Thursday, May 14, 2009

Senate Judiciary Committee Hearing on Torture and OLC

Former State Department Counselor Philip Zelikow testified yesterday before the Subcommittee on Administrative Oversight and the Courts of the Senate Judiciary Committee in its hearing, What Went Wrong: Torture and the Office of Legal Counsel in the Bush Administration?

Zelikow is the author of an unreleased memorandum dissenting from the Office of Legal Counsel's views on torture, as reflected in the most recently released set of OLC memos.  Zelikow alleges that the Bush White House ordered all copies of his memorandum destroyed, but he retained at least one copy (which is currently under review for possible declassification).

Zelikow testified that the State Department in 2005 "worked to persuade the rest of the government to join in developing an option that would abandon . . . technical defenses and accept the 'CID' standard"--the "cruel, inhuman, and degrading" standard of Common Article III of the Geneva Conventions (prohibiting cruel, inhuman, and degrading treatment) and which the Bush administration had disavowed. 

State succeeded by the end of 2005, and President Bush signed the "McCain Amendment," which codified the CID standard and defined "cruel, inhuman, or degrading treatment or punishment" as "treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment . . . ."

The issues in the public debates about the McCain Amendment at or around the time of its passage included administration-requested immunity for U.S. officers and agents (codified here), an administration-requested exemption for the CIA (which it did not receive), and Bush's signing statement (here, widely understood to mean that the administration might ignore the Amendment). 

But everyone seemed to assume that the McCain Amendment would have some effect.

Wrong.  The OLC, through its May 30, 2005, memo concluding that the "full CIA standard--including waterboarding--complied with [the CID standard], already rendered the McCain Amendment a "nullity," according to Zelikow.  "[I]t would not prohibit the very program and procedures Senator McCain and his supporters thought they had targeted."

In other words, the White House put up a great fuss about the McCain Amendment, misleading Congress into believing that the administration thought it meant something--even pressing for a CIA exemption!--all the while knowing that its own lawyers already secretly ruled it a nullity.

(Zelikow goes on to argue that the OLC's interpretation of the Fifth, Eighth, and Fourteenth Amendments "did not seem to present a fair reading of the caselaw under the standard," and that "[t]he OLC analysis also neglected another important line of caselaw, on conditions of confinement."  Zelikow's testimony gives us a preview of the legal analysis in his as-yet unreleased memo.  We'll cover this when (and if) it comes out.)

Also at issue in the hearing yesterday--and all over the press recently--was Congress's own complicity in the administration's enhanced interrogation and torture program.  Vicki Divoll argued in yesterday's NYT that the "gang of four," including Nancy Pelosi, who were secretly briefed on the CIA's program, could have taken some action, including insisting that full committees receive briefings and even denoucing the Bush administration on the floor (although this would have been political suicide).

This may be so, but Zelikow's testimony is yet another reminder that the administration went to extraordinary lengths to cut Congress out of the CIA program--rendering the McCain Amendment a "nullity" in a secret OLC memo a full seven months before it passed, and then undercutting it with a signing statement.


May 14, 2009 in Executive Authority, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Secession? Long Island, the Conch Republic, Texas, Vermont and Beyond

Secession is akin to divorce; it indicates that any existing constitutional frameworks are deemed insufficient - - - at least by one party - - - to solve the discord. When secession-talk surfaces, it might be blustery, sardonic, or serious.

On Long Island, there is talk of seceding from the State of New York.


The complaint is the not unusual one regarding allocation of resources and taxation. As an editorial in Long Island's Newsday described it:

people are rebellious. But that anger is far more likely to increase musket sales at Civil Wars R Us than it is to create a new State of Long Island. At the Suffolk County Legislature yesterday . . . It became clear the talk had gone a tad too far when a legislator paraphrased Thomas Jefferson's comment that "the tree of liberty must be refreshed from time to time with the blood of patriots and tyrants." Jefferson went on to say that blood is liberty's natural manure. The Suffolk lawmaker left out the manure part, but that's a good word for all this secession rhetoric.

Conch Republic 07 Meanwhile, the Conch Republic just celebrated the twenty-seventh anniversary of its secession, prompted by "a United States Border Patrol Blockade setup on highway U.S.1 at Florida City just to the north of the Florida Keys," isolating the Keys from Florida and the US mainland since US 1 is the only connecting road. The blockade was a serious issue that entailed litigation, but the Conch Republic has also become a cultural marker of identity.

In Texas, the talk is current and seemingly serious. Flag-texas

On the Texas Secede! website, the answer to the question of whether the Texas state constitution reserves the right to secede is:

No such provision is found in the current Texas Constitution (adopted in 1876) or the terms of annexation. However, it does state (in Article 1, Section 1) that "Texas is a free and independent State, subject only to the Constitution of the United States..."not state (note that it does "...subject to the President of the United States..." or "...subject to the Congress of the United States..." or "...subject to the collective will of one or more of the other States...")

Neither the Texas Constitution, nor the Constitution of the united States, explicitly or implicitly disallows the secession of Texas (or any other "free and independent State") from the United States. Joining the "Union" was ever and always voluntary, rendering voluntary withdrawal an equally lawful and viable option (regardless of what any self-appointed academic, media, or government "experts"—including Abraham Lincoln himself—may have ever said).

