Monday, December 17, 2012
With renewed attention on the Second Amendment and guns after Friday's horrific events, a provocative (re)read is Carl T. Bogus' 2000 article, The History And Politics of Second Amendment Scholarship: A Primer, published in a Symposium on the Second Amendment in Volume 76 of Chicago-Kent Law Review, and available on the Second Amendment Foundation website here.
Professor Bogus (pictured) who has written widely on the Second Amendment discusses the involvement of the legal scholarly community with Second Amendment issues and organizations. Writing years before the Court's 5-4 decisions in District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010), Bogus traces the move from the "collective right" model (stressing the militia aspect) of the Second Amendment that was universal until 1960, including the efforts of organizations to fund work friendly to the individual right interpretation of the Second Amendment, which became known as the "Standard Model."Bogus stops short of arguing scholars were improperly influenced, but argues that the influences are worth considering, writing:
One last note before concluding. I have written about the campaign to develop a large body of literature supporting the individual right position and to create a perception that this view constitutes a standard model of scholarship (a perception this Symposium is likely to end). I have observed that some writers have connections to gun rights organizations, and even that some received grants in connection with their writings. I do not, however, contend that anyone was paid or improperly influenced to advocate a position that he or she does not genuinely hold. On the contrary, I am convinced that individuals identified in this Article believe - - - many passionately - - - in what they have written. And I believe everyone, regardless of political affiliation or belief, is entitled to have his or her work judged on its merits.
Why then discuss the history and politics of Second Amendment scholarship? Why not focus entirely on the merits? The history and politics of Second Amendment scholarship, including to some extent the political affiliations and agendas of the participants, is relevant because so-called standard modelers made it relevant. They have made much of both the size of the individual right literature and the prominence of certain scholars endorsing that position. It is important, therefore, to understand the history and politics that have helped bring these about.
Although more than a decade old, Carl Bogus article is certainly worth a (re)read by constitutional scholars.
Tuesday, December 4, 2012
In their article, Commercial Expression and Business Regulation in the Shadow of Citizens United and Sorrell, available in draft on ssrn, authors ConLawProf Randy Bezanson (pictured), William O'Hare, and Robert Miller ask "whether the system and market- based flexibility accorded government in its regulatory action will continue to be respected."
In interrogating this question, one of their three case studies of regulation is off-label drug marketing, the subject of yesterday's divided Second Circuit opinion reversing a criminal conviction on the basis of the First Amendment, and an application of Sorrell v. IMS Health, Inc. In their consideration of off-label drug advertising more generally, they write:
the apparent overbreadth of specific applications of a regulation will seem obviously unconstitutional without a perspective that recognizes a speech restriction as part of a broader system of similar speech regulations that, added together, protect the systematic and market justifications of government action. It may be obvious that sophisticated consumers of off-label drug treatments, or sophisticated investors in the new issue market for stock, don’t need the information or the waiting periods or the other regulatory steps that government may impose. But if those steps do help the market system by assuring equal and complete consumer information, even if at some inconvenience to a sophisticated few, there is justification for the looser scrutiny that the Supreme Court has historically accorded regulation of commercial speech.
Worth a read for anyone teaching or writing in the commercial speech area.
Friday, November 30, 2012
As the news is filled with the expected decision from the United States Supreme Court on whether - - - and if so, in what constellation - - - to grant certiorari on the issue of same-sex marriage, including both Proposition 8 and DOMA, Lyle Denniston's excellent discussions at SCOTUSBlog are a welcome resource.
But equally vital is Tobias Barrington Wolff's recent brief remarks, to be as an essay in Fordham Law Review entitled Collegiality and Individuality Dignity, and available on ssrn, that discusses the more personal aspects of the issues for some ConLawProfs.
Wolff (pictured) explores the "deep tension that exists for LGBT scholars and lawyers who work" on issues of same-sex marriage and other sexuality issues, "between principles of collegiality and basic principles of individual and human dignity." For example, "there is this seeming willingness on the part of antigay advocates to go around calling LGBT people unfit parents, and to expect to be treated with courtesy in response. I’ve been doing this for a dozen years, and I have to tell you, in very personal terms: I’m getting a little tired of being courteous in response to this kind of argument."
