Constitutional Law Prof Blog

"Racial Entitlement": Professor Scalia, then and now

Justice Antonin Scalia's remark during the oral arguments in Shelby County v. Holder last week characterizing the preclearance provision of the Voting Rights Act as a "racial entitlement" has garnered much attention, including "gasps" in the Supreme Court chambers itself.  

Of course, the ability of Scalia's comments to provoke is not new: his statements in last year's oral arguments in Arizona v. United States regarding the constitutionality of SB1070 drew particular attention.

In the Shelby argument, Scalia described the Voting Rights Act provision and its reenactments as

a phenomenon that is called perpetuation of racial entitlement.  It's been written about.  Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.

To what writings does Justice Scalia refer?  ConLawProf Chad Flanders, in a news commentary that is itself garnering attention, suggests that Justice Scalia might be referencing Professor Scalia's own writings.  Flanders points to Scalia's article, The Disease as Cure: “In Order to Get Beyond Racism, We Must First Take Account of Race,” 1979 Wash. U. L. Rev. 147, available here. 

Scalia's writing is not an article but rather published as a "Commentary" and obviously taken from his remarks on a panel at a Symposium entitled "The Quest for Equality."  Scalia describes himself as the "anti-hero" of the panel: the other commentator was Herma Hill Kay and the main paper was by Harry T. Edwards. (Ruth Bader Ginsburg delivered the main paper on the next panel.)  His subtitle is derived from Justice Blackmun's dissenting and concurring opinion in Regents of University of California v. Bakke, 438 U.S. 265, 407 (1978).

Scalia indeed does use the term "racial entitlement" in his remarks:

The affirmative action system now in place will produce the latter result because it is based upon concepts of racial indebtedness and racial entitlement rather than individual worth and individual need; that is to say, because it is racist.

But of course, his rejection of "racial indebtedness" was clear in his 1995 concurring opinion in Adarand Constructors, Inc. v. Pena, 515 U.S. 200, in which the Court held an affirmative action policy unconstitutional.  Scalia wrote then:

under our Constitution there can be no such thing as either a creditor or a debtor race. That concept is alien to the Constitution's focus upon the individual.

And of course, Scalia is not alone in his views.  Not only was he concurring in Adarand, but the notion of affirmative action as racist is forcefully articulated by Chief Justice John Roberts in the last (substantive) line in the opinion for the Court in  Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 748 (2007):

The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.

Perhaps the issue is not so much the provenance of Scalia's statements during oral arguments, but the surprise they are still capable of provoking.

RR
[image: caricature of Antonin Scalia by DonkeyHotey via]

Daily Read: William Faulkner and the Voting Rights Act

As the Court - - - and the country - - - consider the Voting Rights Act (VRA) and the constitutionality of the preclearance provision at issue in Shelby County v. Holder ConLawProfs might find useful the insights of  Andrew Cohen, Atiba Ellis, Adam Sewer (on CJ Roberts), Adam Winkler or numerous others.  But the observations of William Faulkner (pictured), Nobel Prize in Literature recipient who placed Yoknapatawpha County, Mississippi on our (fictional) maps are also pertinent according to Joel Heller's excellent article, Faulkner’s Voting Rights Act: The Sound and Fury of Section Five, 40 Hofstra Law Review 929 (2012), and available on ssrn.

Joel Heller argues that pronouncements that 'The South has changed' fail to take into account the "ongoing burden of memory that Faulkner portrays so powerfully."  Heller contends that the VRA's section 5 preclearance provision "does not punish the sons for the sins of the father, but keeps in check the uncertain consequences of a current ongoing consciousness of those sins."  Heller uses Faulkner to effectively discuss various attitudes short of intentional discrimination that might nevertheless have racially discriminatory results.  These include lawmakers shame and denial of the past accompanied by a devotion to the "things have changed" mantra that would prevent perceptions of racially problematic actions.  Additionally, "local control" possesses a nostalgic power, even as the era being evoked was one of white supremacy.

While Faulkner did not live to see the VRA Act become law, Joel Heller's engaging article is definitely worth a read as the Court considers Congressional power to remedy discrimination in the Old/New South.