But Vermont?Vermont_roadsign

In One of These Things is Not Like the Others?: A Comparative Analysis of Secessionist Movements in Vermont, Quebec, Hawai'i and Kosovo, just posted on ssrn here, Brian M. Lusignan focuses on the Vermont secession movement. Importantly, he sets the stage for his serious consideration by discussing this issue of "experts" that the Texas Secede! website also identifies. Lusignan argues that "despite a widespread belief that support for secession is limited to society’s radical fringe, modern secessionist movements remain surprisingly legitimate." He notes that

a recent poll revealed that one in five Americans" believe “any state or region has the right to peaceably secede and become an independent republic.” In the South and the East, a quarter of poll respondents believe states have a right to secede. Furthermore, 18% of respondents said they would support a secessionist movement in their own state. Reactions to this poll range from the skeptical to the scathing. Professor Ann Althouse wrote on her blog that “all these people have the law wrong and don't seem to know the basics of the history of the Civil War” and called the results “[f]ascinating(ly stupid).” George Mason Law Professor Ilya Somin responded that “superior military might doesn't prove superior constitutional right” and that a belief in “a right of secession” does not “by itself demonstrates ignorance about either law or American history.”

Lusignan argues that there is

a deep divide in scholarly opinions on secession. According to Pulitzer Prize-winner Garry Wills, “[s]ecessionist efforts now resemble those of a crackpot group in Texas.” And yet Thomas Naylor, an economics professor at the University of Vermont, founded the secessionist movement the Second Vermont Republic. Naylor’s secessionist book The Vermont Manifesto prompted one legal scholar to suggest that confusion over the constitutionality of secession is caused by “intelligent laymen like Professor Naylor, who have not undergone our [legal] professional socialization” interpreting law and history “in unusual ways.” But Professor Somin is not the only legal scholar who sees the issue of secession as ambiguous. John Remington Graham, a former law school professor, traced the history of secession from England’s Glorious Revolution through the American Revolution and Civil War to the secessionist movement of Quebec. . . . some legal scholars believe that legitimate secession is an open question.

What makes a "secession" legitimate or not is certainly an interesting question, yet whether legitimacy is connected to "constitutionality" is far less clear.


May 14, 2009 in Comparative Constitutionalism, Current Affairs, Federalism, History, News, Scholarship, Theory | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 12, 2009

Torture Memo Dissenter Zelikow to Testify Before Senate Judiciary Committee

Philip Zelikow, former State Department counselor and author of a memo dissenting from the OLC memos authorizing torture, will testify tomorrow before the Senate Judiciary Committee during its hearing, "What Went Wrong: Torture and the Office of Legal Counsel in the Bush Administration."  The hearing begins at 10:00 am (Eastern) it'll be webcast here.

Zelikow spoke last month about his memo and the Bush White House attempts to destroy it--see his MSNBC interviews here and here--and wrote about his views in a post on Foreign Policy's Shadow Government blog.  House Judiciary Democrats then called on Secretary of State Hillary Clinton and acting archivist of the United States Adrienne Thomas to release a copy.  Neither has responded.


May 12, 2009 in Executive Authority, News | Permalink | Comments (0) | TrackBack (0)

Ninth Circuit Commerce Clause Case

In the off-chance that you've not yet written your exam (or if you are looking for commerce clause fact patterns for next semester), a case issued by the Ninth Circuit - available here- may be exactly what you need.  The facts are simple:  Can federal law - specifically 18 U.S.C. § 931 - prevent convicted felons from possessing body armor that has been "sold or offered for sale in interstate commerce?"

The majority holds that it can for two primary reasons.  First, the majority relies on stare decisis as it believes prior cases from the Supreme Court - including Scarborough v. United States, 431 U.S. 563 (1977) - and other circuits have addressed this issue.  The court does not want to create a circuit split on the issue.  Second, the majority asserts that even under the new analysis the Court provided in Lopez and Morrison, this statute is within the bounds of the Commerce Clause.  Though the test has four factors, the majority focuses primarily on the fact that - unlike Lopez - the statute here has a proper "jurisdictional hook" limiting its scope to goods sold in interstate commerce. 

The dissent focuses on two other Lopez-Morrison factors - the economic nature of the activity and whether the relationship of the activity to interstate commerice is too attenuated.  The dissent concludes,"We have never found that mere possession is, itself, an economic activity."  The judge further states, "[E]ven when Lopez’s and Morrison’s instructions are read in the light most favorable to exercise of congressional power, any potential effect on commerce . . . [through the] possession of body armor is both spare and particularly attenuated. The possession subject to regulation under § 931 need not be coupled with possession of a weapon or connected with the commission of a federal crime, circumstances which might fairly be said to substantially affect the national economy."  The dissent concludes by stating its view that neither the presence of a jurisdctional element nor the congressional findings on point resolve the issue.