I’ll just say quickly: One can refuse to engage with these arguments and the people who make them, which is a choice that some LGBT scholars make and is a choice that has obvious costs associated with it. One can continue engaging in a collegial fashion, which is the choice that I have made for most of my career, but carries serious individual costs. Or one can engage with a somewhat sharper- edged critique of the nature of the arguments that are being made, which is part of what, of course, I am doing today, which has its own set of costs and disruptions of the normal collegial atmosphere about it. I acknowledge that.
But I think that the impact upon the individual dignity of LGBT scholars from having to confront these ugly, ugly arguments over and over again is something that needs to be acknowledged as one of the central, central dynamics that warrants attention in conversations about these issues.
Wolff's worth-reading essay is situated in the context of scholarly discourse, but many ConLawProfs experience similar dynamics in the classroom. How do we discuss these arguments and issues without assaulting each other's dignity?
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.
Wednesday, November 28, 2012
The central argument of ConLawProf Allen Rostron's article, Justice Breyer’s Triumph in the Third Battle over the Second Amendment, published at 80 George Washington Law Review 703 (2012), and available in draft on ssrn, received further validation with yesterday's Second Circuit opinion upholding a New York law restricting concealed carrying of firearms in public.
Rostron (pictured) considers the range of lower court decisions resulting from challenges to state and local firearm regulations made possible by the Court's recent Second Amendment decisions. Heller v. District of Columbia, the first "battle" in the gun wars, recognized a Second Amendment right beyond the militia, and in the second battle of 2010, the Court in McDonald v. City of Chicago, incorporated this right to the states through the Fourteenth Amendment. However, in neither "battle" did the Supreme Court specify what level of scrutiny or test should be used to assess the validity of gun laws under the Second Amendment, leaving the lower courts to struggle with this issue.
Rostron's contribution is his engagement with the third "battle": the interpretation and application of Heller and McDonald in the lower courts. He argues that the third phase of the fight over the right to keep and bear arms is moving toward an unusual result, with these decisions reflecting the "pragmatic sentiments of Justice Breyer’s dissenting opinions in Heller and McDonald," rather than the majority, plurality, or concurring opinions that are long on history and rhetoric and short on doctrine or guidance.
Rostron is candid about his own preferences and equally candid that the politics or doctrine could shift, including the Court's grant of certiorari in an additional case in order to promulgate a strict scrutiny standard. For now, however, Rostron's compelling article demonstrates that Breyer's dissent operates in many ways as a majority opinion.
Of course, if Breyer's view had prevailed in the controversial 5-4 decisions in Heller and McDonald, the federal courts would not be busily adjudicating these Second Amendment challenges.
Tuesday, November 20, 2012
The University of Maryland School of Law has announced that Prof Sherrilyn Ifill has been named as President and Director-Counsel of the NAACP Legal Defense & Educational Fund, Inc. (LDF).
Professor Ifill, a well known ConLawProf scholar, will take a leave from academia to head LDF, the organization founded by Thurgood Marshall.
Thursday, September 27, 2012
Arising from the now infamous video (below) of a UC-Davis officer seeming to casually pepper spray students as they sat on campus during a protest, the University of California has wisely settled a lawsuit alleging constitutional violations filed by the ACLU. The UC Davis suit is one of a number of complaints challenging police practices during Occupy and Occupy-type actions last year.
As reported by the LA Times, the approved settlement includes:
$30,000 to each of the 21 students and alumni who were pepper-sprayed;
$250,000 attorneys' fees;
set aside of $100,000 to pay up to $20,000 to any other individuals who were pepper-sprayed;
written formal apology by UC Davis Chancellor Linda Katehi to each of the students and alumni who were pepper-sprayed or arrested.
The ACLU Northern California reports additional terms, including compensation to ACLU of $20,000 for work with the university to develop "new policies on student demonstrations, crowd management, and use of force to prevent anything like the November 18 pepper spray incident from ever happening again" and to "protect free speech and free expression on campus." Additionally, the University promised to "assist students whose academic performance was adversely affected by the incident in applying for academic records adjustment."
Of course, the video was an important aspect of the case and settlement, even as controversies about constitutional rights to record police officers continues (our latest post is here).