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[image of William Faulkner via]

Daily Read: Deirdre Bowen on DOMA and Empiricism

Does the Defense of Marriage Act (DOMA) accomplish the purpose of defending opposite-sex marriage?  This question, or at least some version of it, is at the heart of the Supreme Court's consideration of United States v. Windsor, as well as of Hollingsworth v. Perry to the extent that Prop 8 is considered a state DOMA.

In a new article, I Wanna Marry You: An Empirical Analysis of the Irrelevance and Distraction of DOMAs, available in draft on ssrn, LawProf Deirdre Bowen (pictured) argues that the numbers simply don't add up to providing support for the proposition. 

As her central task, Bowen takes as her comparators states with DOMAs, including constitutional amendments and statutes,  and states without DOMAs  and examines their marriage and divorce rates from 1999-2010 to discover whether DOMA correlates with marital stability and strength.   Her analysis "suggests that DOMA states do not fare any better than non-DOMA states in terms of the strengthening  marriage" and in fact, "DOMA states tend to have lower marriage rates, larger declines in the trend towards marriage, and greater divorce rates."

Her empirical query answered, Bowen the contends that not only is DOMA irrelevant, it serves as a distraction from the real threats that certain economic and social policies pose to family stability, especially with regards to children.  Whatever the Court decides, she implies, will not be sufficient to solve the problem of family volatility.

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Daily Read: Heins on Academic Freedom

The First Amendment's relationship to what we call "academic freedom" can be fraught (here's one recent example), but in her compelling new book, Priests of Our Democracy Marjorie Heins provides doctrinal, historical, and political links between our understandings.  Subtitled The Supreme Court, Academic Freedom, and the Anti-Communist Purges, the book takes as it centerpiece Keyishian v. Board of Regents (1967), a case that is oft-cited and just as often omitted from casebooks. 

Heins can be viewed takling about her book in a series of videos, available here; an excerpt from The Chronicle of Higher Education is available here.

For ConLawProfs not teaching Keyishian - - - and this book will make you wonder why you are not - - - Heins' book illuminates important First Amendment doctrine and politics.  Her history develops the parties, the lawyers, and the institutions involved in Keyishian with fascinating detail and readable prose.  Her discussion of the larger anti-Communist "purges" is sharp and solid; it leads to considerations of the post 9/11 landscape.

And for ConLawProfs writing in the area, Heins' volume is an absolutely essential read. 

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Daily Read: Reinstein on Executive Power and Haiti

Today we celebrate "Presidents' Day" and ConLawProfs contemplating executive power might do well to consider the Haitian Revolution (1791-1804) as a formative experience. 

In his new article, Slavery, Executive Power and International Law: The Haitian Revolution and American Constitutionalism, available in draft on ssrn, ConLawProf Robert Reinstein argues that the "six administrations from George Washington through John Quincy Adams responded to the slave revolt and establishment of Haitian independence in ways that greatly expanded executive power." 

Indeed, as Reinstein reminds us, the first sole executive agreements were made by Adams with regard to Haiti (predating the seizure of the schooner The Wilmington Packet by six months).  Reinstein contends that the Haitian history is important because

Many of the most controversial questions presidents face in the modern era—whether to support regime change, use military force to protect American interests abroad, intervene in civil wars, arm foreign rebellions, form secret agreements with governments or belligerents, comply with obligations of international law—were first faced in the American reactions to the Haitian slave revolt.

Yet as Reinstein observes, the history also reveals conflicting executive interests, at times favoring  domestic fear of a similar slave-revolt and at other times favoring geopolitical (and capitalist) interests. At the center - - - not surprisingly - - - is Thomas Jefferson, who vowed to reduce Haiti's charismatic leader Toussaint L'ouverture to "starvation." 

But Reinsten also centers the Supreme Court's hostility to the establishment of the second independent nation in the Western Hemisphere.  Reinstein writes that as   "Congress debated the first Haitian embargo bill, a Representative asked: “Have these Haytians no rights?”"  Reinstein concludes that the "answer ultimately given by the United States government was unequivocal: “No.”"

An important - - - and oft-neglected - - - history of executive power as well as judicial power worth a read on Presidents' Day.