The tension between the majority and the dissent here is quite interesting.  The majority's desire to show reverence to precedent is understandable, but by focusing so heavily on only one of the Lopez-Morrison factors (and by the majority's own admission, one that needn't ensure a favorable outcome on this issue) to the exclusion of the others, the majority's point loses its force.  It surely would not have been difficult to identify and support the arguments on the reamining prongs of the test.  But because the majority skims over that analysis, the dissent earns an advantage simply by being very thorough in the application of the law.

At any rate, the two points of view on an issue that is heavily taught make this an issue that is quite well suited for exam or classroom use.


May 12, 2009 | Permalink | Comments (0) | TrackBack (0)

Monday, May 11, 2009

Legalization of Marijuana: A Matter of Substantive Due Process?


The San Francisco Chronicle editorialized about the California Governor's comments:

With a rhetorical shoulder-shrug, Gov. Arnold Schwarzenegger said it's time to consider legalizing marijuana. His thoughts were the loose-fit variety: "I think it's time for a debate" and free of any specifics. Still, the idea is worth a serious study to assess the advantages and risks of trying to tax, regulate and control the drug.

The Stanford Progressive has a brief piece in its May issue by Ross Raffin expressing disappointment in Obama's "public hesitation towards marijuana legalization," but contending:

At the heart of the marijuana debate is federalism, the separation of state and national governmental power. For most of America's history, marijuana was treated as a crop subject to state regulation. However, the national government justified regulating marijuana through a variety of means, mainly the Commerce Clause of the Constitution which gives Congress power to regulate inter-state trade.

Now two law professors, Eric Blumenson (Suffolk University Law School) and Eva Nilsen (Boston University Law School), have authored an essay, Liberty Lost: The Moral Case for Marijuana Law Reform, available on ssrn here, seeking to make a

civil libertarian case for repealing marijuana possession crimes. We put forward two arguments, corresponding to the two distinct liberty concerns implicated by laws that both ban marijuana use and punish its users. The first argument opposes criminalization, demonstrating that marijuana use does not constitute the kind of wrongful conduct that is a prerequisite for just punishment. The second argument demonstrates that even in the absence of criminal penalties, prohibition of marijuana use violates a moral right to exercise autonomy in personal matters – a corollary to Mill's harm principle in the utilitarian tradition, or, in the non-consequentialist tradition, to the respect for personhood that was well described by the Supreme Court in its recent Lawrence v. Texas opinion. Both arguments are based on principles of justice that are uncontroversial in other contexts.

Lawrence's famous "caveat" paragraph - - - in which the Court excluded possible extensions of its judgment to same-sex marriage, commercial sex, or controversies involving minors - - - did not mention marijuana (or other drug laws).   Yet the applicability of Lawrence's problematizing of a state interest in "morality" is easily applied by Blumenson and Nilsen to laws criminalizing marijuana.  As for a "right to smoke marijuana," they observe that "the Supreme Court‘s found no right to engage in sodomy in Bowers v. Hardwick but later [in Lawrence] reversed itself in finding a right to autonomy in intimate relations."   Likewise, they argue, the right to use marijuana invokes "the rights to control one‘s body, to freedom of thought, to privacy in one‘s home, and to the pursuit of happiness."

Policy, legal, constitutional, and philosophical arguments about the (de)criminalization of marijuana have been around for at least three decades.  But new or not, prospects of reform are being seriously discussed.


May 11, 2009 in Federalism, Fourteenth Amendment, Fundamental Rights, News, Privacy, Scholarship, Sexuality, Theory | Permalink | Comments (1) | TrackBack (0)

Saturday, May 9, 2009

South African Constitutional Law, Polygamy, and Sexuality: Saturday Evening Review

One of the very best volume on South African Constitutional Law remains The Post-Apartheid Constitutions edited by Penelope Andrews and Stephen Ellman, published in 2001.  This anthology provides a study of the "processes of negotiation" of the constitutions as well as an analysis of the final constitution of 1996.  The University of Cape Town Faculty of Law uBuntu Project is hosting me later this month (if you are in the neighborhood, invitation here); to prepare I find myself reading and re-reading the rich literature on South African constitutionalism.  

However, even for Americans with little interest in non-US constitutions, many of this volume's essays  - - - on constitution-making, negotiation, "deadlock," the certification (ratification) process, the "key players," and the Bill of Rights - - - shed light on theories of originalist constitutional interpretation in the US.  Stephen Ellman's exceedingly important chapter comparing United States doctrines of state action and "South Africa's Socio-economic Rights Guarantees to Private Actors," seeks to use "American efforts to grapple with state action" to "illuminate the issues facing South African courts" applying a more expansive notion.  However, Ellman's essay constructs a two-way mirror: Americans can use the South African constitutional notions to "illuminate" the issues faced by courts confronting the sometimes limiting state action doctrine.

PennyAndrews07 The contribution of the other co-editor, Penelope Andrews, is also vital.  Entitled "The Stepchild of National Liberation: Women and Rights in the New South Africa," Andrews discusses how women pressed their concerns and win a place at the negotiating table.  Again, this experience distinguishes the US constitutional-framing context.  Yet as Andrews notes, even in the 1990s the claims of customary and traditional law could conflict with claims for gender equality, especially in the rules about property, ownership, and guardianship of children.  

