Friday, February 15, 2013
Sean Wilson (pictured) provides a compelling view of constitutional interpretation in his new book, The Flexible Constitution. His work is often Dworkian in tone, although Wilson distinguishes himself from Dworkin's interest in moral reasoning. Instead, Wilson writes that constitutional law problems are what "Wittgenstein described as aesthetical judgments - i.e. judgments that a connosseur would make" and Wilson stresses culture much more than morality. (p. 83).
Worth a special read is the book's Appendix, "The Philosophical Investigation," which provides a Wittigensteinian interrogation of the meaning of "the original meaning of the Constitution." This would be a terrific exercise for a Constitutional Interpretation or Jurisprudence seminar.
Thursday, February 14, 2013
Writing in The New York Review of Books in 2011, the late Ronald Dworkin described two recently rendered United States Supreme Court cases as "embarrassingly bad." The cases were Arizona Christian School Tuition Organization v. Winn and the then-pending Arizona Free Enterprise Club PAC v. Bennett.
Both were 5-4 decisions and both continue to be controversial, although the Bennett is overshadowed by Citizens United.
Dworkin's article is worth a (re)read.
For those in a more reflective mood, the New York Review of Books has highlighted his 2011 essay "What is a Good Life?" Dworkin wrote:
We are charged to live well by the bare fact of our existence as self-conscious creatures with lives to lead. We are charged in the way we are charged by the value of anything entrusted to our care. It is important that we live well; not important just to us or to anyone else, but just important.
Dworkin's voice will be missed.
February 14, 2013 in Affirmative Action, Campaign Finance, Cases and Case Materials, Current Affairs, First Amendment, Religion, Speech, Standing, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)
Ronald Dworkin, renowed legal philosopher who influenced generations of legal scholars, has died.
Todays' NYT obituary calls Dworkin "a legal philosopher and public intellectual of bracingly liberal views who insisted that morality is the touchstone of constitutional interpretation."
UK's Guardian obituary says that through his "sheer intellectual brilliance and a formidable capacity for work," Dworkin managed "to be both a consummate scholar's scholar and a lawyer's lawyer," while nevertheless enjoying himself.
Tributes will undoubtedly follow.
Friday, January 25, 2013
According to Swaminathan, India, like some other former British colonies, faced a problem at independence: the authority for its constitution came directly from Parliament, in the form of an Independence Act and Parliament-authorized Constituent Assembly. As such, "the imperial predecessor's Constitution would have remained at the helm of the legal system of the newly liberated former colony despite the legal transfer of power, precisely because the transfer of power was recognised as 'legal' by the Constitution of the imperial predecessor."
India had to do something to break this chain. So, like Ireland, Pakistan, Sri Lanka, and Ghana before it, India waged a "benign legal revolution," that is, the country deliberately incorporated "procedural errors" into its own constitution. Swaminathan explains:
The framers introduced two deliberate procedural errors in the enactment of the Constitution of India in violation of the Independence Act: a) They did not put the Constitution to the approval of either the British Parliament as envisaged by the Cabinet Mission Plan or the Governor-General as envisaged in the Indian Independence Act of 1947; b) Following the Irish precedent, Article 395 of the Constitution of India repealed the Indian Independence Act--something the Constituent Assembly did not have authorisation to do.
The errors broke the chain between India's new post-colonial constitution and Britain, thus ensuring that Parliament could not reassert its authority and creating a truly autochthonous constitution of We the People.
The United States, of course, did not have to wage a benign legal revolution to break its chain with Britain, because it was born in armed revolution.
Friday, January 11, 2013
Ron Collins' new book, Nuanced Absolutism: Floyd Abrams and the First Amendment centers lawyering in the development of doctrine and theoretical perspectives of constitutional law.
Collins argues that "nuanced absolutism" has become a tenet of First Amendment doctrine that has taken on new life in the decisional law of the Roberts Court, and has been notably argued by Floyd Abrams in a series of cases.
For anyone interested in the First Amendment, this is a must read.
