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]
Monday, September 3, 2012
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.
[image: Martin Luther King, 1964, via]
Saturday, May 5, 2012
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.
In 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.
Friday, April 27, 2012
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.
Saturday, March 17, 2012
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?"
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.
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.
Tuesday, January 17, 2012
What are constitutions if not plans for gardens?
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
[image: Frederick Carl Frieseke's Femme dans un jardin, 1912 via]
Thursday, December 29, 2011
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.
The 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."
[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
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. "
An 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.
Monday, November 14, 2011
An 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).
Friday, September 9, 2011
The intersections of constitutional protections for liberty, equality, free speech, and free exercise of religion can make for convoluted and contentious cases. Christian Legal Society (CLS) v. Martinez, decided by the Court in 2010, is a prime example, with the additional factual setting at a law school heightening the interest for legal scholars.
In How Equality Constitutes Liberty: The Alignment of CLS v. Martinez, 38 Hastings Const. L.Q. 631 (2011), Professor Julie Nice, University of San Francisco School of Law, pictured left, argues that the case illuminates several different doctrinal and theoretical controversies, ultimately making liberty more robust because it refuses the conflation of identity and ideology.
The article is further discussed as my selection for the Jotwell Equality section; it's the best essay I've read on constitutional equality in the last year. It's essential reading for every ConLawProf.
September 9, 2011 in Equal Protection, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Profiles in Con Law Teaching, Religion, Scholarship, Sexual Orientation, Sexuality, Speech, Supreme Court (US), Theory | Permalink | Comments (1) | TrackBack (0)
Monday, June 27, 2011
Monday, June 13, 2011
As Adam Liptak points out in his NYT column, the use of dictionaries in United States Supreme Court opinions is "booming." Liptak refers to Justice Breyer's criticism of any reliance on dictionary definitions of the word "license" in his dissenting opinion in Chamber of Commerce v. Whiting last week, even as Breyer's opinion for the Court in Fowler v. United States, issued the same day, refered to the dictionary (albeit the OED) to determine the meaning of "prevent."
Liptak quotes Professor Jeffrey Kirchmeier of CUNY School of Law (pictured right) and Samuel Thumma for their recently published "study" in Marquette Law Review, Scaling the Lexicon Fortress: The United States Supreme Court’s Use of Dictionaries in the Twenty-First Century, 94 Marq. L. Rev. 77 (2010), available on ssrn and from the law review. The article by Kirchmeier and Thumma builds on their previous work, Samuel A. Thumma & Jeffrey L. Kirchmeier, The Lexicon Has Become a Fortress: The United States Supreme Court’s Use of Dictionaries, 47 BUFF. L. REV. 227 (1999) and Samuel A. Thumma & Jeffrey L. Kirchmeier, The Lexicon Remains a Fortress: An Update, 5 GREEN BAG 51 (2001) (both available on ssrn).
For originalists, resort to earlier dictionaries may seem to make sense - - - word usage changes, after all - - - but as Kirchmeier and Thumma point out, dictionaries were once devoted to prescriptive meanings rather than actual usage. Moreover, not all dictionaries are created equal, then or now. Kirchmeier and Thumma demonstrate that there is a great deal of randomness in dictionary choices by the Justices.
The 2010 article and the previous ones employ a mix of theoretical analysis and quantative analysis. However, the pieces also include amazing appendices. The 2010 article analyzes the approximately 300 words/phrases the Court cited a dictionary to define from the 2000-1 Term to the 2009-10 Term. It includes three appendices of cases from the United States Supreme Court: (1) words and phrases defined by the Court (Appendix A); (2) Justices citing to dictionaries, including their frequency of use and which dictionaries are used (Appendix B); and (3) dictionaries cited by the Court (Appendix C).
Ultimately, Kirchmeier and Thumma argue that the Court should clarify some standards for the use of dictionaries. Until then, Kirchmeier and Thumma provide excellent analysis - - - and useful fodder for scholarship and teaching.
Sunday, June 12, 2011
After reading Heyman on Holmes as Mr. Hyde, one may be in need of a terrific primary source for Holmes' views on free speech. Look no further than The Fundamental Holmes: A Free Speech Chronicle and Reader – Selections from the Opinions, Books, Articles, Speeches, Letters and Other Writings by and about Oliver Wendell Holmes, Jr., edited by Ronald K. L. Collins.
Paul Weizer's review in Law & Politics Book Review observes:
The main aim of this book is to explore the life of Holmes and the events which led to his free speech jurisprudence. This is done through a careful examination of the personal correspondence, public speeches and judicial opinions of Holmes. This book is billed as the first complete collection of works by Justice Holmes on matters related to free speech. However, it is more than just that. By providing letters and speeches, in addition to the traditional judicial opinions found elsewhere, Collins helps to provide a sense of the man and a view of the Justice.
Weizer does fault the book for having commentary "so thorough" that "often times it is unnecessary to read" the actual passages from Holmes. Weizer also wonders about the intended audience for the book. But for scholars citing Holmes' opinions, the book seems an invaluable resource for further contextualizations of the opinions and access to other primary sources.
Saturday, June 11, 2011
Professor Steven J. Heyman's article, The Dark Side Of The Force: The Legacy Of Justice Holmes For First Amendment Jurisprudence, has just been published, 19 William & Mary Bill of Rights Journal 661-723 (2011), with a draft available on ssrn.
