitution of the United States" by Howard Chandler Christy, 1940 via]
Thursday, August 16, 2012
The case arose when Chappell, a former Fairfax County Sheriff employee was stopped for speeding, and, hoping to avoid a ticket, represented that he was a member of the Sheriff's Office. (Apparently, Chappell believed it would be a successful excuse; and apparently the officer who stopped Chappell thought it was sufficiently important to validate). The prosecution was in federal court: the offense occurred on the George Washington Memorial Parkway and involved a US Park Police officer; federal law makes the Virginia impersonation statute applicable to the George Washington Memorial Parkway.
At the center of the First Amendment argument - - - and of the disagreement between the majority and dissent - - - is the Court's June 28th opinion in United States v. Alvarez, the "stolen valor" case. The majority has a nice digest of Alvarez:
In Alvarez, a four-Justice plurality declared that false statements of fact do not by themselves fall outside of the First Amendment’s scope. Id. at 4-10. Applying exacting scrutiny, the plurality invalidated the Stolen Valor Act because there was not an adequate causal link between the Act and the government’s interest in protecting military honors and because the Act did not represent a sufficiently narrow means of securing that interest. Id. at 12-18. Moreover, in this context, simple counterspeech should suffice to achieve the government’s objectives. Id. at 15-17. Justice Breyer, joined by Justice Kagan, produced the majority for invalidating the statute. Concurring in the judgment, Justice Breyer reasoned that the Stolen Valor Act worked a disproportionate harm to protected speech interests relative to the government’s interests advanced by the Act. Id. at 8-10 (Breyer, J., concurring in the judgment).
The majority then states, "Significantly, no Justice thought it advisable to drape a broad cloak of constitutional protection over actionable fraud, identity theft, or the impersonation of law enforcement officers." This limitation of Alvarez for the majority is necessary to avoid "a treacherous scenario of falling statutory dominoes, placing numerous federal and state impersonation statutes at risk — all in the face of the Supreme Court’s strong signals to the contrary."
The majority also grounds its conclusion in constitutional principles counterbalanced with the First Amendment:
The police function serves a significant salutary purpose in protecting public safety, but it also possesses an oppressive potential in the curtailment of liberty. Courts over time have been required to superintend this balance through Fourth Amendment reasonableness doctrine and related measures. To strike down police impersonation statutes, however, would risk expanding the oppressiveness of the police function by adding to the legitimate number of officers an untold flock of faux policemen, all without any corresponding salutary benefit. This strikes us as a complete inversion of the traditional balance courts are charged with maintaining.
Judge James Wynn, in a dissenting opinion as lengthy as the majority's opinion, argued that the Court in Alvarez rejected "the notion that false speech should be in a general category that is presumptively unprotected." He criticizes the majority for "cherry-picking" language from Alvarez to support its conclusion that statutes criminalizing impersonation are constitutional. For Judge Wynn, the Virginia statute
does not require any act, does not require that the individual obtain anything of value, and does not include any showing of actual deception or harm. In sum, the provision in the Virginia statute before us, and under which Chappell was convicted, criminalizes mere false speech and is closer to the Stolen Valor Act than to the impersonation statutes discussed in Supreme Court dicta and relied upon by today’s majority opinion.
Both the majority and dissent also discuss what the majority terms the "lifeboat of the overbreadth doctrine." For the majority, this is no lifeboat at all: it calls some of Chappell's hypothetical applications - - - such as those attending costume parties - - - as "far-fetched." Judge Wynn finds such applications worth considering, again because the statute does not include an element of intent to defraud, as most impersonation statutes do. For example, Judge Wynn notes that the statute "would have covered Chappell, even if he had not attempted to avoid a ticket but instead expressed his remorse for violating a traffic law, stating, 'I am a police officer and should have known better.' "
With the ink on Alvarez barely dry, there are already important disagreements about its scope.
[image: "Speeding ticket" by Anna Palm deRosa circa 1900, via]
Tuesday, May 29, 2012
His own op-ed, for example, argues that the Constitution itself is responsible for current political pathologies. He singles out the Electoral College and the composition of the Senate for special note, both of which result in states such as New York, California, and Texas being diminished.
This incorrect equality amongst states is also highlighted by Kevin Bleyer in his new book, Me The People. To be sure, Bleyer is a comedy writer, but as he argues in the recent excerpt in Salon, "despite what the original Constitution of the United States says about the qualifications for statehood and the guarantee of representation," there are just some states that don't deserve their status. One rationale for such disrespect: there are "more Americans in prison than in Nebraska."
For his part, Sandy Levinson focuses on Article V as "the worst single part of the Constitution" because it has made the US Constitution "among the most difficult to amend of any in the world." He argues that the "near impossibility of amending the national Constitution not only prevents needed reforms; it also makes discussion seem futile and generates a complacent denial that there is anything to be concerned about."
Yet amending the Constitution - - - by repealing an Amendment - - - was a topic in a debate among Republican hopefuls for one of Missouri's two seats in the United States Senate. The Amendment in question is the Seventeenth Amendment; "The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures." Recall that prior to the Seventeenth Amendment, Article I §3 controlled: "The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof . . ." So, basically, the Seventeenth Amendment required direct election of Senators.
As the St. Louis Beacon reports, Senate hopeful (and current US Representative) Todd Akin thought a repeal of the Seventeenth Amendment might shift the balance back towards "states rights." The other candidates were less interested in the issue. Their respective statements are available on YouTube, linked at the St Louis Beacon article. And there are certainly more scholarly discussions, including one between Todd J. Zywicki and Ilya Somin hosted by the Federalist Society last year.
For those participating in summer institutes for undergraduates or comparative law programs, there is much fodder here.
[image: 17th Amendment as ratified via]
Saturday, March 17, 2012
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?"
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.
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.
Thursday, December 15, 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.
- 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
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.
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]
Thursday, September 22, 2011
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.
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]
Monday, September 12, 2011
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.
Monday, August 29, 2011
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 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."