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[image of Toussaint L'ouverture from a French engraving circa 1802 via]

Fordham Symposium on New Originalism

The Fordham Law Review is hosting a symposium titled The New Originalism in Constitutional Law on March 1, 2013.  Details are here.

The schedule includes an all-star line-up.  Here's the description:

Originalism--the thesis that legitimate constitutional interpretation is bound by original meaning or intent--has emerged as an influential and controversial approach to how we interpret our Constitution.  While some claim that constitutional interpretation and legitimacy require unearthing the original meaning or intent, others assert that tethering current citizens and interpreters to the comprehension of long-dead people is the antithesis of good and proper democratic government.

The Fordham Law Review is proud to present a symposium gathering a remarkable group of legal scholars, historians, and philosophers to discuss if, how, and why Originalism should inform constitutional analysis.

SDS

Daily Read: Grand Central Station and The Takings Clause

As Grand Central Station celebrates its centennial today, there are many celebrations and discussions, including this excellent one from "Transportation Nation" being aired on some NPR stations, including NYC:

 

News130131_grand_central_ogrady

The case to which the report refers is Penn Central Transportation Co. v. New York City (1978), a staple of modern takings clause doctrine and theory.   The owner of Grand Central - - - confusingly it was Penn Central - - - wanted relief from the NYC landmarks law which prevented the building of a large office building over Grand Central because it would destroy the historic and aesthetic features of the Grand Central.  The United States Supreme Court rejected the takings argument.  Writing for the Court, Justice Brennan noted that "the submission that appellants may establish a "taking" simply by showing that they have been denied the ability to exploit a property interest that they heretofore had believed was available for development is quite simply untenable."   The opinion continued:

"Taking" jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated. In deciding whether a particular governmental action ha effected a taking, this Court focuses rather both on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole.

Of course, the Court would vacillate from between this whole vs. fractional approach in subsequent cases, but the most recent takings cases seem to confirm Brennan's view.

For a trenchant discussion of the current state of "air rights" and takings doctrine, take a look at LawProf Troy Rule's Airspace and the Takings Clause, forthcoming in Washington University Law Review, and available in draft on ssrn.

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[image via]

Seidman on Constitutional Disobedience

ConLawProf Louis Michael Seidman (Georgetown) shared a thumb-nail version of his "constitutional disobedience" at CBS Sunday Morning.  Drawing on dead-hand, anti-democratic, and pragmatic arguments, he contends that constitutional disobedience has both a history (as when past presidents have acted against the Constitution) and a virtue (as when we might ignore election results that would allow a presidential candidate rejected by the majority of Americans to assume office).  He also says that the better way to approach the document is as an inspiration, not a set of commands.

Here's his example from the gun control debates:

But what happens when the issue gets Constitutional-ized?  Then we turn the question over to lawyers, and lawyers do with it what lawyers do.  So instead of talking about whether gun control makes sense in our country, we talk about what people thought of it two centuries ago.

Worse yet, talking about gun control in terms of constitutional obligation needlessly raises the temperature of political discussion.  Instead of a question on policy, about which reasonable people can disagree, it becomes a test of one's commitment to our foundational document and, so, to America itself.

For the full version, check out Seidman's new book, On Constitutional Disobedience (OUP).

SDS

Daily Read: Goldberg on Article III Standing in Prop 8 and DOMA Cases

Suzanne Goldberg (pictured) argues that the proponents of Prop 8 and BLAG supporting DOMA have serious standing problems in her piece Article III Double-Dipping: Proposition 8’s Proponents, BLAG, and the Government’s Interest, available in draft on ssrn.

Recall yesterday we recommended Marty Lederman's extensive discussion of the Article III standing issues in Hollingsworth v. Perry (Perry v. Brown, "the Prop 8 case") and  United States v Windsor ("the DOMA case"), it directed the parties to brief and argue the issues of Article III standing. This question of standing arises because both California, initially under Governor Schwarzenegger, then Governor Brown, and the United States, under the Obama Administration, have concluded that the constitutionality of the laws should not be defended (given their conclusion that the laws were unconstitutional).  In the case of Prop 8, the trial proceeded with the intervenors, who lost.  In the case of DOMA, the statute was defended by BLAG, the Bipartisan Legal Advisory Group of the United States House of Representatives, losing in the District Court and again at the Second Circuit.

