Wednesday, November 28, 2012

Daily Read: Rostron on the Second Amendment After Heller and McDonald

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. 

RostronRostron (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.

RR

November 28, 2012 in Courts and Judging, Federalism, Profiles in Con Law Teaching, Scholarship, Second Amendment, Theory | Permalink | Comments (0) | TrackBack (0)

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).

Knotted Gun
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.

The Second Circuit thus joins the surfeit of courts upholding state gun restrictions, including most recently the Fifth Circuit, despite Heller and McDonald.

RR
[image" The Knotted Gun," sculpture in NYC outside UN, via].

November 27, 2012 in Federalism, History, Opinion Analysis, Second Amendment, Theory | Permalink | Comments (0) | TrackBack (0)

Saturday, November 24, 2012

Wilkinson's Cosmic Constitutional Theory

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 Con Theory

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."

SDS

November 24, 2012 in Books, News, Scholarship, Theory | Permalink | Comments (0) | TrackBack (0)

Friday, November 16, 2012

Daily Read: Stanley Aronowitz on C. Wrights Mills on Political Intellectuals

What is the work of political intellectuals, public intellectuals, or even, constitutional law professors?

AppStanley 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."

RR

November 16, 2012 in Books, History, Scholarship, Theory | Permalink | Comments (1) | TrackBack (0)

Wednesday, November 14, 2012

Constitutionalism and Jobs

In New York City on Friday:

 

Lung aronowitz

RR

November 14, 2012 in Affirmative Action, Conferences, Due Process (Substantive), Federalism, Theory | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 31, 2012

Daily Read: Iceland and Popular Constitutionalism

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.

 

800px-W16_Protesters_2656
Protestors in Austurvöllur square in front of Alþingishús - the Icelandic parliament house in early 2009.

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.

RR
[image via]

October 31, 2012 in Comparative Constitutionalism, Scholarship, Theory | Permalink | Comments (0) | TrackBack (0)

Friday, October 19, 2012

Daily Read: Diane Marie Amann on Justice Stevens as an Orginalist

Profile_AmannThe 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.

RR

October 19, 2012 in Courts and Judging, Scholarship, Second Amendment, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)

Friday, October 12, 2012

Daily Read: Vikram Amar on Scalia on Originalism

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."

AmarAmar writes:

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.”

RR

October 12, 2012 in Due Process (Substantive), Equal Protection, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)

Monday, October 8, 2012

Daily Read: Skibine on Native American Religious Land Protections

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

 

Prayer-flags-huey_59625_990x742
"Prayer Flags, Wyoming"
photograph by Aaron Huey, National Geographic, Photo of the Day (October 1, 2012).
"Nine-year-old Wakinyan Two Bulls places prayer flags in a tree near Mato Tipila ("bear lodge"), or Devils Tower, in Wyoming."

 

 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
[image via]

October 8, 2012 in First Amendment, History, Race, Religion, Scholarship, Theory | Permalink | Comments (0) | TrackBack (0)

Thursday, October 4, 2012

Daily Read: Ackerman and Maduro on the Prospects of a EU Constitution

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.

450px-FR_referendum_EU_constitution

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.

RR
[image

October 4, 2012 in Comparative Constitutionalism, Theory | Permalink | Comments (0) | TrackBack (0)

Thursday, September 27, 2012

Daily Read: Constitutionalism and Literature

The marvelous and brilliant South African writer Antjie Krog (pictured right) asks some important questions

AntjieThis 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.

RR

September 27, 2012 in Interpretation, News, Theory | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 25, 2012

Daily Read: We've Been Framed? JP Stevens on Levinson

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.

Constitutional_Convention

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.