Andrews doesn't mention marriage or polygamy in this piece, although she has written about it elsewhere (on ssrn here and here); she is quoted in today's Washington Post in an article entitled "Which Mrs. Zuma Will Be South Africa's First Lady?" discussing  the ramifications of the fact that the new President of South Africa, Jacob Zuma, is a practicing polygamist.  The "First Lady" is not a position in the South African or US constitution, but for all the attention and anxiety it can generate (especially when potential heads of state are polygamous, or unmarried, or female, or perhaps divorcing) it might seem as if there should be some constitutional clarity.  As the WaPo article comments, "South Africans are still in the dark about who will be Zuma's date to galas and have dibs on the spousal office in the east wing of the president's hilltop residence in Pretoria, the administrative capital." 

Current controversies, however, do not detract from the relevance of The Post-Apartheid Constitutions. It is an excellent volume that remains timely, not only in its historical discussions but in its concerns.  The major omission in the volume is a lack of attention to sexuality issues and insufficient attention beyond Andrews' essay to gender issues.  South African constitutional law has been recognizing many sexuality rights, due in part to "sexual orientation" being a ground of discrimination in the Constitution.   Good sources on the issue include American ConLawProf Mark Kende's new book previously blogged here which has a chapter on "gay rights" and the South African Journal of Human Rights, which has had several special issues on sexuality including volume 23 part 3 (2007) and volume 20 part 2 (2004). 


Another great source on sexuality, constitutional law, and South African politics is the website website Constitutionally Speaking by South African ConLawProf Pierre de Vos (pictured above)   It is a must read for anyone trying to keep up with the legal landscape in South Africa.


May 9, 2009 in Comparative Constitutionalism, Family, Gender, International, Scholarship, Sexuality, State Action Doctrine, Theory | Permalink | Comments (1) | TrackBack (0)

Friday, May 8, 2009

Obama's Constitutional Law Exam and Feedback

Interested in a Constitutional Law III examination and feedback from 1996?   What about if the Professor was the now-President Barak Obama?

The first question on the exam involves a lesbian seeking to obtain IVF despite a law that the "state legislature passed a law last year, titled the “Preservation of Family Values Act” (PFVA), that, inter alia, prohibits any doctor or health care professional, whether in private practice or employed by the state, from providing infertility services to any unmarried person within the State of Wazoo."  The question asks students to address both equal protection and substantive due process claims.

The second question involves an African-American mayor considering two affirmative action policies - one regarding city contracts and the other involving  the hiring of firefighters and the civil service examination.   This question specifically asks students to argue both sides, provide a considered conclusion, and to "feel free to present to the Mayor any broader policy issues or theories of racial justice that are raised by his plan and/or the referendum."


The full exam is here.  The feedback, here, is twelve pages and in the form of a discussion rather than a checklist or model answer.   It was an open book examination and students had six hours, although as the instructions assert: "The exam is designed, however, to be completed in approximately three hours. Feel free to use the extra three hours as you wish (anxiously flipping through the casebook for that one last citation, or heading over to the gym for a good workout - your choice)."

Thanks to Alana Chazan, class of 2009 CUNY School of Law, for these documents, which are from the NYT blog from July 2008 here, along with other exams and syllabi and comments from conlawprofs.  And yes, it did make me look for the exam I gave and the feedback from 1996, although I am about to admit defeat unless I can find a floppy disk reader!


May 8, 2009 in Fundamental Rights, Profiles in Con Law Teaching, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Thursday, May 7, 2009

Wydra on the Citizenship Clause and Birthright Citizenship of Children of Undocumented Aliens

Elizabeth Wydra, Chief Counsel of the Constitutional Accountability Center, just published Birthright Citizenship: A Constitutional Guarantee, an American Constitution Society Issue Brief, arguing that the text, history, original understanding and intent, principles, and precedent of the Fourteenth Amendment's Citizenship Clause all point to "birthright citizenship [for] all those born on U.S. soil, regardless of the immigration status of their parents."

Wydra's Brief comes in the wake of a(nother) national election in which birthright citizenship was an issue as part of a larger immigration debate and following at least ten years of proposed, but unsuccessful, congressional legislation to end birthright citizenship. 

The Fourteenth Amendment Citizenship Clause makes "[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof" U.S. citizens.  The current bill in Congress, H.R. 994, Sec. 301 (page 33), would define a person born in and "subject to the jurisdiction" of the U.S. to include only children of U.S. citizens, "lawful" aliens, and aliens serving in the U.S. armed services, thus prohibiting a child of undocumented aliens from achieving U.S. citizenship merely by virtue of birth.  (The same bill died in committee in the 110th Congress.) 

Wydra's Brief argues that this interpretation is unsupported by the text and principles of the Fourteenth Amendment, contrary to the intent of the amendment's framers, and contrary to the case law.  Wydra's brief also explores and debunks other common arguments against birthright citizenship: that "subject to the jurisdiction of" means "allegiance" to (thus limiting birthright citizenship only to children of parents who give complete allegiance to the U.S.); that Congressional debates over the Fourteenth Amendment suggest that both foreign diplomats and aliens were to be exempted from birthright citizenship; and that "subject to the jurisdiction of" implied mutual consent (thus limiting birthright citizenship only to parents who have been "consented to" by the U.S.).