Wednesday, January 2, 2013
We are used to speaking about the Constitution as a "binding document" and a less used to thinking about it as bondage. Thus, ConLawProf Louis Michael Seidman's op-ed in the NYT entitled "Let's Give Up on the Constitution" has been causing a bit of a stir, especially among ConLaw students and some profs.
Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.
Yet this seems to be more of a critique of originalism than constitutionalism. And interestingly, Seidman appeals to originalism to support his ultimate argument:
Constitutional disobedience may seem radical, but it is as old as the Republic. In fact, the Constitution itself was born of constitutional disobedience.
Seidman's new book, Constitutional Disobedience, will presumably expand these ideas further. But for today, the op-ed is an interesting read.
Friday, December 7, 2012
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.
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?
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 27, 2012
Second Circuit on Second Amendment: New York's Gun Licensing Limitation for Concealed Handguns Is Constitutional
In a unanimous opinion today, a Second Circuit panel in Kachalsky v. County of Westchester upheld New York's requirement that applicants prove “proper cause” to obtain licenses to carry handguns for self-defense under New York Penal Law section 400.00(2)(f).
Affirming the district judge, the panel interpreted the Supreme Court's controversial Heller v. District of Columbia 2008 decision, as well as the subsequent McDonald v. City of Chicago opinion holding that the Second Amendment right recognized in Heller was incorporated to the states through the Fourteenth Amendment. (Recall that four Justices in McDonald ruled incorporation was through the due process clause, with Justice Thomas concurring in the result, but contending incorporation occurred through the privileges or immunities clause).
One of the issues left open by Heller and McDonald was the level of scrutiny to be applied to gun regulations. The plaintiffs, represented by Alan Gura, familiar from both Heller and McDonald, argued that strict scrutiny should apply. In rejecting strict scrutiny, the Second Circuit panel emphasized that the New York regulation at issue was not within the core interest protected by the Heller Court's interpretation of the Second Amendment - - - self-defense within the home - - - but was a limitation of concealed weapons permits to those who could demonstrate a "special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession." The panel also rejected the plaintiffs' argument that the concealed carry permits were akin to prior restraint under the First Amendment. The court stated, "“We are hesitant to import substantive First Amendment principles wholesale into Second Amendment jurisprudence. Indeed, no court has done so.” (emphasis in original). Later in the opinion, the court provided an even more convincing argument:
State regulation under the Second Amendment has always been more robust than of other enumerated rights. For example, no law could prohibit felons or the mentally ill from speaking on a particular topic or exercising their religious freedom.
Recall that even the majority opinions in Heller and McDonald maintained that prohibiting felons or the mentally ill from possessing guns was consistent with the Second Amendment.
The Second Circuit decided that "intermediate scrutiny" was "appropriate in this case": "The proper cause requirement" of the New York law "passes constitutional muster if it is substantially related to the achievement of an important governmental interest."
The substantial (and indeed compelling) governmental interests were "public safety and crime prevention," as the parties seemed to agree. As to the substantial relationship, the court noted that the "legislative judgment" surrounding these issues was a century old and that the proper cause requirement was a "hallmark" of New York's handgun regulation since then. The court also noted that the law was not a ban, but a restriction to those persons who have a reason to possess a concealed handgun in public. New York did submit more current studies, and the court credited these even as it stated that the decision was clearly a policy one for the legislature. Heller did not, the court ruled, take such "policy choices off the table."
The Second Circuit's opinion is doctrinally well-reasoned, but also a deliberate engagement with the history of gun regulation. In the very beginning of its analysis, the opinion states
New York’s efforts in regulating the possession and use of firearms predate the Constitution. By 1785, New York had enacted laws regulating when and where firearms could be used, as well as restricting the storage of gun powder.
The court returns again and again to the history, in New York and elsewhere, even as it reiterates that history does not answer the question.
[image" The Knotted Gun," sculpture in NYC outside UN, via].