Additionally, the 190 page report of a Task Force appointed by the university was strongly condemnatory of the incident. The Task Force was chaired by ConLawProf Emeritus Cruz Reynoso (pictured above) and included ConLawProf Alan Brownstein, who was nominated by the Academic Senate, and Law Student William McKenna, who nominated by the Law Students Association), , service on such a Task Force was a time-consuming endeavor and one that too often goes under-appreciated, so kudos to Brownstein and McKenna.
The University's actions in creating a Task Force also merits recognition, although one wonders whether such a Task Force would have been created absent the video and the attention it generated.
Wednesday, September 19, 2012
Need some midweek teaching inspiration?
Professor Joy Radice shares her observations of the conlaw teaching of the late Derrick Bell (pictured): "Bell’s classroom community was a safe space to learn constitutional law, to discuss difficult but related issues of race, class, and gender, and to take risks when thinking about legal strategies."
Radice's terrific brief essay, "Derrick Bell’s Community-Based Classroom,” is part of the wonderful collection of essays from the conference last year, now available in Columbia Journal of Race and Law:
- “The Post Racial Era: Race, Silence, the Denial of Race/Racism and Optimism,” –Leonard Baynes, St. John’s University School of Law
- “Notes Toward a Critical Contemplation of the Law,” –Sonia Katyal, Fordham University School of Law
- “Derrick Bell’s ‘Afrolantica’ and Gentrification in Harlem,” –Twila Perry, Rutgers University School of Law
- “How Derrick Bell Helped Me Decide to Become an Educator, Not Just a Faculty Member,” –Vanessa Merton, Pace University School of Law
- “Derrick Bell’s Community-Based Classroom,” –Joy Radice, University of Tennessee College of Law
- “ ‘A Living Working Faith’: Remembering Our Colleague Derrick A. Bell, Jr. as Teacher,” –Andrea McArdle, CUNY School of Law
- “A Legacy of Teaching,” –Robin Lenhardt, Fordham University School of Law
- “Derrick Bell’s Children,” –I. Bennett Capers, Brooklyn Law School
- “From Interest Convergence to Solidarity,” –Julie Suk, Cardozo School of Law, Yeshiva University
- “A Multiplicity of Interests,” –Rachel Godsil, Seton Hall University School of Law
- “Racial Fortuity, Rights Sacrifice, and the Promise of Convergence in Prison and Policing Policy,” –Taja-Nia Henderson, Rutgers School of Law – Newark
Each one of these essays is worth a read.
Wednesday, June 27, 2012
ConLawProf Ann Scales, University of Denver Strum College of Law, was best known for her constitutional law work on feminist legal theory, equality, and military matters. She died June 24, at the age of 60.
More on Feminist Law Prof here.
[image of Ann Scales via]
Sunday, December 4, 2011
“A Living, Working Faith”:
Remembering Our Colleague
Derrick A. Bell, Jr.
at COLUMBIA LAW SCHOOL, NY, NY on Saturday December 10th, 2011
This one day conference organized by Professors Kendall Thomas and Penelope Andrews will honor the work of the late ConLawProf Derrick Bell.
9 a.m. to 9.15 a.m:
Welcome − Professor Kendall Thomas, Columbia Law School and
Professor Penelope Andrews, CUNY School of Law
9.15 a.m. - 10.30 a.m.
The Elusive Quest for Equality and the Permanence of Racism: Faces at the Bottom of the Well and We Are Not Saved
Reflections Panel 1:
Chair: Professor Penelope Andrews, CUNY School of Law
Professor Twila Perry, Rutgers University School of Law
Professor Sheila Foster, Fordham University School of Law
Professor Rose Villazor, Hofstra University School of Law
Professor Olati Johnson, Columbia University School of Law
10.30 a.m to 10. 45 a.m. Morning Tea
10.45 a.m. to 12:15 p.m.
Reflections Panel 2:
Chair: Professor Kendall Thomas, Columbia University School of Law
Professor Susan Sturm, Columbia University School of Law
Professor Jenny Rivera, CUNY School of Law
Professor Leonard Baynes, St. John’s University School of Law
Professor Beryl Jones-Woodin, Brooklyn Law School
Professor Sonia Katyal, Fordham University School of Law
12:15 to 1:15 p.m. Lunch
1:15 p.m. – 2.45 p.m.