This is an excellent read--a thorough analysis of birthright citizenship under the Citizenship Clause and a good example of constitutional fidelity as a method of constitutional interpretation.  It's also a nice addition to the CAC's good work on other relatively neglected portions of Section 1 of the Fourteenth Amendment--Gans and Kendall's article and briefs on the P or I Clause. 


May 7, 2009 in Fourteenth Amendment, Scholarship | Permalink | Comments (0) | TrackBack (0)

Ninth Circuit Case on Eleventh Amendment & Section 5 (Fourteenth Amendment)

Great discussion over at Workplace Prof Blog here on the Ninth Circuit's en banc opinion Alaska v. EEOC.

Perhaps this would set the stage for SCOTUS to clarify Eleventh Amendment doctrine, as we just discussed here, in the context of Souter's legacy.


May 7, 2009 in Cases and Case Materials, Eleventh Amendment, Fourteenth Amendment | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 6, 2009

Constitutional Interpretation, Literary Interpretation, and "torture memos"

Ig9r4sm63skxcd575qx6ge5vhhrcc4w In a provocative essay in the Chronicle of Higher Education [subscription required to view],
 Peter Brooks, the distinguished literary scholar now at Princeton, writes:

Literary scholars can be, and are, faulted for their interpretations, which may in any case never win them a secure job. But it's almost unimaginable that they could be fired for faulty interpretations, or be stripped of tenure or membership in the Modern Language Association. So it gives one pause to learn that John C. Yoo, a professor at the University of California at Berkeley's Boalt Hall School of Law, is subject to an investigation that could conceivably lead to loss of his professorship or his membership in his state bar association, or both.

The investigation, undertaken by the Justice Department's Office of Professional Responsibility, seeks to determine whether memoranda — written by Yoo, when he was at the Office of Legal Counsel at the Justice Department, and his colleagues there — were so flawed as legal interpretation that they did not meet legal standards.

The question that interests — and troubles — me here is this: Can one be guilty of misinterpretation to the degree that one is punished by loss of one's license to interpret?

Brooks eventually makes some distinctions between literary and legal interpretation, as well as between academia and legal practice.  While it might be more strongly argued, it does illuminate some of the ways in which law is text and the ways in which law is not (merely?) text.


May 6, 2009 in Interpretation, News, Scholarship, Theory | Permalink | Comments (1) | TrackBack (0)

Tuesday, May 5, 2009

Lesbian (Gay) Supreme Court Nominee Possibility

“To start with, we need a lesbian on the Supreme Court.”

Or so I once said, in an interview: “It was the summer of 1992, the last summer of the Reagan-Bush regime, although the demise of that era was far from certain. I was being interviewed by a gay and lesbian magazine for a feature article about the Supreme Court. I was staying in Provincetown, a place renowned for its lesbian/gay culture, surrounded by lesbians of every ilk. . . . when the interviewer  asked me a general question about changing the United States Supreme Court, I replied that we should start with the appointment of a lesbian.  My proposal, glib as a Provincetown summer, implicitly asserts lesbianism would be a relevant quality of a United States Supreme Court Justice.”

The specter of a lesbian Supreme Court Justice raises an issue that has troubled lesbian and political theory, the issue of identity politics.  The rest of the article, The Specter of a Lesbian Supreme Court Justice: Problems of Identity in Lesbian Legal Theorizing, 5 St. Thomas Law Review 433 - 458 (1993), analyzes identity politics circa 1992.

Now, seventeen years later, identity politics remains an issue and at least two lesbians are thought to be contenders for the Court. The story has been buzzing around for a while,  it makes its appearance on Politico here:

Either Kathleen Sullivan or Pamela Karlan, both law professors at Stanford, could become the first “openly gay” Supreme Court justice.

Sullivan is former dean at Stanford and teaches Constitutional Law.

Karlan is a former clerk to Justice Blackmun and Director of Stanford's Supreme Court Litigation Clinic.

POLTICO also reports that ”in response to questions from POLITICO in recent days, White House aides declined to say whether sexual orientation was among the diversity factors the president planned to consider either with respect to a Supreme Court nominee, or judicial nominees more generally."


May 5, 2009 in News, Profiles in Con Law Teaching, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)

Michael McConnell Resigns Tenth Circuit to Return to Academia

Mcconnell_michael2 According to both Wall Street Journal Blog and Wikipedia(!), Michael McConnell is resigning his seat on the Tenth Circuit to direct the Stanford Constitutional Law Center. at Stanford Law School. 

Appointed to the Circuit by George W Bush is 2002, McConnell was frequently mentioned as a possible nominee for the United States Supreme Court.


May 5, 2009 in News, Profiles in Con Law Teaching | Permalink | Comments (0) | TrackBack (0)

Justice Marshall - Practical Feminist?

The Legal History Blog has a reference to a new article by Maryland Professor Taunya Lovell Banks which examines the role of Justice Thurgood Marshall in advancing women's rights while on the Court.  Professor Banks compares his voting record on women's issues with the positions he took in opinions he authored that affected women.  Her verdict - "I conclude that Marshall, while a friend to women, was no feminist in the contemporary meaning of the word, and at best could be classified as a practical as opposed to an idealistic feminist."