Saturday, November 24, 2012
Judge J. Harvie Wilkinson III (4th Cir.) argues in Cosmic Constitutional Theory: Why Americans Are Losing Their Inaliable Right to Self-Governance that the proliferation of constitutional theories in recent decades is undermining judicial restraint, handing judges the keys to our democracy, and ultimately leading to the loss of self-governance. Judge Wilkinson's point is this: comprehensive constitutional theories (of constitutional interpretation, of judging) empower judges, even when they're designed not to, and thus undermine a necessary feature of our government, judicial restraint. Judicial empowerment comes at a cost to the democratic branches, and thus to self-governance itself.
Cosmic Constitutional Theory, part of Oxford's Inaliable Rights Series, surveys the "grand and unifying" constitutional theories--living constitutionalism, originalism, political process theory, textualism, minimalism, cost-benefit pragmatism, active liberty, and moralism--and argues that they have empowered judges at the expense of the democratic branches. Judge Wilkinson explains:
No one has stepped back and asked exactly where these theoretical proliferations of all persuasions are taking us. The answer to that question will become clear: the theories are taking us down the road to judicial hegemony where the self-governance at the heart of our political order cannot thrive.
Indeed, the theories have given rise to nothing less than competing schools of liberal and conservative judicial activism, schools that have little in common other than a desire to seek theoretical cover for prescribed and often partisan results. In short, cosmic constitutional theory has done real damage to the rule of law, the role of courts in our society, and the ideals of restraint that the greatest judges in our country once embraced. But the worse damage of all has been to democracy itself, which theory has emboldened judges to displace.
And at another point:
Indeed, I fear that democratic liberty will more and more become the victim of cosmic theory's triumphal rise. The grand quest of the theorists has left restraint by the wayside and placed the inalienable right of Americans to self-governance at unprecedented risk. The increasing willingness of leading thinkers in the law to claim that their theory of the Constitution provides the answers has made citizens all the more willing to look to the courts to resolve the great social controversies of our time. In turn, the courts' eagerness to resolve such debates has cast them in a decidedly political light, making judicial selections and confirmation battles all the more disputatious.
But Judge Wilkinson only weakly argues for judicial restraint, almost taking the point for granted. And it's hard to see where he draws the line between a properly restrained court and an inappropriately activist one. Consider this passage, distinguishing between "major activist decisions" and certain contemporary cases:
Major activist decisions of the Warren Court . . . have rightly stood the test of time, and that success doubtless strengthens the belief of today's interventionists that tomorrow may smile on their bolder efforts too.
They are wrong. Decisions like Brown, Gideon, and Miranda represent success stories because they vindicated foundational principles essential to the functioning of our nation. But I doubt there are now Browns and Gideons waiting to be born. One can debate the precise reach of eminent domain or regulatory takings or the value of same-sex marriage or the utility of firearms regulation without believing that our Constitution is bereft of meaning if one's own beliefs are not embodied there.
Judge Wilkinson's solution is not a new theory. He declines to advance one. Instead, he argues for a kind of judicial restraint and deference to the political branches that he says is best represented by the work of Justices Holmes, Brandeis, Frankfurter, Harlan, and Powell. According to Judge Wilkinson, "Their examples show that one can be a great justice without expounding a grand theory."
Friday, November 16, 2012
What is the work of political intellectuals, public intellectuals, or even, constitutional law professors?
Stanley Aronowitz, who participated in a public conversation about such topics this morning, is the author most recently of Taking It Big: C. Wright Mills and the Making of Political Intellectuals. Mills, who died in 1962 and was once widely known, is undergoing a bit of a resurgence; Aronowitz' "intellectual biography" of Mills contributes to this trend.
Aronowitz describes Mills' critiques of academics as knowledge workers; observations that are especially relevant in our post-election assessments and the role of constitutional commentators:
[Their] Knowledge is dedicated to assisting the state to regulate, in the first place, the poor. Having forsaken theoretical explorations aimed at explaining social events, the disciplines of economics and political science have, with the exception of a small minority of practitioners, become policy sciences. Economists advise and assist governments and corporations to anticipate and regulate the “market,” raise and spend tax revenues, and help direct investments abroad as well as at home. Political science has virtually become an adjunct to the political parties and to the foreign policy establishment; its polling apparatuses are guides to candidates on how to shape their message and to whom to target their appeals.