Derrick Bell as Teacher
Chair: Professor Ruthann Robson, CUNY School of Law
Professor Vanessa Merton, Pace University School of Law
Professor Joy Radice, New York University School of Law
Professor Andrea McArdle, CUNY School of Law
Professor Robin Lenhardt, Fordham University School of Law
Professor I. Bennett Capers, Hofstra University School of Law
2:45 p.m. – 4:15 p.m.
Chair: Professor Paulette Caldwell, New York University School of Law
Professor David Troutt, Rutgers University School of Law
Professor Julie Suk, Cardozo School of Law, Yeshiva University
Professor Rachel Godsil, Seton Hall University School of Law
Professor Taja-Nia Henderson, Rutgers University School of Law
Professor Theodore Shaw, Columbia University School of Law
4.00 to 5 p.m.
Closing Comments and Further Reflections
AN INFORMAL OPEN MICROPHONE FOR FOLKS IN THE AUDIENCE AND PANELISTS TO MAKE COMMENTS . . . OR SING!
Monday, October 24, 2011
Did Robert Bork, as a law professor, write a “75 page” brief to Presidential Candidate Barry Goldwater arguing that the bill that would become the 1964 Civil Rights Act was unconstitutional?
Bork (pictured left) the controversial conservative and rejected Supreme Court nominee, has reappeared on the political scene as the co-chair of the legal advisory team of potential GOP Presidential candidate Mitt Romney. He has recently also made news for opining that women are no longer discriminated against and do not need constitutional attention.
Bork has also long been famous for his argument that the 1964 Civil Rights Act, including Title VII, is unconstitutional. Rand Paul has also made this argument, although at least one commentator distinguishes Rand Paul’s position from Goldwater’s based upon Goldwater’s “constitutional concerns” rooted in the “75 page brief” Bork sent to Goldwater as well as future Chief Justice William Rehnquist’s concerns.
When internet references to the “75 page” memo or brief mention a source, they cite to Richard Perlstein’s Before the Storm: Barry Goldwater. Speaking on C-Span (written transcript provided), Perlstein in 2001 discussed Goldwater’s agonizing over the 1964 Civil Rights Bill which was resolved by the influence of Rehnquist’s statements and Bork’s 75 page memo against the Act. In Perlstein’s book, he sources the Bork brief to James Perry, [A Report in Depth on] Barry Goldwater: A New Look at A Presidential Candidate. Perry’s “Report in Depth” is a “Newsbook” peppered with photographs, published by the National Observer in 1964. In the chapter “Men Around Goldwater,” the author names Bork as a “Goldwater favorite” and one of a number of law professors to whom “the Goldwater idea men went for advice” on the 1964 Civil Rights Bill. Perry wrote:
The Goldwater staff asked for an objective, legal analysis by Professor Bork of the civil-rights bill. They received a 75-page critique, which was used (along with other analyses) in preparing Mr. Goldwater’s statement against the bill.
Scholars wishing to read the “75-page critique” by Bork sent to Goldwater - - - or to Goldwater’s staff - - - will have a difficult time obtaining it, as I learned when I asked faculty law librarians. The memo is not in the seven volumes of Bork nomination materials compiled by Roy Mersky and J. Myron Jacobstein in their series of Supreme Court Nominees. The Mersky and Jacobstein Volume 14-F, however, does include Bork’s notorious piece for The New Republic, “Civil Rights—A Challenge,” (August 31, 1963), arguing that the Act would be a “loss of liberty,” as well as the New Republic Editors’ reply and Bork’s rejoinder (here). It is apparently not in the Goldwater papers at the Arizona Historical Foundation at Arizona State University or in the papers of Dean Burch, also at ASU, the Chair of the RNC in 1964. As for the papers of Robert Bork, there may be some at the Library of Congress, although apparently Bork retains the authority to grant access.
Does the “75 page” memo still exist - - - perhaps a Xerox of a carbon copy - - - in someone’s files? Did it ever?