Note:  SSRN does not seem to have the paper available for download at this time, but we will post an update when the download is available.

May 5, 2009 | Permalink | Comments (0) | TrackBack (0)

Monday, May 4, 2009

The Souter Vacancy and Justice Kennedy as the Key

Last Thursday, I was prepared to blog a bit about this article - a piece from the WSJ law blog about Justice Kennedy.  The article briefly mentioned Justice Kennedy's possible role in resolving the Northwest Austin voting rights case and how he - as he so often does - finds himself as the swing-vote on a divisive issue.  Then, Thursday night, Justice Souter made his announcement, and it seemed like Justice Kennedy was old news.

Or maybe not.

The conventional wisdom in the mainstream media since last week's announcement is that because Souter consistenly voted with the more liberal wing of the Court, the Court's current ideological bent will not change even if Souter is replaced with left-leaning jurist.  Thus, the story goes, any real "shift" on the Court will not occur until either Justice Kennedy or a member of the more conservative wing of the Court should retire.  But I think the media are overlooking an important X-factor here - Justice Kennedy.

Supreme Court justices peruade each other in a number of ways.  Some persuade through the force of their personality, others through their personal stories.  What persuades Justice Kennedy the most?  Law?  Life Expericences?  A combination of the two?   If President Obama wants to create a swift change on the Court, he would do well to have his staff investigate this question and try to find a nominee who can fit that description.  This person - the "perfect persuader" - would be someone that not only shares Obama's legal views and philosophy, but can also convice Justice Kennedy of the correctness of these positions. 

If President Obama chooses wisely, this "perfect persuader" could give him the Court he seeks immediately.  Overnight, the Court could move from a slightly right-leaning to one leaning slightly to the left.  Thus, being able to get Justice Kennedy to the left on a more regular basis would have a real and immediate impact on the Court. 

Thepotential fly-in-the-ointment here is that Justice Kennedy may relish being the "man in the middle."  Perhaps he votes the way he does to prevent the Court from going too far in any particular direction.  Moreover, the ploy may work better in some cases than in others.  At any rate, it is certainly worth a try to pick a nominee for that express purpose.  Depending on the person chosen, the plan could have more than even odds of succeeding. 

We won't know how the Kennedy angle will play out until the first arguments in October at the earliest.  But until then - and even after - it will be intriguing to speculate if adding a new person to the mix will change the Court in any significant manner.


May 4, 2009 | Permalink | Comments (1) | TrackBack (0)

Sunday, May 3, 2009

Liu, Karlan, and Schroeder on Constitutional Interpretation

Professors Goodwin Liu (Boalt Hall), Pamela Karlan (Stanford), and Christopher Schroeder (Duke) just published Keeping Faith with the Constitution, a bold challenge to originalism (in all its stripes), on the one hand, and to "living constitutionalism," on the other, and a clear argument for a richer approach they call "constitutional fidelity."  The book is one of a pair just released by the American Constitution Society.  (The other is a collection of works on constitutional interpretation titled It is a Constitution We are Expounding.)  You can download a full copy on the ACS site, here.  (Disclosure: I am an ACS member and sit on the Board of Advisors of the Chicago Lawyer Chapter.)


"Constitutional fidelity" is an approach to constitutional interpretation that starts with the text's principles and draws on a variety of sources to apply those principles to contemporary problems:

Interpreting the Constitution, we argue, requires adaptation of its broad principles to the conditions and challenges faced by successive generations.  The question that properly guides interpretation is not how the Constitution would have been applied at the Founding, but rather how it should be applied today in order to sustain its vitality in light of the changing needs, conditions, and understandings of our society. . . .

To be faithful to the Constitution is to interpret its words and to apply its principles in ways that preserve the Constitution's meaning and democratic legitimacy over time.  Original understandings are an important source of constitutional meaning, but so too are the other sources that judges, elected officials, and everyday citizens regularly invoke: the purpose and structure of the Constitution, the lessons of precedent and historical experience, the practical consequences of legal rules, and the evolving norms and traditions of our society.

The authors argue that this approach is not only most consistent with the history of our constitutional practice, but it's also the best way to preserve the document--as it was and is intended to be preserved--over the long haul.

The authors situate constitutional fidelity in some ways between the most familiar brands of originalism and living constitutionalism and in other ways off the spectrum entirely.  (They refreshingly and honestly do not situate constitutional fidelity onlyin relation to originalism.)  They thus roundly and unapologetically reject any style of originalism with arguments that are by now quite familiar; and in the next breath they take issue with living constitutionalism's failure to respect "the fixed and enduring character" of the document's text and principles.  In balancing the Constitution's unchanging attributes with our evolving society, the authors navigate between originalism and living constitutionalism and end up with a richer and deeper theory that accounts for the ways that the Constitution is and ought to be understood.

This book promises to make a serious, even defining, contribution to the literature and debates over constitutional interpretation at a potentially watershed moment, at least with regard to constitutional interpretation in the political branches.  And the web-based release and easy, accessible style will make possible a wide distribution and readership.  I highly recommend this excellent work.