But Aronowitz suggests that the work of C. Wright Mills is important because Mills’s questions of "what a new society based on principles of economic and social equality would look like" continues to endure "as an unfinished and neglected series of tasks."
Wednesday, November 14, 2012
Wednesday, October 31, 2012
Touted as a "crowd-sourced" constitutional revision by many, including the NYT (international edition), the national referendum on Iceland's draft constitution was completed last week, with less than 50% turnout and all queries answered affirmatively, according to the Iceland Review.
Two pieces of recent scholarship provide necessary perspective to these developments in Icelandic constitutionalism.
In his brief essay, Grassroots Constitutional Politics in Iceland, available on ssrn, Paul Blokker reminds us that the "Icelandic Constitution has since its adoption in 1944 been understood as a transitory document by many, even if this status has never translated into wholesale revision or substitution of the document."
In a more substantial article, From Collapse to Constitution: The Case of Iceland, available on ssrn, Professor Thorvaldur Gylfason also begins with the 2008 financial collapse as the catalyst for constitutional revision, but he also discusses individual provisions of the constitution in a manner that connects the financial regime with the human rights regimes, including freedom of speech, press access, and environmental protections. Gylfason also asks the broader question:
Does financial regulation belong in constitutions? Or is it enough to confine such regulation to laws? – which, to date, is near-universal practice.
This is a fair question, especially in a country that has recently gone through one of the worst financial crashes on record, with grave consequences for many households and firms at home and elsewhere.
Gylfason also has some intriguing thoughts about the participation of legal education in the process of constitutionalism as well as the importance of Iceland's experience for other constitutional democracies. Definitely worth a read for anyone engaged in constitutional theory, even if one has not been following the developments in Iceland.
Friday, October 19, 2012
The labels of constitutional interpretative practice often attached to Justices such as "legal realist" or "originalist" are both useful and problematical. In her essay, John Paul Stevens, Originalist, 106 Northwestern University Law Review 743 (2012), available on ssrn, Professor Diane Marie Amann (pictured), makes an argument that Justice Stevens could just as well be called an originalist as his more usual label of pragmatist.
Amann's essay argues that scholars need to recognize that Stevens "has done battle upon originalism’s own field of combat." She highlights Stevens opinions in the "gun rights" cases of District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010), the latter of which was rendered the day before Stevens retired after almost thirty-five years as a Justice.
Importantly, she also situates Stevens career within the history of the Court, especially Justices appointed by FDR such as Justice Rutledge, for whom Stevens clerked in 1947.
For anyone teaching, writing, or studying theories of constitutional interpretation, Amman's essay is a must-read.
Friday, October 12, 2012
Over at Justia today, ConLawProf Vikram Amar (pictured) responds to Justice Scalia's well-publicized and controversial remarks that originalism makes issues such as "homosexuality" and abortion "easy."
But to say that originalism is important and helpful does not mean that it is easy. To see this, let us first look at what it would mean to say that all constitutional disputes should be analyzed and resolved by exclusive reference to originalism. It would mean, among other things, that the Supreme Court’s cases from the 1960s holding that states may not impose poll taxes or property qualifications on the franchise, because under the Equal Protection Clause and other parts of Section One of the Fourteenth Amendment there is an individual right to vote for legislative elections, are flawed. So too would be the cases holding, again under the Equal Protection Clause, that states cannot draw voter districts of significantly different sizes (thereby discriminating against urban voters); originalism would call into question the idea that the Equal Protection Clause guarantees “one person, one vote” in legislative elections.
Amar does not add - - - and perhaps he does not need to - - - any discussion of Bush v. Gore.
Instead, Amar focuses his argument on cases that Scalia himself implicated. Amar's ultimate conclusion is probably one that almost every law student, and most ConLawProfs, could credit:
My point here is not to disagree with any particular outcome that Justice Scalia supports in these or other areas—in fact, I sometimes agree with his constitutional bottom line, and at other times do not. But my goal here has simply been to suggest that all of this stuff is a long way from “easy.”