Professor Goldberg contends that the Prop 8 proponents and BLAG are in a "Janus-faced" position:  they purport to derive their Article III standing by asserting the governments’ interest in defending the challenged marriage laws, even as the governments in both cases, via their chief legal officers, have taken the position that excluding same-sex couples from marriage is unconstitutional.  She argues that this inconsistency renders the concept of the government interest incoherent for Article III standing purposes. She further argues that the Prop 8 proponents and BLAG lack a direct stake in the litigation because they lack enforcement powers.  If the Court were to reach the merits, it would essentially be issuing an advisory opinion.

Goldberg's essay is worth a read as a cogent argument for the lack of standing.

RR

 

Daily Read: Lederman on Article III Standing in Prop 8 and DOMA Cases

When the United States Supreme Court granted certiorari in Hollingsworth v. Perry (Perry v. Brown, "the Prop 8 case") and  United States v Windsor ("the DOMA case"), it directed the parties to brief and argue the issues of Article III standing.

This question of standing arises because both California, initially under Governor Schwarzenegger, then Governor Brown, and the United States, under the Obama Administration, have concluded that the constitutionality of the laws should not be defended (given their conclusion that the laws were unconstitutional).  In the case of Prop 8, the trial proceeded with the intervenors, who lost.  In the case of DOMA, the statute was defended by BLAG, the Bipartisan Legal Advisory Group of the United States House of Representatives, losing in the District Court and again at the Second Circuit.

This is an unusual, if not unique, state of affairs.  Usual discussions of Article III standing focus on the plaintiffs rather than losing defendants who are now appellants or petitioners.

Over at SCOTUSBlog, ConLawProf Marty Lederman (pictured) has a series of posts "Understanding Standing" exploring and explaining the Article III issues raised in the same sex marriage cases.

All of the posts - - - seven! - - - are worth a read, but perhaps most interesting is Lederman's discussion of the outcome of any Court decision denying standing in the Prop 8 case.

RR

Daily Read: Pam Karlan on the 2011 United States Supreme Court Term

Pamela Karlan's "Democracy and Disdain" is the Forward to Harvard Law Review's annual Supreme Court issue for the 2011 Term and is a compelling - - - indeed, necessary and delightful - - - read.  Karlan's central thesis, as the title aptly communicates, is that the Roberts' Court has little but disdain for the democratic process.  By "Roberts' Court," of course, she means the five Justices who usually form the majority, including Roberts, Scalia, Thomas, Alito, and Kennedy.  

Professor Karlan (pictured) concludes that this disdain will ultimately bring the Court into disrepute, comparing the present state of affairs unfavorably with the Warren Court:

The Roberts Court’s narrow substantive reading of enumerated powers maps fairly closely onto the contemporary conservative political agenda. To the extent that the conservative agenda gains popular acceptance, the Court may garner acclaim as a guardian of constitutional values. But if the public rejects that agenda, or remains sharply divided, the Court risks being perceived as simply another partisan institution. The Court’s current status rests in substantial measure on its having been on the right side of history in Brown v. Board of Education. Only time will tell whether the Court will retain that status given the choices the Roberts Court is making.

Karlan is adept at comparing the present Court to previous ones, not only including the Warren Court.  Spoiler alert: When she quotes Justice Roberts, she might not be quoting the 2012 John Roberts but the 1936 Owen Roberts, a device she uses to especially good effect.  Also to good effect is her usage of other justices, colloquies in oral argument, the occasional poet, and theorist.  The writing is broad and engaging without being precious.  It makes her analysis of the cases even more trenchant, situated in larger themes and trends.

Of course, not all ConLawProfs will agree with Karlan's views of the Court, including one subsection entitled "Protecting Spenders and Suspecting Voters," and another "Suspecting Congress."    And Karlan's argument is hardly unique, as anyone who recalls Rehnquist Court scholarship, including the excellent 2001 article "Dissing Congress," by Ruth Colker and James J. Brudney can attest.  And it is especially noteworthy that  the Court did uphold the constitutionality of the Affordable Care Act in National Federation of Independent Business v. Sebelius, a case that Karlan extensively discusses and more interestingly, situates within the Term's other less notable decisions. 