Almost a half-century has passed. It is not that a missing document is nefarious (indeed, it sometimes seems a wonder that anything is preserved) or that Bork should be assumed not to have changed his opinions (indeed, he has recently stated that the “transition to a non-discriminatory society was much easier” than he thought it would be). But page-number precise references to a document that is not available is intriguing.
So, if you have a copy or have read a copy of that "75 page" memo, I’d love to hear from you.
[image: Robert Bork, 2007, via]
October 24, 2011 in Books, Commerce Clause, Congressional Authority, Courts and Judging, Current Affairs, Equal Protection, Federalism, Fourteenth Amendment, Gender, History, Profiles in Con Law Teaching, Race, Reconstruction Era Amendments, Scholarship, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)
Thursday, October 6, 2011
ConLaw Prof Derrick Bell died yesterday at the age of 80. As the NYT obit reports, Bell was known for his scholarly works, for his pioneering of critical race theory, for storytelling as scholarship, for being ethical, and for leaving a position at Harvard Law. While the obit certainly does mention that Bell was a law professor, it does not emphasize that he was also a teacher.
Bell's writing on Constitutional Law pedagogy deserves continuing attention. Here is an excerpt from his 1998 essay published in Seattle University Law Review, Constitutional Conflicts: The Perils and Rewards of Pioneering in the Law School Classroom:
By departing from the norm in constitutional casebooks and giving priority to "learning by doing" simulations, students mimic the kind of process that an attorney, researching an unfamiliar area of law, might utilize to investigate prior decisions. In practice, lawyers are called to research and to write; to comprehend legal arguments; to guess at the probable effect of and interaction between judicial, statutory, legal and policy arguments in court; to argue, persuade and debate; to work cooperatively with colleagues; and for some, to judge those arguments and decide cases and issues of law. This is as true in the practice of constitutional law as in any other. Once their research skills are in place, most students are aware that they have the capacity to learn, relatively quickly, whatever they need or want to know regarding any legal question.
For some law professors putting together such material and assessing the student products would deflect from their scholarly agenda. But Derrick Bell took pedagogy as seriously as he took his many scholarly projects and his lecturing schedule. Or maybe not so seriously: One of my fondest memories of him was as a co-panelist on an AALS Teaching section plenary, when he replied to a question by saying that teaching was fun. And then he whispered to me that perhaps we'd better not tell everyone how much fun it really is.
[image: Derrick Bell via]
Friday, September 9, 2011
The intersections of constitutional protections for liberty, equality, free speech, and free exercise of religion can make for convoluted and contentious cases. Christian Legal Society (CLS) v. Martinez, decided by the Court in 2010, is a prime example, with the additional factual setting at a law school heightening the interest for legal scholars.
In How Equality Constitutes Liberty: The Alignment of CLS v. Martinez, 38 Hastings Const. L.Q. 631 (2011), Professor Julie Nice, University of San Francisco School of Law, pictured left, argues that the case illuminates several different doctrinal and theoretical controversies, ultimately making liberty more robust because it refuses the conflation of identity and ideology.
The article is further discussed as my selection for the Jotwell Equality section; it's the best essay I've read on constitutional equality in the last year. It's essential reading for every ConLawProf.
September 9, 2011 in Equal Protection, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Profiles in Con Law Teaching, Religion, Scholarship, Sexual Orientation, Sexuality, Speech, Supreme Court (US), Theory | Permalink | Comments (1) | TrackBack (0)
Wednesday, August 31, 2011
Goodwin Liu will be sworn in an as associate justice of the California Supreme Court on Thursday, at noon PST.
He has been a ConLawProf at UC-Berkeley (Boalt Hall) since 2003 and clerked for Justice Ruth Bader Ginsburg.
Friday, June 17, 2011
ConLawProf Diane Mazur's recent book published by Oxford University Press, A More Perfect Military: How the Constitution Can Make Our Military Stronger argues that the military has become unmoored from constitutional constraints. The Court, she argues, has not only engaged in military deference, but in military exceptionalism.
In an interview about the book, Mazur states "the military is most healthy when it respects constitutional values. Unfortunately, since the end of the Vietnam draft, our civilian branches of government–the President, Congress, and the courts–have been trying to distance the military from the Constitution. They assume that constitutional values get in the way of military effectiveness, but that’s not true."