May 3, 2009 in Interpretation, Scholarship | Permalink | Comments (1) | TrackBack (0)

Saturday, May 2, 2009

Justice Souter's Legacy and the Eleventh Amendment: Saturday Evening Review

Certainly there is - - - and will be - - - much to say about Justice David Souter and his legacy on the United States Supreme Court.   [Update: e.g., Linda Greenhouse in NYT here; Kermit Roosevelt in Slate here; The Nation here].


One place to start is the book David Hackett Souter by Tinsley Yarborough, published by Oxford University Press in 2005.  Subtitled "Traditional Republican on the Rehnquist Court," the book contends that despite Souter's reputation as a disappointment to traditional Republicans, Souter is indeed both traditional and Republican in his life and his jurisprudence.

Regardless of politics, Souter's reputation amongst many ConLaw profs and students is as a erudite historian.  This is exemplified by many of his opinions in Eleventh Amendment cases.  In Seminole Tribe of Florida v. Florida, 517 US 44 (1996), Souter's lengthy dissenting opinion, joined by Ginsburg and Breyer, is an extended exegesis on the history of the Eleventh Amendment.  Souter concludes that "neither text, precedent, nor history supports the majority's abdication of our responsibility to exercise the jurisdiction entrusted to us in Article III" and his nearly 40 page argument is as thorough as one can find anywhere in the United States reporter.   Interestingly, while Souter is often set against the conservative originalists, the Eleventh Amendment context displays Souter's strong originalist and historical fealty. In his nearly as long dissenting opinion in  Alden v. Maine,  527 U.S. 706 (1999), in which the majority found that the FLSA could not be applied to the states under the Eleventh Amendment, Souter remarks that state sovereignty has all of the hallmarks of a “natural” right - - - “a universally applicable proposition discoverable by reason.”   Id. at 716. 

Scholars have taken up Souter's project in Eleventh Amendment scholarship.  In Statehood As The New Personhood: The Discovery Of Fundamental “States' Rights," 46 William and Mary Law Review 213 (2004), Timothy Zick extended Souter's observation about the "natural" rights of states into an article arguing that the Court has extrapolated individual rights such as those flowing from the Bill of Rights and Fourteenth Amendment into rights that States possess.  Zick contends that

fundamental “states' rights,” unlike the sovereign rights of existence, separateness, participation, and interpretive independence, are not contained in any constitutional bill of rights for states:  They are, like individuals' fundamental rights to such things as “privacy” and “liberty,” judicial extrapolations from the penumbras of these basic sovereign rights. This, among other things, distinguishes fundamental “states' rights” from both the power calculus version of “states' rights” and the idea that the Constitution itself preserves certain minimal rights of state sovereignty.  As a result of recent Court decisions, states now enjoy fundamental rights to intimate association, equality, physical autonomy, mental autonomy, and due process. States, therefore, like persons, enjoy a measure of liberty in ordering and arranging their intimate affairs. With respect to immunity from lawsuits, states are entitled to be treated as more than second-class sovereigns, just as the Constitution's equality guarantees prohibit government from creating lower-status persons.

Two other articles bear reading.  Recently published, The Supreme Court's Confusing State Sovereign Immunity Jurisprudence, 56 Drake L. Rev. 253 (2008) by Scott Fruehwald is essentially an argument that Souter is correct - - - at least for the most part.  Much of Fruehwald's argument relies and quotes Souter's opinions.  However, Fruehwald argues that in Nevada Department of Human Resources v. Hibbs, 538 U.S. 721, (2003), the Court wrongly allowed Congress to apply FMLA to the states, resulting in a remedy that is not congruent and proportional to the evil.  He asks "how is requiring twelve weeks of unpaid leave congruent and proportional to the evil of discrimination against women on the basis of pregnancy?"   Souter joined that Court's (correct to my mind) opinion in that case, although Souter concurred specially to make it clear he did not concede the position expressed in his previous dissenting in views in Seminole Tribe.  Additionally, Andrew Coan's essay, Text As Truce: A Peace Proposal For The Supreme Court's Costly War Over The Eleventh Amendment, 74 Fordham L. Rev. 2511 (2006), seeks to not "take sides" in the warring opinions regarding the Eleventh Amendment but to direct the contestants back to the text of the Eleventh Amendment.  Yet given his conclusion that Seminole Tribe was incorrectly decided and should (like similar cases) be overruled, he too is arguing that Souter is correct. 

Of course, Souter's legacy extends far beyond Eleventh Amendment jurisprudence.  But in many ways, his work on the Court's Eleventh Amendment cases evidences his well-known historical expertise.


May 2, 2009 in Current Affairs, Eleventh Amendment, Scholarship | Permalink | Comments (1) | TrackBack (0)

Executive Policy by Website: Do changes to matter? Don't Ask Don't Tell Changes and Changes Again

According to a few progressive websites, has been undergoing some changes and these changes are being "tracked."

Picture 4

For example, Pro Publica has introduced Change Tracker, which lists all additions, deletions, and changes to, available here.  (There are also instructions on how to use Change Tracker for other websites). 