But this is a must read article before beginning the new semester. 

And after that, read George Wills' Washington Post op-ed, Karlan's response, and responses in the Harvard Law Review Online Forum by Randy Barnett and Stephen Calabresi.

RR
[image of Pamela Karlan via]

Second Circuit on Middle Finger

Although the Second Circuit panel opinion in Swartz v. Insogna does not refer to the First Amendment, the court implicitly relies on free expression principles to reverse the district judge and allow the plaintiffs' civil rights action against two law enforcement officers to proceed.

As Judge Jon Newman, writing the unanimous opinion, explained, the case began as the result of an "irate automobile passenger's act of 'giving the finger,' a gesture of insult known for centuries, to a policeman," prompted by the officer's use of a radar device. Although the plaintiffs' car was not speeding, the officer followed the car and initiated a "traffic stop."  Mr. Swartz was subsequently arrested for disorderly conduct (seemingly because of a statement describing himself in unflattering terms) and made three court appearances before the charges were ultimately dismissed on speedy trial grounds. 

At issue was whether the original stop was reasonable under the Fourth Amendment.  But underlying this determination depended on the meaning of the "middle finger" expression.  As Judge Newman wrote:

Perhaps there is a police officer somewhere who would interpret an automobile passenger’s giving him the finger as a signal of distress, creating a suspicion that something occurring in the automobile warranted investigation.  And perhaps that interpretation is what prompted [Officer] Insogna to act, as he claims. But the nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness.  This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity. Surely no passenger planning some wrongful conduct toward another occupant of an automobile would call attention to himself by giving the finger to a police officer. And if there might be an automobile passenger somewhere who will give the finger to a police officer as an ill-advised signal for help, it is far more consistent with all citizens’ protection against improper police apprehension to leave that highly unlikely signal without a response than to lend judicial approval to the stopping of every vehicle from which a passenger makes that gesture.

Judge Newman cites LawProf Ira Robbin's wonderful 2008 article, Digitus Impudicus: The Middle Finger and the Law, published in the UC Davis Law Review and available on ssrn.  While the citation is to Robbins' discussion of the first recorded use of the gesture in the United States in 1886 (hint: think baseball), Judge Newman's opinion does seem influenced by Robbins' article, which extensively discusses the First Amendment aspects of the gesture and their relationship to criminal justice.  

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[image via]

 

Daily Read: Winkler on the Black Panthers and the Second Amendment

ConLawProf Adam Winkler's book Gun Fight: The Battle Over the Right to Bear Arms in America published in 2011 has understandably receiving renewed attention.

One of the more interesting arguments Winkler makes is that the Black Panthers were the true pioneers of modern pro-gun advocacy, at a time when the National Rifle Association championed gun regulation. 

Winkler's article for The Atlantic, The Secret History of Guns, also published last year and adapted from the book, is definitely worth a (re)read.

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Daily Read: William Ford on the Law and Science of Violent Video Games

The national conversation on violence has shifted since last week to include not only discussions of the Second Amendment, the role of conlaw scholars, appropriate quotations, and arming school teachers, but also "violent video games."

Any mention of the regulation of violent video games occurs in the shadow of the Court's 2011 decision in Brown v. Entertainment Merchants Association in which the Court held unconstitutional California's statute prohibiting the sale of violent video games to minors under the age of 18 without parental permission. Scalia, for the Court, assessed the statute under the First Amendment, reasoning that the statute was not narrowly tailored:

As a means of protecting children from portrayals of violence, the legislation is seriously underinclusive, not only because it excludes portrayals other than video games, but also because it permits a parental or avuncular veto. And as a means of assisting concerned parents it is seriously overinclusive because it abridges the First Amendment rights of young people whose parents (and aunts and uncles) think violent video games are a harmless pastime.

In dissent, Breyer cited more than 100 studies on the links between violent video games and aggression, contending that legislatures were in a better position to assess such social science data than judges.