Much of her book concerns the constitutional concerns of equality: how should the military deal with sexual minorities and with women within its ranks? She provides concrete examples, but argues that the Court - - - in cases such as the unanimous opinion in Rumsfeld v. FAIR (the Solomon Amendment case) - - - has impeded the military from diversifying.
Sunday, June 12, 2011
ConLawProf Kenji Yoshino's recent book, A Thousand Times More Fair: What Shakespeare's Plays Teach Us About Justice, is a delectable addition for ConLaw summer reading lists.
As the subtitle indicates, Yoshino not only discusses a select group of Shakespeare's plays, but then connects them to our contemporary notions of justice and to current events.
Here's a brief snippet, courtesy NYU Law, of Yoshino discussing one of Shakespeare's less popular dramas, Titus Andronicus: (click to start)
In a review, Eric Posner criticizes the book for trying - - - and failing - - - to illuminate current events through Shakespeare, but I suspect that many readers will disagree. Yoshino's opens Shakespearean texts to contemporary meanings, making important connections for current constitutional law debates.
It seems summer would be much more rewarding if one eshewed the "con law" bestsellers in favor of Shakespeare in the park (or on the beach) with Yoshino's book.
Saturday, June 11, 2011
The NYT obituary notes that after representing persons "blacklisted because of their refusal to answer questions before the House Un-American Activities Committee," "Mr. Redlich began teaching constitutional and tax law at N.Y.U." and started to "work without compensation on a series of appeals for death row inmates at Sing Sing."
Friday, June 10, 2011
Steve Gey was a notable First Amendment scholar; some of his work is available on ssrn. He taught at FSU since 1985. He will surely be missed by his colleagues, friends, students, and family.
Thursday, March 3, 2011
Harvard Civil Rights - Civil Liberties Journal has held an online forum on Professor Libby Adler’s piece (available on the forum) entitled “Gay Rights and Lefts: Rights Critique and Distributive Analysis for Real Law Reform."
Adler, author of The Gay Agenda, here argues for a "critical approach to law reform agenda setting," with a methodology that
rests on a distinction between reconstruction and decisionism. Decisionism, according to my usage, consists of making difficult choices about which law reform initiatives to undertake based on broadly informed distributional hypotheses and cost-benefit calculations and then acting on the best information one can get with the best judgment one can muster, always prepared to bear the costs of one’s choices. Each law reform achievement, should it materialize, rather than being a step along a path in the direction of a lodestar such as formal equality, will—one hopes—effectuate a positive distributive impact for marginalized persons while imposing bearable costs. As a theoretic matter, the achievement is likely to be generalizable only to a limited extent, if at all. In other words, it will not necessarily further any overarching theoretic objective
Twelve invited commentators respond to Libby Adler's advocation of “decisionism" including Angela Harris, Art Leonard, Aziza Ahmad, Francisco Valdes, Katherine Franke, Nancy Polikoff, Darren Rosenblum, Sarah Valentine, and Anthony Varona.
Adler's piece and the comments demonstrate that the problem of "rights" in constitutional law remain a persistent issue, as well as the problems of "equality" and "identity."
This forum could be an excellent basis for discussion in a constitutional law seminar or a jurisprudence class.
A "live" Colloquium will be held on March 9, 2011 at 5-7p.m. at Harvard Law School in Austin North.
Sunday, February 13, 2011
Recent events in Egypt are a meaningful reminder of the power of broad-based, nonviolent movements from the history of other nations, such as India. Earlier this month, we explored the presidential election process under the Egyptian Constitution here and its requirements for presidential succession here. Mubarak has since resigned. The Constitution of Egypt is now suspended, with promises of a new constitution.
As legal scholars contemplate the uprising in Egypt with an eye toward the possibility of further popular uprisings in the Middle East, they might also be looking to earlier nonviolent freedom movements. Nearly 81 years ago this week, the All-India Congress Committee authorized a nationwide campaign of civil disobedience aimed a loosening the grip of British colonial rule. Mahatma Gandhi launched the Civil Disobedience Movement in India in March of 1930 by leading the historic Dandi Salt March, also known as the Salt Satyagraha. (Satyagragha translates as “truth seeking” or “asking for truth.”) The Salt March was a pivotal moment in India’s long campaign for independence, because as Gandhi marched from village to village and ultimately to the sea where he and his fellow marchers made salt without paying the reviled British salt tax, a nationalist fervor swept the country.