It is a must-read, especially for those intending to quote Justice Oliver Wendell Holmes (pictured left) in their scholarship this summer or in their future teaching. Heyman's article is an excellent exploration of Justice Holmes writings - - - both in Holmes' opinions and elsewhere - - - on First Amendment and democratic values.
Heyman argues that First Amendment jurisprudence has "Jekyll-and-Hyde quality." There is a deep divide between the Constitutional protection of "freedom of expression in order to promote basic liberal values such as individual self-fulfillment, democratic deliberation, and the search for truth," and on the other hand, protection for "racist hate speech, violent pornography, invasion of privacy, and other kinds of expression that undermine those fundamental values." Although Heyman does not extend the Jekyll and Hyde metaphor explicitly, what is clear is that Heyman conceptualizes Justice Holmes not as the more respectable Dr. Jekyll, but as the evil Mr. Hyde of Robert Louis Stevenson's famous novel.
Heyman analyzes Holmes' famous "marketplace of ideas" conceptualization of the First Amendment, noting Holmes' "deeply held Darwinian views about life and law." Id. at 690. Holmes' competitive notion of democracy, best expressed in Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting), has always seemed a bit at odds with another of Holmes' well known passages, his dissent in Lochner v. New York 198 US 45 (1905). Heyman views Holmes' as consistent:
Holmes understood social and political life in terms of group conflict, such as the struggle between workers and employers. He saw the constitutional order as a neutral framework for channeling such conflict and resolving it by lawful means. This is the view that animates the other judicial opinion for which he is best known—his dissent in Lochner v. New York. There he writes that “a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire.” Instead, the Constitution establishes an arena within which groups with “fundamentally differing views” can struggle for dominance. “Every opinion tends to become a law,” and except in the most extreme cases, the courts should not interpret the Constitution to prevent “the natural outcome of a dominant opinion” or to interfere with “the right of a majority to embody their opinions in law.”
19 Wm.&Mary Bill Rts. J. at 684 (footnotes omitted). Heyman is most convincing regarding his critique of Holmes' worldview and its ultimate meanings for democracy. He elucidates the "broader problem with Holmes’s view" thusly:
Contrary to the impression that may be conveyed by the expression “free trade in ideas,” Holmes does not believe that free speech does or should involve an interaction between autonomous subjects. Instead, he sees speech as an activity in which the speaker treats
others as objects. This may involve an effort to dominate them, but it may simply involve
an effort to use them to achieve the speakers’ own ends.
Id. at 705. Yet Heyman's article is not limited to a historical critique of Holmes, but an analysis of how this Holmesian view continues to affect recent free speech cases, including Citizens United, in which the Holmesian world view of the majority is juxtaposed to the liberal humanist views of Justice Stevens' dissenting opinion.
Put this on your summer reading list!
[image: Oliver Wendell Holmes, circa 1924, via]
Monday, April 4, 2011
On the anniversary of the 1968 assassination of Martin Luther King, footnote 24 of Justice Thurgood Marshall’s concurring and dissenting opinion in Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985) is appropriate. Marshall's footnote is condensation of equal protection theory and an argument for judicial consideration of history and experience. It is also an illumination of footnote 4 of Carolene Products. Marshall (pictured) wrote:
No single talisman can define those groups likely to be the target of classifications offensive to the Fourteenth Amendment and therefore warranting heightened or strict scrutiny; experience, not abstract logic, must be the primary guide. The "political powerlessness" of a group may be relevant, San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 28 (1973), but that factor is neither necessary, as the gender cases demonstrate, nor sufficient, as the example of minors illustrates. Minors cannot vote and thus might be considered politically powerless to an extreme degree. Nonetheless, we see few statutes reflecting prejudice or indifference to minors, and I am not aware of any suggestion that legislation affecting them be viewed with the suspicion of heightened scrutiny. Similarly, immutability of the trait at issue may be relevant, but many immutable characteristics, such as height or blindness, are valid bases of governmental action and classifications under a variety of circumstances. See ante, at 442-443, n. 10. The political powerlessness of a group and the immutability of its defining trait are relevant insofar as they point to a social and cultural isolation that gives the majority little reason to respect or be concerned with that group's interests and needs. Statutes discriminating against the young have not been common nor need be feared because those who do vote and legislate were once themselves young, typically have children of their own, and certainly interact regularly with minors. Their social integration means that minors, unlike discrete and insular minorities, tend to be treated in legislative arenas with full concern and respect, despite their formal and complete exclusion from the electoral process. The discreteness and insularity warranting a "more searching judicial inquiry," United States v. Carolene Products Co., 304 U.S. 144, 153 , n. 4 (1938), must therefore be viewed from a social and cultural perspective as well as a political one. To this task judges are well suited, for the lessons of history and experience are surely the best guide as to when, and with respect to what interests, society is likely to stigmatize individuals as members of an inferior caste or view them as not belonging to the community. Because prejudice spawns prejudice, and stereotypes produce limitations that confirm the stereotype on which they are based, a history of unequal treatment requires sensitivity to the prospect that its vestiges endure. In separating those groups that are discrete and insular from those that are not, as in many important legal distinctions, "a page of history is worth a volume of logic." New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921) (Holmes, J.)
Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 472-473 (1985) (Marshall, J. concurring and dissenting in part).
Marshall's discussion of the social integration of minors and the lack of prejudice against the young might be worth further discussion.
(Suggested by Ed Campanelli)