September 21, 2012
Daily Read: Reconsidering State Action and Reconstruction
Political Science Prof Alec Ewald reviews Pamela Brandwein's book, Rethinking the Judicial Settlement of Reconstruction in Law & Politics Book Review here.
Brandwein (pictured), a political science professor, has written a "bold revisionist book, sure to challenge the assumptions of anyone who has written on or taught Reconstruction-era Constitutional history," according to Ewald.
It's Brandwein's focus on the state action doctrine that will most interest conlawprofs. Here is Ewald's ultimate assessment:
The total disenfranchisement of southern blacks after 1891 had many causes, but “[a] ‘closed’ doctrine of state action, one that shut the door on federal efforts to protect black rights, was not among them” (p.183). When we talk about the state-action doctrine, we are talking about a messy thing rather than a bright line. But the cases themselves, and particularly those all-too-quotable lines from the Civil Rights Cases, can seduce us into thinking the Court of the early 1880s drew a sharp boundary around all non-governmental action and declared it completely off-limits for the federal government. Brandwein shows it wasn’t so.
A good review can tell us whether or not the book is worth our time. Ewald demonstrates that Brandwein's book is a necessary one for anyone teaching or writing on state action.
September 01, 2010
Are "Ladies' Nights" - - - when a bar or nightspot offers women lower rates than men - - - unconstitutional as a violation of equal protection?
To even consider that issue, the threshold of state action has to be satisfied. In an opinion issued today, the Second Circuit easily concluded that there is no state action. The per curiam opinion in Hollander v. Copacabana applied the Lugar test, from Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982). Additionally, the panel found that the holding in Moose Lodge v. Irvis, 407 U.S. 163 (1972), in which the Court found that there was no state action by Moose Lodge despite the existence of a pervasive regulatory scheme governing the Lodge's liquor license, directly refuted the plaintiff's claim.
As the panel noted, the plaintiff has attributed these pernicious “Ladies’ Nights" to "40 years of lobbying and intimidation, [by] the special interest group called ‘Feminism’ [which] has succeeded in creating a customary practice. . . of invidious discrimination of men.” This same plaintiff, an attorney proceeding pro se, who has previously sued Columbia University's Institute for Research and Gender at Columbia University, argued not only that he had standing but that feminism was a religion, claims rejected by the federal court; the private status of Columbia University would also raise a state action barrier.[image via]
RR (H/T Nate Teadwell)
August 20, 2010
Dr Laura's First Amendment Claim: The Problem of State Action
The United States Constitution protects individuals from government action, and not from private action (with the exception of the Thirteenth Amendment). It is a concept most ConLawProfs discuss in our courses, focusing on cases such as Shelley v. Kraemer (1948) or the more recent Brentwood Academy v. Tennessee Secondary School Athletic Ass'n (2001).
But the basic concept of the Bill of Rights protecting individuals solely from government action tends to be forgotten in the context of the First Amendment. On too many occasions, when an argument between two people escalates so that one person over-talks the other, or says "shut up," or even kicks the other person off the show or blog, the "loser" cries a violation of the First Amendment. Even when the "loser" is someone who would ordinarily decry constitutional "interference" between individuals.
Most recently, Dr. Laura Schlessinger, whose racial epithets on her radio show have caused criticism, has announced her retirement from the show, reportedly claiming that she wants "to regain my First Amendment rights." Sarah Palin also invoked the First Amendment in two tweets: Dr.Laura:don’t retreat…reload! (Steps aside bc her 1st Amend.rights ceased 2exist thx 2activists trying 2silence”isn’t American,not fair”) Dr.Laura=even more powerful & effective w/out the shackles, so watch out Constitutional obstructionists. And b thankful 4 her voice,America!
Ken Paulson of The First Amendment Center has a clear and concise explanation of why this is not a First Amendment issue, including discussing state action, but also additional rejoinders to Dr. Laura Schlessinger's claims of being bullied by the left, as well as the problem of equating the marketplace of ideas with the marketplace.