Monday, October 8, 2012
In Towards A Balanced Approach for the Protection of Native American Sacred Sites, 17 Mich. J. Race & L. 269 (2012), available on ssrn, ConLawProf Alex Tallchief Skibine navigates the difficult territory of the First Amendment and RFRA, including the applicability of Lyng v. Northwest Indian Cemetery, in the context of Native American claims.
Skibine posits that "Native American religions are land based." He notes that sacred places "used to be located within the tribes' ancestral territories, but as a result of conquest, land cessions, and other historical events, many sacred sites are now located on federal land." Skibine criticizes the tendency, so evident in Lyng, to “equate Indians' religious exercises at sacred sites with Western yoga-like practices.”
In other words, this view portrays Native religious activities at sacred sites as only about spiritual peace of mind. While such benefits are certainly part of the practice, they do not go to the heart of why these sacred places are important to Indian people or why management practices like cutting down trees and spilling recycled sewage water on sacred land are extremely disturbing to many Indian tribes. The importance of sacred sites to Indian tribes and Native practitioners is less about individual spiritual development and more about the continuing existence of Indians as a tribal people. The preservation of these sites as well as tribal people's ability to practice their religion there is intrinsically related to the survival of tribes as both cultural and self-governing entities
Professor Skibine proposes legislative compromise and clarity, including an intermediate scrutiny standard, arguing:
In adopting intermediate scrutiny to review governmental actions jeopardizing sacred sites, I hope to appease some critics who will argue that Native Americans should not be allowed to use religion to reclaim control over an unlimited amount of land that was taken from them throughout history. This is another version of the argument made by some that to the Indians, the whole earth is sacred and if we allow one claim, the floodgates will be open and there will be no end to claims of sacredness.RR
Thursday, October 4, 2012
Ackerman and Maduro discuss the importance - - - and possibility - - - of a EU Constitution in a short piece in The Guardian. They begin:
A spectre is haunting Europe. The memory of the 2005 national referendums rejecting the EU constitution has led political leaders to respond to the current crisis with emergency measures that don't require popular approval. But longer-term solutions demand democratic legitimation.
Perhaps not surprisingly, they suggest the South African model for a new constitutional referendum. But is the South African process transferable to Europe? The comments to the article are definitely worth a read for anyone interested in popular constitutionalism.
Thursday, September 27, 2012
The marvelous and brilliant South African writer Antjie Krog (pictured right) asks some important questions
This makes me wonder: which books are on the bedside tables of our ministers? How many book shelves had been built into the newly renovated presidential and ministerial houses? How many reading circles are in the parliamentary complexes? What novels are the captains of industry reading there in business class? What poetry volumes are in the judges' smart cases? What literary texts are to be found in doctors' waiting rooms, or on teachers' or parents' tables?
Why should a country read its writers?
Antjie Krog provides some answers in her speech at the Edinburgh International Book Festival, as published in The Guardian.
Tuesday, September 25, 2012
Writing in the New York Review of Books, for which he has become a not infrequent reviewer, former Justice John Paul Stevens has this to say about ConLawProf Sanford Levinson's new book, Framed: America's 51 Constitutions and the Crisis of Governance:
Framed, is a word that has more than one meaning. We often describe the men who drafted and ratified our Constitution as its “Framers” because they took action to design and create a new governmental structure. We seldom, however, acknowledge that their legal authority for engaging in that important enterprise extended only to the right to propose amendments to the Articles of Confederation, not to replace it. Even though Levinson disavows the idea that the title of his book was intended to suggest that the American people were somehow “framed,” in the more accusatory sense, by the unlawful work of the usually venerated “Framers,” that thought will occur to some readers.
Stevens has his share of disagreements with the book, but his conclusion is a "must read" endorsement:
Instead of reading like a brief in support of Levinson’s conclusions, Framed is a series of thoughtful and interesting essays discussing strengths and weaknesses of various structures established by our Constitution. The book offers an enlightening comparison of those structures with those adopted by states and foreign governments in dealing with similar issues. Many may disagree with Levinson’s arguments, but they will have to think hard about why they disagree. His book is well worth reading.
[image: Junius Brutus Stearns, "Washington at Constitutional Convention, 1787" circa 1856 via]