On Think Progress and AmericaBlog, reports are that the "civil rights" pages of have been rewritten to "walk back" Obama's committment to terminate the "Don't Ask, Don't Tell" policy governing sexual minorities in the military.   According to Think Progress:

The website used to emphasize Obama’s firm commitment to repealing the discriminatory policy:

President Obama agrees with former Chairman of the Joint Chiefs of Staff John Shalikashvili and other military experts that we need to repeal the “don’t ask, don’t tell” policy. The key test for military service should be patriotism, a sense of duty, and a willingness to serve. Discrimination should be prohibited. The U.S. government has spent millions of dollars replacing troops kicked out of the military because of their sexual orientation. Additionally, more than 300 language experts have been fired under this policy, including more than 50 who are fluent in Arabic. The President will work with military leaders to repeal the current policy and ensure it helps accomplish our national defense goals.

However, after changes apparently made last night, the previous full, earnest paragraph was slashed to one half of a sentence promoting only “changing” the lawin a sensible way”:

[Obama] supports changing Don’t Ask Don’t Tell in a sensible way that strengthens our armed forces and our national security, and also believes that we must ensure adoption rights for all couples and individuals, regardless of their sexual orientation.

However, today Pro Publica (courtesy of the "handy Changetracker tool") noted that 

last night the White House reinserted language saying President Obama supports the “repeal” of Don't Ask Don't Tell. The new phrasing: "He supports repealing Don't Ask Don't Tell in a sensible way that strengthens our armed forces and national security."

One senses that there is some meaning in all these changes, but what is it?


May 2, 2009 in Executive Authority, Web/Tech, Weblogs | Permalink | Comments (0) | TrackBack (0)

Friday, May 1, 2009

Quick Hit - Quotes from President Obama on the Criteria for SCOTUS Justices

Here, from the Washington Post.


May 1, 2009 | Permalink | Comments (0) | TrackBack (0)

Breaking - What President Obama wants in a Justice

Moments ago, President Obama interrupted Press Secretary Gibbs to make a statement on the Souter vacancy.  After thanking Justice Souter, President Obama stated he would prefer to nominate a person "'who understands justice is not just about some abstract legal theory,” but about how laws affect Americans’ daily lives.'"

From The Politico.

May 1, 2009 | Permalink | Comments (0) | TrackBack (0)

The Teaching Assistant

Dear all:

What a week!  What with torture memos and 100 days celebrations and critiques and swine flu and Justice Souter . . . there's been a lot going on.  But luckily, your trust assistant has been keeping an eye on stories you may have missed in this maelstrom of a newsweek.

Equal Protection

The issue of disparity in sentencing between crack and powder cocaine was revisited by Congress this week.  Senator Ben Cardin (D-MD) wrote in the Hill Blog that the disparity "There is no excuse for breaking the law by using and/or selling illegal drugs.  But today we have a civil rights injustice in our drug sentencing policy between crack cocaine and powder cocaine." 

On gay rights, there is good news and bad new.  On the positive side, new polls have evidence that Americans' attitudes are shifting.  A Quinnipiac poll states a a majority of Americans favor the repeal of the "Don't Ask, Don't Tell" policy.   Moreover, ABC reports that forty-nine percent of Americans favor gay marriage - an all-time high.  At the same time however, California courts have ruled that private schools can expel students on the basis of sexual orientation.

On education, Slate's Willilam Saletan has an article about why analyzing test scores by race may not be efficient or practical.

Closely related to the Ricci case, the Washington Post reports that the number of race discrimination suits filed by whites is surging.

The NYT has an editorial regarding Cuomo v. Clearing House, the case alleging that banks had engaged in discriminatory lending practices to Latinos and African-Americans.

Finally, a San Francisco civil rights institute will be named after civil rights pioneer Fre Korematsu.

Fundamental Rights

Reality Check and the ACLU critique the Obama administration's reproductive rights policies at the 100 day mark.

Secretary of State Clinton expressed the administration's views on reproductive services in U.S. aid abroad on C-SPAN.  Her comments also mention some of the domestic initiatives she undertook as First Lady on this issue, and her view of how the Bush Administration affected those initatives.

Executive Branch

The torture story remains very much alive.  If you haven't already, you must read two items.  First, over at Balkinization, Jack has a post with video and transcript of Condi Rice stating "[I]f it was authorized by the president, it did not violate our obligations under the Conventions Against Torture."   Second, writing on the Hill Blog, Senator Robert Byrd (D-W.Va), provides an impassed plea for the investigation of those who authorized the torture.  He writes, in part, " Whether it is through an independent investigation, a “Truth Commission,” a Congressional investigation, or a criminal investigation by the Department of Justice, action must be taken. As long as those who condoned and approved these despicable acts are permitted to escape the consequences, we allow our moral standing in the world to be severely compromised."

Takings Clause

The WSJ Legal Blog has an interesting analysis of the effects of the Court's 2005 Kelo decision.   The primary issue that while jurisidictions want to narrow the operation of the ruling, the breadth of the term "blight" has largely negated those efforts.

That's all for this week.  (And really - wasn't it enough?)  I'll see you next week!


May 1, 2009 | Permalink | Comments (0) | TrackBack (0)