RR
[image: Junius Brutus Stearns, "Washington at Constitutional Convention, 1787" circa 1856 via]

September 25, 2012 in History, Interpretation, Scholarship, Theory | Permalink | Comments (0) | TrackBack (0)

Monday, September 3, 2012

Labor Day Scholarship Pick: "Labor and Racial Solidarity"

494px-Martin_Luther_King_Jr_NYWTSIn their draft "So Closely Intertwined: Labor and Racial Solidarity," available on ssrn, Professors Nancy Leong (Denver) and Charlotte Garden (Seattle) seek to bring alive the words of Martin Luther King from which their title is derived:  "As I have said many times, and believe with all my heart, the coalition that can have the greatest impact in the struggle for human dignity here in America is that of the blacks and forces of labor, because their fortunes are so closely intertwined.”

ConLawProfs Leong and Garden deploy a variety of theories and doctrines, anchoring their article in "an interdisciplinary literature that includes insights from legal, economic, psychological and sociological scholarly research."  They view their narrative as a counter-narrative to the conventional wisdom that the relationship between unions and people of color is one of rivalry.  Their first section takes on four pieces of conventional wisdom: 

  • Interests of White and Non-White Workers Are Fundamentally Opposed
  • Unions Benefit Only White Workers
  • Unions Lack Racial Empathy
  • Unions Don’t Care About Communities of Color

These myths are worth debunking, although Leong and Garden also discuss their genesis in scholarship and doctrine. One of the joys of the paper as a piece of co-authored scholarship is the authors' frank portrayal of their own attempts at understanding and their disagreements.  In considering the difficulty in discerning how to interpret the "Black History Month event" organized by the SEIU, Service Employees International Union, the professors agree that there was "overt exoticism," but differed as to how broadly problematic the entire event should be judged.

The constitutional theory is mostly implicit, but this is an important piece bridging racial equality and employment equality for this Labor Day.

RR
[image: Martin Luther King, 1964, via]

September 3, 2012 in Affirmative Action, Current Affairs, Equal Protection, Race, Reconstruction Era Amendments, Scholarship, Theory | Permalink | Comments (0) | TrackBack (0)

Saturday, May 5, 2012

Saturday Evening Review: Constitutionalism Beyond SCOTUS

The role of the "lower" federal courts in shaping constitutional doctrine as it is taught and theorized can be under-rated.  Many ConLawProfs have strategies to combat SCOTUS-dominance in our classrooms given our understandings about how constitutional law is actually practiced.  But often our discussions of "lower court" decisions are refracted through SCOTUS opinions as well as being very doctrinally focused.

Doni-GewirtzmanIn an important new article, Lower Court Constitutionalism: Circuit Court Discretion in a Complex Adaptive System, forthcoming in American University Law Review, available on ssrn, Professor Doni Gewirtzman considers how constitutional law operates at the circuit court level. Gewirtzman argues that circuit courts - - - and indeed, individual judges - - - are parts of an interpretive system where constitutional law is made from both the top-down and from the bottom-up.

Using a "complex adaptive system” model, Gewirtzman considers how courts "balance their need for overall order and stability with demands for evolution and change," relying on both variation (the degree to which the system’s components differ from one another) and interdependence (the degree to which the system’s components affect one another) to manage those competing forces.

In so doing, Gewirtzman has some compelling insights about the circuit courts as "percolators" of constitutional law and some useful discussions of "outlier" judges and circuits.  While Gewirtzman does discuss specific examples, the strength of the article is its attempt to provide a theoretical framework that makes constitutionalism in the circuit courts explicable apart from specific doctrine. 

It's an article worth reading for any ConLawProf whose teaching and scholarship considers circuit courts - - - and perhaps even more important for ConLawProfs who have become exclusively focused on SCOTUS as the sole arbiter of US constitutional law.

RR

May 5, 2012 in Courts and Judging, Scholarship, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)

Friday, April 27, 2012

Live Streaming of "Living Originalism" Conference

On April 27 and 28, 2012, Yale Law School will host a conference on constitutional interpretation and change in conjunction with the publication of Professor Jack Balkin’s book, Living Originalism (Harvard University Press 2011), with many exciting panelists.

Not at the conference?  Watch the live stream.