Professor William Ford (pictured) interrogates the scientific and social scientific underpinnings of video game regulation.  In his article The Law and Science of Video Game Violence: What Was Lost in Translation?, forthcoming in Cardozo Arts & Entertainment Law Journal, available in draft on ssrn, Ford ultimately agrees with the Court's conclusion in Entertainment Merchants Association, given that "the First Amendment interests at stake in these cases outweighed the speculative possibility that a legislature is better able to assess scientific evidence than the courts."   He criticizes Breyer's view that legislatures are better positioned to assess the data than judges, by noting that legislators are also ill-equipped as social scientists.  Ford states that "there is no study, let alone a literature, assessing the relative skill of legislators and judges in reviewing or assessing scientific evidence."  Ford then implies that legislators might be less able to assess the evidence, because "the dominant goal usually associated with legislative behavior is reelection, which is not necessarily conducive to the careful assessment of scientific evidence." Taken to its logical conclusion, that sentiment would have the courts very busy indeed, and would obliterate deferential review in constitutional law.

Ford's arguments about the social science literature, however, are exceedingly well-taken.  In sum, it is inconclusive at best.  Considering not only Entertainment Merchants Association, but other legislation and cases, he summarizes:

The relevant literature is large, especially when one recognizes that these cases cannot just be about whether video game “violence” causes “aggression.” At a minimum, these cases were also about, or should have been about, a nuanced view of what counts as violence and aggression, how to operationalize violence and aggression, what types of violence may be particularly harmful, who might be most susceptible to harmful effects from violent media, and whether government restrictions would do anything to alleviate the harm.

Ford's article is also worth a read for its excellent discussion of "causation" in the debates about the role of video games.  This is an issue that may surface as more facts become known about recent events - - - and even more studies are produced that may be used by legislators and courts.

RR
[image: Mortal Kombat via]

 

Daily Read: Carl Bogus on Second Amendment Constitutional Scholarship

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.

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Daily Read: Kende on Revolution and Pragmatism in Constitutionalism

Revolution and Pragmatism?  Aren't they oppositional concepts, and indeed, opposing realities? 

Mark Kende (pictured) argues that we shouldn't be so sure.  In his article, Constitutional Pragmatism, The Supreme Court, and Democratic Revolution, forthcoming in Denver University Law Review and available in draft on ssrn, Kende demonstrates that the usual conceptions of "pragmatism" are incomplete.  He advances several types of pragmatic impulses that are consistent with the US constitutional revolution and subsequent jurisprudence such as "common sense,transitional, political, democratic, economic, empirical, common law,flexible, critical, and comprehensive pragmatism."  He also discusses the types of constitutional pragmatism that are less consistent with revolution: prudential and efficiency-oriented pragmatism. 

Kende aims to provide a typology of pragmatism, as a grounding for considering "constitutional pragmatism more intelligently, as well as see its complexity and ubiquity."  For Kende, it is pragmatism - - - rather than originalism or living constitutionalism - - - that has the most descriptive, and perhaps prescriptive power.

Kende's article is an excellent intervention in the ongoing debates of constitutional interpretation.

RR

Congressional Research Awards Applications Open

Applications for the Dirksen Congressional Center Congressional Research Awards are open and due on March 1, 2012.  The center will award up to a total of $35,000 in grants for 2013.  Individual awards are calculated on a competitive basis and range from a few hundred dollars to $3,500. 

More information is here; here's a brief overview:

The Center's first interest is to fund the study of the leadership in the Congress, both House and Senate.  Topics could include external factors shaping the exercise of congressional leadership, institutional conditions affecting it, resources and techniques used by leaders, or the prospects for change or continuity in the patterns of leadership.  In addition, the Center invites proposals about congressional procedures, such as committee operation or mechanisms for institutional change, and Congress and the electoral process.

SDS

Daily Read: Corporate Free Speech

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.

RR

Daily Read: Joslin on the Responsible Procreation Government Interest of DOMA

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."

She concludes:

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. 

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Daily Read: Collegiality and Same Sex Marriage Controversies

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."

Wolff concludes:

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?

RR