July 19, 2010
Top Secret America
The Washington Post has launched its feature "Top Secret America." The project consists of three days of investigative reporting articles, the first one today entitled "A hidden world, growing beyond control."
The project also includes a searchable online database detailing private contractors and specific locations. The Editorial explanation is worth reading; here is a bit of it:
The articles in this series and an online database at topsecretamerica.com depict the scope and complexity of the government's national security program through interactive maps and other graphics. Every data point on the Web site is substantiated by at least two public records.
Because of the nature of this project, we allowed government officials to see the Web site several months ago and asked them to tell us of any specific concerns. They offered none at that time. As the project evolved, we shared the Web site's revised capabilities. Again, we asked for specific concerns. One government body objected to certain data points on the site and explained why; we removed those items. Another agency objected that the entire Web site could pose a national security risk but declined to offer specific comments.
We made other public safety judgments about how much information to show on the Web site. For instance, we used the addresses of company headquarters buildings, information which, in most cases, is available on companies' own Web sites, but we limited the degree to which readers can use the zoom function on maps to pinpoint those or other locations.
The feature should be of interest to anyone working on state secrets doctrine and theory. The extent of private involvement also implicates the state action doctrine and the problems with holding actors constitutionally accountable. The Washington Post explanation above also implicates First Amendment concerns.
July 10, 2010
Kagan on Mark Tushnet and Harold Koh: Post Confirmation Hearing Responses to Senators Questions
Supreme Court Nominee Elena Kagan has submitted her written responses to post-testimony "Questions Submitted for the Record" from Senators Jeff Sessions, Chuck Grassley, Jon Kyl, Lindsay Graham, John Cornyn, and Tom Coburn. These have been added to the materials from the Senate Judiciary Committee here.
Senator Tom Coburn was concerned with Kagan’s opinions of Mark Tushnet’s scholarship:
Q: You were dean of Harvard Law School when Professor Mark Tushnet was hired. Like you, Professor Tushnet also clerked for Justice Thurgood Marshall, and when he received an endowed chair position at Harvard, you introduced him and called him as “one of the world’s leading law scholars, particularly one of the world’s leading constitutional law scholars” and praised his “contributions to the world of scholarship.” In a 1981 law review article entitled “The Dilemmas of Liberal Constitutionalism, Professor Tushnet asserted that, if he were a judge, he “would decide what decision in a case was most likely to advance the cause of socialism.”
a. Is this one of Professor Tushnet’s “contributions to the world of scholarship?
Response: My introduction for Professor Tushnet was not intended to suggest my agreement with any particular aspect of his scholarship or any particular article. It was intended to recognize his general standing in the sphere of constitutional law scholarship.
b. How would you characterize such an approach to the law?
Response: If Professor Tushnet meant that a judge should decide cases based on her own policy views about the best result, then I would characterize that approach as contrary to the rule of law.
c. Would you endorse it? Why or why not?
Response: No. Judges should decide cases based on legal sources, not on policy or political views.
Coburn came back to Mark Tushnet a few questions later, regarding state action:
Professor Tushnet has recommended reconsidering the 1883 Civil Rights cases in which the Supreme Court held that the 14th Amendment prohibited only the abridgement of individual rights by the state, rather than by private individuals and institutions. The Supreme Court has stated: “It is state action of a particular character that is prohibited. … The wrongful act of an individual is simply a private wrong and if not sanctioned in some way by the state, or not done under state authority, the [individual’s] rights remain in full force.” Professor Tushnet stated:“The state-action doctrine contributes nothing but obfuscation to constitutional analysis. It works as a bogeyman because it appeals to a vague libertarian sense that Americans have about the proper relation between them and their government. It seems to suggest that there is a domain of freedom into which the Constitution doesn’t reach. We would be well rid of the doctrine.”
a. Do you agree with Professor Tushnet’s desire to be rid of the state action doctrine? Why or why not?
Response: No. The state-action doctrine has been repeatedly reaffirmed by the Supreme Court,and the decisions adopting and applying the state action doctrine are entitled to stare decisis effect. These decisions, indeed, function as a basic postulate of our constitutional system.