Jack_Living_originalismFINAL
RR

April 27, 2012 in Conferences, History, Scholarship, Theory | Permalink | Comments (0) | TrackBack (0)

Saturday, March 17, 2012

Larsen on Supreme Court Fact Finding in a Digital Age: Saturday Evening Review

Alli Orr Larsen's article, Confronting Supreme Court Fact Finding, forthcoming in Virginia Law Review and available on ssrn, takes as it starting point the generalized facts that many readers of Supreme Court constitutional opinions notice the Court claims to know - - - and that the majority and dissenting opinions may not agree upon.  Larsen gives a few examples - - -   "is a partial birth abortion ever medically necessary?  Can you effectively discharge a locked gun in self-defense?  Are African American children stigmatized by segregated schools?"

Larsen-1096These so-called "legislative facts" transcend the particular dispute and seek to describe the world.  But where does this information come from? 

The article "collects 100 examples of factual authorities relied on in recent decisions of the U.S. Supreme Court that were found “in house” – i.e. that cannot be found in any of the party briefs, amici briefs, or the joint record."   She shows that "of the 120 cases since 2000 that political scientists label the “most salient Supreme Court decisions” – largely measured by whether they appear on the front pages of newspapers– 58 percent of them contain at least one assertion of legislative fact supported by sources found 'in house.' " Some of these facts are historical, with obvious implications for original intent interpretative strategies.  The most common, according to Larsen, are facts, including statistics, "to demonstrate the emerging significance of a question to society."

Larsen contends that the information revolution has changed the way the Court sources its fact:

The digital revolution has two palpable relevant effects: it increases the amount of factual information available for review (statistics, social science research, polling data can all be posted to the world for free by anyone now) and it also makes this information faster to obtain -- literally just fingertips and a Google search away.

Larsen argues that while there are certainly benefits to letting judges research freely in a new digital age in which more information is available, there are also troubling effects: the systematic introduction of bias; the possibility of mistake; and concerns about notice and legitimacy.

Larsen highlights the bias of systems such as Google that can become self-fulfilling prophecies depending upon the personalization filters that Google uses (based upon a user's previous searches or bookmarks), as well as more commonly known issues regarding reliability and the ability to refute the research.

She also has some suggestions, including a more open process in which "when the Court contemplates a question of legislative fact, it would solicit opinions and evidence from all interested parties and encourage public participation much like the notice and comment process in administrative agencies."

One can only imagine the comments section of a newly enhanced Supreme Court website!  And for conlawprofs who allow open internet access during class, it could be a terrific exercise to take a moment and allow students to "check" a legislative fact in a Supreme Court opinion assigned for that class. 

Larsen's article is a great contribution to the problem of "legislative facts" and a forward-looking reality-check to constitutional adjudication in the information age. 

RR

March 17, 2012 in Interpretation, Scholarship, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 17, 2012

CFP: Gardens of Justice

What are constitutions if not plans for gardens?

476px-Frederick_Carl_Frieseke_-_Femme_dans_un_jardinA wonderful and imaginative call for papers for a critical legal conference in Stokholm this September, via Kate Sutherland at Osgoode Hall's law.arts.culture.

From the CFP: "The theme for next year’s Critical Legal Conference is “Gardens of Justice”. Although the theme may be interpreted in different ways, it suggests thinking about law and justice as a physical as well as a social environment, created for specific purposes, at a certain distance from society and yet as an integral part of it. The theme also invites you to think about justice as a concrete metaphor rather than an abstract concept. Just like any ordinary garden, legal institutions affect both people working in them and people who are just passing through their arrangements."

 

Critical legal conference 2012

to be held in Stockholm, 14-16 September, 2012

deadline for submissions
streams, roundtables and workshops: 31 March 2012; individual papers: 31 May 2012

RR
[image: Frederick Carl Frieseke's Femme dans un jardin, 1912 via]

January 17, 2012 in Congressional Authority, Scholarship, Theory | Permalink | Comments (0) | TrackBack (0)

Thursday, December 29, 2011

Second Circuit Upholds NYC's "Pay-to-Play" Campaign Finance Law

The Second Circuit rejected a First Amendment challenge to New York City's laws which seek to prevent so-called "pay-to-play" schemes that link campaign contributions to city contracts. 