Professor of Law at WVU Charles R. DiSalvo does just that in a brief chronicle of Gandhi as a practicing attorney in the article “Gandhi: The Transformation of a South African Lawyer, 1897-1898,” in Rethinking Gandhi and Nonviolent Relationality: Global Perspectives (Degjani Ganguly & John Docker, eds. 2008). In it, DiSalvo theorizes that “the experiences Gandhi underwent during the time he practiced law in South Africa transformed his vision of law as an engine of social change. . . ., [and] that this transformation, during which Gandhi lost faith in an ultimately corrupt legal system, constituted a key pre-condition for his eventual embrace of nonviolence.” Id. Overall, “Gandhi’s experience with the law in 1897 and 1898 in particular constitutes a microcosm that foreshadows and helps explain his transformation from business lawyer to civil rights attorney to civil disobedient.” Id. at 100.
DiSalvo traces Gandhi’s legal experiences beginning with his rather common transaction work for Indian business interests in the colony of Natal (now the province of KwaZulu-Natal, South Africa). But after the imposition of a series of legislative acts by the colonial legislature that intended to weaken the influence of Indian merchants, Gandhi was persuaded to “organize [the merchants’] resistance to the European assault on their rights.” Id. at 101. The worst of the laws was the Dealers’ Licenses Act (“DLA”), which required every wholesale and retail business in the colony to obtain a government permit. The Act empowered local “Licensing Officers to deny permits to those who could not maintain their books in English,” and for other “imprecisely drawn grounds,” all of which served as handy pretexts for racial discrimination by local European officials. Unsurprisingly, the essentially standard-less requirements, further compounded by the prohibition of a direct appeal to the courts, lead to racially-motivated crackdown on Indian businesses throughout the colony.
As an advocate for these targeted interests, Gandhi first “relied almost exclusively on petitioning – incessant, persistent, unrelenting petitioning.” Id. at 102. This failed. But, turning to litigation, Gandhi found some success in as-applied challenges to the arbitrary reviewing process of the permitting. Grounded in basic notions of due process – specifically, fair notice – Gandhi was able to convince the colonial Supreme Court to reverse a few licensure denials. But his clever statutory interpretations would only get his Indian clients so far, as the despised anti-Indian Acts remained on the books. In the end,
Gandhi’s recognition of the judiciary’s limitations as a tool for social change marked an early but key turning point in his transformation from lawyer to civil disobedient. While the courts might address procedural irregularities, they could not be counted on to attack basic, underlying norms and the power establishment of which they themselves were a part. The courts would not turn on themselves. The law would not free Gandhi’s people – at least not in the manner he expected it would in 1898.
Id. at 112.
DiSalvo asks of Gandhi, “Is this the end? Does he give up on the law entirely?” His conclusion is subtle, yet powerful:
Gandhi’s frustration with the courts led him to abandon litigation as a tool for social change and contributed to his decision to embrace nonviolent civil disobedience. . . . It is rejection of litigation. It is not a rejection of law. His rejection of litigation is a stage in his developing understanding of the law as much deeper, more expansive and more filled with promise than litigation. In the remainder of his life, he comes to see and believe in the deep underlying structure of the law. It is to this that his nonviolent disobedience appeals. A civil disobedient who willingly subjects himself to the punishment of the system, as Gandhi did, believes in the grand structure of the law, in the rule of law.
Id. at 113.
DiSalvo is presently completing a full legnth book on Ghandi's life as a lawyer. Meanwhile, DiSalvo's interview with Australian Broadcasting Comany from several months ago is a treat; listen to it here.
Of course, it remains to be seen whether distinct comparisons between the Indian experience and recent events in Egypt will prove pertinent. Nevertheless, understanding the intersection of law and the history of nonviolent freedom movements can’t be a bad place to start.
with J. Zak Ritchie
(image: Gandhi in Johannesburg, 1905, via)