Coburn also asked, “Do you agree with the views of the Critical Legal Studies movement?” The simple response: “No.”
Senator John Cornyn discussed Professor Harold Hongju Koh's scholarship regarding "the difference between nationalists and transnationalists, whom, he says, 'hold sharply divergent attitudes toward transnational law,' and then asked:
As described by Professor Koh, are you a transnationalist or a nationalist? Have you ever previously expressed your position on this question? What did you say?
Response: I would not characterize myself using Professor Koh’s categories, which I do not find particularly helpful in thinking about the issues involving foreign or international law that are likely to come before the Court. I have never used these terms for any purpose.
Other interesting subjects of inquiry include Sessions asking questions regarding recusal, the Second and Eighth Amendments, and many of her memos as law clerk to Justice Thurgood Marshall; Grassley on Garcetti v. Ceballos regarding the First Amendment rights of government employees, and the relationship between the takings clause and the taxing power, Kyl on Kagan's opinion on Arizona SB 1070 and the (then-contemplated) federal lawsuit, and Coburn's concern with Kagan's "personal lack of pro bono legal services,” comparing her unfavorably to other recent nominees, including Harriet Miers.
May 09, 2009
South African Constitutional Law, Polygamy, and Sexuality: Saturday Evening Review
One of the very best volume on South African Constitutional Law remains The Post-Apartheid Constitutions edited by Penelope Andrews and Stephen Ellman, published in 2001. This anthology provides a study of the "processes of negotiation" of the constitutions as well as an analysis of the final constitution of 1996. The University of Cape Town Faculty of Law uBuntu Project is hosting me later this month (if you are in the neighborhood, invitation here); to prepare I find myself reading and re-reading the rich literature on South African constitutionalism.
However, even for Americans with little interest in non-US constitutions, many of this volume's essays - - - on constitution-making, negotiation, "deadlock," the certification (ratification) process, the "key players," and the Bill of Rights - - - shed light on theories of originalist constitutional interpretation in the US. Stephen Ellman's exceedingly important chapter comparing United States doctrines of state action and "South Africa's Socio-economic Rights Guarantees to Private Actors," seeks to use "American efforts to grapple with state action" to "illuminate the issues facing South African courts" applying a more expansive notion. However, Ellman's essay constructs a two-way mirror: Americans can use the South African constitutional notions to "illuminate" the issues faced by courts confronting the sometimes limiting state action doctrine.
The contribution of the other co-editor, Penelope Andrews, is also vital. Entitled "The Stepchild of National Liberation: Women and Rights in the New South Africa," Andrews discusses how women pressed their concerns and win a place at the negotiating table. Again, this experience distinguishes the US constitutional-framing context. Yet as Andrews notes, even in the 1990s the claims of customary and traditional law could conflict with claims for gender equality, especially in the rules about property, ownership, and guardianship of children.
Andrews doesn't mention marriage or polygamy in this piece, although she has written about it elsewhere (on ssrn here and here); she is quoted in today's Washington Post in an article entitled "Which Mrs. Zuma Will Be South Africa's First Lady?" discussing the ramifications of the fact that the new President of South Africa, Jacob Zuma, is a practicing polygamist. The "First Lady" is not a position in the South African or US constitution, but for all the attention and anxiety it can generate (especially when potential heads of state are polygamous, or unmarried, or female, or perhaps divorcing) it might seem as if there should be some constitutional clarity. As the WaPo article comments, "South Africans are still in the dark about who will be Zuma's date to galas and have dibs on the spousal office in the east wing of the president's hilltop residence in Pretoria, the administrative capital."
Current controversies, however, do not detract from the relevance of The Post-Apartheid Constitutions. It is an excellent volume that remains timely, not only in its historical discussions but in its concerns. The major omission in the volume is a lack of attention to sexuality issues and insufficient attention beyond Andrews' essay to gender issues. South African constitutional law has been recognizing many sexuality rights, due in part to "sexual orientation" being a ground of discrimination in the Constitution. Good sources on the issue include American ConLawProf Mark Kende's new book previously blogged here which has a chapter on "gay rights" and the South African Journal of Human Rights, which has had several special issues on sexuality including volume 23 part 3 (2007) and volume 20 part 2 (2004).