In a panel opinion rendered last week in Ognibene v. Parkes, authored by Judge Paul Crotty, a district judge sitting by designation, and with two concurring opinions, the Second Circuit upheld the law.  The challenged provisions were those that

  • limit campaign contributions by individuals and entities that have business dealings with the City (from the generally applicable limit of $4,950 to $400 for mayor, comptroller, and public advocate, with similar schemes and reductions for borough presidents and members of city council);
  • exclude such contributions from matching with public funds under the public financing scheme; and
  • expand the prohibition on corporate contributions to include partnerships, LLCs, and LLPs.

300px-Charging_Bull_statueThe district judge had upheld the city laws in 2009, but the Second Circuit now had to consider both Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010) and  Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806 (2011).  Ultimately, the panel found that neither case altered the district judge's conclusion.

As to Citizens United, the panel opinion rejected the appellants' attempt - - - through "selective and misleading quotes" from Citizens United - - - to broaden Citizens United and obliterate the Supreme Court's "clear distinction between limits on expenditures and limits on contributions."  (at 18).  For the panel, Citizens United "confirmed the continued validity of contribution limits, noting that they most effectively address the legitimate governmental interest, identified by Buckley [v. Valeo], in preventing actual or perceived corruption." 

More contentious, however, was the nature of the actual or perceived corruption required.  As the panel opinion noted, although "Citizens United stated that mere influence or access to elected officials is insufficient to justify a ban on independent corporate expenditures, improper or undue influence presumably still qualifies as a form of corruption," citing Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806 (2011).  Judge Debra Ann Livingston concurred separately to disagree with any notion that improper influence was a form of corruption that could be constitutionally addressed.   However, the panel lauded the city's fact-finding about corruption and the perception of corruption, stating both that the city need not wait until the "dog" actually bit before enacting legislation (at 27) and that there were actual recent "scandals involving exchanges of money for favors," (at 31 n.15 citing news reports).  

Having found the government interests sufficient, the panel opinion then analyzed whether the provisions were closely drawn.  The panel opinion rejected the argument that the provisions were poorly tailored because they were not "indexed for inflation" and because they discriminated based upon viewpoint.   The viewpoint argument was largely based upon the exclusion of nonprofits such as neighborhood associations from the city law, but the panel stated that appellants never specified the viewpoint, and that neighborhood associations (for example) did not have a unified viewpoint.

The panel also rejected the challenge to the matching funds provision, distinguishing Bennett, and found that the entity ban, including not only corporations but partnerships, was sufficiently closely drawn.

Judge Guido Calabresi's interesting concurring opinion merits a close and full read.  Beginning with a Biblical passage, Calabresi states his disagreement with the Supreme Court's belief in the majority opinion in Citizens United that a government antidistortion interest (to "level the playing field") is inconsistent with the First Amendment.  Instead, courts should recognize that interest in the same manner that they recognize the validity of noise ordinances:

If an external factor, such as wealth, allows some individuals to communicate their political views too powerfully, then persons who lack wealth may, for all intents and purposes, be excluded from the democratic dialogue. In much the same way that anti-noise ordinances help to prevent megaphone users from drowning out all others in the public square, contribution limits can serve to prevent the wealthiest donors from rendering all other donors irrelevant—from, in effect, silencing them.

Moreover, the problem with the loudness of the megaphone in the public square

is not just that it drowns out the voices of others, but also that it misrepresents, to an outside observer, the relative intensity of the speaker’s views. That is, even if the megaphone user cares little about the issue being discussed, his voice gets heard above all others, while the voices (and intensity of feelings) of those who care passionately about the issue (and shout their beliefs at the top of their lungs) seem small in comparison. The one speaker’s relative loudness— along with the other speakers’ relative softness—obscures the depth of each speaker’s views, thereby degrading the communicative value of everyone’s message.