Another great source on sexuality, constitutional law, and South African politics is the website website Constitutionally Speaking by South African ConLawProf Pierre de Vos (pictured above) It is a must read for anyone trying to keep up with the legal landscape in South Africa.
April 29, 2009
Standing, Feminism, and Women's Studies at Columbia University
The lawsuit by Roy Den Hollander against Columbia University's Institute for Research and Gender at Columbia University has provoked a spate of media coverage including the most recent NYT article reporting on the dismissal of the lawsuit. With a bit of tinkering, this litigation could be adapted to a constitutional law examination with any number of issues.
Magistrate Judge Kevin Fox recommended dismissal of the complaint based upon standing. Fox's order, available at 2009 WL 1025960, provides:
The plaintiffs' alleged injury, which is purportedly based upon the content of, or the discriminatory impact flowing from, the Women's Studies program at Columbia, is not an “injury in fact,” since the plaintiffs do not allege they enrolled in a Women's Studies course(s) at Columbia that caused them to suffer a direct injury occasioned by firsthand exposure to the content of the Women's Studies course(s), or that they were discriminated against, by being denied the opportunity to participate in Columbia's Women's Studies program.
In support, the Magistrate Judge cites Moose Lodge No. 107 v. Irvis, 407 U .S. 163 (1972) (finding that the plaintiff lacked standing to challenge the Moose Lodge's racially discriminatory membership policy, because he never applied for membership). The Magistrate's discussion signals the equal protection issue lurking here. Of course, had the analysis proceeded further, Moose Lodge would also be pertinent to deciding the state action issue, given that Columbia University is not a public university.
The District Judge, Lewis Kaplan, adopted the Report and Recommendation in his Order. Although brief, Judge Kaplan's Order made three additional points. First, Judge Kaplan rejected the notion that Magistrate Fox should have recused himself because he is a graduate of Columbia University. Second, Judge Kaplan considered an objection to the Magistrate's description of the action as being brought pro se. As Kaplan noted, this is not true as a "purely technical matter" since Hollander is an attorney and the second plaintiff in the case, but even if true such an argument "betrays a remarkable instinct for the capillaries" given that the pro se designation actually worked to Hollander's benefit under the more liberal pleading rules afforded pro se litigants. Third, Kaplan stated:
In his final paragraph, the judge labels the claim "absurd" and dismissed the case.
October 10, 2008
On Palin, the Branchflower ethics report, husbands & state action
The Branchflower investigative report concluding Governor Palin abused her power as governor to settle a personal matter makes interesting reading. (A pdf link to the 263 page Branchflower report is available at the Alaska Daily News and the New York Times, and many other outlets as well).
But what strikes me most is the role of Sarah Palin's husband, Todd Palin. I'll admit I have a personal reaction. I've known too many heterosexual women (including legal academics and lawyers) who use the phrase "my husband" incessantly, as if appealing to some authority in a conversation with me. Although, I will say, I haven't ever had any of the women with whom I've worked invite their husbands into meetings or ever had their husbands call me and give me job instructions.
One could start thinking about whether I would be equally appalled if the gender roles were reversed - - - what if one of my male colleagues had their wives or partners in meetings? And what did I really think of of Hillary Clinton's role in the White House? And one could start imagining same-sex couple constellations. Indeed, Todd Palin makes a similar point in his deposition, available as pdf here.
Instead, however, I'm thinking STATE ACTION.
It is easy to imagine a hypothetical, although to make it a little simpler, assume the person who might bring a constitutional challenge against Todd Palin was not a state employee, so that the question of state action rests more squarely on the shoulders of Todd Palin. In "all fairness" - - - as the language from Edmonson v. Leesville Concrete provides - - - could we call Todd Palin a "state actor" ? Does that depend on how one "fairly" interprets the intertwining of a spousal relationship and work relationships?