Calabresi's opinion articulates some of the same criticisms of campaign financing that animate the Occupy Wall Street movement.  He concludes by criticizing the Supreme Court's lack of deference to the legislature and essentially suggesting that the Court's activism (although he does not use that term) will be eventually ameliorated, whether through a "constitutional amendment or through changes in Supreme Court doctrine."

RR
[image: "Charging Bull" on Wall Street]

December 29, 2011 in Campaign Finance, Current Affairs, Elections and Voting, First Amendment, Fourteenth Amendment, Opinion Analysis, Recent Cases, Speech, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 21, 2011

Ron Paul and The Federal Reserve

With Ron Paul reportedly becoming a "serious contender" in the presidential primary, there is renewed attention to his views on the Federal Reserve as "dishonest, immoral, and unconstitutional," encapsulated in his campaign slogan, "end the fed. " 

EndthefedAn extended video, Fiat Empire, now about 6 years old, is a good introduction to the issues. 

The argument supporting the unconstitutionality of the Federal Reserve can be summed up in the phrase "the poster child of unconstitutional private delegation," cited to John Hart Ely in Timothy Canova's article, Black Swans and Black Elephants in Plain Sight: An Empirical Review of Central Bank Independence, available on ssrn.  Section 4 of the article is a great overview and argument regarding the Federal Reserve.  (I assigned this section last semester in Constitutional Structures in conjunction with Free Enterprise Fund v. PCOAB which Canova also discusses, and showed a short clip from Fiat Empire; it was well-receoved by students.)

As Canova notes, concerns about the Federal Reserve arise both from the "populist libertarian right" and the "populist progressive left" :  When "Representative Ron Paul, a Republican libertarian from Texas, introduced a bill to subject the Federal Reserve to an audit by the Government Accountability Office (GAO)" it was "cosponsored on the left by such Democratic and progressive Congressmen as Dennis Kucinich from Ohio and Alan Grayson from Florida." 

Canova and others, including Joseph Stiglitz, Jeffrey Sachs, and Robert Reich have been named experts on a panel advising a United States Senator to "develop legislation to restructure the Fed and tighten rules on conflicts of interest, ensure that the Fed fulfills its full-employment mandate, increase transparency, protect consumers and reduce income inequality."  That Senator is Bernie Sanders, Independent-Vt.   And while Paul and Sanders may agree on some aspects of the Federal Reserve, they seem to be very far apart on health care reform.

RR

December 21, 2011 in Congressional Authority, Current Affairs, Film, History, News, Recent Cases, Scholarship, Teaching Tips, Theory | Permalink | Comments (0) | TrackBack (0)

Monday, November 14, 2011

Atlas Shrugged and Economic Liberties

Atlas shruggedAn interesting segment on NPR's Morning Edition comparing Ayn Rand's economic thoughts to pronouncements of current politicians.  Rand is the author of the novels Atlas Shrugged (1957) and The Fountainhead (1943).

The highlight is a 1959 interview with Rand by Mike Wallace, who asks about the United States' political direction of "the gradual growth of social, protective legislation, based on the principle that we are our brothers' keepers."

These programs are destroying individual liberties, Rand says, especially the freedom of producers, entrepreneurs, businessmen. The government has no right to take their property, she says.

"I imagine that you're talking now about taxes," Wallace says. "And you believe that there should be no right by the government to tax. You believe that there should be no such thing as unemployment compensation, regulation during times of stress."

"That's right," Rand replies. "I am opposed to all forms of control. I am for an absolute, laissez-faire, free, unregulated economy."

A video of the interview is available in 3 parts; here's part 1:

 

 

While the usual constitutional law link might be Lochner, Rand's interview could prompt an interesting discussion of Commerce Clause, Takings Clause, or Taxing Clause, or Campaign Finance cases - - - and of course the Affordable Care Act (last discussed here).

RR

November 14, 2011 in History, Takings Clause, Taxing Clause, Teaching Tips, Theory, Web/Tech | Permalink | Comments (3) | TrackBack (0)